Month: October 2015

More Couples Getting Prenups

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, October 30, 2015.

A recent survey of divorce lawyers shows that more than 60% cite an increase in prenuptial agreements. What’s behind the uptick?

I’ve posted about the importance of prenuptial agreements before. Yet only 5 to 10% of marrying Americans get prenuptial agreements. Recently, the Wall Street Journal ran an article worth talking about.

People forget that prenups are not just about how assets are divided in a divorce. Prenuptial agreements also can determine who gets what when one spouse dies.

Although 50% of marriages end in divorce, but of those that don’t, 100% end in death. In either case, assets have to be distributed. Prenuptial agreements can prevent heartache and wasting money to distribute those assets.

Two big reasons prevent people from asking for prenuptial agreements:

(1) Many couples feel a prenup predicts doom. It almost feels like you’re planning to fail. Most people are optimistic about their marriages, and think that requesting a prenuptial agreement would signal uncertainty.

(2) Many couples also believe that, in spite of the statistics showing that more than half of all marriages end in divorce, it won’t happen to them. Statistically, most think their own chance of divorcing is about 12%.

However, prenups provide certainty and protections beyond the law:

A prenup protects your premarital assets from a claim by your spouse in the event of death or divorce. In Florida, assets that you owned before marriage aren’t subject to a claim in a divorce – but increases in value could be.

In the event of your death, even if you don’t make a provision in your will for your spouse, Florida law may give your spouse certain rights to a share of your estate.

If your premarital assets are significant, you can ensure that your spouse will share in it only as much as you wish should you divorce or die. This protects you and the inheritance of your children from a prior relationship.

Prenups protect your income earned during the marriage. For instance, without a prenuptial agreement, you could have to pay alimony to your ex-spouse. An agreement can set that amount – or eliminate it.

Currently there are two Florida bills aimed to eliminate permanent alimony, and reduce long-term alimony. This hurts traditional couples in which one spouse left the workforce. Agreeing in advance about how to divide assets earned or future earnings can protect the stay-at-home spouse.

More couples are entering prenuptial agreements because they think they will actually strengthen their marriages. Providing couples with protection from the unknown outweighs the pain of talking about these issues before the wedding.

The Wall Street Journal article is here.

The Gossip Girl’s Custody Mistakes

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, October 27, 2015.

Kelly Rutherford, the “Gossip Girl” actress, made mistakes in her divorce. She lost an international custody dispute, and now timeshares with her children in Europe. What happened?

I’ve written before about avoiding divorce mistakes. A recent Vanity Fair article reminded me of those posts. Vanity Fair details Kelly’s problems in a surprisingly favorable article.

Kelly had bad luck with marriage. She left her first marriage to a Venezuelan banker after he got sick from a heart condition. The marriage lasted 7-months.

Her second marriage to German businessman Daniel Giersch lasted longer, she filed after 28-months. She had two children with Daniel, and Kelly’s mistakes began almost immediately.

Daniel argued to a family judge that Kelly was excluding him from the children. This can be a big mistake when you’re trying to prove you facilitate a relationship with the other parent.

– The court found Kelly withheld news of their child’s impending birth, and when he asked to be at the hospital, she refused.

– Kelly left his name off the birth certificate, the “father” field was left blank.

– The court found Kelly “falsely represented” to a custody evaluator that she placed the Father’s name on the birth certificate when she hadn’t. Worse, she refused to add it when confronted with the issue in Court.

– The court found Kelly withheld the children for over a month, and unilaterally enrolled them in school.

– Kelly was found to be making negative remarks about Daniel in front of the kids, accusing him of “dealing arms and drugs”, being “homicidal”, and telling her son to “scream and call the police” if he was in an airport with his dad.

– In the courthouse, Kelly’s lawyer called the State Department to get the Father deported, promising to call off the arrest and deportation if the Father would agree not to have any visitation with his kids.

These actions are mistakes, as courts look at which parent will foster a meaningful relationship with the other parent in custody decisions.

This August, Kelly refused to return the children to Europe. By refusing to return them, Kelly placed the kids in a needless court hearing. A court in New York immediately returned them to their Father.

Kelly’s coup de grâce of mistakes? This is not a press statement you want to issue:

“What the judge did yesterday was shocking, illegal, and abusive to my children. Without any legal authority, a judge from the lowest ranking court in the state court system violated the highest ranking federal constitutional rights of my American citizen children.”

There is a lot you can learn from watching celebrity divorces. The Vanity Fair article is available here.

Cosmetic Surgery & Divorce: Keeping Abreast of the Law

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Friday, October 23, 2015.

Mommy makeovers during a divorce are nothing new. Recent studies shows up to 40% of women with new ‘buns’ and breasts leave their husbands. But can your husband repossess them?

Plastic surgery is now a $10 billion industry, and is increasingly common. For divorce purposes, research shows an increasing connection between plastic surgery and divorce.

One recent study suggested that up to 40% of women who undergo plastic surgery end up leaving their partner who supported (read paid) them through the surgery.

I’ve written on this topic before. When your wife’s new lips, buns and breasts are paid for with marital funds – can they be considered a marital asset subject to division?

While the Florida Supreme Court has never really tackled these big issues, the North Dakota Supreme Court finally ruled on the issue for all of us, and you can read the decision yourself:

“Do we have any lines to be drawn? Is dental work a marital asset? Is a hip replacement a marital asset?” Justice Daniel Crothers asked attorney Christina Sambor during Supreme Court arguments on Thursday.

Citing cases from Hawaii, Delaware and Kentucky, Erik Isaacson invites us to hold that breast implants are a marital asset, the value of which are subject to distribution in the division of the marital estate. We decline . . .

Luckily, Mrs. Isaacson was saved from a very painful property division! Isaacson, and other state court opinions that address cosmetic surgery in divorce, have only done so in cursory manners, without regard to the surgery value as “property.”

There is little case law or statutory guidance on the value of cosmetic surgery enhancements, or their accompanying debt. With the increasing use of cosmetic surgery, the time has come to create some.

The UK Telegraph article is available here.

Is Mediation Privileged?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, October 19, 2015.

What happens in mediation stays in mediation. Sort of. The truth is that while confidentiality is one of the hallmarks of mediation, confidentiality is not absolute.

Mediation is a process where a neutral, third person – called a mediator – encourages and facilitates resolving your case. Consider it an informal meeting in which the goal is to reach a voluntary agreement.

A mediation privilege does exist in Florida, which means that in general, whatever is said during mediation is considered privileged – and can’t be disclosed to the court, or other people.

The law is found in the Mediation Confidentiality and Privilege Act, which Florida enacted in 2004. Generally, all communications during mediation are confidential.

If you disclose things to others, you could be subject to sanctions, equitable relief, compensatory damages, attorneys’ fees, mediator’s fees, and costs incurred in the mediation proceeding.

The confidentiality law also means you can refuse to testify, and prevent others from testifying about mediation communications. But, there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless you agree otherwise.

‘There is a strong reason to protect discussions during mediation; however, there is an equally strong policy argument to promote the enforcement of settlement agreements. If the agreement is needed to show fraud, duress or illegality, then the settlement agreement can be admissible in court.’

I’ve written about prenuptial agreements and post-nuptial agreements before. The act provides two other significant exceptions to confidentiality for mediation communications: those “willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence”, and those intended “for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.”

The benefit of this confidentiality is that it allows parties the ability to speak more freely during mediation, without fear that what they say will affect the outcome of their case.

Meet with your attorney before the mediation to review any outstanding questions you may have about the process, and about the mediation privilege.

Send Domestic Violence Victims To Jail?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Wednesday, October 14, 2015.

Domestic violence injunctions are critical for safety in divorce, but unlike other crimes, domestic violence victims sometimes fail to appear at trial. Can a victim go to jail?

I’ve written about domestic violence (D.V.) before. And anyone scanning the headlines in the Miami Herald knows that the dangers of domestic violence are all too real.

But in D.V. cases, a victim’s non-cooperation by failing to appear at trial, or recanting testimony, is a well-known problem. Some estimate up to 90% of D.V. victims recant or minimize reports of abuse.

The usual response to a failure to appear and recanting, (or even false statements) in D.V. cases is to turn a blind eye. After all, who wants the bad press for prosecuting – or sentencing to jail for contempt – a poor, battered, traumatized domestic violence victim?

On the other hand, turning a blind eye to a crime committed by domestic violence victim, such as perjury or disobeying a subpoena, has its own repercussions. This is a big conflict in D.V. court.

Earlier, a Seminole County domestic violence judge resolved the conflict by scolding the victim and then sentencing her to 3 days in jail for failing to appear to testify against her attacker.

The link below has a video of the proceedings in July as a sobbing woman tried to explain why she didn’t attend the trial for the father of her 1-year-old son – even though a subpoena required her presence and the judge seated a jury.

“Your Honor, I’m very sorry for not attending …,” said the woman. “I’ve been dealing with depression and a lot of personal anxiety since this happened …”

As deputies placed the woman in handcuffs, she begged Collins for a different outcome. But the judge closed her binder and told the woman to “turn around.”

In addition to the wasted resources, because she refused to testify against her attacker, the defendant was sentenced to only 16 days in jail, minimizing a violent crime.

There is a conflict about how to handle victims who fail to appear or lie in a domestic violence cases. There is little guidance over when and if a victim should be charged can be arbitrary.

The video and story can be seen here.

Alimony Reform & Equal Timesharing . . . Again

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Friday, October 9, 2015.

I’m becoming a broken record. Equal timesharing and alimony reform are hot political issues in Florida. . . again. The Senate has proposed a new bill, a lot earlier this year. What’s inside?

I’ve written about the Legislature’s past attempts to reform alimony many times. Senate Bill 250 is the latest attempt to do away with permanent alimony, and create a set of guidelines to automatically calculate the amount of alimony awardable, and the term for how many years alimony would last.

With respect to alimony amounts, the bill establishes alimony guidelines, and 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.

New Senate bill 250 adds something to timesharing too: 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..

While the bill establishes a presumption that approximately equal timesharing with a child by both parents is in the child’s best interest, a court will still be able to 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:


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.


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 2016 Legislative set to begin early on January 12, 2016, this Legislative session promises to be an interesting one.

The text of SB 250 is available here.

Divorce & Credit Scores

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, October 5, 2015.

No, this isn’t about how to preserve your credit during divorce (a useful topic by the way). Instead, it’s about whether you can predict the stability of a marriage based on credit scores.

Credit scores have become ubiquitous in household financial and non-financial decisions. For example, credit scores are a feature of every mortgage taken out, and every car and consumer loan you apply for.

A good credit score impacts your access to credit, the interest rate you borrow at, and your ability to buy on credit despite changes in your income. Lately, your credit is being used in areas besides debt underwriting.

For example, companies use them to see how much your car insurance should be, how much your cell phone plan will cost, and approval for renting a house. Lately, employers are running your credit score before their hiring decisions.

I’ve written before about the latest trends in divorce: like will your divorce last longer if you move to New Jersey? Is there a right time to marry? Along those lines, a new paper suggests evidence of the role credit scores play in staying married or in a long-term relationship.

Two professors have found that a couples’ average level of, and the match quality in credit scores, measured at the time the relationship starts, are highly predictive of subsequent separations.

That’s because initial credit scores and match quality predict subsequent credit usage and financial distress. Financial distress and the amount you buy on credit, in turn, correlate with relationship dissolution.

Credit scores and match quality appear predictive of subsequent separations even beyond these credit channels, suggesting that credit scores reveal an individual’s relationship skill and level of commitment.

The Abstract of the paper looks interesting. They explored how credit scores play a role in forming marriages and long-term cohabitations, as well as your ability to maintain a relationship. Not surprisingly, they found a large and significant role for credit scores in the formation and dissolution of committed relationships.

The study’s results lead to a hypothesis that credit scores reveal information about an important relationship skill: an individual’s general trustworthiness and commitment to non-debt obligations.

They also found that when individuals have a long exposure to greater trustworthiness, as measured by surveys, they tend to have higher credit scores even years after they leave those areas.

The abstract can be read here.