Month: July 2013

Dogs, Cats and Hamsters: Who Gets Custody of the Pet?

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, July 29, 2013.

Imagine you’ve been married for 12 years, but you don’t have children. During your marriage a child custody chocolate Labrador retriever named “Brownie” has been your close friend, guardian and constant companion – especially since your relationship with your spouse has soured.

The problem is your soon-to-be husband or wife feels the same way about Brownie.

So, who does a judge award Brownie to? Can a judge order a timesharing schedule? Any visits at all?

Clients often come to me with their concerns about pets in the divorce. In other common law countries, such as the UK, Australia, Canada and New Zealand, we share a similar family law and love of pets.

According to a recent report, pets are increasingly being raised as an issue in separation:

Nearly one in 10 Australians have lost possession of a pet in a relationship breakdown.

About 15 per cent in one Australian survey participants wrongly believed the Family Court would make shared-custody arrangements for their pets.

“Particularly in childless marriages, the animals are really important and people find it difficult to understand why the court can’t deal with the emotional attachment.”

“The pets represent the family,” she said. “They’ve had animals that have replaced the child they couldn’t have.”

“You’re talking about really strong emotional bonds that get formed over time and so it’s not just ‘You keep the lounge room furniture and I’ll keep the bed’,” he said.

Your pet dog Brownie may be considered a member of the family, but under Florida law, Brownie is merely chattel – personal property to be divided in divorce. And a judge lacks authority to grant custody or award visitation or a timesharing schedule to personal property.

Not all states have ruled out a visitation schedule for dogs. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

Florida doesn’t because Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children, that courts cannot undertake the same responsibility as to animals.

Father Reproductive Rights

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On behalf of Ronald H. Kauffman, P.A. posted in Paternity on Friday, July 26, 2013.

The Supreme Court’s recent DOMA decision – about the fairness in treating homosexual marriages equally under the law – got me thinking: do Fathers have equal reproductive rights?

If a woman conceives a child with a man, and she does not want to raise the child, she really doesn’t have to. And, there is nothing a man can do about it, even if he really wanted to be a father. The choice is the woman’s alone.

Women have access to contraception, abortion services, foster care services and adoptive parents. If a woman wanted not to be a mother after becoming pregnant, she can choose not be a mother at any time she wants. Even over the strong objections of the father.

This is true even after the birth of the child. Many Florida cities have a Safe Haven for Newborns program allowing mothers to leave a newborn at certain hospitals and fire stations with no questions asked.

But if a woman has a child – either accidentally or without the father’s knowledge – and the father never wanted a child, he is out of luck. Sure, he can suggest an abortion, but if the mother wants to raise the child, he will be stuck with years of child support payments.

Do men now have less reproductive autonomy than women? Should men have more control over when and how they become parents, as women do?

The New York Times recently ran an editorial about this issue:

“if women’s partial responsibility for pregnancy does not obligate them to support a fetus, then men’s partial responsibility for pregnancy does not obligate them to support a resulting child.” At most, according to Brake, men should be responsible for helping with the medical expenses and other costs of a pregnancy for which they are partly responsible.

If a woman decides to give birth to a child without getting the biological father’s consent to raise a child with her, should he be forced into legal paternity?

Not allowing reproductive rights for fathers, and forcing child custody, could lead to disestablishment cases which are not in the best interest of the child. Biological fathers may also be use violence or threats when child support orders are enforced against them, or maybe abandon the child.

There is some wiggle room. In Florida we have a disestablishment of paternity statute which men can use after they break up with the mother. However, it generally requires newly discovered evidence that the father is not the biological father of the child.

When men and women have an unplanned pregnancy, men find that the law is stacked up against them. This unequal treatment under the law may be a matter that needs to be corrected. Is it time for men’s reproductive rights?

Stay or Move Out of Home During Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Friday, July 19, 2013.

Many clients going through divorce are unsure if they should stay in the marital home, or move out. Does staying help you? Does leaving mean that you are giving up your rights? Will it be harder to enter an agreement?

The marital home is many things. First, it’s a valuable asset, maybe your most valuable asset – assuming your house isn’t underwater. Second, the home is a place for you to live in . . . with your children if you have them. Third it is an important, and possibly big part, of the final settlement.

Marital Asset

The home remains a marital asset, which is subject to equitable distribution, regardless of who lives there during the divorce process. If a home is marital then both parties have equal rights to buy – out the other’s share. Both may also be on the hook for liabilities.

Children’s Issues

Until a parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life. Moving out can also create the appearance of a new ‘primary parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Settlement

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty, and may be less inclined to settle.

Also, the person leaving may still have to pay for the home’s expenses while also paying for a second place. It can be costly to maintain two households, and prohibitive expensive when you know that the process will take a long time.

If you are going to leave, you should consider the following before moving:

  • There should be some discussions about maintaining the home.
  • Decide who is paying for which expenses.
  • Inventory the personal property, things like artwork, LP records, clothes, tools, silverware etc.
  • Create boundaries for when the ‘out-spouse’ can use and enjoy the home after leaving it. Create a schedule everyone can agree to.

Is the Marriage Rate Increasing or Decreasing?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, July 9, 2013.

You can’t have a divorce without marriage. So it is interesting to see what the marriage trends are. In the United States, the marriage rate is at a low point.

Worse, the number of marriages across the U.S. fell more than 5% during the recession. But a new analysis projects that pent-up demand and the large population of marriage-eligible couples, means the marriage rate may start to increase. The article can be read in USA Today.

Projections from the private company Demographic Intelligence of Charlottesville, Va., says a 4% increase in the number of weddings since 2009 is predicted depending on the economic recovery. They also expect this trend to continue through 2015.

A closer inspection of the marriage rate reveals that it differs among socio-economic groups and by education levels. Rates decline among those with a high school education or less, younger Americans, and the less affluent. However, among women ages 25-34, the college-educated and the affluent, the numbers are increasing.

“Declines in weddings are likely to set in towards the end of the decade, even though the number of young adults is increasing, because of the nation’s ongoing retreat from marriage,” the report notes.

From 2007 to 2009, the number of marriages each year fell The new forecast predicts the marriage rate to remain at the record low of 6.8 marriages per 1,000 population for 2013 (where it’s been since 2009).

This projected increase in weddings may mark a turnaround, but it’s not going to boost the low marriage rate, experts say.

New Florida Evidence Rule 702 Can Impact Your Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, July 3, 2013.

Divorce law in Florida is becoming so complicated, that the use of expert witnesses – like accountants, vocational experts, and psychologists – are becoming very common to determine values, need and ability and parenting issues.

The Florida rule for experts is Rule 702 of the evidence code, and it was just amended. In fact, it is so new that it just became effective on July 1st. There are some interesting things about the new rule.

1. The amendment was made by the Florida Legislature, not the Florida Supreme Court. That’s unusual because rule making authority is the court’s job.

2. The way the the Rule came into being by the Legislature could create a constitutional challenge to the rule down the road.

3. The new rule forces Florida courts to abandon the Frye test for admitting expert testimony, a test we’ve used for around 70 years.

4. The new rule requires Floirda courts to apply the standard developed by the U.S. Supreme Court in Daubert; something the Florida Supreme Court has said it doesn’t want to do.

5. The Frye test was a very lenient test, especially as applied here in Florida. In Florida, Frye allowed in all expert testimony – even some “junk science” opinions – as long as they were generally accepted standards.

6. The new (for Florida) Daubert rules, require judges to act as gatekeepers, and focus on an experts qualifications, the relevance of the testimony and the reliability of the testimony using a multi-factor test.

7. The rule change will require state judges to become familiar with the new evidentiary test, and even brush up on the scientific method.

8. For family lawyers, the Daubert test offers an opportunity to challenge the qualifications, relevancy and reliability of experts which we never had before.

9. The change will also force expert witnesses to stay on top of their professional literature, and be able to defend their choice of methods, tests or evaluation techniques.

The Florida Legislature seems to be on a mission to re-write family law, trying to pass alimony reform, change equitable distribution, and modify Rules 702 and 704. Big changes have occurred, and clients need to discuss with their family attorneys about any new issues and strategies to consider.

Gay Marriage after DOMA

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On behalf of Ronald H. Kauffman, P.A. posted in Marriage on Monday, July 1, 2013.

In case you didn’t hear the news, the Supreme Court last week ruled that married same-sex couples were entitled to the same federal benefits as same-sex couples and, by declining to decide a case from California, effectively allowed same-sex marriages there.

The rulings leave in place laws banning same-sex marriage around the nation, and the court did not say there was a constitutional right to same-sex marriage.

So, the effects are probably limited to couples married in the 12 states (and California) that recognize gay marriage. But the number of states recognizing gay marriage is likely to grow.

The majority opinion did something unusual, it stated that laws based on “animus” against gays and lesbians are unconstitutional:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. …The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.

This is a different analysis when the Supreme Court strikes down discriminatory laws. Specifically, the Court did not recognize “homosexual relations” as a “fundamental right,” or homosexuals as a suspect class. If the Supreme Court had done that, the Windsor case would have been a “fifty-state solution”, mandating same-sex marriage in every state. But it didn’t.

In Windsor however, the Court used state marriage laws to identify an individual’s liberty interest that justifies subjecting a federal law to heightened scrutiny. This is not how the doctrine has been done in the past.

Because of the Court’s striking down DOMA this way, states are free to define marriage as they wish – subject to Equal Protection and Due Process clause restraints – and the fight over “gay marriage” will continue in the states for years, as other litigation winds its way back to the Court.

You can read more about the two gay marriage rulings in the New York Times here.