Year: 2013

Florida Alimony Changes: The Latest

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Alimony on Monday, April 22, 2013.

alimony changes are on our horizon. As the Miami Herald reports, the Florida House adopted the Florida Senate’s version of the alimony reform bill, SB 718, and passed it overwhelmingly by a vote of 85 to 31. The bill will now go to Governor Rick Scott for his signature on its way to becoming law. The effective date of the new law, if signed by the Governor, will be July 1, 2013.

Remember, this law may be retroactive. That means that even if your divorce has been over for a few years, the new law could impact you. I have alimony paying clients who can’t wait to modify their alimony awards.

So, what are some of the changes in store for Floridians? Highlights of SB 718 include:

  • The “standard of living enjoyed during a marriage” factor in alimony is gone.
  • There will be percentage caps on a paying spouse’s income which can be awarded as alimony.
  • Permanent alimony is eliminated in Florida.
  • The court may not award alimony for longer than half the length of the marriage, unless need is established.
  • A court must reduce or end alimony if the receiving spouse is in a supportive relationship.
  • There are also a couple of non-alimony changes which were slipped into the bill:
  • Florida’s new public policy is that equal time-sharing for parents is in the best interests of the children.

The law creates formulas for calculating the marital portion of non-marital real estate. For instance, in some cases people have used their salary to pay down the mortgage on their pre-marital house. Does the other spouse get some interest in that non-marital property? If so, how much?

The text of Senate bill SB 718 can be read here.

Florida Alimony Changes: Update

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Alimony on Wednesday, April 17, 2013.

Today is ANOTHER big day for Florida alimony changes. Last week I posted about the Florida Senate passing Senate bill (SB 718), which fundamentally changes alimony in Florida.

Yesterday the House adopted the Senate version of the bill, SB 718. Today, the Florida House bill, HB 231, is scheduled for its third reading and possible House floor vote. It is on today’s Special Session, April 18, 2013 at 10:30. You can watch all the legislative action here.

Coincidentally, the Wall Street Journal has a timely article about the big changes to Florida’s alimony laws, and looks at how other states, like Massachusetts and Michigan, are changing their laws too. Floridians should take note that this is not a movement unique to our state, but reflects societal changes across the country.

Florida is one of a growing number of states where proponents of alimony-law changes are making an aggressive push. A similar measure took effect in Massachusetts last year, and comparable bills are pending in New Jersey, Connecticut, Colorado and Oregon.

The proposals have triggered contentious debate, pitting payers who decry what they call unjust awards against family-law attorneys who say the measures are punitive to women.

Supporters say alimony laws in many states tether former spouses indefinitely and are outdated at a time when women make up 47% of the labor force. They also complain that judges have too much leeway to fashion awards, yielding wildly disparate judgments.

  • Briefly, the House bill (HB 231) does the following:
  • Revises factors to be considered in alimony awards;
  • Automatically terminates alimony in certain circumstances;
  • Requires the imputation of income in some cases;
  • May allow an offset of or other consideration of alimony in determining equitable distribution or child support;
  • Creates a presumption in favor of equal time-sharing by parents;
  • Allows for attorney fees if obligee unnecessarily seeks modification or termination;
  • Makes retirement age a reason to modify alimony.

Can A Divorce Court Block Facebook Contact with your Kids?

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, April 12, 2013.

child custody proceedings can bring out the worst in people. I wrote an article, published in the Florida Bar Family Law Section Commentator, on the use of Facebook in divorce trials. Recently, an appellate court in Georgia upheld a trial order prohibiting parents from interacting and contacting their children through Facebook. Essentially, a court blocked posting on their Facebook accounts.

The Georgia divorce case of Lacy v. Lacy shows the conflict between our First Amendment rights to free speech and a court’s authority in child custody cases to protect children from the harmful comments and actions of their parents going through a bitter divorce dispute.

In the high conflict custody Lacy case, a trial judge prohibited the father from having any contact with his children. Specifically, the judge entered an order which:

“restrained and enjoined [the parties] from posting matters about each other or their current litigation on Facebook or other social networking sites.”

The appellate court allowed the Facebook injunction to stand, essentially disabling or blocking Mr. Lacy’s account. The appellate court found that Georgia courts had previously required parties in divorce proceedings: “to refrain from making derogatory remarks about the other before the children.”

Additionally, Georgia courts have previously found parents in contempt of court for violating court orders restraining telephone calls to the other spouse’s workplace. To the Lacy appellate court, retricting Facebook communication was not such a stretch from previous Georgia decisions.

There are three good lessons to be learned from Lacy v. Lacy.

First, the courts can prohibit you from using electronic communications in a way which can harm children. If parents in a divorce are discussing their divorce proceedings, and making derogatory and disparaging comments about each other on Facebook, there is now authority for a court to stop that kind of conduct whether it is by telephone or Facebook.

Second, posting derogatory comments about your family members on Facebook can hurt your family.

And third, it’s never a good idea to anger the judges about to decide your case. You know you’re your appeal is in trouble when the first finding of fact by the appellate court is:

“As an initial matter, we note that the father’s briefs are rife with discourteous and disparaging comments regarding the Ocmulgee Circuit judiciary in general . . . “

Major News About Florida Alimony Changes

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Alimony on Friday, April 5, 2013.

It looks like Florida alimony law will dramatically change again! The Florida Senate just passed Senate bill (SB 718), which makes drastic changes to Florida’s alimony statute. There is a similar bill floating around the Florida House floor. House bill (HB 231) passed easily in the House Judiciary Committee by a vote of 14 to 4, and will now go to the House floor later this month for a final vote. Once Governor Scott signs the bills into law, Florida Statutes and the way courts can award alimony will change dramatically.

Here are some of the big changes coming our way:

  • Courts must impute income to an unemployed spouse.
  • There would be a presumption against alimony for short-term marriages.
  • Permanent alimony is eliminated.
  • A court couldn’t award alimony for more than half the length of the marriage without clear and convincing evidence.
  • The retirement of the paying spouse would become a substantial change in circumstances.
  • Alimony must be reduced or terminated if the payee spouse is in a supportive relationship.
  • The new law would apply to all orders entered before the bill became law, so the bill itself would be grounds for modifying or terminating alimony.
  • The bill would create a presumption in favor of equal time-sharing.

As the Associated Press reports:

TALLAHASSEE, Fla. (AP) — The Florida Senate has passed a bill that would put an end to permanent alimony in the Sunshine State.

It’s the latest attempt by Florida lawmakers to set new guidelines for the emotional issue of spousal support after marriages dissolve. A similar bill died in the Legislature last year.

The version that cleared the Senate on a 29-11 vote Thursday would replace permanent alimony with spousal support that has a foreseeable end.

It also would make it harder to get alimony in short-term marriages.

The Florida House is considering similar legislation.

Divorce and the Pregnant Man

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, April 1, 2013.

With all of the talk about marriage, divorce and the U.S. Supreme Court oral argument in the Defense of Marriage Act case, there is a timely decision out of Phoenix, Arizona about the Thomas Beatie divorce, a matter I blogged about a while ago. Do you remember Tom?

To recap, Tom was born Tracy Lehuanani Lagondino in Oahu, Hawaii. She began undergoing testosterone therapy, and after psychological testing, her first surgeries were performed in 2002. After that Tracy’s birth certificate and driver’s license changed. Six months later, Tracy became Tom.

Tom married his girlfriend Nancy in 2003, and because Nancy couldn’t have children, Tom had the child. Tom conceived – with donated sperm – and gave birth to children who are now 4, 3 and 2 years old. The couple eventually moved to Arizona.

When news leaked out of the pregnancy, Tom became an instant hint as “The Pregnant Man,” appearing on Oprah, Barbara Walters, Letterman etc. He also wrote a book, and is a motivational speaker for transgender rights.

Now Tom wants to end his marriage to Nancy, and filed in Phoenix, Arizona. Arizona, like Florida, bans same-sex marriages, which prevents Tom’s nine-year union with Nancy from being recognized as a valid marriage. So, Tom’s divorce plans stalled last summer when a judge said he was unable to find legal authority defining a man as someone who can give birth. However, the case has been left in legal limbo for a while.

Last week Maricopa County Family Court Judge Douglas Gerlach ruled that Arizona’s ban on same-sex marriages prevents Thomas Beatie’s nine-year union from being recognized as valid. Gerlach said he had no jurisdiction to approve a divorce because there’s insufficient evidence that Beatie was a man when he married Nancy Beatie in Hawaii. As USA Today reports:

“The decision here is not based on the conclusion that this case involves a same-sex marriage merely because one of the parties is a transsexual male, but instead, the decision is compelled by the fact that the parties failed to prove that (Thomas Beatie) was a transsexual male when they were issued their marriage license,” he wrote in Friday’s ruling.

The judge’s ruling also said it didn’t address whether Arizona law allows a person who was born female to marry another female after undergoing a sex change operation. Gerlach’s ruling also noted that Thomas Beatie halted the testosterone treatments and that he didn’t provide documentation for any additional non-surgical efforts.

Enforcing Religious Marriage Contracts: How to Get a Get

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, March 27, 2013.

Divorce can be tricky when the divorcing couple is religious. Religious issues have arisen for clients of all faiths. This is especially true during religious holidays like Passover/Easter, and usually deal with decisions over holiday timesharing and religious upbringing.

However, different religions can have unique issues. For instance, Muslim clients sometimes have had disputes over the interpretation and enforcement of Mahr agreements – a religious prenuptial agreement.

For Jewish clients, a frequent problem is the “chained wife” or agunah. In Judaism, for a divorce to be effective, Jewish law requires that a man grant his wife a get. An agunah, or chained wife, is legally divorced in Florida, but the ex-husband refuses to sign a get.

There has historically been an imbalance of power, giving men the upper hand when religious couples negotiate child custody, division of assets and other issues. In some cases, wives and their families have paid hundreds of thousands of dollars for their husband to grant them a get.

Recently, a Connecticut trial court affirmed the constitutionality of the Modern Orthodox prenuptial agreement created by Beth Din of America aimed at protecting chained wives.

The Jewish Daily Forward reports that Rachel Light, a former wife, entered into a prenuptial agreement which had a ‘damages for delay’ clause requiring the husband to pay roughly $100 per day for every day he refused to sign a get. Ms. Light may possibly claim damages of more tha $100,000 from her ex-husband because he refused to sign a get.

Susan Aranoff, director of the advocacy group Agunah International, called the decision a ‘breakthrough for women,’ saying, “The unanswered question with regard to the prenup was always will it be enforceable in court. Now that is has been enforced husbands know there is a cost for withholding a get.”

Last July Rachel sued arguing that while she and Eben had separated years earlier, Eben refused to grant her a get. Rachel asked the court to enforce the provision in the prenup in which Eben agreed to pay $100, plus adjusted inflation, for every day he refused to grant the get. Eben argued that the prenup was a religious matter, and as such, it was unconstitutional for a secular court to enforce the document.

In his opinion, the judge found that enforcing the prenup was no different from enforcing a secular contract. He cited several cases, including Odatalla v. Odatalla, where a New Jersey court enforced an Islamic mahr agreement, and Avitzur v. Avitzur, which ruled that it was constitutional for a secular court to enforce a ketubah, or Jewish marriage contract.

Gay Marriage, Divorce, and Star Wars

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, March 22, 2013.

There is a phantom menace in Florida. Couples who want to divorce may not have solemnized their vows properly. Florida strictly regulates who can solemnize a marriage. The list includes: ordained clergy, judicial officers, clerks of court and notaries public.

If your marriage was not legally solemnized, you may only be eligible for legal annulment; you would not be able to file for divorce, and you may not plead for alimony or equitable distribution in your legal petition.

In Scotland there is a new hope. The Scots are holding public consultation on the Marriage and Civil Partnership Bill, which would legalize gay marriage, and grant official recognition to weddings performed by Jedi Knights. In Scotland, we are literally witnessing the return of the Jedi:

The Force is strong with the Jedi in Scotland. A bill under consideration in Scotland would grant those who have literally made “Star Wars” a religion the power to perform marriage ceremonies.

And while it may sound like a joke to most, the Jedi religion is quite popular in some parts of Europe. In England, it is the second-most popular “alternative religion,” with more than 175,000 people listing themselves as Jedi in the 2012 nationwide census.

“Our current consultation covers not only the introduction of same-sex marriage but also the detail of important protections in relation to religious bodies and celebrants, freedom of speech and education,” a Scottish government spokeswoman said.

“At the moment, marriage ceremonies by bodies such as humanists have been classed as religious, even though the beliefs of such organizations are nonreligious….”

The Scottish government plans to hold a public consultation on the bill and, of course, not all traditionally religious groups are happy about creating a new category for ceremonies that are by their very nature, arguably, a religious practice.

“There are loads of people in a diverse society like this for whom belief can mean virtually anything-the Flat Earth Society and Jedi Knights Society-who knows?” the Rev. Iver Martin told the BBC.

For their part, the Jedi say the very nature of their beliefs would prevent them from tarnishing any other religious institutions.

Is there a problem with allowing light saber wielding Jedi to solemnize matrimony in Florida? Legalization of Jedi weddings in Scotland is part of a larger bill designed to legalize gay marriage. The attack of Jedi weddings could bolster claims from gay marriage opponents who could argue that legalizing gay marriage will lead us down a slippery slope. After all, if Jedi marriages become legal, how can we deny matrimony to others without risking a Clone War?

Florida Alimony Reform

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Alimony on Wednesday, March 20, 2013.

alimony is up for debate again in Florida. This year though, the reforms are HUGE. The Florida Senate Bill is 718 and the Florida House bill is 231, and they are being debated in Tallahassee right now. You can read the Senate bill here. Some of the items in the new bills which are creating a stir are:

Factors for awarding alimony

  • The bill deletes the standard of living enjoyed during a marriage factor.
  • There would be a new presumption that both parties will have a reduced standard of living.
  • Courts must impute income to an unemployed spouse.

Amends Presumptions

  • The bill adds 3 years to each category of marriage (short, moderate and long).
  • There would be a presumption against alimony for short-term marriages.

Amends Alimony Types

  • Permanent periodic alimony is eliminated.
  • Alimony types would be prioritized, so that bridge-the-gap is considered first, then rehabilitative, lastly, durational alimony.
  • A court couldn’t award alimony for more than half the length of the marriage without clear and convincing evidence.
  • The bill limits the cases in which a court could award combinations of alimony.

Modifies Alimony Modifications

  • The retirement of the paying spouse would become a substantial change in circumstances.
  • Alimony would automatically terminate at normal retirement age.
  • Alimony must be reduced or terminated if the payee spouse is in a supportive relationship.
  • The new law would apply to all orders entered before the bill became law, so the bill itself would be grounds for modifying or terminating alimony.

Timesharing

  • The bill would create a presumption in favor of equal time-sharing.

While some people support the Bills, some people hate it. The Family Law Section of the Florida Bar, for instance, is voicing strong opposition to this legislation, and pointing out some little-understood facts about alimony.

  • Florida courts do not routinely award permanent alimony.
  • Florida courts can ONLY award permanent alimony after making findings of fact that no other form of alimony is fair and reasonable.
  • Permanent alimony awards are almost always in long-term marriages.
  • Permanent alimony is always modifiable.
  • Florida courts cannot order permanent non-modifiable alimony.

Stay tuned.

How To Void a Prenuptial Agreement

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, March 13, 2013.

Having a prenuptial agreement shoved under your nose days before your wedding can be frightening. It also can raise issues many people don’t want to face: things like finances and the possibility of divorce.

Because of Florida’s policy of enforcing agreements, prenups can be difficult to void – but not impossible.

In Long Island, Elizabeth Petrakis felt forced by her future Husband to sign her prenup 4 days before her 1998 wedding to millionaire Peter Petrakis.

According to Elizabeth, her future Husband promised to rip up their agreement once they had children. But after having twin sons and a daughter, the prenup stayed intact.

A trial court in New York voided the prenup on the grounds of “fraud in the inducement” and recently an appellate court approved of that ruling – recognizing that the Husband misled the Wife in the contract, and finding his “credibility to be suspect.” As her attorney said:

“You can enter into prenups, but you shouldn’t when you’re marginalizing your spouse or being too greedy.” “The argument was helped by inequality of the prenuptial agreement.”

Another attorney further explained the court’s decision:

“Many couples discuss the terms of their prenups and say they will do or say things in the future that are not memorialized in writing,” she said. “However, this fraudulent inducement to buy a house put the marital home in joint name and make other financial incentives after the parties wed appeared to sway the appellate panel who agreed to set aside the prenuptial agreement based on fraud.”

Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable. Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Introducing the 3 Parent Birth Certificate

Posted by admin on

On behalf of Ronald H. Kauffman, P.A. posted in Domestic Partnerships on Tuesday, March 5, 2013.

Florida child custody law relating to homosexuality is a work in progress. For example, Florida law restricts the issuance of birth certificates, and expressly states that no person may adopt if that person is a homosexual. However, the ban on homosexual adoptions has been held to violate the equal protection provision of the Florida Constitution.

In re: Gill, 45 So. 3rd 79 (Fla. 3d DCA 2010), declared Florida Statute §63.042(3) unconstitutional, and granted the adoption of foster children to a gay foster parent. The court ruled there was no rational relationship between the statutory ban and the best interests of children.

“Under Florida law, homosexual persons are allowed to serve as foster parents or guardians, but are barred from being considered for adoptive parents. All other persons are eligible to be considered case-by-case to be adoptive parents, but not homosexual persons – even where, as here, the adoptive parent is a fit parent and the adoption is in the best interest of the children.”

Gill overturned the long-standing statutory ban on gay adoption, and opened the legal doors for all qualified gay persons, whether previous adoptive parents or not.

With the law as it is, it is notable that Miami-Dade Circuit Judge Antonio Marin approved the adoption of a 22-month-old baby girl that will list three people as parents on her birth certificate: a married lesbian couple and a gay man. Judge Marin’s order ended a two-year paternity fight between the couple and a friend of the women who donated his sperm, but wanted to play a role in the child’s life. You can read more about the decision here.

Judge Marin’s order means the child’s birth certificate will include a biological father and both women as parents, and the two women will have sole parental rights. While the father will be allowed to visit the child, he is not expected to provide any child support.