Year: 2013

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.

Unseen Problems with DOMA

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

Because many people are familiar with divorce, either through their own divorce or living through their friend’s divorce, it can be a prism to understanding legal controversies.

I was involved in a case on behalf of a client who was in a 9 year relationship, and this client has a 2 year old. There is a house and a rental apartment, and two 401(k)s to distribute. We are also going back and forth about the amount of child support and alimony to be paid.

In other words, this is a typical divorce. Except for one thing, both of the parties are women. Under the federal Defense of Marriage Act (otherwise known as DOMA), the law we apply in every other divorce doesn’t apply to this relationship. This form of discrimination can lead to unfairness which directly impacts your bank account.

In a typical divorce, one party might have to pay alimony to the other. Under our tax code, alimony when paid pursuant to a court order or written agreement, is tax deductible to the paying spouse, and is included in the taxable income of the payee spouse.

The tax-deductibility of alimony allows divorce lawyers to use the tax deductibility in ways to maximize the dollars available to everyone. Sometimes the payor spouse may actually want to pay more alimony because the overall payment for both child support and alimony could be less after you tax effect the payment.

However, under DOMA any support payment paid cannot be construed as alimony in Florida, and would not be deductible under our Federal tax code, because the couple is homosexual. Under DOMA certain tax advantages available to every heterosexual married couple are not available to homosexual couples by law.

Many people have different views about same-sex marriage, but there are a few far-reaching effects of DOMA that many people may not be aware of. Sometimes, putting it into perspective of a divorce, which many people are familiar with, can give people a better understanding why people oppose DOMA.

In the next week or so, the U.S. Supreme Court will announce its decision in the federal DOMA case. The name of the case is United States v. Windsor, and can be followed here.

Reducing the Stress of Your Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, June 17, 2013.

Divorce is not a sprint, it’s an endurance race. Sadly, divorce is also one of the most painful you may have to go through. Even couples who are amicably divorcing suffer through major divorce-related stressors.

Believe it or not, dealing with stress can help be the difference between resolving the divorce successfully or not. I’ve seen clients do some of the most harmful and self-destructive things to themselves and their case solely because of the stress of the divorce.

So, how do you overcome stress? Recently, Huffington Post asked some of their readers on Facebook how to keep calm during the most burdensome days of their divorces.

“From repeating simple mantras to finding solace in their favorite Pandora station, click through the slides below for some of our favorite answers, then head to the comments and tell us what helped you de-stress during your divorce.”

Some of the best suggestions I read:

  • Exercise: “A 10-15 mile bicycle ride (and boy was I fit!)”
  • Being Proactive: “planning my future”
  • Music: “Pandora.com and a long walk”
  • Self-improvement: “Massage therapy school”
  • Entertainment: “classic movies”
  • Friendship: “My best friend”
  • Family: “My daughter”
  • Staying Active: Painting

There are many stressful situations in life. Finding your stress relief can help you deal with stress ad hopefully resolve problems. Sometimes it may not seem hard, but it isn’t too difficult to find pleasure in this world. Even simple things such as chatting with a friend, watching a good movie, or going for a long walk or run can ease the burden of splitting up.

Five More Ways to Lose Your Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, June 12, 2013.

Anyone can tell you how to win your divorce. Few people ever tell you what not to do . . . until it’s too late. This could leave you wishing someone had warned you beforehand. So, if you want to learn 5 MORE ways to lose a divorce, pay attention.

6. Hire that mean lawyer you heard about

Run-of-the-mill divorces are boring. But everyone loves a good fight! Retaining the most litigious attorney in town will ensure that you will spend a lot of time contesting even the smallest and insignificant issues, and alot of money too.

Better still, once you’ve taken the gloves off, you’re guaranteed to get an equally aggressive response. Judges love it. What would you rather do, cheer on a couple of fighting lawyers, or deal with some dull legal issue?

7. Represent yourself

There is a quaint saying out there that: “the person who represents themself has a fool for a client.” Lawyers are for sissies and celebrities. I’ll let you in on a little secret: if you can divide by 2 and read, you can handle your own divorce. It’s really that easy.

8. Lie to your lawyer

There’s another old saying that: “in the middle of every client is a lie.” We expect it. And, lying to your attorney has two big advantages:

First, lying to your attorney will surprise your attorney in court, and we lawyers love to be surprised in court.

But there is another advantage: It tells your lawyer to watch out because you’re the type of client who will lie about anything. This will cause your attorney to drop your case as soon as possible, leaving your case dead in the water.

9. Lie to the judge

Let’s face it; if you want to lose, there’s really no substitute for lying to the guy or gal deciding your case. If you sprinkle a few lies in your testimony, pretty soon the judge will catch some, and start questioning everything you’ve said.

This is exactly what you want: to have the judge doubt everything about your case. Not only will you lose, you could win a free night’s stay at the Turner Guilford Knight hotel.

10. Bring the kids into it

Unfortunately, children are not parties to a divorce. That’s a shame, because kids love parties. In fact, the “Rules” require a court order to even bring your children to court. And we all know how much kids hate to be kept out of things.

So, bring the kids to court, let them read the court papers, and be sure to tell them what the other parent said about them. Involving the kids tells the judge that you will probably violate the judge’s order.

Play your cards right, and you can lose your case before you’ve uttered the first word.

Top Reasons to Have a Prenuptial Agreement

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Monday, June 3, 2013.

Property division are important for couples planning to marry. Many people believe prenuptial agreements are only for the rich and famous. However, prenuptial agreements help all couples. Here are a few reasons why:

Keeps Your Non-Marital Property Non-Marital. The property you brought into the marriage is yours. But over time it is common for people to start mixing things up. Inheritance funds get deposited into joint accounts, properties get transferred into joint names…and all for good reason. Unfortunately, tracing commingled property is expensive, and hard to prove. But, if you put it in writing at the beginning, you can avoid this task and save some money down the road.

You Can Change the Law. Right now in Florida, there has been an ongoing debate about alimony. When you go to court, a judge has to follow state law regarding alimony. However, through an agreement you can modify Florida’s legal standards for awarding alimony, in addition to modifying what the current law says about the amount of support and the duration of the alimony period.

Avoid Expensive Divorces. Let’s face it, divorce can be expensive, and the cases don’t end quickly. A prenuptial agreement can simplify things by resolving issues ahead of time, way before the divorce is even filed. Once you have entered an agreement spelling out what happens in the event of a divorce, the case becomes a lot more cheaper, simpler and faster to resolve.

Protects Your Children’s Inheritance. Prenuptial agreements protect property from falling into the hands of the new spouse, often seen by children from earlier marriages as a “gold digger.” An agreement helps assure your children that any inheritance is protected, and they don’t need to resent the new spouse.

It is important to be aware of all of the consequences of marriage, and do what planning you can to avoid complications and costs in advance

Divorce to Save Taxes? The Marriage Penalty Tax

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

Being married comes with joys, sacrifices, tax penalties and . . . wait, tax penalties?

The marriage penalty is the situation where a married couple pays higher income taxes than they would have paid if they were un-married and filed individual tax returns. Should you divorce to avoid this penalty?

The new American Taxpayer Relief Act of 2012 sort of reduced the marriage penalty by making permanent the Bush-era expanded standard deduction and the expanded 15% bracket for joint filers.

But for high income earners, the new law raises taxes on couples making more than $450,000 and individuals making more than $400,000. As it turns out, some couples are discovering they could save over $25,000 a year if they divorced.

Think about that for a second. If a couple could save over $25,000 a year on their taxes, they could take a Celebrity Cruise to Italy, ski Deer Valley, put a little cash away towards Penn, and still have some mad money to spend just by divorcing and turning their marriage into a long term relationship.

There are a lot of risks though, known and unknown. I would encourage anyone – before they even thought about speaking to their spouses – to think about a few things:

  • The impact on your relationship. I don’t know of a good way to ask for a divorce: “Honey, I want a divorce. No, no wait, come back, it’s to save big bucks . . . really!”
  • There is no fake divorce. Once the court signs the final judgment of divorce, you are divorced. Once you’re divorced, your Ex may find someone who thinks marriage is more valuable than 5% adjusted gross income.
  • IRS rules regarding your filing status have something to say. IRS publication 504 warns that if you obtain a divorce just to file as unmarried with the intent to remarry the next tax year, you have to file as married individuals.
  • State law. All no-fault states have minimum requirements for getting a divorce. Florida, for instance, requires at a minimum that your marriage be irretrievably broken before you can get a divorce.

In addition, there are estate planning issues, retirement and social security complications, and many other issues besides the mere tax savings.

Most people who marry do so forever, and with the sincere intention of honoring their vows. Is the money worth it?