All posts tagged USA

Information About Divorce in the USA

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There are many facts about divorce in the USA today. Some of these facts are:

Divorce is widespread, common and often reported in the media
About 5% of all current marriages end in divorce every year
About half of all first marriages end in divorce
More than half of all second marriages end in divorce
The more times a person marries, the greater the chance their marriage will end in divorce

This of course begs the question of why. Why are so many marriages failing today? This question is becoming more and more difficult to answer because the issue of no blame divorce is dominant in American divorce courts today.

The most common reason listed for the failure of marriage is irreconcilable differences. This expression covers a potential multitude of sins. Couples often want to get out of the marriage as quickly and as painlessly as possible. They may want to state a precise reason or reasons why their marriage has failed but that could mean a delay in obtaining their divorce. They believe it would be better to say they cant get along, not blame the other and hope the split can be as advantageous to them as possible.

If couples do offer a specific reason for their marriage failure then adultery and financial problems rate high on the list.

The information from surveys has some surprising facts such as:

Nevada is the state with the highest rate of divorce
The District of Columbia is the state with the lowest rate of divorce
Couples from mixed races are more likely to divorce than couples of the same race
Couples in the city are more likely to divorce than couples in the country

There are some disturbing facts as well for American marriages.

Two-thirds of all couples who divorce have at least one minor living with them
10% of all American families are one parent families
Two-thirds of children in America are living with both their biological parents
Most children who have behavioral problems or drop out of high school come from broken homes. The figures are extraordinarily high with up to 85% of troubled teens coming from divorced parents
Experts predict that single-parent families will continue to rise

Then there are some surprising or unusual facts:

Couples who seek counseling before they marry are less likely to divorce Couples who maintain their faith together are less likely to divorce But a Christian couple is more likely to divorce than is an atheist couple

Whatever the facts, there is no doubt that statistics do not convey the heartache and serious health issues which can be caused or made worse by a broken marriage. Divorce is not restricted within a family; the parents and friends of the divorced couple can all be affected as well.

Of course there are times when divorce is the best option, but it should not be forgotten that prevention is better than cure and a solid basis for marriage is always the best approach.

Guatemala and Enforcement of Foreign Judgements

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Executive Summary What we are going to discuss here is whether or not a creditor can come to Guatemala with a judgment from a foreign (Non Guatemala) court and enforce it or make it collectible in Guatemala. We will look at the complications involved and the chances of success which are miniscule at best. I would like to point out that this is a topic not covered by our competition. There are collection law firms that discuss international judgement collection but they are trying to sell their services. In spite of this I have never seen one collection law firm getting enthusiastic about collecting foreign judgements. It is best done through a treaty which Guatemala does not have with any country. We will discuss the matter in depth below.
What is a Judgement A judgement is a decision from a court based on a trial or it could be based on a summary judgment where there was not trial held because the odds of success for the defendant were so small the court just goes ahead and railroads him. Sometimes this happens because the defendant can not afford a legal defense. This is prevalent in the USA. In this discourse we are addressing judgments for money damages. A judgement can have other aspects to it like an eviction proceeding ordering one to leave a house. It does not matter if it is a local court or a national court for this discourse. This is because Guatemala has no treaties for enforcement of foreign judgments but more on this later. The court would need to be contained in a country that Guatemala has diplomatic relations with. Guatemala also insists that the country of the judgement allows Guatemala judgements to be enforced in that country.
What is Not a Judgement A tax lien is not a judgment. Tax liens can come from local or national governments. There is normally no trial preceding a tax lien. There was no judge, no jury, no due process, no right to defend yourself, no attorney present for the defendant, no right to examine your accuser, no chance of jury nullification, etc. This is a government administrative procedure that is not enforceable offshore in other countries. A tax lien would need to be reduced to a judgement by filing a lawsuit in a court of appropriate jurisdiction in the home country. It would be like any other lawsuit. The defendant would have the right to present a defense and have a jury trail. Such a judgement would also then be dischargeable in an ordinary bankruptcy case. Tax liens are practically never converted into a judgement for these reasons and of course the expense involved, time delay to go to trail and so forth.
Guatemala Has No Treaty for the Enforcement of Foreign Judgements It is good that Guatemala has no such treaty. If a treaty like this was present the process of collecting a foreign judgment would be simplified. The judgment itself would be sufficient evidence to proceed with collection. With Guatemala, foreign judgements are anything but a cost effective easy thing to collect on.
Guatemala Corporations and Foreign Judgements Before we get into the ins and outs of the nightmares associated with collecting foreign judgments in Guatemala lets look at the initial problem a judgment creditor would face. We always have our clients use corporations for asset protection. This applies to banking, real estate, cars etc. We prefer to start with fresh corporations formed in the jurisdiction as long as they are anonymous bearer share corporations. Guatemala has very anonymous bearer share corporations. The names of the owners of the corporation do not appear in any public registry, database and the government does not know who owns the corporation. In places like the USA where the legal system has run amuck you will hear a lot of talk concerning piercing the corporate veil. This piercing the corporate veil tactic is nasty and effective in the USA. Try it in Guatemala and you will fail and have one angry judge to deal with who will be less than appreciative of your attempts to import sleazy legal tactics from the USA into his or her courtroom. The corporate veil is not going to be pierced for foreign cvil judgement collection matters. So how does the creditor attack real estate or a bank account owned by a corporation in Guatemala? He doesn’t! You are the owner of the corporation but he does not know that and cannot prove that. Ownership of Guatemala corporations is not in any public registry or database. Going to court and saying well the judgment debtor wired funds from his home country bank account to a bank account owned by this corporation, is not going to prove a single thing in Guatemala regarding corporate ownership. The judgment debtor may have invested in this corporation, he may have bought real estate from this corporation or bought a boat, a plane a car, etc. It does not prove any ownership. The judgement creditor is not going to be able to get into any Guatemala banking records using a foreign judgment as grounds. Guatemala has serious bank secrecy. You must understand that in Guatemala a corporation is a free standing judicial person (artificial person) that has its own assets and liabilities. Your liabilities are not the liabilities of the corporation. This means personal debts do not transfer over to a corporation.
Fraudulent Conveyance The catchall used to attack offshore bank accounts is fraudulent conveyance. A fraudulent conveyance references activity where funds or assets were removed from a jurisdiction to prevent a creditor from recovering the debt. The term can also apply to transferring title of real estate or a car to another to keep it from being attached by a creditor. Panama allows a creditor to pursue a fraudulent conveyance action based on a foreign judgment and this even applies to their foundations. As a comparison Guatemala is not a fraudulent conveyance friendly jurisdiction. Such cases are seldom ever heard of in Guatemala because the chances of success are extremely slight. The plaintiff would need to show that the transfer was specifically designed or intended to remove the assets from the reach of the creditor. If the defendant could show this was not the case then there is no fraudulent conveyance. The money could have been moved to say a Guatemala corporation to pay for services, goods, make an investment, buy a residence, invest in real estate, buy a boat, and so forth. Please bear in mind that in Guatemala the creditor is in the dark. He cannot just subpoena bank records like in other countries. He has no idea who owns the corporation. There are a lot of just about insurmountable obstacles in the path the creditor has to follow. This is why we do not really see these cases in Guatemala.
Foreign Judgement Enforcement Complications in Guatemala There are a lot of conditions that need to be met to enforce a judgment in Guatemala from another country.
Default judgments are not enforceable in Guatemala. The defendant must have been served personally. This means a live process server gave them the legal papers. If the service was by mail, by courier, by publication it invalidates the entire lawsuit and judgement as far as Guatemala is concerned. Dropping the papers on the doorstep or taping them to the door is not going to work. This right off the top eliminates a large amount of judgements.
The judgment must be final in that there is no more room for appeals. This is usually going to mean a few months in most cases.
The court that issued the judgment has to have had proper jurisdiction over the matter. Frivolous cases filed in foreign jurisdictions with incorrect venue or authority are not going to be enforceable. The debtor can always argue that the jurisdiction or authority the court asserted is incorrect. This can then make it a triable issue of fact in the Guatemala courts. The defendant would try to get the plaintiff to retry the entire case in Guatemala if he could not find another way to dispose of the matter. To do this means two sets of lawyers for the plaintiff, one in Guatemala and one from the foreign country. Think big money. Remember that Guatemala has no treaties for the enforcement of foreign judgments. This opens up the playing field to counter attack the plaintiff attempting to collect the judgement. When there is a treaty the judgment itself stands as admissible evidence and the grounds for objecting are most limited.
There is no enforcement if no such claim would be possible under Guatemala law. Guatemala will refuse to enforce the foreign money judgment if the claim on which the foreign judgment is based could not have been brought in Guatemala. The foreign case has to be consistent with Guatemala law. Guatemala law is not as crazy as USA, UK law. If you were sued for sending out faxes that were unsolicited, this judgment would be void in Guatemala since they have no such law in Guatemala. Many USA lawsuits are for civil violations that are absent from Guatemala law and thus not enforceable in Guatemala. This means the foreign attorney will have to retain foreign counsel to review the case and see it is consistent with Guatemala law. Can be expensive. He may have to have the entire matter translated into Spanish by a certified translator at a cost of $10 to $15 a page. Some cases are hundreds of pages. Then the Guatemala lawyer has to read the case which means billable hours. He will ask questions to the foreign attorney so now we get into double billable hours. In any event to enter the judgment into the Guatemala court system in an effort to collect there would need to be a translation of the judgment into Spanish. Then when the debtor started making objections the entire case file would most likely need to be translated into Spanish.
If the judgment was for contempt of court it makes the judgment not valid in Guatemala. This sort of judgment would not be collectible in Guatemala.
The judgment has to not be for default. In other words if you failed to respond to a foreign court action and were in domicile in Guatemala and they got a summary judgment that would not be a valid judgment.
More Foreign Judgment Collection Obstacles in Guatemala The creditor wishing to collect on a foreign judgment in Guatemala is basically on a financial mission, to collect funds. His path is like walking through a minefield. He can hit a number of unexpected or hidden tactics presented by the debtor that will make a financial recovery very unlikely.
First, we have to look at the appeals process open to the defendant. These are the things a creditor will be advised to consider before proceeding with an expensive and time consuming foreign judgment matter in Guatemala. Please bear in mind the defendant (debtor) can appeal any negative decision from a lower court two ways. The defendant can appeal to the Supreme Court claiming the law was not followed correctly applying any of the above noted objections, or all of them. He can also claim procedures were not followed correctly. He can claim the case is not consistent with Guatemala law. He can attack the way he was served. There are many things he can do. He can even file a counter claim against the creditor. The other appeals option is to appeal to the special Constitutional Courts Guatemala has to just decide constitutional issues. How hard would it be to argue that the defendant had some constitutional rights violated in the process somewhere.
If all that fails after years of waiting for the process to work its way through the courts, then there is the bankruptcy option. Guatemala has a complex bankruptcy court system that could be utilized for shelter from creditors. Using these appellate processes is going to run up the bill for the plaintiff substantially. Without the appeals system, the time required for cases can run up to the 3-5 year mark easily. Then add in appeals. and the bankruptcy for even more years. The plaintiff could conceivably go broke or die of old age before the appeals process runs out. They might recover nothing especially if a bankruptcy is used. The plaintiff might never prevail. The expenses involved could be more than the amount of the judgment. By the time all the appeals are used, the time limit for the judgment may have expired (7-10 years usually) and then the case could be dismissed because the judgment is not longer valid, thus not enforceable. And on and on it goes. Such collection efforts are indeed rarely ever seen in Guatemala.
Summary If you have read this you are looking for a secure offshore asset protection jurisdiction and structure. We have several excellent options. Please bear in mind the perfect jurisdiction and structure does not exist. There is always going to be a give and take scenario. We have managed to isolate a few excellent options but there is no perfect solution that meets the needs of everyone. We do try though!

Wedding anniversary greetings from The President or The Queen

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A long and happy marriage is something to be celebrated by friends and family alike, but a personal greeting from The President of The United States or from Her Majesty The Queen can prove to be the icing on the cake for many couples on their Wedding Anniversary.

It will come as no surprise that President Obama and Queen Elizabeth don’t have the date of your relatives’ anniversary pinned up on their wall planner, so it is up to the children, grandchildren, relatives or friends to notify them of the approaching date.

In the USA, requests for greetings cards from The President for 50th, 60th or 70th Wedding Anniversaries should be sent to: The Greetings Office, The White House, 1600 Pennsylvania Avenue, Washington, D.C. 20500. The White House is currently asking that requests are received at least six weeks in advance of the event and will send greetings to US citizens only. You can also apply through your congressman – In some instances this may be easier and you may be able to apply via your congressman’s website.

The Queen will send greetings on a Diamond Wedding Anniversary to recognise 60 years of marriage. The Queen currently sends out more than 25,000 messages for Diamond Anniversaries each year, although the number of messages shot up by more than 20% between 2004 and 2005, reflecting the number of marriages that took place as soldiers returned at the end of World War II sixty years before.

The delivery of Wedding Anniversary messages from The Queen is arranged by the Anniversaries Office, part of the Private Secretary’s Office in the Royal Household, based at Buckingham Palace. The address is: The Anniversaries Office, Buckingham Palace, London SW1A 1AA. A form is available that can be downloaded online to make the application process easier. A copy of the marriage certificate is required to confirm the names and date.The palace asks that applications are sent no sooner than three weeks before the event, but it may be worth having a look at the Buckingham Palace website for the latest update.

It is The Queen’s custom only to send messages to citizens of the UK or UK Overseas Territories. Residents in Australia, Canada and New Zealand should apply directly to their Governor-General.

If you know of a couple who have a major Wedding Anniversary coming up, it’s worth planning ahead, apply in secret, and then a message of congratulation from The President or The Queen is an unexpected and very welcome surprise.

Pakistani Muslim Divorce in USA

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Pakistani men residing in the U.S. travel to their homeland to get divorce decrees from Pakistan. They return back to the United States and seek recognition and enforcement of the Pakistani Islamic divorce decree in a state court. This article deals with the issues related to Pakistani Islamic divorce in U.S. courts.

Following the partition of Pakistan in 1947, the Islamic family law regulating marriage and divorce introduced under the British rule continued to govern until 1961 when the government of Pakistan passed the Muslim Family Law Ordinance (MFLO) to regulate divorce in that country.

The Constitution of Pakistan requires all laws to be brought in accordance with the Quran and the Sunnah which constitutes the deeds and sayings of Muhammad, the prophet of Islam. Chapter 3A establishes the Federal Shariat Court. The law of marriage and divorce is governed by the rules of Islamic sharia.

The law requires the age of males entering into marriage to be 18, and for females 16; there are penalties for contracting under-age marriages, though under age marriages in Pakistan remain valid regardless of the age limit. As to the guardianship issue, the law requires the application of the Hanafi School of Jurisprudence allowing a woman to contract herself in marriage without the consent of her guardian (wali).

The law requires mandatory registration for marriage; failure to register, however, does not invalidate the marriage. Legal constraints are placed on polygamy by requiring the husband to register his marriage at the local Union Council for permission and notification of existing wife/wives. The chairman of the Union Council establishes an arbitration council with representatives of both husband and wife/wives in order to determine the necessity of the proposed marriage. The law requires that the application must state whether the husband has obtained consent from the existing wife or wives. Violation to these rules is subject to fine and/or imprisonment and the husband becomes bound to make immediate payment of “mahr” to the existing wife or wives. However, if the husband does not obtain consent of his existing wife/wives, the subsequent marriage remains valid regardless of the provisions stated in the law; that is because provisions of Islamic sharia are superior to any other law in Islamic countries.

Under the rules of Islamic divorce in Pakistan, a husband can divorce his wife unilaterally, any time, in any place, and, without any obligation to state a reason for divorce. After the husband announces his divorce statement “I divorce you”, three times (triple talaq), the law mandates that the husband gives a notice in writing to the chairman of the Union Council. The chairman must forward a copy of the notice of divorce (talaq) to the wife. Non-compliance with these provisions is punishable by imprisonment and/or fine. The law requires that within thirty days of receipt of the notice of divorce, the chairman of the Union Council must establish an Arbitration Council in order to take steps to bring about reconciliation between husband and wife. If reconciliation is failed, a divorce takes effect after the expiration date of ninety days from the day on which the notice of repudiation was first delivered to the chairman. If the wife is found pregnant during the period following the announcement of divorce, the divorce does not take effect until ninety days have elapsed or the end of the pregnancy, whichever is later. Since the 1980s, and in view of the pressure from Islamic sharia scholars, the practice of the courts in Pakistan is that they validate a unilateral divorce by the husband (triple talaq) by pronouncing “I divorce you” three times, despite a failure to notify the Union Council; this is because Islamic sharia allows a husband to divorce his wife at will, without any provision regarding registration of divorce.

U.S. State family courts do not apply Islamic sharia because of violation of the Establishment Clause set in the U.S. Constitution. However, state courts can recognize divorce decrees issued in Pakistan on the basis of a doctrine in private international law known as “Comity”. Such recognition does not entail an obligation on State Courts to agree with the rulings of a foreign divorce judgment in Pakistan. The Doctrine of Comity is raised when the husband resides legally in the United States, travels to Pakistan, to obtain an Islamic divorce decree from a court in that country, obtains an easy divorce by just stating three times: “I divorce you”, or “I divorce my wife”, in the presence of two male witnesses or one male and two female witnesses; pays the deferred “mahr”, records his divorce in Pakistan, authenticate the documents through proper channels, travels back to the United States, serves his wife with divorce papers, and then seeks recognition and enforcement of the Pakistani divorce by a State Court.

Recognition of Pakistani Islamic divorce decree by a State court in the United States on the basis of “comity” is not mandatory. State courts may deny recognition and subsequent enforcement if the judge deems the Pakistani law is “repugnant” to a U.S. principle of law. Generally speaking, foreign divorce judgments are recognized on the basis of “comity” if the parties involved receive adequate notices, i.e., service of process, and, generally, provides one of the parties has a domicile in the foreign nation at the time of divorce, and the foreign court has given opportunity to both parties to present their case, and the trial was conducted upon regular proceedings after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and no prejudice towards either party, and should not violate a strong U.S. principle of law.

An Islamic divorce decree in Pakistan differs substantially with respect to property division and the “mahr” stipulation. Under Pakistani Islamic law of divorce, wives are entitled to the deferred “mahr”, which is, in most cases, much less than what a State court in the U.S. grants the wife. State courts may not recognize a Pakistani divorce decree if the cause of action on which the divorce is based is “repugnant” to “Public Policy”.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

An authorization to republish this article is hereby granted by the author.

Factors behind the Increasing Divorce Rates

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There is no question the number of marriages ending in divorce has risen dramatically. There seems to be no one specific reason why this is so. In fact there are many reasons why the rate of divorce in the USA has risen and continues to rise as it does today. Here are some of those reasons.

Stigma. It was not so long ago that people were ashamed to be divorced because of the social stigma attached to it. The society had vague understanding of divorce and its corresponding consequences. Before, society looked down on divorce as a taboo and thus the stigma arose.

Today the vast majority of divorces are granted under what is known as irreconcilable differences. This is a term which covers any number of reasons adultery, cruelty, desertion, etc. Because the reason why the marriage has ended is therefore rarely disclosed; the once dreaded stigma has been removed or reduced significantly.

Another important factor is the change in the law. The irreconcilable differences mentioned above is a major part of these law changes. The whole divorce process is far simpler today than ever before. In fact, a couple can divorce without hiring a lawyer through the help of online resources making the entire process straightforward. No longer do people have to hire a private investigator to find proof that their partner is cheating. In short, if one partner wants a divorce there is a slim chance for the other spouse to stop the divorce proceeding.

Financial independence, particularly for women, is another factor in the rising rate of divorce. Not so long ago, the male was the breadwinner and the female stayed home and looked after the kids. However, women make up a significant part of the labor force today and a woman is able to support herself and even her children although both parents must share the costs of raising their children.

Changing roles is also significant. Women today are employed in most fields including the armed forces. Some couples find the definition of wife and mother to be a problem. With women having to work or wanting to work, some conservative philosophies are under attack. Changing the status quo does have repercussions and in some cases this means an increase in divorce statistics.

It is a fact that many people who divorce re-marry and it is a further fact that many second and third marriages end in divorce. This can be for a variety of reasons not least of which concerns step-children.

Finally it has to be noted that statistics are easy to read and digest but they are not the true face of divorce. The increase in divorce has a severe impact on society in many ways. It is bad economically as supporting parents struggle to maintain payments and live their own life. Mental illness from stress as a result of divorce is a massive cost to the economy. Children from broken homes are far more likely to be at-risk and engage in anti-social and illegal behavior. And crime increases can be directly related to young people who lack strong parental care and affection.