Dividing marital property in a divorce is governed by the equitable distribution statute. Sometimes the division is not so equitable. One former husband complained to the appellate court the values of the marital property awarded to his former wife increased so much after the trial, he needed more money to do equity.

What goes up

In 2018, the parties’ marriage was dissolved, and their assets were equitably divided and distributed. The former wife was awarded the marital home, valued at around $138,000. The final judgment required the former husband to sign over a deed of his interest in the home to his former wife, but also obligated the former wife to pay cash to the former husband to equalize the distribution.

Neither party appealed the revised equitable distribution scheme in the amended final judgment, which continued to award the former wife the marital home and continued to value it at $138,413.

In 2022, the former husband filed a motion claiming that value of the home had increased so much, that he was entitled to have the value from any sale equally divided. He did not move to set aside either the final judgment or the amended final judgment as inequitable.

Instead, he argued that the valuation of the home in both judgments was put in place to show if the house had been sold at the current market, what it would be worth. Following a hearing, the family judge disagreed, and the former husband appealed.

Florida Equitable Distribution

I have written about equitable distribution in Florida before. In a proceeding for dissolution of marriage, 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.

When distributing the marital assets between spouses, a family court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.

However, when dividing up a marital estate, a court can’t always divide it equally to the penny. To ensure a marital estate is equalized, a court may order one spouse to pay the other spouse a lump sum payment. This amount is referred to as an “equalizing payment”.

An equalizing payment is proper only when the distribution schedule justifies it and the payment is in the ability of the paying spouse to make the payment without substantially endangering his or her economic status.

Must Come Down

On appeal, the court found that when an equalizing payment is ordered by a court to equitably distribute marital assets, they payment becomes vested when the judgment is entered, and is treated as a debt owed.

Here, the former husband had 30 days after entry of the final judgment to challenge the equitable distribution but he didn’t. The equalizing payment vested and could not be challenged because res judicata applies to prevent either party from relitigating the issue.

The court also held that even if the former husband had timely brought a claim under rule 12.540 it would fail. Former husband had to allege “new circumstances.” The fact that the marital home may have appreciated in value is not a new circumstance.

The opinion is here.

For many parents, religion and child custody disputes can make you sweat. After a father in Nebraska is enjoined from taking his son to his Native American tribal sweat lodge, he raises the freedom of religion as his defense. How will the court balance freedom of religion with child custody?

Sweating the Small Stuff?

The parents have an 11-year old son. The parties never married, and their relationship ended 10 years ago. In 2015, the father was in a severe automobile accident in which he collided with a wall at 75 miles per hour. He suffered a broken back, a traumatic brain injury, and bleeding in his brain.

At that time, a court adopted the parents’ joint stipulation that the mother receive sole physical and legal custody and the father received parenting time set out under their parenting plan. Six years later the father asked to modify the Order. In addition to answering the modification petition, the mother tried to enjoin the father from taking their son to sweat lodges.

A sweat lodge is a hole which holds stones that have been warmed by fire, inside layers of tarps and blankets. The father’s best estimate of the temperature inside the sweat lodge is 100 degrees at most. The amount of time inside the sweat lodge with the door closed is usually 45 minutes, although the amount of time at the sweat lodge is usually 1½ hours.

The father wants his son to be involved with his activities. He defines an “Indigenous life” as “spirituality,” a way of life more than a religion. He fears that by not allowing his son in the sweat lodge, its participants will not be able to include him in prayers.

Additionally, the child will not be able to hear stories of his ancestors, because the elders with such wisdom tell those stories only while in the sweat lodge. He argues an injunction his son from participating in sweat lodges violates his First Amendment rights.

Conversely, the mother believed sweat lodges are unsafe. Her son takes Clonidine for his ODD, which affects his blood pressure. Neither parent checked with the child’s doctor to ensure the sweat lodge would not have a negative interaction with the Clonidine.

The trial court enjoined the father from taking his son to the tribal sweat lodge.

Florida Religion and Child Custody

I’ve written about the intersection of religion and divorce – especially as it relates to vaccinations. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases.

That’s because placing restrictions on a parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child.

Generally, Florida courts will not stop a parent from practicing their religion or from influencing the religious training of their child inconsistent with that of the other parent. Religious practices can be restricted, however, when there is a clear, affirmative showing that they “will be harmful to the child.”

Sweat today, smile tomorrow!

Generally, the First Amendment guarantees “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Additionally, parents have a constitutional right under the Free Exercise Clause of the First Amendment to exercise religious practices and spiritual beliefs with their child.

When a court finds that particular religious practices pose an immediate and substantial threat to a child’s temporal well-being, a court may fashion an order aimed at protecting the child from that threat.

In this case, although there was testimony regarding prayer and spirituality related to the sweat lodge, the appellate court found that the father’s participation in a perspiration ceremony did not constitute a religious practice.

The father was not an enrolled member of any tribe, he really wanted his son to experience the sweat lodge – not only to learn more about Native American culture – but also because he thought it taught his son self-control.

Moreover, a witness testified that people from all religions participate in sweat lodges, and do not need to be tribal members. The mother testified that religion was not practiced at the sweat lodge. Instead, the mother described it as “part of the Native American culture” and posed a danger to the child. Neither parent confirmed with a healthcare professional whether the sweat lodges could adversely interact with the child’s medication.

Because the trial court found the mother’s testimony persuasive that the sweat lodges posed a threat to the child’s well-being, it determined it was in the child’s best interests to restrict his ability to enter the sweat lodge. The higher court find no abuse of discretion in that decision.

The opinion is available at Reason.

When a parent moves 50 miles from a principle residence, parental relocation is involved. There is a little known update to the law on how we modify custody and time-sharing orders in Florida. And in follow-up to a long standing investigation, police are closing in on the murder-for-hire ring involving one parental relocation.

Intrigue in Tallahassee

Tallahassee is the center for political intrigue, but not so much for big murder cases. Many groups have been pushing for alimony reform for years. This year, as part of the alimony reform bill, the governor signed a comprehensive law which impacts relocations of parents from their principle residences.

Timesharing with a child has always been subject to modification by the court.  After a final judgment of divorce or order about timesharing, either parent may seek modification of the timesharing on the grounds of a substantial change in circumstances.

But the party asking for modification of a timesharing order always had to allege that circumstances had substantially and materially changed since the original custody determination, that the change was not reasonably contemplated by the parties; and the child’s best interests justify changing custody.

Effective July 1, 2023, Florida repealed the requirement that a parent must show that a change in circumstance was unanticipated to modify a parenting plan and time-sharing schedule.

Accordingly, if the parents of a child are residing greater than 50 miles apart at the time of the entry of the last order establishing time-sharing and a parent moves within 50 miles of the other parent, then that move may be considered a substantial and material change in circumstances for the purpose of a modification to the time-sharing schedule, so long as there is a determination that the modification is in the best interests of the child.

Miss Saigon

I have written about the Markel murder case before. Parental relocations can be very stressful. This week, the ex mother-in-law of a law professor who was murdered in his driveway, has been arrested at Miami International Airport.

Donna Adelson, 73, was arrested at MIA after she arrived at the airport where she and her husband had one-way plane tickets to Vietnam.

Her arrest came exactly one week after a jury convicted her son Charlie on all counts for his role in Markel’s murder. Charlie Adelson is a Fort Lauderdale dentist and the murder victim’s former brother-in-law.

Markel had been involved in a bitter divorce with Wendi Adelson, who filed for divorce in 2012. Markel later learned that she and their two children had moved to her parents’ home in Coral Springs.

In June 2013, a Leon County judge denied Wendi Adelson’s petition for relocation with the children to South Florida. A police affidavit stated: “Email evidence indicates Wendi’s parents, especially her mother, wanted Wendi to coerce Markel into allowing the relocation to South Florida”.

Early in 2014, Markel tried to enforce the judge’s ruling, claiming Donna made disparaging remarks about him to the children. He asked the court to limit the amount of time Donna spent with the children to prevent disparaging remarks. A hearing on the issue was postponed and hadn’t been rescheduled when Markel was murdered in the driveway of his Tallahassee home in July 2014.

One of the other defendants found guilty in the Markel murder had been receiving paychecks from the Adelson’s dental business. Investigators noticed “a significant increase in cash deposits” after Markel’s death.

Markel’s former wife, Wendi Adelson, testified that she didn’t think her brother had been involved in Markel’s murder.

She said that her brother gave her a television as a divorce present and that he joked it had been cheaper than hiring a hit man.

After Charlie Adelson was convicted, Assistant State Attorney Georgia Cappleman told reporter that the investigation was ongoing.

The WPTV article is here.

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.

Slum Dogecoin Millionaire

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.

Florida Equitable Distribution

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.

Brother, Can You Spare a Bitcoin

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.

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.

Superlawyers

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.

Florida Board Certification

“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.

Alimony Reform 2021

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.

Florida Alimony

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.

Taps

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.