Month: January 2021

Mediator Announcement

Posted by Ron Kauffman on

Ronald H. Kauffman PA takes pleasure in announcing it is offering family mediation services. Ronald H. Kauffman has successfully completed extensive mediator training through the Florida Supreme Court mediation training program, and is honored to offer his unique perspective to help parties resolve their divorce, child custody, and other family law case.

Appointments are now being scheduled.

Family Law Mediations

In family law, mediation has proved to be an extremely effective way for people who are having a dispute to resolve their issues and concerns and make decisions about their disputes with the help of a Supreme Court certified family mediator.

A mediator doesn’t decide who is right or wrong, or even tell you how to resolve your dispute. In mediation, a mediator helps find solutions that make sense to you and the other parent or spouse and help to resolve some or all of your concerns.

Mediation allows divorcing spouses and separated parents of children to avoid much of the court system by scheduling an appointment with a family law mediator, who is certified by the Supreme Court, and trained to help resolve any and all family law issues.

Typically, questions about child custody, property division, child support, and alimony, among others can be resolved through family mediation. A mediator works with the parents and spouses to reach an agreement which can be filed with the court and enforced if necessary.

In many cases, courts order people into mediation because judges have realized that mediation is a very effective way to settle some or all of the issues in a family law case. Florida law requires mediators to remain neutral at all times in the process.

Mediation is generally considered a less expensive and less time-consuming way to resolve a family law or divorce case than litigation because the goal is to arrive at a agreement in which the parties have the final voice on their future instead of a judge.

Virtual Mediation During the Pandemic

With the coronavirus pandemic, mediations have gone virtual. Before starting your virtual mediation, perform a test run of the zoom app, teams, gotomeeting, google meet, or other apps you have, to test for connectivity issues for your virtual mediation.

One of the good things about virtual mediations is the lack of having to travel to mediation, park your car, and find restaurants. Because of that, there can be a substantial cost savings associated with virtual mediations.

Despite the coronavirus, courts and law offices are open virtually, and cases are being settled at mediation every day.

Divorce Rates in Italy

Posted by Ron Kauffman on

Divorce rates in Italy appear to be skyrocketing, along with the divorce rates in the rest of the world, fueled by the coronavirus, the quarantine, financial stress and many other factors. The news out of Italy is consistent with what is happening in Florida too, as more people begin filing for divorce.

Divorce Rates Italy

Arrivederci

According to Italy’s National Divorce Association (l’Associazione nazionale divorzisti italiani) the divorce rate increased by 60% in 2020. The requests for separation have increased a lot, mainly due to forced coexistence,” the association’s president, family lawyer Matteo Santini, told Sky TG24.

In 40 percent of cases, the divorces were due to the fact that lockdown made it more difficult to hide infidelity and “double lives”.

Another 30 percent of separations were due to domestic violence, and the remaining 30 percent were listed as being down to other causes.

“It’s one thing to share weekends and evenings but another to share the whole day, with all the problems related to the health emergency: health stress due to illness, lack of work, living with children with difficulties related to distance learning. This causes an emotional explosion that leads to the desire for separation and the request for separation.

Florida Divorce

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. Whether or not it is intimacy or communication, you do not need to list a reason for a divorce other than an irretrievable break in the marriage.

Divorce Law Change

As with many sets of statistics in Italy, there was a marked difference between the north and south of the country. There were more than twice as many separations recorded in the north in 2020, with 450 per thousand couples in the north, and 200 in southern Italy.

Italy, where more than 80 percent of people describe themselves as Catholic, has long had one of Europe’s lowest divorce rates, with only Ireland, Slovenia, and Malta reporting lower figures.

Divorce numbers in the country however surged in 2015 after the enactment of legislation making it easier and quicker to end failed marriages.

The 2015, “fast divorce law”, which the lower house approved with an overwhelming vote of 398 for and 28 against, cuts the time Italians have to wait for a divorce to six months in uncontested cases and a year in contested ones.

Several Italian studies have confirmed that the pandemic and subsequent economic crisis is having a major impact on families, with national statistics agency Istat finding that Italy’s already record-low birth rate was plunging even further due to “the climate of fear and uncertainty and the growing difficulties linked to employment and income generated by recent events.”

The Local Italian article is here.

COVID-19 Vaccine and Child Custody Modification

Posted by Ron Kauffman on

A new case on the COVID-19 vaccine and child custody modification in Colorado asks what happens after the divorce when a parent has a change of heart about vaccinating the children, while the other maintains a religious-based objection to vaccination?

COVID CUSTODY

Rocky Mountain Parenting

In a post-divorce dispute, a court had to address the burden of proof to apply when considering the request of a father to modify the medical decision-making responsibility clause of their parenting plan to allow him to vaccinate the children, over the objection of the mother.

The parties’ parenting plan provided for joint medical decision-making authority and that “[a]bsent joint mutual agreement or court order, the children will not be vaccinated.”

The father had a change of heart about the children remaining unvaccinated. He described a “wake-up moment” he had when traveling for business to Seattle while the city was experiencing a measles outbreak, and then being afraid to be around the children after he got home out of fear of unknowingly exposing them.

Mother opposed vaccinating the children, in part, because it conflicted with her religious beliefs and also argued that vaccines pose a risk of side effects for the children. Specifically, because mother has an autoimmune disease and the children all had midline defects at birth, she asserted that vaccinations for the children are contraindicated.

The parents agreed a parenting coordinator/decision-maker (PCDM) could decide the issue. However, the PCDM declined to render a decision, stating that the issue was outside of her expertise and likened rendering a decision on it to “practicing medicine without a license.”

While the trial court rejected mother’s medical-based objections, the judge found that vaccination would interfere with mother’s “right to exercise religion freely,” and therefore imposed an “additional burden” on father “to prove substantial harm to the children” if they remained unvaccinated.

The court ruled that father had not met this additional burden and denied his motion to modify medical decision-making responsibility.

Father appealed.

Florida Vaccinations and Child Custody

I have written about the relationship between vaccinations and child custody in Florida before.  In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. 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.

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.

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

A Double Black Diamond Issue

The appellate court reversed.

Generally, Colorado has a substantial change in circumstances test for modifications, so that a court cannot modify a parenting plan unless it finds that a change occurred in the circumstances of the child or of a party and that modification is necessary to serve the child’s best interests.

In Colorado, a court has to keep the decision-making responsibility allocation from the prior decree unless doing so “would endanger the child’s physical health” and the harm likely to be caused by a change in decision-making responsibility is outweighed by the advantage to the child.

In this case, the court found that the mother’s free exercise rights are not implicated by a court’s allocation of decision-making responsibility between parents because when allocating decision-making responsibility between parents, the court is merely expanding one parent’s fundamental right at the expense of the other parent’s similar right.

The trial court erred by imposing a heightened burden on father to show substantial harm — a burden only relevant to show a compelling state interest under a strict scrutiny analysis — when considering his request to modify the parenting plan.

Once the court found the failure to vaccinate endangers the children’s physical health, and that the risks of vaccination are “extremely low” as compared to its benefits of “preventing severe illness, permanent severe damage, and death,” it should have proceeded to the second prong of the inquiry, namely, whether the harm likely to be caused by changing decision-making responsibility outweighed the benefit to the child.

The opinion is here.

 

Child Support and Losing Your Guns

Posted by Ron Kauffman on

Few people know that failing to pay child support can mean losing your guns. One father went before the Wisconsin Supreme Court to argue that his lifetime ban on owning a firearm was unconstitutional because his conviction for failure to pay child support didn’t justify such a ban.

Child support and guns

Brewing a Constitutional Challenge

In 2003, a child’s Father, Leevan Roundtree, failed to pay his child support for 120 days almost 13-years ago. As a result, he was convicted of multiple felony counts for failure to support a child. He wasn’t sent to prison, he made full restitution by paying what he owed and never reoffended. He’s never been convicted of a violent crime and there was no evidence he posed a danger to society.

One day, Milwaukee police executing a search warrant at Roundtree’s home found a revolver and ammunition under his mattress. A record check of the recovered gun revealed that it had been stolen in Texas.

Roundtree claimed that “he purchased the firearm from a kid on the street about a year ago, but that he did not know it was stolen.” The State charged Roundtree with a single count of possession of a firearm by a felon. He pleaded guilty and was subsequently sentenced to 18 months of initial confinement and 18 months of extended supervision.

As a consequence of his felony convictions, Roundtree was, and continues to be, permanently prohibited from possessing a firearm. Roundtree moved for relief, arguing that the felon-in-possession statute, which prohibits felons from owning a firearm, was unconstitutional as applied to him.

Florida Child Support

I’ve written about child support issues in Florida before. Calculating child support in Florida used to be entirely at the judge’s discretion, based on a parent’s ability to pay, and the child’s needs.

Florida established child support guidelines which follows the income shares model. The guidelines provide the amount you pay can be adjusted upward or downward after considering relevant factors.

Additionally, the statute authorizes deviations by more than 5 percent, pursuant to a list of 10 enumerated factors, and one equitable factor. Finally, the statue mandates use of a gross-up calculation of support for substantial time-sharing.

In Florida, parents are allowed a gross-up calculation because when exercising substantial time-sharing, they incur their own child care expenses, and may duplicate payment for items already included in their child support.

High income parents have special problems in determining child support. Courts are reluctant to award child support that is deemed “excessive,” but the courts are bound by child support guidelines which set a presumptive amount of support.

Like Wisconsin, Florida makes it unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been convicted of a felony in the courts of this state

Badgering the Wisconsin Supreme Court

In determining the constitutionality of the felony possession statute, the Wisconsin Supreme Court applied an intermediate scrutiny test, reasoning:

“felon dispossession statutes are ‘presumptively lawful,’ and upholds the flat ban on gun possession by all felons on the grounds that someone with a felony conviction on his record is more likely than a non-felon to engage in illegal and violent gun use.”

So, even if Roundtree didn’t exhibit signs of violence, the Wisconsin Supreme Court felt it was reasonable to keep guns out of the hands of people who have shown a willingness to commit a felony. Also, other courts have observed that nonviolent offenders have a higher recidivism rate and a large percentage of the crimes nonviolent recidivists later commit are violent.

But there were also dissenting opinions. One justice reasoned that the ban on firearm possession by non-dangerous felons were categorically invalid as applied to persons entitled to Second Amendment protection.

Another justice complained that the “correlation-centric reasoning” — that there is a correlation between past non-violent crime of any sort and future violent crime — does not meet the mark.

One dissenter asked:

What about the correlation between people who previously declared bankruptcy? Are they more likely to commit violent crime in the future? How about people who don’t have a bachelor’s degree by the time they are 25? How about those who were born out of wedlock, or who fall below the poverty line?

The Reason article is here.

The Covid-19 Vaccine and Child Custody

Posted by Ron Kauffman on

The Covid-19 vaccine is here, but big child custody questions are presenting themselves when parents disagree about vaccinating their children. As countries around the world start administering the vaccinations against COVID-19 on a massive scale, many parents are wondering what happens if one of the parents objects to vaccinating their child.

covid vaccine child custody

Point of Contention

In a recent English case, the parents objected to their child receiving various vaccinations which are routinely administered to babies. The father was driven by the fundamental belief that neither the court nor the State has any jurisdiction to take decisions in relation to his children.

The judge found:

It is self-evident that for a healthy, young infant, the risks contingent upon not vaccinating him significantly outweigh the benefits. The conditions identified include potential for catastrophic consequences which, as illustrated, involve paralysis, seizure, learning disabilities, visual loss and cancer.

The Court then ruled that the vaccinations should not be characterized as “medical treatment” but as “a facet of public preventative healthcare intending to protect both individual children and society more generally.”

Florida COVID-19 Vaccinations and Child Custody

I wrote an article on the relationship between vaccinations and child custody in Florida before.  In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. 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.

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.

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

Parting Shots

In re B, was another case in Britain which involved another English vaccination case, only this time it was a private matter between parents, as opposed to the state requiring a vaccination.

The case concerned a 5-year-old girl, B, whose parents were separated and unable to agree as to her immunization. Before the parents separated, B had received all the recommended vaccinations. Under the recommendations of Public Health England, she was now due (or overdue) 3 further vaccinations.

The father, though lacking relevant medical expertise, had carried out extensive research and exhibited over 300 pages of material in support of his position. The judge extrapolated the father’s 7 key points and Dr Elliman addressed the medical issues. The court dismissed the father’s proposition that where parents disagree on a child being vaccinated, then the status quo should be preserved as wrong in law.

Dr Elliman acknowledged that no vaccination is 100% risk free, but that vaccination has greatly reduced the burden of infectious disease.

The judge noted the paramountcy principle and the principle that delay in determining the matter may be prejudicial to B’s welfare. In respect to the no order principle, the judge recorded that the court should decide the matter as the parents’ views were polarized. With regard to Article 8 of the European Convention, His Honor Judge Bellamy stated that any order made by the court must be proportionate and in B’s best welfare interests.

Having considered the case law, the judge then determined that Dr Elliman’s opinions were ‘mainstream’ whilst the father’s views were biased and unreliable. In conclusion, the judge granted the specific issue order and made a declaration that it was in B’s best welfare interests to receive the vaccinations.

The article on the British cases by Sarah Williams is here.

 

Enforcing Your Multi-Million Dollar Property Division Award

Posted by Ron Kauffman on

Enforcing your property division award is world news when it arises in the divorce of Russian billionaire Farkhad Akhmedov and Tatiana Akhmedova taking place in a London courtroom. In a twist, Ms. Akhmedova is now suing her son for nearly $100 million in cash and assets to collect.

Property Division

From Russia with Love

Suing her son is a part of Ms. Akhmedova’s ongoing efforts to claim a portion of a $615 million divorce judgment, believed to be the largest in Britain’s history after a trial in 2016.

Her ex-husband has refused to hand over a single ruble and has kept his money, and himself, far away from Britain and the reach of its courts.

A new approach, enforce the award against her son, Temur, the older of the couple’s two sons, who is a U.K. resident who has plenty to seize.

His father gave his son a three-bedroom apartment next to Hyde Park worth about $40 million, when he was still in college, he is also the “registered keeper” of a $460,000 Rolls-Royce S.U.V., and is being sued under a theory that he is helping hide millions into trusts and tax havens around the world to frustrate his mother’s equitable distribution.

Florida Property Division

I’ve written about this case and the subject of 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 Akhmedov divorce, the court has the authority.

However, the court must base an 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.

It has been a long-standing rule in Florida that an unequal distribution of marital assets may be justified to compensate for one spouse’s “intentional dissipation, waste, depletion or destruction of marital assets after filing of the petition….”

Moscow on Thames

Since the collapse of the Soviet Union, London has been the place where rich and safety-minded Russians have parked their families, and at least some of their money.

The sons and daughters of these billionaires are now grown up, and Temur is part of a generation known for driving flashy cars and running up big tabs at posh restaurants in Knightsbridge and Mayfair.

In addition to mansions, a private jet, helicopters and masterpieces by artists like Rothko and Warhol, he bought a $500 million yacht, the Luna, from his fellow oligarch Roman Abramovich.

“It is 380 feet of floating luxury, with nine decks, space for 18 guests, a crew of 50 and — just in case — a missile detection system and bombproof doors.”

Allegations of infidelity made by both husband and wife led to divorce, but Mr. Akhmedov refused to even send a lawyer to the 2016 proceedings, arguing that the couple was already divorced. A court in Moscow dissolved the marriage in 2000, he said.

Temur is described in court as his father’s “lieutenant,” but he says he was more of a secretary than a second in command. When he lived and traveled with his father, he typed dictated messages, which he sent to Mr. Akhmedov’s team of advisers, bankers and lawyers. These were often instructions, adamant and profane, on how to evade Ms. Akhmedova and her financial backers.

One of Temur’s texts included a message about a plan to transfer about $100 million worth of art in Mr. Akhmedov’s collection from a storage facility in Liechtenstein to the Luna. The point of moving the works, Temur testified, was to make them readily viewable by his father.

“I don’t want to sound boasting or anything,” Temur replied, “but on a $500 million boat, $100 million paintings isn’t really something crazy. It’s nice to look at the paintings.”

Ms. Akhmedova testified first, and her tone reflected more sorrow than enmity. She’d helped her son decorate that deluxe apartment given to him by his father. But at some point she started to believe that Temur was part of an effort to thwart her pursuit of her divorce settlement.

Temur’s own time on the stand was far more tumultuous, once he actually showed up. On opening day, Dec. 2, he was in Moscow and said in open court, via video call, that he’d been advised that his mother’s lawyers might try to win a restraining order that could strip him of his passport.

Temur denounced his mother as opportunistic and greedy. She filed for divorce, he said, right after her now ex-husband sold Northgas. He said that she’d declined an out-of-court settlement of $100 million offered by his father, a sum the younger Mr. Akhmedov considered exceptionally generous given his mother’s history of infidelity.

The New York Times article is here.

 

National Divorce Day

Posted by Ron Kauffman on

National Divorce Day arrives at every new year, and after the stress of 2020, this year is not likely to be different. But is there a way to avoid the surge in new year divorce filings?

National Divorce Day

New Year, New You

National Divorce Day is the first working Monday of the New Year when legal firms see a surge in consultation requests from people seeking a divorce and separation.

Lawyers typically see the number of inquiries double around this time and then in late January it tails off. Over the last two or three years people even inquire a little bit earlier between Christmas and New Year.

Legal statistics have shown that marital dissolution filings can jump as much as 27-30 percent during the first month of the year. In 2019, searches for divorce peaked between January 6-12 according to Google. This year, that Monday is January 4.

It’s thought the surge is due to a breakdown in relationships nearing the festive period, with couples halting divorce proceedings until after Christmas and New Year so as not to spoil the fun.

Relationships can also break down in January because of New Year’s resolutions or stress over the holiday period. Clients can wait until after the holiday season to start divorce proceedings, and these folks have been contemplating divorce for months, if not years.

Many of them have actually held out until the holidays were over to leave so as to spare their children from connecting Hanukkah, Christmas and New Years divorce.

Florida Divorce

I’ve written about the rise in new years divorce filings, and many times the holiday season can highlight problems. What should you do? Whatever the reason for your problems, there are a few things that anyone looking into divorce for the first time needs to know to help them through the process.

Prioritize

Line up your priorities for life after the divorce. Is it finding a home? Is it retiring? Getting a job? Managing your special-needs child? Consider writing down your most important goals.

Consult

Even if you aren’t certain you need to hire an attorney, or filing for divorce at all, it is a good idea to meet with an expert in Florida’s divorce and family laws. Who better than someone certified by Florida as an expert in marital and family law? We offer free consultations, but even when there is a charge, it is well worth the fee to get accurate information.

Alternatives

Litigation is something to avoid. It’s time-consuming, contentious and expensive. The majority of divorces end up settling. There are many forms of alternative dispute resolution out there, including collaborative divorce, mediation, and informal settlement conferences.

2021 National Divorce Day

The events of 2020 have led many to believe that there are more reasons than ever to really take stock before making one of the most consequential decisions of your life. COVID-19 has been a game-changer in many ways for all of us, not the least of which has been in relationships.

If there was already stress and strain in the marriage, the pandemic has been like gas on the fire, magnifying all the nooks and crannies of pain and resentment between partners. If things were fine before COVID-19 hit, they might not be so great nine or 10 months in. Many of us are stressed and edgy.

The fallout from 2020 will leave a large wake of destruction and loss. It’s never a good idea to make any decision—let alone perhaps the most major decision of your life—when you’re on rocky terrain. So, there are some important and obvious reasons why this January might be the worst year ever to take the divorce leap.

Some helpful advice from Newsweek:

Consider whether you need a temporary or permanent break

Just about everyone in a long-term relationship has thought on occasion about what life would be like if they were free, single, and didn’t have to answer to anyone. It seems we humans often want what we don’t have. But, having worked with enough divorcing folks, I’ve heard plenty say, “If I had known how hard divorce would be (or how lonely I would be), I would’ve stayed in my marriage.”

 Evaluate the kind of hit your finances could take

Between 2007 and 2009, 18 percent of my private practice population was homeless as a result of getting a divorce at the exactly the wrong financial time. These homeless people included what we’d normally call “successful” people: an attorney, an accountant and a social worker.

Hard times compounded by the divorce, they ended up with nowhere to live and not enough money to rent a place. With 2020 having decimated businesses and many economies around the world, it’s important to think long and hard about how you’ll get basic needs met if the bottom falls out.

The Newsweek article is here.