Year: 2016

Heat and Bull in Post-Judgment Agreements

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, July 11, 2016.

Dwyane Wade’s ex-wife isn’t over the divorce. She wants to throw out the settlement agreement, and get part of his new Chicago Bull’s contract. When you pull more bull, you can catch more heat.

After the basketball superstar signed a two-year, $47 million deal with his hometown Chicago Bulls, Wade’s ex-wife reportedly said she wants to re-open her divorce settlement.

According to the Chicago Tribune, Siohvaughn Funches asked a judge to throw out her settlement agreement with Wade, and give her a larger portion of his basketball earnings, including part of his new contract.

I’ve written about post-judgment divorce issues in the past. Now that Dwyane Wade is newly remarried, there may be an opportunity for Funches to request financial information from the new spouse.

Funches and Wade settled their divorce back in 2013 with a settlement exceeding $5 million. Now she wants more after learning that Dwyane signed a $47 million deal with the Chicago Bulls.

The two married in 2002 when Wade filed for divorce in 2007 and the court made the split official in 2010. Wade, who grew up with Funches in south suburban Robbins, won sole custody of their two children, Zaire and Zion.

That 2011 custody decision upset Funches, who staged a bizarre sit-in protest in Daley Plaza claiming Wade had left her “homeless.” A non-disparagement clause in the settlement prevents both sides from trading further insults about each other.

According to Funches’ website, she recently completed a self-published autobiography that includes details of how she says she survived the “turmoils of injustice and corruption in the legal system in America.”

The Chicago WGNTV has the story here.

About a Guitar: Wedding Gifts & Divorce

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Thursday, July 7, 2016.

Kurt Cobain’s acoustic guitar from MTV Unplugged is legendary. Equitable distribution of the iconic guitar is at issue between Kurt’s daughter and her husband.

‘MTV Unplugged in New York’ is a live acoustic performance album by Nirvana. The album debuted at number one, was Nirvana’s most successful posthumous release, went 5x platinum, and won a Grammy Award.

If you don’t know Nirvana or the unplugged concert, stop reading and click here. You won’t be sorry.

Frances Bean Cobain, the daughter of Kurt Cobain and Courtney Love, is currently estranged from her husband of 21 months, Isaiah Silva, the frontman for The Eeries.

Isaiah is claiming he owns Kurt’s former Martin D-18E guitar from the famed MTV performance. The guitar is a very rare; only 300 were made. However, the guitar’s sentimental value is immeasurable, as it was the last guitar played by Kurt before his suicide.

Silva is claiming he owns it because it was given to him by his wife as a wedding present, though she denies gifting it to him. Courtney Love takes her daughter’s side, and has said:

“It’s not his to take. It’s a treasured heirloom of the family’s”

I’ve written about equitable distribution in Florida before. Let’s assume that the guitar was in fact a wedding gift from Frances to Isaiah. What happens? In all likelihood, the guitar would be considered marital property, not just Isaiah’s, and would have to be equitably distributed.

Equitable distribution of the rare guitar could involve: selling it to an outside buyer, distributing it to either Isaiah or Frances, or simply sawing it in half for each of them to enjoy.

In Florida, “Marital assets and liabilities” include interspousal gifts during the marriage. In divorce proceedings, the court must divide the marital assets between the parties, and begins with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on certain relevant factors.

If a judge were to determine that Kurt’s guitar was not a wedding gift from Frances – and given its multi-million dollar and sentimental value, a Cobain family heirloom – it would be Frances’. That’s because courts have to set apart to each spouse that spouse’s nonmarital assets.

Last week, Silva alleged that Sam Lutfi, a former manager of Love as well as Britney Spears, kidnapped him and stole his cellphone. The plot thickens.

The Spin magazine article is here.

Is There a Trump-nup Prenup?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, July 4, 2016.

As a certain presidential candidate might say, “prenuptial agreements are yuuuuuuuuge”. If you’re marrying this summer, you should build a fantastic wall around your assets.

Many people don’t realize that prenuptial agreements serve many purposes; some of them are surprising. The New York Magazine reports on “lifestyle” clauses in prenups. Lifestyle provisions are clauses which can include things like:

– a “no-diaper” rule,

– a clause that specifies no children, or

– “fling fees” for infidelity.

But clauses can also get excruciatingly specific: whether the children will be raised vegetarian; how often a couple should have sex; how much time a couple will spend at their in-laws’ house; which nights a husband can watch football with his friends; how many hours a spouse will work during the week; how long a husband is expected to work before he retires; and, of course, how much weight a wife can gain.

You should know that these kinds of clauses are nearly impossible to enforce in court. They are added to prenuptial agreements to add an aspirational sense to the agreement; a sort of a declaration of what you expect in the marriage.

I’ve written about the need for prenups before. There are many other kinds of clauses in prenups that can be enforced. Prenuptial agreements are often used to limit or eliminate alimony and spousal maintenance awards, to protect assets that are titled in one spouse’s name, or protect you before premarital money becomes mixed.

Donald Trump, reportedly says that his prenuptial agreement with Melania Knauss has made his marriage stronger.

“It’s a hard, painful, ugly tool. Believe me, there’s nothing fun about it. But there comes a time when you have to say, Darling, I think you’re magnificent, and I care for you deeply, but if things don’t work out, this is what you’re going to get.”

The New York magazine article is here.

New Supreme Court Domestic Violence Ruling

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Wednesday, June 29, 2016.

It’s not every day the U.S. Supreme Court decides a case impacting family law. This week, it ruled on the intersection between domestic violence and gun control.

NPR reports that the majority opinion, written by Justice Elena Kagan, concludes that misdemeanor assault convictions for domestic violence are sufficient to invoke a federal ban on firearms possession.

I’ve written before about domestic violence. A 1996 federal law prohibits a person with a “qualifying” misdemeanor domestic violence conviction from possessing, shipping, or receiving a firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The plaintiff in the U.S. Supreme Court case, Stephen Voisine, pleaded guilty to misdemeanor assault charges after slapping his romantic partner. Several years later, he was caught with a firearm in violation of a federal law affecting convicted domestic abusers.

Stephen’s case, Voisine v. United States, attracted a lot of attention recently because Congress has been trying to tighten gun control laws, and because Justice Thomas asked questions during oral argument for the first time in a decade.

In Voisine, the U.S. Supreme Court ruled, in a 6-2 vote, that people convicted of misdemeanor domestic violence can be barred from owning firearms.

The majority opinion, written by Justice Elena Kagan, concluded:

Our answer is informed by congressional recognition … of the special risks posed by firearm possession by domestic abusers. “Domestic violence often escalates in severity over time … and the presence of a firearm increases the likelihood that it will escalate to homicide….”

The NPR article is here.

Timesharing Thrills: Kids on a Plane

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, June 27, 2016.

When parents live in different states, summer timesharing can mean airplane flights to see mom or dad. Are there any concerns about putting your kids on a plane?

The Washington Post recently reported on the arrests this month of two men on charges of groping young girls on planes. This always raises questions about timesharing long distance for the summer and other holidays.

I’ve written about timesharing issues before. Experts say that before putting children on a plane alone, parents should teach them to immediately get help if in trouble, but flight attendants aren’t babysitters.

There are no federal regulations about putting children on planes. Airlines set their own rules for minors flying alone. Most limit the youngest kids to nonstop flights to avoid the added confusion and risk of connecting to another plane. Some limit the number of solo children on any one flight.

Most U.S. airlines offer to take unaccompanied children as young as 5 for an extra fee of up to $300 per round trip. The carriers promise to help kids get on and off the plane.

Flight attendants know when there is an unaccompanied minor on board, but airlines don’t add an extra attendant to watch children.

Last week, 26-year-old Chad Cameron Camp of Oregon was arrested and charged with abusive sexual contact after an American Airlines flight from Dallas to Portland.

According to an FBI agent’s statement, Camp sat next to a 13-year-old girl even though there were empty seats nearby including the aisle seat in the same row. He declined a flight attendant’s offer to move.

When a flight attendant returned later to serve snacks to passengers, she saw Camp’s hand on the girl’s crotch, according to the arrest complaint. The girl was crying.

Last summer, an 11-year-old boy was lost at the airport in Newark, New Jersey, for about 30 minutes until his grandfather found him. United said that a flight attendant had asked the boy to stay on the plane after it landed and didn’t notice when he left with other passengers.

Experts offer tips for parents who book children for solo travel:

– Children should sit in the aisle seat near the front of the plane to be more visible.

– Talk to your kids about what to do when somebody does anything that makes them uncomfortable.

– Book a nonstop if available.

– Pick flights early in the day to reduce the risk of being stranded overnight.

– When you take your child to the gate, ask who will accompany them on and off the plane and whether another passenger will sit next to them.

Married on a Dare: Divorce & Annulment

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

What happens in Vegas doesn’t always stay there. If you bought the “Elvis Concert” wedding package on a dare, and your flight home is spent regretfully twisting your new ring, do you divorce or what?

Let’s face it, some people can never turn down a dare; especially a double-dog dare. Add to the pressure of a dare, the romantic ambiance of the Las Vegas Strip, and many people fly home newly married.

If you happen to live in Delaware, you’re in luck. Apparently, Delaware recognizes this inherent weakness in guys who just have to accept any dare, no matter how crazy.

Delaware’s legislature assisted those who do not seriously consider consequences of getting married for no particular reason but bravado. Delaware courts will allow you to annul your marriage.

Pursuant to §1506(a)(6) of the Delaware Divorce and Annulment Act:

The Court shall enter a decree of annulment of a marriage entered into under any of the following circumstances . . . one or both parties entered into the marriage as a jest or dare.

If you’re lucky enough to be flying from Las Vegas back home to Delaware, you can easily annul your marriage on grounds that you were dared into marrying.

Better still, even if you were just ‘joking’ about the whole marriage thing, ala ‘The Hangover’ you may be eligible for an annulment of your marriage back home in Dover.

What about in Florida? I’ve written about divorce and annulment in Florida before. Unlike Delaware, Florida does not have a statute authorizing annulments.

Because Florida is one of the handful of states that has no annulment statute, annulments in Florida are purely a question of common law, decided pursuant to the inherent equitable powers of the circuit court.

The historical common law “impediments” to marriage traditionally fell into two general categories: lack of consent and lack of capacity. This is substantially still the case law in Florida.

Lack of consent would include, for example, people who are related within certain degrees, and minors without parental consent. Lack of capacity situations are cases involving fraud, mental illness, sham marriages, and shotgun weddings.

You can read more of attorney Ephrat Livni’s funny post here.

Domestic Violence in the News

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Monday, June 20, 2016.

Johnny Depp was set to appear in court today over a domestic violence restraining order his wife filed in his divorce following claims of physical and verbal abuse. Why cancel?

As Salon reports, the World Health Organization reported an estimated 35% of women have been subjected to either intimate partner violence or sexual violence from a non-partner in their lifetime. The U.S. Centers for Disease Control and Prevention conducted a survey and discovered some alarming statistics:

“The lifetime prevalence of physical violence by an intimate partner was an estimated 31.5% among women and in the 12 months before taking the survey, an estimated 4.0% of women experienced some form of physical violence by an intimate partner.

An estimated 22.3% of women experienced at least one act of severe physical violence by an intimate partner during their lifetimes. With respect to individual severe physical violence behaviors, being slammed against something was experienced by an estimated 15.4% of women, and being hit with a fist or something hard was experienced by 13.2% of women.

In the 12 months before taking the survey, an estimated 2.3% of women experienced at least one form of severe physical violence by an intimate partner.”

Injunctions are issued ex parte, which means the accused has no notice of the proceedings and does not have the opportunity to defend themselves prior to its issuance.

Heard rescinded a request for temporary spousal support earlier this week, saying it’s been “used against me to distract and divert the public away from the very serious, real issue of domestic violence.

Far too many people use injunctions to gain a strategic. One study found that 59% of allegations of domestic violence between couples involved in custody disputes could not be substantiated by the courts as true.

What can be done if you are the victim of abuse? I’ve written about domestic violence issues before. In order to obtain an injunction against domestic violence, you must prove you are in imminent danger of becoming the victim of domestic violence. In addition to an injunction prohibiting domestic violence, Florida law allows for other types of injunctions as well, including:

Repeat violence injunctions, when two incidents of violence or stalking

Sexual violence injunctions, for certain criminal sexual acts are committed.

Dating violence injunctions, available to protect those who have a “continuing and significant relationship of a romantic or intimate nature” from violence.

From Hollywood marriages to the radical Islamic terrorist in Orlando, domestic violence can have tragic results if left alone.

The Salon article is here.

Parental Relocation Can Be Killer

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Relocation on Thursday, June 9, 2016.

Relocations are stressful. After one contentious parent/child relocation, the Miami Herald reports a Father may have been murdered over his children’s relocation. Suspects are in custody.

I’ve lectured and written about relocations before. Florida relocations are defined as:

moving your principal residence – as it was at the time of the last order establishing or modifying timesharing, or at the time of filing the pending action to establish or modify timesharing – at least 50 miles for at least 60 consecutive days – not including a temporary absence for vacation, education, or health care for your children.

Ask a family lawyer or judge to name the most difficult type of family case to handle, and most likely he or she will say child relocation cases. If a Court grants the move, the non-moving parent will no longer be able to participate in the day-to-day life of her or his child.

On the other hand, if the Court denies relocation, and the moving parent has no choice but to move away, then the child will be separated from the parent with whom the child may have the closest bond. In either situation, the child loses.

The Miami Herald is reporting that in a newly unsealed probable-cause affidavit, police said that “a desperate desire” by the family of FSU law professor Daniel Markel’s ex-wife to move the couple’s two children from Tallahassee to Miami was the motive of murder suspect Sigfredo Garcia, arrested last week for Markel’s murder.

The unsealed affidavit says police used a combination of video surveillance, eyewitness accounts, cell phone records, emails and court records pertaining to Markel and his contentious divorce from Wendi Adelson to place Garcia and alleged accomplice Luis Rivera near the crime scene and establish the Adelson family’s motive to put out the hit.

Wendi Adelson, who was a clinical professor at Florida State University’s law school, filed for divorce in 2012 after six years of marriage. Investigators described the divorce as “bitter,” with Adelson taking their two sons to her parents’ Miami home without Markel’s consent before she returned.

“E-mail evidence indicates Wendi’s parents, especially her mother, wanted Wendi to coerce Markel into allowing the relocation to South Florida,” the affidavit says. “Additionally, Wendi’s brother, Charles Adelson (Charlie), reportedly did not like Markel and did not get along with him.

The affidavit does not allege that Wendi Adelson knew about Dan Markel’s killing in advance or had any involvement in it.

Raising the interest factor, Wendi told the story of her ex-husband, Dan Markel’s murder as a student in the Writing Class Radio Podcast.

The podcast is fascinating.

The Miami Herald article is here.

Wendi’s podcast is here.

Grandparent Visitation & Millennials

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Monday, June 6, 2016.

For the first time in modern history, young adults are more likely to live with a parent than a romantic partner. What does this mean for grandparent rights to timesharing and visitation?

The New York Times recently reported that millennials, who have been slower than previous generations to marry and set up their own households, reached that milestone in 2014.

32.1% lived in a parent’s home, compared with 31.6% who lived with a spouse or a partner.

The median ages for marrying are 27 and 29, and one in five adults older than 25 has never married. Pew projects that a quarter of this generation of young adults might never marry.

About 22% of young adults now live in a dormitory, or with a relative like a grandparent or a sibling – compared with 13% in 1960.

About 14% of young adults head their own households, some living with roommates or boarders, others alone or with their young children.

The issue of grandparent visitation rights comes up many times in Florida. As this recent Pew study shows, grandparents are increasingly playing a significant role in the lives of their grandchildren.

I wrote an article in the Florida Bar Journal about grandparent visitation rights, and the attempts by Florida law makers to serve this big part of our population.

Two Florida statutory grounds for awarding grandparent visitation have been ruled unconstitutional by the Florida Supreme Court. Confusingly, these two provisions remain in the statute.

The laws were held unconstitutional because compelling visitation with a grandparent based solely on the best interest of the child, without the showing harm to the child violates parents’ privacy.

Fifteen years ago, 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.

The New York Times article is here.

No Fault Divorce in Pakistan

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, May 30, 2016.

In 1971, Florida passed its “no-fault” divorce law. Recently, a Pakistani court restored a law allowing Christian men to divorce without adultery charges.

The rationale behind no-fault laws was that requiring someone to prove legal grounds to dissolve the marriage was not serving any useful purpose.

I’ve written about no-fault divorces before. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010.

In Pakistan, the Lahore High Court restored a law enabling Christian men to adopt a ‘dignified way’ to divorce their wives.

Pakistani, Amin Masih, who wanted to divorce his wife but not on adultery charges, had requested the court to restore the provision undone by the military ruler 35 years ago.

Mr. Masih said he did not want to level the “false allegation” of adultery against his wife. He said the condition of accusing wife of adultery for divorce should be abolished for being unconstitutional and inhuman.

“There are just and reasonable grounds, other than adultery, to divorce a Christian woman,” he said.

Punjab government’s Assistant Advocate-General Anwar Hussain said the provincial government wanted to amend this controversial law, but it was not possible because of lack of consensus among the Christian community leadership.

The court was also told that in the past many Christian men and women changed their religion to divorce each other honorably. The existing law was detrimental to the dignity of Christian women.

The Hindu article is here.