Monday, August 21, 2006

There are Two Ways to Prepare for an International Divorce

Are you someone who always runs at the last minute to catch a plane? Or do you prefer to arrive at the airport ten minutes early and relax?

This is a question that ‘marketing guru’ Seth Godin asks so as to illustrate the benefits of sensible planning in business.

In my area -- international family law -- it raises these questions:

• Do you think it’s better to wait until you’re served with divorce papers before running to a lawyer in a panic?

• Or would be better to plan in advance?

• If you and/or your spouse are internationally connected, would it be best to wait until your relationship has exploded to find out whether your case can and should be brought in another jurisdiction?

• Or would it better to know the international choices that you have at a time when you can still influence the results?

The answers to the questions are pretty obvious.

It’s better to get regular dental check-ups than waiting for a toothache and then having nasty root canal work.

And it’s better to ask an international family lawyer to do some Strategic International Divorce Planning than to wait for the last minute when it may be too late for you to change course.

It’s the doing that’s tougher than the agreeing. In our case we’ll do most of it for you. But you have to get things started.

Wednesday, August 16, 2006

Enforceable Prenuptial Agreements: Their Time Has Come

"Jeremy D Morley, Attorney-at-Law, International Family Law Office, New York, USA. The author says that the failure of English courts to enforce prenuptial agreements is an anachronistic peculiarity of English law that demonstrates a stubborn refusal to adapt the law to new conditions. The recent judgments of the House of Lords in Miller v Miller; McFarlane v McFarlane [2006] UKHL 24, [2006] 1 FLR 1186 point to the urgent need for the courts to set aside the preposterous contention that it is 'substantially uncontestable' that substantial harm to the public would arise if prenuptial agreements were enforceable.

The current law results from the ruling in 1929 in Hyman v Hyman [1929] AC 601 that binding prenuptial agreements contravened public policy. However, society has changed dramatically since 1929. When Hyman was decided, people had little expectation of getting divorced and divorce was generally regarded as sinful. People with assets did not require contractual protection should a divorce occur because the law did not provide for capital transfer upon divorce. The status of marriage itself provided all of the necessary terms of the relationship between spouses.

See September [2006] Fam Law for the English law article. The full version of the article containing comparative international references will be published in Issue 4 of 2006 International Family Law"

Tuesday, August 01, 2006

New Parental Relocation Law in Connecticut

Connecticut has passed “An Act Concerning the Relocation of Parents Having Custody of Minor Children,” to be effective October 1, 2006, that significantly changes the law of parental relocation in Connecticut.

The Act is a result of the decision of the Connecticut Supreme Court in Ireland v. Ireland, 246 Conn. 413, 428, 717 A.2d 676 (1998) which had made it easier for custodial parents to relocate.

The Ireland case held that a custodial parent seeking to relocate must prove, by a preponderance of the evidence, that the proposed relocation is motivated by a legitimate purpose and that the new location bears a reasonable relation to that purpose. Once that initial hurdle was overcome, the burden shifted to the opposing parent to establish why relocation would not be in the child’s best interests.

Fathers’ organizations in particular opposed the approach in Ireland on the ground that it was unfair to compel a non-custodial parent to prove that relocation to another state or country would be contrary to the child’s best interests.

The new law reverses the burden of proof. It provides that the relocating parent has a triple burden of proving, by a preponderance of the evidence, that the proposed relocation is for a legitimate purpose, that the proposed location is reasonable in light of such purpose, and that the proposed relocation is in the best interests of the child.

The act also specifies that the court should include in its consideration (1) each parent's reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child's future contact with the non-relocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements.