Alimony Reform Update: Is Alimony Unconstitutional?

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On behalf of Ronald H. Kauffman, P.A. posted in Alimony on Wednesday, December 18, 2013.

People don’t like paying alimony. I’m not being sarcastic. Alimony can be a tax deduction, so you could end up paying your Ex less support overall. But, the tax advantage is often outweighed by the perceived injustice; hence the move to reform alimony. A new reform front has opened in Connecticut, where four guys are trying to have alimony laws declared unconstitutional.

Florida’s alimony reform movement is different, and has focused on trying to amend the law in the legislature. Last year they tried to pass a bill eliminating permanent alimony, but Governor Scott vetoed it. They are trying again next session. The Connecticut battle is different.

According to Courthouse News Service, a nationwide news service for lawyers, four Connecticut ex-husbands are suing their governor to have alimony laws declared unconstitutional:

Alimony is an historical anachronism, a remnant from an earlier legal era when the rights of women vis-à-vis their husbands, and in society in general, were radically different than they are today.

Connecticut’s alimony scheme is unconstitutionally vague, giving no notice to citizens contemplating marriage or divorce what fate may befall them in a divorce proceeding. The Legislature, by failing among other things even to identify the purpose or aim or alimony, has delegated basic policy decisions to the judiciary without any meaningful guidance.

The Ex-Husbands claim that in no area of law other than family relations does Connecticut give a civil litigant the ability to use penal remedies to enforce a money judgment.

There is some precedent for calling alimony laws unconstitutional. The U.S. Supreme Court in Orr v. Orr declared Alabama’s alimony statute unconstitutional in 1979, because it only imposed alimony obligations on men not on women, violating the equal protection clause.

Alimony payments can be a good thing for a couple too. Alimony is treated differently than child support in our tax code. If you receive alimony due to a divorce, it is taxable and must be reported on your tax return. The alimony payer can also claim the alimony as a tax deduction, as long as the payments meet code requirements.

It is not uncommon to have child support payments reclassified as alimony – especially in high income earning families – so that the payee spouse gets more money in alimony, the payer spouse get a large tax deduction, and more money is available for everyone.

Although it seems counterintuitive, paying alimony can sometimes be in your financial best interest. Chipping away at this financial freedom for parents may be too much reform. Alimony reform is underway in many states, and Florida is one of them.

Custody, Infants, Breastfeeding & the Tender Years Doctrine

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, December 16, 2013.

How are child custody cases handled for babies still breastfeeding? Florida used to follow the “tender years” doctrine which held: mothers of infants of tender years are best fitted to bestow motherly affection, care, companionship, and early training. Florida abolished the “tender years” doctrine. But it’s interesting to see countries going through the modernization of their custody laws.

In Israel for instance, the current law automatically grants custody of children under 6 to the mother unless there are special reasons not to.

For practical purposes, this meant mothers always got custody because after age six, custody was never reconsidered, so as not to disturb the lifestyle to which the children had grown accustomed.

As the Jerusalem Post reports:

Since the Schnitt Committee recommended eliminating the tender years clause altogether in 2008, judges already started granting joint custody for children under six.

The bill recommends declaring both parents legally responsible for their children and guarantees the rights of the children to a relationship with both their parents.

With infants who are breastfeeding, there are a few solutions. The mother could pump and provide enough breast milk to get through the timesharing.

If pumping is not the solution, you may have to consult experts to resolve the conflict over whether the public recognition of the health benefits of breastfeeding is best for the child, and if so, does it outweigh the benefits of early father-child bonding.

This is not a slam dunk case for either party. Although the public health benefits of breastfeeding are real, there is a good chance that all of the lawyers and the judge deciding your case were themselves formula fed with no long term harmful consequences.

Tips to Find the Perfect Attorney

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On behalf of Ronald H. Kauffman, P.A. posted in Attorneys on Thursday, December 12, 2013.

I’m not just marketing myself here. OK I am, but that’s not the point of this post. divorce and family cases have become complex, and the laws are changing fast. Hire an expert. Attorneys who are “Board Certified” have the only expert designation allowed by the Florida Bar. You have to start your divorce with which lawyer to choose. So, how do you choose one? The Huffington Post offered up a few tips I’d like to share:

Tip #1

Breathe!

You’re under pressure, your spouse’s attorney is flooding you with nasty letters. Guess what? This is a life crisis not an emergency.

Choosing a divorce lawyer is one of the most important things you’ll ever do. Researching options will pay huge financial and emotional dividends.

Tip #2

Tell Your Greek Chorus to Quiet Down

Most of us turn to our family, friends, and colleagues for advice. They all have agendas. Your tennis partner — still reeling from his wife’s affair with her personal trainer — will gladly produce the number of his gladiator. Your recently divorced friend who got “fleeced — I’m telling you fleeced!” will eagerly refer you to her shark litigator.

While we all need support during this time, what your loved ones don’t know can hurt you. Do your own homework. Only you can know what kind of lawyer is the right fit for you.

Tip #3

Take a Personal Inventory

Ask yourself: Is a long, bitter courtroom battle best? Try to think beyond today’s pain and rage. Do you want to squander both your kids’ college fund and any potential good will in a litigation?

Consider preserving your family’s resources and the possibility of dancing with your ex at your daughter’s wedding.

Tip #4

Educate yourself

There are many ways to get divorced. The most common approaches – Mediation, Collaborative Divorce, and Litigation – differ in a number of important ways. You need to get up to speed on them.

If you’re not sure which “type” of divorce would be best for you, interview attorneys who are the experts.

Tip #5

Avoid a sales pitch

Attorneys have an ethical obligation to explain all legal process options. If you’re not getting good answers, go elsewhere.

Tip #6

Cheaper ain’t a bargain. Expensive ain’t better.

Tip #7

Choose a good listener

A good lawyer will take the time to put you at ease by listening carefully to your story, asking relevant questions, addressing your immediate concerns and offering emotional support.

Finally…

Tip #8

Trust your gut

Picking a divorce lawyer is like dating. If there’s a voice in your head whispering “run,” then run. You’re getting out of bad relationship; don’t jump into another one.

A Landmark Assisted Reproductive Technology Case

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On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, December 9, 2013.

From in vitro fertilization to surrogacy, medical techniques are expanding the hope of parenthood to a wide diversity of couples. In a landmark ruling the Florida Supreme Court invalidated Florida Statutes 742.13 and 742.14, to the extent they don’t protect the parental rights of same sex parents who use divorce.

A couple had a lesbian relationship for 11 years. After agreeing to have a child together, an egg from T.M.H. was fertilized and implanted into D.M.T., who gave birth. The procedure was paid for with joint funds.

In 2006, the couple separated, and the child stayed with D.M.T., who received child support payments from T.M.H. Eventually, D.M.T. moved with the child to Australia.

D.M.T won at trial arguing that Florida does not recognize the parental rights of egg donors in same-sex relationships, only if the donation is from a heterosexual “commissioning couple”, but lost on appeal.

The Florida Supreme Court considered the exclusion of same-sex couples from the definition of “commissioning couple” as violating the federal and state Due Process Clauses and the state privacy clause, and as violating the state and federal Equal Protection Clauses.

“It would indeed be anomalous if, under Florida law, an unwed biological father would have more constitutionally protected rights to parent a child after a one night stand than an unwed biological mother who, with a committed partner and as part of a loving relationship, planned for the birth of a child and remains committed to supporting and raising her own daughter.”

The Court found excluding same-sex couples from the definition of “commissioning couple” did not serve to provide certainty to couples who use assisted reproductive technology.

While creating parenting opportunities once thought unattainable, medical technologies also introduce a host of legal complexities and uncertainties.

If you want to have a successful surrogacy procedure, you need a clear understanding of Florida law and the obligations of each party, as well as legal documents establishing parentage upon birth of the child.

The Florida Supreme Court opinion in D.M.T. v. T.M.H., can be found here.

Divorce and Alcohol: Can Drinking Save Your Marriage?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, December 5, 2013.

It sounds like I’ve asked a ridiculous question. After all, published research suggests a correlation that the more you drink the more likely you are to get divorce. However, researchers at the University at Buffalo have put a new spin on the old notion that drinking and marriages do not mix.

Scientists at the University of Buffalo’s Research Institute on Addictions (RIA) followed 634 couples from the time of their weddings through the first nine years of marriage. What the researchers found was that couples where only one spouse was a heavy drinker had a much higher divorce rate than other couples.

However when both spouses were heavy drinkers, the divorce rate was the same as for couples who were not heavy drinkers at all. And that’s the surprising outcome:

50% of couples in which one partner was imbibing significantly more than their spouse ended up divorcing. However, that number dropped to 30% for couples who possessed similar drinking habits, regardless of if they were heavy or light drinkers.

The researchers also found that there was a higher divorce rate when the heavy drinker was the wife, rather than the husband. However, this statistical difference was not significant.

What researchers have concluded is that heavy drinking spouses may be more tolerant of negative experiences related to alcohol due to their own drinking habits.

Our results indicate that it is the difference between the couple’s drinking habits, rather than the drinking itself, that leads to marital dissatisfaction, separation and divorce said Kenneth Leonard, PhD, RIA director and lead author of the study.

Make no mistake, heavy drinking can ruin your life. From a divorce perspective, it is interesting that divorce rates are worst for marriages in which one spouse drinks heavy and the other does not. The research may mean that differing behavior is to blame, not alcohol.

This study makes sense. When couples don’t see eye-to-eye on something, they may be incompatible on other issues. But spouses who drink similar amounts may have similar views on drinking, may spend more time together, and probably don’t fight as much as those who have different drinking habits.

The report from the University of Buffalo can be read here.

Courtroom Manners – How to (Not) Act in Court

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, December 2, 2013.

It’s been said that in criminal courts, judges see the worst people acting their best. If so, family judges see the best people acting their worst. child custody, relocation, and domestic violence cases put a lot of stress on people. Since you’re always being evaluated, what follows is a list of “dos” and “don’ts”.

Don’t – Come to a custody hearing wearing your Nazi uniform – complete with swastika patch on the arm and leather boots – and demand a family court judge let you see your son.

Do – Dress in a neat and professional manner.

Don’t – Speak on your cellular telephone because judges hate ringing cell phones. Judges hate ringing phone so much, that U.S. District Judge Hugh B. Clarke Jr. fined himself $50 when his own cell phone started ringing during a hearing.

Do – Keep your cell phone ringer off, and if you absolutely need to have your phone on, put it on vibrate.

Don’t – Take off your pants and show the judge your rear end. Try not to make faces or gestures, don’t show your anger or disdain for the other side or the court.

Do – Keep a “poker” face when others are talking, and be clear and confident and in a loud clear voice when you are talking.

Don’t – lose your temper in court, give the middle finger salute, dare the judge to hold you in contempt while holding your arms out as if you are being handcuffed and then contact the judge’s judicial assistant, and call her: “You little mother******; you and the judge, that mother****** son of a b****.”

Do – Be Courteous to the Court staff. Court personnel make the courts run efficiently, and angering court officers may impact your case.

Yes, sadly these are cases of what people have actually done in court, and all of these instances are documented. Consider the solemnity of the courtroom, the stress family cases have on everyone, and show some respect to the judges and others in the courtroom who deal with these cases on a daily basis.

Divorce and the Pet Dog

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, November 26, 2013.

An ever increasing problem in divorce is over who gets to keep the pet dog and cat during and after the divorce. Imagine you’ve been married for 12 years, but you don’t have any children. Your Labrador Retriever is your closest friend, guardian and constant companion. The problem is your soon-to-be ex-husband or ex-wife feels the same way.

Nearly a quarter of divorce lawyers surveyed across the country have noticed an increase in pet-custody cases in the last five years, according to the American Academy of Matrimonial Lawyers. The article can be read here.

There is a shift occurring in our society in which the … pet is considered more a member of the family … and therefore becomes sadly a part of the battle when the family disintegrates,” said Joyce Tischler, founding director of the Animal Legal Defense Fund, a non-profit organization based in Northern California.

A 2001 survey by the American Animal Hospital Association found that 83 percent of pet owners refer to themselves as their pet’s “mom” or “dad.” That relationship is not acknowledged by the courts, where pets are still considered property, no different from the silverware, the plasma TV and the living-room sofa.

So, who does a judge award your Chocolate Lab to? Can a judge order a timesharing schedule? Any visits at all? Clients often come to me with their concerns about pets in the divorce.

Your chocolate lab may be considered a member of the family to you, but under Florida law, “Brownie” is merely chattel – personal property to be divided in divorce. A judge lacks authority to grant custody or award visitation or a timesharing schedule to personal property.

Not all states have ruled out a visitation schedule for dogs. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

Florida doesn’t because Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children, that courts cannot undertake the same responsibility as to animals.

Divorce vs. Separation

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, November 21, 2013.

I often meet clients who want to divorce after already being separated. Sometimes their separation is very recent, maybe after a big fight. Other times though, their separation has been going on for months – sometimes even years. Is a long term separation a good thing?

As Forbes magazine reports, sometimes the ease of a long term separation hides some real dangers. This Forbes article identifies a few problems I think everyone should consider:

1. Less Control of Assets. If you are separated, you could be out of the loop financially, and not know what the other spouse is earning, spending, investing, selling or buying.

2. Opportunity to Hide Assets. Many times one spouse uses separation periods to make assets disappear and increase debt.

3. Changed Circumstances. When we draft divorce agreements and orders we are usually trying to ‘present value’ assets and liabilities. In a long separation, people lose jobs, change jobs, become ill, retire and these changed circumstances could lower your expected alimony or support payment.

4. Relocation. Laws vary from state to state. Over times, as circumstances change, new job requirements and new relationships may mean that one of the spouses has to relocate to another state. Your simple divorce can morph into a major battle over the ability to relocate with your children.

5. Alimony Reform. Alimony change is in the air, and it is only a matter of time before alimony reform changes Florida Statutes. We dodged the bullet after the last legislative session. However, alimony reform seems more like a “when” question, rather than an “if” question.

It is easy to get into the rhythm of a long term separation. People don’t choose ‘separation limbo’, they fall into it because it is easier than confrontation. However, there are some good reasons to be cautious of long term separations.

Alimony Reform: Introducing Alimony Guidelines

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On behalf of Ronald H. Kauffman, P.A. posted in Alimony on Monday, November 18, 2013.

Reform is in the air. Florida legislators are already speaking about a new bill to modify alimony. But it is not just Florida reviewing its alimony laws, other states are in various stages of reviewing and amending their state laws too.

The most recent change is Colorado, where couples will face dramatic changes in the way alimony is considered after a new state law goes into effect on January 1st. According to the Denver Post:

“It’s groundbreaking legislation,” said Heidi Culbertson, director of client development at the Harris Law Firm, which specializes in family law. “For the first time, Colorado will have a formula for maintenance.”

It is part of a national alimony reform movement, with many state legislatures seeking to either limit or standardize spousal maintenance payments. In particular, the focus has been on the lack of consistency in maintenance orders, which resulted in perceptions of unfairness and the inability to predict outcomes.

Along with Florida, a number of states – like Maine, Texas, Pennsylvania, Oklahoma and New Jersey – have considered introducing alimony guidelines to calculate alimony the way all states use child support guidelines to calculate child support payments.

The Colorado law provides a formula for the calculation of alimony. Alimony is equal to 40% of the higher income party’s monthly adjusted gross income less 50% of the lower income party’s monthly adjusted gross income. There are exceptions, and there is a cap.

The new statute does not apply to families with joint income over $300,000. For those cases, courts will continue to weigh a number of discretionary factors, including the parties’ unique financial circumstances and the length of the marriage.

Interestingly, Colorado’s alimony guidelines are only advisory to the courts, a sort of starting point in deciding how much and for how long an alimony award should be. The judges still maintain discretion. This is very unlike child support, where the discretion of a trial court is mostly removed.

Custody and Vaccinations: Can you lose a child by not vaccinating?

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, November 15, 2013.

Julia Ioffe, a senior editor at the New Republic, has the whooping cough and is not pleased. We conquered whooping cough along with the Nazis in the 1940s. Why is it back? What does it have to do with child custody?

Some parents decline immunization as a tenet of their religious beliefs. Some parents fear the risk of serious reactions to vaccines, and some think chemicals in vaccines cause autism.

When Jacob Holmes was 1, his pediatrician administered the MMR II vaccine. 9 days later he experienced seizures. 6 months later he was dead.

Extremely contagious whooping cough was conquered by a vaccine invented in the 1940s. Yet, in 2010 a whooping cough outbreak killed 10 babies in California. Studies show that children who did not get vaccinated contributed to the California outbreak.

The decision not to vaccinate can have a big impact in society:

  • In 2012, there were 48,277 reported cases of whooping cough, the highest since 1955.
  • Texas is currently fighting a whooping cough epidemic.
  • Washington State experienced a whooping cough epidemic in 2012

Your decision not to vaccinate can also impact your divorce case.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions. There are at least two cases in Florida.

In one case, a Florida court heard the conflicting positions on immunization, and decided that it would be in the child’s best interest to allow the anti-vaccination Mother to make the ultimate decision regarding the child’s immunization.

Ten years later, a different Florida court heard conflicting testimony, and decided it was in the child’s best interest to award the pro-vaccination Father ultimate responsibility to make decisions regarding the minor child’s vaccinations.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida, especially when there are conflicting Florida court decisions about whether vaccinations are in your child’s best interest.