Same Sex Divorce in Florida

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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

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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?

Social Security and Divorce – Plan Ahead

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On behalf of Ronald H. Kauffman, P.A. posted in Planning for Divorce on Monday, August 12, 2013.

Anyone planning for divorce needs to consider the impact of Social Security benefits. This is especially true if you are close to the age at which you become eligible for benefits, but haven’t started to receive them yet. If you think Social Security claims, benefits and entitlements are confusing, you are not alone.

In general, once you are divorced, you can receive spousal Social Security benefits based on an your ex-husband’s or your ex-wife’s earnings, as long as your marriage lasted at least a 10 years, you are a minimum of 62 years of age, are not married, and do not qualify for a higher benefit based on your own past earnings.

As a matter of divorce planning then, and theoretically, if you were only married 9 years, you may want to put your divorce plans on hold so that you could receive spousal benefits.

Additionally, if an ex-spouse delays claiming Social Security benefits until full retirement age, they can start to collect a spousal Social Security benefits check of 50% of an ex-spouse’s retirement benefits.

They might also be able to continue working – and even increase the eventual amount of their own personal Social Security retirement benefits – by delaying retirement, until age 70. When an ex-spouse reaches age 70, their Social Security monthly retirement check would be approximately 132% larger than it otherwise would have been, and even larger depending on annual cost of living increases.

One complication is that a divorced spouse can only receive a spousal Social Security benefit 2-years after a divorce, if an ex-spouse has not yet applied for his or her own retirement benefit.

There are a lot of other Social Security Administration rules which can complicate this straightforward analysis. The rules regulating Social Security could change at any point in time, and suddenly delayed benefits might no longer be recognized. Or the criteria for divorcing spouses can be changed to 5 years from the 2 years stated above.

What happens if the Social Security rules change? It may depend on the status and wording of the law at the time you divorce. So, not only can the current rules cause you immediate problems, but the plans you made – which were correct at the time you made them – might be wrecked by a rule change.

Divorce Costs . . . in 1845

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, August 9, 2013.

Think divorce is expensive, time consuming or difficult for most people? Today it’s a breeze compared to how it used to be. Believe it or not, getting divorced used to be so expensive; it was out of reach for most people.

A clever judge in England in 1845 wrote a sly opinion complaining about how difficult and expensive it was:

Prisoner at the bar, you have been convicted before me of what the law regards as a very grave and serious offence: that of going through the marriage ceremony a second time while your wife was still alive.

You plead in mitigation of your conduct that she was given to dissipation and drunkenness, that she proved herself a curse to your household, and that she had deserted you; but I am not permitted to recognise any such plea.

The law in its wisdom points out a means by which you might rid yourself from further association with a woman who had dishonoured you; but you did not think proper to adopt it.

You ought first to have brought an action against your wife’s seducer if you could have discovered him; that might have cost you money, and you say you are a poor working man, but that is not the fault of the law.

You would then be obliged to prove by evidence your wife’s criminality in a Court of Justice, and thus obtain a verdict with damages against the defendant, who was not unlikely to turn out a pauper.

But so jealous is the law of the sanctity of the marriage tie, that in accomplishing all this you would only have fulfilled the lighter portion of your duty.

You must then have gone, with your verdict in your hand, and petitioned the House of Lords for a divorce.

It would cost you perhaps five or six hundred pounds and you do not seem to be worth as many pence. (Editor: about $72,000 today) But it is the boast of the law that it is impartial, and makes no difference between the rich and the poor.

You have thus willfully rejected the boon the legislature offered you, and it is my duty to pass upon you such sentence as I think your offence deserves, and that sentence is, that you be imprisoned for one day; and in as much as the present assizes are three days old

We may complain about the costs of no-fault divorce, but things are much improved now. Credit goes to the Volokh Conspiracy for the post.

Relocation: Your Right to Move Away with a Child

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On behalf of Ronald H. Kauffman, P.A. posted in Relocation on Tuesday, August 6, 2013.

What are your rights to move away from another parent with your children? We live in a mobile society, easily traveling all over the world. When you are divorce and have children though, moving away is not so easy.

In my practice I’m seeing relocation cases more and more, and 2013 was a peak year for relocation cases in my practice.

Relocation means moving at least 50 miles for at least 60 consecutive days – not including a temporary absence for vacation, education, or health care for your child.

Clients increasingly have to relocate with their children during, or right after, the divorce. Some studies estimate that up to 25% of parents move away within the first 2-years after their divorce.

These are some of the common reasons for relocating with a child:

  • New job offers
  • Work transfer
  • New spouse
    • Financial opportunities
  • Family support networks

There are two ways to successfully relocate with your child:

1. Both parents sign a written agreement consenting to the relocation, and the agreement has a time-sharing schedule, and works out the transportation arrangements.

2. If you can’t enter a written agreement, and you still want to relocate, you must file a petition to relocate and serve it on the other parent.

If you relocate without an agreement or a court order allowing you to, you can be held in contempt, the child may be compelled to return, and your relocating improperly is a factor in establishing or modifying a parenting plan or time-sharing schedule.

There is no longer a legal presumption in favor or against relocations. Instead, Florida courts have to evaluate several factors such as:

  • The age of the child
  • The child’s preference
  • The reasons for moving
  • History of drug abuse or domestic violence

Relocation cases are very emotional, fact intensive, require a lot of work very quickly, and are very high stakes. Think about it, one parent is trying to take away a child, while the other parent is trying to maintain a close bond with the child. That creates a lot of tension. Without a doubt, relocation cases are among the toughest cases we face in court.

Parental Alienation Warning Signs

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, August 2, 2013.

During a contested divorce involving child custody or parenting plan, it is common for parents to accuse each other of manipulating the children to criticize and complain about the other parent, and even to destroy a parent’s relationship with the children.

We call it Parental Alienation Syndrome, and it is very common during a heated divorce for a parent to use the children in the war against the other parent.

The danger of parental alienation is that the kids need to show affection for their parents, and need to receive affection back from both parents. But when one parent convinces a child to think the other parent is breaking up the family, or is the enemy who should be hated and disrespected, the parent child relationship is undermined.

  • Here are some signs of Parental Alienation Syndrome to watch out for:
  • Bad-mouthing the other parent to the children
  • Limiting contact
  • Erasing the parent from the children’s lives
  • Forcing the children to reject the other parent
  • Forcing the children to choose sides
  • Creating the impression the other parent is dangerous
  • Belittling comments to the other parent in front of the children
  • Calling the children to testify against the other parent
  • Convincing the children the other parent is creating financial hardship on the family

Hopefully you will be spared this common syndrome in divorce. There is plenty of research showing that parental alienation can not only cause emotional scars in kids, but has also been seen as a cause of low self-esteem, self-hatred, depression and substance abuse in children.

If you spot any of these signs, it is important to speak to a professinal about your concerns.

Dogs, Cats and Hamsters: Who Gets Custody of the Pet?

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, July 29, 2013.

Imagine you’ve been married for 12 years, but you don’t have children. During your marriage a child custody chocolate Labrador retriever named “Brownie” has been your close friend, guardian and constant companion – especially since your relationship with your spouse has soured.

The problem is your soon-to-be husband or wife feels the same way about Brownie.

So, who does a judge award Brownie 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. In other common law countries, such as the UK, Australia, Canada and New Zealand, we share a similar family law and love of pets.

According to a recent report, pets are increasingly being raised as an issue in separation:

Nearly one in 10 Australians have lost possession of a pet in a relationship breakdown.

About 15 per cent in one Australian survey participants wrongly believed the Family Court would make shared-custody arrangements for their pets.

“Particularly in childless marriages, the animals are really important and people find it difficult to understand why the court can’t deal with the emotional attachment.”

“The pets represent the family,” she said. “They’ve had animals that have replaced the child they couldn’t have.”

“You’re talking about really strong emotional bonds that get formed over time and so it’s not just ‘You keep the lounge room furniture and I’ll keep the bed’,” he said.

Your pet dog Brownie may be considered a member of the family, but under Florida law, Brownie is merely chattel – personal property to be divided in divorce. And 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.

Father Reproductive Rights

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On behalf of Ronald H. Kauffman, P.A. posted in Paternity on Friday, July 26, 2013.

The Supreme Court’s recent DOMA decision – about the fairness in treating homosexual marriages equally under the law – got me thinking: do Fathers have equal reproductive rights?

If a woman conceives a child with a man, and she does not want to raise the child, she really doesn’t have to. And, there is nothing a man can do about it, even if he really wanted to be a father. The choice is the woman’s alone.

Women have access to contraception, abortion services, foster care services and adoptive parents. If a woman wanted not to be a mother after becoming pregnant, she can choose not be a mother at any time she wants. Even over the strong objections of the father.

This is true even after the birth of the child. Many Florida cities have a Safe Haven for Newborns program allowing mothers to leave a newborn at certain hospitals and fire stations with no questions asked.

But if a woman has a child – either accidentally or without the father’s knowledge – and the father never wanted a child, he is out of luck. Sure, he can suggest an abortion, but if the mother wants to raise the child, he will be stuck with years of child support payments.

Do men now have less reproductive autonomy than women? Should men have more control over when and how they become parents, as women do?

The New York Times recently ran an editorial about this issue:

“if women’s partial responsibility for pregnancy does not obligate them to support a fetus, then men’s partial responsibility for pregnancy does not obligate them to support a resulting child.” At most, according to Brake, men should be responsible for helping with the medical expenses and other costs of a pregnancy for which they are partly responsible.

If a woman decides to give birth to a child without getting the biological father’s consent to raise a child with her, should he be forced into legal paternity?

Not allowing reproductive rights for fathers, and forcing child custody, could lead to disestablishment cases which are not in the best interest of the child. Biological fathers may also be use violence or threats when child support orders are enforced against them, or maybe abandon the child.

There is some wiggle room. In Florida we have a disestablishment of paternity statute which men can use after they break up with the mother. However, it generally requires newly discovered evidence that the father is not the biological father of the child.

When men and women have an unplanned pregnancy, men find that the law is stacked up against them. This unequal treatment under the law may be a matter that needs to be corrected. Is it time for men’s reproductive rights?

Stay or Move Out of Home During Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Friday, July 19, 2013.

Many clients going through divorce are unsure if they should stay in the marital home, or move out. Does staying help you? Does leaving mean that you are giving up your rights? Will it be harder to enter an agreement?

The marital home is many things. First, it’s a valuable asset, maybe your most valuable asset – assuming your house isn’t underwater. Second, the home is 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 also create the appearance of a new ‘primary parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

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.

Also, the person leaving may still have to pay for the home’s expenses while also paying for a second place. It can be costly to maintain two households, and prohibitive expensive when you know that the process will take a long time.

If you are going to leave, you should consider the following before moving:

  • There should be some discussions about maintaining the home.
  • Decide who is paying for which expenses.
  • Inventory the personal property, things like artwork, LP records, clothes, tools, silverware etc.
  • Create boundaries for when the ‘out-spouse’ can use and enjoy the home after leaving it. Create a schedule everyone can agree to.

Is the Marriage Rate Increasing or Decreasing?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, July 9, 2013.

You can’t have a divorce without marriage. So it is interesting to see what the marriage trends are. In the United States, the marriage rate is at a low point.

Worse, the number of marriages across the U.S. fell more than 5% during the recession. But a new analysis projects that pent-up demand and the large population of marriage-eligible couples, means the marriage rate may start to increase. The article can be read in USA Today.

Projections from the private company Demographic Intelligence of Charlottesville, Va., says a 4% increase in the number of weddings since 2009 is predicted depending on the economic recovery. They also expect this trend to continue through 2015.

A closer inspection of the marriage rate reveals that it differs among socio-economic groups and by education levels. Rates decline among those with a high school education or less, younger Americans, and the less affluent. However, among women ages 25-34, the college-educated and the affluent, the numbers are increasing.

“Declines in weddings are likely to set in towards the end of the decade, even though the number of young adults is increasing, because of the nation’s ongoing retreat from marriage,” the report notes.

From 2007 to 2009, the number of marriages each year fell The new forecast predicts the marriage rate to remain at the record low of 6.8 marriages per 1,000 population for 2013 (where it’s been since 2009).

This projected increase in weddings may mark a turnaround, but it’s not going to boost the low marriage rate, experts say.