Month: August 2013

Same Sex Marriages Now Recognized in Florida . . . sorta

On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, August 30, 2013.

Florida doesn’t mince words when it comes to same sex divorce:

Marriages between persons of the same sex entered into in any jurisdiction . . . are not recognized . . . in this state.

With Florida Statute 741.212 written so clearly, you’d think there would be absolutely no recognition of same sex marriages in Florida. But you’d be wrong.

Yesterday, the IRS made a very important announcement that actually gives some recognition to same sex marriages – even though the taxpayer lives in Florida:

The U.S. Department of the Treasury and the Internal Revenue Service ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.

Under the ruling, same sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes.

The ruling applies to all federal tax provisions where marriage is a factor, including:

  • Filing status on tax returns
  • Claiming personal and dependency exemptions
  • Taking the standard deduction
  • Employee benefits
  • IRA contributions, and
  • Claiming the earned income tax credit or child tax credit.

Essentially, the IRS is giving recognition to taxpayers in same sex marriages, even though the taxpayers live in Florida.

Granted, it’s not the State of Florida recognizing same sex marriages per se, but it is recognition of same sex married in Florida. Given the fight waged over the years for any recognition, that’s nothing to sneeze at.

Without any explanation, the IRS ruling does not apply to registered domestic partnerships, civil unions, or similar formal relationships recognized under state law.

For tax buffs out there, this may be a slight policy change. The IRS used to look at the law of the state of domicile, and now looks at the law of the state where the marriage took place.

With the IRS’s new announcement – that it will recognize all same-sex marriages valid in the state where the marriage took place, instead of the place where the taxpayer is living – the IRS is taking serious the Supreme Court’s recent ruling in the DOMA case.

What Can You Learn from Rupert Murdoch’s Divorce?

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, August 29, 2013.

What interests me about divorce law is that it impacts all parts of society. It affects the rich, the middle class, the poor alike . . . pretty much everyone.

Rupert Murdoch, owner of News Corp and a billionaire, is going through his own divorce with wife Wendi Deng. No doubt before he married Wendi, Rupert had excellent advice. What can you learn from a billionaire’s experience that could help you through your own divorce, or perhaps save your marriage?

The New York Times recently ran a story and I thought it had some good lessons:

Agreements

The Murdochs not only signed a prenuptial agreement before they got married, but after their marriage they signed two additional postnuptial agreements delineating the separation of assets in the event of a divorce.

Agreements make the separation of assets cleaner. They do more than divide assets though, they can spell out each person’s obligations during the marriage, things like who pays for which expenses.

But if there is only one prenuptial agreement, it could be so old it’s useless. Also, prenups can be challenged. Prenuptial agreements are routinely enforced in Florida, and you are allowed to make a bad deal.

Dividing Assets

Dividing assets between spouses is not as simple as deciding to split it 50-50 – even with agreements. Very often assets have appreciated over the course of several years.

When property appreciates, you need to distinguish between passive and active appreciation. A passive asset could be an investment account which is never traded.

A business, on the other hand, is an active investment, and the percentage a spouse is entitled to may depend on different things.

Even with the most sophisticated couples, such as the Murdochs, unless you clairvoyant, issues will arise that no one considered in earlier agreements, and are prime for negotiation.

Children

The care of any young child is the primary concern of the courts. The Murdochs are rumored to have some custody arrangements and child support for their daughters.

Custody arrangements and child support are rarely part of prenuptial agreements, and are often used by the less-moneyed spouse as leverage in negotiations – a practice sometimes called “linkage”.

Florida has child support guidelines which mandate what the minimum support for children should be. The basic child support payment does not include private school and extracurricular activities, which can be more than the child support.

When it comes to agreeing on what people believe is their rightful share, think of it this way: If you’re 10 percent apart, you’ll settle. If you’re 20 percent, there’s a chance. But if you’re 50 or 75 percent away, you’re going to war.” Knowing this, the Murdochs time and expense in signing agreements will help them avoid trial.

Relocations with a child from the Judge’s Perspective

On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Monday, August 26, 2013.

Have you ever wondered what the judge deciding your divorce case thinks?

Relocation is your right to move away from another parent with the children more than 50 miles for more than 60 days.

The Family Law Section Commentator magazine contains useful articles written by lawyers, judges and professionals. I currently serve as chair of the Commentator, and in winter’s issue, Judge Daniel H. Sleet and Jason Rice wrote an excellent article on relocation cases . . . from the judge’s point of view.

Judge Sleet is currently serving as an appellate judge on Florida’s Second District Court of Appeals, and Jason M. Rice is his Staff Attorney. Although the article is written for lawyers and professionals, anyone interested in relocation cases would benefit from reading this brief article.

So, what did Judge Sleet think was the “perfect hearing”? Consider some of the things that judge thought he needed to hear about in order to determine the best interest of the child:

A guardian ad litem or parenting coordinator to assess each parent’s relationship with the minor child, and their respective home environments.

A child psychologist or other professional to conduct individual and family counseling with the parents and child in order to form a professional opinion about the appropriateness of a proposed relocation.

Teachers from the present and prospective schools to testify about the child’s ability to transition to a new school.

Evidence of substance abuse, domestic violence, violation of timesharing agreements, lack of involvement with the child, and unpaid child support.

If you are involved in a relocation case, consider the judge’s perspective, and what evidence you can come up with to prove that moving away is in the child’s best interest, or that it is not.

Postnuptial Agreements: The Agreement for Couples Already Married

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Thursday, August 22, 2013.

What is a postnuptial property division, and why have one? Some people say “take money out of the equation, and a lot of marriages would not end in divorce.”

That’s why many people sign prenuptial agreements before they marry. Because money problems are at the root of a lot of divorces, more and more couples are signing postnuptial agreements.

Postnuptial agreements are similar to prenups, except they are for married couples. Postnups are prepared after the marriage, and state what your rights and obligations are if you divorce or die.

As USA Today reports, postnups are on the rise across the country:

Postnup agreements can cover everything from how to divide financial assets in divorce to limits on partners’ weight gain, just as prenups can.

And in a survey of divorce lawyers by the American Academy of Matrimonial Lawyers, 51% saw an increase in postnups.

Now that the Supreme Court has struck down the Defense of Marriage Act, or DOMA, experts say more postnups could be in the offing.

It’s not because newly married same-sex couples’ unions are likely to suddenly founder. On the contrary: They will need to re-allocate some of their property now that they can tie the knot.

“You can anticipate that couples are going to want to address property rights in a postnup for property that otherwise would have been deemed separate, because they acquired it before the marriage,” she said. “Many couples will want to give recognition to those assets and put them in the marital estate.”

After the Supreme Court’s DOMA decision, spouses who have the benefits may want to protect them, and couples who rushed to get married after the DOMA decision, and who did not want to delay their weddings by negotiating a prenup, are rushing to get postnups.

There are some good reasons for a postnup:

  • You ran out of time to hire an attorney to prepare a prenup;
  • You want¬†to give your marriage a last-ditch effort by working out the financial problems;
  • Asset protection – when you receive a large gift or inheritance;
  • You have done something you feel guilty about, and want to make concessions to save your marriage;
  • You want a say in how to distribute your assets before you die;
  • You want to define both spouses’ obligations during the marriage – who pays for what, or do you file taxes jointly or separately?

In 2007, Florida adopted the Uniform Premarital Agreement Act to establish some uniformity in agreements and hopefully reduce litigation. Whatever your reason for a postnup, relationship planning can save you a lot of money down the road.

Same Sex Divorce in Florida

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Monday, August 19, 2013.

Same sex couples can marry, but can they divorce? If so, how? These are interesting questions divorce attorneys are asking.

For Ft. Lauderdale resident Adam Cardinal, this is not an academic question, he’s stuck. He traveled to New Hampshire to get married, where same-sex marriages are legal. About 3 years later, the couple separated.

Gay marriage is legal in New Hampshire, but does not exist in Florida. Florida does not recognize gay marriages which are legal in other states.

He can’t travel back to New Hampshire either. New Hampshire, like Florida, has a residency requirement in the state before being able to file for divorce.

As the New York Times reports, it’s even worse:

Mr. Cardinal cannot remarry – to do so would make him a bigamist in states like Massachusetts or New York that recognize his previous nuptials. And although he and his husband did not combine their assets, the lack of an official document certifying the end of their marriage carries financial risks.

“I didn’t realize this could potentially be an issue, that we couldn’t divorce when we wanted to,” Mr. Cardinal said. “That was really upsetting.”

The DOMA decision by the U.S. Supreme Court, was a victory for gay couples, and may offer hope to people who are caught in legal divorce limbo.

Like newlyweds everywhere, same sex couples give little thought to divorcing.

“You think, ‘This is perfect, this is great, I never have to worry about anything,’ and it’s only in retrospect that you sit back and say, ‘I shouldn’t have done that,’ ” said a woman who lives in Florida but married in Connecticut. She insisted on anonymity because she did not want to jeopardize her chances of eventually obtaining a divorce.

Even if your state recognizes same-sex marriages, divorcing can be more complex than for heterosexual couples. Consider the scenario where a same sex couple has lived together for 20 years, but only got married last month.

Marital Property

In Florida, a marital asset is generally one acquired after marriage. During 20 years of living together and acquiring property, even if Florida recognized same sex divorces, would not likely be marital assets here.

Spousal Support

Suppose a couple held themselves out as married, and would have marriedhad it been legal. Is it fair to limit the length of the marriage for purposes of awarding alimony to a few months because the 20 years illegal marriage can’t be recognized?

Many questions need to be answered, and the law has not caught up to the changes in our society. We have legalized gay marriages, but have not given as much thought to same sex divorce.

Changing Your Child’s Name

On behalf of Ronald H. Kauffman, P.A. posted in Name Changes on Thursday, August 15, 2013.

In divorce it is very common to change names. Changing an adult’s name is easy. But, changing the name of a child is a whole different ballgame.

Courts are not as free to change a child’s name as they are an adult’s name. A judge will only change a child’s name when the change is required for the welfare of the child.

Consider this odd case out of Tennessee – courtesy of the Volokh Conspiracy – in which a judge didn’t like the name “Messiah” for a child:

The parents came before the court because of a dispute over what the child’s last name should be, but the judge changed the child’s first name as well, giving two reasons:

“The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ,” Judge Ballew said….

According to Judge Ballew, it is the first time she has ordered a first name change. She said the decision is best for the child, especially while growing up in a county with a large Christian population.

“It could put him at odds with a lot of people and at this point he has had no choice in what his name is,” Judge Ballew said.

In Florida, changing the name of a minor is serious business, and you can only do it if the change is required for the welfare of the child.

If you fail to show evidence that the name change would be in the best interest of the child, your name change will be denied.

There is a Florida statute with a few rules:

Mother not married at the time of birth – The parent who will have custody of the child shall select the child’s given name and surname.

Mother married at the time of birth – The mother and father on the birth certificate select the given name and surname of the child if both parents have custody of the child, otherwise the parent who has custody shall select the child’s name.

Parents disagree on the surname -The surname selected by the father and the surname selected by the mother shall both be entered on the birth certificate, separated by a hyphen in alphabetical order.

Parents disagree on the given name – The given name may not be entered on the certificate until a joint agreement signed by both parents or selected by a court.

Back to the Tennessee case, it seems to me that people I know named Jesus don’t have social problems because of their names. Is Messiah that much different from Jesus that the Messiahs of the world are going to suffer more?

Social Security and Divorce – Plan Ahead

On behalf of Ronald H. Kauffman, P.A. posted in Planning for Divorce on Monday, August 12, 2013.

Anyone planning for divorce needs to consider the impact of Social Security benefits. This is especially true if you are close to the age at which you become eligible for benefits, but haven’t started to receive them yet. If you think Social Security claims, benefits and entitlements are confusing, you are not alone.

In general, once you are divorced, you can receive spousal Social Security benefits based on an your ex-husband’s or your ex-wife’s earnings, as long as your marriage lasted at least a 10 years, you are a minimum of 62 years of age, are not married, and do not qualify for a higher benefit based on your own past earnings.

As a matter of divorce planning then, and theoretically, if you were only married 9 years, you may want to put your divorce plans on hold so that you could receive spousal benefits.

Additionally, if an ex-spouse delays claiming Social Security benefits until full retirement age, they can start to collect a spousal Social Security benefits check of 50% of an ex-spouse’s retirement benefits.

They might also be able to continue working – and even increase the eventual amount of their own personal Social Security retirement benefits – by delaying retirement, until age 70. When an ex-spouse reaches age 70, their Social Security monthly retirement check would be approximately 132% larger than it otherwise would have been, and even larger depending on annual cost of living increases.

One complication is that a divorced spouse can only receive a spousal Social Security benefit 2-years after a divorce, if an ex-spouse has not yet applied for his or her own retirement benefit.

There are a lot of other Social Security Administration rules which can complicate this straightforward analysis. The rules regulating Social Security could change at any point in time, and suddenly delayed benefits might no longer be recognized. Or the criteria for divorcing spouses can be changed to 5 years from the 2 years stated above.

What happens if the Social Security rules change? It may depend on the status and wording of the law at the time you divorce. So, not only can the current rules cause you immediate problems, but the plans you made – which were correct at the time you made them – might be wrecked by a rule change.

Divorce Costs . . . in 1845

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

Think divorce is expensive, time consuming or difficult for most people? Today it’s a breeze compared to how it used to be. Believe it or not, getting divorced used to be so expensive; it was out of reach for most people.

A clever judge in England in 1845 wrote a sly opinion complaining about how difficult and expensive it was:

Prisoner at the bar, you have been convicted before me of what the law regards as a very grave and serious offence: that of going through the marriage ceremony a second time while your wife was still alive.

You plead in mitigation of your conduct that she was given to dissipation and drunkenness, that she proved herself a curse to your household, and that she had deserted you; but I am not permitted to recognise any such plea.

The law in its wisdom points out a means by which you might rid yourself from further association with a woman who had dishonoured you; but you did not think proper to adopt it.

You ought first to have brought an action against your wife’s seducer if you could have discovered him; that might have cost you money, and you say you are a poor working man, but that is not the fault of the law.

You would then be obliged to prove by evidence your wife’s criminality in a Court of Justice, and thus obtain a verdict with damages against the defendant, who was not unlikely to turn out a pauper.

But so jealous is the law of the sanctity of the marriage tie, that in accomplishing all this you would only have fulfilled the lighter portion of your duty.

You must then have gone, with your verdict in your hand, and petitioned the House of Lords for a divorce.

It would cost you perhaps five or six hundred pounds and you do not seem to be worth as many pence. (Editor: about $72,000 today) But it is the boast of the law that it is impartial, and makes no difference between the rich and the poor.

You have thus willfully rejected the boon the legislature offered you, and it is my duty to pass upon you such sentence as I think your offence deserves, and that sentence is, that you be imprisoned for one day; and in as much as the present assizes are three days old

We may complain about the costs of no-fault divorce, but things are much improved now. Credit goes to the Volokh Conspiracy for the post.

Relocation: Your Right to Move Away with a Child

On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Tuesday, August 6, 2013.

What are your rights to move away from another parent with your children? We live in a mobile society, easily traveling all over the world. When you are divorce and have children though, moving away is not so easy.

In my practice I’m seeing relocation cases more and more, and 2013 was a peak year for relocation cases in my practice.

Relocation means moving at least 50 miles for at least 60 consecutive days – not including a temporary absence for vacation, education, or health care for your child.

Clients increasingly have to relocate with their children during, or right after, the divorce. Some studies estimate that up to 25% of parents move away within the first 2-years after their divorce.

These are some of the common reasons for relocating with a child:

  • New job offers
  • Work transfer
  • New spouse
    • Financial opportunities
  • Family support networks

There are two ways to successfully relocate with your child:

1. Both parents sign a written agreement consenting to the relocation, and the agreement has a time-sharing schedule, and works out the transportation arrangements.

2. If you can’t enter a written agreement, and you still want to relocate, you must file a petition to relocate and serve it on the other parent.

If you relocate without an agreement or a court order allowing you to, you can be held in contempt, the child may be compelled to return, and your relocating improperly is a factor in establishing or modifying a parenting plan or time-sharing schedule.

There is no longer a legal presumption in favor or against relocations. Instead, Florida courts have to evaluate several factors such as:

  • The age of the child
  • The child’s preference
  • The reasons for moving
  • History of drug abuse or domestic violence

Relocation cases are very emotional, fact intensive, require a lot of work very quickly, and are very high stakes. Think about it, one parent is trying to take away a child, while the other parent is trying to maintain a close bond with the child. That creates a lot of tension. Without a doubt, relocation cases are among the toughest cases we face in court.

Parental Alienation Warning Signs

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, August 2, 2013.

During a contested divorce involving child custody or parenting plan, it is common for parents to accuse each other of manipulating the children to criticize and complain about the other parent, and even to destroy a parent’s relationship with the children.

We call it Parental Alienation Syndrome, and it is very common during a heated divorce for a parent to use the children in the war against the other parent.

The danger of parental alienation is that the kids need to show affection for their parents, and need to receive affection back from both parents. But when one parent convinces a child to think the other parent is breaking up the family, or is the enemy who should be hated and disrespected, the parent child relationship is undermined.

  • Here are some signs of Parental Alienation Syndrome to watch out for:
  • Bad-mouthing the other parent to the children
  • Limiting contact
  • Erasing the parent from the children’s lives
  • Forcing the children to reject the other parent
  • Forcing the children to choose sides
  • Creating the impression the other parent is dangerous
  • Belittling comments to the other parent in front of the children
  • Calling the children to testify against the other parent
  • Convincing the children the other parent is creating financial hardship on the family

Hopefully you will be spared this common syndrome in divorce. There is plenty of research showing that parental alienation can not only cause emotional scars in kids, but has also been seen as a cause of low self-esteem, self-hatred, depression and substance abuse in children.

If you spot any of these signs, it is important to speak to a professinal about your concerns.