Month: September 2015

Grandparent Visitation Law Update

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Wednesday, September 30, 2015.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent don’t have visitation rights. The Utah Supreme Court just ruled similarly. What happened in Utah?

The Utah Supreme Court held that grandparents seeking to override parents must present proof that a visitation order is narrowly tailored to advance a compelling governmental interest – such as protecting children against substantial harm.

A pair of grandparents in Utah were having a dispute with their former daughter-in-law over visitation with their granddaughter. The grandparents had acted in a parent-like role as caregivers.

But the Utah Supreme Court invalidated the order:

“Grandparent visitation orders must be limited to the exceptional case where the failure to override the parent’s wishes would cause substantial harm to the child.” The decision was unanimous.

Grandparents are increasingly playing a significant role in the lives of their grandchildren. But the interests of grandparents, no matter how well-meaning, do not trump the rights of parents to determine what’s best for their children.

Florida law is very similar to Utah’s recent ruling. Grandparent child custody and timesharing rights do not exist in Florida. But as American parents deal with both economic recession and family upheaval, grandparents have stepped in to help.

According to a recent survey, grandparents were the main caregivers for more than 3 million children in 2011 – a 20% increase from 2000, the Pew Research Center found.

I wrote an article in the Florida Bar Journal about grandparent visitation rights, and the attempts by Florida lawmakers to serve this big part of our population.

Two current statutory grounds for awarding grandparent visitation have been ruled unconstitutional by the Florida Supreme Court. Confusingly, these two provisions remain in the statute.

The laws were unconstitutional because compelling visitation with a grandparent based solely on the best interest of the child, without the showing harm to the child violates parents’ privacy.

The Utah Supreme Court case background is available here.

Cyberstalking: Husbands, Wives & Girlfriends

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Sunday, September 27, 2015.

Florida domestic violence laws are broad. They provide protection against violence between spouses and partners. But can a girlfriend or boyfriend get protection from the threats of a wife or husband for cyberstalking?

Don’t laugh, as I’ve written before, social media and blogging has become a part of family law. And domestic violence issues – such as cyberstalking – come up frequently.

One recent appeal from the Florida appellate district including Tampa, arose out of an eighteen-month affair a woman named Kersey had with a very married Dr. Leach.

After Dr. Lynch’s wife learned of the affair, she started contacting Kersey by phone, by messages and “friend” requests on Facebook, and posted Kersey was a “homewrecker” on a public blog.

Kersey, worried that something was up with the wife of Dr. Leach trying to friend her and contact her, and applied for an injunction. Florida Statutes provides for an injunction against stalking, including cyberstalking, and the statute is reviewed the same as injunctions against repeat violence.

Before seeing how the courts handled Ms. Kersey’s petition for protection, a few definitions:

Stalking occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.”

“Harass means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.”

Cyberstalking involves a course of conduct through “electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”

Substantial emotional distress involves the courts looking to whether a reasonable person in the petitioner’s shoes thinks.

In Kersey’s case, the appellate court found her evidence did not show that the wife’s contacts “serve[d] no legitimate purpose.” The Court thought Dr. Leach’s Wife was contacting her for the legitimate purpose of telling Kersey to stay away from her husband.

In addition, the evidence did not show that messaging and Facebook friend requests would cause a reasonable person in Kersey’s circumstances to suffer substantial emotional distress.

The court thought a reasonable woman – who had an eighteen-month affair with another woman’s husband – would actually “expect to hear the scorn of an angry wife.”

What about posting on a public blog that Kersey was “a Homewrecker?”

The appellate court held that even if Mrs. Leach’s blog posting served no legitimate purpose – and would cause substantial emotional distress to a reasonable person – it only constitutes one incident of stalking, and you need to prove two incidents of stalking.

The opinion can be read here.

Prenups for Couples Not Marrying?: Cohabitation Agreements

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, September 22, 2015.

More and more couples are choosing to live together and not get married. Not marrying may seem like it’s simpler. But legally, it is more complicated because you don’t have any legal protection. Fortunately, there is an agreement for that.

I’ve written about cohabitation many times. Living together and having children is becoming more common than ever before. Between 2006 and 2010, nearly half of heterosexual women said they were not married to their spouse or partner when they first lived with them, the report says. That’s up from 43 percent in 2002, and 34 percent in 1995.

There are a lot of reasons why couples choose to live together rather than get married. One factor that is likely considered is fear of a stressful and expensive divorce.

However, while cohabitating couples may think they are simplifying their lives, they miss out on many legal protections of that married couples have.

Some of the protections that cohabitating couples lose out on are the protections provided by divorce laws: the presumption that the father is the father, inheritance laws, survivor’s benefits and many others.

A cohabitating couple that decided to split up may encounter the same conflicts about dividing the house, splitting the joint bank accounts, paying off the joint loans timesharing and child support that married couples have. However, the laws are not the same.

One way cohabitating couples can remedy this oversight is to create the missing legal rights for themselves, by drafting a cohabitation agreement. Just like a prenuptial agreements, a cohabitation agreement is a written legal document reached between a couple who have chosen to live together but are not legally married.

An agreement can help a couple against expensive litigation should their relationship end. Agreements can provide for property divisions and inheritance rights and level the playing field with married couples.

Cohabitation agreements can address:

– Support payments

– Selling or keeping the jointly owned home

– What to do with jointly owned property if someone dies

– Medical decisions

– Who pays household bills and taxes

Agreements are useful in resolving a big oversight in the law. This is especially important as more and more couples choose to live together rather than marry.

How Detailed Does your Prenup Have to Be?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, September 11, 2015.

The Florida Supreme Court just decided a case which settles a conflict among Florida courts over interpreting prenuptial agreements. It also settles just how detailed your agreement has to be.

I’ve written about the issue of protecting your non-marital assets through a prenuptial agreement before. Few people know that there’s been a big conflict in Florida over how detailed a waiver of rights in a prenup has to be.

For example, if your prenup says that no one will ever claim any interest in the other spouse’s property, is your future spouse entitled to any share of your assets, or the appreciated value in your assets if they were acquired during, or increased in value, during the marriage? You’d think not.

A Prenup in Miami is Different than a Prenup in Ft. Lauderdale?

Believe it or not, that was a huge controversy in Florida. Courts in Miami said yes, your future spouse could claim a share of your non-marital assets even with a general waiver.

But other courts, such as ones in Ft. Lauderdale for instance, came to the opposite conclusion: No, your spouse couldn’t claim an interest in your share of assets if there was a general release to non-marital properties.

Before thinking about the prenup issue, consider the bigger problem of different Florida courts interpreting contracts differently.

Your prenup – which specifically says that neither spouse will ever claim any interest in the other’s property – may not be enforced depending on where you live.

A not-well known job of supreme courts is to settle conflicts between lower appellate courts in a state or the country. For example, in the recent gay marriage case, the U.S. Supreme Court settled the gay marriage conflict between different federal appellate courts.

Prenuptial Agreements Now Treated (more) Uniformly in Florida

Similarly, the Florida Supreme Court settled the conflict between Florida counties about prenuptial agreements.

Yesterday, the high court held that if a prenup includes a broad wavier provision – “but does not specifically waive a spouse’s claim to the other spouse’s earnings, assets acquired with those earnings, and the enhanced value of the other spouse’s property resulting from marital labor or funds” – the general waiver may be sufficient to waive a spouse’s right to seek equitable distribution of such assets.

The Florida Supreme Court opinion is available here.

Forced Drug Testing, Divorce . . . and an online exam!

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, September 8, 2015.

It’s been said that divorce is stressful. OK, I said it, but I’m not alone. Psychologists have been saying that too. Can you be ordered to take a psychological evaluation or a drug test because divorce is so stressful?

How much stress does it take to push you “over the edge”?

Not everything is equally hard to deal with. I’ve written on the subject of stress before. The stress of divorce is more stressful than a change in responsibilities at work. The Social Readjustment Rating Scale (SRRS), more commonly known as the Holmes and Rahe Stress Scale, helps you measure your total stress score.

You can take the Holmes and Rahe Stress Scale test now by clicking here.

It happens more frequently than you think. A witness meets you outside of court. Then, you are surprised to see that person in court ready to testify that you’re a drug addict, or crazy, or worse. Suddenly you’re ordered to be examined by a psychologist, take a drug test, or some other exam.

That’s scary in a custody battle because the mere fact that the court thinks there is suspicion for you to be examined can be unsettling in a high stakes case.

I recently won an appeal defending against exactly this situation. Generally, compulsory evaluations are only authorized when the requesting party has good cause for the examination, and the issue is actually in controversy.

This had been the law for psychological and physical examinations, but no appellate court had really addressed the issue of drug testing. In my recent appeal, the court tackled that issue specifically creating a precedent for other courts in the state.

As often happens in court, witnesses and attorneys make a lot of arguments and conclusory allegations about the other side’s health conditions, or drug use, or mental state, and otherwise attack their character.

What the appellate court seems to be saying in this recent appeal is that conclusory allegations alone do not put a person’s condition “in controversy”. Additionally, those mere allegations are not necessarily “good cause” for a forced exam.

This recent victory is a big win for Floridians, as the case becomes binding precedent on all Florida trial courts until there is a conflicting district court opinion, or until the Florida Supreme Court steps in.

Alimony and the Stay-at-home Parent

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Thursday, September 3, 2015.

Always wanted to be a stay-at-home mom or dad? Your personal finances play a big part in that decision. This is especially true if you are separated or divorced from the other parent.

Forbes magazine recently published some Pew Research Center findings about parents who stay at home:

In 2012, 29% of mothers stayed at home with their children, up from 23% in 1999.

In 2012, 16% of all stay-at-home parents were fathers. That’s up from 10% in 1989.

With more parents choosing to stay at home with their children, what are some of the costs?

Cost of baby: According to the Dept. of Agriculture, the cost of raising a child born to a middle-income family will be $245,340 for food, housing, child care, education and other expenses, up to age 18. That doesn’t even include college!

Cost of working: Working also costs. Childcare cost is the biggest expense, with the average yearly cost for full-time care for an infant ranging from $4,863 to $16,430. Add to that bill: work outfits, dry cleaning, restaurant lunches, Frappuccinos, and your daily commute.

Wages: In addition to out-of-pocket costs, a child costs an average of $49,000 in lost lifetime wages for women due to taking time off to raise children, or choosing less demanding, lower-paying work to accommodate children.

Divorce: Researchers have found that women’s income drops by an average of 40% – and men’s by 25% – after a divorce. This makes it harder for parents to be the stay-at-home parent they dream of.

Alimony: Divorce is bad, but it gets even worse. I’ve written before about several bills in Florida to reform alimony. Over the past years, there has been a steady effort to reduce both the length of the term of alimony, in addition to lowering the amount of alimony a court can award in a divorce.

The financial impact of taking time off from work to raise your children can be very sobering. If you are contemplating that decision, information can help you make that decision.

The Forbes article can be found here.