How To Void a Prenuptial Agreement

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Wednesday, March 13, 2013.

Having a prenuptial agreement shoved under your nose days before your wedding can be frightening. It also can raise issues many people don’t want to face: things like finances and the possibility of divorce.

Because of Florida’s policy of enforcing agreements, prenups can be difficult to void – but not impossible.

In Long Island, Elizabeth Petrakis felt forced by her future Husband to sign her prenup 4 days before her 1998 wedding to millionaire Peter Petrakis.

According to Elizabeth, her future Husband promised to rip up their agreement once they had children. But after having twin sons and a daughter, the prenup stayed intact.

A trial court in New York voided the prenup on the grounds of “fraud in the inducement” and recently an appellate court approved of that ruling – recognizing that the Husband misled the Wife in the contract, and finding his “credibility to be suspect.” As her attorney said:

“You can enter into prenups, but you shouldn’t when you’re marginalizing your spouse or being too greedy.” “The argument was helped by inequality of the prenuptial agreement.”

Another attorney further explained the court’s decision:

“Many couples discuss the terms of their prenups and say they will do or say things in the future that are not memorialized in writing,” she said. “However, this fraudulent inducement to buy a house put the marital home in joint name and make other financial incentives after the parties wed appeared to sway the appellate panel who agreed to set aside the prenuptial agreement based on fraud.”

Florida has both case law and a statute to help lawyers, judges and the parties determine if a prenuptial agreement is enforceable. Florida courts must consider things such as fraud, duress, coercion, in addition to the unfairness of the agreement, and whether there was any financial disclosure.

Introducing the 3 Parent Birth Certificate

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Partnerships on Tuesday, March 5, 2013.

Florida child custody law relating to homosexuality is a work in progress. For example, Florida law restricts the issuance of birth certificates, and expressly states that no person may adopt if that person is a homosexual. However, the ban on homosexual adoptions has been held to violate the equal protection provision of the Florida Constitution.

In re: Gill, 45 So. 3rd 79 (Fla. 3d DCA 2010), declared Florida Statute §63.042(3) unconstitutional, and granted the adoption of foster children to a gay foster parent. The court ruled there was no rational relationship between the statutory ban and the best interests of children.

“Under Florida law, homosexual persons are allowed to serve as foster parents or guardians, but are barred from being considered for adoptive parents. All other persons are eligible to be considered case-by-case to be adoptive parents, but not homosexual persons – even where, as here, the adoptive parent is a fit parent and the adoption is in the best interest of the children.”

Gill overturned the long-standing statutory ban on gay adoption, and opened the legal doors for all qualified gay persons, whether previous adoptive parents or not.

With the law as it is, it is notable that Miami-Dade Circuit Judge Antonio Marin approved the adoption of a 22-month-old baby girl that will list three people as parents on her birth certificate: a married lesbian couple and a gay man. Judge Marin’s order ended a two-year paternity fight between the couple and a friend of the women who donated his sperm, but wanted to play a role in the child’s life. You can read more about the decision here.

Judge Marin’s order means the child’s birth certificate will include a biological father and both women as parents, and the two women will have sole parental rights. While the father will be allowed to visit the child, he is not expected to provide any child support.

Four Things Guaranteed to Kill a Marriage

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, March 1, 2013.

Predicting who gets divorce is tough. It’s been said that John Gottman can listen to a couple for 5 minutes and determine with 91% accuracy whether they’ll divorce.

Gottman has researched marriage for over 40 years, and couples that attend his workshops have half the relapse rate that standard therapy provides. I just ordered his book: The Seven Principles for Making Marriage Work.

At the core of Gottman’s research are “The Four Horsemen”, the four indicators a divorce is on its way:

1. Criticism – Complaints are fine. Criticism though, attacks the person, not their behavior. (Husband didn’t take out the garbage because he’s a bad person, not because he forgot.)

2. Contempt – “…name-calling, eye-rolling, sneering, mockery, and hostile humor. In whatever form contempt – the worst of the four horsemen – conveys disgust. How can you resolve a problem when your partner thinks you’re disgusted with him.

3. Defensiveness – Defensiveness is really a way of blaming your partner. and automatically escalates the conflict: ‘The problem isn’t with me, it’s with you.’

4. Stonewalling – Tuning out doesn’t just remove the person from the conflict, it removes them emotionally from the relationship.

Interestingly, Gottman claims most arguments in a marriage cannot be resolved. Couples can spend years trying to change each other’s mind, but it can’t be done. Instead of arguing, he suggests accepting each another as-is:

Psychologist Dan Wile said it best in his book After the Honeymoon: “When choosing a long-term partner . . . you will inevitably be choosing a particular set of unsolvable problems that you’ll be grappling with for the next ten, twenty or fifty years.

The book also has few interesting statistics:

  • “…an unhappy marriage can increase your chances of getting sick by roughly 35% and even shorten your life by an average of 4 years.”
  • “96% of the time you can predict the outcome of a conversation based on the first three minutes of the fifteen minute interaction…”
  • “I’ve found 94 percent of the time that couples who put a positive spin on their marriage’s history are likely to have a happy future as well. When happy memories are distorted, it’s a sign that the marriage needs help.”

His book, The Seven Principles for Making Marriage Work is available at Amazon (No, I don’t get a cut).

Facebook Evidence In Divorce Trials

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, February 22, 2013.

Divorce trials usually require the introduction of highly personal evidence. For example, it is common to hire private investigators to film spouses, or use forensic accountants to hunt for strange credit card charges.

Sometimes though, the evidence falls in your lap. Facebook and social media sites are often filled with very personal information which is increasingly being used in divorce trials. You may have heard of some examples:

  • A Husband posts his status as single and childless on Facebook while seeking primary custody of his children.
  • A mother is accused of never attending her kids’ school events because of her online gaming addiction. Evidence subpoenaed from World of Warcraft tracks her on-line with her boyfriend at the time when she was supposed to be with the children.
  • A husband denies he has any anger management issues, but posts on Facebook; “If you have the balls to get in my face, I’ll kick your ass into submission.”
  • A mom denies in court that she ever smokes marijuana, but then uploads photos of herself smoking pot on Facebook.

Is the evidence admissible? And if so, how do you prove the evidence is real and not maliciously put there? The Florida Bar Commentator published an article I wrote about using Facebook evidence at trial. Here is a brief abstract:

The article discusses the evidentiary potential of social media sites, and the peculiar challenges of authenticating materials from the internet. Social media websites like Facebook have had an astronomical growth worldwide, and are showing up in divorce trials. The article suggests some of the benefits and obstacles in gathering and using Facebook and other social media evidence at trial. The article also reviews the leading national cases on social media websites, and outlines when it is necessary to use computer forensic firms and other sources to ensure that the evidence is properly admitted.

My new article appears in the Winter 2013 issue of the Florida Bar Family Law Section Commentator.

The U.S. Supreme Court Decides The Chafin Custody Case

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On behalf of Ronald H. Kauffman, P.A. posted in Child Custody on Wednesday, February 20, 2013.

Child custody cases are governed by the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. The Hague Convention is a treaty signed by 89 members. It protects children from abduction across international lines by providing a procedure to quickly return them. But after the child has been returned, how does a parent appeal if they think the trial court got it wrong?

In Chafin, the question was whether the case is moot after the child has been returned to their country of habitual residence. Ms. Chafin returned to Scotland with the child after a federal trial judge allowed it. Sgt. Chafin appealed the order. The 11th Circuit Court of Appeals in Atlanta dismissed his appeal as moot. The 11th Circuit is also the federal appeals court governing Florida.

Yesterday, the U.S. Supreme Court vacated the 11th Circuit court. In an opinion by Chief Justice John Roberts Jr. the Supreme Court held:

If these cases were to become moot upon return, courts would be more likely to grant stays as a matter of course, to prevent the loss of any right to appeal. In cases in which a stay would not be granted . . . a child would lose precious months when she could have been readjusting to life in her country of habitual residence, even though the appeal had little chance of success. Such routine stays due to mootness would be likely but would conflict with the Convention’s mandate of prompt return to a child’s country of habitual residence. Routine stays could also increase the number of appeals. Currently, only about 15% of Hague Convention cases are appealed.

If losing parents were effectively guaranteed a stay, it seems likely that more would appeal, a scenario that would undermine the goal of prompt return and the best interests of children who should in fact be returned. A mootness holding here might also encourage flight in future Hague Convention cases, as prevailing parents try to flee the jurisdiction to moot the case. In every case under the Hague Convention, the well-being of a child is at stake; application of the traditional stay factors ensures that each case will receive the individualized treatment necessary for appropriate consideration of the child’s best interests.

The whole opinion can be read here.

Children With Strangers: The New Co-Parents

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On behalf of Ronald H. Kauffman, P.A. posted in Domestic Partnerships on Wednesday, February 13, 2013.

Many parents got married with the idea of having child custody. A growing number of parents had children outside of marriage. Now there is a new breed of parent, and they visit special websites.

No, not JDate or eHarmony. The websites I’m talking about are for people looking to find strangers to start a family with. Really. They are Parenting Partners, or sometimes called co-parents.

There are several websites to help them:

  • PollenTree.com
  • Coparents.com
  • Co-ParentMatch.com
  • MyAlternativeFamily.com

These websites cater to strangers trying to find and match themselves with the perfect sperm donor, egg donor or co-parent. As the New York Times reports:

“While some people have chosen to be a single parent, many more people look at scheduling and the financial pressures and the lack of an emotional partner and decide that single parenting is too daunting and wouldn’t be good for them or the child,” said Darren Spedale, 38, the founder of Family by Design, a free parenting partnership site officially introduced in early January. “If you can share the support and the ups and downs with someone, it makes it a much more interesting parenting option.”

Some people are critical of online parenting. Elizabeth Marquardt, for example, who is the director of the Center for Marriage and Families at the Institute for American Values, argues:

“It’s a terrible idea, deliberately consigning a child to be raised in two different worlds, with parents who did not even attempt to form a loving bond with one another.

Still, people are doing it. And, some have become wise consumers too:

“We become super-critical – much more than if it was just a cup of coffee or a date.”

That’s nice. However, these arrangements have problems typical of any family. What if a parent wants to move away? What will the timesharing schedule be? How will decisions about health, education and welfare be made? Consider this couple:

While Mr. Blue and Ms. Pieke plan on sharing parenting responsibility for Indigo equally, they never drafted any kind of legal agreement, which they both agree was unwise.

A lot of these issues can be addressed in an agreement, because they are the problems a lawyer specializing in family law deals with daily. Anyone looking to become a parent this way will likely have more success with a written agreement.

If nothing else, it also will force you to think about these issues before you click the “check out” button.

Five Essential Tips Before Divorcing

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

When you are thinking about divorce for the first time, your head may be swimming with questions: are you certain you want to your marriage to end? Can it be saved? What will happen to me? Can I afford this? When you decide it’s time to see a divorce lawyer, there are five essential things you should do.

Know What Assets You Have. Before you come in to see me, have a good idea of you and your spouse’s net worth. Know what investments and other assets there are; including any businesses and real estate, cars, boats, collectibles and jewelry. Divorce settlements should equitably distribute these assets. But, until you know how big the pie is, you won’t know how to fairly cut it.

Understand your Debts. Your house may be worth $1 million if you sold it today, but if your mortgage balance is $900,000, and your home equity credit line is another $100,000, your home’s real net worth is zero. A divorce settlement divides both debts and assets, and that could leave you with less than you’ve imagined. A good way to understand your liabilities is to list your family’s debts on a spreadsheet.

Learn your and your spouse’s current earnings. Increasing how much money you earn now may help you decide whether to walk away from your marriage without worrying about how you’ll pay your bills. Higher income can also allow you to hire legal and financial specialists to maximize your settlement.

Secure important papers and accounts. Make copies of your tax returns, paystubs, insurance policies, retirement account statements, passports, bank and investment account statements, deeds, and mortgage documents. Copy those papers, and store the originals in a secure place, such as a safe-deposit box. Secure your email, cell phone, your individual online banking and investment accounts by changing the passwords. You’ll want privacy from here on in, so create your own accounts where necessary, and change the passwords on existing accounts in your own name.

Check your credit. This is not a good time to be late with paying bills. You may need to borrow money to cover living expenses, or pay for lawyers and experts, and you may need to rely on your good credit. Also, a high credit score will help you make the transition to single life.

These five tips don’t mean you are going to file for divorce. They are just sound home finance practices. If you decide to reconcile, understanding your financial position will help you build a better marriage. If you divorce, following these tips could help make the transition to being single.

Grandparent Visitation Reaches the Whitehouse

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Tuesday, February 5, 2013.

Grandparent child custody is a highly contested issue in Florida. Although research shows that grandparent involvement in grandchildren’s lives has positive outcomes, government support for grandparent custody and visitation rights is lagging in Florida, and has had mixed results around the country.

Things might change. Grandparent visitation has taken center stage as the Obama transition team announced that Marian Robinson – Michelle Obama’s mother – will leave her Chicago home and move into the White House.

Robinson has traditionally watched the Obama granddaughters during the presidential campaign, when she routinely stayed in the Obama home in Chicago. As Grandparents.com reports:

“Mrs. Robinson will be coming with the family to help the girls get acclimated,” Deputy Communications Director for Michelle Obama, Semonti Mustaphi, told Grandparents.com this afternoon.

Robinson will become the first Presidential in-law to live in the executive mansion since Eisenhower’s mother. Multi-generational households is part of a growing trend in our country. The 2010 United States Census reflects:

  • 5.7 million grandparents live at home with their grandchildren
  • Multiple generation households have increased by 25%
  • 70% of grandparents take care of their grandkids regularly
  • 13% are primary caretakers

In an interview with The Boston Globe, Robinson said that she enforced an 8:30 bedtime and provided the girls with organic food – as her daughter demanded – when she sat for them in their own home. But when the girls had sleepovers in Robinson’s home, she admitted, “I have candy, they stay up late … they watch TV as long as they want to, we’ll play games until the wee hours. I do everything that grandmothers do that they’re not supposed to.”

As our nation’s commander-in-chief, President Obama admitted that in his home, he picks his battles carefully: “I don’t tell my mother-in-law what to do … I’m not stupid. That’s why I got elected president, man.“

The Causes of Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, February 1, 2013.

There are many reasons clients come to me to file for divorce. The top reasons I hear repeatedly include: difficult in-laws, financial problems, constant separation due to travel, and bad communication habits. I recently read about a reason I hadn’t come across before: my church caused it!

According to Florida’s FOX 8 WGHP, A husband is suing his Quaker church for encouraging his wife to leave him . . . and even helping her move out of their marital home after 28 years of marriage.

“I think the church had a great deal to do with [the divorce],” he said. “I won’t say they’re 100 percent responsible but they certainly made it happen. I don’t think she could’ve moved out if the church didn’t help her. They provided all the people to move the stuff.”

According to a Florida newspaper The Times News, the husband’s lawsuit also accuses the Church’s pastor of going on vacations with the couple (at the request of the wife) and spending time with the wife when the husband wasn’t present.

“The defendant’s pastor made multiple visits to Plaintiff and his wife’s residence to play Wii games with them not at the invitation of the Plaintiff,” Pegram claims in the suit.

The husband says his wife paid 60 percent of the household bills, and that he has struggled financially since she left him. He is suing the church for $180,000, in addition to $10 million in punitive damages.

The church has since denied the allegations and filed a motion to dismiss the case.

Grandparent Visitation . . . Chinese Style

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Monday, January 28, 2013.

Grandparent rights to child custody their grandchildren over the objections of fit parents do not exist in Florida. However, Florida does offer a few morsels. For instance:

  • Florida parents who are activated, deployed, or temporarily assigned to military service can now designate to grandparents their timesharing rights.
  • Also, Chapter 751 authorizes a court to order concurrent custody to extended family members who have physical custody, but lack documentation necessary to consent to a child’s medical treatment, or to enroll a child in school.
  • Additionally, voters adopted the “Granny Flats” amendment to the Florida Constitution, which provides tax incentives for constructing living quarters for grandparents.

But, these are just crumbs of visitation rights compared to how well grandparents are treated elsewhere. As the Bangkok Post reports, China has passed a new law requiring parents to regularly visit elderly relatives!

The ruling, approved by China’s National People’s Congress on Friday, is part of a package of amendments to the Protection of the Rights and Interests of the Elderly legislation and will come into force on July 1, 2013.

“Family members who live separately from the elderly should visit them often,” the law says, adding that “employers should guarantee the right to home leave in accordance with relevant regulations”.

The law mentions no specific penalties for those who fail to visit frequently, nor elaborates on what “often” means.

But it does state that if the rights and interests of the elderly are violated, they or someone on their behalf can seek official help or file a lawsuit.

The wide-ranging law includes clauses covering intra-family conflicts regarding support obligations, housing and assets. It stipulates punishments for people who abuse the elderly, fail to support them and interfere in their freedom to marry.

The legal changes reflect the challenge China faces in dealing with an increasingly ageing society after three decades of limiting couples to a single child.

The official Xinhua news agency said Friday that the law was amended “amid government efforts to find comprehensive solutions to issues facing the elderly population, as the number of Chinese senior citizens has grown rapidly in recent years”