Year: 2015

Does Cohabitation Increase the Risk of Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Sunday, July 15, 2012.

Child custody is not limited to divorce cases. Cohabitation, couples living together before marriage, has increased by more than 1,500% in the United States over the last 50 years. The rise of cohabitation, presumed to better your chances of staying married, may actually increase the risk of divorce.

In a nationwide survey conducted in 2001 by the National Marriage Project, then at Rutgers and now at the University of Virginia, nearly half of 20-somethings agreed with the statement, “You would only marry someone if he or she agreed to live together with you first, so that you could find out whether you really get along.” About two-thirds said they believed that moving in together before marriage was a good way to avoid divorce.

However, a new study shows that couples who cohabit before marriage – before an engagement or other clear commitment – tend to be less satisfied with their marriages, and are more likely to divorce than couples who do not. The negative outcomes in these relationships are called the cohabitation effect.

The article can be found in the New York Times.

Whether you are ending a long term relationship – or marriage – complicated issues arise. This is especially so if children are involved, and one parent wants to move to another state. There is an alphabet soup of state and federal statutes – UCCJEA, FFCCSOA, and UIFSA – which can significantly impact where you can file or modify interstate child custody and child support orders.

Whether you are divorcing, or ending a long-term relationship, it is important you get expert advice on federal and state laws impacting these complicated interstate issues.

Tips if you’re Divorcing and over 50

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, July 10, 2015.

Blame it on the Baby Boomers (why not?) but U.S. News reports that the divorce rate for those over 50 has doubled. There are 7 important things to know about if you are divorcing in your 50s.

I’ve written about the issue of divorces by people over the age of 50 before. A study out of Bowling Green State University published their results in The Journals of Gerontology. Interestingly,48% of the divorcees were in their first marriage.

The U.S. News article mentioned seven things to consider:

1. Alimony.

While younger couples may have alimony ordered to provide financial support for their ex, it is often only long enough for lower earning spouses to get back on their feet. But in long-term marriages, courts will more likely consider longer terms of alimony payments, and even permanent alimony.

2. Your retirement money.

All of your marital assets are equitably distributed in a divorce. Many people overlook the fact that their retirement funds may be marital assets. To the extent your retirement funds are marital, they will likely be split evenly.

3. If you keep the house . . .

No one wants to give up their marital home, it provides security during a stressful period, and has a lot of emotional significance. However, selling the home sometimes makes the most sense. If you decide to keep the house, your spouse is going to get something in his or her column in return.

4. Your kids may still be a factor.

If there is a silver lining in a gray divorce, it is that children’s issues do not play a central role. Custody, visitation, and child support issues are usually out of the picture. But not always.

Many adult children live in the home after college, and parents may want to agree to maintani them. Additionally, many parents provide financial support to adult children who may suffer from disabilities. In Florida, child support can be awarded beyond the age of 18 if a child suffers from a disability.

5. Being bitter benefits no one.

The transitional stage of divorce means that emotions are running high. Try to keep conversations neutral. “Be polite, be civil, but keep it businesslike.”

6. Make new friends.

Getting a divorce can have an impact on relationships beyond the marriage. It can polarize friends and leave some ex-spouses feeling alone and defensive.

Possible outlets for social interaction could be taking up your earlier hobbies, finishing that degree, volunteering, or even getting involved in politics.

7. Get a prenuptial agreement.

If you are even considering another marriage, you must get a prenuptial agreement. Without one, a second divorce can take retirement savings – that have already been split once – and divide them even further.

The U.S. News article can be found here.

Alimony Reform . . . In the Big Apple

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Monday, July 6, 2015.

Alimony reform is not just a Florida issue, it’s nation-wide. Recently, New York passed sweeping revisions to its alimony laws. Florida’s dueling alimony reform bills died this year. Is New York a sign of what’s to come?

As the Wall Street Journal reports, the New York Senate’s action came five years after the state adopted legislation on alimony that eventually drew criticism from a wide range of bar associations and matrimonial lawyers.

The law introduces a formula to determine temporary alimony that is paid out between the filing of a divorce and its completion. It was intended to protect low-income New Yorkers by providing predictability and consistency in awards.

It worked well for that group, but drew increasing opposition because it applied to people making more than $500,000 a year. Critics said it failed to account for complicated financial situations, and there were extreme cases of spouses being asked to pay more in child support, alimony and other expenses than their monthly incomes.

The new bill preserves the temporary maintenance guidelines and extends them to post-divorce alimony, but now the formula will apply to income up to $175,000, down from $543,000.

It also provides judges with suggested ranges for the length of alimony awards, including proposing 7 to 10 years for marriages lasting 20 years, and changes the formula if child support is involved.

Formerly, money was awarded for a percentage of the lifetime value of a license or professional degree earned during the marriage. The money was awarded regardless of whether the person ended up switching careers or suffered an injury that prevented him or her from working.

I’ve written extensively on Florida’s efforts to adopt new alimony laws. The most recent effort, after a year of wheeling-and-dealing by lawyers, lawmakers and others, died when the Senate refused to take up the House’s version of the bill.

The Wall Street Journal article is here.

Vaccines & Custody: An Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, July 2, 2015.

Parents argue over vaccinating their kids. This has led to bitter custody battles because Florida allows exemptions from vaccines. California is now different. California has a strict new law on school vaccinations – it eliminates all religious exemptions.

As National Public Radio reports:

“The science is clear that vaccines dramatically protect against a number of infectious and dangerous diseases,” Governor Brown said in a signing statement. “While it’s true that no medical intervention is without risk, the evidence shows that immunization powerfully benefits and protects the community.

Starting July 1, 2016, all children enrolled in California public or private schools or day cares must be vaccinated against whooping cough, measles and other diseases, regardless of parents’ religious and other personal beliefs.

I wrote an article last year about custody rights and vaccinations in Florida. The issue is the intersection of parental rights and religion. Unlike the new California rule, Florida still provides for a religious exemption if vaccinations are in conflict with the religious tenets and practices of the child’s parent or guardian.

In California, it is being reported that “those who opt out will have to be home-schooled or enroll in an independent study program off school grounds.” KQED’s April Dembosky reported last week on the long history behind the anti-vaccination movement:

“From the moment the very first vaccine came on the scene, which was the smallpox vaccine, there has been resistance to vaccines and vaccination,’ says Elena Conis, a history professor at Emory University and author of Vaccine Nation: America’s Changing Relationship with Immunization.

Vaccine disputes are high stakes cases because of the public health issues involved. Americans are again getting sick and dying from vaccine preventable diseases which were once a thing of the past – including measles, mumps and whooping cough.

The CDC is reporting that during 2012, 48,277 cases of pertussis were reported to CDC, including 20 pertussis-related deaths. This was the most reported cases since 1955. The majority of deaths occurred among infants younger than 3 months of age.

There are only two vaccination opinions in Florida, and the facts in each are strikingly similar. In both cases, the parents shared parental responsibility. Both involved chiropractors as parents who were involved in their children’s health care.

Moreover, in both cases the health care professional parent opposed vaccinations. Ironically, the outcomes in the two cases were very different.

Vaccination disputes are interesting and high-stakes cases to watch for as the new school year approaches

Big Grandparent Visitation Rights Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Monday, June 29, 2015.

Grandparents play an increasingly large role in raising grandchildren. Yet grandparent visitation rights don’t really exist in Florida. Will the new law passed this June change things? Starting July 1st we will find out.

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 law makers 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.

Privacy is a fundamental right, and any statute that infringes on that right is subject to the “compelling state interest” test – the highest standard of review.

Florida is taking a new stab at having some form of grandparent visitation rights. House Bill 149 passed the House and Senate, and amends laws related to grandparent visitation.

The bill creates a new limited grandparent visitation statute:

(1) It allows a grandparent of a minor child whose parents are deceased, missing, or in a persistent vegetative state to petition the court for visitation.

(2) If there are two parents, one of whom is deceased, missing, or in a persistent vegetative state and the other has been convicted of a felony or certain violent crimes.

Grandparent must make a showing of parental unfitness or significant harm to the child, and also requires that grandparents try mediation and, if necessary, the court may appoint a guardian ad litem for the child.

Several factors are listed for the court to consider, including the previous relationship the grandparent had with the child, the findings of a guardian ad litem, the potential disruption to the family, the consistency of values between the grandparent and the parent, and the reasons visitation ended.

The bill limits the number of times a grandparent can file for visitation, absent a real, substantial and unanticipated change of circumstances.

The bill was approved by the Governor on June 11, 2015, and will become effective on July 1, 2015.

Big Same-Sex Marriage Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, June 26, 2015.

The Supreme Court just decided Obergefell, ruling that the Constitution recognizes a right to same-sex marriage. This impacts Florida’s same-sex marriage and divorce problem.

I’ve written about same-sex marriage and divorce cases often. In Obergefell, Justice Kennedy wrote the opinion for the majority:

First – The right to personal choice regarding marriage is inherent in the concept of individual autonomy.

Second – The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

Third – marriage safeguards children and families.

Fourth – Marriage is a keystone of our social order.

The majority holding:

The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

Chief Justice Roberts is the primary dissenter:

Petitioners make strong arguments rooted in social policy . . . But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be.

Justice Scalia advocated judicial restraint:

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

Justice Alito adds a twist:

[Today’s decision] will be used to vilify Americans who are unwilling to assent to the new orthodoxy. . . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.

Obergefell v. Hodges can be read here.

Splitting Up: Equitable Distribution and Waste

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Monday, June 22, 2015.

Everybody reacts to their divorce differently. One German man got angry and vented his anger by splitting everything in half. Literally, he divided all the marital property in half. Is that the right way to do it?

As Fox News reports, the heartbroken guy posted a video which shows him cutting things in half: his sofa, a big-screen Samsung TV, and even his Opel Corsa car.

You can see what he’s selling on eBay, after cutting his half, and how much it’s priced at:

Half a teddy bear – €51 ($58): “Although she doesn’t need a stuffed animal to snuggle, there are affectionate fellow workers for that.”

Half an iPhone 5 – €78 ($89): “I generously left her half of everything, even my beloved mobile phone. That way she can no longer secretly send WhatsApp hearts to a younger work colleague. She doesn’t need it anyway as she lives with one.

Half a Samsung TV – €24.75 ($28): “Of course, also the TV that I have purchased so she can comfortably watch ‘Germany’s Next Top Model’ on it.”

Half an Opel Corsa – €62 ($70): “My ex-wife wanted 50% of all our things, including our beloved little city car. Although it’s not clear to me why she’d still want a dinky old Opel. Her new guy is impressively motorized, I hear.”

Four nice chairs’ halves – €36.50 ($41): “The chairs are super as an art installation, or simply for people who like to sit on half-an-ass cheek.”

Half a MacBook Pro – €81 ($92): “The radical ‘conversion’ was more or less an idea of my ex-wife. She wanted to replace her husband, but keep the money and beautiful things.”

I’ve written about property divisions before. In Florida, marital property is divided according to our statute. Unlike in community property states, Florida is an equitable distribution state, and we start with the principle that marital property is divided equitably – not always equally.

In Florida, a spouse’s financial contribution to the asset, or a spouse’s destruction of an asset (and even infidelity) can be taken into consideration when dividing property.

You should familiarize yourself with how Florida courts divide property. It will go a long way in helping you when trying to negotiate with your spouse.

Letting your anger get the best of you, may look funny in the news, but for the German ex-husband who just destroyed all of his marital property, his behavior will cost him.

Divorce & Free Speech

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, June 17, 2015.

The colorfully named “The Pyscho Ex-Wife,” was a website launched by a divorcee to air his frustrations about his divorce. It turned into a battle over free speech. Can you publicly bash a parent, or does the best interests of the child beat free speech?

The Psycho Ex-Wife was a popular site:

“We have been through 3 custody evaluations, 6 false contempt petitions, 3 custody schedules, 1 psych evaluation, 1 false child abuse allegation, 2 false calls to the local sheriff’s office, 4 years of parental alienation, $80,000, 1 break in, 1 case of stalking, 1 restraining order, and we FINALLY have 50/50 custody of their children”

The blog quickly grew into a huge community, with a recommended reading list in which registered members discussed everything from mental health to legal issues.

The Wife complained to Pennsylvania, Judge Diane E. Gibbons judge, who ordered him to shut The Psycho Ex-Wife down.

“Father shall take down that website and shall never on any public media make any reference to mother at all, nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than ‘happy birthday’ or other significant school events.”

“I don’t care if you guys fight in private,” Gibbons said in her ruling. “I don’t care what you do in private. But you are not going to do it in front of these kids.”

I’ve written about free speech and family law before. According to UCLA law school professor and First Amendment expert Eugene Volokh:

“The court order categorically orders the removal of a Web site, and prohibits all public statements – factually accurate or not – by one person about another person,” he wrote. “That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult.”

In Florida, as under the U.S. Constitution, offensive speech is protected as long as it isn’t obscene, defamatory, or threatening to national security. Speech restrictions are ordinarily unconstitutional.

However, if the speech restrictions in family court are narrowly focused on preventing one parent from undermining the child’s relationship with the other parent, they may pass constitutional muster.

Professor Volokh’s exhaustive article published in the NYU Law Review is available here.

Same-Sex Divorce Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Thursday, June 11, 2015.

A year after being denied a divorce in Tampa, a same-sex couple appealed to the 2nd District Court of Appeal . . . and won. Fort Myers attorney, Luis Insignares, represented the appellant.

Danielle and Krista were legally married in Massachusetts in 2012. They subsequently moved to Florida. Once here, the marriage soured, and Danielle filed a petition for dissolution of marriage a year later.

Krista opposed the divorce, and in trying to stop it, argued that Florida did not recognize same-sex marriages, so the court could not dissolve her marriage.

Florida’s Defense of Marriage Act, supports Kristi’s argument. After trial, the circuit court judge agreed with Kristi, and dismissed the petition for divorce. Danielle appealed that dismissal order.

The Second District Court of Appeals reversed. The Full Faith and Credit Clause of the U.S. Constitution, requires Florida to recognize judgments obtained in the courts of other states, unless they violate public policy.

The Second District found that under Florida law, sexual orientation is not a protected class entitled to ‘strict-scrutiny’ analysis. The court applied a ‘rational basis’ analysis. The Court then went on to knock down every ‘legitimate purpose’ argument the State of Florida and Kristi raised.

For instance, the Attorney General claimed that Florida’s refusal to recognize same-sex marriages furthered Florida’s history of defining marriage as being between a man and a woman. However, refusing to allow Florida’s courts to dissolve same-sex marriages did not further this stated public policy in any manner.

The Second District panel was also concerned about denying parents access to court to undo a marriage:

The couple’s financial affairs remain intertwined, and their joint assets, if any, are not easily transferred . . . [this] impedes the flow of assets and capital. Particularly significant, the welfare and stability of a child parented by this couple remains in limbo. The fact that a child is involved implicates Florida’s strong public policy to protect children by determining custody matters in accordance with the best interests of the child.

I’ve written about the chaos in same-sex marriage law before. In November, after the 6th Circuit Court of Appeals upheld bans on same-sex marriages, I noted that the other circuit courts had come out the other way.

The 6th Circuit created a circuit split in our country. The U.S. Supreme Court is expected to issue a ruling within weeks about whether same-sex couples have a federal constitutional right to wed.

The Second District Court of Appeals opinion is here.

Divorce & Fraud

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

People question their divorce agreements, suspecting their spouse lied. Two ex-wives in London are not just questioning, they’re taking their suspicions to the United Kingdom’s Supreme Court. What happens in Florida when one spouse suspects fraud?

As the Guardian reports:

Charles Sharland and Bhadresh Gohil are accused of concealing the value of their assets. Their former spouses are seeking to reopen financial negotiations on the grounds that the courts were provided with fraudulent evidence.

The hearing, before seven justices at the supreme court in Westminster, London, will assess whether non-disclosure entitles a claimant to reinstate a concluded divorce trial.

The applications by Alison Sharland and Varsha Gohil, both represented by the law firm Irwin Mitchell, have been joined for the justices to examine the impact of fraud on matrimonial disputes.

Sharland had accepted more than £10m in cash and properties from her ex-husband in the settlement but it later emerged that the shares in his company were worth considerably more than previously revealed. One estimate put the firm’s value at $1bn (£656m).

Gohil had accepted £270,000 plus a car in her divorce settlement in 2004. But it later became clear that her husband, who was tried and jailed for fraud and money-laundering sums of up to £37m, had not given the court accurate information about his finances

“Both cases raise serious issues about how the courts should handle cases where information shared with the court and used to agree a divorce settlement is later found to be false or incomplete.”

I’ve written about fraud in family law before. In Florida, it’s possible to overturn a final judgment based on fraud. But it’s not as simple as merely proving fraud.

That’s because there are different types of fraud. For example, did your husband lie to you about where the courthouse was, or did you lie to him about whether he was the father of your child?

Courts also feel pressure to make final judgments final. Claims of fraud therefore need a trial to explan the facts and circumstances. It is rare for a court to determine the presence or absence of fraud without a trial or some kind of evidentiary hearing.

Allegations of fraud involve the intent of the alleged wrongdoer, and require judges to evaluate the credibility of witnesses and the evidence. If you suspect there was fraud in your case, you will want to consult with a board certified expert marital and family attorney.

For the Guardian article click here.