Posts Tagged marriage
By Attorney David Engler
The decent looking guy is telling the YPD officer not to come closer or he will jump. It is not known exactly if the officer knew that John Sylvester had 16 years earlier held his girlfriend in a headlock and shot her point blank in the face. He did 10 to 28 years for attempted murder but on this Sunday he was sitting on the edge of the Market Street Bridge spanning the Mahoning River. Of course no one in the Valley wants to go swimming in the Mahoning since its waters have long ago been polluted by the mills that once lined the river from Lowellville through Struthers, Youngstown, Girard and Warren. And John wasn’t interested in swimming. He told the police that he had forgotten what happened earlier that day. (The insanity defense didn’t work 16 years ago but maybe this time he could pull it off)
Earlier that day John had erupted into a rage against his new wife. His control over her was slipping. She dared to tell him she would not tolerate his rages and odd sense of jealousy. The fight had been simmering for months. They were living apart. He returned that Sunday to her parents’ house in a middle income neighborhood filled with the sound of children playing at the first days of summer break. He thought there was a chance he could work things out with his beautiful, smart and well-liked wife. But his head was instantly filled with fury when he found out that she was moving on and had just recently been out talking with another man. The butcher knife was on the counter. Thinking wasn’t necessary. She would learn quickly that it could only be him.
When they first met he was sweet and accommodating. At first there was a large blank spot in his history that she had no idea about. Then her friends reported to her the rumors of what happened to his first girlfriend. If only she had used Court View she could have seen the sentence and crime was more serious than he said. Why was she so naive to believe his story that he was wrestling the gun from his girlfriend when it went off. He said he was very young and it was a terrible case of teenage hormones, booze and an angry girlfriend. The justice system sucked he told her. By the time doubts started to creep in…the baby was on the way.
But this was not the time for self-doubt. She could feel the slicing of the knife into her skin and her only thought was to flee and at all costs protect her son. It was the stuff where Post Traumatic Stress Disorders come from. Fight or flee. She did both.
This bright day John was sitting on the bridge wondering whether to jump and not face what would certainly be a sentence that puts him behind bars for at least twenty years if not a life sentence if the prosecutor rings him up on attempted murder and kidnapping. But either way he did not want to go back to prison. He might have been decent looking and a fast talker but he was never a match for the real street gangsters that run the joint.
What did this mild mannered time hardened cop tell him. Sargent Lomax works family crimes and has seen a daily dose of beat up women, abused children, drug addled kids and their parents enough to last five careers if it wasn’t for his luck to be a cop in one of the toughest city’s in America. He did his job. He makes no value judgments other than his job is to save lives. He would not make a judgment even over the life of someone so vile and despicable that would shoot a girlfriend in the face, then slash his baby’s mother and infant son’s foot sixteen years later.
The negotiator had learned some basic skills in classes but almost all of it came from years of dealing with the abused and their abusers. More than anything Lomax had learned long ago that judgments were better left for a judge, jury or ultimately God. He had a job to do. In between his words of encouraging John off the ledge words flashed through his mind. They were never spoken. Words like “John it is not that much of a drop or there is nothing left for you here or save everybody the effort and take the first step…it’s easy”. No he said the boy should have a father and he needed help to calm the demons and people still cared about him. The Sargent spoke in calm words that this was no way to end this story.
He came off the edge of the bridge.
Author’s note: The stories are true but license is taken to tell these tales of love, loss and the heartbreaks that happen in families. I do not divulge confidences of my client’s unless they ask me to. I practice family law, criminal law and fight for people whose backs are against the walls. Every day I come across ordinary people like Sargent Lomax who do extraordinary work. It is my privilege to share these thoughts with you. The picture is from the Tribune Chronicle.
By Attorney David Engler
Custody disputes take place in Juvenile Court, if the families are not married or Domestic Court, if the family is in the process of a divorce or have divorced previously.
Custody disputes take place in Juvenile Court, if the families are not married or Domestic Court, if the family is in the process of a divorce or have divorced previously.
Clearly having an agreement about how a couple will jointly parent the child or children is the best result. But if there is no agreement, often accusations will fly.
And I warn all clients to be aware that the court might order a drug screen at any given time. The courts will almost always take the child or children from the parent on illegal drugs and give custody to the parent who is not hooked. Sometimes it is hard to find anyone not taking pain pills without a prescription. In one case both parents and a grandparent were dirty. In Ohio for the first time overdoses of drugs has overtaken auto accidents as the leading cause of accidental death.
In one case the mother was asked by the Magistrate to give a urine screen and she said she couldn’t because she had a yeast infection. Everyone found that to be disgusting and a weak excuse. Recently a nice looking young mother was asked to take a screen and at first she agreed. Then after 15 minutes she comes back and said she had just pee’d before court. The Court told her to drink some water. 30 minutes later still no urine. I really didn’t need to see a drug test. She had all the signs. Empty pill bottles without prescriptions. Selling things from her house. Unable to keep a schedule. A doctor at an ER saying no narcotics for you after she came with a complaint of a tooth ache. (I was thinking good for the doctor who checked the database from his Akron offices and saw she had filled 21 prescriptions for pain meds in the last two years.)
So she only sees her child if supervised. That is the overwhelming power of the pain pill epidemic. This scourge does not see race, sex or income. It is even more powerful than a mother’s natural instinct to care for her child.
People can recover and get their children back. But the road is very difficult and those who are nearest to the addict must not be fooled. We the parents, or friend or guardian must dispense very tough love. Get help; call 211. You will find a counselor, clinic or N.A. Group. It is a persistent enemy. For some it is stronger than motherhood.
By Attorney David Engler
In my practice, I have had the opportunity to represent about 8 people of the Muslim faith seeking a divorce. Most of these have been women and the rule in almost all marriages … it is the husband that causes the problem but the wife files for divorce. Like usual, I am always left wondering how in the heck did some guy get a beautiful educated woman willing to take care of him, get away. Bad judgement is consistent across all faiths. There have even been a couple of instances where I have been hired specifically to meet with the husband and talk some sense into his head.
Sharia law is given by God to provide guidelines and rules for much of the personal life and conduct of the Muslim. The concept of love and responsibility and respect for each other is found in Sharia. In America we develop an instant bias against anything Muslim given much of our knowledge comes from CNN news clips or political rants by anti-immigration crowd. Our law comes down from our representative bodies and the judges who interpret the law through cases. We rely on the courts and lawyers to help straighten out a messy divorce In Sharia the plaintiffs and defendants usually represent themselves. But the concepts of marriage and divorce in Sharia law mirror our U.S. Courts, so the effects of a Sharia Law marriage can largely be enforced in an American divorce court.
A marriage can be terminated by the husband in the ‘talaq’ process, or by the wife seeking divorce through ‘khul’. Under ‘faskh’, a marriage may be annulled or terminated by the ‘qadi’ judge.
Men have the right of unilateral divorce under classical Sharia. A Sunni Muslim divorce is effective when the man tells his wife that he is divorcing her, however a Shia divorce also requires four witnesses. Upon divorce, the husband must pay the wife any delayed component of the dower. The American lawyer should introduce the Sharia marriage contract as evidence that this gift should be enforced during the temporary orders or as part of a property division.
If a man divorces his wife in this manner three times, he may not re-marry her unless she first marries, and is subsequently divorced from, another man. Only then, and only if the divorce from the second husband is not intended as a means to re-marry her first husband, may the first husband and the woman re-marry.[Qur’an 2:230] A woman may not remarry for 5 months after a divorce to protect the proper lineage of children. In our courts we ask women of all ages before granting the divorce, “are you now pregnant.”. So often the name of the former husband appears on a birth certificate because the woman became pregnant during the marriage but not by the husband. It is interesting in Sharia law that this issue is dealt with by prohibiting marriage for five months after the divorce.
‘Mahr’ or dowry is a beautiful concept. It is security for the woman even if it is more in a symbolic sense. The bridegroom makes a gift of value that takes the form of a contract. The gift can be jewelry, money, a car or other items of value. Like our common law practice a gift like an engagement ring cannot be taken back because the marriage did not last.
At a Muslim marriage there is a point where the bride leaves to become part of the groom’s family. This can be a very touching moment because the daughter is now literally part of a new family. This does not mean she is subservient to this new family, just that the responsibility for her care belongs to the groom’s family. The modern reality is that Muslim women in America are career-oriented, well-educated and can usually take care of themselves. But once again the American lawyer should become familiar with Sharia law and consider calling an Imam, or cleric, to speak to as an expert as to what was considered as the parties entered the marriage contract.
In our temporary hearing orders or in determining an appropriate spousal support, the law provides that the understanding of the parties is appropriate evidence. It is also important to determine if the wife has sacrificed her income to support the husband’s education or stayed at home to raise children. Likewise it makes sense to introduce the Sharia marriage contract and cultural customs that form the basis of what the parties intended.
The fact that a marriage was arranged has no impact on a division of assets or spousal support award. It might even mean more in support if the court understands that it was the understanding that the woman truly was to be part of this new family and left so much behind. As a father of two young daughters (21 and 23) I definitely believe I could make a better choice of their mates than they could. I and their mother have more life experiences to draw upon and know what mistakes to avoid. So I do not look poorly upon arranged marriages even though my children can only be subjected to my gentle persuasion. If I push too much I will be tuned out. So it is interesting to note that in Muslim divorces it is not the fact of an arranged marriage that is at the root of the divorce. It is the usual suspects of lack of respect, infidelity, money problems and immaturity of thought.
My exposure to Sharia law and my Muslim clients has been one of the most positive in my career. There is little deceit and a great sense of honor that makes it easier to do my job.
By Attorney David Engler
When we first saw her it looked like a hunk of raw hamburger had been stuck to the left side of her face. I asked my client how his ex-wife got the shiner and he said he had no idea. We were there to try to get his two children back. On her own the mother had decided that the shared parenting schedule should be broken and the 13-year-old girl and 9-year-old boy should live with her. On the domestic court wing of the court anything can be seen on any day.
No one would help. He called the police and they said they don’t get involved in custody issues even though he had a piece of paper. Children Services said if there was no allegation of abuse it wasn’t up to them. He called his own rural police department and they said it was a City problem. The ex-wife had moved six times in the last 18 months. She was now shacked-up with a huge man who had done time for felonious assault. He had three children of his own and together they had an infant. With my client’s own children, it was a household of 8 in a run-down part of Youngstown.
It all started when the welfare department called the ex-wife and said she was going to lose her food-stamps and medical card if she couldn’t prove the children resided with her. So she started with the idea that instead of sharing the children she would just keep them. She told him by text if he didn’t tell welfare that they were living with her than he would never see his children again.
For her it was about the incentive of money that the government gives based upon how many children you have. The whole notion of welfare reform from the 90’s never really happened. Monies were shifted around and on the streets it is easy to get the knowledge of what it takes to get an education grant, earned income tax credit from the IRS, free housing, daycare and a shopper’s bazaar of other entitlements benefits that go along with being cash poor but street smart.
John is a big man, used to working with his hands. He builds trailers for a living. There is nothing more he liked to do the take his son out to Truck Night. Mud and diesel exhaust made for a hundred smiles. His daughter is a sweetheart. How in just over a week did she go from being Daddy’s little girl to a daughter who wouldn’t talk to him?
What he didn’t count on was that the mother and her new boyfriend knew how to game the courts. The first rule is ‘just don’t show up’. The second rule was when you are finally served with papers, show up to court but then demand you need a lawyer and don’t understand anything. Even when the Magistrate told her she needed to get the kids back to the father, she simply refused.
Then she threw out the bomb. The black eye was caused by her ex, my client. She said he had come over when all the kids were asleep and punched her in the eye, squealed his tires and left. Her boyfriend with the history of restraining orders and doing hard time for felonious assault claimed he was out helping a half-brother fix a plumbing problem at 1 am when the fight on the porch happened. She wanted to use the domestic violence laws to protect her from her ex and force him to stay away from the children. She told the children what her ex had done to her and it got in their minds that they could be next. Then she coached the calls from the kids to the dad saying they hated him. Then there was a text message from the boyfriend showing the 8-year-old with an earring. The boyfriend knew that the picture would sting the hard-working metal worker. He would never have allowed an 8-year-old to have an earring. The ex-con boyfriend texted “it looks like me don’t it” It was a City thing. The ex-con then suggested maybe the boy was actually his.
From somewhere beyond his own knowledge my client found patience and resisted the urge not to strike back. Surely this would not stand. It was now 7 weeks during the summer and he had not seen his children. They also would call the paternal grandparents and say they hated them too. The grandfather had a face that looked like it had been made out of leather. When I asked him in Court the effect of not seeing his grandchildren; his toughness melted away and through tears he said he missed “his shadow”, his grandson. The grandmother could not hold back her rage and shouted to the Magistrate that if her grandchildren were being abused by anyone, there would be no need for a court. She would handle it herself. The neighbor from across the street came and in her 77th year of life testified in a court for the first time that something was terribly wrong. She had not seen those two sweet children playing in the yard all summer. What was right is right and she would be heard.
It all fell apart when the new boyfriend took the stand and couldn’t recall the address of the half-brother he went to help at the time that the mother was allegedly being punched by the father, my client. He didn’t know if the half bother had a telephone number and had since moved somewhere south. He also tried to convince the court that his felony record was all a mistake. He also thought it was important to tell the court how he had been shot up in his car while his own children were in the backseat. That had only been three months earlier.
I asked him if he hit the mother in the face and then worked with her to concoct a story that it was her ex-husband. He didn’t work and more money into the household was good for him as well. Of course he denied it. We introduced cell phone records that showed that the father was nowhere near her Westside home. Others came forward to say the father was in his truck all night. The court threw the domestic relations complaint out quickly. The Magistrate said she hardly believed anything the scheming couple had to say.
After seven weeks we were in front of another magistrate for the third time and this time the pile of lies was so great that the deputies were ordered to escort the children into the arms of the father. The grandparents were wet with tears. Everything that had been said was a lie.
It took hours and hours to get the father his children back. The cost in legal fees was enormous. The mother can only see them if there is supervision present. It is the rare parent or father who can muster the resources to mount a fight against false accusations. My client to me is a hero because he practiced patience when his world was collapsing. I would tell him that the courts will not allow a lie to live. I would give the advice that he would get his children back even when I began to question the process.
The mother hasn’t seen her children since. Therapy will be needed to bring the children back to normal. I am not sure I have ever had a more satisfying day then to see the children in the arms of the dad with the permanently greased hands. There is something special when you see such a strong man brought low by the loss of his children. They said horrible things to him during the time the mother was forcing the words of hate. He ended every conversation in the same way during that time period, “you know I love you and I will always be here.”
The mother perverted the domestic violence laws from that of a shield into that of a sword. I know she has lost her children for the time being but it seems like the Mother should be punished for her lies. She is a bust out and we cannot collect any money from her. Her abuse was a real as taking a stick and hitting her children.
Or maybe this should just be a tale of a father’s love being so strong that he would not be moved from running to his children.
By Attorney David Engler
Jerry and Tina were married for more than 30 years. They got married young. They were both 21. The two children came in the first five years. She managed a Papa John’s pizza store and his job was working in a plastic extrusion company that manufactured the containers that spit out anti-bacterial soap in public places.
There was not an endless demand for such dispensers and the Chinese could make the same product at half the cost. It was inevitable that he was laid-off and the first 26 weeks of unemployment went by quickly. The truth of the matter is that he could hardly get out of bed once Tina left the trailer.
He had now gone through 52 weeks of unemployment compensation. He thought the break might be doing them some good. It was what she wanted. She said she needed time apart to get her head straight
For him, more important than working, was staking out the pizza shop and confirming his suspicions. He had no idea of what he would do if found out she was cheating. It didn’t take long to discover that Tina saw the same customer every night. She was at work, but didn’t stop her from walking this guy out to his car. She leaned in close to him while he was sitting and Jerry could almost make out a kiss.
He followed the guy back to his townhouse in a ragged area of Austintown. He replayed the movie in his head. He would approach him just as he was opening the door and swing with his own fist. The guy would not know what happened. Jerry would then throw at him the family picture of he and Tina with the two kids. It was taken when the children were in middle school.
He did not do any of those things. He gave up. Jerry wasn’t great looking, but next to this guy he could have been Brad Pitt. He couldn’t understand.
So at the lawyer’s office the next day he asked what his options were. When it comes to personal property the court wants both parties to divide up the property ahead of time. If the parties cannot agree everything could be placed for sale at auction. Men usually want the motorcycle and a flat screen T.V. Women want to take the one thing that will hurt the most. Tina and Jerry had no bank accounts to divide. He drove a Cavalier with 105,000 miles and she drove a leased Dodge Caliber. Jerry wore glasses that were made sometime in the 80’s. They covered half of his face. Together they bought ceramic statues to commemorate each birth, special anniversaries and a few times they went on vacation. The little statues never cost more than $25.
After I told him there was no spousal support where he was capable of making as much as she did and the personal property had already been split; he asked “you mean to tell me that after 30 years of marriage all I get is the Precious Moments Collection?”
There was no irony in his voice.
By Attorney David Engler
This is a type of case that I am doing less and less of because it was outlawed back in 1991 in Ohio. So in order to have a common law marriage you would have to claim to be married for at least 20 years and now want a divorce. It still happens and then we use all sorts of ways of proving that the couple acted like they were married.
My favorite story was of a public office holder who thought he would be sharp and say that he was never really married to his wife of 25 years. The problem he had was that he had always listed her on the state paid health insurance as his wife and the local prosecutor was starting to investigate the office holder for theft in office. He changed his opinion and agreed he was married.
To be defined as a common-law marriage within the states that allow it, the two people must: 1) agree that they are married, 2) live together, and 3) present themselves as husband and wife.
Common-law marriage is generally a non-ceremonial relationship that requires “a positive mutual agreement, permanent and exclusive of all others, to enter into a marriage relationship, cohabitation sufficient to warrant a fulfillment of necessary relationship of man and wife, and an assumption of marital duties and obligations.” Black’s Law Dictionary 277 (6th ed. 1990).
Before modern domestic relations statutes, couples became married by a variety of means that developed from custom. These became the elements of a “common-law marriage,” or a marriage that arose through the couple’s conduct, instead of through a ceremony. In many ways, the theory of common-law marriage is one of estoppel – meaning that couples who have told the world they are married should not be allowed to claim they aren’t, when in a dispute between themselves.
Currently, only nine states (Alabama, Colorado, Kansas, Rhode Island, South Carolina, Iowa, Montana, Oklahoma and Texas) and the District of Columbia recognize common-law marriages. In addition, five states have “grandfathered” common-law marriage (Georgia, Idaho, Ohio, Oklahoma and Pennsylvania) allowing those established before a certain date to be recognized. New Hampshire recognizes common-law marriage for purposes of probate only, and Utah recognizes common-law marriages only if they have been validated by a court or administrative order.
Common Law Marriage States:
District of Columbia
Iowa (Iowa Code Ann. §. 595.11)
Montana (Mont. Code Ann. § 26-1-602, 40-1-403)
Oklahoma (Okla. Stat. Ann. tit. 43, § 1)
Pennsylvania (23 Penn. Cons. Stat. § 1103)
Texas (Tex. Fam. Code Ann. § 2.401)
Utah (Utah Code Ann.§ 30-1-4.5)
Georgia: Only for common-law marriages formed before January 1, 1997 (1996 Georgia Act 1021).
Idaho: Only for common-law marriages formed before January 1, 1996 (Idaho Code § 32-201).
Kansas: law prohibits recognition of common law marriage if either party is under 18 years of age. (2002 Kan. Sess. Laws, SB 486, §23-101).
New Hampshire: Common law marriages effective only at death. (N.H. Rev. Stat. Ann § 457:39).
Ohio: Only for common-law marriages formed before October 10, 1991 (Lyons v. Lyons 621 N.E. 2d 718 (Ohio App. 1993)).
Oklahoma: Only for common-law marriage formed before November 1, 1998. (1998 Okla. SB 1076).
Pennsylvania: law was amended to read “No common-law marriage contracted after January 1, 2005 shall be valid.” (Pennsylvania Statues, Section 1103)
Texas: calls it an “informal marriage,” rather than a common-law marriage. Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a three-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. A 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.
Utah: Administrative order establishes that it arises out of a contract between two consenting parties who: (a) are capable of giving consent; (b) are legally capable of entering a solemnized marriage; (c) have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife. The determination or establishment of such a marriage must occur during the relationship or within one year following the termination of that relationship.
Because the doctrine of common-law marriage developed before the advent of modern domestic relations statutes, in some states the law exists in case law rather than legislation. (For example: Piel v. Brown, 361 So. 2d 90, 93 (Ala. 1978); Deter v. Deter, 484 P.2d 805, 806 (Colo. Ct. App. 1971); Johnson v. Young, 372 A.2d 992, 994 (D.C. 1977); Smith v. Smith, 161 Kan. 1, 3, 165 P.2d 593, 594 (1946); Sardonis v. Sardonis, 106 R.I. 469, 472, 261 A.2d 22, 23 (1970); Johnson v. Johnson, 235 S.C. 542, 550, 112 S.E.2d 647, 651 (1960)).
Tennessee has employed a doctrine of “estoppel to deny marriage.” See Note, Informal Marriages in Tennessee – Marriage by Estoppel, by Prescription and by Ratification, 3 VAND. L. REV. 610, 614-15 (1950).
Many states have abolished common-law marriage by statute, because common-law marriage was seen as encouraging fraud and condoning vice, debasing conventional marriage, and as no longer necessary with increased access to clergy and justices of the peace. (For example: Cal. Civ. Code § 4100; N.Y. Dom. Rel. Law § 11 ; Furth v. Furth, 133 S.W. 1037, 1038-39 (Ark. 1911); Owens v. Bentley, 14 A.2d 391, 393 (Del. Super. 1940); Milford v. Worcester, 7 Mass. 48 (1910)).
Among those states that permit a common-law marriage to be contracted, the elements of a common-law marriage vary slightly from state to state. The indispensable elements are (1) cohabitation and (2) “holding out.” “Holding out” means that the couple tells the world that they are husband and wife through their conduct, such as the woman’s assumption of the man’s surname, filing a joint federal income tax return, etc. This means that mere cohabitation cannot, by itself, rise to the level of constituting a marriage. Of course, many disputes arise when facts (such as intentions of the parties or statements made to third parties) are in controversy.
The U.S. Constitution requires every state to accord “full faith and credit” to the laws of its sister states. Thus, a common-law marriage that is validly contracted in a state where such marriages are legal will be valid even in states where such marriages cannot be contracted and may be contrary to public policy.
There is no such thing as common-law divorce. Once parties are married, regardless of the manner in which their marriage is contracted, they can only be divorced by appropriate means in the place where they ask for the divorce. That means, in all 50 states, only by a court order.