Are Rising Divorce Rates a Good Thing?

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, September 19, 2013.

With low tax rates, no income tax, and a pleasant climate (outside of hurricane season) Florida attracts a lot of people who settle here, and sometimes they divorce. Florida ranks roughly 8th in divorce rates in the United States.

We view divorce in Florida as a regrettable part of life. But internationally, divorce is starting to be viewed as a positive sign of social change. As Business Week reports:

A little-noticed trend is spreading in many of the world’s emerging economies: More and more people are getting divorced.

Outside of North America, Europe, and Oceania, two-thirds of the countries for which the United Nations has data saw rising divorce rates from 2007 to 2011.

According to the UN:

  • Mexico: the divorce rate has steadily climbed since the late 1970s.
  • Brazil, divorce was against the law 30 years ago, the divorce rate is now about 1.4 per thousand people.
  • China, Thailand, Iran, and South Korea, have seen more than a roughly fivefold increase in divorces over the past few decades.

What are the Reasons? As Business Week further reports:

The rise of divorce internationally is both an indicator of and force behind social changes that have improved prospects for women, reduced gender inequality, and fueled development. All of which suggests that the more people are able to get out of bad marriages, the better off their societies are likely to be.

So, the more common divorce becomes in a society, the less of a stigma it’s likely to be. Conversely, divorce causes greater unhappiness in societies where it’s rare. The period before a divorce people report low life satisfaction, but the period after it is comparatively satisfactory, especially for women.

In the developing world, increased divorce rates have mirrored improvement in measures of gender equality.

In Brazil, the Rede Globo channel broadcasts a slate of soap operas that feature powerful female leads who work, make investment decisions, and commit infidelities as frequently as their male counterparts. During the 1970s and ’80s, as Rede Globo’s reach expanded across the country, the divorce rate went up while fertility rates went down, according to researchers from the Inter-American Development Bank.

Strange Reasons to Divorce and the No Fault Concept

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, September 16, 2013.

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a grounds for divorce. Florida abolished fault as a ground for divorce. This means you no longer have to prove a reason for the divorce, like infidelity. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Despite the concept of no-fault divorce, very often people blame others for their marriage ending. Recently, a Rhode Island man, whose marriage ended, filed a federal lawsuit seeking to silence the bells of the Catholic church next door to him.

John Devaney claims the ringing of the bells at St. Thomas More Catholic church contributed to the failure of his marriage and are disrupting the quality of his life.

In China, one man’s snoring was so disruptive it prompted his wife to file for divorce. In the filing, she claimed that she hasn’t gotten a full night’s sleep since they married. She also mentioned that the man’s heavy snoring made her ill and caused her to lose a significant amount of weight.

In Iran, a man filed to divorce his wife because of her snoring; she admitted to drugging him with sleeping pills at the beginning of their marriage so he wouldn’t notice her snoring habit.

One woman got married at age 30 but told her husband she was only 24. Ten years into their marriage, in November 2007, he found out about the lie–and asked for a divorce.

A pet bird started to say things like “divorce” or “be patient” and the bird’s phrases caused one woman to think her husband was cheating on her and filed for divorce.

In Florida, either spouse can file for the dissolution of marriage. You must prove that a marriage exists, one party has been a Florida resident for six months before filing the petition, and the marriage is irretrievably broken.

However, fault may be considered under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and determination of parental responsibility.

A Few Good Divorce Tips

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, September 4, 2013.

You can get divorce advice all over the place. What you may not know is that no two divorces are the same. What happened to your friend, co-worker or manicurist in their divorce is completely different from what you’re going through.

You can also find advice about divorce all over the internet. Some is good, but most of it is bad. When you are in the business of divorce though, you see the same lessons being learned over and over. And, when I see other professionals offering advice that I think is good, I like to give them the credit they deserve.

Nicole Noonan, executive director of divorce finance company BBL Churchill Group, recently appeared on TV, and had some good advice for anyone suffering through a divorce.

Surprisingly, her first tip is to make sure you hire an attorney who is not too aggressive. This is surprising advice because most people think you will be better served by an over-aggressive lawyer. People learn the hard way that’s not true.

“Your attorney not only represents your interests, they also represent your style, she said on “The Couch” Thursday.” So if you hire a pit-bull attorney, it doesn’t mean you get a better settlement necessarily. You can have a long drawn-out legal battle…and it’s not always the right choice.”

She also advised against a take-it-all mentality in court.

“Pick your battles. Just because you’ve been wronged in the marriage doesn’t mean the court is going to look at that,” she said.

Divorce involves big decisions. You are always better served by identifying ahead of time what is most important to you and your children.

That decision involves knowing you and your spouse’s finances, identifying what you and your children’s needs are, and hiring an attorney who will help you identify and meet your needs.

You can watch the video here.

Can Unfertilized Egg Freezing be considered Alimony?

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

Many people divorce without ever having had children. Not because they did not want children, but because they couldn’t. While a man may be able to walk away from a marriage and start a new family, for many women it may be biologically too late.

What can be done? One solution appears to be assisted reproductive technology in an interesting case from New Jersey.

A 38-year-old woman in New Jersey is asking for her soon to be ex-husband to pay to have her eggs frozen as part of her divorce settlement, in case she decides to have children in the future. The procedure could cost up to $20,000.

Freezing embryos, women’s eggs fertilized with sperm, has been done in fertility clinics for decades, but now science has improved upon freezing unfertilized eggs to use in the future.

In recent years, scientists have figured out how to freeze and thaw unfertilized eggs from women, allowing them to freeze their eggs now, and thaw them in the future, when they are ready to have children.

You might not know when your baby-making days are up, but you can calculate what it’s worth to preserve them. Figures vary by woman and by clinic, but the formula involves the cost of extraction surgery and freezing ($5,000 to $13,000, generally speaking), the number of eggs you can expect to get, the number you’re advised to stash away, your clinic’s success rate and the number of children you want.

All of a sudden, fertility has been assigned a value. If the point of a divorce settlement is to take inventory of a couple’s joint life and divide the assets, then that commodity belongs on the negotiating table – alongside vacation time-shares and projected earnings from his and her M.B.A.’s.

In the New Jersey case, a married couple tried several times at in vitro fertilization during their marriage without success. As part of the divorce case, the wife is now arguing that since in vitro fertility treatments were part of the marriage, they should be considered part of their marital lifestyle, which should be maintained as much as possible after the divorce.

The Wife’s attorney is essentially arguing that the Husband should pay for the freezing of her eggs for a future in vitro treatment. In a sense, she can walk away from the marriage and start a family just as her future ex husband can. You can read more about this unique situation in the New York Times.

Same Sex Marriages Now Recognized in Florida . . . sorta

On behalf of Ronald H. Kauffman, P.A. posted in Same Sex Marriage & Divorce on Friday, August 30, 2013.

Florida doesn’t mince words when it comes to same sex divorce:

Marriages between persons of the same sex entered into in any jurisdiction . . . are not recognized . . . in this state.

With Florida Statute 741.212 written so clearly, you’d think there would be absolutely no recognition of same sex marriages in Florida. But you’d be wrong.

Yesterday, the IRS made a very important announcement that actually gives some recognition to same sex marriages – even though the taxpayer lives in Florida:

The U.S. Department of the Treasury and the Internal Revenue Service ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.

Under the ruling, same sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes.

The ruling applies to all federal tax provisions where marriage is a factor, including:

  • Filing status on tax returns
  • Claiming personal and dependency exemptions
  • Taking the standard deduction
  • Employee benefits
  • IRA contributions, and
  • Claiming the earned income tax credit or child tax credit.

Essentially, the IRS is giving recognition to taxpayers in same sex marriages, even though the taxpayers live in Florida.

Granted, it’s not the State of Florida recognizing same sex marriages per se, but it is recognition of same sex married in Florida. Given the fight waged over the years for any recognition, that’s nothing to sneeze at.

Without any explanation, the IRS ruling does not apply to registered domestic partnerships, civil unions, or similar formal relationships recognized under state law.

For tax buffs out there, this may be a slight policy change. The IRS used to look at the law of the state of domicile, and now looks at the law of the state where the marriage took place.

With the IRS’s new announcement – that it will recognize all same-sex marriages valid in the state where the marriage took place, instead of the place where the taxpayer is living – the IRS is taking serious the Supreme Court’s recent ruling in the DOMA case.

What Can You Learn from Rupert Murdoch’s Divorce?

On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, August 29, 2013.

What interests me about divorce law is that it impacts all parts of society. It affects the rich, the middle class, the poor alike . . . pretty much everyone.

Rupert Murdoch, owner of News Corp and a billionaire, is going through his own divorce with wife Wendi Deng. No doubt before he married Wendi, Rupert had excellent advice. What can you learn from a billionaire’s experience that could help you through your own divorce, or perhaps save your marriage?

The New York Times recently ran a story and I thought it had some good lessons:

Agreements

The Murdochs not only signed a prenuptial agreement before they got married, but after their marriage they signed two additional postnuptial agreements delineating the separation of assets in the event of a divorce.

Agreements make the separation of assets cleaner. They do more than divide assets though, they can spell out each person’s obligations during the marriage, things like who pays for which expenses.

But if there is only one prenuptial agreement, it could be so old it’s useless. Also, prenups can be challenged. Prenuptial agreements are routinely enforced in Florida, and you are allowed to make a bad deal.

Dividing Assets

Dividing assets between spouses is not as simple as deciding to split it 50-50 – even with agreements. Very often assets have appreciated over the course of several years.

When property appreciates, you need to distinguish between passive and active appreciation. A passive asset could be an investment account which is never traded.

A business, on the other hand, is an active investment, and the percentage a spouse is entitled to may depend on different things.

Even with the most sophisticated couples, such as the Murdochs, unless you clairvoyant, issues will arise that no one considered in earlier agreements, and are prime for negotiation.

Children

The care of any young child is the primary concern of the courts. The Murdochs are rumored to have some custody arrangements and child support for their daughters.

Custody arrangements and child support are rarely part of prenuptial agreements, and are often used by the less-moneyed spouse as leverage in negotiations – a practice sometimes called “linkage”.

Florida has child support guidelines which mandate what the minimum support for children should be. The basic child support payment does not include private school and extracurricular activities, which can be more than the child support.

When it comes to agreeing on what people believe is their rightful share, think of it this way: If you’re 10 percent apart, you’ll settle. If you’re 20 percent, there’s a chance. But if you’re 50 or 75 percent away, you’re going to war.” Knowing this, the Murdochs time and expense in signing agreements will help them avoid trial.

Relocations with a child from the Judge’s Perspective

On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Monday, August 26, 2013.

Have you ever wondered what the judge deciding your divorce case thinks?

Relocation is your right to move away from another parent with the children more than 50 miles for more than 60 days.

The Family Law Section Commentator magazine contains useful articles written by lawyers, judges and professionals. I currently serve as chair of the Commentator, and in winter’s issue, Judge Daniel H. Sleet and Jason Rice wrote an excellent article on relocation cases . . . from the judge’s point of view.

Judge Sleet is currently serving as an appellate judge on Florida’s Second District Court of Appeals, and Jason M. Rice is his Staff Attorney. Although the article is written for lawyers and professionals, anyone interested in relocation cases would benefit from reading this brief article.

So, what did Judge Sleet think was the “perfect hearing”? Consider some of the things that judge thought he needed to hear about in order to determine the best interest of the child:

A guardian ad litem or parenting coordinator to assess each parent’s relationship with the minor child, and their respective home environments.

A child psychologist or other professional to conduct individual and family counseling with the parents and child in order to form a professional opinion about the appropriateness of a proposed relocation.

Teachers from the present and prospective schools to testify about the child’s ability to transition to a new school.

Evidence of substance abuse, domestic violence, violation of timesharing agreements, lack of involvement with the child, and unpaid child support.

If you are involved in a relocation case, consider the judge’s perspective, and what evidence you can come up with to prove that moving away is in the child’s best interest, or that it is not.

Postnuptial Agreements: The Agreement for Couples Already Married

On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Thursday, August 22, 2013.

What is a postnuptial property division, and why have one? Some people say “take money out of the equation, and a lot of marriages would not end in divorce.”

That’s why many people sign prenuptial agreements before they marry. Because money problems are at the root of a lot of divorces, more and more couples are signing postnuptial agreements.

Postnuptial agreements are similar to prenups, except they are for married couples. Postnups are prepared after the marriage, and state what your rights and obligations are if you divorce or die.

As USA Today reports, postnups are on the rise across the country:

Postnup agreements can cover everything from how to divide financial assets in divorce to limits on partners’ weight gain, just as prenups can.

And in a survey of divorce lawyers by the American Academy of Matrimonial Lawyers, 51% saw an increase in postnups.

Now that the Supreme Court has struck down the Defense of Marriage Act, or DOMA, experts say more postnups could be in the offing.

It’s not because newly married same-sex couples’ unions are likely to suddenly founder. On the contrary: They will need to re-allocate some of their property now that they can tie the knot.

“You can anticipate that couples are going to want to address property rights in a postnup for property that otherwise would have been deemed separate, because they acquired it before the marriage,” she said. “Many couples will want to give recognition to those assets and put them in the marital estate.”

After the Supreme Court’s DOMA decision, spouses who have the benefits may want to protect them, and couples who rushed to get married after the DOMA decision, and who did not want to delay their weddings by negotiating a prenup, are rushing to get postnups.

There are some good reasons for a postnup:

  • You ran out of time to hire an attorney to prepare a prenup;
  • You want to give your marriage a last-ditch effort by working out the financial problems;
  • Asset protection – when you receive a large gift or inheritance;
  • You have done something you feel guilty about, and want to make concessions to save your marriage;
  • You want a say in how to distribute your assets before you die;
  • You want to define both spouses’ obligations during the marriage – who pays for what, or do you file taxes jointly or separately?

In 2007, Florida adopted the Uniform Premarital Agreement Act to establish some uniformity in agreements and hopefully reduce litigation. Whatever your reason for a postnup, relationship planning can save you a lot of money down the road.

Same Sex Divorce in Florida

On behalf of Ronald H. Kauffman, P.A. posted in Same sex/GLBTA on Monday, August 19, 2013.

Same sex couples can marry, but can they divorce? If so, how? These are interesting questions divorce attorneys are asking.

For Ft. Lauderdale resident Adam Cardinal, this is not an academic question, he’s stuck. He traveled to New Hampshire to get married, where same-sex marriages are legal. About 3 years later, the couple separated.

Gay marriage is legal in New Hampshire, but does not exist in Florida. Florida does not recognize gay marriages which are legal in other states.

He can’t travel back to New Hampshire either. New Hampshire, like Florida, has a residency requirement in the state before being able to file for divorce.

As the New York Times reports, it’s even worse:

Mr. Cardinal cannot remarry – to do so would make him a bigamist in states like Massachusetts or New York that recognize his previous nuptials. And although he and his husband did not combine their assets, the lack of an official document certifying the end of their marriage carries financial risks.

“I didn’t realize this could potentially be an issue, that we couldn’t divorce when we wanted to,” Mr. Cardinal said. “That was really upsetting.”

The DOMA decision by the U.S. Supreme Court, was a victory for gay couples, and may offer hope to people who are caught in legal divorce limbo.

Like newlyweds everywhere, same sex couples give little thought to divorcing.

“You think, ‘This is perfect, this is great, I never have to worry about anything,’ and it’s only in retrospect that you sit back and say, ‘I shouldn’t have done that,’ ” said a woman who lives in Florida but married in Connecticut. She insisted on anonymity because she did not want to jeopardize her chances of eventually obtaining a divorce.

Even if your state recognizes same-sex marriages, divorcing can be more complex than for heterosexual couples. Consider the scenario where a same sex couple has lived together for 20 years, but only got married last month.

Marital Property

In Florida, a marital asset is generally one acquired after marriage. During 20 years of living together and acquiring property, even if Florida recognized same sex divorces, would not likely be marital assets here.

Spousal Support

Suppose a couple held themselves out as married, and would have marriedhad it been legal. Is it fair to limit the length of the marriage for purposes of awarding alimony to a few months because the 20 years illegal marriage can’t be recognized?

Many questions need to be answered, and the law has not caught up to the changes in our society. We have legalized gay marriages, but have not given as much thought to same sex divorce.

Changing Your Child’s Name

On behalf of Ronald H. Kauffman, P.A. posted in Name Changes on Thursday, August 15, 2013.

In divorce it is very common to change names. Changing an adult’s name is easy. But, changing the name of a child is a whole different ballgame.

Courts are not as free to change a child’s name as they are an adult’s name. A judge will only change a child’s name when the change is required for the welfare of the child.

Consider this odd case out of Tennessee – courtesy of the Volokh Conspiracy – in which a judge didn’t like the name “Messiah” for a child:

The parents came before the court because of a dispute over what the child’s last name should be, but the judge changed the child’s first name as well, giving two reasons:

“The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ,” Judge Ballew said….

According to Judge Ballew, it is the first time she has ordered a first name change. She said the decision is best for the child, especially while growing up in a county with a large Christian population.

“It could put him at odds with a lot of people and at this point he has had no choice in what his name is,” Judge Ballew said.

In Florida, changing the name of a minor is serious business, and you can only do it if the change is required for the welfare of the child.

If you fail to show evidence that the name change would be in the best interest of the child, your name change will be denied.

There is a Florida statute with a few rules:

Mother not married at the time of birth – The parent who will have custody of the child shall select the child’s given name and surname.

Mother married at the time of birth – The mother and father on the birth certificate select the given name and surname of the child if both parents have custody of the child, otherwise the parent who has custody shall select the child’s name.

Parents disagree on the surname -The surname selected by the father and the surname selected by the mother shall both be entered on the birth certificate, separated by a hyphen in alphabetical order.

Parents disagree on the given name – The given name may not be entered on the certificate until a joint agreement signed by both parents or selected by a court.

Back to the Tennessee case, it seems to me that people I know named Jesus don’t have social problems because of their names. Is Messiah that much different from Jesus that the Messiahs of the world are going to suffer more?