Month: October 2014

Halloween Timesharing

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, October 27, 2014.

The screams this Halloween may have nothing to do with spirits. Sometimes they are the howls of frustration from divorce and separated parents fighting over Halloween timesharing. Children should have a fun night. How can you help?

Diane L. Danois, a Certified Family Law Mediator, Parenting Coordinator, and Co-Parenting and Divorce Coach offers a few tips:

Plan ahead. Communicate with the other parent about what the plans for Halloween are.

Review your Parenting Plan to see if there is a provision for Halloween. The Florida Supreme Court approved parenting plans include a holiday section which expressly discusses Halloween.

Are you and you Ex-spouse available to go trick or treating this year? Is there an opportunity to adjust the schedule? Whatever the final decision, don’t put the kids in the middle or leave it to the last minute.

Sharing Halloween can be fun. If you and your Ex live in different neighborhoods, try to make arrangements to have your children split the evening and trick or treat in both neighborhoods! The kids won’t say, “NO!” to double the candy!

It may be a little awkward to stroll around the neighborhood with your Ex and her new spouse, but think about the message you will send your children: We can put our issues aside for your benefit.

Alternatively, you can split the holiday into separate events. If your situation simply doesn’t allow for co-parenting, think about spending Mischief Night (October 30th) with one parent, and Halloween Night (October 31st) with the other.

You can also split up the Halloween preparation. Shop for costumes together, or carve pumpkins with one parent, and put up fake ghosts, goblins, spiders and other Halloween decorations and then trick-or-treat with the other.

Extend the celebration by sharing photographs of your kids in their costumes to all members of their family! Tweet, Instagram, or Facebook the fun.

If none of the above will really work for your circumstance, and you find yourself planning on a quiet night with the lights off, let your children know that you’re OK!

Don’t amp-up on your own loneliness, or let your children know that you will miss them so much while they’re out trick or treating and you’ll be all alone. Let your treat be giving them the knowledge and comfort that you’re having a fun evening, too!

Lastly, a word of advice: Don’t ask your children with whom or where they would like to spend Halloween. Your kids don’t need or want the pressures associated with having to choose. Assume that under different circumstances, your children would want to be together with both of their parents at the same time… and then work from there.

The article can be read here.

A New Order Impacts Every Dade County Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, October 23, 2014.

A Florida Congressman’s messy divorce is a lot messier. His wife claims he’s not paying for home repairs and cut off her credit cards. Will the new Miami Administrative Order make vengeful tactics a thing of the past?

Dirty tricks, such as cutting off health insurance, chopping up credit cards, and turning off vital utilities, are common events in a divorce.

The Florida Congressman’s wife has been a stay-at-home mother, and has no financial resources to maintain the home. The Congressman’s attorney says:

“If she is a poor housekeeper, that’s her issue, not his.”

In August 2014, the Chief Judge of the 11th Judicial Circuit in Miami-Dade County entered an administrative order impacting every divorce in Miami.

The order imposes new rules which may impact every single new divorce in Miami include the following:

  • Neither party can permanently remove children from their current county of residence.
  • If you have children, the parent with whom the children are not residing should make voluntary payments of child support before entry of an order requiring child support.
  • Parents are ordered to abide by the shared parental responsibility statute.
  • Everyone is required to attend mediation before a final hearing.
  • Everyone is now ordered to refrain from physical, verbal, or any other form of harassment, including by telephone, email, or text messaging at their house or at work.
  • No one in a divorce can conceal, damage, or dispose of any asset, except by written consent of the parties or an order of court.
  • Neither party can cancel telephone, electric, or water and sewer services.
  • Neither party can destroy family records, business records, or any records of income or debts.
  • No one in a divorce can incur any unreasonable debts binding the other spouse.

The new Administrative order is now in effect. It was designed to promote the stability of families going through a divorce, and reduce the number of “emergency” hearings.

The new administrative order is available here.

Lavish Weddings and Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, October 20, 2014.

When Chelsea Clinton married Marc Mezvinsky, it is believed their wedding cost $5 million. Jay Z is rumored to have spent $5 million on Beyonce’s engagement ring. Does spending more on your wedding reduce the risk of divorce?

Ironically, a new study shows that your marriage’s duration is actually inversely associated with how much you spend on the engagement ring and wedding ceremony. Two economics professors at Emory carried out a study on over 3,000 men and women.

The professors found that men who spent between $2,000 and $4,000 on engagement rings were 1.3 times more likely to get divorced than men who spent between $500 and $2,000 on a ring.

But there’s more to the study too. In sum, the professors found that:

There is little evidence that expensive weddings and the duration of marriages are positively related.

High spending on the engagement ring is inversely related with the length of a marriage among males.

High spending on a wedding is inversely related with marriage length among females

Low spending on a wedding is positively associated with duration among both males and females.

High wedding attendance and having a honeymoon (regardless of how much it cost) are generally positively associated with marriage duration.

The wedding industry has grown to a $50 billion industry. The average American wedding cost is $29,858.

“In 1959, Bride’s recommended that couples set aside two months to prepare for their wedding and published a checklist with 22 tasks for them to complete. By the 1990s, the magazine recommended 12 months for wedding preparation and published a checklist with 44 tasks to complete.”

The study suggests that the close relationship between divorce and your spending on a lavish wedding and engagement ring could be due to the stress on couples from the debt of their wedding day and ring purchase.

According to the study, if you are going to have a wedding, invite as many people as possible, and take a honeymoon. The study confirms that a big wedding attendance and any kind of honeymoon – regardless of cost – was positively associated with the length of a marriage.

The study can be read here.

Custody and Courtroom Demeanor

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, October 13, 2014.

How you speak, dress and act can impact the outcome in a child custody case. Judges use their intuition to size up a witness. Being aware of that can be critical.

For one mother who lost custody, the judge’s perception of her credibility seemed to have been the key issue in her case. I’ve written about courtroom etiquette before.

In the New York case, the Mother testified that she met the Father during an interview at Best Buy. They engaged in conversation which led to discussion of their common interests including music .

He flirted with her and during her training, overheard her conversation about her sexual preference, stating that if she dated the proper person her “lesbian problem would be fixed.”

He invited her to his birthday dinner, and later to his home to record music, had a drink and talked about her sex life.

She spent the night and the following day. The next night he asked to perform oral sex on her again and she agreed. Then he tried to penetrate her and she tensed up and hesitated.She testified she laid there and cried.

She testified that she did not want someone who raped her to be a part of the child’s life. During the hearing, she also testified that he was a “good guy” and a mentor to her.

The Judge, considering the Mother’s inconsistent testimony and demeanor. He did not find her testimony credible. In speaking of the alleged rape, she often smiled and laughed; showing a lack of seriousness for the situation at hand.

The Mother’s contradicting testimony and actions indicate, that if awarded sole custody, she would not be able to promote or foster a positive relationship between the father and the child which would be extremely harmful to the child’s well-being and contrary to her best interest.

When testifying, consider the solemnity of the courtroom, and understand that judges are listening and watching you carefully to determine your demeanor and honesty. The case can be read here.

Relocations from the Judge’s Perspective

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Friday, October 10, 2014.

Parent and child divorce cases are some of the most challenging. If denied, a parent may be forced to move without their child. If granted, a parent is crushed, a child could be harmed, and there is a timesharng schedule to work out.

It is always helpful to hear about them from the view of a sitting judge who makes the decision. Whenever a judge writes on relocation, I try to pass along that information as I’ve done before.

Judge Sally D.M. Kest is a judge in Orange County. She recently published an article in The Commentator, a magazine published by our Family Law Section. I currently serve as the Chair of the Commentator for the 2014-2015 term.

Judge Kest has found that many attorneys do not comply with the relocation statute. For example, they forget to present evidence about the factors involving the child’s relationships, fixating instead on the relocating parent will have more time, or more money, or will be happier.

One argument concerns the future parent/child relationship becoming as good, or even better, because the child and non-relocating parent will have extended timesharing during the summer or vacations.

This ignores the benefits of having regular contact with a child. Daily contact allows the parent to be involved in the daily life, friends, school and extra-curricular activities of the child.

One problem in relocation cases is balancing the statutory factors and the parent’s reason for relocation. The typical reasons for relocation include: remarriage of a parent, a new job offer, a job transfer, a desire to pursue additional educational opportunities, or a desire to be closer to extended family.

While these life events may result in some positive benefits for the child, the court must balance these benefits against the loss of regular and consistent contact with the non-relocating parent.

Another problem overlooked is that people forget to consider the child’s loss of frequent contact with the stay home parent. Failing to acknowledge that the move will significantly affect the parent/child relationship can result in of the court denying the relocation.

People also forget that for the court to make findings and decision regarding the relocation, the facts presented at the evidentiary hearing must address the statutory factors.

In Florida, there is no presumption for or against relocation. The court must, however, consider the best interest of the child. Petitions for relocation are given priority on the court’s calendar.

Relocation cases are intense. You must present the facts in the case that will support the relocation. Parents who recognize these facts and address them in their trials will be more likely to have their relocations granted.

Judge Kest’s article can be found here.

Leaving or Staying in the Marital Home

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Sunday, March 9, 2014.

Should you move out of the house before the divorce is over? One couple was recently ordered to build a wall inside their house to separate them. Many clients wonder if moving out helps or hurts their case. Others wonder if they are losing rights.

Sometimes the arguing gets too intense, and the court must intervene. For one couple in Brooklyn, their arguing resulted in their being ordered to build a wall dividing their home so each could stay in the house peacefully.

This was not just a simple line on the floor as in the 1989 movie: War of the Roses, but an actual wall of plywood and sheetrock through the middle of their house (see picture above). Interestingly, the judge gave the wife the kitchen and the husband the dining room.

The marital home a valuable asset, maybe your most valuable asset, but it is also 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 create the appearance of a new ‘primary residential parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Cost

The person leaving may still have to contribute for the expenses of the home while also paying for a new home. It can be costly, and prohibitive expensive when you know that the process will take a long time.

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.

If you Leave

Before moving out, there should be some discussions about maintaining the home and who is paying for which expenses, an inventory should be made of the personal property, artwork, silverware etc., and the boundaries for when the ‘out-spouse’ can use and enjoy the home after vacation

More about the crazy Brooklyn divorce and the separation wall can be read at NBC’s website here.

Supreme Court Denies 7 Same-Sex Marriage Appeals

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On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Tuesday, October 7, 2014.

Yesterday, the U.S. Supreme Court refused to review seven cases invalidating anti-same-sex marriage divorce. There is now a high probability the Supreme Court will invalidate these laws.

Given the pace in which same-sex marriage laws have been changing, I’ve been writing about this often. According to some, all seven cases involved lower courts which struck down state laws, so there was no circuit split, meaning no reason to take on the case.

Around 30-states have legal same-sex marriages, many same-sex couples in those states will have gotten married in the meantime. That will make it harder for the Supreme Court to declare of thousands of new marriages null.

Also, public support for same-sex marriage is growing steadily. A Supreme Court decision, when it occurs, will occur in a country that is more favorable to same-sex marriage than it is ow. This could affect swing votes like Justice Anthony Kennedy, who might be willing to hold that the Constitution guarantees a right to same-sex marriage, but may still be conflicted.

If justices Ruth Bader Ginsburg and Stephen Breyer were replaced with conservative justices, that might create an anti-gay marriage majority on the Court, but Ginsburg and Breyer might stay on long enough to decide the gay marriage issue.

We may get a Supreme Court decision striking down laws banning same-sex marriage in the next few years. That is because laws banning gay marriage discriminate on the basis of sex, they violate the fundamental right to marriage, and have been found to fail even the lowest level of judicial scrutiny, rational basis.

In addition to the growing number of victories in the circuit and district courts, and in state courts around the country, we are growing more confident that anti-same sex marriage laws are headed for the dust bin of history. When we don’t know.

More can be read at The Volokh Conspiracy here.