Year: 2016

Florida Alimony Reform 2016: R.I.P.

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

Governor Scott vetoed the single most contentious bill from the 2016 Legislature last week: the alimony and equal time-sharing reform bill. What’s it mean?

As the Miami Herald reports, Scott’s veto ended weeks of suspense and intense lobbying campaigns on both sides during which more than 11,000 calls and e-mails bombarded his office, with supporters ahead by a 4-1 margin.

I wrote about the failure of the alimony reform bill and equal timesharing provision last year, when the Florida House of Representatives made a surprising end of their session, killing all bills. This year, the surprise came from the Governor’s office!

Scott, who like many of his constituents have experienced divorce in his own family, delivered a veto message with an unusually personal tone.

“As a husband, father and grandfather, I understand the importance of family and the sensitivity and passion that comes with the subject of family law,” Scott’s veto message said. “As such, we should be judicious and carefully consider the long-term and real-life repercussions on Florida families.”

He said he was troubled by a provision in the bill (SB 668) that would require judges to begin divorce proceedings with a premise that both parents are entitled to approximately equal time with their children.

Scott said that would put “the wants of a parent before the child’s best interest by creating a premise of equal time-sharing,” a decision that he said should be left to judges.

Though emotionally divisive, the bill had broad support in the Legislature, passing the House by a comfortable 74-38 margin and the Senate by a 24-14 vote in March.

“At this point, it is unclear what future family law reform legislation the governor may find acceptable,” Lee said in a statement. “[The] veto message is vague and does nothing to further illuminate the governor’s concerns … [It)]focuses exclusively on potential outcomes without giving reasons for how the legislation could actually result in those outcomes.”

The Representative most responsible for merging the alimony and timesharing provisions was Representative Ritch Workman. On Friday he admitted that his decision to merge alimony and child custody provisions in one bill was the wrong strategy.

“The governor’s message is clear,” Workman said. “We must tackle each issue in family law separately rather than lumping them all together.”

The Miami Herald article is here.

Say Divorce Three Times . . .

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

Ever heard of the Triple Talaq? It allows Muslim men in India to leave their wives instantaneously by saying “talaq,” meaning divorce, three times. Would it work here?

The Wall Street Journal has an article about India’s Supreme Court, which is considering petitions that challenge Muslim laws governing marriage on the grounds that they discriminate against women, a charged issue that risks angering the country’s orthodox Muslims.

Among the petitioners calling for change is a Muslim woman whose husband, after 13 years of marriage, divorced her by saying “divorce” three times.

The Indian constitution protects gender equality, but on issues of marriage, divorce and inheritance, different religious communities are governed by their own so-called personal laws. Whether a person is subject to those laws is usually determined by their religion at birth.

I’ve written about the interplay between religion and family law in Florida before. Florida passed Senate Bill SB 386, which was approved by the Governor in May. Specifically, the bill prohibits courts in Florida from:

– Basing a decision on a foreign law that does not grant the parties to litigation the same rights guaranteed by the Florida or U.S. Constitutions.

– Enforcing a ‘choice of law’ clause in a contract which requires a dispute to be resolved under a foreign law that does not grant the parties the same rights guaranteed by the Florida or U.S. Constitutions.

– Enforcing a ‘forum selection’ clause in a contract which requires a dispute to be resolved in a forum in which a party would be denied his or her fundamental rights guaranteed by the State Constitution or the United States Constitution.

There are now 32 states which have considered some limits on the application of foreign law, either through legislation or ballot initiative.

Muslim women’s rights groups argue that the practice of Triple Talaq misinterprets the Quran and is protected by orthodox Muslim men to perpetuate patriarchy.

“Muslim women have their hands tied while the guillotine of divorce dangles, perpetually ready to drop at the whims of their husbands who enjoy undisputed power,” the petition reads, alleging that women have been divorced over Skype, Facebook and through text messages.

The validity of personal laws rooted in religious beliefs – and the judiciary’s right to intervene – has long been a contentious issue in India . . . and Florida too.

The Wall Street Journal article is here.

Not Very Appealing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, April 7, 2016.

If you’re trying to lose your divorce on purpose, to avoid foreign currency controls for example, but somehow win, you may be stuck in appellate court. Here’s some advice on how to lose the appeal.

I’ve written before about how and why you may want to lose your lawsuit on purpose. But that was at the trial level. What are some of the mistakes that will prevent your appeal from proceeding successfully?

California Lawyer magazine, the magazine of the California Bar, has an article about appeals. Here are two good mistakes from the article that will put you on the right (or wrong) path:

DON’T ADDRESS SIGNIFICANT ISSUES AT TRIAL

During the trial, it is natural to focus on the issues at hand, and not on what could happen if you need to appeal later on. For most issues, if it was not presented in the trial court, you cannot raise it for the first time on appeal.

In one case from California, a husband appealed an order in which he did not raise the fact that he contributed $47,000 of his non-marital money toward paying down a mortgage on the wife’s separate property. The appellate court denied the appeal because the issue was never preserved at trial.

DON’T ADMIT DOCUMENTS INTO EVIDENCE

Many who practice family law think the evidentiary rules are loosened up a bit in family court. This is a dangerous trap to fall into. Unfortunately, if you believe the judge will give you a little slack on admitting evidence, when you appear before a judge who strictly follows the Evidence Code, you are in for a painful surprise.

But even if the family law judge allows in evidence – without strictly following proper evidentiary rules – this could cause problems on appeal. That’s because any trial court decision based on improperly-admitted evidence could be subject to reversal.

Not many people go through the time and expense of trying to lose a lawsuit, let alone an appeal. But let’s face it, you may live in a country with strict capital controls. If so, losing a lawsuit may be the only way to get around restrictions on transferring currency out of the country.

Postnuptial Agreements are on the Rise

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

Like prenups, postnups are contracts that spell out how assets and debts should be split. Divorce lawyers are citing an increase in spouses asking for postnuptial agreements in the last three years.

The Wall Street Journal ran an article last month on some of the common reasons for a postnup:

Sometimes, it is to punish a spouse for bad behavior, such as infidelity. Other times it is for the opposite reason: to show commitment by guaranteeing a richer settlement if things don’t work out.

I’ve written about postnuptial agreements in the past. They are also used when, for other reasons, spouses want to change the financial agreements set in a prenup.

Postnups allow you to change the law. Right now in Florida, there has been a bill passed to modify the alimony law. The bill is waiting the Governor’s signature.

Through an agreement you can modify Florida’s legal standards for awarding alimony, in addition to modifying what the current law says about the amount of support and the duration of the alimony period.

The probability of divorce is around 50% for first marriages. For second marriages, it’s more like 70%. What some people don’t realize is that going through a second, third, or fourth divorce can be more complicated than first-time divorces.

In multiple divorces, couples are older, and have less time to make up for losses. Also, couples are competing for dwindling resources. Child-support, alimony, and dividing up of the retirement accounts may still be pending, and there can be little left to divide in a second divorce.

Postnuptial agreements are similar to prenuptial agreements, but are entered into after a marriage. Postnups can cover everything from how to divide financial assets in divorce to limits on partners’ weight gain – just as prenups can.

Prenuptial agreements and Postnuptial agreements can be extremely important if you are thinking of marrying. They are not just for the ultra-rich, but are an important part of every healthy marriage decision.

The Wall Street Journal article is here. Thanks to Thomas Sasser for the pointer.

Florida Alimony & Timesharing Reform 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, March 31, 2016.

It’s a nail biter. The Legislature’s alimony and timesharing reform bill has not been sent to the Governor yet. Once the Governor receives it, he will have 15 days to veto it.

I’ve been following Florida’s alimony and timesharing reform movement for a while. The Florida Bar Family Law Section has been lobbying the Governor and his staff, and trying to get as much press as possible, highlighting the problems with a premise of a 50/50 timesharing.

As USA Today reports, the legislation could have major impacts positive and negative on alimony, child-support payments and time-sharing of children.

The proposal sets out a formula for judges to use when deciding alimony payments, and is without a retroactivity provision. The retroactivity provision in the last bill moved the governor to veto the alimony reform bill in 2013.

The bill, which would take effect October 1st, would set guidelines for judges to set alimony based on the duration of marriages and the incomes of the parties. If a judge deviates from the guidelines they would have to explain why in writing.

The bill replaces permanent alimony with new formulas based on the length of the marriage and the spouses’ incomes. Those formulas help set the amount and duration of the payments.

It also advises judges to implement equal time-sharing of children between parents. The new provision to timesharing states:

In establishing a parenting plan and time-sharing schedule, the court shall begin with the premise that a minor child should spend approximately equal amounts of time with each parent. Using this premise as a starting point, the court shall formulate a parenting plan and time-sharing schedule taking into account the best interest of the child after considering all of the relevant factors in subsection (3). It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.

The USA Today article is here.

Child Custody Decision: Homeschool or Public School?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Sunday, March 27, 2016.

A Mother wants to homeschool her daughter. The Father wants the child to attend public school. A Pennsylvania appeals court had an interesting ruling on that child custody dispute.

The Mother and Father have a daughter. By order of the trial court, dated September 29, 2008, the Mother and Father shared legal custody, and Mother had primary physical custody. Then inn February 8, 2011, the Father’s legal and physical custody rights were suspended.

The Mother is very religious, and believes that those who do not practice her conservative Christianity are inherently immoral and corrupt. Her child has historically has been isolated, and her only significant source of interaction has been in the context of church.

The father argued that Daughter should be sent to public school because of his disapproval of mother’s religion, and his skepticism about religion.

On July 27, 2012, the child’s attorney requested that the child continue enrollment in public school, and the trial judge ordered her to matriculate in the Fairfield School District.

I’ve written about child custody decisions and homeschooling before. In this case, the Mother appealed, and the Pennsylvania Court of Appeals reversed. With any child custody case, the Pennsylvania Court, as do the Florida courts, applies the best interests of the child standard.

This standard requires a case-by-case assessment of all of the factors that may legitimately affect the physical, intellectual, moral and spiritual well-being of the child.

The Mother argued that the trial court was dictating to her how to raise her daughter.” She contends she should be able to home school her child to protect her from negative influences in public school.

The appellate court concluded that the Father and guardian failed to establish that public school was in the child’s best interest. It noted a lack of evidence about the academic appropriateness of home schooling, despite the fact the child wanting to attend public school.

One judge went so far as to concur, stating

We would do Children more harm than good by assuming the day-to-day parenting decisions, a function we are ill-equipped to carry out…. To decide otherwise is to inappropriately micromanage this family.

There is no Florida case on point, but the Pennsylvania case and a Kansas case are probably the correct approach.

One thing to avoid is allowing family court judges to rely on their feelings of whether homeschooling is better or worse for children. A judge has to base the decision on substantial and competent evidence in the record.

The opinion of the Pennsylvania Appellate Court is here.

Parent Free Speech: Can the Judge Gag You?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, March 18, 2016.

Can a child custody judge order you not to speak to your children about something? A Washington mother just found out the hard way.

I’ve written about free speech and divorce after a Venezuelan mother was ordered not to speak Spanish to her child. But, what about the content of your speech, can a judge stop you from talking?

A Washington State husband, Charles Black, learned a surprise from his wife, Rachelle Black. They were married for 7 years, had three children, and raised their children in a conservative Christian home; sending them to religious-based schools.

Seven years after marriage, Rachelle told Charles that she was gay, and began a romantic relationship with another woman. Two years later, Rachelle filed for divorce.

Rachelle told the children she was gay, gave her oldest child a book about sexuality and faith, and showed the two oldest children a documentary about a transgendered child.

The trial judge felt it will be too challenging for the children to reconcile their conservative religious upbringing with the changes occurring within their family’s sexuality, and ordered

“that the mother refrain from having conversations with the children regarding religion, homosexuality, or other alternative lifestyles”

The Washington Court of Appeals reversed:

Our courts have upheld restrictions on certain types of unprotected speech when they have served the best interests of the child. But while the welfare of children is the State’s paramount concern in dissolutions, restraining speech merely based on content presumptively violates the First Amendment . . .

[E]ven in the context of family law, content-based speech restrictions are presumptively unconstitutional.

The trial court also gave the Father ultimate decision making for the children’s religious upbringing, and the court reversed that ruling too:

There must be a substantial showing of actual or potential harm to the children from exposure to the parents’ conflicting religious beliefs; this harmonizes the children’s best interests with the parents’ constitutional rights to free religious exercise.

The opinion of the Washington State Court of Appeals Division Two is here.

Upcoming Talk on Children’s Issues

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Speeches on Tuesday, March 15, 2016.

On March 17th, I’ll be speaking in Ft. Lauderdale on Family Law Trends and Hot Topics in the Area of Children’s Issues, an event sponsored by The Florida Bar Continuing Legal Education Committee and the Family Law Section.

This broad and useful seminar is designed to assist the family law practitioner by discussing the latest trends in the law.

Topics include understanding the power of parenting relationships in divorce, child support guidelines for split-parenting timesharing schedules, parentage issues for same sex couples, expert testimony and the impact of the Daubert decision, and ethical considerations when dealing with children in contested family law matters.

The seminar will then conclude with a distinguished panel of judges from different geographical areas to discuss how they approach and decide contested timesharing cases.

The event is open to the public, though registration is required.

The brochure for the event can be found here.

The event’s website information can be found here.

Divorce Tips: After the Case is Over

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, March 14, 2016.

Forbes magazine has an article about some important things to immediately implement your marital settlement agreement to make it work.

I’ve written about practical tips for divorce before. Consider that once the lawyers are gone, all you have to show is a piece of paper. Putting that final judgment aside could be a mistake.

There are some immediate steps to take to ensure your interests are protected – and your financial documents reflect your new marital status.

As Forbes magazine asked: What should you change? In two words, almost everything.

Once your divorce is final – meaning a final judgment is entered – you should review and revise, if necessary, the following legal and estate planning documents:

Trusts

Powers of Attorney (property, healthcare, HIPAA, etc)

Will

Life insurance policies

Retirement accounts

What can happen if you don’t?

One example is common. If your ex-spouse remains the beneficiary of your life insurance policy and you pass away, the proceeds will go to your ex-spouse instead your children. That may be what you intend, but probably not.

The opposite can also be true. In Florida, the plain language of the documents controls. To the extent your or your former spouse claimed a right to remain as the beneficiary under a life insurance policy – as a condition of the dissolution of marriage – your rights can be waived.

In one Florida Supreme Court case, a life insurer sued to determine whether a former wife or the former husband’s sister was entitled to proceeds of his life insurance policy. The Florida Supreme Court held that the former wife of the insured remained primary beneficiary on his life insurance policy.

Also, consider your retirement accounts. After a divorce, you may revise your Will to reflect your desire that your 401(k) goes to your children, but if your wife remains the beneficiary of the plan, she will receive those funds.

Retirement plan designations can trump estate plan stipulations. The same is true for life insurance; proceeds will go to the named beneficiaries of those policies and not to persons named in a Will or other estate plan document.

A divorce judgment is legally binding. If, as a part of your divorce, you agreed that your ex-spouse would remain the beneficiary of a life insurance policy, don’t change the beneficiary designation on the policy itself. But, if that was not your intention, and the agreement is clear, unless you implement your marital settlement agreement, you could be in for a surprise.

The Forbes magazine article is here.

Collaborative Divorce: Florida Law Update

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

If you wish you could collaborate to reach agreement in parenting and financial issues, now you can. Florida just passed the Collaborative Law Bill. What’s the collaborative process all about?

I’ve written extensively on all types of alternatives to court to end your divorce and paternity disputes. The Collaborative Law Process is a voluntary way to resolve your case by agreement – and without the threat of litigation.

It starts when both sides and their lawyers sign a “collaborative participation agreement,” committing to a cooperative process.

The lawyers must withdraw if the process fails, so lawyers are motivated to resolve your case. It also costs less, takes less time, causes less stress, opens up new possibilities and should be considered by every couple separating.

Last week, the Florida Legislature passed the Collaborative Law Bill. The bill created Florida’s new Collaborative Law Process Act. The Act is based on the Uniform Collaborative Law Rules, which were created by the by the Uniform Law Commission in 2009.

The rules have already been adopted in 12 states, the District of Columbia and three sections of the American Bar Association. Passage of the Collaborative Law Bill puts Florida at the forefront of family law again.

The new law will provide much needed law for beginning, concluding, and terminating a collaborative law process. It also provides statutory privileges and confidentiality of communications to facilitate the process.

The collaborative law movement started in 1990. Today, collaborative law lawyers like myself are helping resolve disputes in every state of the United States, and in every English-speaking country.

Under the new law, the following issues are subject to resolution through the collaborative law process:

-Marriage, divorce, dissolution, annulment, and marital property distribution;

-Child custody, visitation, parenting plans, and parenting time;

-Alimony, maintenance, child support;

-Parental relocation with a child;

-Premarital, marital, and post-marital agreements; and

-Paternity.

In the collaborative process, the spouses and lawyers meet in a series of sessions at one location which is attended, if necessary, by a forensic accountant and mental health professional who are mutually chosen by the lawyers.

Everyone is tasked with discussing a wide range of possible resolutions for both parties; much more than are ever available in litigation.

Because you are designing your own solution, parties to the collaborative process are more pleased with the results and future compliance than those who have to litigate.

Collaborative Law has been available in Florida for years, and now it will be protected by statute. The Effective Date of the new law will be July 1, 2016, but you can start your Collaborative case right now.