Tuesday, March 24, 2009

Child's Immigration Status Does Not = "Wrongful Retention" in the U.S.; 9th Circuit Speaks

The 9th Circuit U.S. Court of Appeals has reversed a Federal trial court and denied an petition under the Hague Convention on the Civil Aspects of International Child Abduction for return of the child to Mexico, pending an actual custody determination. Said the progressive (or, depending on who you talk to, "notoriously liberal") Court, in an opinion by Justice Reinhardt:

[W]e must decide here whether a child of Mexican origin, whose mother wrongfully retained her in the United States, should . . . . . . be returned to Mexico while the proceedings are conducted there. To decide this issue, we must consider . . . . . . whether a court may find that a child is not “settled” for the purposes of Article 12 of the Hague Convention for the reason that she does not have lawful immigration status.

To both of which questions, the answer is apparently, "No".

Monday, March 23, 2009

Egyptian Fatwa: Your Neighbors Can Make You Get Divorced

It seems that under a recent determination of Muslim law as it applies in Egypt, if a couple doesn't get along, but doesn't proceed to get a divorce, the neighbors can do it for them.

"Sheik Gamal Qutb, former head of Egypt's top religious institution, the Fatwa Committee at al-Azhar, said Sunday during a meeting at the Egyptian Press Syndicate that his fatwa states that neighbors and family members can file for a couple's divorce if the pair's differences appear irreconcilable, al-Arabiya reported Friday. Qutb said community members should first attempt to help solve a couple's marriage problems, but should then present evidence of the marriage's failings to a court if the husband and wife cannot live together in peace."

If we could get a similar law passed here, I'm seeing a phone-in-your-votes reality TVshow that'll potentially leave "American Idol" in the dust.

Thanks to Warren Shiell's "Los Angeles Divorce And Family Law" blog for the pointer.

Friday, March 20, 2009

Possibly History's Coolest Divorce Settlement Offer

Per the books-on-disc version of Walter Issacson's biography of Albert Einstein, when Einstein became estranged from his wife, he proposed to her that in exchange for her consenting to a divorce, when he won the Nobel Prize, he would give her the prize money. He eventually did both.

Wednesday, March 18, 2009

How Bad Is "Egregious" (As Opposed To Just Plain "Really Bad")?

New York, among other idiosyncracies in their family law, continues to have "fault divorce"; if you fail to prove fault, the court can refuse to grant a divorce.

I've been practicing my entire career in a "no-fault" state, and the idea that the state has some interest in telling someone who wants to get divorced, "No, even though you've filed a divorce, you must stay married..." strikes me as odd.

Odder still, however, is the following:

If your spouse engages in "
egregious" conduct, a New York court can change the division of property to punish the "at fault" spouse. You might think that think that a court would have no hesitation in finding wife's affair, resulting pregnancy, telling husband that child was his (for four years) and a subsequent affair, taken together would rise to the level of "egregious" conduct and that wife had "deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon" husband.

Apparently, you'd be wrong.

California has an explicit statute confirming that spouses have fiduciary duties to each other. This has, to date, been interpreted to mean that if one spouse secretly does funny business with the finances, the innocent spouse doesn't bear the risk of the funny business.

I had a similar "Surprise, you're not daddy!" case, briefly, years ago, and always wondered: would California have recognized my guy's claim for the breach of fiduciary duty?

Monday, March 16, 2009

Divorce Across The Border, or Madness Across The Water

As the world economy (or the world's economies) slumps*, different aspects of law come into sharp focus, while others, momentarily, lose relevance making them worthy of attention. I'm now far more interested than I've been in a couple of decades, in the possible remedies my clients' refinance mortgage-holders may have when the mortgage doesn't get paid**. The formulas by which the parties get to divide up the appreciation on a parcel of real estate, on the other hand, seem at least for the moment like debating the number of angels who can dance on the head of a pin.

As money and employment shift around, so do the people holding them; again, where people have gone, from economic necessity, is affecting whose law governs what happens when someone feels the marriage is over and files something. At all levels, from the user of "free-divorce-advice-on-the-internet" , to the "multinational couple," I'm answering more "I'm here, she's there; can I file here, and what happens if she files first, there?" questions than I've seen in a long time.

These are thorny questions at best, and often the best answer is no more than "It depends, and my best educated guess is..."

* "dives"? "tanks"? "enters a flaming death-spiral"?
because only one party's living in, and paying for, the house where "wedded bliss used to dwell".

Friday, March 13, 2009

Naming Your Children: Just Because You Have The Right to Do Something , Doesn't Always Make It a Good Idea...

It appears that at least for the moment, the New Jersey court will not be restoring full custody of little Adolf Hitler Campbell, and his siblings, Joyce Lynn Aryan Nation Campbell and Honszlynn Hinler Jeannie Campbell (there's some reason to think that ol' Honszlynn's middle name was supposed to be "Himmler") to their parents.

These would be the parents who put their children into the public eye by getting into, and then publicizing, a dispute with a local grocery store arising from the store bakery's refusal of their patronage for the making of a swastika-bedecked cake, reading "Happy Birthday, Adolph Hitler!" for little A.H.'s third birthday.

Thursday, March 5, 2009

Do Fries Go With That Divorce?

A New York City firm is advertising that, if you drag your spouse into their offices, they'll prepare all the documents for an uncontested (no kids/no property disputes/no support claims) divorce, for a bargain price, and give you a certificate so you can go have lunch at McDonald's while you wait the hour for the papers to be prepared.

I await the "Divorce three, the next one's free!" card. Maybe they could throw in a certificate for a discount marriage license?

Child Support in California: Never "Locked In"

A California appeals court has now come a step closer to saying that parents simply can't ever make a binding agreement to "lock in" an amount of child support, regardless of changes in parents' fortunes. As long as everyone agrees that an amount of support is correct, there's no problem, but as soon as someone has a change of heart an agreement that child support can never be modified downward is of no more effect than an agreement to cap its modification upward.

This wasn't as comforting to the paying Dad requesting the modification as it might have been, since the same court also affirmed the trial court's considering a continuous stream of cash "gift" or "loan" payments from his mother, (some of which Dad then paid back to his mother as rent) in setting the new amount of support Dad was to pay.

This decision bookends neatly with a series of California decisions which seem to suggest that once there's been a court order for the payment of child support, that money remains due and payable, and the parties likewise can't make a binding agreement waiving any payment, or accepting a reduced amount, for any payment due.

Marriage of Alter 2/26/09