WAIVER OF RETIREMENT ACCOUNTS: ENFORCEMENT OF POST NUPTIAL AGREEMENT: DC DIVORCE
The Court of Appeals in Oshinaike v. Oshinaike, addressed spousal claim on a retirement account where there existed already a post martial agreement on that very subject.
Specifically, on appeal Marcia Oshinaike sought review of the trial court’s ruling that her former husband (Solomon Oshinaike), did not expressly waive his rights with respect to her foreign service retirement benefits and thus was entitled to portions of that retirement benefit.
Oshinaikes were married in 1989. After Ms. Oshinaike joined the State Department as a Foreign Service officer parties executed a post marital agreement expressly stating that: Mr. Oshinaike waives all rights to Mrs. Oshinaike’s pension, federal health benefits, annuity, and survivor benefits.
The trial court ruled as a matter of law that the agreement does not validly waive Mr. Oshinaike’s rights with respect to Ms. Oshinaike’s Foreign Service pension.
The trial court explained that, under 22 U.S.C. § 4054(a) (2006), an agreement to waive spousal rights to a Foreign Service pension must expressly provide for such waiver.
The statute states:
RECOVERING ATTORNEY FEES IN FAMILY CASES: RECENT COURT OF APPEALS DECISION
The Court of Appeals in Khawam v. Wolfe decided on August 22, 2019, delineated all legal theories available to recover attorney’s fees in a child custody and by extension in relating family matters.
Here, Wolfe moved to recover attorney’s fees ($700K) against Khawam for a rather protracted and vexatious litigation and under three theories:
- Common law theory of “necessaries” which permits an award of attorney’s fees in a child-custody case if the court finds that engaging an attorney was necessary to protect the interests of the child;
- The “bad faith” exception which permits recovering fees against a party who has acted in bad faith, either vexatious, wanton, or for oppressive reasons connected to the litigation; and
- Statutory provision authorizing payment of “suit money,” including attorney’s fees, in divorce proceedings.
LEGAL ELEMENTS FOR CHILD’S NAME CHANGE PETITION AFTER DC DIVORCE
The Court of Appeals in Melbourne v. Taylor, analyzed and opined on the legal standard for a parent to change the child’s name after separation and divorce.
The general legal standard for a name change petition by either parents after separation or divorce is the best interests of the child criteria as listed in defined in the legal custody statute § 16-831:
- The child’s need for continuity of care and caretakers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages;
- The physical, mental, and emotional health of all individuals involved to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child;
- The quality of the interaction and interrelationship of the child with his or her parent, siblings, relatives, and caretakers, including the third-party complainant or movant; and
- To the extent feasible, the child’s opinion of his or her own best interests in the matter.
APPELLATE PROCESS IN THE FAMILY CASES
In most family cases, the litigation does not and should not end by the Associate Judge or the Magistrate Judge’s final ruling.
As these cases are not jury demandable, often times the assigned Judge may issue multiple rulings, including final decree of divorce, division of property, alimony and child support as well as the physical and legal custody of the children. Significant and life altering decisions and all by a single Judge who may be subjectively objective.
And although most family judges are experienced, fair and equitable in dispensing decisions well supported in fact and law – there are cases and circumstances in which the facts and the law do not support the decision and an appropriate remedial step would be to have an appellate review.
This blog addresses the appellate procedure and steps in the family cases:
ESTABLISHING PATERNITY: PRESUMPTIONS AND CHALLENGES TO PATERNITY
In order to either file or move to establish child custody or child support, first parentage has to be established.
There are several ways in which the court can make a parentage determination as outlined below.
Presumption of Paternity
In the District, father-child paternity is presumptive under the following circumstances:
- If the putative father and the child’s mother are married, or in a domestic partnership either at the time of conception or birth, or between conception and birth, and the child is born during the marriage or domestic partnership.
- If prior to the birth of the child, the putative father and the mother have attempted to marry and some form of marriage ceremony has been performed in compliance with the applicable law — even if such attempted marriage is or might be declared void for any reason, and the child is born during such attempted marriage.
- If, after the birth, the presumptive or putative father and the mother marry or attempt to marry even though such attempted marriage is or might be declared void for any reason, and he has acknowledged the child to be his; or
- If the putative father has acknowledged paternity in writing.
On the other hand, the mother-child relationship is established by a woman having given birth to a child, or by an adjudication of a woman’s parentage.
COMMON LAW MARRIAGE: LEGAL ELEMENTS: SAME SEX COUPLES: DC DIVORCE LAWYER
The Court of Appeals in Gill v. Nostrand, decided on April 25, 2019, defined and analyzed the legal elements for common law marriage pertaining to same sex couples.
Here Gill moved for legal separation against Nostrand requesting alimony and division of property shortly after Nostrand legally married another partner.
The trial court in short determined that the relationship did not meet the requisite requirements of common law marriage, the Court of Appeals with further detailed analysis affirmed.
In its ruling, the Court held that a party in a same-sex relationship must be given the opportunity to prove a common law marriage even when at a time same-sex marriage was not legal in the District.
The elements for common law marriage for same sex couple are the same as non-same sex couples in that such requires:
- Cohabitation following an express mutual agreement, which
- Must be in words of the present tense,
- To be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage.
STOCK OPTIONS ORDINARY INCOME IN DC DIVORCE? DC RECENT COURT OF APPEALS DECISION
The Court of Appeals in Crater v. Oliver decided on February 14, 2019, considered whether stock options would be an ordinary income for the purposes of dispensing alimony payments.
Generally the court considered the following factors in the award of alimony:
- Ability of the party seeking alimony to be wholly or partly self-supporting;
- Time necessary for the party seeking alimony to gain sufficient education or training to enable that party to secure suitable employment;
- Standard of living that the parties established during their marriage or domestic partnership, but giving consideration to the fact that there will be 2 households to maintain;
- Duration of the marriage or domestic partnership;
- Circumstances which contributed to the estrangement of the parties;
- Age of each party;
- Physical and mental condition of each party;
- Ability of the party from whom alimony is sought to meet his or her needs while meeting the needs of the other party; and
- Financial needs and financial resources of each party.
DISTRIBUTION OF RETIREMENT ACCOUNTS AFTER MARRIAGE: DC COURT OF APPEALS
The Court of Appeals in Reed v. Rowe decided on November 15, 2018, addressed how a sole retirement account would be dispersed after a marriage to the surviving spouse.
The Reeds were married on August 6, 2011. Prior to the marriage and for over fifteen years Mr. Reed held a sole retirement account designating his sister Ms. Rowe as the sole survivor.
Shortly after the marriage, the trial court found that the couple initiated a joint account and commingled funds to and from the account. This was not though the retirement account subject of the litigation.
There was some evidence that shortly after the marriage, the couple had visited the bank holding the retirement account and according to Ms. Reed paperwork was executed at that time to include her name on to the account and to replace Ms. Rowe from the account. The evidence credited by the court however was the evidence from the investment advisor who testified that no such document was ever executed nor such name-title transfer ever completed.
The trial court also found that Ms. Reed was aiding and directing Mr. Reed at the bank who was some fifty years her senior to complete forms and all within days of the marriage.
The UNTDA (Uniform Nonprobate Transfers on Death Act) provides that “[e]xcept as otherwise provided in this subchapter, on death of a party sums on deposit in a multiple-party account belong to the surviving party or parties.”
RECENT WASHINGTON DC COURT OF APPEALS DECISION: EQUAL DISTRIBUTION OF MARITAL PROPERTY NOT NECESSARILY EQUITABLE: WASHINGTON DC DIVORCE LAWYER
The DC Court of Appeals on April 20, 2017, in Fleet v. Fleet; reversed and remanded the trial Judge’s ruling on division of marital property and award of portion of a retirement account.
Mr. Fleet specifically on appeal challenged the court‘s distribution of a portion of the marital home and Mr. Fleet‘s retirement account to his ex-wife, appellee Ericka Fleet.
He contended the trial court applied improper legal presumption of equal rather than equitable distribution of property in awarding 50 percent of the equity of the home to Ms. Fleet.
Mr. Fleet also argued on appeal that the trial court did not make any findings regarding the value of this asset, which was split 50/50, the home.
Regarding his retirement account, Mr. Fleet claimed that the trial court erred in awarding a portion of the account to Ms. Fleet as the account was not a joint account or deemed a marital property.
The trial court awarded ten percent of the account to Ms. Fleet, reasoning that “during the course of the parties separation and this litigation, [she] has been unable to save for her retirement, while Mr. Fleet has continued to contribute to his own retirement fund” – a reasoning that the Court of Appeals did not agree with.
D.C. Code § 16-910 which addresses division of property provides: each party is assigned his or her sole and separate property, and all other property the marital property is distributed in a manner that is equitable, just, and reasonable.
In dividing marital property the trial court must engage in a conscientious weighing of all relevant factors, statutory or otherwise.
Mr. Fleet on appeal acknowledged that Ms. Feet’s name was added to the tile a week before the separation and thus the property was jointly owned/marital property subject to equitable division. However he argued that this modification of the title was an exit strategy by Ms. Fleet and the trial court did not property consider the motive and circumstances surrounding the modification of the deed.
Moreover, Mr. Fleet contended that the trial court erroneously made the legal title the dispositive factor when granting an equal interest in the home. That there is no presumption in favor of an equal distribution of property rather the court must divide the marital property in a manner that is equitable, just and reasonable, after considering all relevant factors.
The Court of Appeals found the trial record devoid of any evidence why equal distribution of the property was justified. Having both parties on the title of a property without more does not support a 50 percent split in the equity especially when the property was joint titled only a week before the separation.
The trial court record is also devoid of any mention of the value of the home. D.C. Code § 16-910 also in pertinent parts states that “in the absence of a[n] . . . agreement resolving all issues related to the property . . . , the court shall . . . value and distribute all marital property.” Distribution of marital property requires a fair valuation of assets being considered.
The Court of Appeals also found unjustified the ten percent award of the Mr. Fleet’s retirement account to Ms. Fleet.
DC DOMESTIC PARTNERSHIP LAWS DEFINED: WASHINGTON DC DIVORCE LAWYER
In the District of Columbia domestic partnership is defined as relationship between two individuals that have registered the partnership (pursuant to § 32-702)
The term domestic partner is defined as being in a committed relationship with an individual who is:
- Eighteen years or older,
- Competent to enter into a domestic partnership/contract
- The only/sole domestic partner of the other
- Not married
- In a committed relationship
In order to register a domestic partnership in the District, the domestic partners each will have to declare under oath and affirm the items listed above.
The registration document other than the address of the individuals involved will be open to inspection and considered a public record.
BENEFITS OF THE DOMESTIC PARTNERSHIP
The domestic partner is considered a family member, and thus all health care establishments and hospitals shall and will allow visitation by the domestic partner and a dependent child of the domestic partner as well as:
- District employees may include domestic partner in their family health insurance coverage.
- District government employees will allow and grant sick leave to care for domestic partner and also the minor child of either domestic partner.
- Also paternity and maternity leaves will be granted when needed and as appropriate.
- Moreover, funeral leave or annual leave will be granted again when needed.
- Also annual leave or leave without pay may be granted for adopting a child or having the domestic partner adopting a child.
COPARENTING: PROS & CONS & THE COPARENTING APPS
In an event of separation or divorce and when children are involved, it is imperative to create a detailed guideline for each parent to follow to minimize conflict and to maximize harmony and continuity in parenting.
Thus, a detailed, focused separation agreement should be implemented providing visitation and custody schedule, medical and educational responsibilities, as well as holidays and summer calendar and also conflict resolution channels such as parenting coach or mediator to step in when needed to de-escalate conflict.
Considering the best interests of the child as the paramount criteria and given the complexities and difficulties in single parenting — it is always recommended to follow an effective co-parenting model.
Additionally, due to significant cultural as well as traditional social role shifts that began taking place in the second half of 20th century, both parents have been assuming increasingly equal roles in all aspects of child-rearing. As a result, both parents predominantly engage in shared custody arrangements.
Moreover, co-parenting provides significant psychological benefits for the children such as higher self-esteem, better academic performance, reduced behavioral issues, and overall happier and more balanced children. Co-parenting also would allow for sharing of child expenses and child rearing stresses and responsibilities.
Overall, shared custody model is designed to promote best interest of the child, albeit it can be negatively affected by the phenomenon called parallel parenting, where each co-parent engages in independent, non-cooperative parenting duties, which manifests with conflicts throughout the divorce process. More importantly, it puts the child in the epicenter of stressful environment associated with the battle over the custody.
In order to buffer the conflict and streamline the co-parenting process, various co-parenting apps have been developed to assist the parents to executed the daily needs of the children while minimizing conflict sometimes through artificial intelligence and algorithm.
Below are a list for some of the popular apps and some of the basic parameters:
ANNULMENT IN THE DISTRICT OF COLUMBIA: LEGAL ELEMENTS
In the District of Columbia, annulment of marriage has a limited scope. Specifically, marriage can only be annulled under the following circumstances:
(1) where such marriage was contracted while either of the parties was previously married a former spouse living, unless the former marriage had been lawfully dissolved prior to the marriage.
(2) where such marriage was contracted during the insanity of either party. If there is however voluntary cohabitation after the discovery of the insanity by either party – such may be ground for estoppel negating request for annulment.
(3) where such marriage was procured by fraud or coercion: False material promises, duress, and illegal manipulating all may be basis depending on the severity and materiality for annulment. Such are generally also basis for nullifying a contract in common law.
(4) where either party was matrimonially incapacitated at the time of marriage without the knowledge of the other and has continued to be so incapacitated: here if the marriage is not consummated and there was no disclosure prior to marriage of matrimonial incapacity then there is sufficient evidence or basis for annulment. If however there is disclosure prior to the marriage, this element of the annulment is waived.
It is important to distinguish matrimonial incapacity v. marriage not being consummated. That is, medical inability or incapacity is a basis for annulment – marriage not consummated due to all other reason and not due to incapacity – not a basis for annulment. Parties are capable and not medically incapacitated and yet not have consummated marriage must seek divorce not annulment.
(5) where either of the parties had not attained the age of legal consent to the contract of marriage. There is also an exception here: if there has been voluntary cohabitation after attaining the age of legal consent then request for annulment may be waived under this provision. The underage party still retains the rights to seek annulment not the parties who was at the age of majority or consent before marriage.
WASHINGTON DC DIVORCE V. LEGAL SEPARATION; CRITERIA FOR ANNULMENT: DC DIVORCE LAWYER
The filing requirements for divorce and the legal separation are significantly and materially different.
The divorce filing requires proof that:
- Parties have mutually and voluntarily lived separate and apart without cohabitation for a period of six months before filing of the action or
- Parties to the marriage have lived separate and apart without cohabitation for a period of one year prior to filing of the action.
- The filing requirement for the legal separation is less rigorous and it requires only that:
- Parties to the marriage have mutually and voluntarily lived separate and apart without cohabitation; or
- Both parties to the marriage have lived separate and apart without cohabitation for a period of one year prior to filing of the action.
You may file for legal separation without any wait period as long as you have both agreed to “mutually and voluntarily” live separate and apart.
The benefit of filing legal separation is that it allows the parties to seek relief from the court on subject matters such as alimony, child custody and support, and even disbursement of marital property or debt without the required waiting period as the divorce action requires.
At the end of proceeding with the legal separation you still remain to be married and you may reconcile and reverse whereas with divorce action — the decree is final.
Also the legal separation filing can become the precedent for the divorce decree if parties decide to dissolve marriage after legal separation.
If there is no mutual and voluntary separation, the legal requirement for filing remains to be the one year period as it is with the divorce action.
It is important to note that you can reside under the same roof and clock the separation period as long as:
1) Have pursued separate lives,
2) Have shared neither bed nor board.
Overall, filing of the legal separation is beneficial for parties who have decided to:
1) Mutually and voluntary separate;
2) Do not meet the required separation period for a divorce action;
3) Require the court intervention to address custody, support, and alimony and marital property and debt;
4) May not want to dissolve marriage via final divorce decree just yet.
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