Year: 2013

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.

Adultery, No Fault and Interesting Reasons To Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, October 31, 2013.

Florida is a No Fault state for divorce. You don’t need a reason to divorce. Still, it is interesting to know why people divorce. A recent study out of the UK reveals some surprising reasons why people divorce, and adultery is a declining factor.

It appears that couples are less likely to cite adultery as the cause of a divorce than they were 40 years ago. However, claims of “unreasonable behavior” (a British term) have skyrocketed to more than 5 million divorce cases.

Unreasonable behavior include: making a spouse feel guilty for going out with her friends; a cross-dressing husband who decided to have a sex change; and a spouse withdrawing all the family savings and burning it in the bedroom.

The Guardian newspaper reports on a survey comparing the grounds for divorce in the 70s, 80s, 90s and 2000s as well as the present day.

In the 1970s, 29% of marriages ended because of adultery, the latest figures show only 15% of divorces were down to infidelity. In the 70s unreasonable behavior was cited in 28% of cases but it now accounts for almost half of all divorces (47%).

In the 1980s – the yuppie era – had the most adulterous break-ups – with nearly one in three (29%) of all divorces granted due to cheating on a partner. In the same decade, almost one in five divorces were down to the husband’s infidelity.

While you only need to allege an irretrievable break in the marriage to file for divorce in Florida, it is always interesting to see trends in divorces over time, even when they are from overseas.

The Guardian article can be read here.

Religious Divorces . . . electric cattle prods not recommended

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On behalf of Ronald H. Kauffman, P.A. posted in Religious Divorces on Monday, October 14, 2013.

Each religion has its own requirements for completing a divorce. Islam has a waiting period. The Catholic Church has the Decree of Invalidity and other remedies so spouses are free to marry again. In Judaism, a husband must give his wife a “Get”. But if a stubborn husband won’t provide one, there may or may not be civil remedies in Florida courts. If there isn’t though, can you kidnap and use an electric cattle prod to coerce a husband into signing a Get? That’s a question now being answered in a U.S. District Court in New Jersey.

As the New York Daily News Reports:

Two rabbis plotted to kidnap Jewish husbands, torture them with electric cattle prods and force them to grant their desperate wives religious divorces, the feds charged Thursday. Rabbi Mendel Epstein, 68, of Brooklyn and Rabbi Martin Wolmark, 55, of Monsey, Rockland County, were among 10 people arrested in the barbarous scheme with tentacles that ran all the way to the rabbinical court. Epstein is accused of running an unholy crew that charged women trapped in marital limbo $70,000 to $100,000 to strong-arm their stubborn husbands into granting a Jewish divorce known as a “get,” a criminal complaint reveals.

According to reports, the police also arrested two other men – Ariel Potash whose role was to act as the wife’s agent to accept the get in the religious divorce ceremony, and a man identified only as “Yaakov” who was apparently one of the “toughs.”

The criminal complaint filed by the U.S. Attorney paints a gruesome picture:

“We prefer not to leave a mark,” Epstein allegedly told the undercover agent. “Basically the reaction of the police is, if the guy does not have a mark on him then, uh, is there some Jewish crazy affair here. They don’t want to get involved.”

Bad advice. The arrests came after two undercover FBI agents – one posing as a wife and the other as her brother – were charged $10,000 for approval by a rabbinical court of a kidnapping and $50,000 to $60,000 to pay those who roughed up the purported husband.

A rabbinical court in Monsey, New York, presided over by Rabbi Wolmark, actually approved the kidnapping plan last week by issuing a ruling (psak din) after the purported husband failed to respond to a contempt order (seruv) issued by the religious court.

CEO Divorces: Do you have to disclose divorces to shareholders?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, October 28, 2013.

divorced impacts everyone: the rich and poor alike. When a spouse is also the CEO of a company, are there more risks? When the CEO of Continental Resources was getting divorced, shares of his company dropped 2.9%. Conversely, when Rupert Murdoch announced his divorce, shares of News Corp gained 1.4%. Why?

In the Continental Resources case, shareholders learned that the CEO didn’t have a prenuptial agreement, and some investors feared control of his shares was at stake.

But in Rupert Murdoch’s case, the divorce announcement stressed the parties’ prenuptial agreement, that there would be no spin-offs, and a divorce would have “zero impact” on the company

A new study from Stanford Graduate School of Business has examined three potential ways in which a CEO divorce might impact the business and shareholders.

1. Loss of control or influence. A CEO might be forced to sell or transfer a portion of his or her shares as part of equitable distribution, lump sum alimony or by agreement. Selling shares can reduce a CEO’s influence and impact decisions regarding corporate strategy, asset ownership, and board composition. Shareholder reaction to loss of control will vary.

2. Divorce impacts productivity, concentration, and energy levels. Divorce is stress. Generally, it is well known that employee divorces impact their productivity. In extreme cases, the distraction of divorce can lead to premature retirement.

3. Divorce can change appetite for risk. A sudden change in wealth – through loss of equity in the company they are running or other investments outside the firm -can alter an executive’s risk appetite, and impact decision making

Is divorce still a private matter? For most people it is. But if you are the CEO of a publicly traded company, perhaps in the future your divorce might be a matter which has to be disclosed to shareholders.

The Stanford Graduate School of Business article can be read here.

Gray Divorces: Divorcing after 50

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

So much for “till death do us part.” While the overall divorce rate has gone down, it’s doubled for couples over age 50. For the first time, more Americans 50 and older are divorced rather than widowed. Sociologists call them gray divorces.

In 1990, less than 3% of Americans older than 50 were divorced. By 2000, about 12% were. According to the latest Census Bureau’s estimate in the American Community Survey, in 2011 over 15% were divorced, while 13.5% were widowed.

In 1990, 1 in 10 persons who divorced was 50 or older. By 2011, according to the American Community Survey, more than 28 percent (more than 1 in 4) who said they divorced in the previous 12 months were 50 or older.

As the New York Times reports:

Researchers at Bowling Green warn that the rising divorce rate among older Americans has serious implications that go well beyond the couples themselves. Like widowhood, divorce can contribute to economic strain and poor health, placing a larger burden on children and, given shrinking family size, on institutional support from government and other sources.

“Staying together until death do us part is a bigger challenge than it used to be because we expect so much more of marriage than we did in the past, and we have so many more options when a marriage doesn’t live up to those expectations.

Think about it from this perspective:

“If you are a healthy 65, you can expect another pretty healthy 20 years. So with the kids gone, it seems more burdensome to stay in a bad relationship, or even one that has grown stale.”

Are women to blame:

Women have long been more sensitive to – or less tolerant of – a mediocre relationship than men and so another big factor is that with their increased work experience and greater sense of their own possibilities, they are less willing to just ‘wait it out.

What about the men?:

“Viagra is another reason – men are able to satisfy younger women. And people are living longer and they can get out and still have a life.”

Several other factors may be to blame, including:

  • Societal acceptance of divorce
  • Increased economic autonomy of women
  • Lengthening life expectancies
  • Less education is big risk factor
  • Shorter marriages less than 10 years.

Nonetheless, they say that if the rate remains constant, we can expect a 25 percent increase in the number of people that will experience divorce among Americans 50 and older.