Year: 2015

Another 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 Monday, February 23, 2015.

The Florida legislature passed a bill making a presumption of equal timesharing mandatory. The bill was vetoed by the governor. Is another bill likely? If Nebraska is any indication, the answer is yes.

Last week a Nebraska senator introduced a bill that would encourage judges to more fairly divide custody between separated parents, and requires that judges split custody by at least 65/35, unless there are circumstances in a case that warrantless visitation.

The senator says it’s important for kids to have both parents in their lives.

“Parents and kids alike, you know, thrive off of each other. The things that a young lady or a young man get from their parents are different. Moms and dads are different creatures and so it’s good for them to have exposure to both.”

She added that the bill would also benefit extended family members.

“If you’ve got one parent getting significantly less time with their kids, it also means that their grandparents may be getting less time with their kids. I’ve had several grandmothers call me and say hey, my son only gets one weekend a month with his kids which means that I never see my granddaughters.”

Last year I spoke at the FLAFCC regional workshop discussing the pros and cons of the equal timesharing presumption. I’ve also written about it before.

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 arguments 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 time-sharing 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 starting next month, and bills in committee, this is an interesting area to keep your eye on.

The article on Nebraska’s new bill can be found here.

Facebook & Divorce

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

Facebook has revolutionized the way we form and keep relationships. However, Facebook envy could actually ruin a relationship and lead to divorce. This is especially true for new marriages, and new research may prove it. There is no doubt Facebook evidence pops up in more trials.

Facebook users were asked to describe how often they used Facebook and how conflict arose as a result of Facebook use. The results found high levels of Facebook use significantly predicted Facebook-related conflict, which then significantly predicted cheating, breakups, and divorce.

“Previous research has shown that the more a person in a romantic relationship uses Facebook, the more likely they are to monitor their partner’s Facebook activity more stringently, which can lead to feelings of jealousy”.

The study also found that excessive Facebook users are more likely to connect or reconnect with other Facebook users, including previous partners, which may lead to emotional and physical cheating.

“These findings held only for couples who had been in relationships of three years or less“. “This suggests that Facebook may be a threat to relationships that are not fully matured. On the other hand, participants who have been in relationships for longer than three years may not use Facebook as often, or may have more matured relationships, and therefore Facebook use may not be a threat or concern.

I recently published an article about Facebook evidence and divorce. I wrote about the benefits and obstacles in gathering and using Facebook evidence at trial.

After all, the evidence can be very helpful:

Husband . . . [posts] his single, childless status while seeking primary custody of said nonexistent children.

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

Remember, the next time you log in, what you do in the digital world could have a very impact in the real world.

The University of Missouri study can be read here.

Mickey, Measles & Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, February 4, 2015.

The recent outbreak at Disneyland has resulted in more measles cases in one month than the typical number in a year, and has spread it to 14 states. This highlights the link between vaccinating children and custody.

Because of the return of vaccine preventable diseases – some of which were eliminated decades ago – a national discussion is occurring about vaccinating children.

But can the refusal to vaccinate impact your custody case?

I’ve blogged about vaccines before, not vaccinating a child can be detrimental:

– Contracting measles or whooping cough is harmful to a child.

– Public health and school officials send unvaccinated children home from school during outbreaks.

– Unvaccinated children are barred from birthday parties and play dates.

Why do a minority of parents not vaccinate? One reason is fear of autism. The anti-vaccination hysteria can be traced back to a paper by Andrew Wakefield published in the disgraced British medical journal The Lancet.

Wakefield claimed the measles-mumps-rubella (MMR) vaccine was linked to autism. His study was later deemed “fraudulent” and Wakefield was stripped of his medical license.

But the damage was done. MMR vaccination rates declined and California officials have recently determined that the vast majority of those infected never received the MMR vaccine.

The minority of children who are not vaccinated have a big impact. The concept is called herd immunity. If vaccination rates are high, vaccinated people act as a barrier and reduce the risk of infection for people who can’t be immunized.

In Florida, there are two leading cases in which the issue over custody and vaccination was brought to trial and appeal. My new article briefly examines Florida’s parental responsibility statute, including the concept of ultimate authority.

The two Florida cases in which the decision to vaccinate a child was an issue brought to trial is also discussed, and the article traces the development of religion as a factor in parental responsibility cases in Florida.

The article can be read here.

Spanish Prohibited: Custody & Freedom of Speech

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Sunday, February 1, 2015.

Florida courts have a lot of power to protect children in custody cases. Does that mean a judge can order you not to speak to your child in Spanish? An appellate court outside Tampa just answered this question, balancing child protection and freedom of speech.

In Perez v. Fay, a mother went from being the primary caregiver to having only supervised time-sharing twice weekly for 4-hours under the nose of a timesharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident, and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy. The Second District Court of Appeals, which covers Tampa and Southwest Florida, reversed the restriction.

Two of the three judges overturned the order on technical grounds. But it was Judge Wallace who makes the Constitutional argument in an excellent concurring (separate) opinion:

The trial court’s order also violates the Mother’s most basic rights. More than ninety years ago, the United States Supreme Court declared that the agents of the state may not tell parents what languages they may teach their children.

Here, the trial court’s order improperly infringes on the Mother’s constitutional right to determine the language or languages about which her child may receive instruction.

In addition, the Florida Constitution guarantees its citizens the right of privacy . . . “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”

Undoubtedly, the sphere of private life in which one must be let alone, free from governmental intrusion, includes the right to speak with one’s child in the language of one’s choosing and not to have that choice dictated by the agents of the state.

Sadly, the trial court’s order in this case prohibiting the Mother from speaking Spanish to her daughter is not an isolated incident. One commentator reports that trial judges in Texas and Nebraska have issued similar edicts prohibiting parents from speaking Spanish to their children.

In my view, Florida’s trial courts have no business telling parents what languages they must speak or must not speak with their children.

More analysis about the case comes from the Washington Post, Volokh Conspiracy.

The opinion of Perez v. Fay can be read here.

Lower Your Divorce Costs

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Attorneys’ Fees on Tuesday, January 27, 2015.

A post on lowering legal fees by a lawyer may seem contradictory, but not if your attorney is looking out you. Unless your divorce is a friendly ‘conscious uncoupling’, it can be costly. But there are a few things you can do to keep legal fees down.

The Huffington Post recently ran an article on this topic that rings true:

Shop around for an attorney.

Most states have a Board Certification process to recognize expert lawyers. Using an expert, as opposed to someone who also handles criminal defense cases, bankruptcies and slip and falls, will save money over time. Also, many attorneys offer free initial consultations. I do, and encourage people to take advantage of a face to face meeting with your attorney.

Pick Your Battles.

If you intend to argue over every sponge, plant, and towel in your possession, be prepared for an expensive bill. Fight the battles that really matter, like custody and alimony or the house.

Think Before Calling Your Attorney.

Attorneys bill by the hour. If your attorney charges $350 an hour, and you’re constantly calling, you are going to have sticker shock – Those 15-minute phone calls add up, so write down questions and make one call. You may discover you have the answer you need and avoid a call altogether.

Your Attorney is Not Your Therapist.

I recommend seeing a therapist while going through a divorce. Most insurance will cover at least a portion of that cost. Using your attorney or the paralegal doesn’t get you the help you really need and is far more expensive.

Check Your Invoices.

You should be receiving monthly invoices from your attorney. If not, ask for one. Know where your money is being spent, and if there is a mistake on your bill, don’t be afraid to discuss it.

Watch Out for Advice from Friends.

Everyone knows someone who went through a divorce. People want to share what they know. Attorneys hate that. We hate it because no two cases are alike, and people have biases. For instance, people seem to remember what they want to, forgetting the bad parts.

Control Your Emotions

I’ve written before about this common mistake before. When it comes to meetings, mediations, and court, time is money. Be prepared when it comes to mediation, and don’t get angry because you don’t like the offer made. Anger is expensive.

The Huffington Post article can be read here.

Prenups Are Not Only for One Percenters

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, January 23, 2015.

Most people think of prenuptial agreements as contracts for the rich and famous. Most people are wrong though. Prenups can deal with non-monetary issues too, making them a good idea for anyone marrying.

As USA Today recently reported:

Prenuptial agreements, or “prenups,” are contracts entered into before marriage that outline the division of assets in case of divorce. They may touch on things like spousal support (alimony), ownership of businesses and properties, and even financial duties and responsibilities during the marriage.

“Since getting into the business and seeing what can happen to family relationships in a divorce, I’m not sure there is an instance where a prenup would be a bad thing,” says financial adviser Jeffery Cortright, president of Phase 2 Investment Advisers in Jenison, Mich.

While most people think prenuptial agreements deal with assets and alimony, there are a lot of other concerns that can be handled:

– 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

I’ve written about this issue before. Prenups aren’t only for the super-rich, but having a lot of assets is an excellent reason to have one. Even when couples have less than they want, the effort that goes into a prenuptial agreement can have benefits far beyond the financial.

There are cases when a prenuptial agreement is a no-brainer. If one person is entering the marriage with significantly more money or assets than the other, or if one or both individuals have family money or inheritances, a prenup is necessary.

Additionally, if you plan on keeping your finances separate, keeping separate bank accounts, or if you want one joint account for paying household bills, a prenuptial agreement is a great way to confirm it.

One of the cardinal rules of a prenuptial agreement though, is following the agreement by keeping accounts separate after getting married. Generally, once you have moved to joint ownership and mix up accounts, dividing the account after separation could be tricky.

If arguments about money are a top predictor of divorce, agreeing on the terms of a prenuptial agreement, and having the conversations about major issues you’re concerned about now, will lessen the chances of financial arguments and misunderstandings later.

The USA Today article can be found here.

Same-Sex Marriage Update: The Supreme Court Takes Over

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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 Monday, January 19, 2015.

It’s on! Friday, the U.S. Supreme Court decided to hear DeBoer v. Snyder – the only one of five U.S. Court of Appeals cases won by the anti-gay marriage side. Same-sex marriage and divorce law is in chaos. That is about to end.

In November, after the 6th Circuit Court of Appeals upheld the bans on same-sex marriages in DeBoer v. Snyder, I noted that the other circuit courts had come out the other way.

That created a circuit split in our country, a necessary element to invoke U.S. Supreme Court jurisdiction. I predicted we could have a U.S. Supreme Court decision this summer. Friday the high court said:

CERTIORARI GRANTED

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The briefs of petitioners are to be filed on or before February 27, 2015, so the briefing schedule indicates that the Court will hear oral argument and decide the cases by the end of June – this Term.

The decision to grant certiorari will finally end the uncertainty of status, and the interstate chaos, that the current differences in state laws created.

With Florida’s inability to extend the stay banning same-sex marriages, and a combination of other judicial decisions and legislative changes in other states, there are now 36 states that recognize same-sex marriage.

But, we will have to wait until this summer to see which of the various Constitutional arguments the justices agree on.

The U.S. Supreme Court Order is here.

Chris Rock, Divorce and Privacy

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, January 15, 2015.

Comedian Chris Rock filed for divorce. E! News obtained papers alleging his wife has kept his two daughters away from him! Celebrities, professionals and the wealthy have a hard time keeping their court papers private.

As a recent Forbes magazine article notes, for celebrities and wealthy clients, protecting children in divorce often means preserving the family’s good name and legacy for future generations.

“Celebrity clients nearly always arrive at a settlement rather than going to trial. After legal costs, privacy concerns are probably the biggest reason why”

In New York, there is an expectation of privacy in court filings. New York and other states grant document access to court filings only to litigants and counsel.

But this create a false sense of confidence. There is a thriving market for salacious information on high-profile families which makes it difficult to prevent leaks.

I’ve written before about Florida’s policy regarding the privacy and confidentiality of court records. Court records don’t just mean the contents of the court file. They also include transcripts, exhibits, videotapes and stenographic deposition tapes.

In an effort to protect privacy and prevent identity theft, Florida adopted a confidentiality rule to better protect social security and bank account numbers for instance. But Florida court filings are not private.

Privacy – and confidentiality of court filings – are easily overlooked issues when filing for divorce, and something you should be aware of.

For the past ten years, there has been a lot of effort put into developing safeguards, policies, and infrastructure needed to authorize public access to non-confidential electronic court records.

For instance, the Florida Supreme Court adopted a rule to define confidential court records and limit the public’s access to them. At the same time, there are divorce rules which require you to identify confidential information in court papers.

Even when documents are supposed to be confidential though, private information has a pesky way of becoming public.

Tort claims are often added to divorce complaints. These can include allegations of assault or sexually transmitted diseases.

Even if unfounded these accusations can be harmful to your personal and professional relationships. In filing for divorce, you have to understand the expectation in your jurisdiction regarding how the filings are kept private.

Even if records are protected, there has to be the “reality” check of whether in fact the information can and will remain private.

“Chris Rock has filed for divorce from his wife, Malaak,” the actor’s rep told E! News Monday. “This is a personal matter and Chris requests privacy as he and Malaak work through this process and focus on their family.”

Good luck with that Chris. The Forbes article can be read here.

Statutory Rape & Child Support

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Monday, January 12, 2015.

Everyone knows a mother can sue the father of her child for child support. But did you know she can also sue him if she raped the father to get pregnant. It just happened to an Arizona high school student.

Nick became a father at 14, a fact he wouldn’t learn for eight years. While in high school, Nick had sex with a 20-year-old woman. As he sees it now, she took advantage of a lonely kid going through a rough patch at home.

Arizona law says a child younger than 15 cannot consent to sex with an adult under any circumstance, making Nick a rape victim. Nick didn’t press charges and didn’t realize he could.

Now Nick’s a 24-year-old medical assistant, and Arizona seized money from his bank account and garnished his wages. Nick says he owes about $15,000 in back child support and medical bills, along with interest.

Before a custodial parent may seek public assistance through Arizona’s welfare program, they are required to pursue child support to help reimburse the state for assistance payments, which the mother did.

Arizona doesn’t seek child support when the parent seeking the money has been convicted of sexual assault with a minor or sexual assault, the Arizona Republic says. But its policy is to seek child support from those in Nicks’ situation.

Florida law is consistent with Arizona’s and other states which have addressed the issue. The issue of consent is important to the crime of statutory rape, but is largely irrelevant in a civil action to determine paternity and child support.

As the Colorado Supreme Court noted in a similar case:

Certain it is that his assent to the illicit act does not exclude commission of the statutory crime, but it has nothing to do with assent as relating to progeny. His youth is basic to the crime; it is not a factor in the question of whether he is the father.

Nick tells the Arizona Republic he’s willing to pay future child support, but he doesn’t think the state should be able to charge him child support for the years he was a juvenile or when he didn’t know he was a father. And he would like to see his daughter.

The USA Today article is here.

Why Would Halle Berry Want to Reduce Her Support?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Friday, January 9, 2015.

A parent wants to reduce the child-support paid to the other parent. Sound familiar, but there’s a twist. The paying parent is the mother, and the collecting parent is the father. Welcome to the gender equality frontlines.

As the Los Angeles Times reports, actress Halle Berry has asked a Los Angeles judge in the couple’s custody case to reduce her monthly child-support payments to $3,000 a month from $16,000 a month.

Halle Berry, 48, and Gabriel Aubry, 39, dated for two years before separating in 2010. A court awarded joint custody of their daughter, and they have been embroiled in bitter court – and even physical – battles ever since.

Berry reportedly moved to reduce her child-support payments to the unemployed model to motivate him to get a job. Halle alleges that Aubry is refusing to get a job, driving up his need for support.

Is there a double standard when it comes to a perception of men “living off” women? Think of it in reverse, would a woman collecting a lot of child support from her wealthy celebrity ex-husband be called lazy?

Currently, about 40% of mothers in the United States are their family’s primary earners. This includes nearly a quarter of married mothers – and nearly a third of Americans agree that it is best when the man provides for his family.

How does Halle Berry reduce her support payments when the father is unemployed? If his income is zero, wouldn’t the father have a better chance of increasing the amount of support he pay? The answer is ‘imputation of income.’

A court in Florida may “impute” income to an unemployed or underemployed parent if their unemployment or underemployment is found to be voluntary on that parent’s part. However, the statute has restraints on imputation.

Besides imputation, and gender equality, Halle Berry’s case raises other matters. For instance, paying the ex-boyfriend $16,000 a month is a lot of money to spend on a 6-year-old who only spends half her time with her dad.

Court records show some extravagant lifestyles for the children of the wealthy. For example, actress Kirstie Alley’s ex-husband argued he and Alley provided their children with a $10,000 rocking horse and threw annual Halloween parties costing between $20,000-25,000.

I recently published an article in the Florida Bar Journal on Florida’s child support guidelines. Calculating support for wealthy parents is an area that the child support guidelines don’t handle very well.

Halle Berry’s cases raises interesting issues: the right amount of child support, is child support a subsidy for parents who can work and gender equality.

The Los Angeles Times article can be read here.