Month: May 2017

Upcoming Talk on Parenting Plans

For readers who may be interested, on June 16, 2017, I will be speaking about child custody and time-sharing at the Florida Bar Family Law Section’s seminar on Process and Procedures: “Be on Top of Your Game” at the Hilton West Palm Beach.

I will be discussing the subject of parenting plans with noted psychologist, Dr. Sheila Furr, PhD. Dr. Furr is a licensed psychologist in Florida and California and is Board Certified in Clinical Neuropsychology by the American Board of Professional Neuropsychology.

Generally, a parenting plan is a document created by lawyers or the court to govern the relationship between parents relating to decisions that must be made regarding their minor children.

Parenting plans must contain a time-sharing schedule for the parents and children too. The issues concerning the minor children should also be included, and consist of issues such as the children’s education, their health care, and physical, social, and emotional well-being.

When creating parenting plans, it is important to consider all of the circumstances between the parents, including the history of their relationship, whether there are any issues about domestic violence, and many other factors must be taken into consideration.

A parenting plan has to be either developed and agreed to by the parents and approved by a court; or in the alternative, a parenting plan must be established by the court – with or without the use of a court-ordered parenting plan recommendation – when the parents cannot agree to a parenting plan, or the parents agreed to a plan, but the court refuses to approve the parents’ plan.

To register online, log into The Florida Bar Members Portal, click on Meetings/CLE Events.

The course brochure is available here.

For more information on this and other events, visit the Florida Bar Family Law Section website.


Unequal Property Division

A Husband recently demanded an unequal property division in his divorce. He wanted more than half of a $225 million fortune, and for his Ex to get about $6 million. He claimed he was entitled to more than half because of his “genius”. Are you entitled to more than half in a divorce?

Valuing Genius

Randy Work, 49, a former executive at Texas-based private equity firm Lone Star, had first claimed that his wife of 20 years, Mandy Gray, was entitled to only $6m because she had an affair with the couple’s personal physiotherapist.

The pair, who are both American and have two teenage children, met in 1992 and married in 1995. They split up in 2013 when Gray began an affair with the couple’s physiotherapist, 44, who she now lives with in a rented flat in Kensington.

A British high court judge rejected the Husband’s claim that he made an “exceptional contribution” to the marriage and was therefore entitled to more than a 50-50 split of the couple’s assets, which include a mansion in West London, complete with swimming pool and fitness center and a ski lodge in Aspen.

Ruling on their divorce in 2015 Justice Holman told the businessman that his wealth contribution – which Work said totaled more than $300m in 10 years – was not “wholly exceptional” and rejected his claim to be a financial “genius”.

“I personally find that a difficult, and perhaps unhelpful, word in this context,” Holman said. “To my mind, the word ‘genius’ tends to be overused and is properly reserved for Leonardo da Vinci, Mozart, Einstein and others like them.”

Work, who has spent at least $3m fighting to keep his wife from collecting half of the family fortune, took the case to the court of appeal which on Tuesday unanimously rejected his appeal against the trial judge’s ruling.

Florida Property Division

I’ve written about property division in Florida many times before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties. In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

However, if there is a justification for an unequal distribution, as in the Work divorce, the court must base the unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.

Additionally, courts can consider the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

However, courts generally can’t base unequal distribution on one spouse’s disproportionate financial contributions to the marriage unless there is a showing of some “extraordinary services over and above the normal marital duties.”

The English Divorce

During the divorce hearing Holman had said the case “should be so easy” to settle as there was “plenty of money to go round” and criticized the couple for descending into “unedifying and destructive pugilism”.

“In our view the husband has failed to demonstrate that Holman J’s decision was wrong,” three court of appeal judges said.

London has become known as the divorce capital of the world because British judges tend not to discriminate between breadwinner and homemaker and order equal splits of combined fortunes.

However, Work had hoped to convince the court of appeal judges to allow him to join those few men who had been granted more than half of the combined assets in a divorce in recognition of the “wholly exceptional nature” of their success.

Holman had ruled that although Work was an “astute businessman”, Gray was a “highly intelligent” woman who had given up her career to follow her husband to Tokyo, where he made hundreds of millions of pounds exploiting the Japanese financial crisis.

“A successful claim to a special contribution requires some exceptional and individual quality in the spouse concerned. Being in the right place at the right time or benefiting from a period of boom is not enough,” Holman said.

“It may one day fall for consideration whether a very highly paid footballer, who is very good at his job but may be no more skillful than past greats, such as Stanley Matthews or Bobby Charlton, makes a special contribution or is merely the lucky beneficiary of the colossal payments now made possible by the sale of television rights.”

Holman said Work and Gray, 47, had been “two strong and equal partners” and he would not have been able to amass his vast fortune without her contribution.

The Guardian article is available here.


Suing Your Spouse

Steve Harvey’s ex-wife Mary Vaughn is suing him for $60 million, claiming that she suffered “prolonged torture with the infliction of severe mental pain and suffering.” Can you sue your spouse in a divorce for battery, transmission of STDs, or emotional distress?

The Harvey Divorce

The Harvey marriage lasted from 1996 until their public divorce in 2005, which was two years prior to Harvey’s third marriage to current wife, Marjorie Bridges. The 60-year-old “Family Feud” host was previously married to Marcia Harvey for 14 years before he wed Vaughn.

As reported by Fox News, court documents claimed that Vaughn “attempted suicide by self-medicating [in] an effort to stop the pain” and alleged that Harvey and his attorney reportedly caused “severe emotional distress” over the years.

ET added that Vaughn is also suing for alleged child endangerment, torture, kidnapping, breach of contract, conspiracy against rights, intentional infliction of emotional distress and even “soul murdering” (which we’ll get to later).

Interspousal Immunity

I’ve written about various issues relating to divorce before. Things like saving taxes, how not to treat your spouse, and what to wear to court. The subject of suing your spouse for emotional distress often comes up in divorces.

Florida used to have a long-standing policy about suing your spouse called the interspousal immunity doctrine. Under the interspousal immunity doctrine, one spouse could not sue the other spouse for tortious conduct committed during the marriage.

Interspousal tort immunity was thought to protect families from the adverse effects to a family relationship as a result of bitter lawsuits, and the drain on family resources.

However, the doctrine of interspousal immunity was abrogated in Florida. So, the ability of a person to sue another person for the intentional tort of battery, for instance, is not affected by marriage between the persons.

The justifications for having an interspousal tort immunity were found to be non-existent in this day and age. So, for example, in some divorce cases it is common for a person to be held liable for infecting another with a sexually transmissible disease.

What About Soul Murder?

Steve Harvey is being sued for, among other things, “soul murder.” This is defined as a “combination of torture, deprivation, and brainwashing.” While the interspousal immunity doctrine is not applicable in Florida, there is a reasonable chance the “soul murder” claim would be thrown out here too.

“Mr. Harvey vehemently denies any allegations set forth in the lawsuit,” read the statement sent to ET.

“The complaint is merit-less, frivolous and the allegations are completely false. We will vigorously defend/counterclaim against the complaint.”

The Fox News article is here.


What if a Spouse Dies During the Divorce?

Well this is a gloomy post: it’s about death and divorce. In November 1789, Benjamin Franklin wrote: “In this world, nothing can be said to be certain except death and taxes.” If roughly half of marriages end in divorce, there are some odds that a spouse will die during the divorce case. What happens legally and emotionally when a spouse dies during the divorce?

Emotional Roller Coaster

As the Washington Post reports, a couple of years after a wife and husband separated — but before he reached a divorce settlement — he died of a heart attack at age 57.

Overnight, the wife went from almost-ex-wife to widow. But, nearly six years later, I still feel as if I was widowed on a technicality. A real widow doesn’t have a divorce lawyer and a Match profile. A real widow is pining for her spouse, inconsolable.

Sometimes she calls herself a “partial widow.” To make her point, she mentioned a friend whose fiancé died three weeks before their wedding. “She doesn’t get to call herself a widow and I do?” “That’s ridiculous.”

Misplaced Emotions

“It’s called disenfranchised grief,” and it is also referred to as the grief that has no voice, because it’s a grief that our society typically does not recognize.”

It occurs in situations that fall outside the norm and might also include, for example, mourning the death of a former spouse or an extramarital lover. A widow who was about to be divorced has no defined place in society, so we often don’t know what we’re supposed to do.

Even responding to condolences can be awkward because there’s an element of not wanting to accept sympathy for something that is a misconception on their part. Others feel for the surviving spouse in a way that doesn’t feel accurate to the experience. It’s a different kind of pain than they’re assuming.

Legal Implications

I’ve written about divorce problems before. When a spouse dies during a divorce, the death of the spouse can have major legal implications that extend far beyond the mixed feelings you may have about losing your soon-to-be ex spouse.

Divorces are unlike other civil cases. It is true that in ordinary civil cases, the death of a party does not deprive a court of the power to enter a judgment after the death of a party. This means a court can still rule. This happens frequently in breach of contract actions, and especially in personal injury cases.

However, the general principle does not apply to divorce actions since the death itself has already terminated the marriage.

In Florida, the general rule for divorce is that there can be no judgment of divorce rendered after the death of either of the parties, since that event of itself terminates the status of marriage.

This immediate stopping of the divorce when a spouse dies during the divorce process can cause a lot of problems. This is especially true in divorce cases in which the parties are elderly, or sick, and death is a very real possibility. In those cases, the parties should seriously consider ways to avoid the court losing jurisdiction because of death.

The Washington Post article is here.


Chris Rock’s Divorce Tips

Chris Rock has headed out on his newest “Total Blackout Tour” in February, marking his first full-scale world tour in nine years. He also recently divorced his ex-wife, Malaak Compton-Rock in 2016. What Chris has said about his divorce experience may surprise you.

Chris gave an interview to Rolling Stone magazine recently, and though he jokingly calls his latest tour his “alimony tour,” he gets serious when talking about life after divorce.

“Getting divorced, you have to f–king start over,” he said. “You get to reset. It’s not a breakdown, but something in your life broke down.”

Communication between Ex-Spouses

However, instead of blaming his ex-wife – like he used to in some of his older comedy shows – he claims now that he has changed his mentality.

There are several reasons Rock has toned down the negativity when it comes to discussing his divorce and ex-wife.

For one, he said, “I asked myself, ‘Do I want to be angry for a year?’ It’s not a cool place to be. It’s not healthy.”

Secondly, he claims it’s not fair that he can go out and bash his ex, but that his ex doesn’t have a platform to defend herself. “It’s not fair”. “I have a mic, she doesn’t. God forbid people are bugging her in the supermarket. That’s not cool. I’m going to have to see her at weddings and graduations.”

Custody Battles

Rock, like other fathers going through divorce, had a rough time dealing with custody issues. Not just the battles with his ex-wife, but with himself and the children too.

For example, he spoke candidly about his emotions, that he cried once, “during the custody battle” over  his two daughters, Zahra and Lola Rock.

In order to be a more involved father, he moved closer to his children.

“All my friends assume I moved into the city after my divorce, away from my girls. When I say I bought a house around the corner, it blows their minds.”

Rock also spoke about the angry feelings his children express. In fact, at one point in the Rolling Stone interview, rock got candid and admitted: “My own daughter has blocked me on Instagram. They grow up so quick.”

I’ve written about Chris Rock’s divorce before, because his comments on his divorce have been both funny and surprising. For example, while his divorce was a custody battle (he claimed that his ex-wife had “repeatedly refused to permit him normal and usual access to the children) he also said:

“When you see me on ‘Dancing With the Stars’ . . . I’m not on crack, that’s just alimony!”

The Rolling Stone article is here.


Silicon Valley Prenups

The billionaire founder of Farmville has found himself in Divorceville. If divorces are tough, Silicon Valley divorces – with sophisticated spouses, high value assets, and hard-to-value assets – can be tougher. There is a reason more people insist on prenuptial agreements.

What are Prenups

I’ve written about prenuptial agreements before. Prenuptial agreements, or “prenups,” are contracts entered into before marriage that outline the division of assets in case of divorce or death.

Prenups, and Post-nups (agreements entered after a marriage) resolve things like alimony, ownership of businesses, title of properties, and even each spouse’s financial responsibilities during the marriage. As the UK Guardian reports, in Silicon Valley, divorces and prenup agreements go hand in hand.

Voiding Prenuptial Agreements

Farmville founder Mark Pincus, who was an early investor in Facebook and Twitter, is worth around $1.28b. Mark is separated from his wife, Alison Gelb Pincus, the co-founder of home decor business One Kings Lane. She also may be trying to get out of her prenup.

The couple married in 2008, a year after his company grew into a $1b company. Mark has a prenup. Unfortunately for him, in filing for divorce, his wife Alison has asked the court to set aside the agreement. Why? Because the value of his company increased so much after the marriage.

Prenuptial agreements are often used in high tech industries, and in Silicon Valley in particular, to protect ideas and future income – not just current salaries and property. This makes perfect sense in an age when intellectual property is so highly valued.

Because of Florida’s policy of enforcing agreements, prenups can be difficult to void – but not impossible. Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement, for example, is enforceable.

In Florida, to test the validity of a prenuptial agreement, courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

The Farmville case is a tough one. The spouse challenging the agreement, Alison, is herself very well off. She is the co-founder of One King’s Lane, which she sold to Bed Bath and Beyond for $30m. She is not exactly a stay-at-home mother who cannot work or lacks assets of her own.

Difficult to Value Assets

In divorce, determining the value of certain assets – businesses, stock options and restricted stock – is more complicated than it seems. As the shareholders of Snap Inc. have learned, startups may see their values skyrocket for their IPO, but later fizzle once earning reports become public.

Generally, anything you own before marriage counts as your separate or non-marital property. However, asset or debts acquired after the marriage is generally considered as marital or community property. In the event of a divorce, the law requires it to be distributed equitably, which usually presumes and equal split between partners.

A couple of weeks ago, tech analysts were hailing the IPO of Snap Inc. as a triumph. But a day after Snap posted a $2.2bn loss and decelerating user growth in its first earnings report as a public company, the stock’s value crashed.

Messy divorces don’t come cheap. When Elon Musk divorced his first wife Justine the two sides racked up $4m in legal and accounting bills in two years – around $170,000 per month. A prenuptial agreement can limit the costs of a divorce.

The Guardian article is here.


Child Custody, Sex, and Religion

Should a judge make a child custody decision based on how much sex you are having? What about attending church, should that be a factor? A woman in Massachusetts learned the hard way that lifestyle choices matter.

Case History

The couple met when she was just 16, and the husband was 21. Initially, the wife lived with her mother and the husband lived with his parents. But the wife was “kicked” out of her home when her parents found out about her relationship, and she was moved into foster care.

The couple married after they found out she was pregnant, and separated right afterwards. During the trial, the family court judge granted custody to the father.

The judge made several factual findings in her decision about the child’s Catholic baptism, the husband’s Catholic background, and the wife’s lack of religious affiliation, even though religious upbringing was not an issue in the case.

The judge also detailed the frequency of sexual relations during the parties’ marriage, the wife’s sexual activity and abortion before she met the husband, and the wife’s sexual activity after the separation. The Wife appealed.

Florida Child Custody

I’ve written about the intersection of religion and custody a few times. Religion, religious beliefs, and religious practices are not specific statutory factors in determining parental responsibility.

Nor are religion and religious practices areas in which a parent may be granted ultimate responsibility. Instead, the weight religion plays in custody disputes changed over time in various cases.

Currently in Florida, child custody decisions are based in accordance with the best interests of the child. One of the express factors a court has to consider in making a child custody decision is the “moral fitness of the parents.”

As it relates to religion though, Florida courts have decided that, in general, there must be a clear, affirmative showing that religious activities will be harmful to the child for the religion to be a factor.

Merely weighing that one parent is church-going, while the other parent is not, does not fit in with the current standard in Florida about whether or not the religious practice, or lack of religious practice, is harmful to the child.


After the Wife in the Massachusetts case received the final judgment, in which she lost custody of the children to the Husband – in part of her sexual promiscuity and lack of religion – she appealed. The appellate court reversed.

The appellate court decided that the family law judge should not have considered the wife’s sexual history, as it was irrelevant to the division of care-taking responsibilities and the warmth of the child’s relationship with the parents.

The Massachusetts appellate court opinion is here. The Volokh Conspiracy article is here.


Is Your Marriage Valid?

Thinking about divorce? Concerned about alimony? Want to divide property? Many people who file for divorce may sadly discover they were not married legally, and can’t divorce! For one couple, the lack of a valid marriage led to a federal fraud case.

Florida Marriages

First off, common-law marriages have been abolished in Florida since 1968. In order to be validly married, you need a license. It may seem like a mere formality, but couples who want to be married must apply for a license.

There is a fee for getting a marriage license, and that fee is reduced for attending pre-marital counseling. The license is valid for 60 days. The officiant at the ceremony must certify that the marriage was solemnized.

The certified marriage license must be returned to the clerk or an issuing judge within 10 days, and the clerk or judge is required to keep a correct record of certified marriage licenses.

I have written about Florida marriages and divorces before. Florida courts have repeatedly warned people that they cannot depart from the requirement of the Florida Statutes to have a license, otherwise the courts would be re-creating common-law marriages.

Don’t Forget your License

In the fall of 2004, Jonathan Arnold and Leticia Villarreal exchanged marriage vows in California in a ceremony solemnized by both a priest and a rabbi. But they forgot to file their marriage license as required by law.

Shortly before their license expired, the county sent them a reminder letter that the license had not yet been filed, and that they needed to file it to complete the legal process. The couple forgot, and the license expired unfiled.

Their relationship deteriorated, they separately filed for divorce — she in California, he in Illinois. However, both divorce cases had to be terminated when they found out that they were never married.

By not filing their marriage license, they could not divorce, could not make claims for equitable distribution or community property, and could not ask a court for alimony. That can be a devastating result for many couples.

Making a Federal Case out of it

Arnold sued Villarreal in federal court in Illinois alleging various fraud claims and seeking compensatory damages totaling about $1 million. He also sought an additional $1 million in punitive damages. He claimed that she tricked him into believing the two were legally married to induce him to give her gifts, including the California condo.

The trial judge threw out the case as “frivolous” and he appealed to the 7th Circuit Court of Appeals. The appellate court found that Arnold has utterly failed to confront what two district judges recognized: that his fraud claims are not merely meritless but are frivolous.

The panel of judges concluded that he only filed his appeal simply to harass Villarreal.

As Judge Grady drily noted, the courts “are not a proper venue for petty score-settling.”

The opinion is available here.


Custody & Addiction

Custody and addiction do not mix, as the Pitts are finding out. Brad Pitt is opening up for the first time about his pending divorce from Angelina Jolie. The 53-year-old actor says he has quit drinking since then and is seeing a therapist.

The Pitt Divorce

Pitt tells GQ Style magazine that the recent chaos in his personal life was “self-inflicted.” Jolie filed for divorce from Pitt in September, days after it was reported that Pitt was abusive toward their 15-year-old son on a plane. Pitt was eventually cleared by authorities.

Custody & Substance Abuse

Alcohol is legal, and certain type of drugs – although illegal in Florida, but becoming legal in many states – can have a big impact in your custody or divorce trial, because it impacts how the court crafts a parenting plan, including the time-sharing with children.

Generally, for purposes of establishing or modifying any kind of parenting plan – which governs each parent’s relationship with his or her child and the relationship between each parent – courts look to the best interest of the child as the primary consideration.

However, what does the “best interest” test for child custody mean when discussing drug or alcohol abuse?

A determination of the best interests is made by evaluating a number of statutory factors affecting the welfare and interests of the child and the family, including, the parents’ ability to maintain a substance abuse free environment for the child.

An interesting area of law, and one in which I’ve litigated at the trial and appeal levels is how do you prove a parent is addicted to drugs or alcohol? The easy answer is testing, but testing is not always easy.

A compulsory drug testing is authorized only when the party submitting the request has good cause for the examination. Under the rule, if you request your spouse get tested, you have the burden of showing both the “in controversy” and “good cause” prongs have been satisfied before the court can order testing.

Addiction & Divorce

I’ve written about the intersection of addiction and custody before. Ironically, scientists at the University of Buffalo’s Research Institute on Addictions found that couples where only one spouse was a heavy drinker had a much higher divorce rate than other couples.

However, when both spouses were heavy drinkers, the divorce rate was the same as for couples who were not heavy drinkers at all. And that’s the surprising outcome:

50% of couples in which one partner was imbibing significantly more than their spouse ended up divorcing. However, that number dropped to 30% for couples who possessed similar drinking habits, regardless of if they were heavy or light drinkers.

What researchers have concluded is that heavy drinking spouses may be more tolerant of negative experiences related to alcohol due to their own drinking habits.

The Pitts

Make no mistake, heavy drinking can ruin your life. From a divorce perspective, it is interesting that divorce rates are worst for marriages in which one spouse drinks heavy and the other does not. The research may mean that differing behavior is to blame, not alcohol.

Brad Pitt says he and Jolie have agreed to “work together” on shared custody of their six children because it’s “very jarring for the kids, to suddenly have their family ripped apart.”

Pitt says he has to focus less on work and more on listening to his children.

Starting an Interstate Custody Case

Actor David Schwimmer, and his wife Zoe Buckman, announced they plan to take some time apart. David is American, Zoe is British, they relocated to California, and their daughter was born in New York. Where would they start an interstate custody case?

The Schwimmers

The Friends star, Schwimmer aged 50, is married to London-born artist, Buckman aged 31. They share one child together, a daughter named Cleo who is about 5.

The couple, who have been together for 10 years, said that during this time their family is still their main priority, and also stating their full attention will be on the happiness of their daughter.

In a statement released to Mirror Online on Wednesday, the Friends star confirmed that they will spend a period of time trying to “determine the future” of their relationship.

Interstate Custody

I’ve written about interstate custody cases before. Generally, when two parents reside in Florida, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.

But, which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to the state law of Florida, for example, in deciding an interstate case; not Federal law. As will be seen below, there are some conflicts with different state laws.

For various reasons, people travel more. As a result, family law has to take on an interstate, and international component. Accordingly, the conflicts between states can be amplified.

To help with confusion between between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.

With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.

To seek harmony in this area, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law.

The UCCJEA: Initial Actions

The most fundamental aspect of the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.

That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let’s say Florida for this example.

The ultimate determining factor in a Florida case then, is what is the “home state” of the child.

Florida has initial jurisdiction to hear the Schwimmer case, for example, if Florida is the Home State of their daughter Chloe on the date they start their case.

Alternatively, Florida can hear the case if Florida was the Home State of Chloe within 6-months before they filed their case, and Chloe is absent from Florida, but one of the parents still lives in Florida. This usually happens when a parent takes a child across state lines.

There is a good reason for the ‘home state’ approach under the UCCJEA, which has been adopted by most state laws. That is that Florida – and the other states – all have a strong public policy interest in protecting children in their states.

The Schwimmer’s divorce announcement went on to read:

“It is with great love, respect and friendship that we have decided to take some time apart while we determine the future of our relationship,” the said in a joint statement.

The U.K. Mirror article is here.