The One Day Divorce and Other Self Help Programs

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

Everyone knows divorce can be a long process. San Diego has a new program to help you complete your divorce in 1 day. Is there a problem with court-created ‘do it yourself’ divorces?

A New York Times reporter discovered a big one:

A real estate broker in Manhattan, used a $50 online do-it-yourself divorce kit when she and her husband of more than nine years decided to part ways. She figured they could save money by avoiding lawyers.

But after the courthouse clerk rejected her filing because the document formatting was incorrect, she had the paperwork reviewed by a lawyer, who informed her that if she waited six more months to file, she would be entitled to a portion of her husband’s pension benefits.

“If I had to do it over, I would hire an attorney immediately,” she said.

Do it yourself divorces only seem to reduce the cost and time of a divorce. However, people overwhelmingly are unaware of what the law entitles them to, and they lose out on tens of thousands of dollars, and the process can end up taking longer than it would otherwise.

“It’s like going to WebMD and deciding to treat yourself,” said Michael Stutman, a family law specialist in New York.

In Florida, a large number of divorcing people go it alone. Typically, people file initial divorce paperwork themselves, but don’t know what to do next, so their file languishes for months. Budget cuts in our state courts have reduced personnel and made the problem worse.

San Diego’s introduction of a one-day divorce program for people who can’t afford or don’t want a lawyer was not intended to protect your rights, the program was designed to solve a court administrative problem by flushing your case as quickly as possible.

Also, the program doesn’t mean a divorce is truly started and completed in a single day – residency and notification requirements have to be met first. You must, for example, already have filed a divorce petition and served your spouse with divorce papers to participate.

Florida does not offer a One-Day Divorce yet, but in Miami-Dade County the court offers a Self Help Program to provide necessary forms for a fee. But the program is designed to reduce delays caused by insufficient filings.

You are strongly cautioned that if you have any assets or may be paying support for a while, that you avoid one-day programs and self-help clinics like the plague.

You can read more about San Diego’s pilot program by clicking this link to NBC San Diego

Can Using Legal Marijuana hurt your Custody Case?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, June 17, 2014.

Colorado legalized marijuana for recreational use. 20 states legalized pot for medical treatment. If pot is legal, can it still be a factor in your child custody case?

All drugs in the U.S., are classified into 5 distinct schedules depending upon the drug’s acceptable medical use, and the drug’s abuse or dependency potential.

Schedule I drugs have no currently accepted medical use, have a high potential for abuse, and are considered the most dangerous with potentially severe psychological or physical dependence.

Believe it or not, marijuana is classified under the Controlled Substances Act as a Schedule I drug. Along with heroin and LSD, marijuana is considered one of the most dangerous drugs under federal law.

Although illegal under federal law, what if pot was legal in your state? Could it still be a factor in your custody case? These questions are worth asking because over 20 states have legalized the medical use of marijuana, and it may only be a matter of time before Florida does.

While the legal standard for parental responsibility in Florida is ‘the best interest of the child’ test, maintaining an environment for a child free from substance abuse is a factor courts must consider in determining the best interests of a child.

In Colorado, pot smoking parents fear the legal use of marijuana can still be used to take their children away. Anti-marijuana-legalization parents argue that pot in a home threatens kids.

“There are people who are very reckless with what they’re doing, leaving marijuana brownies on the coffee table or doing hash oil extraction that might blow the place up. Too often with law enforcement, they’re just looking at the legality of the behavior and not how it is affecting the children”.

The Colorado Court of Appeals sided with a marijuana-using dad who lost visitation rights though he never used the drug around his daughter. The court reversed a lower court’s decision that the father couldn’t have unsupervised visitation until passing a drug test.

In Florida, we side with federal law, so marijuana use is illegal. However, many other states have legalized it in opposition to federal law. If you are involved in a child custody dispute, legal pot smoking is a very murky area of law to be aware of.

More on the controversy over legal marijuana and child custody can be found in the Washington Post.

Father’s Rights on Father’s Day

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Saturday, June 14, 2014.

Happy Father’s Day! There is a feeling among fathers that courts assume the mother is the only real parent. Men fear losing their kids in divorce court. Many think divorce courts are biased towards women. Are they right?

As Slate reports:

There’s a real perception – even women share it – that courts are unfair to fathers,” says Ira Ellman, a custody expert at Arizona State University. But in fact the great revolution in family court over the past 40 years or so has been the movement away from the presumption that mothers should be the main, or even sole, caretakers for their children.

Cases which involve fathers who never married the mothers are relatively new to the courts, but divorce courts have a long history of trying to keep up with changing gender dynamics.

The legal presumption that mothers should automatically get custody of children what in Florida we used to call the “tender years” doctrine has been abolished. Now Florida has a presumption of shared parental responsibility.

Are men’s rights activists right when they argue mother preference still exists? According to one of the most thorough surveys of child custody outcomes, which looked at Wisconsin between 1996 and 2007, the percentage of divorce cases in which the mother got sole custody dropped to 45.7% from 60.4%.

A recent survey by the American Academy of Matrimonial Lawyers shows that an increasing number of moms will be setting aside time to sign child support and alimony checks. Overall, 56% of the nation’s top divorce attorneys say that they have seen an increase in the number of mothers paying child support during the past three years, while 47% also note a rise in women being responsible for alimony throughout the same time period.

The real inequality in family courts these days may not be gender bias, but income bias. Wealthy men can end up paying very little in child support if they fight for substantial or majority timesharing. For poor men though, who may lack the ability to care for their children most of the time and pay a larger percentage of their salary as child support, the law may seem stacked against them.

For more on the Slate story, click here.

Taxing Parents Who Won’t Agree to a Child Support Amount

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On behalf of Ronald H. Kauffman, P.A. posted in Child Support on Sunday, June 1, 2014.

If parents can’t agree to a divorce figure in Britain, the paying parent will have a 20% fee added to their child support and the payee will pay 4%. Oh, and it costs about $35 up front to register. What is happening in the UK?

As the BBC reports, thousands of letters are to be sent to single parents in Britain informing them of changes to their child support. The government wants parents to agree on child support “amicably” or pay the state.

Under the old British system, many single parents used the Child Support Agency (CSA) to sort out maintenance payments but it will soon be abolished.

A government spokesman said the old CSA was using an IT system that was “totally inadequate and notoriously riddled with defects”, and as such it was costing £74 million per annum to run in operating costs alone.

The CSA “took responsibility away from parents, encouraging conflict and hostility at huge expense to the taxpayer“.

So, the British are trying to improve service by encouraging people to come to voluntary arrangements, and if that is not possible – and the new statutory service is used – then both parents will have to pay.

The problems with the new system are easy to see. Most parents are able to agree in private to a child support calculation. However many other parents can’t unless a state agency steps in to find and use coercive methods to get parents to pay.

“We’re very concerned that closing CSA cases and bringing in charges may deter some parents from making new child maintenance agreements or pressure single parents into unstable arrangements, and children will lose out on vital support.”

There is no question that our state child support enforcement agencies do a tremendous job of getting parents to support their children. Is shifting some of the costs of enforcement on to both parents the wave of the future? We former colonists will have to keep watching the motherland to see.

The BBC article on the new child support system is available here.

Spanking & Custody: Can you lose your children for spanking?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, May 29, 2014.

‘Spare the rod spoil the child’ sayeth Proverbs. This week there’s a debate in France to ban spanking. Can you spank without fear of losing child custody or it impacting time-sharing in Florida?

As Radio France Internationale reports, In France, lawmakers are behind a proposed amendment to a wide-ranging family law which is being debated in the French parliament.

One measure of the proposed bill states:

legal guardians cannot use corporal punishment or physical violence against children.

Spanking in Florida

In Florida you’re not supposed to hit your children. Florida has strong laws for the protection against domestic violence.

Domestic violence includes any assault, battery or any other offense resulting in physical injury of a family member by another family member.

However, parents have to discipline their children, and as the good book says, he who loves his child is careful to discipline him. In Florida, parents have a right to discipline their child in a reasonable manner.

A parent’s right to administer reasonable corporal punishment to discipline a child is not a crime when it does not result in harm to the child.

Harm, by the way, does not mean just bruises or welts for instance. Harm also means that the discipline is likely to result in physical injury, mental injury, or emotional injury. Even if you don’t physically harm a child, your actions could be criminal.

Florida’s parental privilege to use corporal discipline does not give absolute immunity either. Your run-of-the-mill spanking may be protected from charges of child abuse, but punching your child, pushing him onto the floor and kicking him is not.

So, is it open season on kids? Hardly. Guardians and judges are analyzing you, and you don’t want to start off your custody case explaining why you beat your kids. The excuse: “this fellow does what the bible says” will not score a lot of points in a courtroom.

Besides, some studies suggest that time-outs work just as well as spanking for immediate punishment, and that for long-term effectiveness, spanking decreases compliance. Worse, spanking may increase child aggression.

While there are some limited privileges for discipline, there are major risks to your custody case, your criminal defense case, and most importantly, to your children.

The front page of the Miami Herald is usually filled with horrible stories each week on child abuse. As a society, we are constantly searching for ways to protect children from abuse. Besides, the results of spanking may be counterproductive.

The RFI report on spanking in France can be read here.

Florida Same Sex Marriage: More State Bans Fall

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On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Tuesday, May 27, 2014.

I’ve written about Florida same sex couples who marry legally, but can’t divorce here. Florida is one of a dwindling number of states outlawing same sex marriage. Last week, two other states’ bans fell.

U.S. District Court Judge John E. Jones III in Pennsylvania called the plaintiffs courageous for challenging the constitutionality of the state ban writing:

“We are a better people than what these laws represent, and it is time to discard them into the ash heap of history.”

Activist judge? Obama appointee drunk with power? Think again. Judge Jones was recommended by ultra-conservative, former Republican Senator, Rick Santorum, and was appointed by George W. Bush.

Judge Jones was also the judge in the famous evolution case whose order barred the Dover Area School District from teaching Intelligent Design, calling it: “a mere re-labeling of creationism” in Kitzmiller v. Dover Area School District.

The ruling is effective immediately.

Same sex marriage bans have been falling around the country this year since the U.S. Supreme Court last year struck down part of the federal Defense of Marriage Act sometimes called DOMA.

Pennsylvania is now the 19th state to legalize gay marriage and 43 percent of Americans now live in a state with full marriage equality, according to the advocacy group Freedom to Marry.

Also this week, Oregon became the 18th state to recognize same-sex marriage on Monday. Couples began applying for marriage licenses immediately after a federal court invalidated its voter-approved same-sex marriage ban.

And finally this week, Utah ordered state officials to recognize more than 1,000 gay marriages which took place in Utah during the two-week period before the U.S. Supreme Court halted same-sex weddings with an emergency stay.

The Pennsylvania memorandum opinion can be read here.

Comedian Louis C.K. On Post-Divorce Fatherhood

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, May 21, 2014.

There’s a thin line between comedy and tragedy. This is true in divorce. Louis C.K. is an actor and comedian. He is also a divorced father who shares custody. He has some interesting comments about being a divorced father.

Personally, I like his crabby and profane stand-up routine, His T.V. show Louie is also great. Last week Louis C.K. gave an interview on National Public Radio about divorce on the program Fresh Air. Here’s what he had to say:

There is a version of divorced life where you’re partners and you’re both taking care of the kids, the kids are spending equal time with each parent, and there’s balance and there’s harmony between the parents because they’re not married in a bad marriage anymore.

If you do it right, it’s a much better life for the kids. I was determined to make sure that my kids still felt me in their lives after divorce. And then I was astonished to find out that they wanted to be with me all the time, that this was positive for them.

It motivated me to make a good life for myself so that the kids would have a good home when they came to my place. And their mom is a good co-parent; we’re good partners together, we’re friends and we’ve both I think done a pretty good job of letting the kids feel like they have everything.

They have a mom and they have a dad who get along and who are both there for them.

This is a great example of what I’d call a near ideal post-dissolution relationship. No one is perfect, and I’m sure his relationship with his Ex is not so clean either. But Louis C.K. portrays his imperfections in the T.V. show:

When his T.V. daughter has to write a letter to AIDS for class, Louie offers some suggestions. “Dear AIDS,” he suggests. “Why don’t you cut it out?”

He’s funny. He’s not perfect. He is doing the best he can . . . and he’s there.

The NPR interview is available here.

Beware of Sperm Donating Vampires!

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On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, May 19, 2014.

If you’re wondering if a sperm donor is a parent of your child, or you’re an intended sperm donor using divorce to impregnate your girlfriend and worried about your rights, be afraid. Be very afraid.

Way before Twilight made vampires sexy, there was The Lost Boys. For the last two years, The Lost Boys actor Jason Patric has been battling a different kind of vampire, and searching for his own lost boy.

Jason and his girlfriend Danielle tried to get pregnant, but the attempts went cold. In 2009 they paid for artificial insemination. Gus was born, named after the Mother’s family, and Gus’s middle name, Theodore, was for the Father’s family.

The couple broke up, and Jason filed for paternity and shared custody. The Mother drove a stake through the heart of the father-son relationship by withholding visits. She claimed he was threatening and hostile.

California has conflicting statutes in its Uniform Parentage Act. One statute says that a person is presumed to be a natural parent if he meets certain conditions, like receiving the child into his home and openly holding out the child as his natural child.

The other statute in the UPA says that a man who donates sperm to a licensed physician for use in a woman other than his spouse is not the natural parent of a child unless agreed to in writing. I’ve written on Assisted Reproductive Technology (ART) before.

Jason and Danielle had no agreement, but he held the child out as his natural child and received the child into his home. At trial, the judge agreed with the Mother, and the Father appealed.

Last week, the Second Appellate District Court in Los Angeles ruled in favor Patric – proving a vampire’s lawsuit can rise from the dead. The case was remanded back to the trial court to hear Patric’s claims to having received the child into his home and holding himself out as his son.

Florida is very advanced in ART 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.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable. These are not contracts for “do it yourselfers” you buy at The Home Depot.

Anyone interested in knowing more, should take steps before the process to avoid these costly and personally devastating custody cases.

The Jason Patric case is available to be read here.

New Domestic Violence Law & Does Margarine Cause Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Violence on Friday, May 16, 2014.

Few people realize that the first hearing for a divorce injunction is ex parte – meaning the other side doesn’t show up or even know about it. In ex parte hearings, you can’t introduce evidence other than sworn pleadings and affidavits. A new law changes that.

The latest legislative session ended, and Governor Scott signed many bills into law. As part of the flock of bills flying out of Tallahassee, a new bill amends Florida law to allow courts in domestic violence cases to take judicial notice of court records when imminent danger is alleged.

Ordinarily, the Due Process clause of the Constitution protects litigants in ex parte hearings, limiting the kind of evidence a party can try to admit without them knowing.

This new bill, which became law this week, provides a waiver to the Due Process requirements for the admissibility of evidence at ex parte temporary injunction hearings.

The Senate bill can be read here.

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Is there a link between eating margarine and the divorce rate?

Florida is a No-Fault Divorce state, so it doesn’t much matter the cause of a divorce. But, have you ever wondered why people get a divorce? I’ve blogged about this topic before. For instance, could divorce rates be linked to other variables?

There could be a correlation, but proving a mere correlation between things does not mean that one causes the other. Just because there is snow outside your window in the morning doesn’t mean sleeping causes snow. Some events are just coincidences, or in statistic-speak, “spurious correlations.”

A spurious correlation occurs when two things appear related, but in reality are not. For the statistically inclined, Tyler Vigen has assembled a few funny charts of spurious correlations. I’ve copied a funny chart showing the rates of divorce and margarine consumption.

More of these funny correlations are available at Tyler Vigen’s website.

Big Change to the Child Support Guidelines

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On behalf of Ronald H. Kauffman, P.A. posted in Child Support on Wednesday, May 14, 2014.

Florida’s divorce guidelines were just changed. The latest amendment allows parents to deviate from the guidelines because of their verbal timesharing schedule. Before they couldn’t. Effective July 1st, now they can.

We’ve been doing child support all wrong. The basic way to run child support is to calculate the combined monthly net income of both parents, the number of children and establish the minimum amount of support. The amount increases for child care and health insurance expenses.

The guidelines are the presumptive award, and courts can only deviate if certain factors in the law are met. One of these factors is the timesharing schedule – if a child spends a significant amount of time with one parent, or a parent refuses to be involved in a child’s activities.

About two years ago, a couple verbally agreed to a 50-50 timesharing schedule and tried to reduce child support based on their agreed schedule. The First District Court of Appeal reviewed the child support order granting their request and reversed!

The parents did not have a court-ordered parenting plan, they just decided it themselves. You know, like adults do. The appellate court reversed their order because the old statute did not authorize deviations based on verbal agreed timesharing schedules.

The First District then reversed around a dozen more such child support cases over the next year. Sadly for the parents who wisely chose to agree to timesharing schedules, they were being told they must go to court, spend money, and litigate the issue when they had agreements.

This latest amendment to the child support guidelines revises the circumstances in which a court may deviate from the guidelines.

After the amendment, a court can deviate from the child support guidelines based on a child’s visitation with a parent as provided in a court-ordered time-sharing schedule OR the time-sharing schedule exercised by the parents.

The bill, CS/SB 104, was just passed by Governor Scott on Monday of this week, and becomes law effective July 1, 2014. The new law will resolve a big problem that has plagued a lot of Florida families, and one that just didn’t make sense.

The details of CS/SB 104 can be read here.