FAMILY & DIVORCE LAW 2020 - FAMILY DORCE LAW 020 THE FAMILY & DIVORCE LAW 2020 ROUNDTABLE CONSIDERS

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FAMILY & DIVORCE LAW 2020 VIRTUAL ROUND TABLE www.corporatelivewire.com 2 3 VIRTUAL ROUND TABLE FAMILY & DIVORCE LAW 2020 The Family & Divorce Law 2020 Roundtable considers the latest trends and... regulatory developments from around the world. It includes expert discussions on high conflict cases, divorce costs, valuation and division of complex assets, international family law, and child custody. Featured countries are: Dominican Republic, South Africa, Turkey and the United States. Q1. Can you talk us through the process for divorce in your jurisdiction? Q2. Are you noticing any new trends or interesting developments? Q3. Are there any noteworthy case studies or recent examples of new case law precedent? Q4. What are the key benefits of the different methods of divorce? Q5. Is litigation or dispute resolution better for highconflict cases? Q6. What considerations need to be factored in to the valuation and division of complex assets? Q7. What are the biggest mistakes clients tend to make? 6 8 9 11 13 14 15 17 19 21 22 26 26 Q8. Are there any considerations in divorce settlements which clients often overlook or are blindsided by their potential inclusion? If so, how can a client best protect their personal interests? Q9. How much does a divorce typically cost and do you have any useful tips on how clients can reduce their expenditure? Q10. How does an international family establish which jurisdiction should hear their case? Q11. How are child custody rights determined in your jurisdiction? Q12. How important is psychological testing in determining the best residential custody arrangements for children in divorce? Q13. What advice would you give to families in order to minimise the overall impact of divorce on their children? Editor In Chief James Drakeford Introduction & Contents David Bulitt focuses his practice on complex family law cases, helping clients in Maryland and Washington, DC, through difficult times, including divorce, custody battles and other contentious domestic conflicts. Clients regard David as both a skilled negotiator at the mediation table and as a staunch advocate in the courtroom. David is also the author of two popular books of fiction. I am the owner of the Badanes Law Office, P.C. located in Northport, New York. My law firm is primarily focused in the areas of Matrimonial Law, Family Law, Wills, and Criminal Law (misdemeanors only). I have written several articles and have been published in the Suffolk County Lawyer. I have presented Continuing Legal Education seminars on Matrimonial Law for both LawLine and Marino Institute for Continuing Legal Education. I am a member of the New York State Bar Association, Suffolk County Bar Association, Nassau County Bar Association, Suffolk County Matrimonial Committee and Nassau County Matrimonial Committee. I am currently the President of the Northport-East Northport Board of Education and a former Director on the Northport Chamber of Commerce. I graduated in the top ten percent of my class from St. John’s School of Law. I was also a member of the St. John’s Law Review. Prior to becoming an attorney, I was a computer programmer and computer consultant. I am admitted in New York State, Southern District of New York, Eastern District of New York, Court of Appeals for the Federal Circuit and the Supreme Court of the United States. I live in Northport, with my wife and two children. My oldest son is a Veterinarian, currently living in Ithaca, New York. David Bulitt - Joseph Greenwald & Laake, P.A. T: +1 301-220-2200 E: [email protected] David P. Badanes - Badanes Law Office, P.C. T: +1 (631) 239-1702 E: [email protected] Meet The Experts Samantha qualified with and LL B in 2010 and a LL M in 2011 (both from the University of the Western Cape). Prior to commencing her articles she was a graduate lecturing assistant in the Department of Private Law at the University of the Western Cape. Samantha completed her articles at Miller du Toit Cloete Inc and was admitted as an attorney of the Western Cape High Court with right of appearance in 2012. She has a keen interest in and practical understanding of artificial reproductive technologies (“ART)” and the ever evolving legal conundrums that flow therefrom. Her experience in this regard includes but is not limited to the drafting and implementation of South African and cross-border surrogacy agreements. She remains an ardent researcher and in addition to having written and presented papers at our annual conference, she has also co-written and presented a paper with Zenobia du Toit on Co-Habitation/Domestic Partnerships in South Africa for the International Academy of Family Lawyers Annual Conference (New-Delhi, India 2016) and with Advocate Julia Anderssen of the Cape Bar on Contact and Care in South Africa which they presented at a training workshop attended by Regional Court Magistrates in 2012. Her paper titled “A synopsis of surrogacy agreements in South Africa” was published in the 2015 International Association of Family Lawyers Annual and her paper short titled”The importance of the genetic link” was published in the 2015 International Bar Association’s Annual Committee Newspaper. Samantha Lewis - Miller Du Toit Cloete T: +27 21 418 0770 E: [email protected] 4 5 VIRTUAL ROUND TABLE FAMILY & DIVORCE LAW 2020 Mr. Marchese focuses on realistic problem solving techniques to resolve often times stressful legal situations. He is highly experienced in divorce and family law matters, and he has successfully tried and arbitrated cases in the most contentious matters. 99% of his cases are either resolved at or prior to mediation – this provides the added bonus of saving time, money and emotional distress. Mr. Marchese has been featured in several prominent publications including USA Today and has won over 50 national awards for his excellence in law practice and law firm management. Admitted to practice: Dominican Republic (1993); New York, USA as FLC (2008); Education: Civil Law LL.D. (UNIBE, Dominican Republic); J.D & LL.M (Stetson University College of Law, USA). International Family Law Specialist. Members of IBA, ABA, CARD, HNBA, IABA and NYSBA. Former Foreign Affairs Director of the Dominican Republic Bar Association (CARD). Co- Author: International Relocation of Children; Family Law Global Guides; Jurisdictional Family Law Comparisons; Doing Business Reports for the World Bank & The IFC; The World Justice Project: Rule of Law Index; The Real Statute of Limitation for a Divorce Appeal; The Pronouncement: a vital or obsolete formality; The Importance of Dominican Fast Divorces to the Dominican Republic Economy; A New Divorce Law for a New Millennium; Project of the Dominican Divorce Law Amendment; The Truth behind the divorce publication. Mr. Suero has been the Project Advisory Board expert for the Greenbook for Dominican Republic and has served as Expert witness in Dominican Laws in several high-profile family law cases involving Dominican Republic. Joseph F. Emmerth is a partner in the matrimonial law firm of Sullivan Taylor Gumina & Palmer, P.C., which represents clients throughout Chicago and northern Illinois. Joseph focuses his practice on divorce, prenuptial and postnuptial agreements, and post-divorce modifications. Joseph has been voted an Illinois SuperLawyer, a Leading Lawyer, and a Lawyer of Distinction by his peers for many years. Joseph is also the author of “Winning Your Divorce: The Top Ten Mistakes Men Make and How to Avoid Them.” Learn more about Joseph at www.josephemmerth.com or www.stglawfirm.com Daniel Marchese - The Marchese Law Firm T: +1 248-270-2709 E: [email protected] Juan Manuel Suero - Aaron Suero & Pedersini T: +1 809 532-7223 E: [email protected] Joseph F. Emmerth - Sullivan Taylor & Gumina, P.C. T: +1 630 665 7676 E: [email protected] Meet The Experts Mert Yalçin graduated from the Dokuz Eylül University Faculty of Law in 2001. As an active student, besides his studies, he was also involved in various organisations including being the President of ELSA’s (European Young Lawyers Association) branch in Izmir and on top of that he began to learn the secrets of the profession when he was still a student by completing the internship in various Global Law Firms. In 2001, he was registered as a lawyer in the Izmir Bar Association and began his professional career in a leading law firm. In 2002, he enhanced his knowledge by enrolling on various courses and lectures at the University of California, Los Angeles, in the USA. After returning from the USA, he continued his legal career in Istanbul and became one of the first founders of the prominent leading law firm in its Istanbul branch. During the year 2005, he had been active in providing legal consulting services to foreign capital enterprises and some Fortune 500 companies which had invested in Turkey in order to give information about new investments or either to be in pursuit of their respective works. Catherine H. “Kate” McQueen is a Principal attorney at Offit Kurman, P.A. who focuses her practice solely on family law issues. She is licensed to practice law in Maryland, Virginia, and the District of Columbia and has been in practice almost 20 years. Ms. McQueen’s practice encompasses the many legal issues that impact families, including prenuptial agreements and all of the issues arising out of a divorce or separation. She also has extensive experience in guardianship and conservatorship matters for child and adults. She is a compassionate and responsive problem solver who calmly helps clients navigate the difficult path of family disputes. Ms. McQueen understands the value of a reasoned, practical, “big-picture” approach that achieves results without generating additional tensions or costs. Sometimes litigation is unavoidable, and when necessary, she draws on her extensive litigation experience to advocate strongly for clients in court. Mert Yalçin - YTT Law Office T: +90 212 293 09 09 E: [email protected] Catherine H. McQueen - Offit Kurman, P.A T: +1 240 507 1718 E: [email protected] 6 7 VIRTUAL ROUND TABLE FAMILY & DIVORCE LAW 2020 Lewis: A divorce can only be granted after a divorce summons has been personally served on a litigant, and after a settlement agreement has been filed at the court with appropriate jurisdiction or after a trial has been concluded, by a Judge or a Magistrate. Alternative dispute resolution, particularly mediation, will not be heard on an opposed basis in the High Court unless a mediation certificate is filed that the mediation has been successful, unsuccessful or that one of the parties refuse to participate. In Magistrates Courts, a pilot project stipulating that mediation is compulsory at certain stages of the divorce matter is underway in certain areas. In South Africa, a divorce will typically only be granted if there is an overall settlement of all the proprietary aspects, maintenance and parental responsibilities and rights in regard to the children. In rare circumstances a divorce is granted and the claims in regard to proprietary consequences (particularly where there are not personal maintenance claims or claims in regard to children) will proceed on the same case number. A court shall have jurisdiction if the parties are or either of the parties is domiciled in the area or jurisdiction of the court on the date in which the action is instituted (or ordinarily resident in the area of jurisdiction of the court on such date and have been ordinarily in the Republic of South Africa for a period of not less than one year immediately prior to that date). A summons is issued and personally served on the Defendant whereafter the Defendant has to enter an appearance to defend within a certain time period and file a plea and counterclaim to the particulars of claim attached to the summons. It is not required to make full financial disclosure in the particulars of claim nor in the counterclaim. Plaintiff may deliver a plea to the counterclaim. Pleadings are then formally closed and the discovery process for disclosure of documents and information by way of notices and requests for further particulars ensues. Case management also commences. After closure of pleadings expert notices and reports are filed. Ancillary applications for maintenance pendente lite, relating to issues around parental rights and responsibilities, for separation of issues, to compel compliance with requests in regard to the discovery process may be filed. During the case management process, the Judge monitors the progress of the matter and decides when the matter is trial ready whereafter a date is allocated for the hearing of the trial. Very few divorces reach the trial stage on an opposed basis. Most matters are settled by way of round table discussions between the attorneys, perhaps inter partes, and through alternative dispute resolution processes. If the parties settle, a settlement agreement and parenting plan are drafted and incorporated into the final court order. Suero: The process for divorce in the Dominican Republic is regulated by Divorce Law 1306-bis. In our jurisdiction there are three types of divorces available: • Bilateral or mutual consent divorce. • Contested divorce for cause (abandonment, adultery, abuse of substance, etc.). • No fault divorce. Personal and subject matter jurisdiction is determined pursuant rules and regulations of Dominican Laws 821-27, 1306-37 and 544-14, considering relevant factors such as: • Where the marriage contract was celebrated. • The habitual residence of the spouses. • Last known domicile of the defendant. • The stipulation agreement for the dissolution of the marriage. Q1. Can you talk us through the process for divorce in your jurisdiction? Samantha Lewis Juan Manuel Suero Joseph F. Emmerth In most cases, the Civil Family Court located in the defendant’s jurisdiction is the competent court to hear the divorce, however certain exceptions apply to this rule. Once papers are filed, the defendant-spouse must be served with a copy of the divorce complaint by a court bailiff. If the divorce is contested, the hearings will be in judge’s chambers to protect the dignity and privacy of the spouses in litigation. The amount of time that it will take to finalise a divorce proceeding is subject to the volume of the court’s docket and how versed is the plaintiff’s divorce attorney. Assuming the divorce petition was filed in compliance to local public policies, if the divorce is an uncontested no-fault or by mutual consent, it can be finalised in as little as four months, but if the divorce is contested the proceedings could take six months or longer. Finally, all divorces issued by Dominican Family Courts must be booked and pronounced in the Dominican Civil Registrar Office in order to have res judicata. Emmerth: The divorce process begins by filing a petition for dissolution of marriage with the local court. Then you must serve the other party with a copy of the petition and notice that you filed. Once that happens, the other party has 30 days to find their own attorney to let the court know that they’ll be representing themselves. Once one of those two things happen, the divorce proceeds in earnest. If there are children involved, the court will send the parties to mediation to try and work out a parenting agreement. If they can’t, the court will appoint a child’s representative or Guardian ad litem to do an investigation. This results in a recommendation to the court of a parenting time arrangement that is in the children’s best interest. During this time, the parties are exchanging all their financial documentation. There are sometimes motions that get filed during this period, depending on the level of animosity between the parties and the circumstances of the case. The case will either end with a settlement agreement or with a trial, and a judgment for dissolution of marriage concludes the case. 8 9 VIRTUAL ROUND TABLE FAMILY & DIVORCE LAW 2020 Lewis: Most litigants wish to avoid the trauma of extended proceedings and wish to find alternative dispute resolution means of settling their matter in an economical way without escalating legal costs. The South African Law Reform Commission has produced an Issue Paper for discussion on reform of certain aspects of family law. Alternative dispute resolutions form a large part of the subject matter of the Issue Paper. It is proposed that arbitration in family law matters, which is currently prohibited in terms of the Arbitration Act (42/1965), should be allowed in family law matters. There are long delays in divorce matters and an opposed matter may only be heard after approximately three years in the High Courts and approximately 18 months to two years in the Magistrates Courts. Litigants increasingly wish to find their own solutions to their disputed issues. The COVID-19 pandemic has put the focus on a paperless court system. South Africa has a resource problem and limited courts are paperless. The Gauteng High Court is currently the leader in technological advancement of hearing matters. However, the courts will have to look at electronic means to file documents and hear matters which are possible to be heard electronically. Suero: The divorce rate in the Dominican Republic has substantially increased in the last decade because Dominican women are getting more independent as they have more access to the workforce. Today, Dominican women are more educated than previous generations and they have a better understanding of their legal rights as a woman, as a married woman or as a divorced woman. We have also noticed that due to the increase of bicultural relationship in the last two decades, the traditional social concept of nuclear family (a heterosexual married couple and their biological children) is changing. Now, the Dominican society accepts and tolerates common law marriages “sui iuris marriages”, most of them consisting of divorced couples acting as “more uxorio”, and a growth of “de facto same sex relationship” despite the fact the current Dominican government officials are reluctant to recognise same sex marriages regardless the provisions of the Dominican Republic Constitution of 2015 on equal rights and Human Rights International Treaties ratified by the Dominican Republic. Emmerth: There are a few trends that we’ve noticed over the past several years. Divorce between older couples, or “grey” divorces are becoming more common. We have also seen a small surge in the number of couples wanting to call it quits after only a year or two of marriage. Q2. Are you noticing any new trends or interesting developments? Q3. Are there any noteworthy case studies or recent examples of new case law precedent? “The COVID-19 pandemic has put the focus on a paperless court system. South Africa has a resource problem and limited courts are paperless.” - Samantha Lewis - Catherine H. McQueen Samantha Lewis Samantha Lewis Juan Manuel Suero Joseph F. Emmerth McQueen: In the past four years, Maryland courts have overruled precedent and allowed third parties who have filled the role of a parent to seek custody of a child without first showing unfitness of the biological parent or exceptional circumstances, which is the general showing required of third parties. In 2008, the Maryland Court of Appeals held in Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008) that a partner in a committed same-sex relationship of 18 years did not have standing to seek custody of a child adopted by the other partner, even though the parties had raised the child together for approximately five years before they separated. Even though the Court acknowledged that the partner was a de facto parent, th`e Court held that Maryland law did not except de facto parents from the higher standard of proof for third parties in custody cases. In 2016, the Maryland Court of Appeals in Conover v. Conover, 450 Md. 51, 141 A.3d 31 (Md. 2016), overruled this precedent and recognised de facto parent status as an exception to the higher standard required of third parties. While the Court recognised that parents have a constitutional right to the care, custody, and control of their children, the Court also noted the sometimes competing requirement to consider the best interest of the child in making custody determinations. The Conover case involved a custody dispute between two women in a same-sex marriage over a child conceived by artificial insemination before the marriage. The other party was not listed on the child’s birth certificate. Relying on the precedent of Janice M., the trial court found that the other party did not have standing to seek custody. The Maryland Court of Appeals, however, examined case law from other states and recent legal developments, including the recognition of same-sex marriage, and found that the Janice M. decision was no longer good law. In Kpetigo v. Kpetigo, 238 Md. App. 561, 192 A.3d 929 (Md. Ct. of Spec. Apps. 2018), the Maryland Court of Special Appeals made clear that de facto parent status is not limited to same-sex couples. In Kpetigo, the Court found that a stepmother had met the burden of showing that she was a de facto parent for the son of her ex-husband born prior to the parties’ marriage, but whom the stepmother took a large role in raising. This significant change in the law recognises the changing shape of families and promotes the best interest of the child in custody decisions. Lewis: In the 2017 matter of M v. M (332/2015) [2016] ZASCA 5 (9 March 2017), the Supreme Court of Appeal had to determine whether the assets of certain trusts were valid trust assets or whether they in fact formed part of the appellant’s personal estate for purposes of accrual. Prior to this case, the test to determine whether one could “pierce the trust veil” was simply whether the trust was in fact a sham and alter ego. In this case the SCA took it one step further and held that the main consideration in cases of trusts (and the patrimonial consequences of divorce) is whether the trust-creating spouse had in fact attempted to prejudice the monetary claim of the other spouse by administering the trust in such a manner that it was an abuse of the trust form. In short, the aggrieved spouse had to prove that the appellant transferred personal assets to the trusts and dealt with them as if they were assets of the trusts, with the fraudulent or dishonest purpose of avoiding his obligation to properly account to the respondent for the accrual of his estate and thereby evade payment of what was due to the respondent, in accordance with her accrual claim. The SCA held that in such instances, the assets of the trust in question would be taken into account when quantifying the accrual claim of the aggrieved spouse and in order to satisfy any payment owed to them in terms of the accrual regime. 10 11 VIRTUAL ROUND TABLE F [Show More]

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