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Texas Family Law Insiders
Shailey Gupta-Brietzke and Yasmin Kutty | Navigating Unique Challenges in South Asian Divorce Cases
00:47:06
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- [00:00]
Yasmin Cuddy
I've had South Asian clients non suit their divorces $50,000 and six months to a year into it, you got to be understanding that there's pressure to reconcile. And when you have unique situations like that happen, try to not be judgmental, try to be understanding of the culture and be patient.
- [00:21]
Holly Draper
You're listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now here's your host attorney Holly Draper.
- [00:34]
Today we're excited to welcome two guests to our show. Shelly Gupta Britsky is joining us for the second time and then Yasmin Cuddy is joining us for the first time. Shelly is the principal owner of Shelley Gupta Britsky PLLC in Houston where she represents individuals and children in a variety of family law matters. Yasmeen is a founding partner of Cuddy Guajardo Khoury Family Law, pllc, also in Houston. Thank you so much for joining us today.
- [01:01]
Shelly Gupta Britsky
Thanks so much for having us, Holly.
- [01:04]
Holly Draper
So Shelly, why don't you start by telling us a little bit about yourself.
- [01:08]
Shelly Gupta Britsky
Yeah. So I've been a family lawyer for the past 18 years. I've worked primarily in the greater Houston area. I started my law firm in 2021 and prior to that I served as an associate judge, worked in private practice and public interest law, mainly in the sphere of family law. I'm also a board certified family law attorney and I've been board certified since 2014.
- [01:33]
Holly Draper
And Yasmeen, what about you first?
- [01:35]
Yasmin Cuddy
Holly, thank you so much for inviting us to talk on your show. I have been practicing family law since exclusively in Texas since 2010 and I merged my practice with Denise Khoury to form KGK Family Law pllc. We have offices in Houston and in Fort Bend, specifically Stafford, and I also now provide representation for folks in Travis and Williamson county in Austin, Texas. I was an Assistant attorney General in New York State under Spitzer and Cuomo doing consumer fraud litigation prior to my move to Texas. I am also board certified in family law by the Texas Board of Legal Specialization and had a career prior to my private practice in government and nonprofit work.
- [02:17]
Holly Draper
Well, awesome. I appreciate both of you being here with me today. This is my first time having two people at the same time on the podcast, so hopefully it will go really well. But if you have any kinks, then people will know why. But today we're going to talk about an issue that the two of you brought up to me as an idea for the podcast, and that is issues that are kind of unique or prevalent in divorces involving South Asian people, specifically India or Pakistan. Why did you think this would be an interesting topic for us to discuss?
- [02:50]
Shelly Gupta Britsky
Yasmin, do you want to go ahead and take the first stab at it, since this is your big idea to reach out?
- [02:55]
Holly Draper
Sure.
- [02:56]
Yasmin Cuddy
Thanks, Shelley. There's a strong South Asian presence in the Houston metropolitan area, and I think along with that come prevalent issues that come up. It is a family decision to divorce, whether that's good or bad. And it takes a lot for a South Asian client to consider divorcing. And usually the client desires the approval of his or her immediate family to go through with it. And I think that can be challenging for any lawyer out there representing these clients. A typical family law practitioner is going to have South Asian clients, and it's important to recognize these challenges in the divorce process. And briefly, an example could be a South Asian mother comes into my office and doesn't understand all the rights and duties and possession and access that the non custodial parent is going to get under the Texas Family Code, which is not 50%, but 46, 47% of the time with children. And I think those are difficult topics that need to get addressed early on.
- [03:56]
Shelly Gupta Britsky
Yeah, I think generally it's really helpful for us to remember as family law practitioners, sometimes you have to meet our clients where they are, and they have a whole history and culture and set of traditions and family values and that they often have coming to the world and coming to prior, but coming to us as family law practitioners. And so we've got to kind of meet them where they are. And sometimes that means we've got to be able to be willing to listen, be willing to learn, be willing to adapt. And sometimes it also means we have some unique issues that feel very unique, but culturally or traditionally, they're not quite as unique. And so hopefully Yasmine and I can shed some light on those today and help daily law practitioners and how they approach clients who may not be of the same cultural or traditional background.
- [04:39]
Holly Draper
So the divorce rate in the United States is somewhere around 50%, even higher than that if we're talking about a second or third marriage, whereas in India and Pakistan it's only 1%. Why do you think that is so?
- [04:55]
Shelly Gupta Britsky
In my opinion, I think a lot of that has to do with the stigma that faces divorce in the United States, as well as the fact that the divorce rate in India and Pakistan is generally 1%. And so it is not a common practice that families go through in figuring things out. And when there's conflict, there's often a lot of other solutions that families reach towards besides divorce. And so certainly I think that plays a part. And, Yasmin, do you want to kind of hit on some other factors?
- [05:24]
Yasmin Cuddy
Sure. I would say also kind of chiming in with Shelley, there's a lot of family pressure, religious reasons, and cultural reasons that make divorce feel like an insurmountable decision to go through. I believe that both women and men are kind of taught to tolerate and put up and do everything to save the marriage. And I think in India and Pakistan specifically, parties often feel like they have no hope of getting remarried if they were to go through a divorce. I do think that's different. Here in the United States, I have clients that have divorced and remarried, but I think there's that cultural stigma that Shelley was talking about as well.
- [06:02]
Holly Draper
And as a result of that, do you think the prevalence of divorce in the United States amongst the South Asian community is significantly lower than the rest of the population?
- [06:14]
Shelly Gupta Britsky
I think it is. And I think sometimes that also means the level of conflict when people come to us for divorce is often much higher because folks have tried multiple different types of interventions in order to try to save the marriage or save the family. And so oftentimes, when people are ready to litigate, there are years and years of grievances or abuse or challenges or attempts at reconciliation that make it very challenging to proceed forward.
- [06:44]
Yasmin Cuddy
I would agree with Shelley. I would say it's probably a smaller percentage in South Asian culture to divorce, even in the United States, but it's increasing slowly. So there are more and more people walking in the door of, you know, divorce attorney offices looking to file for divorce.
- [07:02]
Holly Draper
So I know one of the issues that you all had raised to me before the podcast is that family often plays a much bigger role in a divorce involving South Asian couples than it might in other types of relationships. Talk to me a little bit about that.
- [07:24]
Shelly Gupta Britsky
So oftentimes, the idea of getting married. Married is not often two individuals in South Asian culture. It's often the merging of two families, and it truly is a family decision. And so the role that family plays and extended family plays in a couple's life as a married couple is much greater than in a lot of other cultures. And so sometimes people can consult with those family members in how to make decisions regarding finances, regarding business, regarding education, regarding child rearing. And so it's normal or necessary or feels like it's necessary for them to consult about legal decisions and making decisions about divorce. And so oftentimes, you know, that is. That is a approach to how people solve problems and how they kind of work on trying to figure out solutions. And so it's not unusual that it's also a family decision to get married, but a family decision also to get divorced.
- [08:23]
Yasmin Cuddy
I would agree with Shelley wholeheartedly. Whether it's the husband or the wife, they need to feel like they've got their family support in the process and they will bring in to consults their parents, aunts, uncles, cousins, siblings, and they feel like they need to be supported through the entire process by their family. In fact, they won't even make a final decision at mediation without maybe calling or talking to somebody from their family to get that support, that emotional support. And there's even in the United States, there are still joint family systems here where my client may be living with her parents or the, the husband and wife are living with the in laws in the house with other siblings and their children and their spouses.
- [09:12]
Holly Draper
So we also have a relatively large and growing South Asian population in the northern suburbs of dfw, which is where I am. And I do see pretty often arranged marriages in that context. Do you see the same. How common are arranged marriages in these cultures?
- [09:36]
Yasmin Cuddy
Well, let me take a stab at this one. I would say that the authentic arranged marriage, where the families are putting a husband and wife together to get married with no information or if they don't have a relationship, I don't think is almost non existent in the United States. What I think is there are matchmakers. People get introduced to people. They may not have as much information, but they probably get to know the other party prior to getting married. But the intent for the setup is to get married. So semi arranged, I would say, is still happening here in the United States.
- [10:13]
Holly Draper
Today with clients who are, who have immigrated here. Do you see them having arranged marriages?
- [10:21]
Yasmin Cuddy
Absolutely.
- [10:21]
Holly Draper
They were married there?
- [10:22]
Shelly Gupta Britsky
Yeah. I mean, absolutely. And I think that it's also a common dynamic for folks who come here for school or education, secondary school or education, who are immigrants of India or Pakistan, to go back and marry or to bring someone over. So there's often, you know, an interlay of immigration issues that, you know, don't always directly get impacted by family law, but could be impacted by some of the issues in the family law case. But yeah, it's not unusual. I mean, I call it quasi, quasi arranged marriages where there's, you know, there's still some wedding sites where people put their names out there. Families still, you know, go through the process with their kids, with the prospective brides and grooms. You Know, filtering through, you know, doing some research, figuring out if it's a good family or not approving the matches. And so even if it is quasi arranged, as Yasmin saying, there is still some significant family involvement, which is really different than kind of how we view kind of the autonomy that people have in kind of making those types of decisions on their own.
- [11:23]
Holly Draper
Are there any unique issues around domestic violence in South Asian families that Texas attorneys should be aware of?
- [11:31]
Shelly Gupta Britsky
Sure. So I think there are a number of them. I think the biggest has to do with some of those overlap with immigration issues. Sometimes there's issues with work permits and availability to work, ability to work. Sometimes there's also financial abuse issues where finances are really not transparent throughout the relationship, and one spouse may not have the capacity or ability to work, and then also may not have access to any funds whatsoever. I also think that it plays a part in how domestic violence is handled back home in home countries. And sometimes those narratives filter over to the United States. And I remember when I was a young attorney, I had a South Asian client who I asked her, I said, why didn't you call your husband beat you, and you were bleeding from the ear. Why didn't you call the police? And she said, well, I didn't know that I could do that, because at home, if I would have at home in India, if I would have called the police, they would have not responded, and they wouldn't have been able to arrest anybody. And I didn't know that I had those types of rights here in the United States. And so sometimes we're operating with clients who have a very different framework of what the legal system can afford and provide. And so sometimes we have to kind of go back and say, okay, what are the experiences that brought someone to why they're at my door today? And let's figure out and put our feet in their shoes and how they made some of the decisions they've made.
- [12:53]
Yasmin Cuddy
And I would say that clients are often scared and afraid to admit that he or she may be a victim of physical abuse and. Or feel pressure to forgive and forget, not call the police, not seek out medical attention, and are too embarrassed to seek out help in general. And I've had male and female clients well into the divorce that finally admit to me that their spouse had potentially punched holes in the walls, had threatened to suicide, or have, in fact, assaulted them in years gone by. And it took halfway through the divorce process for them to admit that to me. And those are some of the challenges, I would say, with. With my Clients, I think, kind of.
- [13:38]
Holly Draper
Going back to the anecdote you gave Shelley about not calling the police, I think, and tell me if you agree that's something we really need to teach our judges about or get out in testimony if we are in a hearing or a trial involving people in that situation. Because so often our tendency is, you know, if it was that bad, you would have called the police.
- [14:07]
Shelly Gupta Britsky
Absolutely, absolutely. I think it's our role as practitioners to be able to find the right tools from an advocacy perspective to be able to tell our client's story effectively. And sometimes that also means being able to educate the judge a little bit and being able to say, hey, judge, just take your, take your, take a second and put yourself in this person's shoes. Think about what their experiences have been and explain those answers. And so even though it seems kind of obvious, I think sometimes hitting on some of those things answers the big questions in the room and makes the fact finder take a step backwards and really look at it with a different lens.
- [14:45]
Holly Draper
So going back to the issue, we touched on a little bit of family members being involved in the divorce process more than we would probably like them to be, and more than, you know, in other types of cases involving other types of clients. How do you as an attorney deal with it when your client is very strongly wanting their parent or their sibling or somebody else to be actively involved in their divorce process?
- [15:18]
Yasmin Cuddy
I mean, I think that you, we as practitioners have to be willing to work with the family members, but we also have to be very clear and explain to the client the confidentiality issues and waiving the attorney client privilege if you're going to bring in your, your parent or sibling and how that might affect that third party's ability to testify in court later on. But I do see even my second and third generation South Asian clients coming in with their family members for consultations. So it's a prevalent part of the culture. And I think if I have that one on one conversation with my client or the potential new client, and then allow the family member or relative to come into the consultation. Shelly, I don't know if you have a different perspective on that.
- [16:06]
Shelly Gupta Britsky
Yeah, I mean, I think that is important. And I also think that it's important to set the ground rules, right, to remember that you're also the lawyer and you can try to meet, make accommodations to, to address the issue, but also you're the one who's in charge. So I often tell my clients in their initial consultation, you're welcome to bring someone with you, but We're. There's going to be a point where we're probably going to ask them to leave so that I can talk with you privately. And I often also bring family into other settings that could be helpful. So sometimes when we're doing some trial prep, sometimes when we're going through question and answer on things, sometimes when we're talking about what the things are that are going to happen at a hearing or at a mediation, it's sometimes helpful for those to be heard, not only by our client, who has a lot of pressure on them, but from some of the supporting cast so that they understand a little bit more about the perspective and they're not just getting a filtered narrative through what their family member is experiencing, which may not be exactly what we're saying and exactly how we're saying it.
- [17:05]
Yasmin Cuddy
And I will also say that I try to emphasize with the client, you can have your family support, but this is your decision. Ultimately, you are the one that's getting the divorce. You've got to make this decision even with or without your family support. And I try to highlight and emphasize that one on one with the client.
- [17:25]
Shelly Gupta Britsky
And Yasmine, I think that's really helpful because I think sometimes there is some cognitive dissonance where family wants one thing and a client wants another thing. And so being able to have that relationship as a client, hey, I know your family is looking out for you, and they love you and they care about you and they're coming at it from the right place. But I actually trust you to make this decision about your life and how you're going to move forward with this.
- [17:47]
Holly Draper
How often do you have family members coming into the mediation room with you?
- [17:54]
Shelly Gupta Britsky
So that often depends on the mediators we work with and what their rules are regarding that. Generally speaking, in Harris county, it is really dependent on the mediator themselves. I know that there's some mediators that feel like, hey, if they are external people who need. Who are the roadblocks to making decisions, let's get ahead of it and have access to them. Sometimes I have mediators who say, no, you guys got to get everybody's permission before you ask. And so, you know, if I have a client who asks me if they. If they can do that, I normally take a look at what our mediation materials say about what that mediator's preference is. And then I ask, I figure out if there's a way that we can work around it. If it means I gotta ask the other side, I don't have an issue with asking the other side, because ultimately, if that is something that helps my client feel more comfortable about reaching an agreement, that's a win for everybody. And also, I warn that person that they may get kicked out if they're being obstructionist, and I think that that's a fair thing, too. And so we really only. I mean, I guess maybe the best way to put it is we're just looking for positive vibes. So if it's someone that's going to offer positive vibes, then they're more than welcome to kind of come. But if it's someone who's not, then we kind of maybe have a way of putting the brakes on that.
- [19:08]
Yasmin Cuddy
And I would just chime in and say that I found more and more, like, if my client needs to have somebody come, usually the other side does, too. If it's. If it's. If both parties are South Asian and the mediator will be okay with that, or that that relative's available by phone or on standby. And as long as it's disclosed and the mediator's okay with it, and the other side's okay with it. I've had some successful mediations where the family members are involved.
- [19:36]
Holly Draper
Yeah. And I think it's important to understand the dynamics of your client and how they interact with their family and what kind of influence the family has to know this case may never settle if the family is not involved. And is it better to have them in the room, or is it better to have your client go out in the hallway and call them every break and be relaying incomplete information? But we also have those clients where it's like, this client is reasonable, but their family is not. And if the family is there, they are going to kill our ability to.
- [20:09]
Shelly Gupta Britsky
Get this done or spit it out of control. Right. And nobody wants that.
- [20:14]
Right.
- [20:15]
Holly Draper
So another issue to think about, and this really is probably something everybody should be thinking about for all different types of clients, not just South Asian. But, you know, with our standard possession holidays, they don't account for a lot of other holidays that different cultures celebrate. So when we are dealing specifically with South Asian clients, what are some religious or cultural holidays that we want on our radars to be sure those are at least talked about if not included in the order.
- [20:49]
Shelly Gupta Britsky
That's a great question. I think it's a good practice to always ask, regardless of your client's background, because there are folks of different religious backgrounds that may have different holidays. And South Asian community is not a monolith in the sense that there are a number of different religious backgrounds and cultural traditions based on where you live, where you grew up, what your parents did, what your grandparents did. And so with my South Asian clients, even I am learning something with every new client about the holidays and traditions and what's important to them and why. But I'm a Hindu, and Hindu holidays include generally the Valley, which is in the fall, but the date moves around a bit, and other religious pujas, which are holidays celebrating some of our gods and goddesses that are held annually, but the days vary based on the calendar. The other big Hindu holiday is generally Holi, which is in the spring. And that is a little bit of a celebration of teachers and learning and that type of thing. It's a family type of celebration. Yasmin, do you want to talk about some of the other holidays?
- [21:52]
Yasmin Cuddy
Sure. Yeah. There's two big holidays in Muslim culture, which are Eidol Adha, which is the holiday celebrating the end of the Hajj in Saudi Arabia, and Eidl Fitr, which is the end of. That is a major holiday marking the end of Ramadan, which is the 30 days of fasting. These are lunar calendar holidays, which can be kind of a little bit of a pain because they move constantly on the calendar every year. In addition, for Sikhs, I know there's Vaisakhi, which celebrates the founding of the Sikh community by the guru gobind singh in 1699. That's another important holiday. I think it's very important, as Shelley said, to talk to your clients, see which holidays are important, and then try to incorporate those into the schedule. I do see more and more mediators in Houston especially, that are knowledgeable and helpful and will remind me, hey, do you want to include some special holidays into the mediated settlement agreement? And I think that's fabulous.
- [22:54]
Shelly Gupta Britsky
Yeah. And also with that, there are also some cultural traditions that sometimes happen within our communities. I know that within the Hindu community, there are certain, when a baby is born, there are certain pujas and rituals that are done as well as when a child reaches the age of 6 months and a year. And so being able to be aware of those, if you have kids that are that young to kind of say, okay, how do we want to approach this with a co parenting model? Right. How do we want to make sure that we're going to do this collaboratively when parties may not be together anymore, but they're raising a child together, and kind of sometimes being silent on it isn't always the best approach.
- [23:33]
Holly Draper
This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law firm providing family law litigation in Collin, Denton and Dallas counties and appeals across Texas. The Draper firm has represented parents in cases before multiple courts of appeals and prevailed in the Texas Supreme Court in one of the biggest parental rights cases in Texas history. For more information, visit DraperFirm.com or call 469-715-6801.
- [24:03]
So both of you mentioned different holidays where the dates aren't always they're changing. So I think one thing to be really mindful of, if there's a holiday where the date fluctuates, what happens if it conflicts with a holiday that's a standard holiday. And what's, you know, does our order need language saying this holiday trumps that holiday? I don't know how often we would see those sort of conflicts, but it's something to be aware of with the dates moving around.
- [24:33]
Shelly Gupta Britsky
Absolutely. And it's indefinitely. There's always the possibility of conflict. I know that several years ago, the volley fell very close to Thanksgiving. Sometimes there are other holidays that overlap or Hollywood overlap with spring break. And so, yeah, we definitely need sometimes some language about what happens with these kind of cultural holidays that may conflict with the school calendar or school holidays. Holly. Also, one of the things that we sometimes include is whether or not some of these holidays are going to be observed on the actual day, as they are in India and Pakistan, or whether or not they're going to be observed on a weekend before or a weekend after. And sometimes, you know, kids will stay home because the holiday is significant and they're going to go to temple and going to pray. And so, you know, kind of addressing some, some of those things on the front end is helpful, too. I agree.
- [25:25]
Holly Draper
So one of the other topics that I think is important is to understand that there are some unique property issues that can come up in these cases. So we have a few different ones I wanted to go through. The first one specifically relates to jewelry. Tell me about that. Why is it unique? And what should attorneys know about this?
- [25:45]
Shelly Gupta Britsky
Yasmin, do you want to take a stab at kind of go in the overview on this?
- [25:49]
Yasmin Cuddy
Sure. Let me, let me. Yeah, let's start with the gold jewelry. And I, you know, I think Shelly and I have probably have little slightly different perspectives on that, too. Typically, in a South Asian wedding, there is a lot of gifting of gold jewelry, and it's not just a chain or a necklace. It's gold bangles, necklaces, earrings, gold coins of significant value. And some of the ways that I tackle this is first off, if it's kept in a safety deposit box or it's been put in a, you know, at the bank. We need to get an inventory of what that, what that jewelry is. And then I have to have a very long conversation with the client, whether they're the husband or the wife, explaining that if it was a gift given at the time of the wedding or even during the marriage, it's that per the. It's the person receiving the gifts, separate property, and it's theirs. And so we have to sort it out and decide if the jewelry was given to the bride or the groom or if it's something that was given to both and then needs to somehow be divided. And it's, it's very tricky. And, and the other thing I'll say on the gold jewelry is oftentimes at the end as a sign of goodwill. If there was a piece of jewelry that was given that was a, an heirloom, I will usually try to talk to my client about returning it back to the other side as a gesture of good faith. Sometimes it works, sometimes it doesn't. Shelley, I don't know if you kind of want to add to this.
- [27:15]
Shelly Gupta Britsky
Yeah, it is. You know, I think Yasmin and I laughed a little bit when we talked about when gold jewelry came up, because it is. Seems to be an issue in almost every single South Asian case that we've got where there's an issue about exchange of jewelry, if there's an issue about where the jewelry was kept. Oftentimes families, because it is a large amount of gold, will keep, will get a safety deposit box at a bank and keep a fair amount of jewelry there, and they will keep some jewelry at home, but they'll go back and forth and exchange it and change it out. It's also common that, like Gasmin said earlier that there may be a family box. So a box that doesn't just contain my family stuff, but can contains my brother's stuff and his wife's stuff and my dad's stuff and his wife's stuff. And so sometimes there can be some complexity about, well, what does everybody. What's the ownership of all this stuff? And there have been several times when I've been tasked as a young associate attorney to go down to the bank of America safety deposit box with my little video camera and my notepad to take photos and to make an inventory of what's there with the other opposing counsel. And so don't be afraid to take on kind of tasks like that to figure out what to do. There have also been cases where I've you know, had to retain a jewelry appraiser to be able to appraise jewelry. Within the South Asian community, the carrot of the gold jewelry is significantly important. And there's often a lot of 24 karat gold jewelry or 18 or 22 karat gold jewelry. And so it's important to have a professional take a look at that for evaluation purposes if necessary. The last thing is that it is often a challenge because, you know, sometimes jewelry goes missing or people say they want their gifts back. And so kind of really sticking to what is likely to happen in court. You know, the separate property community property rules are really helpful sometimes for us. But, you know, kind of going back and saying, okay, well, let's go through all these wedding pictures and see when you got these gifts and how they were given to you. Sometimes it ends up being what we need to do to figure it out.
- [29:15]
Holly Draper
Yeah, I've definitely seen issues where, you know, the parties have separated and one party says, I want back my gold coins or gold whatever, but they don't have a photo or they don't have an appraisal. And the other side says, I have no idea. I haven't seen that forever. I don't have it.
- [29:35]
Shelly Gupta Britsky
Yep.
- [29:35]
Holly Draper
So do you have any tips? What do you do in that situation?
- [29:39]
Shelly Gupta Britsky
So, I mean, in those types of situations, it's just like any other property. If it doesn't exist, if you can't prove that it existed, you have challenges. When I've had clients who've come in and met with me before they're planning on filing for divorce, one of the things I tell them is put together an inventory, go through the safety deposit box on your own and take pictures of what's there, make a video of what's there, make a list of what's there, ask your parents, you know, of what they gave you, what they've given in the past, what they had, and kind of getting some of that background before could be helpful because we know, right. Proving the existence of something that doesn't claim to exist anymore can be very challenging.
- [30:19]
Yasmin Cuddy
And I would say I've had clients come in for premarital agreements that are South Asian. And I actually tell them when you're getting ready for the wedding to maybe have your. If your parents are gifting you jewelry, maybe have a card that says, hey, you know, this is going to my daughter on her wedding. And it is the following items. And if you have receipts from purchases of the jewelry, save all that stuff and inventory it. You know, on the. On the eve of the wedding and just track all this stuff. And the receipts are really important. And if it's an heirloom, mark it down and make it clear who's been given what and you know what the reason is and somehow document it if possible.
- [30:58]
Holly Draper
Is it common that, you know, just if your average bystander was looking at the jewelry, they can't tell who it really might belong to? I mean, if you looked at my jewelry, you would know that diamond necklace is mine and it's not my husband's.
- [31:13]
Shelly Gupta Britsky
It's obvious.
- [31:15]
Yasmin Cuddy
I would say. No, it's not always obvious because gold necklaces, gold bangles and bracelets are often given to boys when they're babies or adults. It's passed down from generation to generation. And so it's not. Gold coins are also given too. And sometimes it's not totally clear if it's being gifted to the bride or the groom or both.
- [31:37]
Shelly Gupta Britsky
And also the other piece of it is that oftentimes when children come into the mix, you gift jewelry to kids, even though intuitively that sounds like the most silly idea in the world. But gold jewelry, 24 karat jewelry, is gifted to kids. And so, yeah, there's also some complexity with that as well.
- [31:56]
Holly Draper
Another issue that I've certainly seen in these types of cases is the parties, one or both of the parties having real estate in foreign countries. What do you do when that happens?
- [32:10]
Shelly Gupta Britsky
So I think the first thing is to advise your client that certainly there's a method of getting a judgment here in Texas that may be able to be domesticated in your home country, but there also may be a whole separate process on how to adjudicate ownership of that piece of property there. So just making them aware of the possible liability that would would attach. Right. That it is something that the court here has has jurisdiction under Texas courts to be able to confirm a separate property or award to one spouse as another, but registering that order may have limitations based on the home country. I know that there are certain Middle Eastern countries where it's difficult for women to potentially hold property without. And so you got to kind of think about those considerations as well, as well as with bank accounts. But oftentimes, luckily, India is an English speaking country. And so most of the documents are in English. And so there isn't a necessity for translation or certified translations. But if you are in a part of the country where there are the documents are not in English, then yes, you need to get certified translations of potential deed documents and government documents to show ownership history and to maybe confirm something as someone's separate property being owned prior to marriage or to be able to say, hey, this is actually not property that's in my name, it's in my dad's name, even though I've been using it, using this apartment every time we come to India for holiday.
- [33:34]
Yasmin Cuddy
And I would add on to that is what I often try to do is get the client to get me as much information about that foreign property, land, condo, house, house, closing documents, whatever they can find. And then I try to offset it. So I try to usually advocate for my client getting the stuff that's in the United States, in Texas, and letting the other party be awarded that foreign property or house or piece of land because it's obviously impossible for anything for Texas to enforce it. I'd rather try to get my client more of the property and things in Texas again to offset.
- [34:13]
Shelly Gupta Britsky
And that was a great strategy point. I would also say there are times when I've said, in dealing with cases where we've had, I've had clients that are not South Asian but are from Kenya saying, hey, there's certain Kenyan property that we're just going to let get adjudicated there. We recognize it may be part of the community estate, but we know that there's a separate adjudication process for ownership and we're going to let that play out in that court the way that it needs be to too.
- [34:38]
Holly Draper
I've had situations where with property in India where we were pretty confident that our divorce decree here was going to mean little to nothing, where they were going to be. And we sometimes we would handle that by saying we're going to not finalize this divorce until you take care of this piece of it. That can be easier said than done with the way a lot of judges now want to push cases through to the end used to be easier, but you know, maybe if you have that in an MSA or something like that, you can get the court to sort of hold off on finalizing your divorce while you sort out property issues in another country to make sure that it gets done before you get your divorce finalized.
- [35:24]
Shelly Gupta Britsky
Yeah, and there may be some creative ways to approach that with potentially, you know, using your MSA as a post op to say, hey, you're choosing a choice of laws to approach it in a particular way. And if that's not possible, then it gives a timeframe to be able to kind of come back and deal with it in Texas. I think there's also some other. And you know, maybe using, hey, once you get that action, it's it's, you know, confirmed and registered as a judgment here. Probably a couple of creative ways we could think about how to approach that too in the future.
- [35:53]
Yasmin Cuddy
I would agree.
- [35:55]
Holly Draper
So what about bank accounts in foreign countries?
- [35:59]
Shelly Gupta Britsky
Yeah, I mean, I think bank accounts and pensions are actually really interesting issues because a lot of foreign countries, you know, if you work for a certain number of years and you were a citizen, you are eligible for some sort of pension. And how to value those things as well as account for them can be very challenging. I think it really boils down to getting the documents and making sure that those documents are either in English or certified in English to be able to try to figure out how to approach valuing them. Obviously there have been times when I've used, you know, current exchange rates to determine, you know, what it is for the purposes of mediation today. But that's also another way of kind of, of doing a back of the napkin kind of approach, depending on the size of the asset.
- [36:41]
Yasmin Cuddy
And I would just chime in and say that really explaining to the client what the enforceability of some of this is going to be. So do you want to try to fight and get this foreign pension or bank account or do you maybe want to try to offset again with something in the US and let the other party just have it? So, and whose name is it? Who, whose name is it in? But over and over emphasizing, hey, this may not be enforceable, they may agree to it, we may have a decree, but you, you're. If they don't comply or we don't, we may not get anywhere with it.
- [37:12]
Holly Draper
So one of the other points that you all brought up was that there often is a lack of transparency financially in South Asian marriages. Can you speak to that a little bit?
- [37:25]
Yasmin Cuddy
Yes, there's two there. I mean, it comes across my desk in many, in two different ways. The first being maybe it's a long term marriage. The clients are actual immigrants from, from that, from their country. They're not second or third generation. And unfortunately, typically it is the earning spouse, which is usually the husband who has not shared any financial information with the stay at home mom wife, literally nothing. She may sign a tax return and never look at it, doesn't understand what the, what the document means is given a budget, given an allowance, doesn't have access to any of the bank accounts, retirement accounts, and it could be a high earning spouse with a large asset case and you're starting from scratch and you're having to propound discovery and explain all this to the client and then the Non earning spouse in Texas it's really hard. Like they're going to get half the estate and maybe they may or may not qualify for any kind of post divorce maintenance. Then I have second and third generation clients coming in that are professionals, grew up here and they seem to think that they keep everything separate. There's no joint bank accounts, they keep their retirement stuff, all their financial information separate. And somehow that means they're protected and don't understand the concept of community property in Texas and that it's all community property from the date of the marriage to the end of the divorce. And having to really be patient and empathetic and explaining all this can be challenging.
- [38:55]
Shelly Gupta Britsky
Yeah, I think that that is, is exactly right. I also think that there is some lack of financial transparency in terms of, you know, sometimes we do have two high wealth earners who are, who are coming to us for divorce and, and one has primarily paid all of the housing expenses, all of the day to day living expenses. The other one has not. And that other one who has not has no idea what those expenses look like or what the cost of the monthly mortgage amount is. And so it's not unusual even when folks have literacy in the area that they work in, that they're high wage earning professionals that may not have a lot of financial knowledge because they leave it to their spouse or they've trusted their spouse to be able to handle those things. And there is, even though they're truly independent individuals who are, are successful in their fields may not always have all the financial information that we would expect in other cases.
- [39:52]
Holly Draper
One last topic I wanted to touch on is Islamic marriage contracts. What are they? Are they enforceable? What can you tell us about that?
- [40:04]
Yasmin Cuddy
An Islamic marriage contract is a formal contract that you sign at the time of a Muslim marriage, which is called the nika ceremony. The issue with the Islamic marriage contract usually is around a term called maher which is typically stated in the contract and is a sum of money or an amount of gold that's agreed to be paid to the bride at the time of marriage. It is the bride's separate property. The problem is that most of the time the money is agreed to be paid in the future and it's due in owing upon a divorce. However, in my experience it cannot be enforced in family court in Texas and I'm going to explain that a little bit further. In theory, the maher could be enforceable in the Islamic marriage contract in Texas and family court if it actually met all the requirements under the Texas family code as a valid prenup or a post nuptial agreement. But I never see that the Islamic marriage contract usually doesn't meet those requirements. There's no financial disclosure, there's no evidence of any anybody having consulted a lawyer. And it doesn't meet those requirements under 4.002. So theoretically it could, but it usually doesn't. And unfortunately, I try to recommend young people that are getting married to just get the money up front. It is actually a religious component. It's part of the faith. It is something that is supposed to be honored and done. And unfortunately, if it's not paid up front, the brides usually, or the, the wife or the divorcing spouse is usually going to end up forfeiting it. And I also try to recommend sometimes maybe you can sue in civil court, but again, if that document doesn't meet, you know, the components of a contract and offer acceptance and consideration, they're not going to have any luck in civil court either. Shelley, I don't know if you have, like, more perspective on this.
- [41:58]
Shelly Gupta Britsky
Yeah. And I think that all of what Yasmin said is 100% correct. I think that also it's challenging because, you know, some of these expectations or expectations that people have walking into this marriage and this relationship and when that is kind of pulled out from under them, oftentimes clients really fixate on that and their families fixate on that because they spent a lot of time figuring that piece of it out. And to understand that that has no bearing in this divorce process is sometimes really hard to accept. And so I often find that clients come back to that issue and we have to kind of circle back a couple of times when, before it really sinks in. But what Yasmin is saying is completely correct. And oftentimes these contracts are not drafted by family law practitioners in the jurisdiction where the divorce may be happening, or even lawyers in general. And so they're often missing a lot of critical components that would affect the enforceability and specificity requirements for any layperson or legal professional to be able to say this is enforceable.
- [42:56]
Holly Draper
Do those contracts typically deal only with property issues? Or they also cover things like when you can and cannot get divorced or steps that you have to take from a religious perspective before you would get divorced or anything like that.
- [43:12]
Yasmin Cuddy
My experience is no. The, the, the, the actual contract is bare boned, just saying that X is marrying Y, and maybe there's a Maher agreement on what the bride's going to get at the time of the marriage or in the future. Shelley, I don't I don't have any experience with any details being in those contracts.
- [43:29]
Shelly Gupta Britsky
I have not had experience in those details being part of the contracts. But prenups are common in South Asian culture and sometimes folks will try to include some of those things in a prenup and that would be different and apart from this Islamic marriage contract that Yasba is talking about. But yes, oftentimes there's tons of unenforceable language regarding how, you know, the religion of how children are going to be raised and whether or not they're going to go to learn a third language, or whether or not people are going to live within a certain area of each other, or whether or not someone's going to be a sole managing conservator of the kids and not have any rights and any visitation. Things like that are often included in those types of prenups written by non lawyers from that perspective. And so sometimes clients walk in saying, oh, I have this prenup. Can we enforce it? And I'm like, this thing is not every public policy argument. Everything that you can't enforce based on public policy is included in this agreement. So there's no way. But yeah, so that's that. Those are sometimes some of the challenges we see there.
- [44:30]
Holly Draper
So we're just about out of time. But one question I always like to ask everyone, and Shelly answered this on the last podcast, so Yasmine, I'm going to direct it to you, is if you could give one piece of advice to young family lawyers, what would it be?
- [44:43]
Yasmin Cuddy
I think if you ever have clients from different cultures, it's really important to be empathetic, read up a little bit about the culture and try to connect with the client as much as possible and practice patience. I've had South Asian clients non suit their divorces $50,000 and six months to a year into it, you gotta be understanding that there's pressure to reconcile. And when you have unique situations like that happen, try to not be judgmental, try to be understanding of the culture and be patient. That's what I would advise any young practitioner out there dealing with these kinds of cases.
- [45:23]
Holly Draper
Shelly, do you have anything you want to add?
- [45:25]
Shelly Gupta Britsky
That is great advice. I would also say don't forget your tools as an advocate. Right. And that your job as an advocate in court, in mediation, in negotiation with the other side is to advocate for your position and to let someone see things from your client's perspective. So use the tools that you've got to understand your client's perspective and then be the best advocate you can be.
- [45:47]
Holly Draper
So where can our listeners go if they want to learn more about you too?
- [45:51]
Shelly Gupta Britsky
So I have my website which is www.sgblawtx.com or my office number 713-396-0251. I'm also on Facebook and on X and LinkedIn and my name is so unique that if you google me, everything's going to come up to me. So feel free to do that.
- [46:15]
Yasmin Cuddy
And you can find me at KGK Family Law. Our website is www.kgkfamilylaw.com. our number is 281-598-6520. I'm on LinkedIn, I'm on Facebook and I'm also on TikTok as Daisy Girl Attorney.
- [46:32]
Holly Draper
Perfect. Well, thank you both so much for joining us today. For our listeners, if you enjoyed this podcast, please take a second to leave us a review and subscribe so you can enjoy future episodes.
- [46:44]
The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.