Month: January 2014

Are the ashes from a cremation marital property?

On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Monday, January 27, 2014.

Dividing up of assets and liabilities in a divorce does not always mean money, houses, and credit cards. divorced can involve surprising things like breast augmentation, and very sad things like the remains of a stillborn fetus. And that’s exactly the asset a court in Albany, New York had to divide. Should the court’s decision be based on equitable distribution theory or on a Roe v. Wade woman’s right to choose?

In Jackson v. Jackson, the “property” was a stillborn fetus that was miscarried at 26 weeks. The parties separated a few months later. The wife testified during separation, the husband threatened to flush the ashes down a toilet. He testified he had a bad year, and made the comment in anger.

New York law provides that a fetal death is defined as death prior to the complete expulsion or extraction from its mother of a product of conception.

Do the ashes of a stillborn fetus conceived and miscarried during the marriage constitute marital or separate property? Like Florida, New York defines marital property as property acquired during the marriage.

Ashes are clearly marital property because there is no other alternative. However, the Wife owned the eggs from which the fetus developed before the marriage. The Husband impregnating her with sperm acquired after the marriage would clearly be a co-mingling.

Moreover, there is no way to characterize or to measure any enhanced value of a 26 week old fetus that was produced by the joining of the mother’s egg and the father’s sperm, regardless of when each contribution was made.

While property acquired during marriage is presumed to be marital, the public policy of New York gives the woman full control over the progress and outcome of her pregnancy without veto power by a husband or putative father – subject only to the restrictions of the Roe v. Wade trimester regime, upon which the Florida law is based.

Accordingly, the ashes of the stillborn birth are the Wife’s separate property.

This case raises questions that have never been answered in Florida. If a pregnancy terminates in a stillbirth, should the man and woman have equal rights to the remains under standard equitable distribution law? Or does a woman’s control of her own body lead to the right answer under a Roe v. Wade approach?

Thanks to Prof. Eugene Volokh at the Volokh Conspiracy for the pointer. The case of Jackson v. Jackson can be read here.

When is the best time to divorce?

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, January 22, 2014.

Did you know that beginning of the year was the most popular time for getting married in Florida? It is also the most popular time to get divorce. In fact, January is nicknamed the “Divorce Month”. Researchers at recently did an analysis of all American divorce filings and found that there is a spike in divorces in January, followed by a peak in late March. What’s happening at the beginning of the new year that causes people to both marry and divorce?

The research analysis also showed internet search terms for “divorce” and phrases like “family law” and “child custody” jumped by 50% from December to January, and continued to swell through March. As the research shows:

For some people, it’s all about money. The end of the year is typically when bonuses are paid. Bonuses can be classified as marital property or factored into support payments. By filing before the bonus is received, you may avoid the marital characterization, and it may also help with tax filings.

Other people view the start of a new year as an “existential moment” in that people look at their lives, realize they go by too quickly and that their current version is not happy.

A study noted that of those who cheat on their spouses, 56% of men and 42% of women do so during the holiday season. These affairs may trigger post-New Year’s divorce filings.

Still for other couples the start of the new year marks the end of the ‘Season of Togetherness’, now it’s back to real life.

Some of the interesting statistics compiled by the state of Florida include:

  • The number of marriages decreased between 2011 and 2012
  • The marriage rate increased between 2010 and 2012.
  • March was the most popular month for marriage.
  • The most popular date of marriage in 2012 was 12/12/12
  • In 2012 the marriage rate in Florida was 1.7 times the dissolution rate.
  • The mean duration of marriage resulting in a 2012 dissolution was 10 years.

If you’re considering filing for divorce, here are 5 questions to think about:

1. Can your marriage be saved?

2. Do you have a plan?

3. Do you have a support network?

4. Are you safe?

5. Do you have a board certified expert divorce attorney?

Assisted Reproductive Technology Fraud

On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Friday, January 17, 2014.

There has been a big increase in divorce (ART). ART involves removing eggs from ovaries, combining them with sperm in a lab, and returning them to the woman or donating them to another. ART now accounts for 3 of every 100 children born in the U.S. ART offers opportunities for parenthood, but is also a ripe area for fraud.

The majority of ART usage involves couples undergoing in vitro fertilization – this is called 1st Party assisted reproduction. A growing number of procedures though use third-party collaborators who act as sperm donors, egg donors, and gestational carriers.

Most 3rd Party ART procedures are done without complication or incident. However, a recent article from the American Medical Association confirms what we already know, that we must be aware of and plan for potential misconduct.

Donor Misconduct

Donors may go through extensive screening, but, they may not be truthful when filling out their profile. Two large areas to be aware of are:

(1) Donor’s intention to claim parental rights over resulting child.

Parents intending to solicit donors shouldn’t presume donors will waive their parental rights. There have been a few cases where donors change their minds. Florida is a leading state in the enforceability of gestational surrogacy agreements.

(2) Donor health histories.

What happens when a donor reveals to a doctor a previously undisclosed health problem, such as a family history of cancer, depression, or prior meth addiction? Lies in a profile about health-related matters threaten the well-being of a potential child.

Surrogate Parenting Misconduct

Surrogate parenting allows a married infertile couple to contract with a woman to gestate a child, and then relinquish it after birth. We memorialize this in detailed gestational surrogacy agreements. Two big areas of concern include:

(1) The intended parents hide the fact that they are getting divorced when the agreement calls for the child being born into an intact marriage.

(2) A surrogate fails to comply with the contractual ban on coffee, chocolate, or alcohol use on a regular basis.

Infertile parents have an unprecedented opportunity to enjoy the rewards of parenting. Florida has set itself apart as a haven for ART, as our laws make the process less prone to legal problems. Some states and countries ban these practices altogether.

Florida is very advanced in this area of law, and is one of the few states that permits intended parents to establish the parental status to a child born through assisted reproduction without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable. If you’re thinking of slapping together a “do it yourselfer” contract, think again, you could face legal risks

Shari’ah and Foreign Laws in a Florida Divorce

On behalf of Ronald H. Kauffman, P.A. posted in Religious Divorces on Tuesday, January 14, 2014.

If you are in a divorce, and have religious divorce issues or foreign laws you must follow, can a Florida court uphold them? Last year the Florida Senate tried to restrict courts from applying foreign law to disputes relating to divorce. The ‘Anti-Shari’ah” bill died in the Senate by 1 vote. So can we now start divorcing under Sharia law? How about Jewish or Catholic rules?

As the Volokh Conspiracy recently posted, a New York court last week had to consider Saudi and Sharia law, and it turned out the world didn’t end:

In Standard Chartered Bank v. Ahmad Hamad AL Gosaibi and Bros. Co., 2014 WL 96219 (N.Y. trial ct. Jan. 10, 2014) the Defendants tried to quash a subpoena because compliance would expose them to civil and criminal penalties under Saudi Arabian law.

The plaintiffs countered that Saudi law and Shari’ah law actually obligated a Saudi debtor to fully disclose its assets to its creditors. So the disclosure was consistent with Saudi and Shari’ah law.

The New York court agreed with the plaintiff.

There are times when Sharia, and other religious or foreign laws, come up in a divorce. Sometimes contracts will stipulate a ‘choice of law’. For example, a prenuptial agreement may designate “New York” as the jurisdiction whose law governs disputes arising between the couple.

Other times, a foreign law or religious custom is highly probative, and relevant to a case, so a court will want to conduct a review of any foreign statutes, case law, or secondary sources, and will have to rely heavily on expert testimony. Consider the Standard Charter case above.

This can be good thing, and a restriction on using foreign, and especially Shari’ah law, in courts seems counterproductive. Our legal system has been around a while, and does a good job of dealing with foreign and religious issues.

Florida Statute Chapter 61 is not being replaced by the Bible, Torah or Quran anytime soon. But as the New York court shows, sometimes foreign laws and customs can shed light on a Florida court’s ability to resolve questions of fact and law.

Right of First Refusal in Custody Cases

On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, January 10, 2014.

Sometimes a parent has to miss out on time with the children. It’s not that mom or dad is neglectful, just that life sometimes intervenes: the boss wants mom to work late, or dad has an exam. Are you required to ask your Ex-spouse to care for the kids first, or can you get a babysitter or family member to fill in? The Right of First Refusal answers that question.

It is never easy to divide timesharing in a child child custody dispute, especially when you can’t be there for your own child. Do you have to allow your Ex first dibs?

The right of first refusal requires that one parent first offer the other parent the opportunity to look after the children before hiring a babysitter or asking another person to care for the children.

The right of first refusal can come up when you’ve planned to be out of town, or in last-minute situations. The other parent may be able to take the kids for that weekend or night, and you can make up the difference later.

If the other parent can’t pick up the slack, then a babysitter, family member or even a friend can fill in. The right of first refusal can apply to time periods of an hour, to days depending on your agreement.

The right of first refusal maximizes a parent’s time with their kids. I’ve also found that when there is a right of first refusal, the parents are more likely to communicate with each other, and hopefully eliminate some of the anger between parents.

Illinois is about to enact a law requiring the right of first refusal. Effective January 14, 2014, the new Illinois statute 602.3 will require that:

If it is in the best interest of the child, both parties shall have the right of first refusal to care for the minor children if the absence of either party is necessary for a period of 4 hours or longer. That parent shall first offer the other parent an opportunity for additional time with the children before making other arrangements for the temporary care of the children.

The new statute contains provisions concerning distance, transportation, and time constraints. It also requires a parent to notify the other parent of the duration of the parenting time or temporary care of the children by other persons. And contains requirements regarding the offering and acceptance of additional parenting time.

Florida does not have a statute requiring the right of first refusal. Reading through the Illinois statute, I wonder whether this will become an issue for Florida’s legislature will pick up.

Timesharing is based primarily on the “best interests” of a child. Should the right of first refusal be regarded as in the best interest of absent a showing of impracticability or harm to a child?

The statute can be read here.

Florida Alimony Reform: A Global Perspective

On behalf of Ronald H. Kauffman, P.A. posted in Alimony on Monday, January 6, 2014.

In considering alimony reform in the US, and especially here in Florida, it is helpful to compare how alimony is awarded around the world. For instance, England has just been branded the divorce capital of the world precisely because judges there are free to award generous payments to former partners, a recent survey has shown.

The flexibility given to judges presiding over divorce proceedings in England and Wales means spouses are more likely to receive generous maintenance payments than in 13 other countries, the research finds.

The survey examined spousal maintenance payments in jurisdictions across Europe, the United States, South Africa and New Zealand. As the London Daily Mail reports:

London has gained a reputation for being the divorce capital of the world in recent years after a series of generous payouts to ex-wives. These have included:

– Ex-Beatle Sir Paul McCartney, who was ordered to pay Heather Mills £24.3m (a little over $39m) after four years of marriage

– Beverley Charman, former wife of John Charman, the insurance magnate, awarded £48m (about $79m);

– Michelle Young, former wife of Scot Young, a one-time fixer for Russian oligarchs who was recently awarded a £20m (almost $30m) lump sum after divorcing; and

– An unnamed Russian businessman, identified as M, was ordered to pay £38m (roughly $62m) to his ex-wife and transfer UK properties to her in a complex case involving tracing assets all over the world.

The survey also found:

– German courts use guidelines, which provide certainty in maintenance calculations.

– Cyprus, Germany and Switzerland, the length of time, or term, for maintenance can be strictly limited.

– France and Malta still consider as a question when considering alimony awards. In Malta, the right to alimony is forfeited if the recipient “caused the breakdown of the marriage for reasons of adultery, cruelty or grievous injury or desertion for two years or more without good cause”.

Miami is an international city, and when considering Florida’s alimony standards – and any need to change them – it is helpful to consider how our laws differ with other advanced countries.

A Positive Side to Divorce

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, January 2, 2014.

Everyone has heard of the problems with divorce: the impact on children, the serious effect on men and women’s health, and other issues. And, the number of divorced and separated women in the US is on the rise. A recent study has found that a record 15% of American women are divorced or separated. Is there any good news? The answer is . . . yeah.

According to a recent study, experiencing adversity through things like divorce and death may actually enhance your appreciation for other life pleasures. psychology professors published their findings in the Journal of Social, Psychological & Personality Science.

They asked about 15,000 adults to complete a vignette-based measure of savoring and gave the participants a checklist of adverse events (things like, divorce, death of a loved one and other adverse events) and asked them to indicate whether they had experienced any of these events and, if so, to specify whether they felt they had emotionally dealt with the negative event or were still struggling with it.

Although people who were currently struggling with adversity reported a diminished proclivity for savoring positive events, individuals who had dealt with more adversity in the past reported an elevated capacity for savoring.

Their conclusion is not so surprising. If you have dealt with more adversity in your past, as many in the study had, you would have reported an elevated capacity for savoring positive events. Conversely, if you were still going through a divorce for example, you would have reported, like many participants, a diminished proclivity for savoring positive events.

The abstract of the study can be read here.