Year: 2014

Custody Evaluation Tips: Education

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, April 9, 2014.

Everyone knows parent involvement at school means better grades and test scores. However, this conventional wisdom may be wrong. Yet school involvement is a factor in child custody cases. In light of new research, this factor may no longer be useful.

In developing a parenting plan, courts look to a parent’s knowledge and capacity to be informed about your kid’s teachers, activities, and your ability to provide consistent routines, discipline, and making sure homework and projects are done.

Although this is a routine factor in creating a parenting plan, researchers at the University of Texas and Duke University have found that this hallmark of parental involvement doesn’t affect academic achievement.

Researchers examined about 30 years of surveys, and tracked 63 different measures of parental participation in education. The researchers indexed these measures to children’s academic performance, including test scores in reading and math.

What they found surprised them. Most measurable forms of parental involvement seem to yield few academic dividends for kids, or even to backfire. Worse, evidence shows that in middle school, parental help with homework can bring test scores down!

So what does help?

– Reading aloud to young kids

– Talking with teenagers about college plans.

– Embedding your children in social settings in which they meet many college-educated adults with interesting careers.

– Communicating the value of education.

– Teaching your children to ask critical questions.

– Getting your kid in the class of a teacher with a good reputation.

Don’t get confused by the new research. Parents involved in schools can be effective at getting Smartboards, better textbooks, new playgrounds, and other “extras” that make a school come to life.

Parental involvement in children’s lives is essential, and is also a factor courts look to in crafting parenting plans and timesharing schedules. This new research is helping parents to learn what works best.

You can read more about the latest research in the Atlantic.

Muslim Divorce Contracts in Florida

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On behalf of Ronald H. Kauffman, P.A. posted in Religious Divorces on Monday, April 7, 2014.

The Florida legislature re-introduced an anti-Sharia law bill this term. It is an effort to limit the applicability of foreign law in property division proceedings, especially contract provisions. However, some religious contract provisions have been enforced in Florida, and with good reason. This bill may stop that.

Consider the case in Kansas I mentioned before. Pursuant to Islamic customs, the Husband transferred over $116,000 in premarital funds to his bride, culminating in a Muslim marriage contract-signing ceremony. Then they traveled to Kansas, where a judge conducted a separate marriage ceremony.

Less than two years later, the Husband filed for divorce. The parties signed a mahr agreement and the Wife contends that because of the divorce, she gets the roughly $677,000 agreed to in the mahr from the husband.

However, Kansas passed a bill (similar to what Florida is considering) prohibiting courts from applying foreign law, legal codes or systems that violate the public policy of Kansas – a bill viewed as preventing courts from applying Shari’a law (although the bill doesn’t mention Sharia by name).

Similar to Florida, Kansas generally allows premarital agreements unless they violate public policy, or fails to provide adequate disclosure and is unconscionable.

However, the Kansas court decided not to enforce the mahr, and instead imposed as a property settlement that the ex-husband retains his premarital property after conferring the equivalent of $116,000 in gifts on the wife before the marriage.

The problems with the Muslim mahr agreement found by the court:

The provisions in the mahr would function as a penalty based on fault – since the mahr provides for fault-based payment – contrary to no-fault divorce principles.

The high amount of the divorce payout could be viewed as encouraging divorce, contrary to Kansas (and Florida) public policy.

The religious origins of the agreement are problematical. Mahr agreements stem from jurisdictions that do not separate church and state, creating a tension with our Constitution.

Mahr agreements can be short on operative details, definitions, and explicit requests to have their terms represent an entire remedy at law in a civil courtroom.

Mahr agreements might not meet the Uniform Premarital Agreement Act’s definition of a prenup.

Currently, in Florida, the issue of whether a Muslim prenuptial agreement is enforceable depends on whether it complies with Florida’s secular contract law. If so, secular terms may be enforceable as any contractual obligation.

The anti-Sharia bill is a hot-button issue again this year. Religiously motivated agreements should be interpreted as secular documents, if a court can use neutral principles without evaluating religious doctrine.

The Kansas case can be read here.

Do You Have to Split Premarital Assets?

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Wednesday, April 2, 2014.

In divorced, marital property is equitably distributed, but non-marital assets – things acquired before the marriage for instance – are not. However, there is a little-known exception when the value of non-marital assets appreciates. For Harold Hamm, the billionaire founder of oil company Continental Resources, that little exception is a big headache.

Hamm ranks #68 on Forbes’ list of Global Billionaires with a net worth estimated at $14.6 billion. The Oklahoma judge presiding over Hamm’s divorce has recently ruled that he will not have to give up his controlling interest in the company because his 122 million shares are pre-marital.

However, the judge also ruled that the value of the pre-marital stock’s appreciation during the 26-year marriage may still be divided as a marital asset.

The court is essentially saying he won’t have to divide his shares. But, the court still has a duty to make an equitable distribution of what we call: enhanced value.

If the increase in value is attributable to marital effort by either party to make it grow, as opposed to market conditions, then the increase may be considered a marital asset and divisible by the court.

In the trial, the judge will determine how much of Continental Resources’s gains were due to market conditions and how much to Harold Hamm’s efforts. Gains credited to the market probably wouldn’t be included among divisible assets.

Given the size of the fortune and the lack of pre-nuptial and post-nuptial agreements, it’s possible this divorce could become one of the largest publicly known divorces.

For more information on the Hamm divorce, click here.

Divorce Rates are Way Up?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Sunday, March 30, 2014.

The accepted wisdom is that divorce rates have dropped since the 1980s, and have been declining since. I recently blogged about how more people are divorcing. Now there is a new report confirming that divorce rates have actually risen by a whopping 40%!

Part of the problem with counting divorces is that collecting divorce statistics in the United States is not consistent. Some counties keep good track of finalized divorce cases, others don’t. Also, different states and the federal Census Bureau have had a rocky history of collecting the data from across the country.

In fact, the federal government has stopped providing financial support for detailed state collection, and some states, especially California, have stopped reporting divorce rates entirely.

A new paper has looked to a different source of information: the American Community Survey, which is an ongoing sampling of population in every state. Here are some of their findings:

– Since 1980 the overall divorce rate has declined only 2.2%.

– Controlling for the change in the age of the population the divorce rate has actually risen 40%.

– The divorce rate peaked in 2011.

By the year 2010, the report notes, “almost half of ever married Americans had divorced or separated by the time they reached their late 50’s.”

The increase in the divorce rate is being blamed on the Baby Boomers, those born between 1945 and 1954. In the 1970s, Baby Boomers, who were then in their twenties, were equally likely to divorce.

But by 1990, couples in their twenties were more stable, but the Baby Boomers, who were entering their forties, continued to divorce “at unprecedented rates.” Since then, the biggest rise in divorce has the “massive increase” in divorce among women in their fifties.

The report also finds that younger married couples are actually enjoying more stable marriages than Baby Boomers did at their age. However, the reason divorce is lower for younger married couples today is that most younger couples are not getting married; instead they’re cohabitating.

Cohabitation has always been far less stable than marriages.

Our results document striking growth in…turbulence since the 1980s. Divorce at age 40 or higher is much more common than it was and because cohabitation makes up a rapidly growing percentage of all unions they have an increasing impact on overall union instability.

One point to keep in mind is the source of their data. Remember, Kennedy and Ruggles, relied on the American Community Survey for their data. the American Community Survey is just a household survey filled out by a single individual, and may not be the most reliable source of divorce reports.

An abstract of the Report can be found here.

Tips to Dividing Your Property

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Saturday, March 15, 2014.

In a Florida divorce we divide only the marital assets and debts. The process of dividing marital property starts with inventorying everything you acquired. Anything you brought into the marriage, anything inherited, and anything excluded by a prenuptial agreement, is generally not marital.

Hiding Assets

One of the worst thing you can do is hide assets. You may think you can get away with hiding assets, but keep in mind that we divorce attorneys are suspicious, and start with the assumption that assets are being hidden.

From the time you marry until the day your divorce is final you owe a “fiduciary duty.” If you violate this duty there can be legal consequences: a judge can order you to pay your spouse’s legal expenses, you could face an unequal distribution, and you will lose credibility with the judge.

Mediating

The best thing you can do for yourself is to try to settle your property division between the two of you, without mediators and out of court. But what if you can’t come to an agreement?

Hire a mediator to help resolve the tough issues that have kept you from agreeing with your spouse. Your attorney mediates cases very often, and he or she will try to select a mediator that they think can best help you settle your case. Since Florida requires mediation as part of the divorce process anyway, I frequently advise an early mediation – even before you file.

Don’t fight over ‘pots and pans’. No one wins if you end up in court arguing about who gets the Tupperware. Some things have emotional attachments, and try to decide before hand with your attorney what things are most important to you.

Going to Court

Martial property is divided according to Florida’s equitable distribution laws. Unlike courts in California and western states for instance, which are community property states, Florida is an equitable distribution state. In Florida, we start with the principle that marital property is divided equitably, not necessarily equally.

In Florida, a spouse’s financial contribution to the asset, or a spouse’s ability to support themselves post-divorce, or even infidelity can be taken into consideration when dividing property.

You should familiarize yourself with how Florida courts divide property. It will go a long way in helping you when trying to negotiate with your spouse. In fact, you should even consider reading up on Florida’s Chapter 61, the divorce statutes.

To summarize, try to work with your spouse, don’t squabble over the small stuff, don’t hide assets, and learn how Florida laws impact a judge’s decision if they have to make the call over how to divide your life.

Understanding Your Settlement Agreement

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, March 5, 2014.

You want to understand your property division, but it sounds like Shakespeare wrote it: “Witnesseth that whereas the aforementioned, hereinafter referred to as party of the second part, hereby stipulates betwixt . . .” How do you make sense of that?

You could ask your lawyer to explain what this legal mumbo jumbo means again, but you probably don’t want to add to your attorneys’ bill. On the other hand, you also don’t want to violate the agreement, and most importantly, you want this thing to work. What to do.

Below are a few tips to help you to understand your new marital settlement agreement:

– Calendar the exchange days and times into your iPhone as far out as possible.

– Calendar any “notify by” dates for vacations and special events.

– For the kids, draw a color-coded calendar of timesharing exchanges so they will know where they’ll be. It helps instill confidence.

– List on a piece of paper what needs to be divided and when.

– Notify your H.R. department about your divorce.

– Notify cable T.V., cellular telephone and other accounts managers to change accounts.

– Calendar when support payments are due.

– List the amount of child support and alimony to be paid.

– List your children’s extra-curricular expenses and uncovered expenses and remember what percentage each parent is responsible for.

Marital settlement agreements, even when written clearly, are legal contracts. They can be long and complex. Even lawyers have to continually educate themselves to stay on top of this ever changing area of law.

Once the agreement is signed, you should be finished, but not always. These tips should help, but if you find yourself back in court, you will at least have a handle on the agreement.

It is not uncommon for me to be brought into a case to review someone’s proposed marital settlement agreement before they sign it. So, if all else fails, call a lawyer for help.

Divorce Rate Increases

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

The number of people divorce rose again for the 3rd year in a row. The broader economic effects of the increase are clear: It is contributing to the formation of new households, boosting demand for housing, appliances and furnishings and spurring the economy. Why are more people divorcing now?

Since Florida’s economy and housing market are recovering, more and more couples are moving forward with their divorces after years of showing up to work as if nothing were wrong in their personal lives.

Hard economic times kept many couples locked in unhappy marriages. Often people stay together for financial reasons. As Bloomberg reports, Amy Derose and her husband Lawrence stayed together for the sake of their engineering firm in Pompano Beach:

“The business was hanging on by a thread and we had to hang on,” said Derose, 53, who had been married 35 years and worked as the business manager. “We couldn’t afford to split. He needed me in the business and I needed him.”

However, there are economic effects from the increase in divorce filings: they are creating new households, boosting demand for housing, appliances and furnishings and may spur the economy.

More than 5 million new households were established in the past 4 years, and that helps to create housing demands by creating two households when before there was only one.

Newly single men are renting apartments to stay close to their children and attend school events. Newly single women are entering the work force:

“In unhappy marriages, they have started having the macroeconomic ability to unwind,” he said. That is creating “a little bit of a tailwind” for apartments.

Also helping to motivate people to get out of unhappy marriages are the rising stock and home values. The increase in home equity and investments has given people a sense of greater financial security.

In Florida, which saw home-price gains after huge drops, we are experiencing an increase in divorce rates to above 2008 levels:

“In many cases after divorce, people sell their homes and divide up the proceeds,” he said, which provides “each of them with a nest egg to begin their separate lives.”

Although a bigger stock account and home equity to divide may motivate a divorce, splitting into two homes takes a financial toll on a couple. However, many couples report that ending an unhappy marriage was:

worth every moment of hardship. I had to take full ownership of my life, my choices, my future, and my happiness.

You can read the Bloomberg report here.

Recognizing Legal Same Sex Marriages in Florida

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On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Wednesday, February 26, 2014.

I blogged earlier about same sex couples who legally marry outside Florida, but can’t divorce because same sex marriages aren’t recognized. A federal judge recently ruled that Kentucky must recognize out-of-state same-sex marriages. Is this a prelude to striking Florida’s same-sex marriage ban?

A federal judge in the Western District of Kentucky has struck down Kentucky’s ban on recognizing same-sex marriages performed in states where it is legal.

U.S. District Judge John G. Heyburn II ruled that Kentucky’s prohibition violates the U.S. Constitution’s guarantee of equal protection under the law by treating gays and lesbians differently in a way that demeans them.

The Judge ruled:

While religious beliefs are vital to the fabric of society, assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.

The judge then struck down part of Kentucky’s marriage statute which says only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.

Florida’s is similar, and generally provides:

Marriages between persons of the same sex entered into in any jurisdiction which are treated as marriages are not recognized for any purpose in this state.

Not everyone in Kentucky is happy. State Representative Stan Lee, who championed Kentucky’s marriage law said:

“My heart breaks for my country – a country that I believe the founding fathers established as a country under God. A ruling like this, diametrically opposed to God’s law, breaks my heart.”

Interestingly, Judge Heyburn is a Republican, and was nominated for the federal bench by President George H.W. Bush in 1992. One of the more interesting comments in the decision:

“The exclusion of same-sex couples on procreation grounds makes just as little sense as excluding post-menopausal couples or infertile couples on procreation grounds.”

You can read more about the case in the Courier-Journal.

Relocations with Children: Panel Discussion

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Wednesday, February 19, 2014.

I recently was asked to speak on a panel at the Family Court Services, Lunch and Learn lecture series on the topic of divorce: Tough Choices. Can Children Win? If you were one of the 90 or so registered attendees, you had an opportunity to hear from a panel of experts in the legal, judicial and psychological fields on cutting edge issues in relocations. If you didn’t, here are some of the take away points:

Florida’s Relocation Statute is Highly Technical

Relocations, unlike much of family law, are highly technical. They involve fast deadlines, mandatory language, detailed service of pleading rules, font size requirements, detailed pleadings, and the list goes on.

Judges and lawyers report that lawyers are frequently overlooking key provisions of the statute, and children are losing in relocation cases because these strict pleading requirements and deadlines are not being met.

Florida’s Relocation Statute has an Intricate 11 Factor Analysis

There is no presumption in Florida anymore on whether you can move away with your child more than 50 miles from your principal residence for more than 60 days. That was the old rule.

Instead, courts must evaluate a relocation request based on 10 detailed and objective factors, and one catch-all factor. These factors cross over between legal standards developed over many decades litigation, and many psychological factors. The test begs the question of what kind of team do you need to assemble on your side to successfully relocate with your child in Florida.

Relocations with Children Involves Risk

There is always a probability of harm associated with relocations. Your child could face difficulties in adjusting to a new environment, or have developmental needs which are impacted. Or, they simply are baseball fanatics and a move to a country without a baseball league could be devastating.

Factors such as the age of the child, the distance of the relocation from the non-relocating parent, the stability of the parents, the level of involvement of both parents in the child’s upbringing, substance abuse, parental alienation syndrome, and other conflicts all are factored into a decision to relocate.

The clear take-away from the presentation was that relocations involve difficult decisions, courts are required to balance several psychological and legal factors, and the statute governing relocations in Florida must be strictly followed.

The event was hosted at the Family Law Courthouse, and was sponsored by Family Court Services. Kidside is a not for profit organization devoted to supporting Family Court Services. Kidside’s website is here if you are looking to support this great organization.

Speaking on Panel about Relocation Next Week

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Friday, February 14, 2014.

I will be speaking on a panel hosted by Family Court Services on Wednesday February 19th from Noon to 2:00PM at the Lawson E. Thomas Family Courthouse. Anyone who practices in this area or is interested should attend.When one parent moves away with the children from another parent more than 50 miles for more than 60 days it is called a relocation in Florida.

One of the most difficult situations facing parents and children is when a parent wants to relocate to another city. These are called relocation cases. Florida is in the Sun Belt, and is naturally a very mobile society.

Residential moves are very common among parents after divorce. Parents want to pursue new job opportunities, earn a degree, and return to their home community where parents and extended family live, or remarry.

The non-relocating parent usually opposes the child moving because it makes it very difficult to stay meaningfully involved with the child, or sustain a quality parent-child relationship. This is especially true when the moving parent wants to relocate with a very young child.

Relocation cases are very fact-driven, and call for a thorough investigation of the family’s context and circumstances. It is common to request guardians, psychological experts, social investigations, and parental responsibility evaluations in relocation cases.

Very often relocation cases raise issues of parental involvement with the child. Allegations are frequently made that one parent is trying to alienate the child from the other parent, and the parent who is feeling shut-out is alleging that the other parent is engaging in gate-closing behaviors to hinder involvement with the child.

Relocation cases are governed by §61.13001 of the Florida Statutes. It is a technical statute, with deadlines and requirements that are specifically stated and enforced. Both parents are charged with understanding its details, and are well served by a lot of preparation and sound legal advice.

For more information on the Family Court Services Unit of the 11th Judicial Circuit click here.