Reason to Settle #128,543,28… The judge may punch you

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Thursday, December 17, 2015.

If you can settle your divorce, you may save thousands in fees and emotional aggravation. There are other reasons to settle. For instance, the judge might get mad and punch you in the head.

The Wall Street Journal’s Law Blog reported about a fight that broke out in a Florida courtroom between the Judge and criminal defense attorney. Today, the Florida Supreme Court rendered its own decision.

I’ve written about disorder in the court before. The moments leading up to the altercation were caught on video in which the judge could be heard threatening to beat up the lawyer.

“If you want to fight, let’s go out back, and I’ll just beat your ass,” Judge Murphy, a retired U.S. Army Reserve colonel, warned Mr. Weinstock before the two headed into a hallway off-camera behind the courtroom, at which point a violent scuffle could be heard.

For divorcing parties, the mediation process is a way to avoid having your own courtroom brawl. Mediation involves a neutral third-party mediator that meets with the lawyers and divorcing couple to reach an agreement on the issues in their divorce.

In addition to having angry judges decide your case, mediation offers a lot of flexibility, in terms of making your own decisions about what works best for your family.

Mediation, however, is not appropriate for all couples. For example, if one spouse is hiding assets or income, you may have to head to court where a judge can ‘take him or her to the woodshed’ so to speak.

Unfortunately for Judge Murphy, his courtroom antics landed him in front of Florida’s Judicial Qualifications Commission, which investigates and hears allegations of misconduct by Florida judges.

The JQC recommended the judge get a public reprimand, be suspended without pay, pay $50,000, get mental health therapy and complete a Judicial Education Courses.

That recommendation did not fly with the Florida Supreme Court. The Florida Supreme Court can accept, reject, or modify the JQC’s recommendations.

One witness, Suzanne Carter, saw Judge Murphy grab Mr. Weinstock’s collar with his left hand and raise his right arm as if he were going to punch Mr. Weinstock. Ms. Carter heard “a bunch of punch, punch,” and Judge Murphy using expletives.

The Supreme Court removed the judge from office:

Because of Judge Murphy’s appalling behavior, we conclude that there is clear and convincing evidence that Judge Murphy engaged in “conduct unbecoming a member of the judiciary demonstrating a present unfitness to hold office.”

Today’s Florida Supreme Court Opinion is here.

Is Florida’s New Expert Witness Rule In Jeopardy?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, December 14, 2015.

Few people know that Florida passed a new law about expert witnesses. There are a couple of Florida cases, it impacts every divorce trial, and we’re all waiting for the Florida Supreme Court to weigh in.

I recently published an article giving a little history about the new Florida statute, along with a review on the three big U.S. Supreme Court cases where the new rule was forged. In the article, I wrote about the possible Constitutional problems 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 is a question whether the Legislature violated the separation of powers doctrine.

However, the Constitutional issue will not be known until a case is presented to the Supreme Court. However, the Florida Bar Board of Governors last week voted to reject the new rule, and keep the old rule announced in Frye.

The Board voted 33-9 to reject Daubert, the new rule, accepting the recommendation of the Bar’s Code and Rules of Evidence Committee. The Florida Supreme Court will make the final decision, setting up a possible conflict between the court and the lawmakers, who passed the law in 2013 to adopt Daubert.

The issue has been hotly debated in the legal community, with 688 lawyers and legal groups sending comments to the Bar. The overwhelming majority of respondents favored keeping Frye.

Florida’s amendment of Rule 702 is similar to the way Arizona tossed the Frye standard. After the Arizona legislature enacted a similar Daubert bill, the statute was declared unconstitutional under a separation of powers argument.16 However, the bill pressured the Arizona Supreme Court to amend Rule 702 itself, which it later did.

Until the Florida Supreme Court weighs in on the Constitutionality of the amendment to the expert witness rule, no one is really sure of its future.

An article on the Bar’s vote can be read here.

Surrogacy Contracts: Can You Return the Baby?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Thursday, December 10, 2015.

The View’s Sherri Shepherd had trouble conceiving, and hired a surrogate to carry her child. Then Sherri decided she didn’t want it. This holiday season people are asking: “Are babies returnable?”

This should be the kind of case Sherri Shepherd, and her co-hosts on The View, might have discussed on the air with righteous indignation and inflammatory tones!

Who walks away from a baby they paid very big money to bring into the world?

Sherri Shepherd and Lamar Sally married in 2011. They tried to have a child, but after difficulties, contacted Reproductive Possibilities, a company that facilitates surrogacy arrangements.

In Sherri’s surrogacy arrangement, a surrogate carrier was artificially inseminated with sperm from Lamar. Sherri provided no genetic material, but was the intended mother and a party to the contract.

Sherri’s surrogacy contract provided:

Intended Parents may terminate this Agreement in writing at any time for any reason, provided the Gestational Carrier has not undergone the IVF/Embryo Transfer. If the Gestational Carrier has already undergone the IVF/Embryo Transfer and Intended Parents wish to terminate this Agreement, they may only do so once it is confirmed that Gestational Carrier is NOT pregnant.

The contract also directed her to compensate the surrogate for certain expenses, and she paid over $100,000.00 to cover those expenses.

Five months into the pregnancy, Sherri refused to sign the relevant paperwork because she and Lamar were having marital difficulties.

The baby was born on August 5, 2014, and the surrogate went to court to have Sherri be declared the mother of the child. But Sherri responded that her surrogacy contract was against Pennsylvania public policy and unenforceable.

She lost her fight to have her name removed from the birth certificate of the son she had via surrogate, and she must continue paying child support for the 1-year-old boy being raised by her ex-husband.

This is a sad case in an otherwise happy area of law. Infertile parents have an unprecedented opportunity to enjoy the rewards of parenting where before they couldn’t.

I’ve written about assisted reproductive technology before. Florida has set itself apart as a haven for Artificial Reproductive Technology, as our laws make the process less prone to legal problems. Florida is also one of the few states that permits intended parents to establish the parental status to a child born through assisted reproduction without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable.

The People magazine article is available here.

Florida Alimony Reform & Working Women

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Monday, December 7, 2015.

Alimony reform is a nationwide phenomenon. If alimony reform comes to Florida, it may be too late for a 65-year-old woman ordered to pay her ex-husband $7,000 a month.

Currently, there are a few bills Florida has tried to pass to amend our alimony statute. I’ve written before about the previous attempts, including the current Senate Bill 250.

But Florida is not new. A few states have already limited alimony judgments, especially in cases where the marriage is less than 20 years. However, many state bills, like Florida’s, are in progress, or are constantly evolving.

As Time magazine explains:

Alimony, otherwise known as spousal support or maintenance, is an ongoing payment by the higher-earning spouse to the lower-earning one. It has changed and shifted over the 40 years since the Supreme Court ruled that it had to be applied equally to both genders.

Yet it is still heavily weighted toward men paying women. Only 3% of around 400,000 alimony recipients are male, according to the 2010 census, up 0.5% since 2000. Recipients claimed $9.2 million in payments in 2013 on their tax returns.

Unlike child support, which is common when divorcing couple has kids, alimony awards have always been very rare, going from about 25% of cases in the 1960s to about 10% today, said Judith McMullen, a professor of law at Marquette University. In one study of Wisconsin cases, she found it was only 8.6%.

A more recent phenomenon is the notion of women paying the ex-husbands alimony for life. Now that women are paying alimony more often, they are getting involved in advocating for change.

“It’s unfair for men to pay it, and unfair for women to pay it. But women are much more outraged by it,” said Ken Neumann, a founder of the Academy of Professional Family Mediators.

Tanya Williams, who has been sending a check to her ex-husband for 13 years, is among those who do not understand the concept of “permanent” alimony – when one spouse pays the other indefinitely – and has joined the cause against it.

“There’s no other contract where the liability continues after the contract ends,” said the 52-year-old dentist who got divorced in Florida but now lives in Florida. “You can’t leave your job and say, ‘I still have a need so you have to continue to pay me.’ “

A few states, Massachusetts, Texas and Kansas, limit alimony to helping lower-earning spouses get back on their feet or get further education. The general consensus is that everyone should work, and the only individuals likely to get a longer-term award are those who are disabled or are in retirement.

In New York, for instance, new rules go into effect in January 2016 which further limit alimony based on the duration of the marriage. The rules also restrict the way you can project the future earnings of professionals like doctors.

The Time magazine article is here.

Autism & Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, December 2, 2015.

A father lost custody of his children, in part, because he refused to stop trying to cure autism through homeopathy. What happens when parents disagree over medical care?

As Canada’s National Post reports: the two children suffer from “severe and profound” autism spectrum disorder. They do not speak, are not toilet-trained or able to dress or feed themselves.

In October, the mother asked a court to stop the father from administering homeopathic treatments because he was “looking for a ‘cure’ for autism rather than trying to find a method of managing autism.”

Homeopathy is an alternative therapy that holds that diseases can be cured by giving patients remedies that cause the same symptoms as the original illness.

The Court found:

“Not only were these treatments not effective, but they had negative effects.”

The court also found that the father refused to administer prescribed antibiotics, and kept the child from his mother while attempting to treat the infection with homeopathic remedies. The child’s infection worsened.

The refusal to administer prescribed medication is serious. I’ve written about custody and medical decisions before. Often times it happens in the area of vaccinations.

In Florida, most parents enjoy shared parental responsibility, a relationship in which both parents retain their full parental rights and responsibilities. Parents are required to make major decisions jointly.

Issues relating to a child’s physical health and medical treatment, including administering medication, are major decisions affecting the welfare of a child.

When parents can’t agree, the dispute is resolved in court using the best interests of the child test. Determining the best interests of a child is based on an evaluation of statutory factors affecting the welfare and interests of the child and the circumstances of the family.

The National Post article is here.

Thanksgiving Timesharing Tips

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Wednesday, November 25, 2015.

Thanksgiving is a few days away. Before Thanksgiving arrives is the time to resolve timesharing/visitation problems so you can enjoy your turkey dinner with minimum stress for you and your children.

I’ve written about problems and solutions to holiday timesharing before. Here are some good suggestions to make your Thanksgiving visitation battles a little easier:

Alternate. Some families alternate Thanksgiving every other year. If you get the kids for Thanksgiving this year, next year will be the other parent’s turn. Having a regular plan to fall back on can eliminate the potential for what is fair.

Be flexible. An easy Thanksgiving schedule for everyone may require some changes from the normal visitation schedule.

Be respectful. You may not want to be friends anymore, but you need to figure out how to communicate with your ex without all the emotional baggage.

Don’t mix issues. Do not bring up unrelated issues which could make a problem free Thanksgiving dinner impossible. Set aside your differences until after the holiday season.

Pick your battles. Thanksgiving may be more important to you than Easter is to your ex spouse. Don’t fight just for the sake of fighting.

Protect the children. Your children’s memories of Thanksgiving should be about great food and family fun. They should not be forced to witness you and another parent arguing.

Plan. Start talking about the holiday visitation schedule sooner rather than later, the longer you wait the harder it can be.

Thanksgiving can be stressful. But the weather has cooled, kids are on vacation, and work may have slowed too. Try to make it the best time of year.

New Article: The Daubert Crucible

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, November 20, 2015.

My new article on the amendments to our expert witness rules is available at the Family Law Section website. The Daubert Crucible not only discusses the changes to the expert witness statutes, but witchcraft. Below is a summary.

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In amending the Florida Evidence Code, the Legislature has bound Florida courts to the Daubert standard for the admission of expert testimony and opinions.

I’ve written on the changes to the Evidence Code before. Although the amendment became effective in 2013, the changes to the law are still so new, there are less than a handful of appellate decisions which have reviewed the amendments.

Are the Changes Even Constitutional?

Still up in the air are lingering Constitutional doubts. While the Legislature can enact substantive law, only the Supreme Court can regulate courtroom practice and procedure.

The trick is that the Evidence Code contains both substantive and procedural provisions. If the Legislative branch encroached on the judicial branch, the changes are subject to a strict separation of powers doctrine review.

However, the Florida Supreme Court denied certiorari to a case which specifically asked the high court to review the Constitutionality of the amendments.

There is also fierce debate within the Florida Bar. The Board of Governors is required to vote on all procedural rule changes before those changes are submitted to the Florida Supreme Court.

At the Board’s most recent meeting, the Committee voted 16-14 in support of rejecting the new Daubert standard. Then, at the Family Law Section special meeting last week, my own motion to adopt the Daubert standard was voted down.

A webpage has been set up at www.floridabar.org/daubertfrye with background information on the matter and a link to a comment form for member input.

The article is available on the Florida Bar Family Law Section website here.

It also makes a great holiday read.

Denying Visitation: Is Jailing Kids the Answer?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Sunday, November 15, 2015.

Three children, estranged from their father, refused a court order to timeshare with him. The judge sent them to juvenile detention for the summer. Did it work?

As the Detroit Free Press reports, the judge was abrupt:

You both are going to live in Children’s Village. Your mother is not allowed to visit, no one on your mom’s side is allowed to visit. Only your father and therapist . . .

When you are ready to have lunch with your dad, to have dinner with your dad, to be normal human beings, I will review this when your dad tells me you are ready. Otherwise, you are living in Children’s Village til you graduate from high school.

That’s the order of the court.

Good bye.

The children had refused to speak to their father, they did not show up for planned visitations, would bow their heads and refuse to look at him during supervised visits. Their mother failed to bring them for visitation.

Judge Gorcyca, who blamed the mother for poisoning the children’s attitude toward their father, ordered the children be sent to juvenile detention for defying her court orders – while in court – that they go to lunch with their father.

I’ve written before about parental alienation. Parental alienation involves one parent “programming” a child to denigrate the other parent to undermine and interfere with the child’s relationship with the targeted parent.

In the Detroit case, the children – ranging in age from 9 to 15 – were held in contempt of court for disobeying the judge’s order to “have a healthy relationship with your father.”

These are not unsophisticated parents. The father is an internationally prominent traffic safety researcher and GM engineer. The mother is a pediatric eye doctor, glaucoma researcher, and an assistant professor of ophthalmology at the University of Michigan.

In sentencing the children to jail for refusing to follow her orders to have a relationship with their father, the court took severe action.

But did it work?

According to Detroit area newspapers, the three children went to juvenile detention, and a court-ordered, five day intensive therapy treatment designed to treat parental alienation. They are now residing with their father, his second wife, and their young half-brother.

The Father is asking the judge to prohibit the children’s mother from contacting them, or appearing at their schools, for the next 90 days, part of the protocol in reuniting children with an estranged parent.

The Detroit Free Press article is here.

Mortgages & Divorce

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Tuesday, November 10, 2015.

It’s real estate tax time, and deciding how to equitably distribute the marital home in a divorce can be a headache – especially when both spouses are on the mortgage.

As the New York Times recently reported, when there is equity in the home, each spouse typically wants to take a share as part of the settlement agreement.

But if one person wants to remain in the home, rather than sell it and split any profit, then that spouse will likely have to qualify for a mortgage on his or her own.

There are a lot of issues involved in the marital home. I’ve written before about property divisions when the housing market was down. Now that the housing market is in recovery, different issues arise.

Spouses who choose to stay in the home may have to refinance the mortgage to cash out enough equity to pay off their soon-to-be Ex. But even a spouse who has the financial resources for a buyout will still have to get a mortgage in his or her name.

The spouse walking away from the house, not only wants their share of the equity in the property, but must get their name off the mortgage so their credit score won’t reflect the debt, and so they won’t be liable for any non-payment.

Once your name is on the mortgage, you are jointly and severally liable for the entire debt amount. The mortgage can tie up your credit, making it difficult to qualify for another mortgage, or even a car loan.

Worse still, if there’s a default or late payment of the mortgage – you are not only going to be sued – your credit report score could drop considerably, even though you are not at fault.

In order to determine who gets to keep the house, you must consider who qualifies for a new mortgage on their own. If you do, could you afford all the other expenses associated with living in that home: taxes, insurance, utilities, lawn, pool, maintenance etc.

As the New York Times reports:

This preparation should happen early on in the divorce process, but too often people are too busy arguing, litigating, fighting, and having no idea of the whole picture.

A few things to consider: find out from a mortgage broker how much mortgage you could afford early on in the case. Spouses planning to count child support and alimony as income to qualify for a mortgage should know that lenders will require proof of at least six months’ receipt of that income before closing. In addition, there are other Fannie Mae guidelines.

The New York Times article is available here.

More Older Couples Divorcing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, November 6, 2015.

Hilary Stephens was 57 when she walked away from her 28-year marriage. As the New York Times reports, late-life divorces are on the rise.

A late-life divorce, also called “silver” or “gray” divorce, is becoming more common, and more acceptable. In 2014, people age 50 and above were twice as likely to go through a divorce than in 1990.

Reasons for Late-Life Divorces

Remarriage. Many are in second marriages, and the divorce rate is about 2 1/2 times greater for second marriages than first.

Life expectancy. People are dying later in life. These days, if you’re 50 or 60, you could live on for another 30 more years.

Loss of Stigma. Separation no longer holds the stigma it once did.

Status of women. Women initiate a majority of divorces. “As women gain financial independence, they feel safe leaving an unhappy union.”

I’ve written about late-life divorces before. Some things to consider if you are considering a late-life divorce:

Florida, like many states, is going through a lengthy legislative alimony reform battle. Your expectations about support and alimony could be frustrated.

Your retirement money could be cut in half. Retirement accounts, and other assets, are presumptively split evenly.

If you keep the house, you may have to give up something. We are out of the housing recession, and houses have a lot of value now. You may have to take a smaller share of a pension, or a smaller alimony amount.

Children are still a factor. Maybe there isn’t the same gut-wrenching custody issues, but a lot of parents provide some kind of financial assistance for adult children.

Get a prenuptial agreement if you are considering marrying a second time.

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

The New York Times article is here.