From the Editor in Chief
| Author | Kathleen A. Hogan |
| Pages | 4-45 |
from the
editor in chief
By
Kathleen A. Hogan
4 FAMILY ADVOCATE www.shopaba.org
FAMILY ADVOCATE
Editorial Board
EDITOR IN CHIEF
Kathleen A. Hogan
3773 Cherry Creek N. Drive
Suite 950
Denver, CO 80209
kah@mcguanehogan.com
ISSUE EDITORS
Lilka B. Martinez, El Dorado Hills, CA
Gerald L. Shoemaker Jr., Norristown, PA
EDITORIAL BOARD MEMBERS
Livia DeFilippis Barndollar, Westport, CT
Joy M. Feinberg, Chicago, IL
Ann M. Haralambie, Tucson, AZ
Debra H. Lehrmann, Austin, TX
Lilka B. Martinez, El Dorado Hills, CA
Michelle Piscopo, Philadelphia, PA
Gerald L. Shoemaker Jr., Norristown, PA
Gene Brentley Tanner, Raleigh, NC
Timothy B. Walker, Centennial, CO
Steven K. Yoda, Woodland Hills, CA
EDITORIAL POLICY
Family Advocate, published by the
American Bar Association Family Law
Section, oers practical, practice-oriented
articles for family lawyers, their clients,
and other professionals involved in
divorce, child custody, adoption, and
other family-law related issues. e articles
in Family Advocate do not express the
official policy of the ABA or the Family
Law Section. ey represent the views of
thoughtful members of the bench and bar
who are interested in eective advocacy
and the American family.
MANAGING EDITOR
Lori Lyons
lori.lyons@americanbar.org
312-988-5662
DESIGN
Mary Anne Kulchawik
maryanne.kulchawik@americanbar.org
ADVERTISING
Jonathan McGraw
MCI-Group
jonathan.mcgraw@mci-group.com
410-584-1979
The process of formin g, dening, or disentangling family
relationships is likely to be a fam iliar one to most
readers. Whe n an international element is added to th e
mix, whether in the f orm of a non-citizen party, a
litigant or child residing ou tside the US or money or
assets loca ted outside the country, practitio ners often
nd themselves in u nfamiliar territory. The potential issues g o far deeper
than the logistical ch allenges of nding interpreters , translating docu-
ments, or jugglin g the need to schedule calls or other even ts involving
participants on t he other side of the world.
The views of the right s and duties that arise in a marriage, and th e
property a nd other rights that the spouse s may have during the relation-
ship or upon its termin ation, differ so substantially in o ther countries that
no safe generalizations a re possible. There are similarly wide varia tions in
the steps neces sary to enter into a valid prenuptial agre ement. Peter Walzer
has written “Inter national Prenups: A World View.” His article addre sses the
concerns involved whe n the agreement needs to be multi- jurisdictional in
scope. As the auth or notes, this is an area where variation s between
jurisdictions c a be so great that it may be necessar y to have sections (or
even entire agreemen ts) drafted by separate attorney s in each country.
The so-c alled “green card” marriage, the plight of couple s separated by
the requirements o f the immigration system and other dif culties faced by
international couples h ave been the subject of countless n ovels and movies,
many lled with good sto ry lines but few facts. Mau rice Goldman has
provided a more fac tual treatment of the subject in his ar ticle, “For Better
or Worse? Complexities of Ma rriage-Based Immigration .” The author lays
out the many element s that must be considered when e mbarking on this
journey, including ancé vis as, consular processing, ad justment of status,
and the need to keep a cons tant eye on the extremely comple x and
ever-changing U.S. imm igration system. He also offe rs readers a helpful
checklist of docum ents and forms to be submitted f or marriage-based
adjustment of st atus.
Access to a valid marriage cer ticate or license may seem like a “no- brain-
er” in a family law proceedin g in the United States, but what if your clie nt
was married abroad? Lind say V. Mason’s article called “What Con stitutes a
Valid Marriage?” explains possib le options when valid proof of marriage is
not available or when ther e is a problem with the license or other m arriage
document the client ha s. She describes the typ es of circumstances that
require you to establi sh a legally recognized marriage, includin g when
applying for a visa ba sed on marriage to a U.S. citizen, inheritin g from a
deceased intes tate spouse, or applying for g overnment benets.
KATHLEEN A. HOGAN (kah@mcguanehogan.co m) is a principal with
McGuane and Hogan, P.C., in Denver, Colorado , and Editor in Chief of
Family
Advocate
.
Published in Family Advocate, Volume 43, Number 2, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
FALL 2020 5
child abduction s and custody disputes. Such c ases can mean
expensive, exha usting, and simultaneous litiga tion in multiple
countries with few guaran tees that any court order will be
enforced. The autho r explains how the Hague Conference on
Private International L aw and International Social Servi ce
provided a framework fo r handling such cases but lef t much
unresolved, making litigation even harder. Learn about the
benets of usin g mediation in cross-border c ases, the need to
look outside one ’s jurisdiction for a mediator with all the
necessar y skills required in a complex cross- border case, and
the special caution n eeded in using mediation in multi-ju ris-
dictional situation s.
The number of cas es in which a party suspec ts there are
offshore accou nts or assets is typicall y far greater than the
number of cases in w hich those accounts or asset s can be
located. However, the tas k is not always hopeless. Mat thew D.
Lee has provided an ar ticle called, “Uncovering Off shore
Assets: Usi ng U.S. Tax Reporting Requirements a s a Discovery
Tool.” The author shares how the wave of ta x transparency
sweeping the glob e the past decade, precipita ted in the
United States by the IR S’s 2009 crackdown on hiding assets in
offshore ta x havens, is helping family law practitio ners, who
once searched in vain for su ch assets. The eradicatio n of most
tax havens and the rep eal of bank secrecy laws have provide d
access to previousl y unavailable information about offs hore
assets, mak ing U.S. tax returns and related form s critical
discovery tools th at should not be overlooked.
Elaborating on Matth ew Lee’s look at discovery of
offshore as sets, CPA Adam Poutasse and foren sic accoun-
tant Aliah Molczan hav e written “Foreign Asset Repo rting
and Taxation Overview.” The author s summarize important
tax reporting a nd disclosure requirements for family l aw
practitioner s to be aware of, including foreign assets,
taxation of individua ls, foreign partnerships , foreign
Ariel Leichter-Maroko has p rovided an article called
“Entering the Forum Shop s: How to Initiate a Family Law Action
against a Foreign Par ty.” Initiating an action involving a foreign
party bring s special challenges that must b e tackled with
heightened diligenc e. Knowing what to do at the early stage s
of such a case can have a hug e impact on its outcome. Failure to
adequately rese arch, plan, and execute in these ca ses can have
devastating cons equences for a client, as well as cor responding
nancial and profess ional repercussions for the at torney.
Rhonda Wasserman a ddresses “Family Law Disputes
Between Intern ational Couples in U.S. Courts.” The au thor
asks the esse ntial question of how American cour ts handle
family law disputes that ar ise between these internationa l
couples. Topics include s tate court jurisdiction, divi sion of
property, pre nuptial agreements and choice- of-law clauses,
child custody, recogniti on of foreign divorces, deference to
pending divorce ac tions led abroad and forum non conve niens.
The effort to o btain a “home court advantage” is com mon
in international case s involving children. However, that battle is
not one in which the winne r of the race to the courthouse
automatically has a sup erior position. Stephen Cullen she ds
light on the legal and reg ulatory hurdles divorcing couples
engaged in child cus tody disputes across internati onal borders
face in an articled call ed “The International Family and
Litigation.” He discuss es the Uniform Child Custody Jurisdi ction
and Enforcement Ac t (UCCJEA) preference for the “hom e
state” and the concep t of “habitual residence” which is the
focus for the Hague Co nvention. Cullen addresses the Su preme
Court’s recen t Monasky v. Taglieri decision which gives insight
into how a U.S. court mig ht determine a child’s habitual
residence in a Hague c ase. He also offers usef ul practice tips for
the left-behin d parent and the removing parent.
Practically any time the re is a dispute about custody of a
child there will also be a disp ute about establishing, payi ng or
collecting suppo rt from that child. Michael S. Coff ee has
written “Internati onal Child Support Issues
with a U.S. Element.” The ar ticle details the
six categories of inte rnational child support
issues that family law pra ctitioners are most
likely to encounter, including the es tablish-
ment, enforcement, and modication of
child support ord ers. The similarities and
important dif ferences between intern ation-
al child support is sues and interstate issue s
are also address ed.
As most prac titioners know, issues
regarding the reside nce of or frequency of
contact with child ren carry an emotional
element far in excess o f what may be
encountered in a purel y nancial dispute. In
an article called “Me diating International
Child Abduction s,” Melissa Kucinski delves
into global family mediation a nd the thorny
and emotional issue s unique to international
continued on page 45
Published in Family Advocate, Volume 43, Number 2, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
6 FAMILY ADVOCATE www.shopaba.org
We don’t know whether Meghan Markle
and Prince Harry entered into a prenup,
but if they had, their lawyers would
have to wrestle with many dicult
issues. Would English law apply to the
prenup? What if they chose to live in another country? At
the time of the “marriage of the century,” this seemed
farfetched. Now it is a reality. Meghan and Harry rst
moved to British Columbia and then moved to California.
If you were the lawyer that drafted the prenup of the
century, would you have anticipated all these moves?
Perhaps this article will help you navigate the dangerous
waters of multijurisdictional agreements the next time you
represent royalty—or anyone else who may be moving to
another state or country after they marry.
Dene the Scope of Your Assignment in Your
Legal Services Agreements
Dening the scope of your duties in a legal services agree-
ment is particularly critical when you are drafting a prenup
with parties who have connections in dierent states and
countries. In particular, you must be clear that you will only
International Prenups
A WORLD VIEW
By PETER M. WALZER
be preparing an agreement that will be enforceable in your
jurisdiction. Although the parties may divorce or die
anywhere in the world, specify that you are drafting the
agreement for your own state or country. You may want to
set forth in your retainer agreement the following conditions
of your representation:
• is agreement is drafted according to the law of this
jurisdiction and it may not be enforceable in another state
or country.
• If I am called as a witness in litigation involving the
agreement, you (the client) agree to pay me for time and
travel at my hourly rate.
• I cannot guarantee the benets provided under the
agreement will actually be paid to you or you would
obtain greater benets under the agreement than they
would be without any agreement.
• You are responsible for the accuracy of your nancial
disclosure.
• Courts do not always follow choice-of-law provisions in a
premarital agreement.
• is premarital agreement may be precluded from being
Published in Family Advocate, Volume 43, Number 2, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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