Month: August 2015

Divorce and Private School

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Monday, August 31, 2015.

You want public school for the children. She wants them in a private school. Can you be forced to pay for your child’s private school tuition in a divorce?

This is a topic which comes up around this time of the year as we get ready for the start of the new school semester. I’ve written about being forced to pay for college tuition before.

Last year a New Jersey judge ordered the divorced couple to pay $16,000 every year the 21-year-old is enrolled in classes. The judge relied on a landmark New Jersey Supreme Court case that ruled divorced parents may be responsible for providing for their child’s “necessary education.”

Florida law does not follow New Jersey’s “necessary education” concept. In Florida, a parent’s duty to pay an adult child’s college expenses is moral rather than legal.

But what about regular elementary and high school tuition? Often times the tuition is greater than college. In Florida, a private school obligation increases a parent’s total child support obligation.

Pursuant to Florida Statutes, a trial court cannot order a parent to contribute to private school expenses unless it first finds that:

(1) the parties have the ability to pay such expenses

(2) the expenses are in accordance with the customary standard of living of the parties, and

(3) attendance at private school is in the child’s best interest.

If parents are unable to reach an agreement with respect to the payment of tuition, a judge will review the evidence you present and make a decision. If this becomes necessary, the judge will review all of the financial aspects of the case, including each parent’s income, the history of paying certain expenses and the schools themselves.

Getting Around A Prenup

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, August 28, 2015.

Everyone contemplating marriage should consider a prenuptial agreement. But being forced to sign one days before your wedding can be frightening. It can also be a reason to set aside the agreement in divorce.

There are other reasons to set aside a prenuptial agreement besides being forced to sign at the last minute. In one case, the wife tried to establish that her prenup was reached under duress, meaning too much pressure or influence that destroyed her “free agency”.

To prove duress, she complained she was seven months pregnant at the time the agreement, her pregnancy forced her to leave her job as a flight attendant, and the agreement was not signed until an hour before the wedding ceremony.

The court didn’t buy it. It turned out that the prenuptial negotiations stretched over months, her husband disclosed his assets, and they went back and forth over the terms.

She also had an attorney who drafted the agreement. After the agreement was drafted, the wife negotiated a favorable cost of living increase reflected in the handwritten changes.

What if a husband threatens that he would not marry without a prenuptial agreement? Will that constitute duress? No. It is not a threat or duress for the person who wants an agreement to make it clear that there will be no marriage without the agreement.

It is very important in trying to set aside a prenuptial agreement to know if a spouse fully and frankly disclosed his assets and income prior to the marriage.

Another method of attack is to establish that the agreement makes an unfair or unreasonable provision for a spouse, given the circumstances of the parties.

When claiming that an agreement is unreasonable, you have to show the parties’ relative situations: ages, health, education, and financial status. However, fairness is measured at the time of the agreement, not at the time you try to have it set aside.

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.

The AshleyMadison Hack & Divorce

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, August 21, 2015.

If you’re one of the few claiming not to know about the computer hacking of 37 million user accounts on the cheating site, you’re probably lying. What does the hacking mean for divorce?

Many commenters are predicting that the exposure of millions of Ashley Madison’s members (no pun intended) to the public will lead to a crush of divorces. However, there are reasons to doubt that wisdom.

Having actual proof of an affair can be helpful in divorce. In fact, Florida law specifically provides that evidence of an extra-marital affair can be a factor in determining the amount of alimony, if any, to be awarded.

However, proof that your spouse had an affair does not always mean a better settlement or judgment in your favor. As I’ve written before, no-fault divorce is the law in Florida, and judges don’t spend a lot of time pondering why you are divorcing.

That doesn’t mean evidence of an affair is not relevant. Some prenuptial agreements have infidelity clauses and other morals clauses which may be enforceable to an extent in Florida courts.

Additionally, spouses who introduce their secret boyfriend or girlfriend to the kids, or spend time with potential hookups while with the children, are not going to win a prize as ‘parent of the year’.

The recent hacking and posting of AshleyMadison customer information will be big news. Here, tens of millions of people doing business on the web, who expected the highest level of privacy that the commercial web offers, found out the internet is not so secure to do business on.

But it may not be the marriage killer people predict.

Prenuptial Agreements and Timing

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, August 17, 2015.

Few people use prenuptial agreements. Many get married without one. They think that prenup agreements are only for the rich and famous. That’s not always the case though.

These days, the prenup has become more important than ever. People are marrying when they are older, and better informed about the implications of marriage. Many people have married before. So, more people look for prenuptial agreements.

But many people are afraid of prenups. They are afraid prenups take the romance out of getting married. That’s too bad. As I’ve written about before, there are a lot of concerns prenups can handle:

– Will you have to care for an older parent

– Who pays or supports the house when going back to school

– Agreeing to spending habits

– Who pays for what credit card debt

– Who handles the costs of a business

– Who pays the taxes

– What happens if someone dies or becomes disabled

The truth is that prenuptial agreements can put a damper on things because people wait too long to address them. Clients make appointments for a prenup a few days before the wedding. As a result, there may not be sufficient time to prepare and review the agreement, and it could be challenged as unfair.

If you want a prenuptial agreement, then talk to your future spouse about one at the beginning. Being upfront about your needs, and not springing it on them at the last minute is proper planning. Proper planning and allowing a lot of time will protect the agreement accusations of duress.

If the prenuptial agreement is drafted, signed, and put away long before the wedding celebration, you will better protect yourself and have the peace of mind that no one can challenge it.

Divorce, Separation & Domestic Violence

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Thursday, August 13, 2015.

Injunctions for protection against domestic violence are critical to the safety of many. But they also represent a court system which can be easily abused as a tactical advantage in a custody case.

I’ve written about domestic violence before. Anyone scanning the headlines in the Miami Herald knows that the horrors of domestic violence are all too real:

“Dania Beach man arrested in fatal shooting of girlfriend”

Miami Herald, Aug. 12, 2015

“Miami Gardens man held in fatal shooting of ex-girlfriend”

Miami Herald, June 25, 2015

“Man Charged With Murder After Killing Girlfriend . . .”

Miami Herald, May 17, 2015

However, because they are easy to obtain, restraining orders are misused, usually against men, but sometimes against women too.

When someone has an injunction against violence issued against him, many automatically think that they are an abuser, and injunctions also force you to leave the home, stay away from a partner, and your children.

In order to obtain an injunction against domestic violence, you must prove you are in imminent danger of becoming the victim of domestic violence. In addition to an injunction prohibiting domestic violence, Florida law allows for other types of injunctions as well, including:

Repeat violence injunctions, when two incidents of violence or stalking

Sexual violence injunctions, for certain criminal sexual acts are committed.

Dating violence injunctions, available to protect those who have a “continuing and significant relationship of a romantic or intimate nature” from violence.

Injunctions are issued ex parte, which means the accused has no notice of the proceedings and does not have the opportunity to defend themselves prior to its issuance.

Far too many people use injunctions to gain a strategic. One study found that 59% of allegations of domestic violence between couples involved in custody disputes could not be substantiated by the courts as true.

However, the filing of a false domestic violence injunction can also backfire. In the event your injunction is dissolved, and it is demonstrated that it was filed falsely, that could be evidence in a custody battle.

Every day it seems the Miami Herald has a story about domestic violence. The results are tragic. Conversely, many people abuse the system. Domestic violence injunctions are a part of family law and divorce cases to consider carefully.

Can Your Pre-Marital Property Be Divided?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Monday, August 10, 2015.

Florida law is clear your pre-marital property is non-marital, and is property which cannot be divided by the court in a divorce. Or is it? People are often surprised to find out their premarital property is really at risk.

In a recent case from Fort Myers, the Husband owned a premarital building worth $900,000. Before he separated, the Husband sold the building for $680,000, a big loss.

The property was subject to a mortgage though, and during the marriage, the mortgage was paid down by the amount of $23,651.16 using marital funds. During the divorce, the Wife contended that she was entitled to an equitable distribution in the amount of the reduction in the mortgage.

The trial judge denied the Wife’s claim because the Husband’s property went down in value. Had it gone up in value during the marriage, the trial court may have considered it. The Wife appealed, and argued that using marital funds to pay down the mortgage on the Husband’s non-marital building enhanced the value of the property.

She won! Paying down on the mortgage enhanced the equity value of the Husband’s nonmarital asset. Even through the building did not appreciate in value during the marriage, the use of marital funds to pay down the mortgage enhanced the value of the Husband’s equity in the property.

I’ve written about property divisions before. Without the pay down of the mortgage, the proceeds the Husband would’ve realized from the sale of the building would have been reduced by an amount equal to the pay down of the debt.

The court held that the resulting increase in the equity value of the building was a marital asset subject to equitable distribution. The general rule is that “[w]hen marital assets are used during the marriage to reduce the mortgage on nonmarital property, the increase in equity is a marital asset subject to equitable distribution.”

The opinion from the appellate court can be found here.

Update on Joint Custody

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, August 6, 2015.

Florida is not the only state looking to modify its custody laws. Add Florida to another 20 states which are currently considering measures that move their laws toward more equal custody arrangements.

As the Boston Globe reports, Massachusetts is considering changing its custody laws:

Battles over custody and child support are as old as divorce itself. But as parenting norms have shifted in the past half-century – the “Leave It To Beaver” setup giving way to one in which 71% of women work outside the home and more fathers are engaged in child care – lawmakers seem increasingly willing to consider that long-standing child custody statutes might warrant review.

Changes would make statutes align more closely with research suggesting children benefit from spending ample time with both parents. One study released earlier this year in the Journal of Epidemiology and Community Health, found that children living in joint-physical custody arrangements exhibited fewer psychosomatic issues than those living with just one parent.

The movement has attracted critics. Groups expressed concern over blanket statutes guaranteeing parents a certain amount of visitation time. Instead, they argue, custody disputes should be handled on a case-by-case basis, always with a child’s best interests in mind.

It used to be that custody disputes fell under the “tender years” doctrine, a rule that a child’s best interest is to be placed with the mother when they’re young. Florida has abandoned the tender years doctrine.

In Massachusetts, the proposed legislation strongly encourages, but does not mandate, courts to grant shared custody in which a child would spend no less than one-third of the time with each parent.

I wrote about Florida’s efforts earlier this year to modify our child custody laws. At the time there were two competing bills. The Florida House bill would have required:

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

The other bill, which was in the Florida Senate, wrote:

Absent good cause, it is in the minor child’s best interests to have substantial time sharing with both parents.

A Utah law that went into effect two months ago requires that all qualifying noncustodial parents’ minimum visitation days increase from 110 per year to 145.

Two years ago, an Arizona law went into effect preventing courts from giving preference to either gender in custody cases.

The outcome in Florida is yet to be determined.

Divorces Gone Wrong

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, August 4, 2015.

Divorce is bad enough: splitting time with your children, losing half of everything you own, and possibly paying support for years. Could it get worse? You bet, if you do it wrong you could end up in prison.

A Virginia man was charged with two counts of bigamy after his wife found out her husband had not divorced his previous wife before they got married.

Blake was charged with two counts of bigamy and two counts of forgery. From behind bars, Blake explained that he has had three different marriages.

“I got papers in the mail saying we were divorced, but evidently you get two sets of papers. I signed my name and everything on it”

“I thought the marriage wasn’t real and that’s why I got married to Jessica”

He and his current wife Jessica believe his second marriage of two weeks wasn’t valid, and theirs is. He’s convinced the charges are being levied against him out of revenge.

It doesn’t happen often, and the Virginia police department spokesperson reported they made two bigamy arrests in the past 10 years.

I’ve written about the importance of having a board certified attorney to handle a divorce. If your divorce is done wrong, the rule is that an honest belief that your divorce was validly granted, is not a defense to a prosecution for bigamy.

Could it happen to you? It happens in my experience when innocent jurisdictional rules are ignored. In order to get divorced in Florida, for instance, you have to have been a resident here for six months. If you aren’t, your divorce decree may be invalid.

You could read more on the Virginia story here.