Year: 2016

Mel Gibson & The Passion of the Agreement

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, August 12, 2016.

An ill-timed Howard Stern interview just saved Mel Gibson half a million dollars he would’ve paid his ex under their mediation settlement agreement.

The California 2nd District Court of Appeal denied Mel Gibson’s former girlfriend, Oksana Grigorieva, the remaining $500,000 of a pre-agreed $750,000 payment for staying silent about their turbulent relationship after she reneged on the deal by talking about Gibson on The Howard Stern Show in 2013.

I’ve written about prenuptial agreements and marital settlement agreements many times before. Agreements are always advisable in resolving relationship disputes as you have control, to a certain extent, over what happens with your future.

In Mel Gibson’s case, keeping his stormy relationship with his ex-girlfriend out of the media was a priority for the world famous actor, already battling bad press from his alcohol related rants.

In Florida, courts will try to enforce your agreements, sometimes even if the agreement has unfair provisions. A bad deal does not provide a legal basis for the court to rewrite the parties’ agreement or to set it aside.

That’s because bad domestic bargains – meaning unfair or unreasonable property and monetary settlement agreements – are still enforceable so long as they are knowing, voluntary and not otherwise against Florida public policy.

Gibson, 60, had already paid Oksana – the mother of his six-year old daughter Lucia – $250,000, but claims he is no longer obligated to pay her the remaining balance due to her forfeiting their agreement by appearing on the Howard Stern show.

The $750,000 had already been significantly reduced from its original figure, a staggering $15 million, to be paid on the condition that she keep secretly recorded audio-tapes out of the public arena.

But after Oksana, 46, released the tapes – in which Gibson can be heard using racist language and threatening to beat his then girlfriend – the amount Gibson had to pay was drastically reduced.

The appeal court’s ruling means the pianist has only received 1/60 of what she could have received from the star.

The article on Gibson’s big court win is here.

Divorce Mediation to Keep Costs Down

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, August 10, 2016.

Mediation is a great way to resolve your divorce without paying for a full trial. Choosing a mediator is the first step, and may be the most important decision you can reach in your divorce.

I’ve written about mediation several times before. Under Florida law, the parties to a divorce must attempt to resolve their difference through mediation before their case can proceed to trial. In many cases, mediation can be used earlier in the process to resolve all outstanding disputes before either party has filed for divorce.

In divorce mediation, the parties and their attorneys meet with a neutral mediator – sometimes together, sometimes separately – to try to negotiate a settlement agreement.

Ideally, both the mediator and the attorneys should have enough experience to anticipate what will happen if the case goes to trial. Drawing on that experience, they can help the parties negotiate an agreement without any need to have a judge decide the issues for them.

At mediation, you will discuss issues that are highly personal and emotional. Accordingly, there are many factors to think about when choosing the right family mediator. Below are a few to think about:

Trust is the most important consideration in choosing a family law mediator. Your mediator should be someone you feel comfortable with as a person and as a professional.

Specialization is another important criterion. Ask your attorney if the mediator in your case has a practice area dedicated to divorce and family mediation. Family is not an area to dabble in. To be effective in family mediations requires patience as well as skills. Ideally, you want the percentage to be 100%.

Cost is always an important consideration. While it can be expensive to spend the day in mediation, if you’re successful, you are likely to save thousands on your total legal fees. When comparing mediation fees, base your decision on selecting a mediator with a high success rate for settlements. $200 per hour sounds better than $400 per hour, but not if your $200 mediator spends 8 hours without a resolution, you have not saved anything.

To recap, when searching for a mediator in your divorce, don’t just hire the cheapest mediator you can find, look for:

1. Trust,

2. Specialization in family and divorce matters,

3. Cost.

Timesharing & The Child Support Benchbook

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Friday, August 5, 2016.

The Benchbook is important reading for judges, covering a variety of areas of law. My timesharing child support article is now cited as a resource in the Benchbook.

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The Office of the State Courts Administrator serves under the Florida Supreme Court, and publishes Benchbooks for the judiciary. The Benchbook helps judges and magistrates apply federal and state law, Florida rules of court, and case law to their cases.

The Benchbook helps judges and magistrates hone courtroom practice and decision-making, by keeping them informed by state-of-the-art science, best practices used nationwide, and knowledge.

My article, To Catch a Time-sharing Deviation, which was published in the Florida Bar Journal, is now listed as a helpful resource in the Child Support Benchbook for judges and magistrates.

Florida policy is to see that children have frequent and continuing contact with both parents after they divorce or separate and that parents share in childrearing. Child Support Guidelines historically frustrated this policy and, in fact, discouraged time-sharing.

For example, they previously did not allow a child support adjustment unless a parent spent at least 40 percent of the overnights with his or her children. In Dept. of Rev. ex rel. Sherman v. Daly, the Department of Revenue appealed a child support order because it contained a child support deviation for a verbal time-sharing schedule.

In Daly, both parents testified they shared a roughly 60/40 time-sharing schedule. However, they never put their agreement into writing. The First District Court of Appeal held Florida law prohibited the deviation.

After the 2011 Daly decision, a number of parents had their time-sharing deviations taken because they lacked court-ordered parenting plans. During the recent 2014 regular legislative session, H.B. 75543 was passed and amended §61.30. The new bill revises the circumstances in which a court may deviate from the child support guidelines and adjust child support.

The bill became effective on May 12, 2014, and applies to all actions pending on May 2014 and thereafter. As amended, §61.30 now expressly allows a court to deviate from the child support guidelines based on time-sharing arrangement exercised by agreement of parents.

My Florida Bar Journal article is here.

Florida’s OSCA website with the Benchbook is here.

Cohabitation Agreements: Prenups for the Unmarried

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, August 3, 2016.

Increasingly, couples are living together without marrying. Legally, that’s more complicated than marriage, because you don’t have as much legal protection. Fortunately, there is an agreement for that.

According a recent survey of the American Academy of Matrimonial Lawyers (AAML), 45% of the members find that legal disputes between unmarried couples who had previously lived together have been on the rise during the past three years. In all, 26% have cited an increase in cohabitation agreement requests from unmarried couples.

I’ve written about the need for cohabitation agreements before. It is important to remember that not being married does not prevent a partner from attempting to make a claim on your assets once a live-in relationships ends.

Some of the protections that cohabitating couples lose out on are the protections provided by divorce laws: the presumption that the father is the father, inheritance laws, survivor’s benefits and many others.

A cohabitating couple that decided to split up may encounter the same conflicts about dividing the house, splitting the joint bank accounts, paying off the joint loans timesharing and child support that married couples have. However, the laws are not the same.

As the Huffington Post reports, if cohabiting partners do not have a mutual understanding of their financial, the legal consequences may lead to financial devastation for one of the partners. It could also produce significantly complex property disputes that cause both sides to incur substantial legal fees to address.

Cohabitation Agreements are designed primarily to protect financial interests. Before moving in with a partner, a previously signed cohabitation agreement can serve as an effective tool to ensure that your finances and assets are adequately protected.

Many times, unmarried cohabitants put their labor and own money into a live-in relationship, many of which are long in duration, because they ultimately expect that they will receive benefits from the other party arising from the commitment to be in a long term relationship. In many cases, those expectations are dashed when the relationship ends without the benefit of a cohabitation agreement.

In order to minimize doubts, and to ensure that both parties understand each other’s expectations, a legal cohabitation agreement may help. Some general tips for an agreement can include:

– Support payments

– Selling or keeping the jointly owned home

– What to do with jointly owned property if someone dies

– Medical decisions

– Who pays household bills and taxes

Agreements are useful in resolving a big oversight in the law. This is especially important as more and more couples choose to live together rather than marry.

The Huffington Post article is here.

Family Court Town Hall Meeting

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

As the incoming president of the First Family Law Inns of Court, I was proud to co-sponsor a Town Hall Meeting with Dade County Circuit Judge Scott Bernstein, administrative judge of the family division.

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The family division of the Dade County Court system is one of the largest in the country, and handles thousands of divorces, paternities, child custody and child support cases a year.

Navigating your family through this complex system requires experience. As administrative Judge for the family division, the Hon. Scott Bernstein, has been a shining light in getting feedback from the community on better ways to improve our family division.

The First Family Law American Inns of Court in Miami is a group, consisting of lawyers and judicial officers dedicated to professionalism, ethics, civility and excellence.

In co-sponsoring the Town Hall meeting today, the Inns of Court hopefully fulfilled its mission to inspire the legal community to advance the rule of law by achieving the highest level of professionalism through example, education and mentoring.

Hurt Locker: Private School & Support

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Wednesday, July 27, 2016.

Can courts order payment of private school tuition as support? “Hurt Locker” star, Jeremy Renner, is finding out. His Ex says it’s mission impossible to get him to pay.

Renner’s ex-wife claims he is behind more than $48,000 in child support for the couple’s daughter Ava, according to court documents obtained by TMZ. The documents also allege the “Mission: Impossible” star refuses to pay Ava’s $1,600 per month preschool tuition, TMZ reports.

However, the actor adamantly denies the accusations, calling them “baseless and completely erroneous,” his rep told the Daily News.

Renner and Pacheco finalized their divorce in 2015 after eight months of marriage. In December, Renner was ordered by a judge to pay $13,000 per month in child support. The pair has joint custody of the little girl.

I’ve written about private school tuition and college expenses, as a form of support before. In Florida, an award of a child’s private school expenses is in the judge’s discretion, and has to be requested in pleadings.

Generally, a Florida court may order a parent to pay for private educational expenses if the court finds that the parent has the ability to pay for private school, the private school expenses are in accordance with the family’s customary standard of living, and it is in the child’s best interest.

If parents are unable to reach an agreement with respect to the payment of private school tuition, a judge will review the evidence you present, and make a decision.

If going to court becomes necessary, the judge will review all of the financial aspects of the case, including each parent’s income, the history of paying certain expenses and the schools themselves.

The New York Daily News article is available here.

Israel’s Divorce Revolution

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, July 25, 2016.

Israel passed a law that requires divorcing couples to first try to hammer out agreements through mediation before they can file divorce legal proceedings.

The new law is formally referred to as the “Resolution of Family Disputes Law”, and more commonly known as the “Divorce Revolution” and was enacted on Sunday.

Israel’s Justice Minister, Ayelet Shaked, pushed for the resolution, which aims to settle divorce cases in a peaceful and amicable manner. To this end, both parties will be given four mandatory mediation meetings free of charge.

I’ve written about foreign divorce dispute resolution attempts before. Mediation is another of the methods of alternative dispute resolution available to divorcing couples.

Mediation is essentially a negotiation facilitated by a neutral mediator, to resolve disputes. The mediator supervises, helps find common ground, deal with unrealistic expectations, and offer creative solutions.

Under Israel’s proposal, the first meeting will be held in a therapeutic environment without legal representation. The makeup of the remaining three meetings will be decided based on the initial meeting’s general atmosphere, in accordance with the mediation team’s assessment.

As long as the mediation meetings continue to be carried out amicably, the parties’ lawyers will not be asked to join in. If, however, legal matters arise or if either party requests their presence, they will be asked to take part in them. In cases of involving emergency relief, lawyers will be allowed to participate in all the mediation sessions.

Following the law’s enactment, Justice Minister Shaked issued a statement saying that:

“The new situation will offer an efficient alternative to litigation meetings over such sensitive and complex matters as family disputes. I am confident that this is what parents want most. At the end of the day, they continue to be their parents, even if they are no longer a couple.”

In Florida, most divorces are resolved through the mediation process, and it is usually ordered in most cases filed here. In some counties, it is required.

The Ynet article is available here.

Dividing Premarital Property

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Friday, July 22, 2016.

Bought your home before your marriage, it’s yours right? Not necessarily. Florida has some peculiar property division laws you should be aware of.

Most people believe that if you bought your home before you got married, the property is separate property, and therefore cannot be equitably distributed by a family court.

Florida has some unique rules about premarital property that clouds that general rule. Your spouse may have a right to some of the home’s equity upon divorce despite it being separate property.

Florida’s General Rule

A court must set apart to each spouse that spouse’s nonmarital assets and liabilities. Nonmarital assets include assets acquired prior to the marriage. That is the general rule in Florida, but there may be exceptions.

Appreciation in Value Exception

In dividing marital assets, Florida courts take into account the active appreciation of nonmarital assets during the marriage. Appreciation could have been caused by spending marital funds or management of a property.

Courts can take into account passive appreciation on nonmarital assets, such as inflation, which is not subject to division. But, Florida courts have long agreed that paying down of a mortgage with marital funds on nonmarital property during a marriage is a marital asset.

In Florida, “marital assets” includes the “enhancement and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.”

The Supreme Court of Florida has pronounced that “the trial court must make a finding that the non-owner spouse made contributions to the nonmarital property during the course of the marriage.”

There are certain steps a trial court should employ to determine whether a non-owner spouse is entitled to a share of the passive appreciation of property:

1) Determine the overall fair market value of the home;

2) Determine whether there has been a passive appreciation of the property;

3) Determine that marital funds were used to pay the mortgage, that the non-owner spouse made contributions to the property, and “to what extent the contributions of the non-owner spouse affected the appreciation of the property”;

4) Determine the value of the passive appreciation; and

5) Determine the share of appreciation deemed “marital.”

Prenuptial Agreement Exception

If a couple entered into a valid prenuptial or postnuptial agreement, and the agreement makes a provision for a spouse to obtain an equitable interest in the house over time, a court can consider this in any equitable distribution.

I’ve written about property divisions before. Equitable distribution can be tricky, even when you have clear-cut, nonmarital assets.

Divorce or Long Term Separation?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, July 18, 2016.

Arnold Schwarzenegger and Maria Shriver have been dragging their feet about divorcing for about four years after filing for divorce. Is there any danger in a long term separation?

The Schwarzeneggers separated in 2011, and Maria filed in court for divorce that May. But, more than four year later, the couple has still not signed the divorce documents, according to a TMZ report Saturday.

It’s not known why the couple is not ready to formally quit the marriage even though it’s believed the former couple has agreed a straight split of their estimated $400 million fortune.

They have four children together – Katherine, 25, Christina, 24, Patrick, 22, and Christopher, 18, and have remained friends. Recently, they were seen together at their son’s Patrick college graduation.

I’ve written about some of the problems with long term separations vs divorce before. Some of these may not apply, if as in the Schwarzenegger’s case, there is a written settlement agreement. But don’t be fooled by the ease of a long term separation, it hides some real dangers:

Less Control of Assets. If you are separated, you could be out of the loop financially, and not know what the other spouse is earning, spending, investing, selling or buying.

Opportunity to Hide Assets. Many times one spouse uses separation periods to make assets disappear and increase debt.

Changed Circumstances. When we draft divorce agreements and orders we are usually trying to ‘present value’ assets and liabilities. In a long separation, people lose jobs, change jobs, become ill, retire and these changed circumstances could lower your expected alimony or support payment.

Relocation. Laws vary from state to state. Over times, as circumstances change, new job requirements and new relationships may mean that one of the spouses has to relocate to another state. Your simple divorce can morph into a major battle over the ability to relocate with your children.

Alimony Reform. Alimony change is in the air, and it is only a matter of time before alimony reform changes Florida Statutes. We dodged the bullet after the last few legislative sessions. However, alimony reform seems more like a “when” question, rather than an “if” question.

It is easy to get into the rhythm of a long term separation. People don’t choose ‘separation limbo’, they fall into it because it is easier than confrontation. However, there are some good reasons to be cautious of long term separations.

The TMZ article is here.

How Not to Act During a Divorce

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, July 13, 2016.

It takes two to make a good marriage, but one to make a bad divorce. Johnny Depp altered his tattoos of his wife to insult her because he’s angry. Does it matter?

Amber Heard went public with allegations that her husband Johnny Depp had abused her during their marriage. The story created some discussion about domestic abuse, victim-shaming and the cult of celebrity.

But how should Depp respond when faced with, what he claims, are groundless, domestic violence allegations: take the high road or insult his Wife in front of the children and in a very public way?

The actor chose the latter of course! Depp just showed off a new altered knuckle tattoo that reads: “SCUM” in place of previous one that read “SLIM”, his wife Amber’s nickname. He has also had his previous bicep tattoo of her, which looked like a pinup girl, blackened out.

The actor has not commented about the ink-job, but what does it matter? After all, tattoos on your knuckles and arms are meant to be seen, and are a constant billboard of what you were thinking, and if you’re an actor it makes world news.

Many people have also commented that this isn’t the first time. Winona Ryder, Depp’s previous love interest, also had a tattoo of honor dedicated to her on his body. But Depp had:

“Winona Forever changed to “Wino Forever”

Funny and classy!

But does altering your tattoos to insult your spouse matter in a divorce?

I’ve written about how to properly behave during the divorce process, and even how good relations with your Ex could save your life. Whether you’re in court or outside of court, how you treat yourself and spouse matters.

Something you should NOT do, for instance, is to attend a court hearing in your full Nazi uniform showing off your Swastika neck tattoo. Some people may find that offensive.

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Something you should do is try to start better relations with your spouse. That could save your life. The divorce process forces you to view your spouse as an enemy. It is easy to let those feelings take over, and cause you to say things in front of your children that they should be protected from.

Steps you don’t want to take but should are things like: not yelling in front of your children, taking the high road when dealing with problems, and respecting your soon to be ex-spouse.

The E-news Online article is here.