Month: April 2015

Do-It-Yourself Artificial Insemination & Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Wednesday, April 29, 2015.

Assisted Reproductive Technology (ART) usually involves combining eggs with sperm, and returning them to a woman’s body in a licensed lab. But in a pinch, will a turkey baster in your kitchen do the trick?

Joyce Bruce wanted to conceive a child, without the involvement of a father. She mistakenly thought that if she became pregnant without having sex, the biological father, Robert Boardwine, would not have custody rights.

She approached her longtime friend, Boardwine, and asked him to be a sperm donor. He agreed, but they never signed a written contract regarding any resulting pregnancy.

To become pregnant, he would stop by her house and would give her a plastic container containing his sperm. She would then use a turkey baster to inseminate herself. They did not go to a doctor’s office or to a medical facility.

On July 7, 2010, she discovered that she was pregnant. They never had sex, never lived together, and they do not intend to live together.

Their relationship deteriorated when she would not agree to his suggested name for the child. She did not inform him of the birth and did not list him on the birth certificate.

The Father filed a suit to establish his rights with the child, since he was the biological father. She argued that since she used “noncoital reproductive technology” to get pregnant, he was only a sperm donor without rights.

The trial court found that when he provided his sperm, the parties intended for him to be a legal father, and awarded joint legal and physical custody as well as visitation.

The Virginia appeals court held that “medical technology” in the Children of Assisted Conception Act, does not mean a turkey baster. So ART law does not apply.

As funny a situation is it sounds, it is a serious problem. 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 ART without a paternity/adoption process.

As I’ve written before, ART statutes make detailed provisions that must be followed for a contract for it to be enforceable. If you’re looking at your kitchen implements as a form of do-it-yourself home pregnancy device, think about the legal risks.

The opinion is here.

Florida Alimony Reform and Equal Timesharing (Custody)

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Friday, April 24, 2015.

There are two bills in the Florida House and Senate to drastically change alimony. This week, both the House and Senate bills passed their remaining committees and are ready for floor votes. So why write about custody?

I’ve written about equal timesharing before. The reason for the latest update is that both alimony bills have strong language about how judges must award custody rights to parents. But each is slightly different fro each other.

The bills have different language, but both will dramatically change the laws of custody in Florida if passed and signed by the governor.

Senate Bill 1248

“Approximately equal time-sharing with a minor child by both parents is presumed to be in the best interest of the child.”

Senate bill 1248 creates a presumption that approximately equal timesharing with a child by both parents is in the child’s best interest. However, a court can establish an unequal timesharing arrangement if it wants.

The judge would have to show an unequal timesharing arrangement is best, and make written findings as to why. The Senate bill has an October 1, 2015 effective date.

House Bill 943

It is further the public policy of this state that a child’s interests are ordinarily best served by the equal and active involvement of both parents in the child’s life. Absent good cause, it is in the minor child’s best interests to have substantial time sharing with both parents.

The House bill started as strictly an alimony bill. However, this week Rep. Burton added the amendment quoted above, and the timesharing provision is different from the Senate version.

First, the bill specifically sets forth a new public policy. It is not common for Florida public policy to be specifically expressed in the statute. What is rarer is that this adds to a previous public policy statement about timesharing already in the statute:

It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing

Second, and unlike the Senate version, the bill does not require “equal timesharing” at all. What it does is codify what I think many judges presume: it allows willing parents to spend a substantial amount of time with their children after divorce and separation.

There is only a few more days left in the regular session of the Legislature this year. Anyone involved in a pending action, seeking to establish a new alimony or parenting plan case, or modify an existing one, should keep their eyes on Tallahassee.

The House Bill can be found here.

Modern Family: Sofia Vergara and Fertility Agreements

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, April 20, 2015.

There has been a big increase in Assisted Reproductive Technology (ART). In Vitro fertilization and other ART now accounts for 3 of every 100 children born here. Without an agreement though, the modern family can end up in court.

Consider the legal battle actress Sofia Vergara is waging with ex-fiancé Nick Loeb over frozen embryos. Sofia Vergara’s former fiancé has filed a lawsuit in California to stop her from destroying a pair of frozen embryos created while they were engaged.

The ex-fiancé filed the lawsuit after the two broke up for good in an attempt to save two cryo-preserved female embryos created through in vitro fertilization.

“He is trying to save two female embryos from destruction,” a source close to Loeb said.

According to court documents, Loeb, sued Vergara last August to “ensure that the female embryos” are kept safe, because Vergara “refuses to agree to their preservation under all circumstances.” The suit also names as a defendant the clinic where the embryos are being held, the Art Reproductive Center in Beverly Hills.

At the time of undergoing fertility, people should not only sign agreements but think about this really carefully. The options are: Do you want the embryos destroyed? Do you want to divide them between the two of you? Do you want to donate them to research? It’s important to think about that when you and your partner get along.

Most clinics use consent forms that require both patient and a partner to answer specific questions about what to do if the couple splits up or one of them dies, experts say.

In Loeb and Vergara’s situation, they answered questions about what should happen in the case of one or both of their deaths, but not separation, according to court documents.

I’ve written about this before. Florida has set itself apart from other states as a haven for ART. 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.

The CNN article is here.

Alimony Reform & A Presumption of Equal Timesharing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, April 16, 2015.

Equal timesharing and alimony reform are back again, as the Florida Legislature is in session. Competing House and Senate bills are being circulated which dramatically change alimony and may create a presumption of equal timesharing (custody).

I’ve written about the Legislature’s past attempts to reform alimony before. Senate Bill 1248 is the latest attempt to do away with permanent alimony, and create a set of guideline to automatically calculate the amount of alimony awardable, and the term for how many years alimony would last.

Both bills reform alimony. With respect to alimony amounts, the bill establishes presumptive alimony ranges. The presumptive amounts are determined by formulas based on the difference between the parties’ gross incomes and the length of the marriage. The bill also limits the duration of alimony to 25% or 75 % of the length of the marriage.

However, unlike the House bill discussed in earlier posts, the Senate bill adds something different: equal timesharing for moms and dads:

“Approximately equal time-sharing with a minor child by both parents is presumed to be in the best interest of the child.”

The bill establishes a presumption that approximately equal timesharing with a child by both parents is in the child’s best interest. However, a court can order unequal timesharing if unequal timesharing is supported by written findings of fact.

Fifty-fifty timesharing between parents sounds like a great idea, and there are strong arguments for and against a presumption of equal timesharing. Here are some of the argument for and against a presumption in favor of equal timesharing:

Pro

Each year, cases are tied up in court to establish a right to see their children that they would automatically have if they were married.

An equal time presumption promote Florida’s existing policy of frequent contact after divorce.

Equal timesharing puts the burden on the parent opposing equal timesharing, changing the dynamics of custody litigation.

Equal timesharing is consistent with Florida’s existing no-fault concept.

Con

Requiring every family to have equal timesharing is like requiring every family to wear a size 4 shoe. Not every family fits.

The presumption creates a uniform rule where the flexibility of ‘the best interest of the child’ is needed.

Requires courts to focus on QUANTITY of time instead of QUALITY of time.

Requires courts to focus on what’s best for the parents instead of what’s in the child’s best interest.

With the 2015 Legislative session roaring up north, and competing bills in the House and Senate, this is a very interesting issue to keep your eye on.

Destination Divorces: Where Should You File?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, April 13, 2015.

Where should you file for divorce? If former Miss Malaysia Pauline Chai wins the £500 million she’s demanding, she’ll break all divorce records in the U.K., and that will cement London’s status as the Divorce Capital of the World.

Forbes magazine has reported that the United Kingdom’s Supreme Court in London, is wife-friendly, making it a divorce capital

A string of well-publicized divorces have been filed in London, which wives of very wealthy (and not-so-wealthy) ended their unions with better deals than they would have gotten in other countries.

It has put London at the top of the list for Divorce Tourism – or, as it’s known, “Divorces Eurostar.”

London saw its reputation as the divorce-jackpot destination enhanced after the Supreme Court last year overturned what’s known as the ‘cheats’ charter.’

“Britain’s highest court has ruled that millionaires cannot use their business interests to shield their wealth from their spouses in divorce cases.

While many divorce lawyers celebrated the end of the ‘cheats’ charter’ reveling in the reassertion of London’s reputation as a haven for divorcing wives, others worried that it will be replaced by a “gold diggers’ charter,” and threaten the independence of companies.

Marriage break-ups involving foreigners account for a sixth of cases before the English courts, which means a significant increase in international divorces now estimated to be 24,000 of the 150,000 in England and Wales each year.

Another ruling on marital property agreements affirmed English courts’ reputation as more generous than others. The landmark case introduced the principle that divorcing ‘money earners’ should not necessarily retain the surplus after a parting couple’s needs had been met. Instead, the residual cash should be divided equally.

London’s reputation as the divorce capital was reinforced again, in an anonymous case in which the court awarded £54 million to the wife, or 50% of the husband’s fortune, surpassing the previous record case in which an insurance magnate had to fork over £48 million to his wife after she rejected his £6 million settlement offer.

“The mother of five, Ms. Chai, who has been living on their 1,000 acre, £30 million home in Hertfordshire since October, issued a divorce petition in England in February.

His lawyers have told the British Court that allowing the case to be heard would enhance “the ill-gotten reputation of this country for being the divorce capital of the world.

The Daily Mail article on the divorce can be found here.

Wedding Checklist: Prenup and Premarital Counseling

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, April 1, 2015.

Before every wedding, you are surrounded by parents, friends, florists and caterers. You’re caught up in the excitement. This leads many to mistake the wedding as the end of the process when it’s really the start. A prenup can help.

As the New York Times recently reported:

“Marriage can be a minefield that blows up without the proper navigation these days,” said Debbie Martinez, a Miami relationship coach. That is why some couples are taking pre-marital counseling sessions to refocus their attention on each other and the lives they will lead together.

Unlike the marriage counseling people do years after a wedding, premarital counseling addresses unrealistic expectations of “happy, roses and rainbows,” said Jocelyn W. Charnas, a clinical psychologist in Manhattan who counsels engaged couples.

“The fundamental point about premarital counseling is to lay a foundation for empathy, communication and partnership,” Dr. Charnas said. This is especially true, he said: “for those couples in their 20s and 30s with good jobs and money saved. They view marriage as the capstone moment. They have arrived.”

Premarital counseling can serve a similar purpose as prenuptial agreements. I’ve written about pre-wedding preparation before, especially the importance of prenuptial agreements.

A prenup can help with the following:

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. If you put it in writing, you can avoid this problem down the road.

You Can Change the Law. Right now in Florida, there is an ongoing legislation about alimony. Through an agreement you can modify Florida’s legal standards for awarding alimony.

Avoid Expensive Endings. A prenuptial agreement can simplify things by resolving issues ahead of time, way before death or divorce occurs. Once you have entered an agreement, everything should become cheaper.

Protect Your Children’s Inheritance. An agreement helps assure your children that any inheritance is protected, and they don’t need to resent the new spouse.

Citing the findings of a National Marriage Project, Mr. Wilcox said, “Couples who do premarital counseling fare better.” When two people love each other, it is hard to talk about kids, finances and other difficult subjects.

Some have other names for what can occur after the wedding cake is cut and the presents opened: the “post-wedding blues” or “crash.” It is a common phenomenon that typically occurs as life returns to normal in the days and weeks that follow the wedding and the couple ceases to be the center of everyone’s attention.

Voicing these concerns and strategizing about how to manage them can be tremendously helpful.”

The New York Times article can be read here.