Does the Sex of your Judge Matter?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, May 18, 2015.

I am frequently asked by divorce clients whether the sex of the judge, or the mediator or the other side’s divorce lawyer matters. The question is one of gender bias. Gender bias exists throughout society, so why not in the courtroom?

Sex and the Judge

I’ve written about courtroom tips before. If you ever go to court, you will find that the ratio of judges in the Miami-Dade County family division tends to be about a 50/50 split between male and female judges.

Do judges care whether the lawyers and clients who appear before them are male or female? The question really asks are judges biased. The answer is yes . . . to a certain extent. But who isn’t?

Some female judges have a reputation of being pro-female, other female judges have a reputation of being pro-male. The reverse is also true. Some male judges have a reputation of being pro-male, while others are known to be pro-female. It all depends on the personality, upbringing, and personal experiences of your judge.

In examining a judge’s decision which you suspect is gender biased, ask yourself if the result would be the same if the genders of the parties were reversed?

Sex and the Client

All clients make assumptions about the lawyers they hire. Some clients assume that men will be more aggressive and women may be softer in general, and that this preconceived assumption translates to lawyers and judges. From my experience, that is not always true.

I know many female lawyers who are overly aggressive and way too eager to go to court on a matter. I also know many male lawyers who are calm, and looking to resolve disputes not create them. I know of female judges that wouldn’t give you the time of day, and others that would work through the night to resolve a custody case. The difference between the types of attorneys is personality not gender.

Sex and the Lawyer

For me, the gender of the opposing attorney or judges or mediators makes little difference. Some male lawyers are no better, no tougher, or no more difficult to get along with than some female lawyers, judges or mediators.

But, even though the sex of a lawyer, judge or mediator is not very important to me, other qualities about a lawyer are.

Dealing with Gender Bias

Bias affects us all. This is true in the courtroom, the classroom, as well as your bedroom. We all make snap judgments about people based on stereotypes or experiences. It is instinctual to make judgments in this way.

The Florida Supreme Court has authorized a few studies on gender bias in the courtroom. It found that gender bias – discrimination based solely on one’s sex – is a reality. An understanding of how bias operates can help us identify and expose that bias in the courtroom.

The report of the Florida Supreme Court gender bias study is available here.

Job Lock: Modifying Alimony to Pursue a New Job

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Tuesday, May 12, 2015.

People who pay alimony can be prevented from changing jobs if the change means a lower salary. The court won’t stop you from changing jobs, but it won’t modify your alimony obligation downward. This means you could be locked into your job.

Prof. Margaret Ryznar, from the University of Indiana, published a research paper on the “job lock” effect of alimony. Professor Ryznar’s paper comes at a good time, as I’ve been writing about alimony a lot while Florida debates alimony reform.

Although Florida alimony reform failed again in 2015, alimony laws have been under attack in Florida for years. Alimony laws used to be generous, including permanent support. These days, only Florida and a few states continue to allow lifelong, permanent alimony.

Maybe one reason for the rise of alimony reform is the increasingly negative view people have of alimony. Clients view alimony as an inflexible and ironclad financial obligation, one that does not allow for nuance in individual cases.

Florida allows any party to modify alimony, whether alimony was agreed to in a marital settlement agreement, or ordered by the court, if the circumstances or the financial ability of either party changes.

However, the change in circumstances must have occurred after the order awarding alimony. Additionally, a modification of alimony requires proving a change in circumstances. If so, a modification in Florida depends on the type and the purpose of the alimony award.

Where a substantial change in circumstances is your reason for modifying alimony, you must show the substantial change in circumstances was not contemplated at the time of the order, and that the change is sufficient, material, involuntary and permanent in nature.

There are many reasons for alimony modification. A court may reduce or terminate alimony if a spouse has entered into a supportive relationship with a person with whom he or she resides. Also, the unemployment and retirement of the paying spouse are valid reasons.

Because courts are likely to be unwilling to modify alimony based on a change of job to a lower salary, the professor’s new research paper proposes a new test that balances the interests of the alimony recipient with those of the payor.

For example, is the change in job designed to avoid paying alimony, or an investment in the future, or is it due to a change in circumstances? If someone takes a pay cut to become mayor or a judge, should their dream job be prevented due to an alimony obligation?

A balancing test made for each case may be what is needed to protect families who rely on support, and release a possible job lock effect of an alimony award. The research paper is available here.

Florida Alimony Reform 2015: R.I.P.

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Friday, May 1, 2015.

As I boldly predicted in March, the Florida House would end session early, leave while the Senate was in session, and kill the alimony reform bill. OK, I didn’t predict this at all, but what does this mean for alimony reform?

As the Palm Beach Post reports in an excellent article which I quote lengthy from:

after a year of wheeling-and-dealing by lawyers, lawmakers and others, the alimony proposal died when the Senate refused to take up the House’s version of the bill.

I’ve written about the differences between the bills before. The House proposal didn’t go as far as Senator Lee wanted. Lee said language about child sharing in the House bill was “poorly drafted” and “designed to create confusion in the courts.”

House Rules Chairman Ritch Workman accused Lee of being a “bully” and “hijacking” the bill for his own reasons.

The Family Law Section of The Florida Bar supported the alimony overhaul but strongly opposed the Senate’s 50-50 timesharing provisions, one of the reasons Scott gave for his veto of the 2013 version.

“Workman accused Lee of having a personal grudge about the issue because of Lee’s own child custody dispute.

“What he cares about is getting back at the judge that didn’t give him 50-50 time share 15 years ago or whenever he got divorced,” he said.

Lee said his views had nothing to do with his own situation.

“I actually have 50-50 custody of my children. So, nice try.”

Lee said the bill was doomed because the House left before he could work out his objections to the time-sharing guidelines.

The truth is he He killed his own bill because he made commitments to an organization [the Florida Bar Family Law Section ed.] that didn’t need a bill.”

Workman accused the Lee of “extortion”. “Don’t come back now and cry me a river over a problem that he created for himself early on in the process. Hopefully there’s a lot of learning that comes out of this,” he said.

Lee said he intends to file the bill again next year if Stargel is not involved. “If she isn’t, it will be Senate Bill 2. I will file it and if they don’t want to move it next year then we’ll move it in 2017 when he’s no longer a member of the Florida Legislature,” Lee said of Workman.

The excellent review in the Palm Beach Post is available here.

Do-It-Yourself Artificial Insemination & Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Wednesday, April 29, 2015.

Assisted Reproductive Technology (ART) usually involves combining eggs with sperm, and returning them to a woman’s body in a licensed lab. But in a pinch, will a turkey baster in your kitchen do the trick?

Joyce Bruce wanted to conceive a child, without the involvement of a father. She mistakenly thought that if she became pregnant without having sex, the biological father, Robert Boardwine, would not have custody rights.

She approached her longtime friend, Boardwine, and asked him to be a sperm donor. He agreed, but they never signed a written contract regarding any resulting pregnancy.

To become pregnant, he would stop by her house and would give her a plastic container containing his sperm. She would then use a turkey baster to inseminate herself. They did not go to a doctor’s office or to a medical facility.

On July 7, 2010, she discovered that she was pregnant. They never had sex, never lived together, and they do not intend to live together.

Their relationship deteriorated when she would not agree to his suggested name for the child. She did not inform him of the birth and did not list him on the birth certificate.

The Father filed a suit to establish his rights with the child, since he was the biological father. She argued that since she used “noncoital reproductive technology” to get pregnant, he was only a sperm donor without rights.

The trial court found that when he provided his sperm, the parties intended for him to be a legal father, and awarded joint legal and physical custody as well as visitation.

The Virginia appeals court held that “medical technology” in the Children of Assisted Conception Act, does not mean a turkey baster. So ART law does not apply.

As funny a situation is it sounds, it is a serious problem. Florida is very advanced in this area of law, and is one of the few states that permits intended parents to establish the parental status to a child born through ART without a paternity/adoption process.

As I’ve written before, ART statutes make detailed provisions that must be followed for a contract for it to be enforceable. If you’re looking at your kitchen implements as a form of do-it-yourself home pregnancy device, think about the legal risks.

The opinion is here.

Florida Alimony Reform and Equal Timesharing (Custody)

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Friday, April 24, 2015.

There are two bills in the Florida House and Senate to drastically change alimony. This week, both the House and Senate bills passed their remaining committees and are ready for floor votes. So why write about custody?

I’ve written about equal timesharing before. The reason for the latest update is that both alimony bills have strong language about how judges must award custody rights to parents. But each is slightly different fro each other.

The bills have different language, but both will dramatically change the laws of custody in Florida if passed and signed by the governor.

Senate Bill 1248

“Approximately equal time-sharing with a minor child by both parents is presumed to be in the best interest of the child.”

Senate bill 1248 creates a presumption that approximately equal timesharing with a child by both parents is in the child’s best interest. However, a court can establish an unequal timesharing arrangement if it wants.

The judge would have to show an unequal timesharing arrangement is best, and make written findings as to why. The Senate bill has an October 1, 2015 effective date.

House Bill 943

It is further the public policy of this state that a child’s interests are ordinarily best served by the equal and active involvement of both parents in the child’s life. Absent good cause, it is in the minor child’s best interests to have substantial time sharing with both parents.

The House bill started as strictly an alimony bill. However, this week Rep. Burton added the amendment quoted above, and the timesharing provision is different from the Senate version.

First, the bill specifically sets forth a new public policy. It is not common for Florida public policy to be specifically expressed in the statute. What is rarer is that this adds to a previous public policy statement about timesharing already in the statute:

It is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing

Second, and unlike the Senate version, the bill does not require “equal timesharing” at all. What it does is codify what I think many judges presume: it allows willing parents to spend a substantial amount of time with their children after divorce and separation.

There is only a few more days left in the regular session of the Legislature this year. Anyone involved in a pending action, seeking to establish a new alimony or parenting plan case, or modify an existing one, should keep their eyes on Tallahassee.

The House Bill can be found here.

Modern Family: Sofia Vergara and Fertility Agreements

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, April 20, 2015.

There has been a big increase in Assisted Reproductive Technology (ART). In Vitro fertilization and other ART now accounts for 3 of every 100 children born here. Without an agreement though, the modern family can end up in court.

Consider the legal battle actress Sofia Vergara is waging with ex-fiancé Nick Loeb over frozen embryos. Sofia Vergara’s former fiancé has filed a lawsuit in California to stop her from destroying a pair of frozen embryos created while they were engaged.

The ex-fiancé filed the lawsuit after the two broke up for good in an attempt to save two cryo-preserved female embryos created through in vitro fertilization.

“He is trying to save two female embryos from destruction,” a source close to Loeb said.

According to court documents, Loeb, sued Vergara last August to “ensure that the female embryos” are kept safe, because Vergara “refuses to agree to their preservation under all circumstances.” The suit also names as a defendant the clinic where the embryos are being held, the Art Reproductive Center in Beverly Hills.

At the time of undergoing fertility, people should not only sign agreements but think about this really carefully. The options are: Do you want the embryos destroyed? Do you want to divide them between the two of you? Do you want to donate them to research? It’s important to think about that when you and your partner get along.

Most clinics use consent forms that require both patient and a partner to answer specific questions about what to do if the couple splits up or one of them dies, experts say.

In Loeb and Vergara’s situation, they answered questions about what should happen in the case of one or both of their deaths, but not separation, according to court documents.

I’ve written about this before. Florida has set itself apart from other states as a haven for ART. Our laws make the process less prone to legal problems. Some states and countries ban these practices altogether.

Florida is very advanced in this area of law, and is 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. If you’re thinking of slapping together a “do it yourselfer” contract, think again, you could face legal risks.

The CNN article is here.

Alimony Reform & A Presumption of Equal Timesharing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Thursday, April 16, 2015.

Equal timesharing and alimony reform are back again, as the Florida Legislature is in session. Competing House and Senate bills are being circulated which dramatically change alimony and may create a presumption of equal timesharing (custody).

I’ve written about the Legislature’s past attempts to reform alimony before. Senate Bill 1248 is the latest attempt to do away with permanent alimony, and create a set of guideline to automatically calculate the amount of alimony awardable, and the term for how many years alimony would last.

Both bills reform alimony. With respect to alimony amounts, the bill establishes presumptive alimony ranges. The presumptive amounts are determined by formulas based on the difference between the parties’ gross incomes and the length of the marriage. The bill also limits the duration of alimony to 25% or 75 % of the length of the marriage.

However, unlike the House bill discussed in earlier posts, the Senate bill adds something different: equal timesharing for moms and dads:

“Approximately equal time-sharing with a minor child by both parents is presumed to be in the best interest of the child.”

The bill establishes a presumption that approximately equal timesharing with a child by both parents is in the child’s best interest. However, a court can order unequal timesharing if unequal timesharing is supported by written findings of fact.

Fifty-fifty timesharing between parents sounds like a great idea, and there are strong arguments for and against a presumption of equal timesharing. Here are some of the argument for and against a presumption in favor of equal timesharing:

Pro

Each year, cases are tied up in court to establish a right to see their children that they would automatically have if they were married.

An equal time presumption promote Florida’s existing policy of frequent contact after divorce.

Equal timesharing puts the burden on the parent opposing equal timesharing, changing the dynamics of custody litigation.

Equal timesharing is consistent with Florida’s existing no-fault concept.

Con

Requiring every family to have equal timesharing is like requiring every family to wear a size 4 shoe. Not every family fits.

The presumption creates a uniform rule where the flexibility of ‘the best interest of the child’ is needed.

Requires courts to focus on QUANTITY of time instead of QUALITY of time.

Requires courts to focus on what’s best for the parents instead of what’s in the child’s best interest.

With the 2015 Legislative session roaring up north, and competing bills in the House and Senate, this is a very interesting issue to keep your eye on.

Destination Divorces: Where Should You File?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, April 13, 2015.

Where should you file for divorce? If former Miss Malaysia Pauline Chai wins the £500 million she’s demanding, she’ll break all divorce records in the U.K., and that will cement London’s status as the Divorce Capital of the World.

Forbes magazine has reported that the United Kingdom’s Supreme Court in London, is wife-friendly, making it a divorce capital

A string of well-publicized divorces have been filed in London, which wives of very wealthy (and not-so-wealthy) ended their unions with better deals than they would have gotten in other countries.

It has put London at the top of the list for Divorce Tourism – or, as it’s known, “Divorces Eurostar.”

London saw its reputation as the divorce-jackpot destination enhanced after the Supreme Court last year overturned what’s known as the ‘cheats’ charter.’

“Britain’s highest court has ruled that millionaires cannot use their business interests to shield their wealth from their spouses in divorce cases.

While many divorce lawyers celebrated the end of the ‘cheats’ charter’ reveling in the reassertion of London’s reputation as a haven for divorcing wives, others worried that it will be replaced by a “gold diggers’ charter,” and threaten the independence of companies.

Marriage break-ups involving foreigners account for a sixth of cases before the English courts, which means a significant increase in international divorces now estimated to be 24,000 of the 150,000 in England and Wales each year.

Another ruling on marital property agreements affirmed English courts’ reputation as more generous than others. The landmark case introduced the principle that divorcing ‘money earners’ should not necessarily retain the surplus after a parting couple’s needs had been met. Instead, the residual cash should be divided equally.

London’s reputation as the divorce capital was reinforced again, in an anonymous case in which the court awarded £54 million to the wife, or 50% of the husband’s fortune, surpassing the previous record case in which an insurance magnate had to fork over £48 million to his wife after she rejected his £6 million settlement offer.

“The mother of five, Ms. Chai, who has been living on their 1,000 acre, £30 million home in Hertfordshire since October, issued a divorce petition in England in February.

His lawyers have told the British Court that allowing the case to be heard would enhance “the ill-gotten reputation of this country for being the divorce capital of the world.

The Daily Mail article on the divorce can be found here.

Wedding Checklist: Prenup and Premarital Counseling

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, April 1, 2015.

Before every wedding, you are surrounded by parents, friends, florists and caterers. You’re caught up in the excitement. This leads many to mistake the wedding as the end of the process when it’s really the start. A prenup can help.

As the New York Times recently reported:

“Marriage can be a minefield that blows up without the proper navigation these days,” said Debbie Martinez, a Miami relationship coach. That is why some couples are taking pre-marital counseling sessions to refocus their attention on each other and the lives they will lead together.

Unlike the marriage counseling people do years after a wedding, premarital counseling addresses unrealistic expectations of “happy, roses and rainbows,” said Jocelyn W. Charnas, a clinical psychologist in Manhattan who counsels engaged couples.

“The fundamental point about premarital counseling is to lay a foundation for empathy, communication and partnership,” Dr. Charnas said. This is especially true, he said: “for those couples in their 20s and 30s with good jobs and money saved. They view marriage as the capstone moment. They have arrived.”

Premarital counseling can serve a similar purpose as prenuptial agreements. I’ve written about pre-wedding preparation before, especially the importance of prenuptial agreements.

A prenup can help with the following:

Keeps Your Non-Marital Property Non-Marital. The property you brought into the marriage is yours. But over time it is common for people to start mixing things up. If you put it in writing, you can avoid this problem down the road.

You Can Change the Law. Right now in Florida, there is an ongoing legislation about alimony. Through an agreement you can modify Florida’s legal standards for awarding alimony.

Avoid Expensive Endings. A prenuptial agreement can simplify things by resolving issues ahead of time, way before death or divorce occurs. Once you have entered an agreement, everything should become cheaper.

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

Citing the findings of a National Marriage Project, Mr. Wilcox said, “Couples who do premarital counseling fare better.” When two people love each other, it is hard to talk about kids, finances and other difficult subjects.

Some have other names for what can occur after the wedding cake is cut and the presents opened: the “post-wedding blues” or “crash.” It is a common phenomenon that typically occurs as life returns to normal in the days and weeks that follow the wedding and the couple ceases to be the center of everyone’s attention.

Voicing these concerns and strategizing about how to manage them can be tremendously helpful.”

The New York Times article can be read here.

Don’t Invest When a Fund Manager is Divorcing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, March 30, 2015.

Have you ever wondered if your stock market investments are impacted by your broker’s divorce? A recent study from the University of Florida shows that divorce can have an impact on a funds stock market performance.

Knowing if someone is going through a divorce can be an investment decision. A hedge fund’s alpha – the measure of how much it beats the market – has been shown to fall by an annualized 7.39 percent during a divorce.

Busy fund managers, who manage larger funds and engage in high tempo investment strategies, are more affected by marriage.

The study also found that fund managers who depend on interpersonal relationships in their investment strategies are more affected by divorce. Behavioral biases may partially explain the connection between inattention and performance deterioration.

An even more surprising result is that marriage actually does more damage to a fund manager’s performance, according Dr. Sugata Ray, one of the paper’s authors.

I’ve written before about the impact that a divorce can have on stock performance by comparing the stock performance during Rupert Murdoch’s divorce and the divorce of Harold Hamm.

Divorce has always been a red flag for savvy investors. Hedge fund manager Paul Tudor Jones II, said he withdraws his money from a fund when a manager’s marriage breaks up.

“You can automatically subtract 10% to 20% from any manager when he is going through a divorce,” he told a conference in 2013.

(Jones also famously noted at that same conference that women who have children can’t be great traders, so perhaps we’ll take his opinion with a grain of salt.)

Younger fund managers tend to have more performance problems around a divorce. The annualized alpha of younger fund managers fell by 15.7% when they got divorced, while older managers only lost 4.1%.

One hedge fund manager, Ken Griffin, hasn’t been affected (yet) by marital strife. He is in the middle of one of the most public and nasty divorces in recent memory. Despite that, his company’s three big funds have continued to outperform the market.

Another big factor is whether a fund manager has partners to help steer the ship during a crisis. Managers that work alone “get clobbered when they go through marriages and divorces,” said Ray. “They start to fall prey to behavioral biases, like selling their gains and holding on to their losses longer than they should.”

The findings were based on data collected from 1994 to 2012, tracking 786 managers who went through 857 marriages and 251 divorces.

The CNN article is available here.