Year: 2012

Keeping Your Divorce Private

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, August 27, 2012.

In divorce, we are all concerned with keeping our personal lives as private as possible. And, there are some new rules Florida courts have adopted which help to protect us from disclosing sensitive information to the public. However, one thing the new rules can’t protect you from is yourself.

Posting negative things on Facebook, emailing and texting insults, and making destructive comments about your ex-spouse, or soon to be ex-spouse, can impact your children in many ways. It can create anxiety and insecurity. It can raise their level of fear. It can make them question how much they can trust you and your opinions – or trust themselves. And it can add a level of unhappiness into their lives that they do not need.

I raise this because I see this a lot in my own practice, and a recent article I read said it in a way that may resonate with some:

The typical break-up thought process goes like this: You see your friends. You start blabbing. You complain over and over again. One of your friends finally tells you that you need to break up with the person. And you do. Then you go through the healing/complaining process, where you complain to your friends some more and they comfort you. They help you through the pain and you start feeling a lot better. Divorce is different.

To the normal blabbing I would add social media posts, emails and texts too. As the author of the article notes: Children are very sensitive – they can sense things; they can read between the lines. They read into emotions. We all have a responsibility to protect children from the trauma and emotions of the divorce process, and a good way to do that is to not “blab all over the place about how angry you are and how much you hate your ex.”

Grandparent Visitation

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, August 23, 2012.

It is tough sledding for grandparent child custody. On Monday Reuters reported:

Here’s a sad scenario: Grandma and Grandpa pay for camp, shoes and college funds. But something goes awry; the kids’ parents decide to split, and next thing you know it’s Grandma and Grandpa who are out in the cold, writing checks but missing their grandchildren.

Think that couldn’t happen? There are at least two trends that point to more of the above. Grandparents are helping their progeny more than ever; the AARP reported that a quarter spent more than a $1,000 a year on their grandkids, with 37 percent saying that they helped cover daily living costs.

Grandparents’ rights to see and spend time with their grandchildren has become more difficult to litigate since the Florida Supreme Court’s ruling in 1996, Beagle v. Beagle, which struck down a Florida Statute that allowed courts to order visitation rights for grandparents if they would be in the child’s “best interest.”

That is too bad, because grandparents help out a lot. Better yet, tax laws allow gifts of $13,500 a year from one individual to another before gift tax limits start to kick in. But be careful. Judges differ about how to evaluate regular financial gifts from grandparents. A judge could count regular gifts as part of a parent’s income, which can impact child support calculations and even alimony.

As the article goes on to note, parents can get greedy too.

“I’ve seen parents say ‘it’ll be a $1,000 a visit’ and I’ve had grandparents pay it,” says Bloomfield Hills, Michigan, family lawyer Richard Victor, founder of the Grandparents Rights Organization, which helps grandparents with visitation battles, among other problems.

“It’s emotional blackmail and will escalate if you give into it,” says Abramowitz, who advises clients to offer to pay for family therapy instead.

Is there a solution for grandparents? “You get more with sugar than you do with a cane,” says Atlanta family lawyer Randall Kessler, who chairs the American Bar Association Family Law Section. “Be nice to the person who has control, and that may include some financial support.”

Kessler also gets creative: When a mother objects to being parted from her children, he has suggested that grandparents invite the mother along on a family vacation as their guest, even with her current partner. “Usually they stay in a hotel down the road,” he says. More often, they turn down the offer but allow the visit.”

Gray Divorces

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, August 17, 2012.

While the overall divorce rate in the United States has decreased since 1990, it has doubled for those over age 50. The surge has spawned the term “gray divorce.” As Jay Lebow, a psychologist at the Family Institute at Northwestern University, says:

“If late-life divorce were a disease, it would be an epidemic.”

One out of three boomers will face older age unmarried, says Susan Brown, codirector of the National Center for Family & Marriage Research at Bowling Green State University in her new study The Gray Divorce Revolution.

By the time people are in their 50’s and older, issues of custody and child support may no longer be relevant. Instead, those issues are replaced with other challenges. Older people have had time to accumulate assets, one or both may be retired, and there are long term health care issues.

Many of those opting for gray divorces, however, fail to foresee its complications in today’s bleak economy. Here are some things to consider:

Valuing the Marital Estate – By the time a couple enters the golden years, they may have gold to divide, including businesses, retirement funds, and vacation homes. Valuing these assets can be difficult. The value of a business may not be apparent from balance sheets, and the sale or transfer of assets may have tax consequences. As a result, a financial advisor may be an important component in the divorce.

Medical Care – Health insurance is often tied to the employment of one spouse. With aging comes diminishing health, and declining cognitive ability. Courts may need to intervene if one party has dwindling capacity to handle their own affairs.

Long-Term Arrangements – Legal arrangements, such as wills and trusts, need to be reviewed to make sure they reflect post-divorce wishes. The same is true for long-term care, such as medical directives, living wills and trusts.

Retirement Plans – After 20 years of marriage, retirement plans can be substantial . . . and complex. Retirement plans vary in kind, and they all have different restrictions, tax consequences, distribution and vesting rules.

Lifestyle adjustment – Younger couples have time to re-accumulate wealth after divorce, but in Gray Divorces, the spouses have less time to re-establish themselves financially. One or both may be close to or in retirement, and face living on half of what they earmarked for retirement.

There are special interests involved when an older couples divorces. As always, information is power, so make a point to seek out experts for guidance.

Your Home’s Value and Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Tuesday, July 31, 2012.

Your house is usually one of the largest assets to divide in a divorce. That being said, there is good news and bad news about the value of one of your biggest assets.

First, USA Today reports some good news:

Data through May 2012, released today by S&P Dow Jones Indices for its S&P/Case-Shiller Home Price Indices, the leading measure of U.S. home prices, showed that average home prices increased by 2.2% in May over April for both the 10- and 20-City Composites.

This increase was better than the consensus forecast, and hopefully prices will turn positive year-over-year in June. Tampa and Miami are each up about 3% in the last year.

The bad news is that housing prices have dropped about 35% from their peak, and forecasts say housing prices will be close to flat this year and next, with mid-single-digit nationwide gains emerging by mid-decade.

In 2008, the Florida Constitution was amended to allow homeowners to keep a portion of their tax assessment differential after their home is sold. Because many homes in Florida are in negative equity, clients often overlook the hidden tax advantages their homestead can provide during and after a divorce.

I wrote an article in the Florida Bar Journal examining the equitable distribution of the tax assessment differential in divorce, and how the Constitutional Amendment impacts non-married couples selling their homestead after a breakup. I have lectured, and continue to receive calls about the impact of this constitutional change from clients and attorneys alike. Hopefully the article will give something to think about.

Occupation as a Predictor of Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, July 30, 2012.

If you marry your favorite massage therapist, are you more likely to divorce than if you’d picked a matrimonial lawyer?

That is the question answered in a study published in the Journal of Police and Criminal Psychology.

It is a common belief that the divorce rate for police officers is higher than that of the general population. This belief is commonly held in spite of the fact that there is no empirical research supporting such a belief. To compare the divorce rate of law enforcement personnel with the rates for other occupations, we analyzed data from the 2000 U.S. Census. The results of this analysis indicate that the divorce rate for law enforcement personnel is lower than that of the general population, even after controlling for demographic and other job-related variables.

The numbers don’t paint the whole picture. If a person divorced and remarried by the time of the Census, they would be counted as married. So it could be that spouses in some jobs are just quicker to jump into the next marriage than others. Also, the data don’t reveal whether it’s the nature of the jobs that lead to divorce, or if people prone to unstable relationships are drawn to certain professions.

So, here are five jobs with the highest relative divorce rates:

1. Massage therapists

2. Bartenders

3. Dancers and choreographers

4. Health diagnosing and treating practitioners

5. Physicians and surgeons

And, here are five jobs with some of the lowest relative divorce rates:

1. Media and communication equipment workers

2. Agricultural engineers

3. Directors, religious activities and education

4. Transit and railroad police

5. Clergy

Do I Need Divorce Therapy?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Saturday, July 28, 2012.

Negotiating child custody, support, and the division of assets is strongly tied to emotions, and if your head is not in the game – because you are still overcome by swirling emotions – your attempts at settlement may fail. I see this happen frequently: a client, or their spouse, cannot make a rational decision because their anger, sadness or suspicion is too much to overcome. When that happens, the only alternative is to go to court.

You may have heard that therapy can help couples save a marriage. But, did you know more and more people are relying on therapists to help guide them through the grueling process of a divorce? I suggest to clients early on in my representation to seek out a good therapist to help them through the divorce process. They can help you overcome your emotions, as well as create timesharing schedules and more.

I remember reading about Elana Katz, the director of the Family and Divorce Mediation Program at the Ackerman Institute for the Family, in a New York Times article.

We used mediation, so we did not go through the adversarial nightmare and did a lot that set up a structure that was going to make us both highly involved parents. There was not going to be winner-take-all.

Katz discussed how therapy helped her through her own divorce. Let’s face it, if professionals in the business know to hire a good therapist, shouldn’t you? It is important for couples to find post-divorce parenting roles and be able to predict finances. Having a professional therapist go through each stage of the process carefully can help you develop new relationships, and understand future goals.

Are Breast Implants Marital Property?

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Wednesday, July 25, 2012.

Division of property, the dividing up of marital assets and debts, can be big problems in a divorce. Often, attorneys bring complicated business valuations and other complex assets to a court for decision . . . but not always.

What about the value of breast augmentation surgery – paid for with marital funds – can they be considered a marital asset subject to division?

The Florida Supreme Court has never really tackled this giant issue, but other states have. So, are a wife’s breast implants really marital assets subject to be equitably divided in by a court? Well wait no longer, the North Dakota Supreme Court has finally ruled on the issue for all of us, and you can read the decision yourself:

“Do we have any lines to be drawn? Is dental work a marital asset? Is a hip replacement a marital asset?” Justice Daniel Crothers asked attorney Christina Sambor during Supreme Court arguments on Thursday.

Citing cases from Hawaii, Delaware and Kentucky, Erik Isaacson invites us to hold that breast implants are a marital asset, the value of which are subject to distribution in the division of the marital estate. We decline . . .

Luckily for Mrs. Isaacson, she was saved from a very painful distribution. Was Isaacson v. Isaacson the most important decision in matrimonial law ever? Hardly, but equitable distribution does raise a number of interesting questions. Statutory factors, such as when the assets were acquired, or when the debts were incurred, and the reasonable necessity of acquiring and incurring them can all come into play.

Katie Homes & Tom Cruise: Can Court’s Choose a Child’s Religion?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Support on Wednesday, July 18, 2012.

Child custody cases always raise interesting issues. One of the questions in the Katie Holmes and Tom Cruise divorce is what religion will the child be raised in after the divorce. Tom Cruise is a Scientologist, and Katie Holmes is reportedly a Catholic. TomKat are not alone, about 27% of Americans were in interfaith marriages according to the Religious Landscape Survey by the Pew Forum on Religion & Public Life.

Happily for them – but not so much for the media – Katie Holmes and Tom Cruise have reached a settlement in their divorce. But, when divorcing parents can’t agree about religion, can it be a factor in a custody case?

Whenever a court decides custody, the sine qua non is the best interests of the child. But, deciding the religious upbringing of a child puts the court in a tough position. There is nothing in our custody statute allowing a court to consider religion as a factor in custody, and a court’s choosing one parent’s religious beliefs over another’s, probably violates the Constitution. So, unless there is actual harm being done to the child by the religious upbringing, it would seem that deciding the child’s faith is out of bounds for a judge.

Ironically, that may not be the rule all over Florida. Different appellate courts in Florida have slightly different takes on the issue, and the question of whether a trial court can consider a parent’s religious beliefs as a factor in determining custody has been allowed. For this reason, it is best to speak to an attorney experienced in child custody matters.

Separations and Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Sunday, July 15, 2012.

Equitable distribution, the dividing up of marital property, should be done equally. But there are reasons for a court to treat assets differently. One reason is a lengthy separation. A new study shows that about 79% of married couples who separate, end up getting divorced.

“Separation is very common and is more common than immediate divorce,” said researcher Dmitry Tumin of Ohio State University at a presentation at the annual meeting of the Population Association of America, which ended Sunday. “Most separations last one year or less, but a few drag on a decade or more before ending in divorce. Other separations stay unresolved.”

Lengthy separations can have a significant impact on equitable distribution, and for good reasons. In separations which last several years, your house or business may have appreciated in value significantly (or depreciated) or you may have accumulated stock and other assets. While the general rule is that marital property should be distributed equally, trial courts can consider various factors to distribute properties differently.

Dividing marital property seems simple enough, just divide by two! However, the more knowledgeable you become, the better prepared you will be to resolve your case fairly and amicably. For this, and other reasons, it is always recommended to consult with an experienced, board certified attorney in these matters.

The Tom Cruise Divorce: Why Did Katie File In New York?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Saturday, July 14, 2012.

The state of filing can have a big impact on the outcome of your divorce. Many people don’t have a choice. But if one party moves to another state, there may be a choice as to where to file.

Is one state better than another? Child support awards in California are typically higher than Florida, and Texas is rumored to be tough on alimony. Last year Bloomberg ranked all 50 states on the ease of divorce. You can read the ranking in: The Best and Worst States for Getting Divorced.

Which brings me back to the Tom Cruise divorce. Katie could have filed in New York or California, assuming she satisfied either state’s residency requirements. So, why New York over California?

I don’t think the reason has to do with the grounds for divorce, or any economic advantage. After all, New York and California, like Florida, are no-fault states, and Tom and Katie are believed to have a prenuptial agreement anyway.

I suspect one of the reasons is privacy. Unlike California or Florida, divorce filings in New York are not open to the public, so only the parties and their attorneys have access to documents filed with the court.

In an effort to protect the privacy of parties to a divorce, and prevent identity theft, Florida recently adopted a confidentiality rule to better protect social security and bank account numbers for instance. But Florida court filings are not private. Privacy – and confidentiality of court filings – are easily overlooked issues when filing for divorce, and something you should be aware of in deciding in which state to file.