Category: Family Law

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Wendy Williams files for divorce from husband of 22 years

Some marriages cannot stand the test of time. Even if a couple has decades of a happy marriage, this does not safeguard a couple from encountering marital problems. No matter the reason or cause for dissolution, ending a marriage can be a very emotional and complex time. This is especially true for those seeking to protect assets and property from being divided during the process.

Recent reports revealed that talk show host Wendy Williams filed for divorce from her husband of 22 years. It is speculated that this decision is based on infidelity on his part. Rumors have circulated about these cheating allegations, claiming that he fathered a child with his long-time mistress.

Together Williams and her husband built an empire together. It is estimated that together their net worth is nearly $60 million. With he talk show, books and endorsements, it is estimated that Wendy takes home around $15 million a year.

An issue that this divorcing couple may face deals with property division. Specifically, she is likely to gain royalties and have endorsements vest in the future. While these funds will likely be gained after the divorce is finalized, because these contracts were entered into during marriage, these could be viewed at as community property. This could make the divorce process messy and complicated because if there is no marital document that details how these assets will be treated in the event of a divorce, they will likely be divided equally.

There are many divorce legal issues to sort through. Whether a couple is able to reach an agreement on these issues through mediation or requires the litigation process and the court to make decisions for them, it is important to fully understand your issues at hand. This not only helps move the process forward but it ensures your rights and interests are also protected.


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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law

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Wife fails to have financial remedies order set aside

I’m sure I’ve said it here before, but I’ll say it again: financial remedy orders are intended to be final. A party is not usually entitled to have a ‘second bite of the cherry’. Accordingly, unless there are grounds for an appeal, the order will usually bring the financial remedy proceedings to a conclusion, save for any action necessary to enforce the order. Anyone who is aggrieved at the contents of a financial remedies order will therefore find it very hard to have the order set aside, and that is especially so if they consented to the terms of the order.

That, however, is what the wife sought to do in the recent case W v H.

The relevant facts of the case (for the purpose of this post – I am simplifying matters to keep the post to a reasonable length) were as follows. The parties were married in 2008 and they have two children. They separated in about July 2013. The husband issued divorce proceedings in that month, and the wife issued her own petition in August 2013. Financial remedy proceedings ensued, agreement was reached, and a consent order was drawn up, setting out the terms of the agreement. The order was approved by the court in May 2015. It provided, amongst other things, for the wife to receive a lump sum of £1.6 million, plus maintenance. The divorce was then finalised, in July 2015.

In September 2018 the wife applied to set aside the consent order, giving four grounds for the application:

  1. That she had been subjected to undue influence by the husband;
  2. That she had been subjected to duress by the husband;
  3. That there had been fraudulent non-disclosure on the part of the husband; and
  4. That she had not received proper legal advice on the terms of the agreement.

The application was heard by District Judge Duddridge in the Central Family Court in London. He dealt with the wife’s grounds as follows.

As to point 4, he explained that bad legal advice can never be a ground for setting aside a final financial remedies order, whether made by consent or otherwise. This was because “the interest in finality of decisions outweighed the risk of injustice to a party who had received defective advice”, and also because the consent order would have been approved by the court. The wife’s complaint, however, was not that she had received bad legal advice, but rather that she received no advice about the fairness of the consent order. This was not accepted as a good ground by District Judge Duddridge: the wife was receiving advice from a solicitor at the time of the consent order, and the point about bad advice applied equally to incomplete or insufficient legal advice.

As to points I and 2, District Judge Duddridge found that the wife’s allegations (which I will not detail here) could not amount to duress. They were capable of amounting to undue influence, but did not do so, as her actions revealed that she was acting under her own agency, and were inconsistent with her case that she was compelled by any threats by the husband to agree to the terms he presented her with.

Which leaves point 3, non-disclosure by the husband. Here, District Judge Duddridge found that, before the consent order was approved, the wife was actually aware of most of the matters she claimed that the husband had failed to disclose, and that other matters were of such “doubtful materiality” that he considered that the wife would not succeed in having the consent order set aside on that basis.

There was also the issue of the wife’s delay in making her application. In relation to this, District Judge Duddridge said that he had to consider whether there was a good explanation for the delay. In particular, if the wife was subjected to undue influence or duress, her obligation to act promptly had to be measured by reference to the point in time when she became free from that undue influence or duress. He found that this was likely to be by July 2017, when she sought advice about the implementation of the consent order, but was at the latest by February 2018, almost seven months before she made her application, when she instructed new solicitors. That delay was unexplained and inordinate, and would mean that the application should be struck out, even if, contrary to District Judge Duddridge’s findings as set out above, it had any real prospect of success.

Accordingly, the application was dismissed.

The full judgment can be read here.

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Author: John Bolch

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Divorce in the public eye

News of Adele’s separation from her husband, Simon Konecki, has dominated the media over the last few days. Whilst, perhaps, given her success, this is no surprise but ti did make me pause and think, how often do any of us ever stop to think what it must be like for those involved?

The breakdown of any relationship, marriage or civil partnership, is one of the most stressful experiences any of us will ever have to endure.

How much harder it must be to live out that experience under the glare of publicity.

Figures vary as to how much Adele’s fortune might be worth, ranging from US$200million to US$180million and £145 million. There is frenetic speculation as to whether Adele will need to agree to share that equally with her husband.

In reality, we will probably never know but the case does raise a number of important and interesting issues.

The first of those is whether the divorce will take place in England and Wales or in California where the couple has lived and where they have property, even though both are British.

If a divorce were to take place in California, there may well have to be an equal division of their net assets.

The choice of jurisdiction is increasingly an issue which couples must deal with immediately after or even before they decide to separate. It is vital that they receive expert advice from lawyers who specialise in international family work.

If a divorce were to take place in this country, it does not necessarily follow that there would be an equal division.

One point that seems to have been overlooked by the media is that the Court would look at the total capital which had been built up during the marriage not just by Adele but by both parties and then decide how that should be divided.

The “starting point” might be equal division but might not be the result.

The reasons for that are various:

Firstly, English law is based on achieving a fair resolution which does not always mean equality.

Secondly, the couple married in 2016 and appear to have separated towards the end of 2018. Before they married, they had been together for 4 or 5 years.

A relationship of 7 years or so is quite substantially less than the average length of a marriage in this country which is between 11 and 12 years. That might be a reason why an equal division would not be fair.

Perhaps the most important reason why an equal division would not be fair is because of the enormous success which Adele has had, very largely through her own efforts.

She may well be able to successfully suggest that she has made such a special or “stellar” contribution building up a substantial wealth in a very short period of time through her own talent and ability that an equal division would simply not be fair.

Finally, the situation in which Adele and her husband now find themselves could quite easily have been avoided if they had entered into a prenuptial agreement. Such an agreement could have been drafted so it was binding no matter where the couple lived during the marriage and no matter where they might choose to get divorced.

It would set out clearly what they each wished to happen in the event of a separation and divorce.

Prenuptial agreements have a growing status under English law, although judges are not automatically bound to enforce them. They do carry an enormous amount of weight. Apart from setting out what the couple would like to happen regarding their finances and the arrangements for any children they may have.

Graham Coy, London Chancery Lane, [email protected]

 

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Author: Graham Coy

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In re Clark

(United States Fifth Circuit) – Held that a Chapter 7 bankruptcy debtor’s ex-wives were not entitled to notice of his bankruptcy proceeding to assert claims for child support arrears, under the circumstances here. Affirmed the lower court rulings.


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How to keep divorce out of court (Part one)

Most couples seeking a divorce do not set out with a desire to go to court. In fact, a key concern that we for many of my clients is the desire to avoid protracted and expensive court proceedings, giving them a speedy end to their divorce.

And there are lots of different approaches to choose from so we asked Sarah Snow, Partner at our London Victoria office to join us on the blog to look at the different options to keeping your divorce out of court.

In the first part of the article, she looks at mediation and collaborative law.

The term divorce immediately conjures up the image of embattled ex-spouses engaged in hostile and aggressive court proceedings, which take many months and cost thousands of pounds. It doesn’t always have to be this way and below I explore the various Alternative (or Appropriate) Dispute Resolution (ADR) options which divorcing couples would be wise to consider.

First off, it is important to stress that parties will largely only engage in court proceedings if they are unable to resolve financial matters at an early stage in the process and by agreement. Unless contested, it is quite common for parties to never step foot inside the courtroom, instead, securing their divorce via a post based or online process.

Financial matters can also be resolved voluntarily between parties and an agreement drawn up and put before the court in the form of a Financial Remedy Consent Order, again without either party having to attend a hearing. The problem arises when parties are unable to reach an agreement and therefore one makes an application for a Financial Remedy Order, thus starts the long and stressful divorce process. How then do you avoid such an application?

The basis of avoiding court comes from a joint intention from both parties to adopt an amicable approach and be willing to engage in constructive, productive dialogue recognising that reasonable compromises will have to be made on both sides.

With the intention in place, an approach of ADR is a very viable alternative. But what does the term mean?

In its simplest terms, ADR is a way of resolving disputes without going to court.  There are many different methods and approaches that can be adopted when looking to resolve financial matters and achieve an amicable settlement. These include the following:

Mediation

Mediation is a structured and interactive process where a neutral third-party assists divorcing parties in resolving the conflict. The trained mediator will use specialist communication and negotiation techniques to encourage parties to actively participate in the process and look at a variety of settlement options.  The mediator will initially meet with each party individually to gain an understanding of what they are seeking to achieve. They will then be asked to prepare financial disclosure before meeting again on a joint basis.

Once the full financial picture has been ascertained then parties can discuss fair and reasonable settlement options. All negotiations and discussions take place on a Without Prejudice basis, which means if matters do not settle and an application to the court is made, the court will not be made aware of the proposals made. This means that parties can freely make proposals without the risk of their “bottom line” being exposed to the court later.

If engaged in productively and with a genuine desire to resolve matters, mediation can be hugely successful and beneficial for parties. Particularly divorcing couples who have children and need to maintain an amicable co-parenting relationship moving forward.

It is important to be aware however that whilst mediators may also be legally trained family lawyers, they are not able to provide legal advice. Therefore, I would recommend that both parties should instruct a solicitor to work with them alongside the process and provide ongoing advice as to the suitability or fairness of the proposals being made in mediation.

Collaborative

Collaborative law is a process founded in America in 1990 and launched in the UK in 2003 and involves divorcing couples working with their solicitor and if required, an independent financial advisor, accountant, child specialist and family consultant to reach a voluntary settlement with the aim of avoiding the uncertain outcome of court.  The key goal is to achieve a settlement that best meets the specific needs of both parties and their children in a safe space without the underlying threat of going to court.

When dealing with the financial issues and trying to reach a settlement, both parties engage in four-way meetings with both of their lawyers present to first obtain a full picture of the matrimonial finances and thereafter engage in negotiations. The aim is to ensure that everyone is vested in the process with the clear aim of resolving matters without involving the courts.

If an agreement is made, both parties sign an agreement committing to the collaborative process and resolving matters without going to court. The solicitors you instruct in the collaborative process will not be able to attend court on your behalf if, for any reason, the process breaks down and an application to the court must be made.

Parties must be completely prepared to engage in the process and be committed to it.  It is essential that parties are transparent and if there is a reason to suspect that one party is being secretive with financial matters there is no power to compel disclosure. However, many couples simply want to get matters sorted out, are willing to co-operate with each other and hope to find solutions in a constructive manner. The collaborative process enables couples to consider the other party’s point of view and share ideas in an open way that will encourage creative and mutually acceptable solutions to be found   Often just listening to what the other party has to say can help cut through any suspicions about motives or agendas.

Like mediation, being willing to meet and discuss matters face to face is not an easy option. It can be difficult and emotions can run high, but if you are able to resolve matters by agreement, with the support of trained collaborative lawyers it is far more likely to be longer lasting and lead to a better future relationship, essential if you have children, than one where the Court or an arbitrator has imposed the outcome on you.

Get in touch

We have a number of mediators and lawyers who are experienced at advising clients going through the mediation process and also a number of qualified collaborative lawyers. For more advice on how to keep your divorce out of court you can contact our Client Care Team here or at the number below.

In how to keep divorce out of court – Part two Sarah will look at arbitration and negotiation.

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Author: Sarah Snow

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Boy ordered to leave mother after she alienated him against father

We have all seen cases in which one parent seeks to alienate the child against the other parent. In such cases there are a range of options open to the court to deal with the issue, but perhaps the most serious, where the child lives with the ‘alienating’ parent, is to order the transfer of the primary care of the child to the other parent. This was what happened in the recent High Court case MFS (Appeal: Transfer of Primary Care), which related to a mother’s appeal against such an order, made by His Honour Judge North, in September last year.

The interesting part of this case is, I think, not so much the appeal, as the original decision. I shall therefore concentrate on that.

The case concerned a boy, ‘MFS’, who was born in 2010. Unless I’ve missed it, the judgment doesn’t say when his parents separated, but it was clearly not long after he was born. MFS remained with his mother, but as long ago as 2012 there were court proceedings regarding his contact with his father.

The central feature of the case was the mother’s negative attitude towards the father, and how she transmitted that to the child. Independent evidence for this came primarily from a clinical psychologist, whose findings included the following:

  1. That the father did not suffer from mental health problems, as the mother had suggested.
  2. That the mother had persistently portrayed the father negatively, as violent, as mentally unwell, and denigrated him as the father. MFS identified with these negative and hateful feelings expressed by the mother.
  3. That the mother had alienated the father as a result of her collusion with her son against the father. This constituted emotional abuse.
  4. That the mother persistently saw her own distress in others: she saw psychiatric problems in the child and his father, while considering that she herself functioned well, and had no psychological problems.
  5. Lastly, the clinical psychologist was concerned that the mother was preoccupied with the need to set the father aside, driven by her anxiety that she might lose the child, or that the child might prefer his father over her.

These findings (and others) were accepted by Judge North, who concluded that the mother’s behaviour was causing MFS significant emotional harm. He considered the possibility of ‘threatening’ the mother with a change of residence to the father, but felt that that would not alter the mother’s behaviour. Accordingly, he made an order that MFS should immediately move to live with his father.

The mother appealed, arguing (using the words of Mr Justice Williams, who heard the appeal) that the clinical psychologist’s report was so seriously inaccurate/unreliable/biased that it could not properly be relied upon by the judge, and that in all the circumstances the decision of the court immediately to remove the child from his single primary carer was disproportionate and wrong. Mr Justice Williams did not accept either argument: the report was not open to criticism, and the overwhelming weight of the evidence supported a change of primary carer. The change of primary carer was plainly the decision that was in this child’s best interests, and it was plainly a proportionate rather than a disproportionate order on the evidence. Mr Justice Williams concluded:

“Having conducted what I consider to have been a very detailed review of the evidence before HHJ North and his judgment with the benefit of powerful written and oral advocacy in support of the parties’ cases I have reached the clear conclusion that the appeal is without merit. Whilst it was only possible to reach this clear view after that detailed consideration it is clear that neither of the grounds of appeal had any realistic prospect of success when road tested against the evidence that the judge had available to him.”

Accordingly, the appeal was dismissed.

You can read the full judgment here. Warning: with respect to Mr Justice Williams, the transcript of the judgment appears to have some errors in it, which can make it a little hard to follow in places.

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Author: John Bolch

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A boost for arbitration

Arbitration has been available for a number of years to resolve disagreements over arrangements for children when a marriage breaks down and also disputes with regard to finances.

It offers many advantages over the Court system (including speed, cost and flexibility) which is becoming slower and slower and as a result, more expensive.

Arbitration in family law cases received a significant boost in a decision by Mr Justice Moor in the High Court very recently.

The Judge was concerned with an application as to what questions should be put to an expert accountant, but the main point is that he was clearly frustrated by the valuable time of High Court Judges being wasted and endorsed arbitration as a much better way of resolving issues such as the those he had to consider.

Arbitration has been available as a means of dispute resolution for financial issues since 2012 and in relation to children since 2016.

As the largest specialist family law firm in the country, Stowe Family Law is proud to have two family arbitrators:

Graham Coy, London Chancery Lane, [email protected], 020 7421 3300

Gareth Curtis, central Manchester, [email protected], 0161 359 5534

Family Arbitration is run under The Institute of Family Law Arbitrators and their website provides some very useful guides to the procedure in relation to financial issues and the procedure in relation to problems concerning children.

Graham Coy

23 April 2019

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Author: Graham Coy

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Separated families statistics give pause for thought

Last week the Department for Work and Pensions published something new, which must surely be of interest to anyone involved with the family justice system: statistics about the separated family population. We have seen something similar to this previously, but the methodology used to produce these statistics is apparently more accurate than before.

The purpose of the statistics is to provide information on child maintenance arrangements between parents in separated families. I will come to that in a moment, but first I will deal with the main figures, which must surely give pause for thought, and not just to those concerned with child maintenance.

The main figures relate to the number of separated families in Great Britain, and the number of children in those families. A ‘separated family’ is defined as one resident parent, one non-resident parent and any biological or adopted children they have between them who are either under 16 or under 20 and in full-time non-tertiary education. Obviously, a ‘resident parent’ is the parent who has the main day-to-day care of any relevant children, and a ‘non-resident parent’ is the other parent. The terminology, of course, is similar to that used in the child support system.

So to the figures, which are for the period April 2014 to March 2017. They show that at any point during that time there were around 2.5 million separated families in Great Britain, which included about 3.9 million children. Just let that sink in for a moment. Roughly 20% of the population are children, and the total population is about 65 million. By my calculation that means there are about 13 million children. That in turn means that getting on for one in every three children comes from a separated family. OK, I realise that my own methodology here leaves something to be desired, but you get the point: a very large proportion of children in this country come from a separated (some might say ‘broken’) family.

I’m sure a lot of people would be appalled by these figures. However, it would be quite wrong to assume that all of these children are unhappy or deprived. How the separation of their parents has affected them depends upon many factors, not least how well the parents have managed the separation, including in terms of ensuring that the children continue to have a close relationship with both parents. The cliché that children are resilient has some truth in it: children are perfectly capable of adapting to the separation of their parents, provided the conditions are right.

OK, to the child maintenance aspect of the statistics (child maintenance, of course, being one of the matters that separating parents usually have to deal with). The headline figure is that in 2016/17 around 48% of separated families had a child maintenance arrangement, down from 55% in the previous two years. This seems like a significant drop, although it may be due to child support arrangements being moved from the Child Support Agency (‘CSA’) to the Child Maintenance Service (‘CMS’) – it will be interesting to see if there is any further drop in the coming years. Whatever, less than half of separated families having any child maintenance arrangement seems pretty low to me. How many children suffering from economic hardship does that represent?

Lastly, the statistics look at the different types of child maintenance arrangement. These are defined as either ‘statutory arrangements’ or (you’ve guessed it) ‘non-statutory arrangements’. Statutory arrangements are those which have been arranged with the CSA or the CMS. Non-statutory arrangements include all other arrangements, such as: voluntary financial arrangements which involve direct monetary payments between parents where the CMS or CSA have not been involved; voluntary non-financial arrangements involving payments in kind; other types of arrangements including shared care arrangements; and court orders requiring parents to make financial payments.

The figures show that in 2016/17 17% of separated families had statutory arrangements, and 29% had non-statutory arrangements (the other 2% were cases which had both). In other words, if there is a maintenance arrangement, it is considerably more likely not to involve the CMS.

All of this seems to me to indicate a victory of sorts for the government’s child support policy. The main aim of that policy was clearly to save money by not involving the state in sorting out child maintenance whenever possible, and the statistics show that in only less than a fifth of cases is the state having to get fully involved. Whether this is a victory for children is another matter entirely…

You can find the full statistics here.

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Author: John Bolch

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No more Stroud McDonald’s for Visitation Exchange

Big changes coming to service areas on turnpike between Tulsa and OKC

A turnpike service area between Tulsa and Oklahoma City that provides a meeting point for people exchanging kids, pets and valuables is going away as a halfway stop serving both directions.

The Stroud service area on the Turner Turnpike will undergo major renovations and become a westbound-only stop in the next two or three years.

The change is part of major overhauls to the turnpike’s service areas designed to improve safety, said Oklahoma Turnpike Authority spokesman Jack Damrill.

“That service area, as it is now, is going away,” he said. “Parents who exchange kids will have to find a new location to meet up, probably the (other) McDonald’s (just east on Oklahoma 99) in Stroud.”

The current service area — located almost exactly halfway between the state’s two largest cities — has become congested with semi-tractor trailer parking, and its outdated design isn’t safe for motorists, he said.

“You have high-speed traffic merging with low speed traffic in the left lane(s)” when traffic from the service area merges onto the turnpike, he said. “That curve is dangerous.”

The service area was designed when the speed limit was 55 mph, not 75 mph, he said. A bill signed by Gov. Kevin Stitt last week would allow the OTA to raise the speed limit to 80 mph.

Plans call for the OTA to straighten the highway on the south side of the current service area, as well as construction of a new building that will house both a McDonald’s restaurant and an EZ-Go convenience store, Damrill said.

Currently, the two are in separate buildings.

Only traffic heading toward Oklahoma City will have access to the new service area, he said.

Another, new service area for eastbound traffic heading toward Tulsa is being constructed about 4 miles east of the Chandler exit, he said.

That service area will also have a McDonald’s and EZ-Go, he said.

In addition, both new service areas will have about 125 semi-truck parking spaces.

The current service area in Stroud has about 75 semi parking spaces for both directions of traffic. The new spaces will more than triple the current truck parking available at the Stroud service area.

Damrill said he was driving west to Oklahoma City on the turnpike on a recent late night and went through the Stroud service area.

“There were (semi) trucks parked on the entry ramp. They were parked on the exit ramp. It was a mess,” he said.

The OTA approved the projects last year. They are part of its capital plan, Damrill said.

An exact timetable of when the changes will take effect has not yet been set, but work on the new service area in Chandler has already begun.

The new Chandler service area will cost about $9.5 million (not including the vendor’s cost for the building and adjacent parking), and the new Stroud area’s preliminary cost is about $6.5 million (with plans at 50%), he said. Funding is coming from tolls.

The current McDonald’s on the Turner Turnpike — Interstate 44 — was completed in 1987. Before that, the site had a Howard Johnson restaurant and a gas station, he said.

Damrill said plans call for the current McDonald’s and EZ-Go to remain open as long as possible while the highway is being realigned and until the new building housing both can open.

Damrill said he realizes parents and others who have been meeting halfway between Tulsa and Oklahoma City at the Stroud turnpike service area to exchange kids and other reasons will be disappointed that the site will be changing.

“We have to take safety into consideration,” he said. “Traffic for us is growing. Safety is always our No. 1 concern.”

The Turner Turnpike has about 14,300 vehicles passing each direction through Stroud each day, according to 2017 OTA traffic counts, the most recent available.

That number is up more than 17% from about 12,200 vehicles per day in each direction in 2007.

 

Source: https://www.tulsaworld.com/news/state-and-regional/big-changes-coming-to-service-areas-on-turnpike-between-tulsa/article_0d303e79-927e-5a03-b4eb-5ae1d1fd9801.html?fbclid=IwAR19MsXUUyKUq1QTJcVj7XSrP3tSs172ybjH6GxEhkoNKNb1B0jLWdYV4yE

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N.T. v. H.T.

(California Court of Appeal) – Held that the trial court used an incorrect legal standard in denying a domestic violence restraining order. Reversed and remanded, clarifying how technical violations of an earlier restraining order should be treated.


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