The Complications of International Custody Disputes

The media has recently focused on an international custody dispute involving actress Kelly Rutherford and her former husband Daniel Giersch after Rutherford was ordered by a New York judge to return her two children to Monaco, where Giersch resides. Giersch and Rutherford filed for divorce in 2008, and have been involved in a custody dispute ever since a 2012  California court ordered the children shall primarily reside with Giersch in Monaco after Giersch’s United States’ Visa expired, and shall visit Rutherford in the summers in New York, with Rutherford having the ability to exercise timesharing with the children in Monaco. Per that California court order, Rutherford was to return the children to Monaco in early August 2015 and failed to do so, at which time Giersch filed in the New York Court seeking a Writ of Habeas Corpus for the immediate return of the children to Monaco.  On August 11th a New York judge chastised Rutherford for disobeying the court order and ordered the children be immediately returned to Monaco, with Giersch’s mother accompanying the children on the flight from New York. Further complicating matters for Rutherford and Giersch are the multiple jurisdictions involved in the case at the present time. Rutherford previously attempted in July 2015 to have the California court reconsider the 2012 order allowing the children to primarily reside in Monaco, but the California court responded it no longer has jurisdiction over the case to modify its own order since Giersch has instituted custody proceedings in his primary residence of Monaco and because the California court now considers Rutherford a New York resident, despite Rutherford’s argument to...

In Florida, Infidelity in your Marriage Probably Does Not Matter (Legally) as Much as you Think it Does

Undoubtedly one of the first things we are told in consultations with potential clients who are seeking a dissolution of marriage is whether the potential client or their spouse have been unfaithful in the marriage.   While infidelity can often be a fundamental reason why a spouse seeks a divorce, the actual infidelity is rarely a fact that is legally relevant. Certainly from a morality standpoint, the majority of people would agree that faithfulness to a spouse or long-term partner is essential to a trusting, happy, and successful relationship together.   Yet many potential clients are surprised when we inform them that Florida is a “no-fault” divorce state, meaning that a spouse’s infidelity need not be alleged in order for a Florida court to grant a dissolution of marriage. Rather, a Florida court simply requires that a party swear that the marriage is “irretrievably broken” as part of obtaining a dissolution. Often clients want the court to see which spouse was”wrong” and want it known that they were the faithful spouse.   In reality, however, it is often irrelevant to the court.  For example, while recently appearing in Miami-Dade Domestic Violence Court, a party opened their testimony by alleging that an argument began over the other party’s purported unfaithfulness.  The court immediately cut the testimony off and admonished the entire courtroom that testimony regarding infidelity was not at issue and therefore would not be considered by the Court.   While that was a domestic violence-specific hearing, it is indeed rare that fidelity is an issue that is important for the family court’s consideration.  In fact, one of the few exceptions relating to a...

Marriage Equality and the Impact on Transgender Rights

Many by now have heard of the landmark United States Supreme Court ruling last month in Obergefell v. Hodges, making same-sex marriage a Constitutional right on the federal level.  The ruling further protects individuals seeking same-sex marriages and offers protection from any state attempt to interfere with this clear fundamental right. A less publicized, but equally-relevant question is how the ruling applies to transgender individuals.    J. Courtney Sullivan writes in a recent New York Times Op-Ed about a Texas widow named Christie Littleton who, in 1996 after her Husband’s death at age 35 of a misdiagnosed blood clot, filed a medical malpractice suit under a state statute permitting surviving spouses to do so. Defense attorneys fighting against Littleton’s malpractice suit successfully argued in a pretrial motion to dismiss the suit that because Christie Littleton was born a man, she therefore could not be another man’s spouse, citing to the Defense of Marriage Act passed by Congress in 1994.  The Judge in Littleton’s malpractice suit agreed, ruling that Christie Littleton had no standing under the state statute to file a medical malpractice suit on behalf of her deceased husband.  Incredibly, Christie Littleton’s sex reassignment procedure at age 28 had already been acknowledged by the state of Texas, as her birth certificate and driver’s license with the state both reflected that she was a female, and the Littleton’s had obtained a marriage license in the state. J. Courtney Sullivan sees Obergefell v. Hodges as a victory for transgender individuals moving forward, citing Justice Anthony Kennedy’s majority opinion that 14th Amendment equal protection extends to “intimate choices that define personal identity and beliefs.”  Case law in state...

How to Talk About Dying and Why

The New York Times has recently run a series of op-ed pieces dealing with end of life  discussions that many of the authors navigate through their personal experiences and what they would have done differently for loved-ones in terms of planning for death and health decisions prior to death. In a particularly moving piece, Ellen Goodman writes that her and her mother shared conversations about everything in life, but as her mother’s health slowly deteriorated, they never had a conversation about how her mother wished to live in her final years and what decisions she would make for herself.  This led to Goodman having to make crucial medical decisions on her mother’s behalf that caused uncertainty for Goodman as to how her mother would have decided which created a feeling that Goodman may not have been respecting her mother’s true wishes. Goodman cites to a variety of reasons why people do not have these discussions, including that many feel it is “too soon” to have the conversation or feel uncomfortable talking about the issue with loved ones.  Goodman  points out  that one of the best ways to honor and preserve the memory and dignity of a person is to attempt to follow their wishes as much as possible when they can no longer make decisions for themselves. The best way to ensure that your loved one’s wishes are followed in terms of medical care, funeral arrangements and disposition of property upon death is to meet with a professional with experience in estate planning.    If you have more questions about these matters, you should not hesitate to schedule a consultation with our...

mistress suing ex for refusing to divorce his wife

A recently-filed lawsuit in Manhattan may call to mind the phrase “only in New York!” According to a New York Post article by Julia Marsh, Theodora Corsell, age 67, is suing her 88 year old former lover, James Greenwald, for refusing to divorce his current wife, Marilee Greenwald. Corsell, however, is not suing under any claim that is normally reserved for the family court system.  Rather, Corsell claims that she is due the money (her claim is for over $2 million) because of her “professional services” rendered by her on behalf of of Mr. Greenwald that “…were separate and apart from … the parties’ romantic relationship” and that once it was clear Mr. Greenwald would not be leaving his wife for Corsell, Corsell realized she would not be compensated and decided to seek redress through the courts. Corsell contends that she acted as Mr. Greenwald’s de facto personal assistant, handling everything from resale of Mr. Greenwald’s unused New York Giants tickets to thwarting what sounds like an extortion scheme cooked up by Mr. Greenwald’s prior mistress.  Ms. Corsell further contends in her lawsuit that Mr. Greenwald promised “I owe you everything and I will compensate you” for her services.  It will certainly be interesting to see how the New York court handles this suit. Legally speaking, it would be a rare situation where a cause of action for damages can be sustained against someone merely for refusing to divorce their current spouse.   However, it appears the legal theory that Ms. Corsell is proceeding under is known as quantum meruit which in Latin means “what one has earned.” This theory is most often utilized in contract...

Marriage and Millennials: does waiting longer improve marriage?

A recent study done by Demographic Intelligence suggests that marriage rates are lower than they have been in the past century.  Specifically, 6.74 marriages per 1,000 people in the United States.    Heidi Stevens of the Chicago Tribune released the below article offering several considerations as to why this is occurring.    Stevens quotes the president of Demographic Intelligence, Sam Sturgeon, who suggests factors such as “sluggish job opportunities for the less educated and declines in American religion” are part of the reason. Stevens, citing Northwestern researcher Eli Finkel, offers an alternative theory that, despite the lower statistics, modern marriages are actually becoming stronger and more satisfying than at any point in history.  One argument Finkel offers and Stevens appears to agree with is that individuals are more focused on receiving an education and stabilizing their careers before they get settled into a marriage, whereas earlier in the century many individuals took a “marriage first, everything else second” approach. Finkel also explores how socioeconomic factors today affect a marriage’s stability.   It appears both authors would agree that individuals who are committed to education and career stability prior to entering marriage will have less financial pressure on their marriage.  While financial pressure can affect those in a variety of income brackets (including high and low earners),  it is no doubt one of the main factors that cause a dissolution of marriage.   Interestingly, Finkel notes that divorce rates have declined since 1980 after doubling between 1960 and 1980.    Could it be that individuals, by stabilizing their careers and finances prior to marriage, are removing one of the main causes of divorce before the relationship even...

When a couple breaks up, who decides if their frozen embryos have a right to live?

Nick Loeb made news recently after writing an op-ed opinion piece in the New York Times describing how Loeb filed suit in a California Court in 2014 seeking to protect two frozen embryos Loeb created with his ex-fiance, Sofia Vergara, the star of hit television show “Modern Family.” Loeb alleges in his lawsuit that, once he was engaged to Vergara,  Vergara insisted that they use a surrogate mother to carry any children the couple would have.  The parties created two female embryos thereafter which remained frozen while the parties searched for a potential surrogate mother.  Loeb and Vergara then split up.  Loeb further alleges that he requested Vergara turn over the embryos to him with the promise that Loeb would be responsible for all parental and financial responsibilities for the children if Vergara did not wish to share custody.  Vergara refused and has purportedly stated through her attorney that she wants to keep the embryos frozen indefinitely. Loeb argues that keeping the embryos frozen is “tantamount to killing them” and instead insists, similar to the right a woman has to bring a pregnancy to term over a man’s objection, that a man should be entitled to bring his embryos to term even if a woman objects.  According to Loeb, they signed a form stating that any embryos created could be brought to term only with both parties’ consent, despite a California law requiring the form to indicate what would happen to the embryos if the parties separated. Although legal disputes involving frozen embryos are rare,  with scientific breakthroughs and more couples seeking less-traditional pregnancy assistance with fertility experts, it is...

The Unintended Consequences of Child Support Enforcement

Recent headlines were made in Charleston, South Carolina when Mr. Walter L. Scott’s automobile was stopped by a police officer for a traffic infraction, during which Mr. Scott fled on foot, and ultimately was shot in the back several times by the police officer. While the end result of this terrible tragedy was captured on video, leading to the arrest of the police officer, many questioned what led Mr. Scott to flee the officer in the first place. It was later revealed that Mr. Scott had an outstanding arrest warrant for unpaid child support that had been issued two years prior. In the New York Times article linked below, Frances Robles and Shaila Dewan take an excellent look at how child support enforcement laws nationwide, created in the 80s and 90s during a time in which “deadbeat dads” was a term used to describe fathers who were concerned more about providing for themselves than their children and were considered a scourge on society. Robles and Dewan describe how collection efforts were ramped up in the late 90s to include automatic paycheck deductions for child support (referred to also as “Income Withholding” in Florida), and also included incarceration where a court found that a parent with a child support obligation holds the ability to pay the child support and has made the decision not to pay. The authors describe that these tactics work terrifically for high-earning individuals with child support obligations, but examine in greater detail these tactics are most often used on low earning individuals. Robles and Dewan point to a 2007 Urban Institute study of child support debt...

Judge Orders Sterling’s Alleged Paramour to re-pay gifts from extramarital relationship. How does this relate to your case?

Many will recall the fervor in the press and social media in 2014 when former Los Angeles Clippers owner and real estate mogul Donald Sterling was forcefully removed from his ownership position and banned for life by the National Basketball Association (NBA) based on hateful, bigoted and racist remarks made by Sterling and secretly recorded by his purported paramour, V. Stiviano that were leaked to the media by an unknown source. During much of the follow-up investigation of Donald Sterling and Stiviano’s relationship, it came to public light that Donald Sterling had been providing generous financial support to Stiviano. Further, Donald Sterling’s wife, Shelly Sterling, had filed a lawsuit against Ms. Stiviano approximately one month before Mr. Sterling’s racist remarks were leaked. Shelly Sterling’s lawsuit alleged essentially that Donald Sterling had provided Stiviano approximately $3 million dollars of the Sterling’s marital property in the form of real estate and cash without Shelly Sterling’s consent. While many are skeptical as to whether Donald Sterling and Stiviano ever had an intimate relationship, it became clear during both the media investigation and lawsuit that Donald Sterling had been very generous to Stiviano, giving her gifts including a home, cash, and luxury automobiles. The Sterlings reside in California, which is a “community property state” and the Sterlings remain married as of today. Shelly Sterling proceeded with her lawsuit on the theory that since Shelly Sterling did not consent to the gifts Mr. Sterling gave to Stiviano, and because the gifts were marital community property assets, that Stiviano must return all of the assets to the Sterlings. Stiviano’s attorneys made the counter-argument based on...

Child Related Issues In Family Law Matters

This article is to help advise you or someone you know about child-related issues in family law matters. I have come across many people that are under the mistaken impression that mothers have greater rights to their children or to time with them than fathers do. Parents essentially have equal rights. A potential exception exists for unmarried couples with children where paternity has not been established. If you want to learn more about that, please email me at Scottbrook@scottjbrookpa.com. In Florida, there is NO PRESUMPTION in favor of a mother of a child. More specifically, Section 61.13 states that there is no presumption for or against either a father or mother of a child concerning any specific timesharing schedule when creating or modifying the parenting plan of a child. Furthermore, the public policy of Florida is for EVERY CHILD TO HAVE FREQUENT AND CONTINUING CONTACT with both parents after they separate or divorce. I have also come across many parents that wish to impose their parenting opinions on that of the other parent despite the absence of any true detriment to the welfare of the child by virtue of the other parent’s parenting. Please allow me to elaborate by example. Dad does not like Mom’s new boyfriend. As a matter of fact, Dad thinks the new boyfriend is a bad influence on Mom as she is showing signs of drinking more by virtue of her Instagram and Facebook postings. But Dad has no proof that the new boyfriend is harming the kids, threatening to harm the kids and no proof that ties Mom’s drinking to the DETRIMENT of the...