Musk custody case shows downsides of ‘forum shopping’ | Alphonse Provinziano

By Alphonse Provinziano ·

Law360 Canada (December 21, 2023, 9:41 AM EST) --
Alphonse Provinziano
Alphonse Provinziano
For most people, getting divorced is already stressful. Moving to a new state — or even a new country — just to gain an advantage in their divorce would be too much.

But for many wealthy individuals, the stakes are high enough that it’s worth it.

That appears to be what happened in the child custody case between billionaire entrepreneur Elon Musk and Canadian musician Grimes, who have three children together.

Musk’s lawyers are arguing in court that the case should be settled under Texas law, while Grimes’ lawyers are making the case that California should have jurisdiction.

That’s not uncommon when two people live in different states. But in this case, Musk’s lawyers are also arguing that Grimes only moved to California to get an advantage in the case, a tactic that is known as “forum shopping.”

If she did, she got pretty good advice. By my calculations, the baseline child support payments for a man of Musk’s immense wealth in California would be hundreds of millions of dollars a month, while the standard in Texas would be below the poverty line.

But Musk’s lawyers may win this round, as there’s a lot of evidence that Texas should have jurisdiction over the case. Both sides will have every incentive to appeal this as high as they can, so the case may not be over for a while.

There is ample evidence that Grimes is forum shopping to gain an advantage, since she could potentially receive in excess of US$702 million a month in child support, assuming that Musk’s monthly income is US$8 billion a month. It’s a clear incentive for her to forum shop.

If she were forum shopping, Grimes had another option, but it may not have worked out any better than moving to California will.

Born in Vancouver, Grimes is a Canadian citizen and could have moved back to her native country and made her legal case in Canada.

As a lawyer for high net-worth individuals in the Los Angeles area, I’ve handled a number of cases involving couples who live in different countries.

Although it’s typically not done as forum shopping — more often than not, they’re just wealthy people who are from different countries — these cases can face a number of logistical problems.

First, even if you do file legal paperwork in another country, U.S. courts may move ahead with their own legal case anyway, especially if they think the American citizen in the case may face substantial hardships if forced to go abroad to fight the case.

There are times when a foreign filing takes precedence, but those generally involve cases where the couple was living together in the other country, most of the evidence is from their time in that country or there are substantial documents in a foreign language in that country.

None of those would have helped Grimes.

But the real problem for a cross-border family law fight is not at the beginning, but at the end.

U.S. courts are very protective of the rights of American citizens. As a result, they tend to view a foreign judgment very skeptically to ensure that a court in another country is not violating their due process rights.

So, while a Canadian citizen may be able to persuade a Canadian court to take up a case and even win, the American in the case can simply respond that the Canadian court does not have any claim on them if they never lived in Canada or had assets there.

The legal win, then, becomes something of a Pyrrhic victory, as the other party won’t be able to force their former spouse to make any kind of child support payment or divide up assets, and U.S. courts — and therefore U.S. banks and law enforcement — won’t be any help, either.

For Grimes, California was probably a better choice than Canada if she was forum shopping, but it still may not be enough.

Alphonse Provinziano is a divorce and family law attorney based in Los Angeles and the founder and principal of Provinziano & Associates. He is highly sought after for his experience handling family matters with celebrities and high net-worth individuals and in high-stakes divorces. A certified family law specialist by the State Bar of California, Provinziano is a member of the CLA Family Law Executive Committee, where he currently serves as the secretary/treasurer. To learn more, visit: https://provinziano.com/top-family-attorneys and https://provinziano.com/international-child-custody-attorney/.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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