As we prepare for the arrival of Hurricane Ian, you are advised that our law office, all Miami-Dade County clerk offices, and all Miami-Dade County courthouses will be closed on Wednesday, September 28th and Thursday, September 29th. We will be working remotely to help address all of your family law concerns. Reach out to us by phone or email. We’re prepared to support you.
Stay safe. For information regarding Hurricane Ian click here.
Divorce is crypto when digital cryptocurrencies like Bitcoin are involved. Be prepared for wild market price swings – as much as 40% – hard to trace assets on a decentralized network, the bankruptcy of the crypto currency exchange itself, and the ever-present risk of waste due to your spouse’s fraud.
As the New York Times reports, Erica served her husband Francis with divorce papers and an automatic temporary restraining order that, among other things, prohibited him from transferring, concealing, or disposing of property without her written consent or court order.
However, after the divorce was filed, Francis initiated three bitcoin-related transactions. He wired money to Mt. Gox Company, a Japanese bitcoin exchange, to buy bitcoins. Then he arranged for his friends to buy bitcoins from Mt. Gox on his behalf without at the time disclosing the purchases.
Mt. Gox then ran into a few “regulatory difficulties” with the U.S. government. Federal agents froze bank accounts associated with Mt. Gox, seized millions of dollars, Mt. Gox suspended withdrawals, and went on to lose hundreds of thousands of bitcoins to hacking, embezzlement, or both.
As one expert testified at trial:
And my personal opinion at the time was only an idiot would leave his Bitcoins on Mt. Gox.
After entry of the divorce, Erica sought her half of the marital bitcoins. Only then did Francis disclose that the bitcoins were tied up in the Mt. Gox bankruptcy.
I’ve written about equitable distribution in Florida before. In divorce proceedings, in addition to all other remedies available to a court to do equity between the parties, a court must set apart to each spouse that spouse’s non-marital assets and liabilities. and in distributing marital assets, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal one.
In addition, many courts, including here in Miami, have Administrative Orders limiting what spouses can do once a divorce is filed. Similar to California’s automatic restraining, neither spouse can conceal, damage, or dispose of marital assets, waste jointly owned funds, and the use funds after separation must be accounted for and justified.
Put plainly, both parties are accountable for all money in their possession after separation and during the divorce proceedings and any party who violates these rules will be required to render an accounting and may be later sanctioned for wasting a marital asset.
Under Florida law, misconduct in the use of funds causing the loss of funds can cause a court to assign the value of the loss into the property division scheme. There has to be evidence of intentional dissipation or destruction of the asset which resulted from intentional misconduct.
A cryptocurrency is a digital or virtual currency secured by cryptography, which makes it nearly impossible to counterfeit or double-spend. Many cryptocurrencies are decentralized networks based on blockchain technology. They are historically not issued by a central government, rendering them theoretically immune to government interference or manipulation.
In divorce cases, similar to the days of hiding cash in a mattress, not reporting cryptos, or hiding them in online wallets, can make identifying and valuing cryptos difficult. But digital assets are not untraceable. Transactions are recorded on public ledgers called blockchains, enabling some analysts to follow the money.
There are forensic investigators who can track the movement of cryptocurrencies like Bitcoin from online exchanges to digital wallets. In multiple cases they have been able to trace millions in cryptocurrency.
Back in California, in addition to hiding his bitcoin purchases and using friends as proxies, Francis’s failure to inform Erica about the Mt. Gox bankruptcy breached his fiduciary duty. Had he disclosed these facts Erica could have objected or protected her interest in the bitcoins.
The California Court of Appeal affirmed the trial court ruling that Francis transfer $22,500 in cash and 249.445 additional bitcoins to Erica, along with the corresponding bitcoin gold and bitcoin cash. Francis was also ordered to pay Erica’s attorneys’ fees and costs incurred in bringing her motion.
The New York Times article is here.
Christmas and the holiday season mean lots of timesharing with the family. The divorce and family law firm of Ronald H. Kauffman, P.A. will be closed on December 24th for the Christmas holiday. We will re-open at 9AM on Monday, December 27th. We wish you and your family a Merry Christmas.
Before the arrival of Christmas is the time to resolve child custody and timesharing problems so you can enjoy your family on the holidays with minimum stress. Below are suggestions to make your holiday timesharing issues a little easier:
• Alternate. Some families alternate the holiday every other year. If you get the kids this year, next year will be the other parent’s turn. Having a regular plan to fall back on can eliminate the potential for what is fair.
• Be flexible. An easy holiday schedule for everyone may require some changes from the normal visitation schedule.
• Be respectful. You may not want to be friends anymore, but you need to figure out how to communicate with your ex without all the emotional baggage.
• Don’t mix issues. Do not bring up unrelated issues which could make a problem free Christmas dinner impossible. Set aside your differences until after the holiday season.
• Pick your battles. Christmas may even be more important to you than Easter is to your ex-spouse. Don’t fight just for the sake of fighting.
• Protect the children. Your children’s memories of Christmas morning should be about family, food and fun. They should not be forced to witness you and another parent arguing.
• Plan. Start talking about the holiday visitation schedule sooner rather than later, the longer you wait the harder it can be.
Going through a divorce during the holidays is always stressful. But the weather has cooled and the kids are on vacation. Try to make the holidays the best time of year.
The Guardian reports on The Simpsons animated sitcom, its longevity, and its influence on western culture. But most importantly, what the Guardian finds really astonishing about The Simpsons is that Marge has not filed to divorce Homer yet.
If The Simpsons was rooted in any form of real life, and didn’t reset itself sitcom-style after every episode, it would be a harrowing drama about a woman trapped in an impossibly unhappy marriage.
In The Simpsons Movie there is a quiet moment where Marge sits on the bed, silently absorbing yet another energy-draining screed from her feckless husband, before admitting that her marriage has “aged me horribly”. What else would motivate her to divorce?
For starters, in 1992 Homer was actively considering an affair. In 1994 he deliberately revealed all of his wife’s innermost secrets to the whole town. Then in 1999 he got blackout drunk in Las Vegas and married a cocktail waitress. Worse, in 2004 he drove a car drunk, crashed it, and framed his wife.
Conversely, before marriage Marge was a brilliant, resourceful, academic young woman. She joined the police. She wrote novels. She briefly became mayor of Springfield. Unshackled from her awful marriage, there would be no stopping Marge.
I’ve written before that divorce comes at a high price. You walk away from your marriage with significantly fewer assets and retirement savings by virtue of the property division.
You can lose more if you have to pay support or alimony. Then there’s the emotional toll. But there may be a silver lining, some divorce benefits you were not aware of.
The Guardian suspects Marge may be better off after divorce, and there may be some truth to that theory. Divorce may have a few silver linings, some unknown or hidden benefits to take some of the sting away from an otherwise painful process.
The end of a marriage can mean the end of fights over money. That is a divorce benefit. There is no more struggle over which categories get priority in the budget; no more evenings spent fighting or pleading with a spouse to rein in spending.
Another benefit is that a divorce is one of the few times you can pull money out of your retirement account early and not pay an early withdrawal penalty. When the court enters a QDRO (a Qualified Domestic Relations Order) as part of a divorce, it allows for an early withdrawal from the account.
This money may be exempt from the typical penalty assessed, although income tax still needs to be paid if the money is not rolled into an IRA. Cashing out part of your retirement account can be very risky, but it gives you some benefit to your money you may not otherwise have.
Divorce could mean better investment returns. After a divorce, you have the opportunity to take over your own retirement planning and investments. Being the captain of your own financial ship could be a financial benefit in the long run. I have also written about there being some tax issues in divorce which may benefit you.
Sometimes you can structure your marital settlement agreement so that the lower-earning parent becomes the custodial parent, giving your student the best chance of qualifying for the most financial aid.
How would the Simpson children fair after divorce? Bart may be forced into taking on more responsibilities, which could curb his delinquent behavior. Lisa would see that there is a path in life that doesn’t involve being crushed by the weight of patriarchal expectations.
Lost in the Guardian article (as reported in the Los Angeles Times) is the fact that the Simpsons have been divorced before – for 12 whole seasons — according to various summaries of “Simpsons” episodes. In Season 8, Homer secretly divorced Marge because he believed she deserved better but then quickly remarries her at the end of the episode in a proper ceremony in front of all her friends.
Twelve seasons later, at the time of their second wedding, the Rev. Lovejoy’s license to officiate weddings had expired. So, unbeknown to them, the couple had apparently been divorced that whole time. It was an error they rectified, of course, by the end of the episode.
The Guardian article is here.
Ronald H. Kauffman PA is pleased to announce founding partner Ronald H. Kauffman’s selection to the 2021 Super Lawyers list in the area of Family Law. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law.
“Board Certification” in Florida, mean certification from The Florida Bar, and recognizes attorneys’ special knowledge, skills and proficiency in various areas of law and professionalism and ethics in practice.
Board certified lawyers are evaluated for professionalism and tested for expertise. Certification is the Florida Bar’s highest level of evaluation of the competency and experience of attorneys in the 26 areas of law approved for certification by the Supreme Court of Florida.
In addition to being named in Superlawyers, Ronald H. Kauffman is also board certified in marital and family law, currently serve on the Executive Council of the Family Law Section of the Florida Bar, and is a member of both the California and Florida Bars. Ron’s recent article “Like Home: The New Definition of Habitual Residence” was published in The Florida Bar Journal.
Ron is also a frequent speaker, and has lectured to different professional organizations including, the Florida Bar, American Academy of Matrimonial Lawyers, the Florida Chapter of the AFCC; Miami-Dade County Family Court Services; and The First Family Law American Inns of Court.
For more on Family Law Super Lawyers visit Superlawyers.
Florida Alimony Reform 2021 is dead after the Legislative Session ended last Friday. The House Speaker and the Senate President stood together in the Capitol rotunda to mark the adjournment of the Legislative Session with the famous dropping of the hanky known as as “sine die”. The alimony reform bill was absent.
Florida House Bill 1559 would have done several things to reform Florida alimony, and beyond. First, it prohibited permanent alimony unless expressly agreed to by the parties.
The bill required a court to prioritize bridge-the-gap alimony first, followed by rehabilitative and durational alimony, respectively. The bill removes any presumption for alimony based upon how long the marriage was, and placed caps on the length and amount of certain alimony awards.
The also bill created a rebuttable presumption that both parties will have a lower standard of living after divorce than they enjoyed during the marriage. The bill authorized an award of durational alimony to exceed 50 percent of the length of the marriage in certain limited circumstances.
The bill prohibited an award of alimony if the obligor met certain requirements for retirement prior to the date the petition for divorce was filed unless the obligee would otherwise be left in a financially destitute situation. Also, the bill permitted the court to consider the reasonableness of an obligor’s voluntary retirement as a reason to terminate an alimony award.
The bill created a rebuttable presumption that equal time-sharing between parents, commonly referred to as “50/50 time-sharing,” is in the best interest of a child. Of course, this has nothing to do with alimony whatsoever, but under the bill, 50/50 timesharing would have become the default when determining time-sharing of children after divorce.
Finally, the bill allowed expressly provided for bifurcation of a divorce proceeding after 365 days has elapsed since the petition was filed, and authorizes the court to enter temporary orders on substantial issues until such issues can be ultimately decided.
I’ve written about subject of alimony in Florida. In every Florida dissolution of marriage case, the court can grant alimony to either party – husband or wife. Not many people realize there are several types of alimony in Florida: bridge-the-gap, rehabilitative, durational, or for the moment, permanent alimony.
Florida courts can also award a combination of alimony types in a divorce. Alimony awards are normally paid in periodic payments, but sometimes the payments can be in a lump sum or both lump sum and periodic payments.
In determining whether to award alimony or not, the court has to first decide as to whether a wife or a husband, has an actual need for alimony, and whether the other party has the ability to pay alimony.
Typically, courts consider any type of earned income or compensation — that is, income resulting from employment or other efforts — along with recurring passive income, such as dividends on your investments, in establishing the amount of support you will be responsible to pay.
In Florida, once a court determines there is a need and the income available to pay alimony – sometimes referred to as the ability to pay alimony – it has to decide the proper type and amount of alimony.
In doing so, the court considers several factors, some of which can include things like: the standard of living established during the marriage; the duration of the marriage, the age and the physical and emotional condition of each party and the financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
A statewide group of divorced women, known as the First Wives Advocacy Group, once again defeated what has become a perennial proposal to end permanent alimony and mandate an equal-time sharing provision for children caught in divorce.
“We were the stay-at-home moms that gave to our children while our husbands built careers and now that I’m 61 they want to kick me to the curb and leave me penniless”.
Supporters of alimony reform argued that the system was broken and some form of a statewide standard is needed:
“Family court is the biggest casino in the state because we don’t know what is going to happen. There is no uniformity, no consistency, no foreseeable outcome. This will create an alimony formula.”
Former Gov. Rick Scott twice vetoed similar bills in a fight that dates at least to 2012. And this year, alimony reform died once again.
The Florida Politics article is here.
The marital and family law offices of Ronald H. Kauffman, P.A. will be closed in observance of Christmas as follows:
Wishing you and your family a safe and joyous holiday season. Happy Holidays!
Pregnancies resulting from rape are back in the news after one Pennsylvania rapist demanded child custody. Surprisingly, states are split over giving a father custody of a child conceived as a result of his rape. In Pennsylvania, it took authorities two years to convict a man of rape, but twice as long to terminate his parental rights.
M.E.’s four-year legal battle, which ended only after a state appeals court ruled in her favor, inspired unanimous approval in the state Legislature to close an “archaic” loophole in Pennsylvania’s Adoption Act.
Prior to his parental rights being terminated, M.E.’s rapist had shared child custody and continued contact with the children, even in prison, forcing her to remain legally tied to him.
M.E. was a year old when her mother married the man who later adopted her. The sexual assaults began when she was 4. Until she became pregnant, M.E. thought he was her biological father.
The couple divorced when M.E. was 11. Her stepfather got custody of M.E. and her two step-siblings. Her mother moved to another state.
The abuse look place for nearly 20 years and spanned two states, Michigan and Pennsylvania. Her stepfather kept journals chronicling the sexual abuse, including photos and videos that later were used to prosecute him.
Rape-related pregnancies — like the crime itself — are an underreported outcome of sexual violence, women’s rights and criminal justice experts said.
I’ve written about the phenomenon of a rapist trying to get custody before, and it is actually a national problem.
Statistics, like the number children conceived as a result of sexual battery, are sobering. Each year, there are approximately 32,000 pregnancies resulting from rape, according to a 1996 study by the American Journal of Obstetrics and Gynecology.
Congress got involved. The Rape Survivor Child Custody Act (the “RSCCA”) was made into law as part of the bipartisan Justice for Victims of Trafficking Act.
The RSCCA authorizes the U.S. Attorney General to make grants to states that pass legislation terminating the parental rights of men who father children through rape.
Many states adopted laws terminating parental rights in rape cases after Congress passed the RSCCA, granting additional funding to help sexual assault victims in states that allow courts to end parental rights when there is “clear and convincing evidence” that a child was conceived by rape.
However, some states require a rape conviction to terminate parental rights. But activists argue that the conviction standard is too high. The statistics they cite to are highly contested, but they argue three out of four rapes go unreported and less than 1% of all rapes lead to criminal convictions with incarceration.
Florida has been a part of this national trend. The child’s best interest is the guiding principle in establishing a parenting plan and for ordering a timesharing schedule in Florida.
Under Florida law, if a court determines by clear and convincing evidence that a child was conceived as a result of an act of sexual battery, the court must presume that termination of the father’s parental rights is in the best interest of the child if the child was conceived as a result of the unlawful sexual battery.
The action to terminate the parental rights of the rapist under the Florida Statute may be filed at any time and generally doesn’t require proof of a proof of a guilty plea or conviction in a criminal proceeding.
M.E. learned she was pregnant the first time at 17. Initially her stepfather told her siblings and mom that the father was someone from her school. This kept everyone from asking questions potentially exposing the abuse.
The birth of her daughter tightened the ties to her abuser, M.E. said. She became pregnant by rape a second time in Michigan, but lost the child. She was 22 when she gave birth to a son.
By that time, her stepfather was stalking her, she said. He put monitoring devices on the computer. She was under constant surveillance and kept isolated in the house. The threats were constant. If anyone found out the family secret he would kill her, the kids and himself, M.E. said.
Then, her daughter turned 4. M.E. knew she could be silent no longer. M.E. went to police in Michigan, who opened an investigation and uncovered the decades of videos, photos and journal entries detailing M.E.’s sexual abuse and corroborating her allegations. The evidence led authorities to Pennsylvania, where a second criminal investigation was opened.
Despite the charges, at any point during the two years the criminal case lasted, the family courts in either state could have forced M.E. to arrange for her children to maintain contact with their father, including bringing them to visit him in jail.
Since 2016, Michigan has allowed rape victims to petition family court, which has a lower burden of proof, to sever parental rights in rape cases.
Yet, in Pennsylvania, M.E. learned that the courts would not consider a petition to terminate parental rights unless she had a “replacement” partner willing to adopt her children.
Since the 2015 passage of the federal Rape Survivor Child Custody Act – which provides a financial incentive to states to pass laws to terminate parental rights of a rapist with clear and convincing evidence – more states are adopting laws allowing for rape-related termination of parental rights.
Currently, 32 states and the District of Columbia allow it when a child is conceived as a result of rape; other states have custody or visitation restrictions.
Pennsylvania is among more than half the states where the courts use the “clear and convincing evidence” legal standard to determine a child was conceived as a result of a rape and to terminate a perpetrator’s parental rights.
But state courts long have interpreted the parental rights termination law as requiring the restoration of a two-parent household in order for the courts to sever parental rights for a biological parent.
Despite changing family compositions, family law remains steadfast in the idea that two-parent households, or shared custody arrangements, are what is always in the best interest of the child.
The Bucks County Courier Times is here.
Motion calendars in family court can be dull affairs involving discovery disputes and defaults. In a twist, a Kansas man asked a judge to grant him a rare motion, he wants to resolve his family law case in a trial by combat.
David Ostrom, 40, of Paola, Kansas, claims in court documents that his ex-wife, Bridgette Ostrom, 38, destroyed him legally in their lengthy divorce. Now he wants to end his family case in a duel known to Game of Thrones fans as a trial by combat.
He also asked the Iowa District Court in Shelby County to give him 12 weeks “lead time” to source or forge Japanese samurai swords such as the katana and wakizashi swords.
I’ve written about family law issues before, especially trials. Let’s face it, a typical family law trial can be a little boring. The trial in a divorce is when spouses and their lawyers square off in court because they could not come to an agreement on some or all of the issues. At that point, the parties need to have a judge make the final call.
A trial (not one by combat) works similarly to how they are portrayed on TV and in the movies. Attorneys from both sides will present an opening statement, witnesses will be called and cross-examined, evidence will be introduced, and at the end, both attorneys will give closing arguments.
In some cases, the judge is able to make a ruling at the trial on all of the issues presented. More often, the judge will spend time reviewing the testimony and evidence and render a decision for the case.
The lawyers typically leave their Japanese swords at the office.
With Superbowl LIV upon us, maybe people feel it’s time to take another look at trial by combat? To this day, trial by combat has never been explicitly banned or restricted as a right in the United States, in fact it was used as recently as 1818 in Britain.
Traditionally, trial by combat was a method under law to settle accusations in the absence of witnesses or a confession. The two parties in dispute fought in single combat. The winner of the fight was proclaimed to be right.
“It should be noted that just because the U.S. constitution does not specifically prohibit battling another person with a deadly katana sword, it does prohibit a court sitting in equity from ordering same.
Ostrom said his motion stemmed from his frustrations with his ex-wife’s attorney. “I think I’ve met Mr. Hudson’s absurdity with my own absurdity,” he said. Ostrom said his ex-wife can choose her attorney as a “champion,” or stand-in fighter.
Hudson filed a response to the trial-by-combat motion by first correcting Ostrom’s spelling and then argued that because a duel could end in death, such ramifications probably outweigh those of property tax and custody issues.
Hudson asked the court to suspend Ostrom’s visitation rights and order him to undergo a court-ordered psychological evaluation.
“Respondent and counsel have proven themselves to be cravens by refusing to answer the call to battle, thus they should lose this motion by default.”
The court did not rule on either party’s motions.
Kansas City Fox4kc has the article here.
Adele is reportedly dating someone new, a few months after separating and just days after filing for divorce from her husband, Simon Konecki. What are some of the financial and custody implications of Adele dating during her divorce?
According to numerous U.K. outlets, it is believed Adele and Simon Konecki did not sign a prenup when they wed in 2011. If they choose to file for divorce in the state of California — where they own property and Konecki’s business has a base of operations — he may be entitled to as much as half of the singer’s earnings.
“What is made during the marriage is likely to be split on an equal basis. “It doesn’t matter who did what, or who contributed what.”
However, a lawyer specializing in family law, says that it’s unlikely to be a 50-50 split. “Adele may be able to claim that her talent is effectively genius, which means her husband would be entitled to significantly less”.
According to The Sun, Adele and rapper Skepta have been there for each other a lot after both their relationships split up. They have a close bond and there’s definitely a special connection,” the source said. “They’re spending more and more time together. Some of their friends are hoping and predicting they could end up being a great couple one day.”
“Adele texts me all the time and keeps me in check. She speaks to me about how things are going.”.
Skepta, whose real name is Joseph Junior Adenuga Jr., and Adele both hail from Tottenham, London. In a 2016 interview, the rapper said the two frequently talk together, and Adele reciprocated that year by posting a photo of him on Instagram. She added “Tottenham Boy” and a heart emoji in the caption.
I’ve written about divorce issues before. There are various reasons people advise not to date before divorce. After all, emotions are raw and dating will anger the other party who could try to seek revenge.
If you have children, it is in your best interest to try to keep a cordial relationship with your soon to be former spouse. Despite what you may think, you will most likely have ongoing contact with your spouse after the divorce because of the children. Dating during divorce can poison that relationship.
As far as Florida law is concerned, you are still legally married until the divorce is finalized. Even if you have been separated from your spouse, dating during your divorce can be used to help prove marital misconduct during your marriage and have custody and financial impacts.
You need to be especially careful if you have children from your marriage. Not only will both you and your spouse’s conduct be scrutinized during a custody case, but the conduct of your new significant other will too! Dating someone with a shady background will impact you.
Any person who has frequent contact with your children can become part of a custody investigation. If your boyfriend has past issues of domestic violence or charges of sexual misconduct (proven or not), it will have repercussions in your divorce.
If you are considering living with your significant other, it may impact alimony you may eventually receive because your expenses are shared.
After he saw Adele’s post on Instagram and Twitter, Skepta told IBTimesUK in 2016 that he almost quit music.
“She gassed me up. One day I was just chilling and she [tweeted] a picture that said ‘Tottenham boy,’ and she’s from Tottenham as well. I was actually going to quit music that day, that was one of the sickest things ever. She’s like the lady of Tottenham and she called me ‘Tottenham boy,’ so I might as well quit.”
In the same interview, Skepta went on to praise Adele for keeping her private life out of the public eye, just as he does.
“I believe in signs but being myself is the best thing I could have ever done because of Adele, that is nice for me. That’s another artist that goes through the same things as me, knows how hard it is. I love how she keeps herself to herself, she’s not in the papers. She’s not excited by all this other stuff, she knows it’s a blessing.”
Forbes has estimated Adele’s net worth at $69 million due to proceeds from her 121-date world tour that stretched through 2016 and 2017. In addition, she also pulled in over $12 million in 2017 from sales of her most recent album, which has sold more than 22 million copies to date — making it the 55th best-selling album in history.
The Pop Culture article is here.