Month: November 2015

Thanksgiving Timesharing Tips

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Wednesday, November 25, 2015.

Thanksgiving is a few days away. Before Thanksgiving arrives is the time to resolve timesharing/visitation problems so you can enjoy your turkey dinner with minimum stress for you and your children.

I’ve written about problems and solutions to holiday timesharing before. Here are some good suggestions to make your Thanksgiving visitation battles a little easier:

Alternate. Some families alternate Thanksgiving every other year. If you get the kids for Thanksgiving this year, next year will be the other parent’s turn. Having a regular plan to fall back on can eliminate the potential for what is fair.

Be flexible. An easy Thanksgiving schedule for everyone may require some changes from the normal visitation schedule.

Be respectful. You may not want to be friends anymore, but you need to figure out how to communicate with your ex without all the emotional baggage.

Don’t mix issues. Do not bring up unrelated issues which could make a problem free Thanksgiving dinner impossible. Set aside your differences until after the holiday season.

Pick your battles. Thanksgiving may be more important to you than Easter is to your ex spouse. Don’t fight just for the sake of fighting.

Protect the children. Your children’s memories of Thanksgiving should be about great food and family fun. They should not be forced to witness you and another parent arguing.

Plan. Start talking about the holiday visitation schedule sooner rather than later, the longer you wait the harder it can be.

Thanksgiving can be stressful. But the weather has cooled, kids are on vacation, and work may have slowed too. Try to make it the best time of year.

New Article: The Daubert Crucible

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, November 20, 2015.

My new article on the amendments to our expert witness rules is available at the Family Law Section website. The Daubert Crucible not only discusses the changes to the expert witness statutes, but witchcraft. Below is a summary.

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In amending the Florida Evidence Code, the Legislature has bound Florida courts to the Daubert standard for the admission of expert testimony and opinions.

I’ve written on the changes to the Evidence Code before. Although the amendment became effective in 2013, the changes to the law are still so new, there are less than a handful of appellate decisions which have reviewed the amendments.

Are the Changes Even Constitutional?

Still up in the air are lingering Constitutional doubts. While the Legislature can enact substantive law, only the Supreme Court can regulate courtroom practice and procedure.

The trick is that the Evidence Code contains both substantive and procedural provisions. If the Legislative branch encroached on the judicial branch, the changes are subject to a strict separation of powers doctrine review.

However, the Florida Supreme Court denied certiorari to a case which specifically asked the high court to review the Constitutionality of the amendments.

There is also fierce debate within the Florida Bar. The Board of Governors is required to vote on all procedural rule changes before those changes are submitted to the Florida Supreme Court.

At the Board’s most recent meeting, the Committee voted 16-14 in support of rejecting the new Daubert standard. Then, at the Family Law Section special meeting last week, my own motion to adopt the Daubert standard was voted down.

A webpage has been set up at www.floridabar.org/daubertfrye with background information on the matter and a link to a comment form for member input.

The article is available on the Florida Bar Family Law Section website here.

It also makes a great holiday read.

Denying Visitation: Is Jailing Kids the Answer?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Sunday, November 15, 2015.

Three children, estranged from their father, refused a court order to timeshare with him. The judge sent them to juvenile detention for the summer. Did it work?

As the Detroit Free Press reports, the judge was abrupt:

You both are going to live in Children’s Village. Your mother is not allowed to visit, no one on your mom’s side is allowed to visit. Only your father and therapist . . .

When you are ready to have lunch with your dad, to have dinner with your dad, to be normal human beings, I will review this when your dad tells me you are ready. Otherwise, you are living in Children’s Village til you graduate from high school.

That’s the order of the court.

Good bye.

The children had refused to speak to their father, they did not show up for planned visitations, would bow their heads and refuse to look at him during supervised visits. Their mother failed to bring them for visitation.

Judge Gorcyca, who blamed the mother for poisoning the children’s attitude toward their father, ordered the children be sent to juvenile detention for defying her court orders – while in court – that they go to lunch with their father.

I’ve written before about parental alienation. Parental alienation involves one parent “programming” a child to denigrate the other parent to undermine and interfere with the child’s relationship with the targeted parent.

In the Detroit case, the children – ranging in age from 9 to 15 – were held in contempt of court for disobeying the judge’s order to “have a healthy relationship with your father.”

These are not unsophisticated parents. The father is an internationally prominent traffic safety researcher and GM engineer. The mother is a pediatric eye doctor, glaucoma researcher, and an assistant professor of ophthalmology at the University of Michigan.

In sentencing the children to jail for refusing to follow her orders to have a relationship with their father, the court took severe action.

But did it work?

According to Detroit area newspapers, the three children went to juvenile detention, and a court-ordered, five day intensive therapy treatment designed to treat parental alienation. They are now residing with their father, his second wife, and their young half-brother.

The Father is asking the judge to prohibit the children’s mother from contacting them, or appearing at their schools, for the next 90 days, part of the protocol in reuniting children with an estranged parent.

The Detroit Free Press article is here.

Mortgages & Divorce

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

It’s real estate tax time, and deciding how to equitably distribute the marital home in a divorce can be a headache – especially when both spouses are on the mortgage.

As the New York Times recently reported, when there is equity in the home, each spouse typically wants to take a share as part of the settlement agreement.

But if one person wants to remain in the home, rather than sell it and split any profit, then that spouse will likely have to qualify for a mortgage on his or her own.

There are a lot of issues involved in the marital home. I’ve written before about property divisions when the housing market was down. Now that the housing market is in recovery, different issues arise.

Spouses who choose to stay in the home may have to refinance the mortgage to cash out enough equity to pay off their soon-to-be Ex. But even a spouse who has the financial resources for a buyout will still have to get a mortgage in his or her name.

The spouse walking away from the house, not only wants their share of the equity in the property, but must get their name off the mortgage so their credit score won’t reflect the debt, and so they won’t be liable for any non-payment.

Once your name is on the mortgage, you are jointly and severally liable for the entire debt amount. The mortgage can tie up your credit, making it difficult to qualify for another mortgage, or even a car loan.

Worse still, if there’s a default or late payment of the mortgage – you are not only going to be sued – your credit report score could drop considerably, even though you are not at fault.

In order to determine who gets to keep the house, you must consider who qualifies for a new mortgage on their own. If you do, could you afford all the other expenses associated with living in that home: taxes, insurance, utilities, lawn, pool, maintenance etc.

As the New York Times reports:

This preparation should happen early on in the divorce process, but too often people are too busy arguing, litigating, fighting, and having no idea of the whole picture.

A few things to consider: find out from a mortgage broker how much mortgage you could afford early on in the case. Spouses planning to count child support and alimony as income to qualify for a mortgage should know that lenders will require proof of at least six months’ receipt of that income before closing. In addition, there are other Fannie Mae guidelines.

The New York Times article is available here.

More Older Couples Divorcing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, November 6, 2015.

Hilary Stephens was 57 when she walked away from her 28-year marriage. As the New York Times reports, late-life divorces are on the rise.

A late-life divorce, also called “silver” or “gray” divorce, is becoming more common, and more acceptable. In 2014, people age 50 and above were twice as likely to go through a divorce than in 1990.

Reasons for Late-Life Divorces

Remarriage. Many are in second marriages, and the divorce rate is about 2 1/2 times greater for second marriages than first.

Life expectancy. People are dying later in life. These days, if you’re 50 or 60, you could live on for another 30 more years.

Loss of Stigma. Separation no longer holds the stigma it once did.

Status of women. Women initiate a majority of divorces. “As women gain financial independence, they feel safe leaving an unhappy union.”

I’ve written about late-life divorces before. Some things to consider if you are considering a late-life divorce:

Florida, like many states, is going through a lengthy legislative alimony reform battle. Your expectations about support and alimony could be frustrated.

Your retirement money could be cut in half. Retirement accounts, and other assets, are presumptively split evenly.

If you keep the house, you may have to give up something. We are out of the housing recession, and houses have a lot of value now. You may have to take a smaller share of a pension, or a smaller alimony amount.

Children are still a factor. Maybe there isn’t the same gut-wrenching custody issues, but a lot of parents provide some kind of financial assistance for adult children.

Get a prenuptial agreement if you are considering marrying a second time.

There are special concerns involved when older couples divorce. As always, information is power, so make a point to seek out experts for guidance.

The New York Times article is here.

Your Foreign Custody Order is not Enforceable Here

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, November 3, 2015.

A Pennsylvania court refused to follow or recognize a foreign country’s custody order, instead allowing one of its courts to change custody. Are international child custody orders valid here?

The case of H.L.K. v. F.A.A. involved dual citizenships: the Mother was a U.S. citizen and the Father Saudi Arabian. They married in Pennsylvania in 1994, and moved to Saudi Arabia.

Three children were born, and all were dual citizens. In 2008, the Mother moved back to Pennsylvania, and filed for divorce. Before a court could enter the divorce, she reconciled, moved back to Saudi Arabia, and in 2012 divorced there.

Immediately following the divorce, the Mother was forced to leave Saudi Arabia without the children because she was no longer sponsored by the Father, and because of Saudi guardianship laws.

In June 2013, the Father let the children visit Pennsylvania for summer timesharing. The Mother kept them, and sued for custody in Pennsylvania. At the same time, the Father sued in a Saudi court, which awarded him sole custody of the children.

The Father then tried to have his Saudi custody order recognized in Pennsylvania to enforce it. The Mother objected. The Pennsylvania court sided with the Mother, and refused to enforce it.

Why? The Saudi Order states, in part:

First, the non-Muslim shall not have right of custody of a Muslim.

Second, custody of each girl who attains the seventh year of age is with her father.

Third, if either parent desires to live in a remote country, priority for child custody shall go to the father whether the traveler is the father or mother.

Fourth, the female after attaining seventh year of age shall have no choice and she should stay with her father till marriage . . . the father is often more careful in protecting his daughter.

The Pennsylvania court found the Saudi judgment (especially the highlighted portions) violated state public policy, and refused to register it under principles of comity.

Foreign laws are increasingly being challenged in the U.S. For example, Islamic and American laws sometimes clash as you could probably guess fromt he bolded language in the Saudi order.

I’ve written about the intersection of Family law and Islamic law before. In 2014, Florida passed a law which prohibits our state courts from basing a decision on a foreign law that does not grant the parties the same rights guaranteed by the Florida or U.S. Constitutions.

The opinion is available here. Thanks to the Volokh Conspiracy for its analysis.