Month: October 2017

Occupation and Divorce

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If you marry a flight attendant are you more likely to divorce than if you marry a software developer? A recent report on occupation and divorce asks that very question.

The Study analyzed data from the 2015 American Community Survey, and, based on the number of people in a particular occupation who had married at least once, calculated the percentage of people who divorced.

Librarians have about a 28% chance of divorce, while phlebotomist have approximately a 46% chance.

Another un-surprising part of the study, people with less income are less likely to be married in the first place, and more likely to be divorced.

About 25% of “poor” adults aged 18 to 55 are currently married, compared to 39% of working-class adults, and 56% of middle- and upper-class adults (above the 50th percentile).

What the report found is that there is a divorce rate of at least 48.8% in the occupations “most likely” to experience divorce; the divorce rate is under 22% in the 10 occupations “least likely” to be subject to divorce.

Divorce in Florida

I’ve written about the correlation between occupation and divorce before. The numbers don’t paint the whole picture. If a person divorced and remarried by the time of the Census, they would be counted as married.

There are various reasons cited in the study for the fault behind the divorce rate. It could be that spouses in some jobs are just quicker to jump into the next marriage than others.

The data on occupation and divorce doesn’t reveal whether it’s the nature of the jobs that lead to divorce, or if people prone to unstable relationships are drawn to certain professions.

Florida abolished fault as grounds for filing a divorce. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.”

But is no fault divorce the reason the for a higher divorce rate among bartenders than optometrists? Some people think so, and want to return to the old “fault” system to promote families.

Occupation as Predictor of Divorce

So, what are the occupations with the highest divorce rates:

  • Telemarketers
  • Bartenders
  • Flight Attendants

The occupations among the lowest divorce rates:

  • Actuaries
  • Physical Therapists
  • Chemical Engineers

Keep in mind that correlation is not causation. No one knows which bartenders are likely to stay married or divorced, nor give advice on choosing a profession based on the divorce rate.

Nor can the report tell you about those who choose to become bartenders may be less likely to have stable marriages for reasons other than their choice of profession.

Rolling machine operators seem to be in the same category today more because of their declining employment prospects than because of increased temptations to stray.

One question that does not command enough attention is why the correlation between relationship stability and employment prospects is so strong.

Commitment to an unstable partner — someone who runs up the credit card bills, incurs large health care expenses, or needs to be bailed out of jail — can diminish family savings, a source of peril.

The report is available here.

 

Is “Prenup” a Four-Letter Word?

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Interesting view on prenuptial agreements: He traded his passion for stability, whereas I followed my passion at the expense of stability. Should I be entitled to his money?

The New York Times is running an article which deals heavily with the personal feelings involved in discussing, negotiating and signing a prenuptial agreement. The article has some great moments.

On the corner of my lawyer’s desk was a red button marked “No.” It was the type you might find in a display of gag gifts, next to the Whoopee cushions and boxing nun action figures.

I wanted to get married then, but Matt held back. Marriage scared him more than having a child together, and a big part of his fear was financial. He said he wanted us to sign a prenup.

I cringed but ultimately agreed, believing it was the only way forward.

He said he would pay all of the lawyers’ fees and make it as easy as possible. It sounded simple. The reality, however — especially having to confess every detail of my sketchy financial history to this lawyer — was nothing short of awful.

Florida Prenups

They may sound “awful” to some, but the reality is different. Prenuptial agreements are a subject I’ve written about before. Prenuptial agreements can be extremely important if you are thinking of marrying again, and they are not just for the ultra-rich.

You can limit what’s in a prenup. Some prenups can simply state what assets each party has brought into the marriage, and what assets each party will take away if the marriage ends.

Or, if there is a disparity in incomes, as in the New York Times article, you can add to the prenup how much the lower-income spouse will receive. Also, if you have children from previous marriages, you can also provide some protection for an inheritance.

Here are a few reasons why:

Keeps Your Non-Marital Property Non-Marital.

The property you brought into the marriage is yours. But over time it is common for people to start mixing things up.

Inheritance funds get deposited into joint accounts, properties get transferred into joint names…and all for good reason. Unfortunately, tracing commingled property is expensive, and hard to prove. But, if you put it in writing at the beginning, which is the main idea for a prenup, you can avoid this task and save some money down the road.

You Can Change the Law.

Right now in Florida, there has been an ongoing debate about alimony. When you go to court, a judge has to follow state law regarding alimony.

However, through a prenuptial 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.

Avoid Expensive Divorces.

Let’s face it, divorce can be expensive, and the cases don’t end quickly. A prenuptial agreement can simplify things by resolving issues ahead of time, way before the divorce is even filed.

Once you have entered a prenup spelling out what happens in the event of a divorce, the case becomes a lot more cheaper, simpler and faster to resolve.

Protects Your Children’s Inheritance.

A prenuptial agreement, or “prenup” for short, protect property from falling into the hands of the new spouse, often seen by children from earlier marriages as a “gold digger.”

An agreement helps assure your children that any inheritance is protected, and they don’t need to resent the new spouse.

It is important to be aware of all of the consequences of marriage, and do what planning you can to avoid complications and costs in advance by entering into a prenup.

Negotiating the Prenup

Back at the Times article on the prenup: “on paper, I had approximately $3,500 in savings, no retirement account and a four-year-old Toyota Yaris with a Blue Book value of $8,000, on which I still owed $4,000.”

Humbled cannot begin to describe how I felt. More like demoralized, demolished and desperate.

My lawyer asked if I had read the document carefully and understood the terms. I numbly nodded, but I was lying. I hadn’t read it. I didn’t understand the terms.

Money, Matt often said, was what people fought about most and what broke up relationships and marriages. True to form, we had been fighting about money since we started dating, our arguments complicated by the vastly different ways we had chosen to live our lives.

The lawyer looked up, winked and pushed the “No” button, filling his office with mechanized cries: “No way!” “I don’t think so!” “Nope!”

Finally, for several thousand more dollars in fees, my lawyer negotiated with Matt’s lawyer to change language in the prenup that Matt had never asked to be included so that when we sold the house we didn’t yet own, I would get my fair share.

Two years later, I don’t even know where we put our prenuptial agreement, and I hope I never need to know.

The New York Times article is here.

 

Inns of Court Award

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It is with tremendous pride that I get to announce our Inn of Court, the First Family Law American Inn of Court, was awarded Silver Level Status in the American Inns of Court Achieving Excellence Program for the 2016-2017 Inn year.

The First Family Law American Inn of Court in Miami is a group consisting of lawyers, judges, magistrates, and judicial officers dedicated to professionalism, ethics, civility and excellence in the area of divorce, family law, child custody and related matters.

The award from the national organization was due in large part to the incredible work and leadership efforts of our Board of Directors, including: the Hon. Sandy Karlan, Bette Ellen Quiat, Elizabeth Baker, Cecilia Armenteros, Patricia Young, Daniel Silver and myself as president.

In upcoming Inns news, our Inns will once again be sponsoring the Town Hall meeting involving family law with the Hon. Scott Bernstein, Administrative Judge of the Family Division.

Sponsorship of Town Hall meetings helps our Inns of Court fulfill its mission to inspire the legal community, and to advance the rule of law by achieving the highest level of professionalism through example, education and mentoring.

 

Women Cheating and Divorce

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Since 1990, the rate of married women who report they’ve been cheating on their spouses has increased by 40%, while the rate among men has remained the same. What is the impact of adultery and divorce?

The CNN Report

According to an article in CNN, more women than ever are cheating. What exactly is happening inside marriages to account for the closing gap between men and women and adultery?

According to the article, from a distance, the couples seemed happy enough, or at least content to be doing the family thing. They had cute kids, mortgages, busy social lives, matching sets of dishes.

On the surface, their husbands were reasonable, the marriages modern and equitable. If these women friends were angry unfulfilled or resentful, they didn’t show it.

Then one day, one of them confided in me she’d been having two overlapping affairs over the course of five years.

Almost before I’d finished processing this, another friend told me she was 100 percent faithful to her husband, except when she was out of town for work each month.

Often, they loved their husbands, but felt in some fundamental way that their needs (sexual, emotional, psychological) were not being met inside the marriage. Some even wondered if their husbands knew about their infidelity, choosing to look away.

Adultery and Divorce

I’ve written about the cheating before. Adultery can be the cause of a divorce, but can it impact the outcome? Since Florida became a no-fault state, the fact that, “she (or he) is sleeping with a co-worker” doesn’t hold much traction in court any more.

Anyone can file for divorce without proving any reason for it other than the marriage is “irretrievably broken.” Or is it? When is adultery relevant in divorce?

However, there is still a statutory basis for infidelity to be an issue in your divorce proceedings, but not in the way most people think. Here’s a quick review of when adultery can potentially creep into your divorce:

Parenting Plans/Custody

Chapter 61 discusses the “the moral fitness of the parents” as one of the factors the court considers in determining the best interests of a child.

So, if one parent can prove that the other parent’s adultery had, or is reasonably likely to have, an adverse impact on the child, the judge can consider adultery in evaluating what’s in the best interest of the child.

Equitable Distribution

Adultery may impact the division of property. Florida is an equitable distribution state, and it is presumed that property should be evenly divided.

This presumption may be overcome by proof that one spouse intentionally wasted marital assets.

This waste is sometimes known as dissipation. Paying for expensive jewelry, foreign trips, rent, car payments, and dinners for girlfriends and boyfriends is considered wasting marital assets. The court has the power to reduce an adulterer’s equitable distribution to credit the marital estate for waste.

Alimony

Florida law specifically provides that a court may consider the adultery of either spouse in determining the amount of alimony, if any, to be awarded.

However, courts have struggled to reconcile the “fault” of adultery with the concept of “no fault” divorce. The result is a mix of opinions depending on the judges.

Back to the Study

These women from the CNN article were turning to adultery not as a way to explode a marriage, but as a way to stay in it. The women seemed in control of their own transgressions. There seemed to be something new about this approach.

Twenty or thirty years ago they might have opted for divorce, because surely there was another man out there who could do better in this role, who could satisfy them completely.

But a lot of these women are children of divorce. They lived through the difficulties divorce can create.

The CNN article is here.

 

Rising Divorce Rates

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The accepted wisdom is that divorce rates have dropped since the 1980s, and divorce rates have been declining since. A new report out of Great Britain is showing just the opposite, that divorce rates are increasing.

A recent article from the BBC in London reports that there were 106,959 divorces of opposite-sex couples in 2016 – an increase of 5.8% from 2015. It was the biggest year-on-year rise in divorce rates since 1985, when there was a jump of 10.9%.

Of 112 divorces of same-sex couples in 2016, 78% involved female couples.

Charity Relate said rising levels of household debt and stagnating wages could be putting a strain on marriages. For those in opposite-sex marriages, divorce rates were highest for women in their 30s and men aged between 45 and 49.

Overall, there were 8.9 divorces per 1,000 married men and women.

Florida and Divorce Rates

I’ve written about divorce rates in the United States before. Part of the problem with counting divorces in the U.S., is that collecting divorce statistics in the United States is not consistent.

Some counties in some states keep excellent records of finalized divorce cases, an important statistic in measuring divorce rates. Miami-Dade County, for instance has excellent records of filing online. However, other counties in Florida and outside of Florida may not.

Additionally, different American states, and the federal Census Bureau, have had a rocky history of collecting the data from across the country on divorce rates. In fact, the federal government has stopped providing financial support for detailed state collection.

Some states, especially California, have stopped reporting divorce rates entirely.

In the U.S., the increase in divorce rates is being blamed on the Baby Boomers, those born between 1945 and 1954. In the 1970s, Baby Boomers, who were then in their twenties, were equally likely to divorce.

But by 1990, couples in their twenties were more stable, but the Baby Boomers, who were entering their forties, continued to divorce “at unprecedented rates.” Since then, the biggest rise in divorce has the “massive increase” in divorce among women in their fifties.

Back in the UK

A spokeswoman in the Britain said: “Although the number of divorces of opposite-sex couples in England and Wales increased by 5.8% in 2016 compared with 2015, the number remains 30% lower than the most recent peak in 2003; divorce rates for men and women have seen similar changes.”

The most common reason for the increase in divorce rates was “unreasonable behaviour”, with 51% of women and 36% of men citing it in their divorce petitions. Unreasonable behaviour can include having a sexual relationship with someone else.

Overall, women initiated proceedings in 61% of opposite-sex divorces.

Commenting on divorce rates, Chris Sherwood, chief executive of the relationship support charity Relate, said: “It is unclear as to why there was a slight increase in divorces in 2016 and as to whether this rise will continue or not.

“We know that money worries are one of the top strains on relationships and it may be that rising levels of household debt and stagnating pay growth could be contributing factors.”

“Divorce is not something that people tend to take lightly but our research suggests that many people could have saved their marriage and avoided divorce with the right support.”

The BBC report is available here.

 

Family Law Inns of Court

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I was honored to be sworn in as a member of the Board of Directors of the First Family Law American Inns of Court in Miami last night by Judge David Young and Judge Valerie Manno Schurr, Associate Administrative Judge of the Dade County Circuit Family Division.

The family division of the Dade County court system is one of the largest in the country, and handles thousands of divorces, separations, paternity cases, child custody cases, relocation cases, and family law cases a year.

The First Family Law American Inns of Court in Miami is a group consisting of lawyers, judges, magistrates, and judicial officers dedicated to professionalism, ethics, civility and excellence in the area of family law. I am currently serving as the immediate Past President of our Inns of Court this term.

Our Inns will once again be sponsoring the Town Hall meeting involving family law with the Hon. Scott Bernstein, Administrative Judge of the Family Division. Sponsorship of Town Hall meetings helps our Inns of Court fulfill its mission to inspire the legal community, and to advance the rule of law by achieving the highest level of professionalism through example, education and mentoring.

 

Vaccinations and Custody

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In Michigan, a judge reduced a mother’s child custody rights after she refused to vaccinate her son. What is the relationship between custody and vaccinations?

Michigan’s Vaccination Case

In Michigan, Oakland County Judge Karen McDonald ruled Wednesday that Rebecca Bredow will no longer have primary custody of the boy but will have joint custody with her ex-husband, James Horne.

Horne wanted to vaccinate the boy, and Bredow agreed to do so last November. But she didn’t. She says vaccinations go against her religious beliefs.

Custody and Vaccinations

Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends.

In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective

Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

Florida Vaccinations

I’ve written about the decision to vaccinate and custody in Florida before.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations.

There are at least two cases in Florida dealing with the decision to vaccinate and custody, and they conflict!

In one case, a Florida court heard the conflicting positions on immunization and decided that it would be in the child’s best interest to allow the anti-vaccination Mother to make the ultimate decision regarding the child’s immunization.

Ten years later, a different Florida court heard conflicting testimony, and decided it was in the child’s best interest to award the pro-vaccination Father ultimate responsibility to make decisions regarding the minor child’s vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida.

Vaccination and Jail

Back in Michigan, Judge McDonald found Bredow in contempt of court last week and ordered her jailed. She also granted temporary custody to Horne and ordered the boy to be vaccinated. He received four immunizations on Monday.

Bredow told reporters Wednesday she was “in shock” by the court’s decision. Her attorney plans to appeal.

Florida’s Expert Witness Crucible

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Few people know that Florida passed a new law about expert witnesses a few years ago, which impacts divorce law. The Florida Supreme Court decided not to adopt the rule in its rule making process, waiting for a case in controversy instead. The case has arrived.

Florida’s Expert Witness Controversy

The Florida rule for expert witnesses was amended in 2013. There were some interesting things about the 2013 rule.

  1. The amendment was made by the Florida Legislature, not the Florida Supreme Court. That’s unusual because rule making authority is the court’s job.
  2. The way the Rule came into being by the Legislature created a constitutional challenge to the rule down the road.
  3. The new rule forced Florida courts to abandon the 70-year old Frye test for admitting expert testimony.
  4. The new rule required Florida courts to apply the Daubert standard, which is the standard applied in federal courts, the U.S. Supreme Court, and a majority of states.
  5. The Florida Supreme Court has said it doesn’t favor the new rule.

I have written extensively about Florida’s problem with expert witnesses before, including the constitutional issues. The constitutional problems dealt with the way the law was passed.

Generally, legislation which encroaches on the Supreme Court’s power to regulate courtroom practice and procedure is unconstitutional, but the Legislature can enact substantive law.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.”

Given that the Evidence Code contains both substantive and procedural provisions, there was an open question whether the Legislature violated the separation of powers doctrine.

The Florida Supreme Court Case

As the Florida Bar News reports, when the Florida Supreme Court declined to adopt the legislative change to the expert witness rule, the panel said they wanted to address the issue in a case in conflict.

The court now has that case.

The Delisle case is a mesothelioma case in which the plaintiff argued he contracted the disease from smoking Kent cigarettes when they used asbestos in the filters, and from handling gaskets that contained asbestos when he worked at a paper mill.

The trial judge and the Fourth District Court of Appeal held – even though the Supreme Court had not passed on the Legislature’s amendment of the evidence code – the legislature’s expert witness rule must be presumed valid, meaning the Daubert standard should be used for expert witnesses.

The appellate court decided that under Daubert, the two experts should not have testified. The appellate opinion overturned the jury verdict and award Delisle had won in the trial court.

The Florida Supreme Court has not set a date for oral arguments.

The Florida Bar News article is here.

 

Spanking and Child Custody

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‘Spare the rod spoil the child’ sayeth Proverbs. Canada is still debating a bill in their parliament to outlaw spanking. Can you spank without fear of losing child custody or it impacting time-sharing in Florida?

Spanking Worldwide

A bill to criminalize spanking returned to the floor of the Canadian Senate in late February of this year, and this week is currently on its second reading. If S-206 passes, it will go to the House of Commons, where the Liberal majority has pledged its support.

According to the U.N., Slovenia is the 51st state worldwide to fully prohibit all corporal punishment of children, the 30th Council of Europe member state, and the 21st European Union state to do so.

The bill’s original sponsor believes that spanking harms children’s psyches. But those who believe disciplining children with spanking should be an option, are worried that their actions could lead to criminal charges against parents and child seizures by the government.

Spanking in Florida

In Florida you’re not supposed to hit your children. Florida has strong laws for the protection against domestic violence. Domestic violence includes any assault, battery or any other offense resulting in physical injury of a family member by another family member.

However, parents have to discipline their children, and as the good book says, he who loves his child is careful to discipline him. I’ve written about spanking and custody before. In Florida, parents have a right to discipline their child in a reasonable manner.

A parent’s right to administer reasonable corporal punishment to discipline a child is not a crime when it does not result in harm to the child.

Harm, by the way, does not mean just bruises or welts for instance. Harm also means that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if you don’t physically harm a child, your actions could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. Your run-of-the-mill spanking may be protected from charges of child abuse, but punching your child, pushing him onto the floor and kicking him is not.

So, is it open season on kids? Hardly. Guardians and judges are analyzing you, and you don’t want to start off your custody case explaining why you beat your kids. The excuse: “this fellow does what the bible says” will not score a lot of points in a courtroom.

Besides, some studies suggest that time-outs work just as well as spanking for immediate punishment, and that for long-term effectiveness, spanking decreases compliance. Worse, spanking may increase child aggression.

While there are some limited privileges for discipline, there are major risks to your custody case, your criminal defense case, and most importantly, to your children.

Back in Canada

Some in Canada argue that the bill lumps child discipline and child abuse into the same category. Were the children of spanking parents more violent because of spanking, or did their parents spank more than others because their children were more violent?

The Lifesitenews article is here.

 

Voiding a Marital Settlement Agreement

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Empire star, Terrence Howard, claimed he was forced into signing his marital settlement agreement, and got a trial judge to throw it out. His wife, Michelle Ghent, appealed and the appeals court reversed! When can you get out of a marital settlement agreement?

Divorce Empire

The ruling by the California appeals court, which reinstated the marital settlement agreement, could allow Michelle Ghent to claim some of Howard’s lucrative earnings from the hit Fox television series “Empire.”

The marital settlement agreement called for Howard to pay Ghent monthly support of $5,800, and as much as $4 million a year, depending on his earnings, including potential income from his role in the Fox series “Empire”.

Terrence claimed that Michelle blackmailed him, and threatened to publicly release private recordings of a sensitive, intimate and sexual nature that would be embarrassing and could damage his career.

As a result, Terrence claims he agreed, under duress, to a marital settlement agreement that obligated him to pay spousal support far in excess of what he would otherwise have been required to pay based on the parties’ year–long marriage.

The trial court found that Terrence presented credible evidence that Terrence felt frightened and forced into signing the marital settlement agreement, which he would not have signed but for Michelle’s threatening and coercive behavior.

Michelle appealed.

Florida Marital Settlement Agreements

I’ve written about marital settlement agreements before. You can set aside an agreement in Florida in a similar way as in the Howard case, by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

There is another ground to vacate a marital settlement agreement in Florida, and it has a few elements. First, you have to show that the agreement makes unfair or unreasonable provision, given the circumstances of the parties.

Once you have shown the agreement is unreasonable, a presumption arises that there was either concealment by the defending spouse or a presumed lack of knowledge of the finances at the time the agreement was reached.

The burden then shifts to the spouse defending the agreement, who may rebut these presumptions.

The Empire Strikes Back

The appellate court in California deferred to the trial judge’s factual findings, but nevertheless conclude that the facts did not prove duress as a matter of law. The three-justice panel of the 2nd District Court of Appeal in Los Angeles ruled unanimously to reinstate the judgment.

The court found three reasons for reversing the trial judge. First, and importantly, Terrence failed to show that Michelle’s threats and coercion utterly destroyed his free will.

Second, Terrence and Michelle had a tumultuous relationship, which included such significant physical abuse by Terrence that Michelle had to obtain multiple protective orders against him.

Third, too much time elapsed between the threat and the contract’s signing. The threats made by Michelle were in September 2011, but he executed the final settlement agreement in September 2012, an agreement virtually identical to one he had signed four months before.

The California 2nd DCA opinion is available here.