Month: December 2013

Prenuptial Agreements For Men and Women

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, December 31, 2013.

Prenuptial property division are important. They help keep your property yours. You get to make your own standards for alimony. And, divorce becomes a lot cheaper, simpler and faster to resolve. Interestingly, a recent study found that millionaire men mostly don’t require prenuptial agreements, but millionaire women mostly do want prenups.

As San Francisco Weekly reports, a study prepared by did a random sample of 524 millionaires in the San Francisco Bay Area where there’s plenty of “new money” to be found. Especially in Silicon Valley.

The survey results were surprising:

  • 82.6 % of millionaire men in Silicon Valley are most likely to seek out non-millionaire women.
  • Only 16.2 % of millionaire men in Silicon Valley insist on a prenuptial agreements.
  • Millionaire women, however, were quite the opposite
  • 86.7% of millionaire women preferred dating other millionaires.
  • 92.4% of millionaire women insist on prenups.

Apparently to marry a non-millionaire means to be charitable. The more popular responses from men polled had to do with dating “somebody who appreciates things” and not dating “bossy, middle-aged women who can take care of themselves.”

For women it’s a matter of “not carrying the whole financial burden,” according to a female member worth $100 million. (What financial burden is she referring to when one member of the couple is worth $100 million?) Must be tough when one decides love does cost a thing.

With many first marriages ending in divorce, and most second or third ones hitting the skids, a prenup is smart financial planning. A prenuptial agreement and the discussions that go with it can help ensure the financial well-being of the marriage.

The article can be read here.

Trouble With Florida’s New Expert Witness Rule

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, December 27, 2013.

Divorce trials increasingly rely on expert psychologist testimony for custody recommendations and forensic accountants for financial opinions. The rule on using experts recently changed. Is the new law substantive and constitutional, or procedural and unconstitutional? The Florida Supreme Court may have just tipped its hand.

An article I wrote on expert witness testimony was just published in the Commentator, discussed the constitutional controversy, but left up in the air the Florida Supreme Court’s thinking because it was unknown.

However, last week, the Florida Supreme Court refused to adopt a state rule that creates restrictions on out of state doctors who can testify during medical malpractice trials.

The law stated:

If a physician or a dentist is the party against whom expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed or possess a valid expert witness certificate.

The Florida Bar Code and Rules of Evidence Committee voted to recommend adopting the statute. However, the Board of Governors voted to recommend rejecting the proposal because it was unconstitutional, and would chill the ability to obtain expert witnesses.

The Florida Supreme Court agreed with the Board of Governors, and held:

After hearing oral argument and carefully considering the Committee’s recommendation . . . we decline to follow this recommendation due to the concerns raised. Accordingly, the Court declines to adopt the legislative changes to the Code or newly created section 766.102(12), Florida Statutes, to the extent they are procedural.

The Supreme Court vote was 8-1. The Florida Supreme Court’s order can be read here.

My Article on Florida’s New Expert Witness Rule

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, December 24, 2013.

We are increasingly relying on expert witnesses in divorce trials. Hiring forensic accountants, psychologists and other expert witnesses has become the new norm. But Federal and Florida courts have been using different rules to allow expert testimony in court. That’s just changed. I have a new article just published in the Florida Bar Commentator on this new change to the expert evidence rule.

The Article briefly reviews the evolution of the rules for the admissibility of expert testimony in Florida, how our rules differ from the Federal rules, the three big U.S. Supreme Court cases, the Constitutional separation of powers question, and how the new Florida Rule of Evidence 702 impacts family law.

Part I reviews Florida’s law of expert testimony from the Frye case to the Florida Supreme Court’s Marsh decision. Supporters of Florida’s old rule enjoyed the ease in which expert testimony was admitted in court. But critics charged that the expert testimony became of dubious validity.

Part II describes a Constitutional problem with the way Rule 702 was amended. A law which encroaches on the Supreme Court’s power to regulate courtroom practice is unconstitutional, but the Legislature can enact substantive law. When the legislative branch encroaches on the judicial branch, a separation of powers violation of the constitution can arise.

Part III describes the U.S. Supreme Court’s Daubert trilogy, which is what amended Rule 702 is based on. The new Rule 702 codified the Daubert trilogy, and did so with language that removes any ambiguities about how to apply it and questions about the usefulness of Florida’s prior case law.

The Article concludes by discussing some of the ways this new expert witness rule will impact your divorce, and the judges, experts, and the lawyers who practice family law.

You can read the article here.

Alimony Reform Update: Is Alimony Unconstitutional?

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

People don’t like paying alimony. I’m not being sarcastic. Alimony can be a tax deduction, so you could end up paying your Ex less support overall. But, the tax advantage is often outweighed by the perceived injustice; hence the move to reform alimony. A new reform front has opened in Connecticut, where four guys are trying to have alimony laws declared unconstitutional.

Florida’s alimony reform movement is different, and has focused on trying to amend the law in the legislature. Last year they tried to pass a bill eliminating permanent alimony, but Governor Scott vetoed it. They are trying again next session. The Connecticut battle is different.

According to Courthouse News Service, a nationwide news service for lawyers, four Connecticut ex-husbands are suing their governor to have alimony laws declared unconstitutional:

Alimony is an historical anachronism, a remnant from an earlier legal era when the rights of women vis-à-vis their husbands, and in society in general, were radically different than they are today.

Connecticut’s alimony scheme is unconstitutionally vague, giving no notice to citizens contemplating marriage or divorce what fate may befall them in a divorce proceeding. The Legislature, by failing among other things even to identify the purpose or aim or alimony, has delegated basic policy decisions to the judiciary without any meaningful guidance.

The Ex-Husbands claim that in no area of law other than family relations does Connecticut give a civil litigant the ability to use penal remedies to enforce a money judgment.

There is some precedent for calling alimony laws unconstitutional. The U.S. Supreme Court in Orr v. Orr declared Alabama’s alimony statute unconstitutional in 1979, because it only imposed alimony obligations on men not on women, violating the equal protection clause.

Alimony payments can be a good thing for a couple too. Alimony is treated differently than child support in our tax code. If you receive alimony due to a divorce, it is taxable and must be reported on your tax return. The alimony payer can also claim the alimony as a tax deduction, as long as the payments meet code requirements.

It is not uncommon to have child support payments reclassified as alimony – especially in high income earning families – so that the payee spouse gets more money in alimony, the payer spouse get a large tax deduction, and more money is available for everyone.

Although it seems counterintuitive, paying alimony can sometimes be in your financial best interest. Chipping away at this financial freedom for parents may be too much reform. Alimony reform is underway in many states, and Florida is one of them.

Custody, Infants, Breastfeeding & the Tender Years Doctrine

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, December 16, 2013.

How are child custody cases handled for babies still breastfeeding? Florida used to follow the “tender years” doctrine which held: mothers of infants of tender years are best fitted to bestow motherly affection, care, companionship, and early training. Florida abolished the “tender years” doctrine. But it’s interesting to see countries going through the modernization of their custody laws.

In Israel for instance, the current law automatically grants custody of children under 6 to the mother unless there are special reasons not to.

For practical purposes, this meant mothers always got custody because after age six, custody was never reconsidered, so as not to disturb the lifestyle to which the children had grown accustomed.

As the Jerusalem Post reports:

Since the Schnitt Committee recommended eliminating the tender years clause altogether in 2008, judges already started granting joint custody for children under six.

The bill recommends declaring both parents legally responsible for their children and guarantees the rights of the children to a relationship with both their parents.

With infants who are breastfeeding, there are a few solutions. The mother could pump and provide enough breast milk to get through the timesharing.

If pumping is not the solution, you may have to consult experts to resolve the conflict over whether the public recognition of the health benefits of breastfeeding is best for the child, and if so, does it outweigh the benefits of early father-child bonding.

This is not a slam dunk case for either party. Although the public health benefits of breastfeeding are real, there is a good chance that all of the lawyers and the judge deciding your case were themselves formula fed with no long term harmful consequences.

Tips to Find the Perfect Attorney

On behalf of Ronald H. Kauffman, P.A. posted in Attorneys on Thursday, December 12, 2013.

I’m not just marketing myself here. OK I am, but that’s not the point of this post. divorce and family cases have become complex, and the laws are changing fast. Hire an expert. Attorneys who are “Board Certified” have the only expert designation allowed by the Florida Bar. You have to start your divorce with which lawyer to choose. So, how do you choose one? The Huffington Post offered up a few tips I’d like to share:

Tip #1


You’re under pressure, your spouse’s attorney is flooding you with nasty letters. Guess what? This is a life crisis not an emergency.

Choosing a divorce lawyer is one of the most important things you’ll ever do. Researching options will pay huge financial and emotional dividends.

Tip #2

Tell Your Greek Chorus to Quiet Down

Most of us turn to our family, friends, and colleagues for advice. They all have agendas. Your tennis partner — still reeling from his wife’s affair with her personal trainer — will gladly produce the number of his gladiator. Your recently divorced friend who got “fleeced — I’m telling you fleeced!” will eagerly refer you to her shark litigator.

While we all need support during this time, what your loved ones don’t know can hurt you. Do your own homework. Only you can know what kind of lawyer is the right fit for you.

Tip #3

Take a Personal Inventory

Ask yourself: Is a long, bitter courtroom battle best? Try to think beyond today’s pain and rage. Do you want to squander both your kids’ college fund and any potential good will in a litigation?

Consider preserving your family’s resources and the possibility of dancing with your ex at your daughter’s wedding.

Tip #4

Educate yourself

There are many ways to get divorced. The most common approaches – Mediation, Collaborative Divorce, and Litigation – differ in a number of important ways. You need to get up to speed on them.

If you’re not sure which “type” of divorce would be best for you, interview attorneys who are the experts.

Tip #5

Avoid a sales pitch

Attorneys have an ethical obligation to explain all legal process options. If you’re not getting good answers, go elsewhere.

Tip #6

Cheaper ain’t a bargain. Expensive ain’t better.

Tip #7

Choose a good listener

A good lawyer will take the time to put you at ease by listening carefully to your story, asking relevant questions, addressing your immediate concerns and offering emotional support.


Tip #8

Trust your gut

Picking a divorce lawyer is like dating. If there’s a voice in your head whispering “run,” then run. You’re getting out of bad relationship; don’t jump into another one.

A Landmark Assisted Reproductive Technology Case

On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, December 9, 2013.

From in vitro fertilization to surrogacy, medical techniques are expanding the hope of parenthood to a wide diversity of couples. In a landmark ruling the Florida Supreme Court invalidated Florida Statutes 742.13 and 742.14, to the extent they don’t protect the parental rights of same sex parents who use divorce.

A couple had a lesbian relationship for 11 years. After agreeing to have a child together, an egg from T.M.H. was fertilized and implanted into D.M.T., who gave birth. The procedure was paid for with joint funds.

In 2006, the couple separated, and the child stayed with D.M.T., who received child support payments from T.M.H. Eventually, D.M.T. moved with the child to Australia.

D.M.T won at trial arguing that Florida does not recognize the parental rights of egg donors in same-sex relationships, only if the donation is from a heterosexual “commissioning couple”, but lost on appeal.

The Florida Supreme Court considered the exclusion of same-sex couples from the definition of “commissioning couple” as violating the federal and state Due Process Clauses and the state privacy clause, and as violating the state and federal Equal Protection Clauses.

“It would indeed be anomalous if, under Florida law, an unwed biological father would have more constitutionally protected rights to parent a child after a one night stand than an unwed biological mother who, with a committed partner and as part of a loving relationship, planned for the birth of a child and remains committed to supporting and raising her own daughter.”

The Court found excluding same-sex couples from the definition of “commissioning couple” did not serve to provide certainty to couples who use assisted reproductive technology.

While creating parenting opportunities once thought unattainable, medical technologies also introduce a host of legal complexities and uncertainties.

If you want to have a successful surrogacy procedure, you need a clear understanding of Florida law and the obligations of each party, as well as legal documents establishing parentage upon birth of the child.

The Florida Supreme Court opinion in D.M.T. v. T.M.H., can be found here.

Divorce and Alcohol: Can Drinking Save Your Marriage?

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, December 5, 2013.

It sounds like I’ve asked a ridiculous question. After all, published research suggests a correlation that the more you drink the more likely you are to get divorce. However, researchers at the University at Buffalo have put a new spin on the old notion that drinking and marriages do not mix.

Scientists at the University of Buffalo’s Research Institute on Addictions (RIA) followed 634 couples from the time of their weddings through the first nine years of marriage. What the researchers found was that couples where only one spouse was a heavy drinker had a much higher divorce rate than other couples.

However when both spouses were heavy drinkers, the divorce rate was the same as for couples who were not heavy drinkers at all. And that’s the surprising outcome:

50% of couples in which one partner was imbibing significantly more than their spouse ended up divorcing. However, that number dropped to 30% for couples who possessed similar drinking habits, regardless of if they were heavy or light drinkers.

The researchers also found that there was a higher divorce rate when the heavy drinker was the wife, rather than the husband. However, this statistical difference was not significant.

What researchers have concluded is that heavy drinking spouses may be more tolerant of negative experiences related to alcohol due to their own drinking habits.

Our results indicate that it is the difference between the couple’s drinking habits, rather than the drinking itself, that leads to marital dissatisfaction, separation and divorce said Kenneth Leonard, PhD, RIA director and lead author of the study.

Make no mistake, heavy drinking can ruin your life. From a divorce perspective, it is interesting that divorce rates are worst for marriages in which one spouse drinks heavy and the other does not. The research may mean that differing behavior is to blame, not alcohol.

This study makes sense. When couples don’t see eye-to-eye on something, they may be incompatible on other issues. But spouses who drink similar amounts may have similar views on drinking, may spend more time together, and probably don’t fight as much as those who have different drinking habits.

The report from the University of Buffalo can be read here.

Courtroom Manners – How to (Not) Act in Court

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, December 2, 2013.

It’s been said that in criminal courts, judges see the worst people acting their best. If so, family judges see the best people acting their worst. child custody, relocation, and domestic violence cases put a lot of stress on people. Since you’re always being evaluated, what follows is a list of “dos” and “don’ts”.

Don’t – Come to a custody hearing wearing your Nazi uniform – complete with swastika patch on the arm and leather boots – and demand a family court judge let you see your son.

Do – Dress in a neat and professional manner.

Don’t – Speak on your cellular telephone because judges hate ringing cell phones. Judges hate ringing phone so much, that U.S. District Judge Hugh B. Clarke Jr. fined himself $50 when his own cell phone started ringing during a hearing.

Do – Keep your cell phone ringer off, and if you absolutely need to have your phone on, put it on vibrate.

Don’t – Take off your pants and show the judge your rear end. Try not to make faces or gestures, don’t show your anger or disdain for the other side or the court.

Do – Keep a “poker” face when others are talking, and be clear and confident and in a loud clear voice when you are talking.

Don’t – lose your temper in court, give the middle finger salute, dare the judge to hold you in contempt while holding your arms out as if you are being handcuffed and then contact the judge’s judicial assistant, and call her: “You little mother******; you and the judge, that mother****** son of a b****.”

Do – Be Courteous to the Court staff. Court personnel make the courts run efficiently, and angering court officers may impact your case.

Yes, sadly these are cases of what people have actually done in court, and all of these instances are documented. Consider the solemnity of the courtroom, the stress family cases have on everyone, and show some respect to the judges and others in the courtroom who deal with these cases on a daily basis.