Month: November 2013

Divorce and the Pet Dog

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, November 26, 2013.

An ever increasing problem in divorce is over who gets to keep the pet dog and cat during and after the divorce. Imagine you’ve been married for 12 years, but you don’t have any children. Your Labrador Retriever is your closest friend, guardian and constant companion. The problem is your soon-to-be ex-husband or ex-wife feels the same way.

Nearly a quarter of divorce lawyers surveyed across the country have noticed an increase in pet-custody cases in the last five years, according to the American Academy of Matrimonial Lawyers. The article can be read here.

There is a shift occurring in our society in which the … pet is considered more a member of the family … and therefore becomes sadly a part of the battle when the family disintegrates,” said Joyce Tischler, founding director of the Animal Legal Defense Fund, a non-profit organization based in Northern California.

A 2001 survey by the American Animal Hospital Association found that 83 percent of pet owners refer to themselves as their pet’s “mom” or “dad.” That relationship is not acknowledged by the courts, where pets are still considered property, no different from the silverware, the plasma TV and the living-room sofa.

So, who does a judge award your Chocolate Lab 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.

Your chocolate lab may be considered a member of the family to you, but under Florida law, “Brownie” is merely chattel – personal property to be divided in divorce. 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.

Divorce vs. Separation

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, November 21, 2013.

I often meet clients who want to divorce after already being separated. Sometimes their separation is very recent, maybe after a big fight. Other times though, their separation has been going on for months – sometimes even years. Is a long term separation a good thing?

As Forbes magazine reports, sometimes the ease of a long term separation hides some real dangers. This Forbes article identifies a few problems I think everyone should consider:

1. Less Control of Assets. If you are separated, you could be out of the loop financially, and not know what the other spouse is earning, spending, investing, selling or buying.

2. Opportunity to Hide Assets. Many times one spouse uses separation periods to make assets disappear and increase debt.

3. Changed Circumstances. When we draft divorce agreements and orders we are usually trying to ‘present value’ assets and liabilities. In a long separation, people lose jobs, change jobs, become ill, retire and these changed circumstances could lower your expected alimony or support payment.

4. Relocation. Laws vary from state to state. Over times, as circumstances change, new job requirements and new relationships may mean that one of the spouses has to relocate to another state. Your simple divorce can morph into a major battle over the ability to relocate with your children.

5. Alimony Reform. Alimony change is in the air, and it is only a matter of time before alimony reform changes Florida Statutes. We dodged the bullet after the last legislative session. However, alimony reform seems more like a “when” question, rather than an “if” question.

It is easy to get into the rhythm of a long term separation. People don’t choose ‘separation limbo’, they fall into it because it is easier than confrontation. However, there are some good reasons to be cautious of long term separations.

Alimony Reform: Introducing Alimony Guidelines

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On behalf of Ronald H. Kauffman, P.A. posted in Alimony on Monday, November 18, 2013.

Reform is in the air. Florida legislators are already speaking about a new bill to modify alimony. But it is not just Florida reviewing its alimony laws, other states are in various stages of reviewing and amending their state laws too.

The most recent change is Colorado, where couples will face dramatic changes in the way alimony is considered after a new state law goes into effect on January 1st. According to the Denver Post:

“It’s groundbreaking legislation,” said Heidi Culbertson, director of client development at the Harris Law Firm, which specializes in family law. “For the first time, Colorado will have a formula for maintenance.”

It is part of a national alimony reform movement, with many state legislatures seeking to either limit or standardize spousal maintenance payments. In particular, the focus has been on the lack of consistency in maintenance orders, which resulted in perceptions of unfairness and the inability to predict outcomes.

Along with Florida, a number of states – like Maine, Texas, Pennsylvania, Oklahoma and New Jersey – have considered introducing alimony guidelines to calculate alimony the way all states use child support guidelines to calculate child support payments.

The Colorado law provides a formula for the calculation of alimony. Alimony is equal to 40% of the higher income party’s monthly adjusted gross income less 50% of the lower income party’s monthly adjusted gross income. There are exceptions, and there is a cap.

The new statute does not apply to families with joint income over $300,000. For those cases, courts will continue to weigh a number of discretionary factors, including the parties’ unique financial circumstances and the length of the marriage.

Interestingly, Colorado’s alimony guidelines are only advisory to the courts, a sort of starting point in deciding how much and for how long an alimony award should be. The judges still maintain discretion. This is very unlike child support, where the discretion of a trial court is mostly removed.

Custody and Vaccinations: Can you lose a child by not vaccinating?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, November 15, 2013.

Julia Ioffe, a senior editor at the New Republic, has the whooping cough and is not pleased. We conquered whooping cough along with the Nazis in the 1940s. Why is it back? What does it have to do with child custody?

Some parents decline immunization as a tenet of their religious beliefs. Some parents fear the risk of serious reactions to vaccines, and some think chemicals in vaccines cause autism.

When Jacob Holmes was 1, his pediatrician administered the MMR II vaccine. 9 days later he experienced seizures. 6 months later he was dead.

Extremely contagious whooping cough was conquered by a vaccine invented in the 1940s. Yet, in 2010 a whooping cough outbreak killed 10 babies in California. Studies show that children who did not get vaccinated contributed to the California outbreak.

The decision not to vaccinate can have a big impact in society:

  • In 2012, there were 48,277 reported cases of whooping cough, the highest since 1955.
  • Texas is currently fighting a whooping cough epidemic.
  • Washington State experienced a whooping cough epidemic in 2012

Your decision not to vaccinate can also impact your divorce case.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions. There are at least two cases in Florida.

In one case, a Florida court heard the conflicting positions on immunization, and decided that it would be in the child’s best interest to allow the anti-vaccination Mother to make the ultimate decision regarding the child’s immunization.

Ten years later, a different Florida court heard conflicting testimony, and decided it was in the child’s best interest to award the pro-vaccination Father ultimate responsibility to make decisions regarding the minor child’s vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida, especially when there are conflicting Florida court decisions about whether vaccinations are in your child’s best interest.

How Accurate are DNA Paternity Tests

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On behalf of Ronald H. Kauffman, P.A. posted in Paternity on Tuesday, November 12, 2013.

You hear a knock at the door late one night. Someone hands you papers naming you as the father of a child you’ve never met. The name of the mother is unfamiliar to you. Your first thought is “what if my wife finds out?” Your second thought is “I should take a DNA child custody test to see if I’m the father!” How accurate are these tests?

In cases where a man disputes he is the father of a child – and in some cases a court can prohibit you from even testing to find out – you may want to take a DNA paternity test.

In a DNA test, a Q-tip is scraped on the inside of your cheeks to collect buccal skin cells. The collection process is painless – at least as compared to a blood test – and takes only about 10 seconds per cheek.

The skin cells are used to extract your DNA. The test is looking for repetitive regions in your DNA. The test examines your DNA for different genetic markers, or alleles, which vary from person to person. For example, a test may show you have allele D7S820 with 15 repeats in your DNA. Someone else, on the other hand, may have only 10 repeats of D7S820.

Since the mother, father and child all have the same number of repeats, it means that there is a high probability that the child must be the offspring of both parents. DNA centers usually test 17 or more repeat areas, since relying on only one area would be too small a sample size.

But, what if the testing laboratory incorrectly analyzes a DNA sample? The Oklahoma Supreme Court considered exactly this problem in Berman v. Laboratory Corp. of America.

In Berman, the mother asked Oklahoma to determine the paternity of her child, and to collect child support from the father. An agency arranged for a lab to collect DNA for the test. The lab incorrectly reported that a man was not the child’s father.

However, after a different laboratory performed the DNA test, it found the same man was the father. The mother sued the first lab for the loss of past and future child support the father would have paid if the DNA test results were correct.

The Oklahoma Supreme Court decided that the lab owed a duty to the parents to use care in conducting accurate DNA testing for child support.

The importance of reliable and accurate DNA results cannot be overstated. You should always have professional advice instead of just trusting a piece of paper assuring you “probability of paternity 99.99%”.

Healthy Divorce: Is there an herbal supplement for that?

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On behalf of Ronald H. Kauffman, P.A. posted in Health and Fitness on Wednesday, November 6, 2013.

Herbal supplements and divorce may seem to be off topic, but it isn’t. I often advise clients to regularly exercise, eat well, and maintain a healthy lifestyle while going through this process. Alternative medicine may have a place in a healthy lifestyle, but a new report suggests we should be wary of herbal supplements.

We spend around $5 billion a year on herbal supplements that promise everything from fighting off colds (Echinacea) and increasing memory (Ginko) to male enhancement (Extenze).

But a new study is showing through DNA tests that many pills labeled as herbs are really nothing more than ground up rice and common weeds. As the New York Times reports:

Using a test called DNA barcoding, a kind of genetic fingerprinting that has also been used to help uncover labeling fraud in the commercial seafood industry, Canadian researchers tested 44 bottles of popular supplements sold by 12 companies.

They found that many were not what they claimed to be, and that pills labeled as popular herbs were often diluted – or replaced entirely – by cheap fillers like soybean, wheat and rice.

Among their findings:

  • Bottles of Echinacea (to prevent and treat colds) contained ground up bitter weed and parthenium hysterophorus (an invasive plant linked to flatulence)
  • Bottles of St. John’s wort (to treat mild depression) contained none of the medicinal herb, but a lot of ground up rice
  • Another bottle of St. John’s wort contained only Alexandrian senna, a shrub that acts as a powerful laxative
  • Gingko biloba supplements (to enhance memory) were mixed with fillers and black walnut, a hazard for people with nut allergies
  • Black cohosh (a remedy for hot flashes and other menopause symptoms) actually contained an Asian plant, Actaea asiatica, which can be toxic to humans
  • Of herbal supplements tested, 33% found no trace of the herb advertised on the bottle
  • Many were adulterated with ingredients not listed on the label, like rice, soybean nuts, and wheat

Representatives of the supplement industry do not believe mislabeling has reached the extent suggested by the new research. The testing technique is not foolproof. It can identify the substances in a supplement, but it cannot determine their potency.

However, the state of supplement regulation may be “the Wild West,” and most consumers have no idea how few safeguards are in place.

While staying healthy through the divorce process is highly recommended, buyer of herbal supplements beware!

No Fault Divorce and Taxes

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, November 4, 2013.

Some people want to eliminate no-fault divorce in Florida. There is a belief that no-fault divorces make it too easy to destroy marriage, leading to many problems in society. Russia has a different approach: tax divorce.

The United States has a marriage penalty, in which many married couples could save tens of thousands of dollars if they’d file separately. Russia is taking it to a new level though.

Russia is considering a tax on divorcing up to 30,000 rubles (roughly $941 US) an increase of nearly 7,500%! The proposed tax would be more than the average monthly salary in Russia

As Forbes explains, the legislation has two goals: raising revenue and discouraging divorce.

The tax increase could put more than 19 billion rubles ($595 million US) back into the Russian treasury each year. That would help plug holes in the budget as concerns about Russia’s deficit continue to mount: current projections indicate that the country’s deficit will clock in at 650 billion rubles ($20.4 billion US) in 2014. The revenue raised from boosting the divorce tax would cover about 4% of the lag. Since spending is already set for 2014 and 2015 (that’s right: Russia has an actual budget on paper and we don’t), the deficit will continue to grow if there isn’t offsetting revenue – the trick, then, is to find more money.

It’s all part of the rush to morality for the country over the past few months, meant to stifle Russia’s “moral and demographic decline.”

Russia is currently experiencing a high rate of divorce, roughly a 54% divorce rate. That rate eclipses divorce rate in the U.S. of a nearly 41% divorce rate.

Ironically, Russian President Vladimir Putin announced his decision to divorce his wife of thirty years, Lyudmila, in June.

Considering this latest push by the Russians to tax divorce, maybe Putin’s divorce was something practical than a love child: good ol’ tax planning.