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A Presumption of Equal Timesharing?

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Friday, September 14, 2012.

Increasingly, clients are demanding shared custody and 50-50 child custody, meaning they want to divide the time with their children and other parent equally and have equal decision making rights. I’m also hearing calls for legislation to make joint custody and equal time sharing mandatory. The British government recently announced it is seeking to amend Section 1 of the Children Act 1989 to introduce a legal presumption of ‘shared parenting’.

When parents get along reasonably well, and live close by, an equal timesharing schedule may be in the children’s best interests. It can: foster Florida’s policy of frequent contact with parents after divorce, reduce custody litigation, spare thousands of children from being dragged into a battle between their parents, and discourage custody cases which have more to do with how much child support gets paid than timesharing.

Equal timesharing can be done in different ways: Week on/week off, 5-5-2-2 (in which a parent has the child for two weeknights then the child goes to the other parent for two weeknights, then the child goes back to the first parent for the three day weekend and the first two assigned weeknights which equals five nights.) and more. I can’t list all of the schedules possible, but an equal timesharing schedule is only limited by the parties’ willingness to be creative.

The rub of course, is creating a timesharing schedule which maximizes parent/child time, and minimizes transition troubles. While a 50/50 timesharing schedule may be desired, geographic distance, school hours, extra-curricular activities, and work schedules make equal timesharing impractical. In those cases, a more traditional timesharing schedule may be desired, and any shortfall in a parent’s timesharing can be made up during long school breaks, like Christmas and summer.

In order for an equal timesharing schedule to succeed though, the parents have to be flexible, and put the interests of the children first. This is easier said than done. Inevitably, school and extra-curricular activities – or a parent’s work commitment – are going to require the timesharing schedule to be adjusted. If parents are inflexible and unwilling to cooperate with each other, 50% timesharing can have a 0% chance.

Bad Gift Idea for a Second Marriage: A Muslim Prenup

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Tuesday, September 11, 2012.

In an earlier post I hinted that a prenup made a fine gift for a second marriage. But not all prenuptial agreements are created equal. An interesting case out of Kansas City refused to enforce a Muslim divorce. News of the case comes from The Volokh Conspiracy.

The Muslim premarital agreement is known as a mahr agreement. Mahr agreements are negotiated before the marriage between the groom and the bride’s family. Mahr agreements have two parts: a premarital payment in exchange for marriage vows, and a post-nuptial payment made if the marriage ends in divorce or death (a sort of deferred settlement). According to the wife in the Kansas case, her mahr agreement required the Husband pay her the deferred payment of 1,354 gold coins – worth about $677,000.

There were a lot of problems with the mahr agreement in the Kansas case. These problems often arise in marriage contracts from foreign countries which are primarily for religious purposes, or intended to be enforced in religious or foreign courts. The most important grounds the court gave for not enforcing the mahr included:

1. The mahr was never translated into English;

2. The mahr would function as a penalty, and Kansas is a no-fault state;

3. The mahr created tension between the Establishment and Equal Protection Clauses; and

4. The court suggested the mahr might not even qualify as a prenuptial agreement.

Florida law is slightly different from Kansas in this area. There are very few Florida appellate cases, and no Florida Supreme Court cases about mahr agreements. However, at least one Florida court has held muslim religious agreements may be enforceable in Florida, if they comply with secular contract law.

Whether you have a foreign premarital agreement, or want to enter into one, you can incorporate your religious or secular customs into a legal agreement, and have them enforced in Florida. As the Kansas case shows though, this is not something to be left for the imams back home.

Good Gift Idea for a Second Marriage: A Prenup

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Thursday, September 6, 2012.

The probability of divorce is around 50% for first marriages. For second marriages, it’s more like 67%. The National Center for Family and Marriage Research recently analyzed the data, and found that the overall divorce rate was greater for second marriages.

What some clients don’t realize is that going through a second, third, or fourth divorce can be more complicated than first-time divorces. In multiple divorces, couples are older, and have less time to make up for losses. Also, couples are competing for dwindling resources. Child-support, alimony, and dividing up of the retirement accounts may still be pending, and there can be little left to divide in a second divorce.

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 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, you can add to the contract 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.

Of course, a prenup isn’t a requirement, you could just live together without the vows.

That may turn out swell if you are both earning about the same amount of income. Boback cautions, however, “It’s good for the person with all the stuff — and money. But the person who takes care of the home or kids and has nothing of their own after, say, 10 years of living together and then splitting up? They’re out of luck.”

Keeping Your Divorce Private

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, August 27, 2012.

In divorce, we are all concerned with keeping our personal lives as private as possible. And, there are some new rules Florida courts have adopted which help to protect us from disclosing sensitive information to the public. However, one thing the new rules can’t protect you from is yourself.

Posting negative things on Facebook, emailing and texting insults, and making destructive comments about your ex-spouse, or soon to be ex-spouse, can impact your children in many ways. It can create anxiety and insecurity. It can raise their level of fear. It can make them question how much they can trust you and your opinions – or trust themselves. And it can add a level of unhappiness into their lives that they do not need.

I raise this because I see this a lot in my own practice, and a recent article I read said it in a way that may resonate with some:

The typical break-up thought process goes like this: You see your friends. You start blabbing. You complain over and over again. One of your friends finally tells you that you need to break up with the person. And you do. Then you go through the healing/complaining process, where you complain to your friends some more and they comfort you. They help you through the pain and you start feeling a lot better. Divorce is different.

To the normal blabbing I would add social media posts, emails and texts too. As the author of the article notes: Children are very sensitive – they can sense things; they can read between the lines. They read into emotions. We all have a responsibility to protect children from the trauma and emotions of the divorce process, and a good way to do that is to not “blab all over the place about how angry you are and how much you hate your ex.”

Grandparent Visitation

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, August 23, 2012.

It is tough sledding for grandparent child custody. On Monday Reuters reported:

Here’s a sad scenario: Grandma and Grandpa pay for camp, shoes and college funds. But something goes awry; the kids’ parents decide to split, and next thing you know it’s Grandma and Grandpa who are out in the cold, writing checks but missing their grandchildren.

Think that couldn’t happen? There are at least two trends that point to more of the above. Grandparents are helping their progeny more than ever; the AARP reported that a quarter spent more than a $1,000 a year on their grandkids, with 37 percent saying that they helped cover daily living costs.

Grandparents’ rights to see and spend time with their grandchildren has become more difficult to litigate since the Florida Supreme Court’s ruling in 1996, Beagle v. Beagle, which struck down a Florida Statute that allowed courts to order visitation rights for grandparents if they would be in the child’s “best interest.”

That is too bad, because grandparents help out a lot. Better yet, tax laws allow gifts of $13,500 a year from one individual to another before gift tax limits start to kick in. But be careful. Judges differ about how to evaluate regular financial gifts from grandparents. A judge could count regular gifts as part of a parent’s income, which can impact child support calculations and even alimony.

As the article goes on to note, parents can get greedy too.

“I’ve seen parents say ‘it’ll be a $1,000 a visit’ and I’ve had grandparents pay it,” says Bloomfield Hills, Michigan, family lawyer Richard Victor, founder of the Grandparents Rights Organization, which helps grandparents with visitation battles, among other problems.

“It’s emotional blackmail and will escalate if you give into it,” says Abramowitz, who advises clients to offer to pay for family therapy instead.

Is there a solution for grandparents? “You get more with sugar than you do with a cane,” says Atlanta family lawyer Randall Kessler, who chairs the American Bar Association Family Law Section. “Be nice to the person who has control, and that may include some financial support.”

Kessler also gets creative: When a mother objects to being parted from her children, he has suggested that grandparents invite the mother along on a family vacation as their guest, even with her current partner. “Usually they stay in a hotel down the road,” he says. More often, they turn down the offer but allow the visit.”

Gray Divorces

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, August 17, 2012.

While the overall divorce rate in the United States has decreased since 1990, it has doubled for those over age 50. The surge has spawned the term “gray divorce.” As Jay Lebow, a psychologist at the Family Institute at Northwestern University, says:

“If late-life divorce were a disease, it would be an epidemic.”

One out of three boomers will face older age unmarried, says Susan Brown, codirector of the National Center for Family & Marriage Research at Bowling Green State University in her new study The Gray Divorce Revolution.

By the time people are in their 50’s and older, issues of custody and child support may no longer be relevant. Instead, those issues are replaced with other challenges. Older people have had time to accumulate assets, one or both may be retired, and there are long term health care issues.

Many of those opting for gray divorces, however, fail to foresee its complications in today’s bleak economy. Here are some things to consider:

Valuing the Marital Estate – By the time a couple enters the golden years, they may have gold to divide, including businesses, retirement funds, and vacation homes. Valuing these assets can be difficult. The value of a business may not be apparent from balance sheets, and the sale or transfer of assets may have tax consequences. As a result, a financial advisor may be an important component in the divorce.

Medical Care – Health insurance is often tied to the employment of one spouse. With aging comes diminishing health, and declining cognitive ability. Courts may need to intervene if one party has dwindling capacity to handle their own affairs.

Long-Term Arrangements – Legal arrangements, such as wills and trusts, need to be reviewed to make sure they reflect post-divorce wishes. The same is true for long-term care, such as medical directives, living wills and trusts.

Retirement Plans – After 20 years of marriage, retirement plans can be substantial . . . and complex. Retirement plans vary in kind, and they all have different restrictions, tax consequences, distribution and vesting rules.

Lifestyle adjustment – Younger couples have time to re-accumulate wealth after divorce, but in Gray Divorces, the spouses have less time to re-establish themselves financially. One or both may be close to or in retirement, and face living on half of what they earmarked for retirement.

There are special interests involved when an older couples divorces. As always, information is power, so make a point to seek out experts for guidance.

Your Home’s Value and Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Tuesday, July 31, 2012.

Your house is usually one of the largest assets to divide in a divorce. That being said, there is good news and bad news about the value of one of your biggest assets.

First, USA Today reports some good news:

Data through May 2012, released today by S&P Dow Jones Indices for its S&P/Case-Shiller Home Price Indices, the leading measure of U.S. home prices, showed that average home prices increased by 2.2% in May over April for both the 10- and 20-City Composites.

This increase was better than the consensus forecast, and hopefully prices will turn positive year-over-year in June. Tampa and Miami are each up about 3% in the last year.

The bad news is that housing prices have dropped about 35% from their peak, and forecasts say housing prices will be close to flat this year and next, with mid-single-digit nationwide gains emerging by mid-decade.

In 2008, the Florida Constitution was amended to allow homeowners to keep a portion of their tax assessment differential after their home is sold. Because many homes in Florida are in negative equity, clients often overlook the hidden tax advantages their homestead can provide during and after a divorce.

I wrote an article in the Florida Bar Journal examining the equitable distribution of the tax assessment differential in divorce, and how the Constitutional Amendment impacts non-married couples selling their homestead after a breakup. I have lectured, and continue to receive calls about the impact of this constitutional change from clients and attorneys alike. Hopefully the article will give something to think about.

Occupation as a Predictor of Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, July 30, 2012.

If you marry your favorite massage therapist, are you more likely to divorce than if you’d picked a matrimonial lawyer?

That is the question answered in a study published in the Journal of Police and Criminal Psychology.

It is a common belief that the divorce rate for police officers is higher than that of the general population. This belief is commonly held in spite of the fact that there is no empirical research supporting such a belief. To compare the divorce rate of law enforcement personnel with the rates for other occupations, we analyzed data from the 2000 U.S. Census. The results of this analysis indicate that the divorce rate for law enforcement personnel is lower than that of the general population, even after controlling for demographic and other job-related variables.

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. So it could be that spouses in some jobs are just quicker to jump into the next marriage than others. Also, the data don’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.

So, here are five jobs with the highest relative divorce rates:

1. Massage therapists

2. Bartenders

3. Dancers and choreographers

4. Health diagnosing and treating practitioners

5. Physicians and surgeons

And, here are five jobs with some of the lowest relative divorce rates:

1. Media and communication equipment workers

2. Agricultural engineers

3. Directors, religious activities and education

4. Transit and railroad police

5. Clergy

Do I Need Divorce Therapy?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Saturday, July 28, 2012.

Negotiating child custody, support, and the division of assets is strongly tied to emotions, and if your head is not in the game – because you are still overcome by swirling emotions – your attempts at settlement may fail. I see this happen frequently: a client, or their spouse, cannot make a rational decision because their anger, sadness or suspicion is too much to overcome. When that happens, the only alternative is to go to court.

You may have heard that therapy can help couples save a marriage. But, did you know more and more people are relying on therapists to help guide them through the grueling process of a divorce? I suggest to clients early on in my representation to seek out a good therapist to help them through the divorce process. They can help you overcome your emotions, as well as create timesharing schedules and more.

I remember reading about Elana Katz, the director of the Family and Divorce Mediation Program at the Ackerman Institute for the Family, in a New York Times article.

We used mediation, so we did not go through the adversarial nightmare and did a lot that set up a structure that was going to make us both highly involved parents. There was not going to be winner-take-all.

Katz discussed how therapy helped her through her own divorce. Let’s face it, if professionals in the business know to hire a good therapist, shouldn’t you? It is important for couples to find post-divorce parenting roles and be able to predict finances. Having a professional therapist go through each stage of the process carefully can help you develop new relationships, and understand future goals.

Are Breast Implants Marital Property?

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Wednesday, July 25, 2012.

Division of property, the dividing up of marital assets and debts, can be big problems in a divorce. Often, attorneys bring complicated business valuations and other complex assets to a court for decision . . . but not always.

What about the value of breast augmentation surgery – paid for with marital funds – can they be considered a marital asset subject to division?

The Florida Supreme Court has never really tackled this giant issue, but other states have. So, are a wife’s breast implants really marital assets subject to be equitably divided in by a court? Well wait no longer, the North Dakota Supreme Court has finally ruled on the issue for all of us, and you can read the decision yourself:

“Do we have any lines to be drawn? Is dental work a marital asset? Is a hip replacement a marital asset?” Justice Daniel Crothers asked attorney Christina Sambor during Supreme Court arguments on Thursday.

Citing cases from Hawaii, Delaware and Kentucky, Erik Isaacson invites us to hold that breast implants are a marital asset, the value of which are subject to distribution in the division of the marital estate. We decline . . .

Luckily for Mrs. Isaacson, she was saved from a very painful distribution. Was Isaacson v. Isaacson the most important decision in matrimonial law ever? Hardly, but equitable distribution does raise a number of interesting questions. Statutory factors, such as when the assets were acquired, or when the debts were incurred, and the reasonable necessity of acquiring and incurring them can all come into play.