Year: 2015

The AshleyMadison Hack & Divorce

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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 AshleyMadison.com, 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

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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

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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?

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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

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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

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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.

Losing Your Alimony by Cohabitation

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Friday, July 31, 2015.

After a divorce, alimony may be awarded. The amount of alimony is based on a variety of factors. But when an alimony recipient cohabitates with someone special, alimony can be modified. Here’s how.

Cohabitation is very frustrating to the person who pays alimony – and these days it can be women paying alimony too – because the alimony recipient may be either:

(1) using the money to support their girlfriend or boyfriend, or

(2) they may be receiving money from their new partner.

I’ve written about alimony, and especially the annual attempt to change Florida’s alimony laws before. In Florida, cohabitation is referred to as a “supportive relationship.”

In Florida, our statute allows a court to reduce or terminate an award of alimony if a supportive relationship exists between the recipient of alimony and the person the alimony recipient resides with.

In determining whether a supportive relationship exists, the court considers the following:

a. The extent to which the obligee and the other person have held themselves out as a married couple.

b. The period of time that the obligee has resided with the other person in a permanent place of abode.

c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.

d. The extent to which the obligee or the other person has supported the other, in whole or in part.

e. The extent to which the obligee or the other person has performed valuable services for the other.

f. The extent to which the obligee or the other person has performed valuable services for the other’s company or employer.

g. Whether the obligee and the other person have worked together to create or enhance anything of value.

h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.

i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.

j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.

k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.

But simply proving a supportive relationship is not enough. People can waive their right to seek modification of alimony in a settlement agreement.

Cohabitation is not as easy to prove as you might think. Even if you can prove a supportive relationship, you must check your agreement to see if you can even modify alimony.

Avoiding Divorce: The Perfect Age to Marry

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Marriage on Tuesday, July 28, 2015.

This post asks if there is a right time to marry. Is it true that if you get married too early or too late, the chances are you’ll end up in divorce court? One professor says the late 20s and early 30s are perfect.

I’ve written about the right time to divorce. But is there a right time to marry? Relying on data from the 2006-2010 National Survey of Family Growth, a professor from Utah states that the age of marriage now has a U-shaped relationship to divorce risk.

The odds of divorce decline as you age from your teenage years through your late twenties and early thirties. Then, the chances of divorce go up again as you move into your late thirties and early forties.

This is a marked departure from the way people used to think of it, when the relationship was relatively linear: the older you are when you first marry, the lower the odds of divorce.

The new study suggests that people should get married between the ages of 28 and 32 if they don’t want to get divorced, at least in the first five years.

These are just statistics, so do not accept these figures as your own wedding or engagement announcement gets sent out. There are many reasons why starting a marriage in your late 20s or early 30s makes sense:

people are old enough to understand if they really get along with someone or are just blinded by hormones. They’ve already made significant life choices and taken on some responsibilities. And they may be just financially solvent enough to be able to contemplate supporting someone should the need arise.

Others sociologists say the perfect age to get married if you don’t want to get divorced is 45 to 49, which, is why people shouldn’t make life decisions based on statistical analyses on the Internet.

The new study can be found here.

Divorce & Social Media . . . in China!

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

With prosperity comes social problems. The divorce rate in China has risen along with the country’s new wealth. China’s divorce rate climbed by 3.9%, the 12th consecutive annual increase.

Forbes reports on what’s driving the increase. To learn more, they discussed the divorce problem with Liu Lin, a divorce lawyer at Beijing Shuangli Law Firm.

One big factor, he said, is the growing use of social media such as Alibaba-backed Weibo and Tencent’s WeChat. “Social media is a catalyst for divorce,” Liu said.

In the 1980s, divorces were mainly caused by liaisons at settings like dance halls and public squares. Social media is a catalyst for divorce. Through social media, people can get a better understanding of what kind of love they want, but that discovery often happens outside of their marriage.

For example, in the Fengtai District Court in Beijing, the wife had an affair with someone she met on QQ. They lived together and the marriage ended. In another case, a man met a woman through Weibo. He then left his home in Beijing to live with the woman in Hunan.

The one that has an affair usually initiates the divorce, no matter if it’s wife or husband. Normally, assets are split 50-50, with consideration of the wife’s interest as stipulated under relevant law.

Whether one side or the other had an affair isn’t considered in the split of assets. Even though property is split by half, women are disadvantaged in the proceedings.

In China, men’s capacity to earn is much greater than women’s, and they have a lot of private assets that are not known to the wife. Usually, what women win in court is only part a husband’s true assets.

I wrote an article about the impact of social media on divorces in the Florida Bar Commentator. Personal details, they type of evidence we find on social media sites, are important.

Consider the following example:

Husband denies anger management issues but posts on Facebook . . . : “If you have the balls to get in my face, I’ll kick your ass into submission.”

Or this:

Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook.

Going through a divorce causes you to be placed under a magnifying glass. If you post things on social media sites that could help your estranged spouse’s case, an attorney will likely make use of that as evidence.

The Forbes article is available here.

Hard Time-sharing: Visiting the Parent in Prison

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, July 20, 2015.

Here in the freest country in the world, we have over 2.2 million people behind bars, the highest rate in the world. For children timesharing with an incarcerated parent, it’s not all “cupcakes and lollipops”. A new study is looking at the problem.

The purpose of the study was to better understand the factors associated with, and effects of, prison visitation for children during maternal and paternal incarceration.

As gatekeepers, caregivers play a pivotal role in the facilitation of parent-child prison visitation. Yet, some caregivers may be more likely to take children to visit than others.

The study, “It’s Not All Cupcakes and Lollipops:’ An Investigation of the Predictors and Effects of Prison Visitation for Children during Maternal and Paternal Incarceration.”

The study found that 65% of children reacted negatively to prison visitation, resulting in crying, emotional outbursts, depressive symptoms, poor attitudes, acting out, and developmental regression, according to interviews with caregivers who have a parent incarcerated in the Arizona Department of Corrections.

One-third of children were reported to have had a positive experience, which included excitement and improved attitudes and behaviors.

“In-prison visitation may be considered a ‘reset’ button for prisoners, caregivers, and children as they attempt to settle the past, discuss the present and plan for the future,” Tasca said.

“At the same time, however, prison visitation can be an arduous undertaking emotionally, physically, and economically for children and caregivers.”

Two primary factors shaped how children responded to visits with an incarcerated mother or father: the institutional environment and the parent-child relationship.

“The punitive nature of corrections often extends to the family, including intrusive search procedures, poor treatment by staff and visiting rooms not conducive to family interactions,” Tasca said.

“Levels of parental attachment also were in issue, with some highly strained because of limited prior involvement and criminal activities.”

According to the Bureau of Justice Statistics, in 2013 there were about two million children with an incarcerated parent, predominately from poor, minority families. About one-quarter to two-thirds of children visit a parent in prison.

For incarcerated mothers, children were accompanied most frequently by a grandmother; for incarcerated fathers, it was the child’s mother who often escorted the child to prison.

Most families of prisoners are fiscally and emotionally overburdened, the study found. More than half of the caretakers of the children of imprisoned parents were on public assistance and lived more than 100 miles from the facility where prisoners were housed.

The study should add to the collateral consequences of incarceration literature by providing greater insight into the imprisonment experience for vulnerable families.

The study is available here.