Month: February 2016

Alimony Reform Update: The Case of Massachusetts

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Monday, February 29, 2016.

Four years after Massachusetts passed alimony reform, a corrective alimony bill was filed to address three Massachusetts Supreme Judicial Court rulings which limited the law.

The Massachusetts Alimony Reform Act of 2011 went into effect on March 1, 2012. The new law limited when alimony can be paid, added cohabitation language, an end date for alimony – such as retirement and cohabitation – and created new types of alimony.

However, the Massachusetts Supreme Judicial Court, in three 2015 decisions, held that the retirement provisions only apply prospectively, they did not apply retroactively, and that cohabitation was not a material change of circumstances that warrants modification of alimony.

I’ve been discussing legislative changes in Florida for a while. As the Legislature is in session, they are debating HB 0455, a bill relating to alimony.

Similar to Massachusetts’ attempt at alimony reform, Florida’s alimony reform bill will also involve retirement and cohabitation provisions. For instance, it will:

– Provide that a payor’s retirement after reaching the retirement age for social security or the obligor’s profession, constitutes a substantial change in circumstances for purposes of modifying or terminating an alimony award.

– Revise the criteria to determine cohabitation for purposes of modifying or terminating an alimony award

– Create a rebuttable presumption that modification or termination of an alimony award is retroactive to the date of the petition for relief.

In addition, the HB 0455 will:

– Provide factors to assist a court in awarding temporary alimony during dissolution proceedings.

– Repeal the current categorization of post-dissolution alimony awards as bridge-the-gap, rehabilitative, durational, or permanent and creates one form of post-dissolution alimony.

– Establish a formula to determine a presumptive range for the amount and duration of the award, effectively ending permanent alimony.

– Provide factors to assist a court in determining a post-dissolution alimony award within the presumptive range.

– Authorize a court to deviate from the presumptive range if the resulting alimony award would be inappropriate or inequitable.

If the bill becomes law, it will be effective October 1, 2016. The Florida legislative session ends March 11th. Until then, there are a lot of bills pending which will significantly impact family law in Florida.

The Fox News Boston article and video are here.

Florida Equal Timesharing Law: An Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, February 25, 2016.

A new Senate Bill revises the law on parental timesharing with minor children by making equal timesharing a presumption. This week it cleared the Senate in a 23-15 vote.

Opening day of 2016 Florida legislative session.
Opening day of 2016 Florida legislative session.

I’ve written about Florida’s attempts to make equal timesharing of children mandatory in the past. The new bill creates a rebuttable presumption that approximately equal timesharing with a minor child by both parents is in the best interest of the child.

Under the bill, you may overcome the presumption by providing evidence based on factors that affect the welfare and interests of the child, and the circumstance of the family.

Current Florida law provides a list of factors for the court to consider in establishing or modifying a time-sharing schedule, based on the best interests of the child.

In addition to the factors presently provided in law, SB 250 adds the following:

– The amount of timesharing requested by each parent; and

– The frequency that a parent would likely leave the child in the care of a nonrelative on evenings and weekends when the other parent would be available and willing to provide care.

But the bill may be headed into trouble in the Florida House of Representatives. House leaders are pushing an alimony-reform bill that does not have the same equal time-sharing provision.

House Rules Chairman Ritch Workman, R-Melbourne, said the House is prepared to pass an alimony bill, but is not considering other issues that have “weighed down” past reform efforts.

“We are concentrating on alimony reform,” Workman said. “Anything to do with not alimony is not germane in the House.”

The bill’s sponsor has said the 50-50 child-sharing presumption would create “greater predictability and reliability” in custody cases, replacing the current and vaguer policy of children having “frequent and continuing contact with both parents.”

However, no state has required that courts order equal time-sharing or joint custody of minor children. The presumption creates a uniform rule where the flexibility of ‘the best interest of the child’ may be needed. It requires courts to focus on the quantity of time instead of quality of time, and changes the focus to what is best for the parents instead of what’s in the child’s best interest.

The Sarasota Herald-Tribune article is here.

Predicting Divorce with 93% Accuracy

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, February 22, 2016.

There are two critical times in a marriage: the first 7 years, and when the first child turns 14. Scientists claim they can now predict divorce 93% of the time looking at these two periods.

I’ve written about studies identifying the causes of divorce before. The theme of the current paper is the predictability of divorce early and later in marriages. In it, the researchers identified four reactions are telltale signs of trouble.

Business Insider reported on the study, and the four behaviors: stonewalling, contempt, criticism, and defensiveness, measured during the span of a 15-minute conversation.

Relying on those signs, researchers could predict which marriages would end in divorce with striking precision. So what do these four behaviors?

1. Contempt

Contempt, a virulent mix of anger and disgust, is far more toxic than simple frustration or negativity. It involves seeing your partner as beneath you, rather than as an equal. This behavior alone is “the kiss of death” for a relationship.

2. Criticism

Like contempt, criticism involves turning a behavior (something your partner did) into a statement about his or her character (the type of person he or she is).

Say your partner has a habit of leaving his used cereal bowl around the house. If you turn that into “Why am I dating the type of person who abandons half-eaten cereal bowls around the house?” Over time, these personal detractions can add up, feeding darker feelings of resentment and contempt.

3. Defensiveness

If you find yourself regularly playing the victim in tough situations with your partner, you might be guilty of being defensive.

Take being late to a cousin’s wedding, for example. Are you the first to say, “It wasn’t my fault!” when you finally arrive? Or do you think it over before you accuse the other person, realizing you probably shouldn’t have taken a two-hour shower when you only had an hour to get ready?

4. Stonewalling

Blocking off conversation can be just as toxic for a relationship as contempt because it keeps you from addressing an underlying issue.

Don’t worry. Occasionally displaying any one of these behaviors – or all of them, even – is completely normal. The Business Insider article is here.

How to Lose your Divorce on Purpose

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, February 19, 2016.

Purposefully losing your divorce sounds crazy. But one Chinese company just lost a lawsuit on purpose. What would it take to lose your divorce if you really wanted to?

It seems like an unlikely topic, losing a lawsuit. But, some companies are trying to avoid China’s new strict capital controls – which limit sending overseas $50,000 a year – except for business-related payments.

One Chinese company found out that if they deliberately lost a lawsuit for a phony breach of contract claim, a $3.5 million payout could be used to pay its own entities in the U.S. to get around currency controls.

I’ve written on courtroom tactics before. The Chinese situation got me to thinking about family law. What would you have to do to lose a divorce case on purpose?

Avoiding Chinese capital controls may not apply to most American divorces, but if you really want to lose your divorce case, here are some practical tips:

Hide Your Records

The first thing you want to do is hide all your important financial records: tax returns, pay stubs, bank statements. Afterwards, you can walk into court and plead ignorance. Basically, you’re forcing your spouse’s attorneys to subpoena the documents which will be re-created, after a lot of time and extra expense.

Drain bank accounts

Closing all the bank accounts will force your spouse to run to court on an emergency basis. That’s exactly what you want, having the judge associate your case with crisis. The best part: there’s a new administrative order that specifically prohibits that kind of thing.

Cancel health insurance

Canceling your spouse’s health insurance not only violates the new status quo administrative order, it is another way to get hauled back into court on an emergency basis, and increase your legal fees. If you’re looking to avoid any Chinese monetary controls, spending your cash on a lawyer is as good a way as any.

Represent yourself

The old saying: “the person who represents themselves has a fool for a client” is probably wrong. Lawyers are for the rich and famous. If you can handle your own dentistry, you can easily handle your own divorce.

Lie

Lying has two big advantages:

Lying to your attorney will surprise him in court, and lawyers love to be surprised in court. And, if you want to lose, there’s really no substitute for lying to the judge deciding your case.

If losing your divorce on purpose becomes a necessity, remember that lying, hiding assets, cutting off health insurance and representing yourself is a great way to do it.

The Wall Street Journal article is here.

Prenups & the standard Zombie Apocalypse Clause

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, February 17, 2016.

Signing a prenuptial agreement the day of your wedding is frightening. Is it enforceable? More frightening, do you need the new Zombie Apocalypse Clause?

Amazon Web Services just launched a new feature for its cloud based hosting service called “Lumberyard.” Lumberyard’s Service Terms agreement has an interesting clause:

The Lumberyard Materials are not intended for use with life-critical or safety-critical systems . . .

However, this restriction will not apply in the event of the occurrence (certified by the United States Centers for Disease Control or successor body) of a widespread viral infection transmitted via bites or contact with bodily fluids that causes human corpses to reanimate and seek to consume living human flesh, blood, brain or nerve tissue and is likely to result in the fall of organized civilization.

What about prenups? Are there loopholes? Florida has a policy of enforcing prenuptial agreements. While they can be difficult to void, it is not impossible . . . even if human corpses reanimate to consume the living.

I have written about agreements many times before. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable.

Florida courts consider things such as fraud, duress, coercion, and whether there was financial disclosure. Under Florida’s Uniform Premarital Agreement Act, courts consider:

1. Fraud.

A prenuptial agreement requires each spouse to make full disclosure of assets and liabilities. In divorce, it is quite common to undervalue assets or fail to disclose them at all. If you can prove income or assets were not fully disclosed, you may have grounds to have the agreement voided.

2. Duress, Coercion or Overreaching.

If your prenuptial agreement was the product of fraud, duress, coercion, or overreaching, you may be able to block its enforcement. However, it can be extremely difficult to prove duress, coercion and overreaching.

3. Unconscionable.

You may be able to prevent enforcement if the agreement was unconscionable when it was executed and, before execution of the agreement, you were not provided a fair and reasonable disclosure of the assets and debts of the other party; you did not voluntarily and expressly waive, in writing, any right to this disclosure; and you did not have, or reasonably could not have had, an adequate knowledge of the other party’s assets and debts.

Keep the UPAA in mind if you are trying to get out of your prenup. And if the Centers for Disease Control is warning about “human corpses” seeking “to consume living human flesh”, keep that in mind too.

Amazon’s AWS web service agreement can be read here.

You’re Probably a Criminal: Family Law Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Partnerships on Thursday, February 11, 2016.

It is illegal for an unmarried man and woman to live together in Florida. So, you’re probably a criminal. But Florida is roaring into the 21st Century, and the Florida Legislature may correct the cohabitation wrinkle.

Florida’s law was originally enacted in 1868. The law made cohabitation a crime. The punishment is serious too: up to 2 years in prison, up to 1 year in the county jail, or up to a $300 fine.

Another law makes it a second degree misdemeanor for a person to engage in any unnatural and lascivious act with another person.

According to the National Conference of State Legislatures only three states, Florida, Michigan, and Mississippi, make cohabitation illegal. Eight states that once made cohabitation illegal have repealed those statutes, one as recently as 2013.

Granted, the law is rarely enforced, but there have been multiple attempts to do away with the ban on cohabitation, and all have failed. Although many lawmakers want it off the books for good, some support it.

It may also be unconstitutional. In Lawrence v. Texas, the U.S. Supreme Court held that decisions about the intimacies of a physical relationship are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment.

I’ve written before about legislative updates. Tallahassee is an important city to watch now that the Legislature is back in session. New Senate Bill 498 is moving forward.

The proposal to scrap Florida’s 147-year-old ban on unmarried men and women living together received unanimous approval during its first committee stop in the state Senate for the 2016 session. The bill now moves to the full Senate for a vote.

Local Republican State Rep. Charles Van Zant has been against changing the law since the beginning. But, Ryan Strickland, who lived with his wife for four years before they got married, says it’s time.

“People need to adjust as the time goes on,” Strickland said. “Lots of laws need to be adjusted to reflect the times and the feelings of people.”

Recent census data suggests that more than 430,000 couples in Florida are in violation of the law. That means that they could be fined $500 and spend up to 60 days in jail.

The bill, if passed, would repeal the provision in §798.02, F.S., which makes it a second degree misdemeanor for any unmarried man and woman, lewdly and lasciviously to associate and cohabit together.

The bill would take effect upon becoming a law.

The Miami Herald article is here.

Speaking Tonight on Parental Relocations with Children

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Relocation on Tuesday, February 10, 2015.

I will be speaking on a panel at the First Family Law American Inns of Court on the topic of Relocations. The topic addresses Florida’s relocation statute, expert evidence, the international aspects of relocations, and a view from a sitting circuit judge.

take off

Florida’s Relocation Statute is Highly Technical

I’ve written about relocations before. The relocation statute, unlike much of family law, is highly technical. It involves fast deadlines, mandatory language, detailed service of pleading rules, font size requirements, detailed pleadings, and the list goes on.

Judges report that people frequently overlook key provisions of the statute, and children are losing in relocation cases because these strict pleading requirements and deadlines are not being met.

Florida’s Relocation Statute has an Intricate Analysis

There is no presumption in Florida anymore on whether you can move away with your child more than 50 miles from your principal residence.

Instead, courts evaluate 10-detailed and objective factors, and one catch-all factor. These factors cross over between legal standards developed over many decades litigation.

Relocations with Children Involves Risk

There is always a risk of harm associated with relocations. Your child could face difficulties in adjusting to a new environment, or have developmental needs which are impacted. Or, they simply are baseball fanatics and a move to a country without a baseball league could be devastating.

International Relocation

Moving away with a child to a foreign country raises other concerns, in addition to the in-state or in-country relocation. For instance, what are the new country’s cultural differences? Language and religious barriers could be an issue. Enforcing American orders in foreign countries is another big concern. The distance from the United States is also a big concern.

Inns of Court is an association of lawyers, judges, and other legal professionals who share a passion for professional excellence.

Madonna, Custody & Education

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, February 8, 2016.

Madonna and her ex-husband are locked in a child custody battle over their son. Surprisingly, the child’s education is the big issue being fought over. How does a court resolve education disputes?

Madonna and Guy were divorced in 2008. They have a son together. A Manhattan Civil Supreme Court judge ordered the son to return to Madonna in New York. The 15-year-old has been living with his father at his London home.

The child is rumored to want to live with his father. Madonna thinks the father is turning her son against her:

“He’s telling Rocco he should stay with him. It seems like he’s trying to brainwash the kid.”

The fight is centered around parenting-styles: how much pressure about education should be placed on their son. He is set to take the Regents, the high school qualification exams in New York.

The Father has publicly stated he is “anti-school,” and “anti-people putting so much pressure on kids and robbing their childhood by giving them so much homework. I think if kids want to arse around, then they should.”

Conversely, Madonna pays attention to education and discipline (like taking away cellphone use). Her discipline may be influencing her son, who now wants to be with his more lenient father. Madonna’s daughter attends the University of Michigan.

I’ve written about custody issues before. In Florida, shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s education are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, education is an area of ultimate responsibility a court can award. When a decision on education goes to trial, the court grants one parent ultimate responsibility to make that decision.

Madonna and Guy are due in New York Supreme Court on March 2 to sort out these custody decisions.

The Us Magazine article is here.

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 Wednesday, February 3, 2016.

It’s been about 15 years since the U.S. Supreme Court decided the grandparent rights of visitation case Troxel. What is the status of grandparent visitation 15 years on?

In Troxel v. Granville, grandparents asked to expand their visitation rights. The children’s mother had reduced the grandparents’ visitation to one afternoon a month.

The U.S. Supreme Court reasoned that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

So, as long as a parent is adequately caring for his or her child, there will normally be no reason for the state to inject itself into the private realm of the family. The basic presumption in Troxel is that fit parents act in the best interests of their children.

However, the Troxel court did not hold that the Due Process Clause requires a showing of harm or potential harm to the child as a condition to granting visitation. That is a Florida law.

Instead, the U.S. Supreme Court left those decisions for the states to decide on a case-by-case basis.

I’ve written about grandparent visitation. Florida has its own constitution. The Florida Constitution contains an express right of privacy written into it:

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. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent don’t have visitation rights here. But grandparent visitation is alive and well in Indiana.

In this year’s Indiana Supreme Court case, a child’s maternal grandparents filed for visitation after their relationship with the child’s father became contentious.

Based on the opinion of mental health experts, the trial court ordered grandarent visitation totaling approximately 79-days per year. The Indiana Supreme Court affirmed the order.

Florida law is not like Indiana’s. Grandparent child custody and timesharing rights do not exist in Florida. without the showing harm to the child violates parents’ privacy.

With the Florida legislature in session, and new bills dealing with a parent’s right to delegate certain powers regarding the care and custody of the child, grandparent visitation may be an area to keep an eye on.

The Indiana Lawyer article is available here.

Testing Marriage Secrecy

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, February 1, 2016.

Can emails to your husband or wife be used as evidence against you in divorce, or is there a privilege against that? A New York federal court is about to decide that issue.

Actually, there is a privilege, and it is a very old one at that. The privilege is rooted in English common law since at least 1628, when an English lord established the idea that spouses should not be forced to testify against each other.

In the New York case, a husband is being charged with supporting Islamic State, and the prosecution wants to use his letter to his wife which they found.

The Wall Street Journal has an article on Tairod Pugh, a 48-year old U.S. Air Force veteran who wrote a letter to his wife, saying he wanted to become a martyr, and to support Islamic State.

He was turned away at the Turkish border before he could cross into Syria. Now that the prosecution has the letter, Tairod wants to hide it from a jury.

A privilege, in evidence-speak, is an exception to the rule that ‘no one may refuse to give testimony or other evidence in court.’ This general rule helps to ensure fair trials.

A privilege is not a constitutional right. The right not to incriminate yourself (“taking the Fifth”) is a constitutional right. A privilege allows you to object to your own or another’s testimony about communications within confidential relationships.

I’ve written about evidence before. The Husband-Wife privilege, although ancient, has the same value today as it did then. Courts recognize the privilege to protect marriages from the harm of spouses being forced to testify against each other.

In Florida, a spouse has a privilege to refuse to disclose, and to prevent others from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

The privilege does not work in divorce cases. When one spouse uses the courts against the other spouse, our policy of encouraging settlement could be frustrated by the privilege.

In addition to exceptions, privileges have to be properly asserted or they may be lost. A spouse may waive the privilege by failing to object to the testimony when offered.

You can also waive the privilege by mentioning the confidential communication to others, and by offering testimony about it through other witnesses.

Every state in the U.S. recognizes one or both of the types of spousal privilege recognized by federal courts. There are differences from state to state with the privilege; for example, some states have many more exceptions to the privilege.

The Wall Street Journal article can be found here (paywall).