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The Miami-Dade area will be host to a landmark custody battle that will decide the fate of not only the litigants involved but of Native American-Florida relations.A West Miami-Dade resident will be fighting for the custody of his two children in a Miami-Dade court, after having been repeatedly denied parental rights in Native American Tribal Court. The mother of his children and he never married. She is a member of the Miccosukee tribe. After their relationship dissolved the two shared custody and visitation of the children in an informal and unofficial weekend-by-weekend manner.

In October, relations went sour between the two and the woman filed for a petition for temporary custody in Miccosukee tribal court in which the petition was immediately granted and a court date was set. The man reacted by having his attorney file a petition in Miami-Dade and the two of them attended the Miccosukee tribal hearing. The man’s attorney was not allowed in the courtroom based on his “failure to speak the Miccosukee language”. The hearing was conducted wholly in the tribal tongue with only a brief translation. The woman was awarded full custody.

In this case, the central focus will not be the Indian Child Welfare Act of 1978, which so often comes into play during adoption and custody battles regarding Native American children, but rather the Uniform Child Custody Jurisdiction and Enforcement Act which provides the courts jurisdiction in deciding custody disputes involving citizens of different states or countries. The act follows federal law and accordingly Indian reservations, the Miccosukee included, are treated as sovereign states.

The key provision of the law: the court with jurisdiction is the one from where the children resided “within 6 months” of the “commencement of the proceedings” for child custody. The man is contending that the woman does not and has not lived on the reservation; the woman is obviously claiming she has resided on the reservation and that she has been the sole financial provider for the children.

The state of Florida officially recognized the now well known reservation known as the Miccosukee Tribe of Indians of Florida in 1957. The reservation was recognized by the federal government in 1962.

These types of custody battles are not uncommon in states with large Indian populations. In South Florida, however, this case is likely a first, according to the attorneys. The latest census puts the number of Native Americans in Florida at less than 10,000. The Miccosukees are the Miami-Dade area’s biggest local tribe with a population of 600.
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Commonly known as DOMA, the Defense of Marriage Act was partly overturned by the Supreme Court on June 26, 2013.DOMA was originally enacted in 1996 under President Clinton. One component of the statute permits states to refuse to recognize same-sex marriages performed under the laws of other states. President Clinton, later in 2009, admitted that he supported same-sex marriage but ultimately did not feel it was a federal issue. The other part of the statute defines marriage, for federal purposes, as between one man and one woman, effectively precluding married same-sex couples from receiving federal benefits. It was this federal definition (“Section 3”) that the Supreme Court struck down.

In 2011, the Obama administration proclaimed that although it is their belief that the Section 3 is unconstitutional, they would continue to enforce the bill but refused to defend it in court. Prior to the historic Supreme Court ruling, Section 3 was struck down as unconstitutional in the Court of Appeals for eight federal circuits.

The case that made it to the Supreme Court which ultimately led to its overturning is United States v. Windsor. The case followed Edith Windsor who had married her spouse Thea Spyer in Canada in 2007. The couple moved to New York and New York state recognized their same-sex marriage. When Thea died, she left her entire estate to Spyer. Historically, when a spouse dies in the US, the spouse, and only the spouse, will be exempt from federal estate taxes; if the estate is left to anyone but a spouse then the limit is $3.2 million dollars before estate taxes apply. In Edith’s case, the IRS did not recognize Edith as a legitimate spouse under DOMA leaving Edith with an estate tax bill totaling over $300k.

Windsor proceeded to sue for a refund of the money she did eventually pay. The grounds were that such a tax under DOMA’s non-recognition was a violation of her Fifth Amendment right of equal protection. The two federal courts ruled in favor of Edith and the case made it to the Supreme Court; oral arguments were heard in March 2013. The court found Section 3 unconstitutional as “a deprivation of the equal liberty of persons that is protected by the Fifth Amendment”.

Governor Scott and Senator Marco Rubio disagreed with the SCOTUS decision but identified that it won’t affect Florida ban. The Florida state ban on gay marriage was introduced in 2008. The Florida ban would need to be repealed by either an act of legislature, which is slow and the bill was introduced based voted on by the citizens of Florida (62%), or by a petition requiring nearly 700,000 signatures. Equality Florida, a gay-rights group, announced it will campaign in 2014 for a bill to challenge the Florida ban.

Although the focus is on same-sex marriage, an interesting effect of this case is same-sex divorce. Historically, upon a divorce, ex-spouses could transfer unlimited money between them in settling property distribution. Same-sex couples now can settle divorces without imposing large tax fees. Additionally, federal gift taxes would not apply to same-sex spouses.
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In the wake of the World Health Organization’s (WHO) tragic report detailing the extent domestic violence persists throughout the world, the Law Firm of Sandy T. Fox is dedicating this post to an overview of domestic violence solutions for those in need.The report released by the WHO this month was the first comprehensive worldwide survey of domestic violence. The rate of domestic violence in North America, although lower than the world average, is still about one in four. The report found one third of women have suffered domestic violence with a startling 40% of women killed across the world as a result of attacks by their intimate partner.

Florida Working to End Domestic Violence
A grant awarded to Florida State University researchers has been put to use to attempt to tackle domestic violence in the criminal justice community. This first-of-its-kind online toolkit known as the National Prevention Toolkit on Officer-Involved Domestic Violence and will first hit 10-states before going nationwide. The goals of the initiative are to educate criminal justice officers on communication dynamics and the consequences of domestic violence. The Law Firm of Sandy T. Fox is proud of the nationwide contributions Florida is making to combat this trend.

Leaders in Orange County are also currently revising new ways to tackle this national problem. The Domestic Violence Commission has come up with several new recommendations which may hint towards similar changes throughout the state. Some major recommendations are: preventing those accused of domestic violence from having a phone in jail as they often abuse the privilege to harass the victim, enforcement agencies should be required to alert the State Attorney’s Office in the cause of repeat violations within 24 hour periods, and victims should be added to a no-contact order lists which would allow law enforcement to more easily identify if the individual is in danger again.

Domestic Violence and Family Solutions
Since no-fault divorce has taken the place of more specific fault-based grounds in Florida, domestic violence importance in the divorce has been downgraded to non-existent. Previous acts or a history of domestic violence no longer factor into the divorce proceeding. However, these still do matter in other aspects of a divorce.

Equitable distribution, the settlement of the spouses separate property, is supposed to be fair to both parties and the court will have difficulty ignoring spouses who have been abused, physically or emotionally, or spouses who have suffered acts of adultery.

In instances of domestic abuse in homes with children, it is not only a good suggestion to seek help but a moral obligation. One solution the court may grant is a Protection from Abuse order which can lead to jail time if the offender violates the terms. These cool down periods are necessary to keep yourself and children safe while you consider the road ahead. Anyone within a family may file this order, including grandparents, spouses, ex-spouses, children or anyone intimately involved with the family. Different injunctions exist for those suffering from violence that do not qualify for . A Petition for Protection against Sexual Violence or Injunction for Protection against Dating Violence
Any acts of domestic abuse would favor the non-abusive parent heavily in determinations related to the child including custody and visitation rights.
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How can a couple that has never had a marriage ceremony or a marriage certificate be married? This legal theory is known as common law marriage and it treats a man and woman who act like a husband and wife as a husband and wife upon splitting up.Florida recognized common law marriages for many years until 1968 when the state ended it with Florida statute 741.211.

This does not mean that no common law marriages exist in Florida. Florida will, in fact, recognize common law marriages in two main capacities: Couples having entered a common law marriage before 1968 and couples seen as married under common law from a state that permits common law marriage. As stated succinctly in the opinion of Johnson v. Lincoln Square Properties, Inc., “Florida has always determined the validity of marriage in accordance with the laws of the place where the marriage occurred.” Such a following also requires Florida to look at how those states treat property acquired during the marriage.

The states which recognize common law marriages are: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire (select cases), South Carolina, Rhode Island, Texas, Utah, and the District of Columbia.

Courts in these states will look at the following elements when deciding to recognize the couple as married under common law:

– (1)The couple has cohabited in a common-law state
– (2) with the intention to be married
– (3) for a period of time (which will be viewed subjectively on a case by case basis)
– (4) and has held themselves out as married (joint tax returns, shared surnames, etc)

If all these elements are not present, the couple cannot be deemed to be married under common law. As one might notice, there is much subjectivity with each element, and it is important for individuals to contact an experienced family law attorney to assess their potential situation and assist in the process.

If a common law marriage is found to be valid, the couple will be treated as no different than a traditionally married couple in these states. They will need to go through all the same formal divorce proceedings to dissolve their marriage.
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A flawed prenuptial agreement has made it all the way to the highest court of New York State, with the New York Court of Appeals ruling that a flaw in formation can be deadly to a prenup’s enforcement. In a recently decided case, the court ruled against the husband (6-0) for failing to properly acknowledge his signature. Errors like this reinforce the basic contractual nature of prenuptial agreements and stress both the formalities that must be followed and the importance of contacting an experienced matrimonial attorney when making such important life decisions.Millionaire Corner, a website for the well-to-do, released a survey this April that dispelled commonly held stereotypes regarding certain gender views towards prenuptial agreements. When given the choice between five different views ranging from very pro-prenup to very anti-prenup, women identified more with pro-prenup side of the spectrum and their male counterparts identified more towards the antiquated, negative view of prenups. The most telling of these indicate that women lead men, 62% to 54%, in recommending a prenup to a couple getting married, and approximately 50% “don’t feel there are any disadvantages” to a prenuptial agreement between the parties. The same website published another survey days later showing counter-intuitive views of prenups held by older generations, with more than two-thirds of participants over the age of 61 recommending a prenuptial agreement.

Prenuptial agreements, as discussed in a previous post, can often include strange, unorthodox terms. A common specific type of prenup has earned a name among those in the industry: the love contract. Love contracts are meant to put on paper an agreement regarding how the intimate love life of the couple will be conducted. Often in these contracts the terms specify either frequency or methods of lovemaking.

Such language in a prenuptial agreement really can muddy the waters for very limited enforceability, and such obligatory scheduling of a generally spontaneous act could trivialize many portions of the relationship. Suzanne Pelka, a sex therapist, explains that it is “really this false sense of control that we have because we don’t know what’s gonna happen tomorrow.”

So, what happens when someone tries to fight such a clause? Typically these clauses are not enforceable within the marriage. Aside from demeaning the basic nature of intimacy, if a partner fails to meet the obligations outlined by the agreement, the only thing it may affect is the division of property during a divorce. These documents can not be referred to during the marriage or act as a supporting document to how the partner must act. No breach of contract cause of action can exist when it comes to “love contracts”.
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The Indiana Court of Appeals has ruled in favor of a Canadian couple in their suit against an Indiana-based adoption agency after the couple learned of their potential child’s drug addiction.The baby, only days old, began showing signs of drug addiction while still in the hospital. The addiction was inherited from the birth- mother who had abused methadone while pregnant. The couple learned of the child’s condition from a social worker, days after the agency knew.

A Bond of Life Adoptions, the adoption agency operating out of Indiana, originally succeeded in having the couple’s complaint dismissed from trial court. The agency relied on a release clause found in their contract signed by all potential adoptive parents which limits liability against the agency for claims derived from unknown medical conditions of the child or the child’s birth family.

The couple’s complaint, based heavily on a breach of contract theory, cited the failure of the agency to disclose important medical information to the couple which would have affected their decision to adopt. Since the discovery of the condition, the couple withdrew from the adoption process, completely distraught, and has expressed that they will not likely explore further adoption opportunities.

In the court’s opinion overturning the trial court’s dismissal, the court listed an unfortunately long history of adoption agencies hiding behind such releases citing that withholding information is not protected under “unknown medical conditions”.

Adoption providers, such as agencies or attorneys, are often barred from disclosing identifying information regarding the birth parents. However, this does not include medical or psychiatric information which would likely be important for the adoptive parents to know.

Nearly half of the states permit some sort of civil liability against adoption providers for a wrongful omission or commission. One of those states is Florida. Issues like this are another major reason that smart adoptive parents will seek out a knowledgeable experienced family law attorney.

Wrongful adoption suits, recognized in a number of states, vary in the basis of their elements. Most wrongful adoption suits do in some way allege that, through intent or negligence, the adoption provider did not act in good faith to inform the parents of potentially important information. Wrongful adoption claimants typically involve elements of misrepresentation, fraud, negligence, or contractual breach of good faith. Courts look at whether the information not disclosed is “material”. Information is “material” if it would have impacted the adoptive parents’ decision to adopt.

Many couples looking into adoption often explore international adoptions to avoid some of these problems, but US News recently reported on the failures of international adoption providers to diagnose, identify, or explore medical or psychological issues in the child and the child’s family. Plus, suits become incredibly more complicated if not impossible when brought against an international adoption agency.
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A new research study released by UCLA has revealed that lower income marriages are more harshly affected by the common divorce causes of economics.Previous studies have shown typically that lower income marriages suffer higher rates of divorce. This study, carried out by Dr. Karney and Dr. Trail of the university, found that lower income couples hold more traditional view on marriage than higher income counterparts.

The study examined over 4,000 Floridians and a cross examination of 1,500+ individuals of other states with the average age of respondents in the mid-40’s. The study viewed how these lower income respondents compared to higher income individuals in regard to their standards, values, and their marriage experience. The lower income marriages suffered more as a result of substance use and money problems but their attitudes indicated a higher degree of disapproval for divorce.

Commenting on the social pressures, Dr. Trail noted that people with lower incomes “have similar standards for choosing a marriage partner and experience similar problems with managing their relationships”. The study’s conclusion indicated that public policy intended to educate low income couples on pitfalls of divorce would be better served to address the root problems facing the individuals that actually lead to the divorce in the first place.

Lessons to Learn
As a result of the study findings, there is no disparity in the romantic levels amongst different economic demographics but rather how the individuals are impacted by life’s curve balls.

With money being the leading cause of divorce, there are many things couples of any economic range can do to lessen their chances of facing divorce.

First, understand that any couple has an income disparity between the partners. Too much of an income disparity can lead to guilt, resentment, imbalance of power, and money disputes.

Secondly, ensure that both parties understand both person’s views of money, savings, and spending. Communication is a couple’s best defense to future misunderstandings.

Thirdly, a budget between couples will keep both individuals informed of expectations.

Fourthly, create a balance of contributions. This prevents the bigger earner from feelings of resentment from the lower earner. This also clarifies expectations, which is one of the most important point parts of healthy communication between couples.

Lastly, plan ahead. Any income range can benefit from a prenuptial agreement which protects the assets going in and removes any incentive to divorce. The agreement will establish what property belongs to whom, and what property will be treated as marital property to be split in the event of a divorce.

One other concern low income couples and couples with an income disparity must consider is the possibility of child support. Income disparity and total income will both be taken into account in child support proceedings. Child support becomes especially important for a non-working parent who suddenly has full custody.
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Oklahoma tycoon Harold Hamm, one of the top 100 richest men in the world, is making as big of an impact on the world of divorce as he has on the world of oil. The founder and CEO of Continental Resources is splitting from his wife of 25 years, Sue Ann Hamm and the first estimates place the costs to Harold at the $5-billion mark.The couple has been estranged since Sue Ann claims she uncovered an affair Harold had in 2010. Divorce papers were filed in May 2012. There has been no clear evidence found of a prenuptial agreement between the couple. Provided no agreement is produced, Sue Ann would be entitled to “marital property” including 50% of Harold’s 68% of controlling shares for Continental Resources.

The title for world’s most expensive divorce is currently held by News Corp. founder Rupert Murdoch at the cost of 1.7 billion.

Aside from a missing prenuptial, the biggest contributing factor will be Sue Ann’s contributions to Harold’s success. She has acted as a lawyer, economist, and executive for Continental Resources and is even responsible for creating its oil and gas marketing groups. Such contribution is known as joint business ventures – and is a major point courts look to when dividing property. In absence of such direct corporate assistance, many could argue that they contributed to the household. Plus since much of the growth of Continental shares have occurred after the couple tied the knot, courts will view this as “shared growth”.

Tax Implications

According to a recent overview of the Hamm’s tax situation, Forbes described the couple’s tax situation. Internal Revenue Code section 1041 governs transfers between spouses and in the case of divorce. It supersedes previous case law, which taxed property acquired through divorce as taxable income. Because Harold has held his shares since he founded the company in the late 60s, his share of taxes each year is minimal. However, if now Sue Ann, after receiving 5 billion dollars worth of stock in her ex-husband’s company, wants to sell the stocks for cash she will face massive tax burden
Lessons to Learn in your Florida Divorce:

Get a pre-nup. Harold is a smart business man and can calculate a risk. But this is also Harold’s second marriage. Learn from him that even though you may think everything is going great in your relationship, you must remain prepared.

Consider your contribution. Contribute to the financial well-being of your household. Whether directly through business or at home, both will matter in court.
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This blog has previously discussed changes to Florida’s alimony laws (Senate Bill 718). Governor Scott vetoed this bill which included, as well, updates to Florida’s child custody laws.Specifically, child custody schedules were updated. Previously, there was never a codified mandate or guide that the custody break-down be 50/50 with both parents; rather judges just deemed what is right by a scattered amount of standards. Senate Bill 718 codifies a presumption that there be a 50/50 time sharing agreement between parents as, according to the legislature, it “is in the best interest of the child”. The bill does provide for basic and necessary exceptions or considerations to this presumption however.

Some of these considerations include: physical, mental and emotional safety of the child; distance makes the sharing too burdensome; a court order has prevented contact with one parent; a parent is incarcerated; domestic violence has occurred; clear evidence that extenuating circumstances require a modification of the schedule; or a parent does not wish to retain his/her level of custody.

Govenor Scott has admitted he does approve of “several forward looking elements of this bill” but he recognizes the importance alimony plays to many households. Currently, only four states have ended permanent alimony. Gov. Scott further criticized the Florida bill for its retroactive application which damaged ideas of fairness and “could result in unfair, unanticipated results.”

No Custody for Rapists

This April, the Florida legislature approved another more specific child custody bill which has been long overdue. The bill, SB 964, would prohibit a convicted rapist from acquiring child custody rights over the child conceived from the attack. The Florida House unanimously passed SB 964 with a vote of 115-0. The bill will be going to Governor Rick Scott and will take effect upon his expected signature.

A staff report in support of the bill reported that only 19 states terminate parental rights of convicted rapist for any child conceived through their crime. Now, with Florida having passed the bill, a startling 30 states (as well as the District of Columbia) remain which have no law on the books that bars a rapist from seeking visitation or custody rights. These states are as follows: Arizona, Arkansas, Colorado, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming.

Previously, rapists could seek custody of the child born from their attack. In some cases, this can even be used as a backdoor bargaining chip to discourage the victim from reporting the incident, testifying, or participating in sentencing hearings.
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This January, an Ohio father who was behind on his child support payments in an amount over $96,000 was ordered to stop having children. This type of judicial mandate, although rare, has been issued twice by Wisconsin in the past year.A father of four was first indicted in August 2011 when he was in arrears of close to $80,000. In 2013, with his unpaid child support closing in on $100,000, Judge James Walther extended his probation by an additional five years and issued this unique mandate.

Judge Walther described the need for such an extreme controversial condition: “It’s your personal responsibility to pay for these kids.” The terms became part of his probation and are not intended to be permanent, but violation of such order could lead to jail time.

An appeal is already expected as his lawyer has been arguing that the judge overstepped his boundaries, and such an order is a violation of his constitutional right of privacy. A court date for the man to reappear is schedule for July, 2013.

Individuals with children going through a divorce must be prepared for their eventual child support order. The best advice is to hire a competent family law attorney at the onset, since the initial child support order acts as a theoretical anchor for future modifications.

In Florida, neither parent may waive child support by the noncustodial parent as child support is meant for the child and should not be bargained away by parents.

Some possible punishments for failure to satisfy child support payments:

Loss of driver’s license. Oftentimes, the revocation occurs without immediate notification to the nonpaying supporter.

Interception of tax refund. Florida can and has “intercepted” tax refunds to defaulting parents.

Liens and wages. Like taxes, Florida may attach liens or garnish wages in order to satisfy outstanding debt. These methods place the debt of the child support away from the child’s needs and onto the nonpaying parent. Not only does this method affect the nonpaying parent’s cash flow but can also harm their relationship with their employer.

Bank savings. In some rarer instances, the State of Florida has been able to reach certain bank funds, and freeze others.

Harm to credit score. Different orders, defaults, or delinquency notices all appear on credit reports and harm the offender’s credit score.
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