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Big International Custody Case

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, November 2, 2012.

In a big international child child custody case, a court ruled that a child taken by her mother to New York from London may stay in New York, over the objections of the father, and despite the mother and child’s lack of legal immigration status.

In 2009 Ms. Montoya Alvarez and her daughter left London to come to live in New York. On November 10, 2010, the father filed a Petition for Return of Child under Article 2 of the Hague Convention and the International Child Abduction Remedies Act. The father wanted an order that the child be returned to London to have a British court make a custody determination.

The trial court found that the father made a prima facie case of wrongful retention under the Hague Convention. However, the court denied the father’s petition to return the child to London. The mother asserted an affirmative defense under Article 12 of the Hague Convention that the child was “now settled” in New York.

The presumption under the Hague Convention is that a child must be returned to the state from which she originally was wrongfully removed unless: (1) one year has elapsed between the date of wrongful removal and the date proceedings commence; and (2) the child is found to be “now settled in its new environment.”

The father appealed, and argued that the “now settled” defense did not apply because the one-year period in Article 12 should have been tolled until he could have reasonably located his child. He also argued that the child was not settled in New York because the child and mother lacked legal immigration status.

The Second Circuit Court of Appeal held that (1) equitable tolling does not apply to the one-year period in the “now settled” defense and (2) a child’s immigration status should not be given controlling weight in determining whether the child is “now settled.”

The case makes it harder for foreign parents to win an international custody dispute. The Second Circuit’s Lozano v. Alvarez opinion can be read here.

Bleeding Grandparent Visitation Rights

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, October 29, 2012.

In order to educate the public, and shamelessly promote myself, I wanted to mention that my latest article, “Bleeding Grandparent Visitation Rights” is now available for download at the Florida Bar’s website. The article was printed in the September/October 2012 issue of the Florida Bar Journal. Here’s a brief abstract:

Grandparent rights to visit their grandchildren over the objections of fit parents do not exist in Florida . . . or so we thought. Floridians who are activated, deployed, or temporarily assigned to military service can now designate to grandparents their timesharing rights over the objections of a fit parent. The article briefly examines the history of grandparent visitation rights in Florida, the U.S. Supreme Court’s decision inTroxel v. Granville, 530 U.S. 57, 97 (2000) and the recently enacted Florida Statute §61.13002(2) in light of Florida and U.S. Supreme Court cases.

Although the statute may not pass constitutional muster, Florida may have found constitutional ways to promote grandparent visitation. For example, Chapter 751 authorizes concurrent custody to grandparents with custody, and voters adopted the “Granny Flats” amendment to the Florida Constitution, which provides tax incentives for constructing living quarters for grandparents.

FYI, the title is derived from the 19th Century Kansas border wars (the statute in question impacts military divorces) the pain associated with grandparent visitation cases, and how grandparent child custody have historically spread into family law.

Grandparent visitation rights are an especially sensitive topic in the very emotional area of marital and family law. Hopefully, the article answers some questions many of you may have about grandparent visitation rights in Florida.

Same Sex Marriages, DOMA, and Taxes

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Partnerships on Wednesday, October 24, 2012.

Death and taxes impact everyone, gay or straight. Recently, the issues of homosexuality, same sex marriage and divorce have been in the news, especially with the presidential debates. Whatever side of the debate you may find yourself, have you ever asked whether homosexuals should be taxed differently? When asked that way, the question sure sounds unconstitutional.

In 1963, Edie Windsor met her late-spouse, Thea Spyer, in New York City. They entered into a committed relationship, and lived together in New York. In 1993, they registered as domestic partners in New York City when it became available. In 2007, as Spyer’s health began to deteriorate, they decided to marry in Canada – which permitted gays and lesbians to marry. Two years later, Spyer died, leaving her estate to Windsor.

The unlimited marital deduction is one of the major deductions in determining a taxable estate. There is no limit to the amount of the marital deduction, so a married person can potentially eliminate estate taxes by leaving the entire estate to her surviving spouse. However, the Defense of Marriage Act, or DOMA, prohibits federal recognition of same-sex marriages. Because of the operation of DOMA, Windsor did not qualify for the unlimited marital deduction, and was required to pay $363,053 in federal estate tax on Spyer’s estate.

So, in addition to losing her spouse, and facing the prospect of living her remaining years alone, Windsor now faced a $363,053 federal tax bill that married heterosexual couples do not have to pay. In 2010, Windsor commenced a lawsuit seeking a refund of the federal estate tax levied on Spyer’s estate and a declaration that DOMA violates the Equal Protection Clause of the Fifth Amendment.

Last week in Windsor v. United States, the Second Circuit Court of Appeals found that DOMA’s section 3 does not pass constitutional muster. I understand that a petition for a writ of certiorari is already pending in the U.S. Supreme Court.

If You Want Your Marriage to Last Should You Move to New Jersey?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, October 18, 2012.

Marriage and divorce are important events. Not surprisingly, researchers, policy makers, and the public are always interested in up-to-date information about the demographic characteristics of marital events, and they reveal a lot about nationwide patterns.

The New York Times recently reported on the latest Census figures about marriage and divorce. According to the 2011 American Community Survey released last month by the U.S. Census Bureau, New Jersey ranks last among the states in the percentage of residents 18 and older who are divorced.

The New York Times article notes a few reasons. “The composition of New Jersey married individuals is quite favorable across several indicators, providing some evidence for the low divorce rate,” said Susan L. Brown, a sociology professor and co-director of the National Center for Family and Marriage Research at Bowling Green State University in Ohio. “These factors include education, race-ethnicity, age, and age at first marriage.”

However, the Census revealed a lot of other interesting variations among U.S. states, and between men and women. For instance, the states with the highest divorce rates for men were Arkansas and Maine. But, the states with the highest divorce rates for women were different. Alaska and Oklahoma topped the charts in that category. How did Florida rank? Not terrible, a little under the national average for both men and women 8.5 per 1,000 men and 9.9 per 1,000 women. The national averages for men and women were 9.2 per 1,000 and 9.7 per 1,000 respectively. So, while New Jersey has one of the lowest divorce rates, it also has one of the lowest marriage rates too. Maybe you don’t need to pack your bags for the Garden State so quickly.

Who Keeps The Engagement Ring?

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Monday, October 15, 2012.

It’s been said that a diamond is a girl’s best friend. Mount it in a ring and hand it on bended knee and its value goes well beyond mere money. In divorce court the old adage takes on a new meaning. Few people know that the engagement ring tradition started for a specific legal purpose. As Slate.com notes:

[T]here was another factor in the surge of engagement ring sales-one that makes the ring’s role as collateral in the premarital economy more evident. Until the 1930s, a woman jilted by her fiancé could sue for financial compensation for “damage” to her reputation under what was known as the “Breach of Promise to Marry” action. As courts began to abolish such actions, diamond ring sales rose in response to a need for a symbol of financial commitment from the groom, argues the legal scholar Margaret Brinig -noting, crucially, that ring sales began to rise a few years before the De Beers campaign. . . The “Breach of Promise” action had helped prevent what society feared would be rampant seduce-and-abandon scenarios; in its lieu, the pricey engagement ring would do the same.

Florida abolished the appropriately termed “heart balm statutes”. Heart balm statutes were laws allowing couples to sue each other to recover money for the alienation of affections and breaches of contract to marry. As one court poetically noted:

[A] gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor – if the anchor of contractual performance sticks in the sands of irresolution and procrastination – the gift must be restored to the donor. A fortiori would this be true when the donee not only refuses to sail with the donor, but, on the contrary, walks up the gangplank of another ship arm in arm with the donor’s rival?

So where does that leave the engagement ring in divorce? Our statute requires a trial judge to set apart each spouse’s non-marital assets. The general rule which developed is that an engagement ring given before the marriage becomes a non-marital gift if the marriage is completed. If so, the ring becomes the non-marital property of the Wife.

Some Common Divorce Mistakes to Avoid

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On behalf of Ronald H. Kauffman, P.A. posted in Board Certified Lawyer on Saturday, October 13, 2012.

During the first meeting with divorcing clients, I frequently bump into similar problems. Many clients make some common mistakes, and some of the suffering associated with divorce can be self-inflicted, or at least avoidable. Below I’ve listed some of the frequent mistakes I see, in the hope, you can avoid them.

Not reading your prenuptial agreement

If you are going to sign a prenuptial agreement before your marriage, you should take the time to speak to a board-certified specialist in marital and family law. The prenup may, nor may not be, in your best interests, but almost always favor the richer and more powerful party. Florida adopted the UPAA (Uniform Premarital Agreement Act). The rules for drafting enforceable agreements are now pretty clear, although the date of your agreement can have a big impact on which law applies. Alimony waivers remain somewhat problematic, because a trial court has the authority to disregard some of them. However, appellate decisions are moving towards upholding them.

Adding someone to the title of your non-marital property

Property owned prior to marriage is your non-marital property. As long as the other spouse is not joined in title, your property will remain non-marital, with one very important qualification: If there is a mortgage on the property that is paid down with marital funds, the marital estate may have a claim to the enhancement in value to your non-marital property. If you transfer the title from you alone, to you and your spouse, you may have converted the asset to marital property.

Commingling Property

Commingling is a little like adding your spouse to your non-marital property. If you want double the price of your divorce, even if you have a prenuptial agreement, mingle all of your non-marital investment accounts money together into one account. Commingling creates a host of issues and an accounting nightmare. If you want to claim your non-marital property funds in a commingled account, you will be required to do an expensive and difficult trace of the funds using a forensic accountant. A safer way to maintain your non-marital funds is to keep them in a separate account. If you need to make cash infusions into a marital account, realize that you are probably kissing the funds goodbye.

Misplacing Important Documents: prenups, bank records, property records and investment accounts

Record keeping is not fun but has gotten a lot easier with scanning hardware and software. Bank records, investment records, tax returns and prenuptial agreements represent evidence which will become a part of your case.

Hopefully, you can avoid some of the problems I frequently run into when interviewing potential new clients.

Return to Underwater Treasure: More Gold

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Wednesday, October 3, 2012.

The year 2008 saw the birth of a new marital asset in Florida, and its divorced upon divorce can be easily overlooked. The ‘Save Our Homes’ Amendment (SOHA) limits increases in your home’s assessment.

In 2008, the Florida Constitution was amended to allow homeowners to keep a portion of their SOHA differential after their home is sold, and port it to a new homestead. I wrote an article examining the equitable distribution implications of SOHA after divorce. The article, published in the Florida Bar Journal, is available here.

There was a big limitation with the old law if spouses wanted to divide the SOHA benefit unequally. The Department of Revenue, under its Emergency Rules, interpreted the statute to mean a husband and wife who divorcing and both abandoning the homestead, would each take their 50% share of the assessment limitation difference, and the property appraiser could not accept a stipulation designating the difference otherwise.

In light of the Department’s interpretation, dividing the asset in divorce became trickier. An amendment to the statutory language was needed to allow couples the freedom to designate the percentage share of the benefit. That amendment happened this year. Florida Statute §193.155 now provides that a husband and wife who abandon jointly titled homestead property may designate the percentage attributed to each spouse of the differential between market value and assessed value that is portable to a new homestead property.

The parties must be husband and wife at the time that the jointly owned property is abandoned. They must file a form with the property appraiser prior to either person applying for the portable differential, and the designation, once made, is irrevocable. However, once that form is filed, couples will have the freedom to designate the SOHA benefit how they like.

A Movie Review!

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Sunday, September 30, 2012.

As a matrimonial attorney, I don’t much care for movies about child custody cases. I’d seen, but didn’t like, Kramer v. Kramer, Falling Down, and Intolerable Cruelty. I just don’t think custody battles make for good film. Talk to Strangers proved me wrong. You can see the trailer here.

Clients are often surprised to learn that divorce attorneys and judges don’t usually see the children in the divorce process. This means that we sometimes become immune to its impact on children. Talk to Strangers corrects this problem. It looks and feels realistic, shows you the custody evaluation process from the children’s perspective, and comes with a guide for clients. It’s a short, dramatic mockumentary of the custody process meant for its teaching value. Anyone who is involved in the process will learn something, but the movie seems to be aimed primarily at clients.

This is a good movie to watch. First of all, it’s short, coming in at around 25 minutes. Its film locations, a suburban Connecticut home and cold courthouse, make the movie very convincing. The acting is good and professional, especially the brother and older sister, who do a great job portraying the deteriorating relationship with their parents and each other. All the performances are good. In a closing scene, the parents are shown a video of themselves confidently predicting how great their children will do at the end of the process because they are going to work so hard at it. You’ll want to cry.

Tell your clients who have any interest in fighting a tough custody battle to buy this short movie first (it’s probably the cheapest way to settle a custody battle). Oh, and tell them to bring tissues.

Talk to Strangers

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, September 21, 2012.

child custody cases are emotionally draining, and high conflict child custody cases can have a huge impact on children involved. How to lessen the impact of child custody cases on children has been a problem which lawyers, judges and every other professional in the process have long sought.

A Connecticut family lawyer, Deb Grover, who was serving as Chair of the Connecticut Bar Association’s Family Law Section had the idea to create a film to lessen the impact to children. The film is called Talk to Strangers, and was funded by the Connecticut Bar Association, and written by family law specialist Larry Sarezky and produced by Sarezky with Deborah Grover.

From the website:

Talk to Strangers is a fictional portrayal of what happens when parents divorce, and the custody of the children is in dispute. The film family, particularly the children, trudge through the intrusive and lengthy process that leads to a determination of custody. We see them in interviews with family court personnel and observe the tense and painful family interactions that take place.

If you take a minute to watch the trailer for the movie, you quickly see why this film is very different from other videos available on the subject, as it appeals to you on a strong emotional level. The trailer can be viewed here. I just ordered it, and look forward to viewing it, but here’s what others are saying:

“A must-see for parents and counsel involved in this terrible process known as custody litigation.”

– Arthur Balbirer, Esq. – past president American Academy of Matrimonial Lawyers

“…Talk to Strangers, both the film and the pocket guide, are wonderful. The voices of the children speak louder than any educational program…”

– Robin M. Deutsch, Ph.D – Children & the Law Program, Dept. of Psychiatry Massachusetts General Hospital

“This wonderful film… will provide insight and great assistance. Watch it and learn!”

– Alan Dershowitz – Harvard University Professor of Law

Gestational Surrogacy Contracts :-)

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, September 20, 2012.

According to the Associated Press, on Sept. 19, 1982, the smiley emoticon was invented by professor Scott E. Fahlman, who proposed punctuating humorous computer messages by creating this:

🙂

Which of course led to this

🙂 🙂 :] =] =) :^) :?), and sadly, this 🙁 🙁 :-c :-< :-[ :[ :{

Just as new technologies – such as reproductive technologies – bring new benefits, they can bring new types of child custody cases. Consider this English woman’s concerns reported in the Daily Mail:

A married woman whose husband donated sperm without her knowledge is calling for clinics to be forced to ask for a wife’s consent . . . and says the sperm should be treated as a ‘marital asset’.

Putting aside the question of whether sperm is marital property, Florida does protect surrogacy, and has comprehensive laws protecting the baby, intended parents, the egg donor and the surrogate.

For example, Florida allows commissioning couples to enter gestational surrogacy contracts in which a surrogate relinquishes her parental rights. Gestational surrogacy contracts are reviewed by courts to confirm that they are in accordance with Florida law, and for a birth certificate to be issued. But, problems can arise. Consider a recent Florida case involving lesbian partners:

Two women decided to have a baby, paid a reproductive doctor to withdraw ova from one of them, fertilize them, and implant the fertilized ova into the other partner. The procedure worked, and a child was conceived to a birth mother and a biological mother. Two years later the mothers separated, and the birth mother severed the biological mother’s contact with the child.

If the biological mom is simply an egg donor under Florida law, her parental rights are relinquished. If she isn’t a donor, she’s entitled to parental rights. So, what are the biological mom’s rights? At least in one Florida case, the biological mom was found to be entitled to her parental rights, and did not statutorily relinquish them.

The outcome in that one Florida appellate case may not be followed in other appellate districts, so a consultation with a family law expert is advised.