Category: Uncategorized

Family Law Trial by Combat

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.

Trial by Combat

Extreme Family Law

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.

Florida Family Law Trials

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.

Divorce Superbowl

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 and Dating During Divorce

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?

Dating during Divorce

Skyfall

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”.

Hello!

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.

Dating during Divorce in Florida

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.

Someone Like You

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.

 

Happy Independence Day

The Law Offices of Ronald H. Kauffman, P.A. will be closed July 4, 2019 and July 5, 2019 in observance of Independence Day. We will resume our regular hours on Monday, July 8, 2019.

Independence day

Have a safe and happy holiday!

 

This is your Medicaid Divorce

Sometimes more income isn’t good news. People suffering from major illness worry they could lose their Medicaid eligibility because of changes to Medicaid rules. More and more people are discussing the “Medicaid divorce” as a planning tool, but is it something to consider?

Medicaid Divorce

To Your Health!

Medicaid provides health coverage to millions of Americans, including eligible low-income adults, children, pregnant women, elderly adults and people with disabilities. Medicaid is administered by states, according to federal requirements. The program is funded jointly by states and the federal government.

According to online media company Ozy, Susan was diagnosed with rheumatoid arthritis at age 4, and has lived with chronic pain. She didn’t have private insurance at the time of her diagnosis, so Medicaid was critical to manage her disability.

Susan’s husband’s seasonal income fluctuated, leaving Susan hovering near the Medicaid eligibility cap. She had briefly lost coverage during their marriage because her eligibility was based on household income.

Since Susan’s husband’s pay increase Susan worried she could lose Medicaid eligibility again, just when her medical bills were about to skyrocket. Divorce, they decided, would eliminate the month-to-month possibility of losing coverage — and the fear that came with it.

Florida Divorce

I’ve written about divorce planning before. For example, there is a marriage penalty which people have planned for to avoid the situation where a married couple pays higher income taxes than they would pay if they were un-married and filed individual tax returns.

Medicaid divorces are similar but a rarely talked about type of divorce planning. Some people are forced to think about divorcing when the medical costs for their spouse can lead a couple to deplete their assets, leaving the healthy spouse impoverished.

Medicaid is a federal needs-based assistance program and your eligibility is determined by the total income and assets of you and your spouse which are pooled and totaled and may require that assets are spent down to qualify for Medicaid.

In a Medicaid divorce the goal is to transfer assets to the healthy spouse to minimize the spend-down requirement, maintain the quality of life while qualifying the Medicaid spouse for assistance so that the couple’s assets won’t be depleted.

The Risky Medicaid Divorce

There are huge risks involved in divorce planning for taxes and Medicaid issues. First, there is the impact on your relationship. There is no fake divorce. Once the court signs the final judgment of divorce, you are divorced.

Florida, like all no-fault states, have minimum requirements for getting a divorce. In Florida, for instance, we require that at a minimum your marriage be irretrievably broken before you can get a divorce.

Be aware that the divorce itself could have an impact on other benefits that you or an individual spouse may already be receiving or expect to receive in the future.

Divorce can impact the amount of supplemental security income, Social Security retirement benefits and survivor’s benefits and veteran’s benefits.

Before you even consider a Medicaid Divorce, if you are dealing with a sick spouse, know that there are many planning strategies to help spouses get their loved ones onto Medicaid that do not include divorce.

Susan recalls listening to a doctor tell her parents when she was 15 that she’d never marry or give them grandchildren. She knows that her partner’s income and assets mean she could lose Medicaid and SSI, but her health had felt manageable back then. Cancer, however, changed the equation,

The Ozy article is here.

 

New York, Measles, and Custody

There are over 465 measles cases this year and climbing. That’s a lot given that we eliminated measles in our country in 2000. New York City has declared a public health emergency ordering mandatory vaccinations. If you don’t vaccinate, will the measles spread to your custody case?

Little Town Blues

New York City Mayor, Bill de Blasio, announced an unusual order: unvaccinated people living in select zip codes will be required to receive the measles, mumps and rubella vaccine, known as MMR, to curtail the outbreak and protect others, he said.

Under the mandatory vaccinations, members of the city’s Department of Health and Mental Hygiene will check the vaccination records of any individual who may have been in contact with infected patients. Those who have not received the MMR vaccine may be fined $1,000.

“Every hour, every day matters here. If people would just go and get vaccinated, there’s no cause for a fine. It’s not our goal to issue violations. We want to simply solve the problem.”

New Yorkers should call 311 to access a list of facilities that can provide the measles vaccine at low or no cost, de Blasio said.

Florida Vaccinations and Child Custody

I’ve written about vaccinations and child custody before. Many people refuse to vaccinate their child, and that decision – especially during a measles outbreak – can impact your child custody case.

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

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

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

Measles and custody seem to be as far apart as two terms can be, but the decision not to vaccinate raises interesting custody issues.

It is important to know what your rights and responsibilities are in Florida, especially when there are conflicting Florida court decisions about whether vaccinations are in your child’s best interest.

It’s Up to You New York

The public health emergency comes in response to 285 cases of measles reported in Brooklyn and Queens since the beginning of the outbreak in October.

The outbreak began when, according to health officials, an unvaccinated child became infected with the illness while traveling.

Measles is a highly contagious, vaccine-preventable respiratory illness characterized by a rash of flat red spots. Symptoms may include fever, cough, runny nose and watery eyes.

According to the US Centers for Disease Control and Prevention, about 1 child out of every 1,000 who get measles will develop encephalitis — swelling of the brain — that can lead to convulsions, deafness or intellectual disability.

The total number of measles cases nationwide this year “is the second-greatest number of cases reported in the U.S. since measles was eliminated in 2000,” the CDC says.

That threshold was reached last week when the national total for the year surpassed last year’s total of 372. The largest outbreak was in 2014, when there were 667 cases reported nationwide due to several large outbreaks.

We saw only two cases in New York City in 2017, so we have a very serious situation on our hands. We cannot allow this dangerous disease to make a comeback in this city — we have to stop it now.

The CNN article is here.

Brazilian Child Support Fraud

Who pays child support when the two potential fathers are identical twins? With the wisdom of Solomon, a judge recently made a quick decision to avoid a child support fraud case.

Girl from Ipanema

A judge in Brazil was stumped. He had ordered a pair of identical twins to take DNA tests in a paternity case in the central Brazilian state of Goiás. Both father’s came back positive for paternity.

Neither man would admit who fathered the girl at issue. Her mother had turned to the courts seeking financial support for the child, who was born after a casual fling.

The woman said she could not say for sure which of the two men she had slept with.

So, Judge Filipe Luis Peruca opted to punish both twins. In a ruling made public on Monday, he chided the men for acting in “bad faith” and ordered that each pay child support for the girl, who is now 9.

Florida Paternity Tests

The problem of child support fraud is not limited to Brazil. A DNA test can answer almost all questions about paternity, but there is one situation where DNA paternity testing may not give answers: when the two alleged fathers are identical twins.

Identical twins share identical DNA, so a standard DNA test cannot identify which of the twins is truly the biological father of a child.

However, each twin father will have a few mutations in his DNA that are unique to him. A full DNA test will find spots on the DNA that one twin shares with the child but not with the other twin.  With enough of these, the child’s DNA will be a better match to the twin that is her dad.

But Florida’s standard paternity test cannot tell the difference because the test relies only on 15 or so markers for comparison. A more comprehensive test – that looks at billions of markers – will find the unique markers proving which identical twin is the real dad.

Florida Child Support

Establishing paternity is an important first step in before calculating child support. I’ve written about child support issues in Florida before. Calculating child support in Florida used to be entirely at the judge’s discretion, based on a parent’s ability to pay, and the child’s needs.

Florida established child support guidelines which follows the income shares model. The guidelines provide the amount you pay can be adjusted upward or downward after considering relevant factors.

Additionally, the statute authorizes deviations by more than 5 percent, pursuant to a list of 10 enumerated factors, and one equitable factor. Finally, the statue mandates use of a gross-up calculation of support for substantial time-sharing.

In Florida, parents are allowed a gross-up calculation because when exercising substantial time-sharing, they incur their own child care expenses, and may duplicate payment for items already included in their child support.

Without adjustments for substantial time-sharing, parents can be paying twice for a child’s expense, making time-sharing prohibitively expensive. Accordingly, in 2008, the statute was amended to expand the meaning of substantial time-sharing to equalize the child support obligation.

Brazilian Samba or Saga?

The mother, whose name is redacted in court documents, initially sought financial help from just one of the twins, whose identities were also not disclosed.

When a DNA test came back positive, that man denied being the child’s father. The court then ordered that his twin brother undergo a test. When that test also came back positive, neither man would acknowledge being the father.

Judge Peruca, who is based in Cachoeira Alta, a small municipality in an area where cattle farms are the dominant industry, wrote in his decision that the men’s child support fraud was part of a long pattern of deceit.

“It’s evident that the defendants, from adolescence, took advantage — and continue to take advantage! — of the fact that they are identical twins . . . they used each other’s name to attract as many women as possible and hide instances of betrayal in their relationships.”

The judge ordered that the names of both men be added to the child’s birth certificate. He also ordered each man to pay the woman 30 percent of a minimum wage in Brazil, and they must collectively cover 50 percent of the child’s school and medical expenses.

The New York Times article is here.

Divorce or Annul in Las Vegas

What happens in Vegas is front page news if you’re actor Nicolas Cage. Four days after the ‘Family Man’ married Erika Koike, he was no longer ‘Moonstruck’. The ‘Wild at Heart’ husband was in court trying to undo his four-day marriage. Does he divorce or annul?

Face Off

In filing his request for an annulment of his four-day marriage to Erika Koike, Nicolas Cage cited Koike’s “criminal history” as one of the factors fueling his decision.

The actor, 55 and his new bride, 34, a makeup artist, had been dating for over a year when they filed for a marriage license in Las Vegas on March 23.

Cage filed for the annulment four days later claiming that he was too drunk to comprehend what he was doing when they were married — and that he was unaware of Koike’s criminal record at the time.

Florida Divorce and Annulment

What if this four-day marriage took place in Florida? I’ve written about divorce and annulment in Florida before. Florida does not have an annulment statute. The decision to divorce or annul a marriage will depend on certain facts.

Annulment has a history beginning in England, and if King Henry VIII had been able to secure an annulment from the Pope, England might have remained a Catholic country. Today, annulment may best be known for rescuing Britney Spears from an ill-advised alcohol-related Las Vegas “bender.”

Because Florida is one of the handful of states that has no annulment statute, annulments in Florida are purely a question of common law, decided pursuant to the inherent equitable powers of the circuit court.

The historical common law “impediments” to marriage traditionally fell into two general categories: lack of consent and lack of capacity. This is substantially still the case law in Florida.

Lack of consent would include, for example, people who are related within certain degrees, and minors without parental consent.

Lack of capacity, is exactly the situation Nicolas Cage is claiming (I was too drunk to comprehend what I got married) Lack of capacity includes marriages involving fraud, mental illness, sham marriages, and shotgun weddings.

Con Air

What about the issue of her lying about her criminal history? That may be ‘Snake Eyes.’His new wife, Koike, pled no contest to two DUI charges in Los Angeles in 2008 and 2011, according to documents obtained by The Blast.

Koike was put on probation and sentenced to perform community service and to attend AA meetings. She also had to attend an 18-month alcohol and other drug education and counseling program.

Koike was also charged with one DUI in Las Vegas in 2016 and domestic violence against her then-husband in 2006. Regarding the 2016 DUI, Koike pled not guilty. She’s due back in court in June.

Koike’s 2006 arrest for domestic violence was dismissed for lack of evidence and she later filed for a protective order from her then-husband. The couple officially divorced in 2014.

Cage also claims that there are grounds for annulment since Koike didn’t disclose to him the full nature and extent of her relationship with another person.

The makeup artist was also accused of being involved in an altercation with a neighbor in 2015. According to court documents, Koike’s neighbor sued her for assault and battery in 2016, claiming that Koike punched her in the face in a dark parking lot. That lawsuit was dismissed.

The People article is here.

Which is the Happiest City to Work In?

OK, the category “happiest city to work” may be an oxymoron. Still, Forbes has published a report detailing which cities have the happiest employees, and which have them singing the geographical blues. (That’s from the article) The winning city is surprising many.

The Forbes report is an effort to determine the happiest and unhappiest places to work. They looked at eight key factors that can influence an employee’s happiness.

The factors relied upon in the article include: work-life balance, an employee’s relationship with his or her boss and co-workers, general work environment, compensation, opportunities for advancement, company culture, and resources.

The No. 1 city in the report? Miami.

I agree!

The Forbes article is here.

 

Inns of Court Award

It is with tremendous pride that I get to announce our Inn of Court, the First Family Law American Inn of Court, was awarded Silver Level Status in the American Inns of Court Achieving Excellence Program for the 2016-2017 Inn year.

The First Family Law American Inn of Court in Miami is a group consisting of lawyers, judges, magistrates, and judicial officers dedicated to professionalism, ethics, civility and excellence in the area of divorce, family law, child custody and related matters.

The award from the national organization was due in large part to the incredible work and leadership efforts of our Board of Directors, including: the Hon. Sandy Karlan, Bette Ellen Quiat, Elizabeth Baker, Cecilia Armenteros, Patricia Young, Daniel Silver and myself as president.

In upcoming Inns news, our Inns will once again be sponsoring the Town Hall meeting involving family law with the Hon. Scott Bernstein, Administrative Judge of the Family Division.

Sponsorship of Town Hall meetings helps our Inns of Court fulfill its mission to inspire the legal community, and to advance the rule of law by achieving the highest level of professionalism through example, education and mentoring.

 

Hurricane Irma

We are continuing to follow weather reports. As you have already seen, this is peak Atlantic hurricane season, with a very powerful hurricane off our shores. Everyone is encouraged to take all possible precautions.

Our offices will be closed this Thursday and Friday, and remain closed through the weekend. We are planning to open again on Monday, but we will be monitoring the situation in the Atlantic closely.

Please know that our first priority during these times is public safety.

We hope you all stay safe and dry.