A New Order Impacts Every Dade County Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, October 23, 2014.

A Florida Congressman’s messy divorce is a lot messier. His wife claims he’s not paying for home repairs and cut off her credit cards. Will the new Miami Administrative Order make vengeful tactics a thing of the past?

Dirty tricks, such as cutting off health insurance, chopping up credit cards, and turning off vital utilities, are common events in a divorce.

The Florida Congressman’s wife has been a stay-at-home mother, and has no financial resources to maintain the home. The Congressman’s attorney says:

“If she is a poor housekeeper, that’s her issue, not his.”

In August 2014, the Chief Judge of the 11th Judicial Circuit in Miami-Dade County entered an administrative order impacting every divorce in Miami.

The order imposes new rules which may impact every single new divorce in Miami include the following:

  • Neither party can permanently remove children from their current county of residence.
  • If you have children, the parent with whom the children are not residing should make voluntary payments of child support before entry of an order requiring child support.
  • Parents are ordered to abide by the shared parental responsibility statute.
  • Everyone is required to attend mediation before a final hearing.
  • Everyone is now ordered to refrain from physical, verbal, or any other form of harassment, including by telephone, email, or text messaging at their house or at work.
  • No one in a divorce can conceal, damage, or dispose of any asset, except by written consent of the parties or an order of court.
  • Neither party can cancel telephone, electric, or water and sewer services.
  • Neither party can destroy family records, business records, or any records of income or debts.
  • No one in a divorce can incur any unreasonable debts binding the other spouse.

The new Administrative order is now in effect. It was designed to promote the stability of families going through a divorce, and reduce the number of “emergency” hearings.

The new administrative order is available here.

Lavish Weddings and Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, October 20, 2014.

When Chelsea Clinton married Marc Mezvinsky, it is believed their wedding cost $5 million. Jay Z is rumored to have spent $5 million on Beyonce’s engagement ring. Does spending more on your wedding reduce the risk of divorce?

Ironically, a new study shows that your marriage’s duration is actually inversely associated with how much you spend on the engagement ring and wedding ceremony. Two economics professors at Emory carried out a study on over 3,000 men and women.

The professors found that men who spent between $2,000 and $4,000 on engagement rings were 1.3 times more likely to get divorced than men who spent between $500 and $2,000 on a ring.

But there’s more to the study too. In sum, the professors found that:

There is little evidence that expensive weddings and the duration of marriages are positively related.

High spending on the engagement ring is inversely related with the length of a marriage among males.

High spending on a wedding is inversely related with marriage length among females

Low spending on a wedding is positively associated with duration among both males and females.

High wedding attendance and having a honeymoon (regardless of how much it cost) are generally positively associated with marriage duration.

The wedding industry has grown to a $50 billion industry. The average American wedding cost is $29,858.

“In 1959, Bride’s recommended that couples set aside two months to prepare for their wedding and published a checklist with 22 tasks for them to complete. By the 1990s, the magazine recommended 12 months for wedding preparation and published a checklist with 44 tasks to complete.”

The study suggests that the close relationship between divorce and your spending on a lavish wedding and engagement ring could be due to the stress on couples from the debt of their wedding day and ring purchase.

According to the study, if you are going to have a wedding, invite as many people as possible, and take a honeymoon. The study confirms that a big wedding attendance and any kind of honeymoon – regardless of cost – was positively associated with the length of a marriage.

The study can be read here.

Custody and Courtroom Demeanor

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, October 13, 2014.

How you speak, dress and act can impact the outcome in a child custody case. Judges use their intuition to size up a witness. Being aware of that can be critical.

For one mother who lost custody, the judge’s perception of her credibility seemed to have been the key issue in her case. I’ve written about courtroom etiquette before.

In the New York case, the Mother testified that she met the Father during an interview at Best Buy. They engaged in conversation which led to discussion of their common interests including music .

He flirted with her and during her training, overheard her conversation about her sexual preference, stating that if she dated the proper person her “lesbian problem would be fixed.”

He invited her to his birthday dinner, and later to his home to record music, had a drink and talked about her sex life.

She spent the night and the following day. The next night he asked to perform oral sex on her again and she agreed. Then he tried to penetrate her and she tensed up and hesitated.She testified she laid there and cried.

She testified that she did not want someone who raped her to be a part of the child’s life. During the hearing, she also testified that he was a “good guy” and a mentor to her.

The Judge, considering the Mother’s inconsistent testimony and demeanor. He did not find her testimony credible. In speaking of the alleged rape, she often smiled and laughed; showing a lack of seriousness for the situation at hand.

The Mother’s contradicting testimony and actions indicate, that if awarded sole custody, she would not be able to promote or foster a positive relationship between the father and the child which would be extremely harmful to the child’s well-being and contrary to her best interest.

When testifying, consider the solemnity of the courtroom, and understand that judges are listening and watching you carefully to determine your demeanor and honesty. The case can be read here.

Relocations from the Judge’s Perspective

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Friday, October 10, 2014.

Parent and child divorce cases are some of the most challenging. If denied, a parent may be forced to move without their child. If granted, a parent is crushed, a child could be harmed, and there is a timesharng schedule to work out.

It is always helpful to hear about them from the view of a sitting judge who makes the decision. Whenever a judge writes on relocation, I try to pass along that information as I’ve done before.

Judge Sally D.M. Kest is a judge in Orange County. She recently published an article in The Commentator, a magazine published by our Family Law Section. I currently serve as the Chair of the Commentator for the 2014-2015 term.

Judge Kest has found that many attorneys do not comply with the relocation statute. For example, they forget to present evidence about the factors involving the child’s relationships, fixating instead on the relocating parent will have more time, or more money, or will be happier.

One argument concerns the future parent/child relationship becoming as good, or even better, because the child and non-relocating parent will have extended timesharing during the summer or vacations.

This ignores the benefits of having regular contact with a child. Daily contact allows the parent to be involved in the daily life, friends, school and extra-curricular activities of the child.

One problem in relocation cases is balancing the statutory factors and the parent’s reason for relocation. The typical reasons for relocation include: remarriage of a parent, a new job offer, a job transfer, a desire to pursue additional educational opportunities, or a desire to be closer to extended family.

While these life events may result in some positive benefits for the child, the court must balance these benefits against the loss of regular and consistent contact with the non-relocating parent.

Another problem overlooked is that people forget to consider the child’s loss of frequent contact with the stay home parent. Failing to acknowledge that the move will significantly affect the parent/child relationship can result in of the court denying the relocation.

People also forget that for the court to make findings and decision regarding the relocation, the facts presented at the evidentiary hearing must address the statutory factors.

In Florida, there is no presumption for or against relocation. The court must, however, consider the best interest of the child. Petitions for relocation are given priority on the court’s calendar.

Relocation cases are intense. You must present the facts in the case that will support the relocation. Parents who recognize these facts and address them in their trials will be more likely to have their relocations granted.

Judge Kest’s article can be found here.

Leaving or Staying in the Marital Home

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On behalf of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Sunday, March 9, 2014.

Should you move out of the house before the divorce is over? One couple was recently ordered to build a wall inside their house to separate them. Many clients wonder if moving out helps or hurts their case. Others wonder if they are losing rights.

Sometimes the arguing gets too intense, and the court must intervene. For one couple in Brooklyn, their arguing resulted in their being ordered to build a wall dividing their home so each could stay in the house peacefully.

This was not just a simple line on the floor as in the 1989 movie: War of the Roses, but an actual wall of plywood and sheetrock through the middle of their house (see picture above). Interestingly, the judge gave the wife the kitchen and the husband the dining room.

The marital home a valuable asset, maybe your most valuable asset, but it is also a place for you to live in . . . with your children – if you have them. Third it is an important, and possibly big part, of the final settlement.

Marital Asset

The home remains a marital asset, which is subject to equitable distribution, regardless of who lives there during the divorce process. If a home is marital then both parties have equal rights to buy – out the other’s share. Both may also be on the hook for liabilities.

Children’s Issues

Until a parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life. Moving out can create the appearance of a new ‘primary residential parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Cost

The person leaving may still have to contribute for the expenses of the home while also paying for a new home. It can be costly, and prohibitive expensive when you know that the process will take a long time.

Settlement

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty and may be less inclined to settle.

If you Leave

Before moving out, there should be some discussions about maintaining the home and who is paying for which expenses, an inventory should be made of the personal property, artwork, silverware etc., and the boundaries for when the ‘out-spouse’ can use and enjoy the home after vacation

More about the crazy Brooklyn divorce and the separation wall can be read at NBC’s website here.

Supreme Court Denies 7 Same-Sex Marriage Appeals

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On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Tuesday, October 7, 2014.

Yesterday, the U.S. Supreme Court refused to review seven cases invalidating anti-same-sex marriage divorce. There is now a high probability the Supreme Court will invalidate these laws.

Given the pace in which same-sex marriage laws have been changing, I’ve been writing about this often. According to some, all seven cases involved lower courts which struck down state laws, so there was no circuit split, meaning no reason to take on the case.

Around 30-states have legal same-sex marriages, many same-sex couples in those states will have gotten married in the meantime. That will make it harder for the Supreme Court to declare of thousands of new marriages null.

Also, public support for same-sex marriage is growing steadily. A Supreme Court decision, when it occurs, will occur in a country that is more favorable to same-sex marriage than it is ow. This could affect swing votes like Justice Anthony Kennedy, who might be willing to hold that the Constitution guarantees a right to same-sex marriage, but may still be conflicted.

If justices Ruth Bader Ginsburg and Stephen Breyer were replaced with conservative justices, that might create an anti-gay marriage majority on the Court, but Ginsburg and Breyer might stay on long enough to decide the gay marriage issue.

We may get a Supreme Court decision striking down laws banning same-sex marriage in the next few years. That is because laws banning gay marriage discriminate on the basis of sex, they violate the fundamental right to marriage, and have been found to fail even the lowest level of judicial scrutiny, rational basis.

In addition to the growing number of victories in the circuit and district courts, and in state courts around the country, we are growing more confident that anti-same sex marriage laws are headed for the dust bin of history. When we don’t know.

More can be read at The Volokh Conspiracy here.

Will The Pope Allow Marriage After Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Religious Divorces on Tuesday, September 30, 2014.

If you divorce, can you re-marry? Catholic bishops are gathering at the Vatican for a Synod, and may change Church doctrine on offering Communion to divorced Catholics who remarry.

The Washington Post notes that the changing nature of relationships – from marriage to divorce, cohabitation and gay unions – will top the agenda at the global Synod and also figure prominently at next year’s World Meeting of Families in Philadelphia.

“We are going to deal with realistic issues,” Philadelphia Archbishop Charles Chaput told a media conference at the Vatican on Tuesday. “The issues of family life will be part of this.”

Pope Francis, the first non-European pope in 1,300 years, has expressed tolerance on a range of issues, famously asking “Who am I to judge?” about gay relationships.

In a worldwide survey earlier this year, bishops showed they were looking for new ways to deal with unmarried couples, divorced people and single parents disillusioned with the church, while opposing same-sex unions and abortion.

But for many Catholics, the question of Communion for the divorced remains the key issue and there is plenty of division even among conservatives.

While divorced Catholics, who have not remarried, are free to take Communion, divorced and remarried Catholics, in general, are forbidden from.

The only way around this problem is through it. Couples must go to a Marriage Tribunal, and if it’s determined that there never was a true marriage in the first place, and if there is repentance, permission may be granted to receive Communion again.

“The status quo is unacceptable. For the spiritual well-being of the divorced and remarried members of our Catholic family, for the salvation of their souls, we’ve got to do something!”

Religion often plays a big part of a civil divorce decision, as couples need to consider how to practice their faiths after a marriage is dissolved. The article can be read here.

Domestic Violence and Zero Tolerance: Is It Better Protection

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Violence on Monday, September 15, 2014.

The NFL has a “zero tolerance” policy for divorce. Will this increase reporting of violence or decrease it?

I’ve written on domestic violence issues before. The NFL’s new zero tolerance policy for domestic violence makes good commercial sense for the NFL. But what about football players’ wives?

If they call the police, and their football star husband is prosecuted, that likely means a loss of millions of dollars to the wife when they are suspended. A battered wife calls the police, and their husband is out of a job, can’t pay the mortgage, and the wife and their children are headed for the poor house.

The Ray Rice case is a good example of the problem. Because the Ravens terminated his contract, they no longer owe him a $3.529 million nonguaranteed salary for this year. Rice had remaining nonguaranteed base salaries of $3 million in 2015 and 2016 that have now been eliminated.

The Ravens don’t owe him any more money. In any other job and you get arrested for domestic violence, and you could get fired. In the NFL though, you could get blackballed.

Previously, an abused woman might be willing to expose abuse to obtain protection against domestic violence. But what if every time a spouse reported domestic violence it meant the loss of their husband’s career?

The husband’s job loss would mean that the standard of living enjoyed during the marriage would be over. And worse still, the husband would be unable to pay child support, or keep the wife and the children in the family home, or have the ability to pay alimony.

This policy places abused women in a difficult choice: don’t report abuse and continue to enjoy a wealthy lifestyle, or report abuse and suffer a dramatic financial loss.

There is a likelihood that some women may not be willing to make that choice, and won’t call the police or tell their attorney out of a fear that it will leak out.

Alternatively, a battered woman may not want to say anything when the abuse first starts. By the time they do call the police, the abuse has become so bad that they’d be willing to ruin their own financial success for protection it may be too late.

What if the zero tolerance policy makes abused wives unwilling to report initial or less severe abuse, out of a well-founded fear of losing their financial standing, until the abuse becomes so bad, they risk their very lives?

The Volokh Conspiracy post is here.

Same Sex Marriage Ban Upheld

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On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Wednesday, September 10, 2014.

Favorable decisions in most courts over same sex divorce and marriage laws made you think all courts ruled the same way. A federal court in Louisiana shows that’s not true.

This lawsuit challenged the constitutionality of Louisiana’s ban on same-sex marriage and its refusal to recognize same-sex marriages permitted in other states and follows other cases I’ve written about.

Jonathan Robicheaux married his same-sex partner in Iowa, but lives in Orleans Parish, Louisiana; he alleged that Louisiana’s defense of marriage amendment to the state constitution violated his federal constitutional rights.

As the New York Times reports, Judge Martin Feldman, of the U.S. District Court for the Easter District of Louisiana in New Orleans wrote the order that the regulation of marriage was left up to the states and the democratic process; that no fundamental right was being violated by the ban; and that Louisiana had a “legitimate interest … whether obsolete in the opinion of some, or not, in the opinion of others … in linking children to an intact family formed by their two biological parents.”

Judge Feldman’s ruling was the first to uphold a state ban on same-sex marriages since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year in the Windsor case.

Gay-marriage supporters had won more than 20 consecutive rulings overturning bans in other states. They said they would take the Louisiana case to the New Orleans-based 5th U.S. Circuit Court of Appeals, which already has before it an appeal by the state of Texas of another federal judge’s ruling that struck down that state’s gay marriage ban.

While the Windsor decision found that the federal same-sex marriage ban was discriminatory, it left a tension between the constitutional rights of same-sex couples and the authority of states to regulate marriage.

Same-sex marriage is currently allowed in 19 states and the District of Columbia, as a result of court decisions, legislative action or referendums. In some other states, courts have struck down bans, but those decisions have been stayed pending appeal.

An appeal to the United States Court of Appeals for the Fifth is assured. The Fifth Circuit is a federal court with appellate jurisdiction over the district courts in Louisiana, Mississippi, and Texas. Florida used to be in the Fifth Circuit, But, in 1981 Florida was moved into the newly created Eleventh Circuit.

The New York Times article is here.

Are Same-Sex Divorces in Florida Legal Now?

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On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Friday, September 5, 2014.

In Florida, same-sex marriages are not recognized. Last month a Broward judge granted a same-sex divorce, and the time to appeal passed without an appeal. This allows the judge to finalize the same-sex divorce. What’s going on?

As the Miami Herald reports:

Brassner and Lade entered into a civil union in Vermont. In 2010, according to Brassner, Lade cheated on her and disappeared. Brassner, who still doesn’t know where Lade is, has now partnered with someone else and would like to marry someday.

I’ve written on the problem we have in Florida with same-sex divorces before. Florida law forbids recognizing the Vermont civil union and therefore won’t permit a divorce. And Vermont won’t dissolve the union without a signed affidavit from the missing Lade.

On Aug. 4, Judge Cohen declared Florida’s gay marriage ban unconstitutional and that Brassner and Lade be divorced, but stayed his ruling until after the 30-day appeal period was over.

“This Court finds that Florida’s ban on same-sex marriage violates the guarantees of due process and equal protection under the laws,” Cohen ruled. “Florida’s prohibition on same-sex marriage denies some citizens, based on their sexual orientation, the fundamental right to marry, and does so without a legitimate state purpose. This Court finds these laws are unconstitutional and GRANTS the Petitioner’s Motion For Declaratory Relief, declaring Florida’s ban on same-sex marriage unconstitutional.”

Now we know the state isn’t appealing. A hearing in the case, before Broward Circuit Judge Dale Cohen, is scheduled for the divorce to become final.

Although Attorney General Pam Bondi’s office offered a comment why the attorney general did not appeal the Brassner and Simpson decisions: “We were not parties to those cases,” Bondi spokeswoman Jennifer Meale said

The Miami Herald article is available here.