Year: 2015

Alimony Reform & A Presumption of Equal Timesharing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, April 16, 2015.

Equal timesharing and alimony reform are back again, as the Florida Legislature is in session. Competing House and Senate bills are being circulated which dramatically change alimony and may create a presumption of equal timesharing (custody).

I’ve written about the Legislature’s past attempts to reform alimony before. Senate Bill 1248 is the latest attempt to do away with permanent alimony, and create a set of guideline to automatically calculate the amount of alimony awardable, and the term for how many years alimony would last.

Both bills reform alimony. With respect to alimony amounts, the bill establishes 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.

However, unlike the House bill discussed in earlier posts, the Senate bill adds something different: 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.”

The bill establishes a presumption that approximately equal timesharing with a child by both parents is in the child’s best interest. However, a court can 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:

Pro

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.

Con

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 2015 Legislative session roaring up north, and competing bills in the House and Senate, this is a very interesting issue to keep your eye on.

Destination Divorces: Where Should You File?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, April 13, 2015.

Where should you file for divorce? If former Miss Malaysia Pauline Chai wins the £500 million she’s demanding, she’ll break all divorce records in the U.K., and that will cement London’s status as the Divorce Capital of the World.

Forbes magazine has reported that the United Kingdom’s Supreme Court in London, is wife-friendly, making it a divorce capital

A string of well-publicized divorces have been filed in London, which wives of very wealthy (and not-so-wealthy) ended their unions with better deals than they would have gotten in other countries.

It has put London at the top of the list for Divorce Tourism – or, as it’s known, “Divorces Eurostar.”

London saw its reputation as the divorce-jackpot destination enhanced after the Supreme Court last year overturned what’s known as the ‘cheats’ charter.’

“Britain’s highest court has ruled that millionaires cannot use their business interests to shield their wealth from their spouses in divorce cases.

While many divorce lawyers celebrated the end of the ‘cheats’ charter’ reveling in the reassertion of London’s reputation as a haven for divorcing wives, others worried that it will be replaced by a “gold diggers’ charter,” and threaten the independence of companies.

Marriage break-ups involving foreigners account for a sixth of cases before the English courts, which means a significant increase in international divorces now estimated to be 24,000 of the 150,000 in England and Wales each year.

Another ruling on marital property agreements affirmed English courts’ reputation as more generous than others. The landmark case introduced the principle that divorcing ‘money earners’ should not necessarily retain the surplus after a parting couple’s needs had been met. Instead, the residual cash should be divided equally.

London’s reputation as the divorce capital was reinforced again, in an anonymous case in which the court awarded £54 million to the wife, or 50% of the husband’s fortune, surpassing the previous record case in which an insurance magnate had to fork over £48 million to his wife after she rejected his £6 million settlement offer.

“The mother of five, Ms. Chai, who has been living on their 1,000 acre, £30 million home in Hertfordshire since October, issued a divorce petition in England in February.

His lawyers have told the British Court that allowing the case to be heard would enhance “the ill-gotten reputation of this country for being the divorce capital of the world.

The Daily Mail article on the divorce can be found here.

Wedding Checklist: Prenup and Premarital Counseling

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, April 1, 2015.

Before every wedding, you are surrounded by parents, friends, florists and caterers. You’re caught up in the excitement. This leads many to mistake the wedding as the end of the process when it’s really the start. A prenup can help.

As the New York Times recently reported:

“Marriage can be a minefield that blows up without the proper navigation these days,” said Debbie Martinez, a Miami relationship coach. That is why some couples are taking pre-marital counseling sessions to refocus their attention on each other and the lives they will lead together.

Unlike the marriage counseling people do years after a wedding, premarital counseling addresses unrealistic expectations of “happy, roses and rainbows,” said Jocelyn W. Charnas, a clinical psychologist in Manhattan who counsels engaged couples.

“The fundamental point about premarital counseling is to lay a foundation for empathy, communication and partnership,” Dr. Charnas said. This is especially true, he said: “for those couples in their 20s and 30s with good jobs and money saved. They view marriage as the capstone moment. They have arrived.”

Premarital counseling can serve a similar purpose as prenuptial agreements. I’ve written about pre-wedding preparation before, especially the importance of prenuptial agreements.

A prenup can help with the following:

Keeps Your Non-Marital Property Non-Marital. The property you brought into the marriage is yours. But over time it is common for people to start mixing things up. If you put it in writing, you can avoid this problem down the road.

You Can Change the Law. Right now in Florida, there is an ongoing legislation about alimony. Through an agreement you can modify Florida’s legal standards for awarding alimony.

Avoid Expensive Endings. A prenuptial agreement can simplify things by resolving issues ahead of time, way before death or divorce occurs. Once you have entered an agreement, everything should become cheaper.

Protect Your Children’s Inheritance. An agreement helps assure your children that any inheritance is protected, and they don’t need to resent the new spouse.

Citing the findings of a National Marriage Project, Mr. Wilcox said, “Couples who do premarital counseling fare better.” When two people love each other, it is hard to talk about kids, finances and other difficult subjects.

Some have other names for what can occur after the wedding cake is cut and the presents opened: the “post-wedding blues” or “crash.” It is a common phenomenon that typically occurs as life returns to normal in the days and weeks that follow the wedding and the couple ceases to be the center of everyone’s attention.

Voicing these concerns and strategizing about how to manage them can be tremendously helpful.”

The New York Times article can be read here.

Don’t Invest When a Fund Manager is Divorcing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, March 30, 2015.

Have you ever wondered if your stock market investments are impacted by your broker’s divorce? A recent study from the University of Florida shows that divorce can have an impact on a funds stock market performance.

Knowing if someone is going through a divorce can be an investment decision. A hedge fund’s alpha – the measure of how much it beats the market – has been shown to fall by an annualized 7.39 percent during a divorce.

Busy fund managers, who manage larger funds and engage in high tempo investment strategies, are more affected by marriage.

The study also found that fund managers who depend on interpersonal relationships in their investment strategies are more affected by divorce. Behavioral biases may partially explain the connection between inattention and performance deterioration.

An even more surprising result is that marriage actually does more damage to a fund manager’s performance, according Dr. Sugata Ray, one of the paper’s authors.

I’ve written before about the impact that a divorce can have on stock performance by comparing the stock performance during Rupert Murdoch’s divorce and the divorce of Harold Hamm.

Divorce has always been a red flag for savvy investors. Hedge fund manager Paul Tudor Jones II, said he withdraws his money from a fund when a manager’s marriage breaks up.

“You can automatically subtract 10% to 20% from any manager when he is going through a divorce,” he told a conference in 2013.

(Jones also famously noted at that same conference that women who have children can’t be great traders, so perhaps we’ll take his opinion with a grain of salt.)

Younger fund managers tend to have more performance problems around a divorce. The annualized alpha of younger fund managers fell by 15.7% when they got divorced, while older managers only lost 4.1%.

One hedge fund manager, Ken Griffin, hasn’t been affected (yet) by marital strife. He is in the middle of one of the most public and nasty divorces in recent memory. Despite that, his company’s three big funds have continued to outperform the market.

Another big factor is whether a fund manager has partners to help steer the ship during a crisis. Managers that work alone “get clobbered when they go through marriages and divorces,” said Ray. “They start to fall prey to behavioral biases, like selling their gains and holding on to their losses longer than they should.”

The findings were based on data collected from 1994 to 2012, tracking 786 managers who went through 857 marriages and 251 divorces.

The CNN article is available here.

Do Rapists Have Child Custody Rights

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, March 20, 2015.

In 31 states, a man who impregnates a woman through rape can sue her for child custody and timesharing rights. There are bills pending in Ohio and Pennsylvania addressing that issue.

According to an NPR radio station in Pittsburgh, Pennsylvania State Senator Randy Vulakovich and Representative Joe Hackett are introducing the Rape Survivor Child Custody and Support Act in the Senate and House, respectively.

Under there bill, courts have the authority to terminate the parental rights of a father or mother convicted rapist. But at the same time, the rapist’s obligation to pay child support will remain.

I’ve written before about rape and custody. The issue of consent is important to the crime of rape, but is irrelevant in a civil action to determine paternity and child support.

Each year, there are approximately 32,000 pregnancies resulting from rape, according to a 1996 study by the American Journal of Obstetrics and Gynecology.

Vulakovich says his bill will close a loophole in the law that is damaging to sexual assault survivors.

“If a victim of a rape decides to keep a child who was conceived because of the result of a rape, she could be forced under state law to constantly interact with a rapist on a regular basis if he demands visitation rights.”

Currently in Pennsylvania, a rapist’s parental rights are only terminated pending adoption of the child, in which case the offender is no longer required to pay child support.

“We’ve had calls from women who are exasperated,” Houser said. “The callers will feel like…’I’ve done everything right, I’ve done all the things I was supposed to do, and now I find out that he’s petitioning for visitation.'”

According to the most recent data, a 1996 study by the American Journal of Obstetrics and Gynecology, approximately 320,000 women become pregnant as a result of rape. However, roughly one third of those pregnancies are terminated.

Houser says there are no clear statistics on pregnancy from rape in Pennsylvania. She also said few rapists try to pursue their visitation rights. State courts have the power to prevent unfit parents from claiming their visitation rights for several reasons, including crimes against the other parent.

“This isn’t necessarily the result of egregious things happening on a regular basis here in Pennsylvania,” Houser said, “but it doesn’t matter if it’s happening to a lot of people or just a few. It shouldn’t be happening at all.”

Without such a law, woman can endure years of being tormented by an abuser,” said Rep. Debbie Wasserman Schultz, D-Florida.

The article is here.

Alimony Reform Picking Up Press

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Monday, March 16, 2015.

The Miami Herald is reporting on the big changes to alimony being debated in a new bill. The Florida Legislature is considering a bill that would end permanent alimony, as well as set up formulas for time limits and amounts of alimony.

As the Miami Herald reports, Rep. Colleen Burton and Sen. Kelli Stargel, both Polk County Republicans, the sponsored bill (HB 943) which calls for payments that would last to between 25 and 75 percent of the length of the marriage.

I’ve written about alimony reform many times in the past, and especially the formulas for calculating both the amount and the term for alimony in earlier posts.

The bill’s supporters want an end to lifetime payments, saying recipients use existing law to extort a meal ticket even when they could work.

Opponents say ending permanent alimony would make it impossible for mothers to stay home with their children, for fear of being left destitute, and punish women who give up careers to keep a family functioning.

“You can find extremes on both sides,” exploited alimony payers and recipients not getting just compensation, Burton said. In many cases, she said, awards vary widely in cases with similar circumstances.

“We’re attempting to provide direction to the courts and some parameters as to what people can expect.”

Stargel has pushed alimony changes for years, including a 2013 bill that Gov. Rick Scott vetoed because it retroactively applied to divorces that were already finalized.

She said the new bill, which wouldn’t be retroactive, is a negotiated compromise and expects former opponents, including the Florida Bar’s family law section, to support it.

But supporters of the current system are strongly opposing the measure.

Cynthia Mayer of Ponce Inlet, a member of the First Wives Advocacy group, called the bill “anti-women and anti-traditional family,” and said it could put alimony recipients, 97 percent of them women, on welfare in their later years.

Another member, Cathy Jones of Lakeland, called it “the end of the stay-at-home choice for women in Florida.”

Jones said she quit work at her husband’s request while they were married so she could rear their children and create a social life to help his career.

Now, she said, he’s a millionaire whose hobby is exotic cars, while her net worth is $70,000; her mortgage won’t be paid off until she’s 84.

“Women like me are reliant upon alimony,” she said.

Asked whether Scott would back a bill that’s not retroactive, spokeswoman Jeri Bustamante said he “will review any legislation that comes to his desk.”

Florida Alimony Reform Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Wednesday, March 11, 2015.

With the Legislature in session, alimony reform in Florida is on the top of everyone’s minds. Last week I pointed out the heart of the new statute, alimony guidelines. But there are some other new updates in the bill.

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Income and Potential Income

Under the current statute, income is not well defined. Under the proposed law, there will be an extensive list of what income is for alimony.

There is also a new item: “potential income”. Potential income is income which could be earned using your best efforts. In other words, if you were employed before, potential income is the income you could earn by working at a locally available, full-time job commensurate with your education, training, and experience. If you have investments, it would be the reasonably expected return from your investments.

Underemployed

Are you underemployed? Under the new statute, “underemployed” means you are not working full-time in a position which is appropriate, based upon your educational training and experience, and available near your residence.

Standard of Living

Standard of living was historically a major factor in awarding alimony. But under the proposed statute, the standard of living for two households will be presumed to be lower than a single-married household, and that judges must consider that fact.

Absolute Maximum Alimony Payment

The bill would limit the total alimony and child support payment by prohibiting the amount from exceeding more than 55% of the payor’s net income. Under the current statute there is no alimony maximum.

New Spouses

I’ve written extensively about the impact of a new spouse on discovery. Can you subpoena a new husband’s tax returns or take his deposition?

The financial information of a new spouse is inadmissible, and may not be considered as a part of any modification action, unless a party is claiming that his or her income has decreased since the marriage.

Even then, the financial information of the new spouse is discoverable and admissible only to the extent necessary to establish whether the party claiming that his or her income has decreased is diverting income or assets to the subsequent spouse that might otherwise be available for the payment of alimony.

Prevailing Party Attorneys’ Fees

The new bill requires the side that unnecessarily promotes or defends against an alimony modification to pay fees to the other side. This is popularly known as a “prevailing party” attorneys’ fee provision.

Besides the guidelines, which totally change the way alimony is decided in Florida, the new alimony reform bill contains a lot of new ideas and ways of deciding on the amount and term of alimony. The bill is something to follow.

House bill 943 can be read here.

March Madness: Florida Alimony Reform Update

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

March starts the new legislative session. For alimony reform, a House bill has already been filed which changes alimony. And we’ll have an insulting new name for marriages, they’ll be called: Low End Marriages.

I’ve written about alimony reform before. Florida may be getting alimony guidelines, which may take some guess work out of alimony, but many will be unhappy with the amounts and length of alimony.

How much will your alimony be? The bill proposes two ways to calculate alimony: one for High End marriages, and one for Low End marriages. Whether your marriage is “high end” or “low end” depends upon how long it lasts.

If the marriage is more than 20 years long, than it’s a High End Marriage. If 20 years or less, it’s a Low End Marriage.

Alimony in Low End Marriages

The low end of the alimony amount range is a simple calculation: (0.0125 x the years of marriage) x the difference between the monthly gross incomes of the parties.

Ex) For a 20 year marriage, where the Husband and Wife have a $10,000/month difference in income, the presumptive alimony award would be $2,500/month.

Alimony in High End Marriages

The high end of the alimony amount range is calculated at a 2% of the term of the marriage: (0.020 x the years of marriage) x the difference between the monthly gross incomes of the parties

Ex) In a 21-year marriage, where the Husband and Wife have a $10,000/month difference in income, the presumptive alimony award would be $4,200/month.

How Long Will Alimony Last

How long will alimony last? That will also be a calculation too. If the marriage is Low End, the duration is 25% of the length of the marriage. If High End, the term would be 75% of the length.

Ex) For a 20 year marriage, the presumptive alimony term would be 5-years.

Ex) For a 21 year marriage, the presumptive alimony term would last 15.75 years.

If this passes, you’ve got to at least love Florida’s official new terms for marriages as “low end”. Really? Why not call them “Trailer Trash Marriages”?

This is not an opinion blog, but really, who thought THAT up? How much alimony is a judge likely to award in a “low end”, cheap marriage?

If the legislative intent was to insult the institution of marriage, officially calling them “low end” is a great way to do it.

There will likely be changes to the bill. Whatever its final version, alimony reform in Florida appears likely. I’ll have more to say on Florida Alimony Reform in other posts.

The House bill is available here.

Cohabitation & Divorce

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, March 4, 2015.

If you live together (cohabitate) before marriage, are you more likely to divorce? Put another way, what are the odds you’d be in your relationship if you hadn’t been living with your boyfriend or girlfriend first? The answer is: You wouldn’t be.

In a recent survey, respondents who had a firm commitment to marry before moving in together didn’t experience the low levels of commitment to the relationship. They were “deciding, not sliding.”

Scott Stanley, the co-director of Center for Marital and Family Studies, created a video which describes the joy-inducing chemicals released into the body at the start of a relationship – from dopamine to oxytocin – and how they can actually cloud our decisions.

Sexual activity increases the production of these chemicals, but even just going out to dinner with someone you’re falling for can have this effect. Under the “influence” of these drugs, the video explains, we start doing things that “lock us in” to a relationship. We get a joint cellphone plan, we co-sign a car loan, we adopt a dog together.

But after a few months, things may look different. Suddenly you wake up and realize that you don’t really want to be with this person. “You acted on the belief that you had a timeless love, but in reality you had a time-limited chemical high.” Yet you’ve made it extremely hard to disentangle yourself.

But it’s much more that keeps people in relationships past their expiration dates – including social restraints. People don’t assume the way they once did that shacking up is a step on the way to marriage, but most of your friends will still figure that living with a guy is a step closer to walking down the aisle.

For many women, that’s the point: Talk the guy into living with you, and you’re halfway to a ring. Many men aren’t thinking that. But, according to Stanley’s research, even the ones who do wind up proposing may have more regrets after the fact.

In a random-sample study published in the Journal of Marriage and Family in 2010, 20% of people who married before living together had divorced; the divorce rate was notably higher, 28 percent, for those who cohabited before even getting engaged.

The video suggests that people beginning a relationship keep their own apartments, cars and cellphone plans. Instead of a dog, maybe jointly adopt a goldfish.

The more you can get to know your possible life-mate without locking yourself in, the better chance you have of breaking up with the wrong person and finding the right one. This used to be called “dating.”

The New York Post article on the survey is here.

Pet Custody and Prenups: The ‘Pup Nup’

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, February 25, 2015.

Who gets custody of the family dog? There is an uptick in people fighting over their cats and dogs when they divorce. The battle is contentious, as your dog is a family member. Can a prenup help?

I’ve written on this topic before. Your pet dog may be considered by you to be a member of the family, but under Florida law, Brownie the chocolate Lab, is merely personal property to be divided.

Not all states have ruled out a visitation schedule for dogs. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

Florida doesn’t because Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children, that courts cannot undertake the same responsibility as to animals.

Recently, some New York courts have ruled that pet custody divorce disputes are treated differently than other divorce disputes. Unlike a child custody fight, pet custody fights are resolved on a “best for all concerned” standard.

A CBS news report showed many couples have entered into “Pup-Nups” -agreements specifying who gets custody of the pet in the event of a divorce, who pays the veterinary costs, and who is responsible for caring for the family pet.

A prenuptial agreement could make provision for visitation after a break-up. But is it enforceable?

In New Jersey, a court did order shared custody of a pet. After the parties broke off their engagement, the ex-girlfriend allowed her ex-boyfriend to have visitation with Dexter, the dog. The ex-boyfriend refused to return Dexter. The court found that pets are a special category of property and enforced the parties’ oral agreement allowing them to spend alternating, five-week stretches with the dog.

Many states may not uphold pet custody clauses though. In Pennsylvania, for instance, a couple signed a settlement agreement that gave the wife custody of the dog, and provided the husband with visitation. The court explained that Pennsylvania considers dogs to be property, and the Husband’s motion to enforce visitation under the contract was void.

Despite the current law, a pet is a special kind of property. Pets are unique and irreplaceable. Pets are more like antique or valuable art than a generic table, lamp, or toaster.