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RONALD KAUFFMAN > BLOG > 2017 > December
New Article on Grandparent Visitation
Posted by Ron Kauffman on December 26, 2017 with 0 Comment
The holiday season is in full swing. In the spirit of shameless self-promotion – and if you are looking for a last-minute gift for the family law reader in your life – what could better than my new, Game of Thrones themed article, "Unbowed, Unbent, Unbroken: An Update on Grandparent Visitation"?
The Game of Thrones
The struggle for grandparent visitation rights in Florida has become a game of thrones between the three branches of Florida government.
The Florida Supreme Court has stricken all previous attempts to legislate grandparent visitation as unconstitutional. Yet, the legislature and the governor keep passing new laws to enforce grandparent visitation rights for Florida voters.
I've written about grandparent visitation rights before. However, this new article not only reviews the history of grandparent visitation rights in Florida, but it provides an update on those rights through the Florida Supreme Court's recent decision earlier this year.
In early common law, there was never a right to visitation by non-parents, and Florida has clung to that tradition. That is ironic, as a a lot of elderly voters reside in Florida, and politicians have been trying to create visitation rights to grandparent voters here.
Beginning in 1978, the Florida legislature started making changes to the Florida Statutes that granted enforceable rights to visit their grandchildren.
The Florida Supreme Court built a massive wall blocking Florida grandparent visitation rights, explaining that parenting is protected by the right to privacy, a fundamental right, and any intrusion upon that right must be justified by a compelling state interest.
In Florida, that compelling state interest was harm to the child: "[W]e hold that the [s]tate may not intrude upon the parents' fundamental right to raise their children except in cases where the child is threatened with harm."
The High Sparrow
The U.S. Supreme Court, has also commented, reasoning that the 14th Amendment's due process clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
The U.S. Supreme Court did not hold that the due process clause requires a showing of harm or potential harm to the child as a condition for granting visitation. Instead, the U.S. Supreme Court left those decisions for the states to decide because:
much state-court adjudication in this context occurs on a case-by-case basis.
There have been a few legislative attempts to grant some rights of visitation for grandparents in Florida, but they have been very modest.
Despite these recent recent legislative victories for grandparent visitation rights in Florida, a recurring problem has also been what to do about out-of-state grandparent visitation court orders.
Florida courts have been unwilling to enforce them until recently.
Dances with Dragons
This year, the Florida Supreme Court held that under the federal Parental Kidnapping Prevention Act any custody determination or visitation determination – including grandparent rights – are protected and enforceable under the PKPA.
And, to the extent that the PKPA conflicts with Florida law, the PKPA controls under the supremacy clause of the U.S. Constitution because it is a federal law.
The Florida Bar Journal article is available here.
Sex, Lies and Prenups
Why didn't the wife of Hollywood producer Harvey Weinstein file for divorce months ago when the news broke? It may be because of their prenuptial agreement. According to Newsweek, their prenup may make the amount of alimony he pays her pegged to the number of years they remain married.
Weinstein in Love
Chapman, the 41-year-old Marchesa fashion owner, met her much-older husband, 65-year old film maker Harvey Weinstein, after he approached her at a party in 2004.
She was a young fashion model just starting out. He was an old, balding, overweight, movie producer worth millions. Obviously love at first sight.
The couple dated for the next three years, until they got engaged in November 2007, marrying one month later in Connecticut.
A few months before the 10-year mark of their marriage, things have turned sour. But Chapman did not file for divorce despite the news reports and string of celebrity interviews.
Harvey Weinstein has become the new face of sexual transgressions in the workplace. He was ousted from his own company after The New York Times uncovered a string of settlements paid out by Weinstein for harassment over multiple decades.
A subsequent investigative report by The New Yorker alleged incidents of sexual assault and rape.
A chorus of women have come forward to condemn the producer and share stories of his sexual misconduct, including Angelina Jolie and Gwyneth Paltrow.
Despite world-wide headlines about the sexual scandal, Weinstein' wife has steadfastly stuck by him over the next few months, and no one can figure out why.
A little digging by reporters has turned up the Weinstein prenuptial agreement, which may explain his wife's decision. His wife Chapman, a bridal and couture designer, stands to gain nearly $12 million in spousal support based on the couple's prenuptial agreement.
Under the agreement, which was signed by Weinstein and Chapman in December 2007, Chapman could be awarded $400,000 annually for every year of marriage after reaching their 10-year mark.
The amount could increase to $1 million annually after 11 years of marriage. The couple had their 10-year anniversary on Friday.
Prenup Fiction
I've written about prenuptial agreements before. Many people think prenuptial agreements are for the wealthy. That is nothing more than pulp fiction. Even if you don't enter a marriage with Weinstein riches, it might not be a bad idea to have a prenup. It certainly seemed to help Harvey Weinstein's wife, and maybe even protect him too.
Prenuptial agreements, or "prenups," are contracts entered into before marriage that outline the division of assets in case of divorce or death.
A prenup can resolve things like alimony, ownership of businesses, title of properties, and even each spouse's financial responsibilities during the marriage.
There are many other concerns that can be addressed in the prenup:
Caring for a parent
Credit card debt;
Tax liabilities;
Alimony and child support from previous relationships; and
Death or disability.
There are times when a prenup is a "must-have":
When one person enters the marriage with significantly more money or assets than the othe
When one or both future spouses have family money or inheritances
When you want to keep parts of your finances separate: such as separate bank accounts, and a joint account for paying household bills.
One of the points of a prenup, is that you get to decide on the amount of alimony, the terms of alimony or whether you will pay any alimony at all.
Kill Harvey Vol. 3
Though no divorce petition was ever filed, Chapman left Weinstein in October after the multiple allegations of sexual harassment and assault became front page news world-wide. No one knows if the alimony provision in the Weinstein prenup is the cause.
In a statement to People magazine released on October 10th, Chapman announced her plans. albeit without a timeline:
"My heart breaks for all the women who have suffered tremendous pain because of these unforgivable actions. I have chosen to leave my husband."
The Newsweek article is here.
For readers who may be interested, I will be speaking at the prestigious Marital & Family Law Review Course in Orlando on Friday, January 26, 2018. I will be addressing the issues of interstate child custody, interstate support, and international child abductions under The Hague Convention.
The Review Course
The 2018 Marital & Family Law Review Course is considered the premier advanced, continuing education opportunity for marital and family law attorneys and judicial officers in Florida.
It is a privilege to be asked to address interstate custody and international child abductions at the annual Family Law Board Certification Seminar again. The seminar is the largest, and most prestigious advanced family law course in the state. Last year's audience included 1,600+ attorneys and judges.
The review course is co-presented by the Family Law Section of The Florida Bar, and The American Academy of Matrimonial Lawyers.
Interstate Custody
I've written about interstate and international custody cases before. Generally, when two parents reside in Florida, Florida custody laws will apply. However, when one of the parents and the child move across state lines, you have an interstate custody problem.
But, which law applies? Historically, family law is a matter of state rather than federal law. So, you would look to the state law of Florida, for example, in deciding an interstate case; not Federal law.
For various reasons, people travel more. As a result, family law has to take on an interstate, and international component. Accordingly, the conflicts between states can be amplified.
To help with confusion between different laws in different American states, the Uniform Law Commission is tasked with drafting laws on various subjects that attempt to bring uniformity across American state lines.
With respect to family law, different American states had adopted different approaches to issues related to interstate custody, visitation, and time-sharing. The results were that different states had conflicting resolutions to the same problems.
To seek harmony in the area of interstate custody, the Uniform Law Commission promulgated the Uniform Child Custody Jurisdiction and Enforcement Act (the UCCJEA), which Florida and almost all U.S. states passed into law.
The UCCJEA: Initial Actions
The most fundamental aspect of interstate custody under the UCCJEA is the approach to the jurisdiction needed to start a case. In part, the UCCJEA requires a court have some jurisdiction vis-a-vis the child.
That jurisdiction is based on where the child is, and the significant connections the child has with the forum state, let's say Florida for this example.
The ultimate determining factor in a Florida case then, is what is the "home state" of the child.
There is a good reason for the 'home state' approach under the UCCJEA, which has been adopted by most state laws. That is that Florida – and the other states – all have a strong public policy interest in protecting children in their states.
You can register for the 2018 Marital & Family Law Review Course here.
Houses and Spouses
Once you've decided to divorce, new decisions need to be made: who is going to move out of the house, and are you going to sell the house – or not. Florida's property division statute requires distributing the marital property, but is not exactly a how-to guide. This post looks at some options.
Deciding Whether to Sell
To make the decision more difficulty, there's really no right or wrong answer to whether you should sell or keep a house. Your decision will depend on various factors.
Some of the factors influencing the decision to sell are things like your personality, is the house titled in both of your names, are there children, if so, where are the best schools, and how far away are the two parents' homes.
I've written about houses and property divisions before. In Florida, every divorce proceeding the court has to set apart nonmarital property, and distribute the marital property.
Florida judges always begin with the premise that the property distribution should be equal, unless there is a reason for an unequal distribution based on several factors.
One of the factors the court has to consider is the desirability of keeping the home for the kids or a spouse, if it's equitable to do so, if it's in the best interest of the child, and financially feasible.
Delaying the Sale
Some spouses decide to sell, but schedule the sale months or years into the future. This happens when a couple has kids, and both parents agree that the house shouldn't be sold to preserve the school district or allow for easier timesharing.
There are other problems in a keeping a house in which your name is still on title. In the even that your ex-spouse does not pay the mortgage timely, your own credit will suffer the late notices.
And, if someone invited to your old home is hurt, that person will sue the record title owners for their damages. If your name is on title as an owner, that's you! Making sure you have decent insurance on the house may be in order.
If you can't wait for years, and need to sell immediately, there's a silver lining.
A fresh start and new beginning after a complete division of all of the assets tying you together with your Ex is the best way to go forward for some people.
However, there's a cost of sale. When you sell your house, you pay a commission, and other expenses, like taxes, title expenses, repairs which can average about 10 percent of the sale price.
This is one of those modern ideas that sound so crazy, it just might work. With nesting, the kids live in the house, and the parents take turns living there. The parent not in the home often has an apartment that the divorced couple rent and share the cost of.
The U.S. News and World Report article is here.
Getting a Religious Divorce
Just in time for the holidays is the problem of religious divorce. Many women are stuck in their former marriages because their secular divorce was not enough to allow them to remarry in their religion. This post looks at the problems and solutions for getting a religious divorce.
The Religious Problem
I've written about the issue of religious divorce many times. The religious nature of divorces for many couples, particularly for Muslim and Jewish women, complicates settlement.
That's because religious courts have no enforcement authority in the United States, and the First Amendment of the Constitution prevents secular courts from intervening in purely religious disputes.
Also, religious authorities are very critical about the secular enforcement of divorce as it can contravene religious law. Among religious people, there's also a reluctance on using secular courts against their coreligionists, which discourages people from getting help in state court.
Islamic Divorce
The Economist recently reported on Shirin Musa, and her bitter religious divorce experience which ultimately inspired her to help women caught between legal and cultural worlds.
A resident in the Netherlands, Shirin was unhappily married to a man from her native Pakistan. In 2009 a Dutch judge divorced them, but her husband would not grant an Islamic divorce.
Although she lived in secular Europe, her husband's refusal to grant a religious divorce mattered. If she remarried without a religious divorce, she could be considered an adulteress under Islamic law. She also risked religious punishment if she ever tried to return to Pakistan.
So, Shirin sued her former spouse through the Dutch secular courts. In 2010 she received a landmark judgment: her ex-husband would be fined $295 a day, up to a maximum of $11,795 as long as he refused to cooperate.
The sanction had the desired effect on her ex-husband She then persuaded the Dutch parliament to make holding women in such "marital captivity" a criminal offence, in theory punishable by jail.
Jewish Divorce
Jewish women share a similar problem to Muslim women. Under the strict interpretations of Jewish law, only the husband can grant a divorce document, called a "get." Without a get, the woman is still religiously married, regardless of how long it's been since the civil divorce.
Without a get, a Jewish woman can't remarry and have more children, lest she be declared an adulterer and her children from the second marriage shunned by the community.
Women in this situation can be trapped for years as their childbearing years fade away. In Hebrew, many call them agunot, or "chained women."
First, you may want to secure a religious divorce before even filing a secular divorce. This prevents the husband from using the religious divorce as a bargaining chip.
Securing a religious divorce before filing a civil divorce also prevents another common problem: imams and rabbis stepping in to negotiate large cash payments in exchange for a religious divorce.
Another civil legal remedy is a prenuptial agreement. Under a prenuptial agreement, the spouses could agree to arbitrate the marital dispute, and the husband agrees to pay the wife a set amount per day until he grants a religious divorce.
The Economist article is available here.
When a spouse is from a foreign country, divorce can be complicated — especially when the couple works in one county, assets are in another country, a pension is in another, and the kids are in a fourth country. What are the issues in an international divorce?
Divorce Around the World
As the Economist reports, globalization has resulted in multi-national marriages, which is common among wealthy, highly mobile families. When they stop being high-earning families, life gets tricky, and international divorce can get even trickier.
Families which got used to living on huge bonuses are unable to continue with the commitments they have taken on — housing and school tuition, and the cost of living the high life.
Where to Sue?
So, who sues whom and where in an international divorce? The answer is more difficult than people think. A British divorce might give more money because British courts can disregard prenuptial agreements, and the cost of living is high in London.
In France, things could be very different. Adultery can be penalized, but in the typical French divorce, any alimony could be less and for eight years at most; and prenuptial agreements are binding.
However, in Florida, the outcome could be different still. Under Florida law, alimony is constantly under threat of a major revision by the legislature, and child support is governed by a formula. Courts may award attorneys' fees, and prenuptial agreements are generally enforceable.
International Child Custody
Rules about children can differ too. I've written on international divorces, especially as they relate to child custody issues and The Hague Convention on abduction.
The Hague Abduction Convention is a multilateral treaty developed by The Hague Conference on Private International Law to provide for the prompt return of a child internationally abducted by a parent from one-member country to another.
There are three essential elements to every Hague Convention case:
The child must be under the age of 16 years of age;
The wrongful removal must be a violation of the left behind parent's "rights of custody;"
The left behind parent's rights of custody "were actually being exercised or would have been exercised but for the removal."
So, if a child under the age of sixteen has been wrongfully removed, the child must be promptly returned to the child's country of habitual residence, unless certain exceptions apply.
The catch, of course, is that a child must be taken from a signatory country to another signatory country, and that is where understanding The Hague Convention comes in.
Even signatory countries may be bad at abiding by the convention, especially when it means enforcing the return of children to a parent alleged to have been abusive.
The annual State Department report to Congress on observance of The Hague Convention lists Honduras as "non-compliant" and nine other countries (Brazil, Bulgaria, Chile, Ecuador, Germany, Greece, Mexico, Poland and Venezuela) as showing "patterns of non-compliance".
Hiding Assets
Hiding assets is a problem in every divorce. The problem of discovery of hidden wealth is even bigger in an international divorce because multiple countries, and multiple rules on discovery, can be involved.
The problems in an international divorce are more complicated because hiding assets from a spouse is much easier in some countries than in others.
Florida, at one extreme, requires complete disclosure of assets and liabilities. In fact, in Florida certain financial disclosure is mandatory. At the other extreme, are countries which require very little disclosure from people going through divorce.
Court Shopping
Choosing possible countries to file your divorce in can be construed as "forum shopping".
The European Union introduced a reform called Brussels II, which prevents "forum shopping", with a rule that the first court to be approached decides the divorce.
But the stakes are high: ending up in the wrong legal system, or with the wrong approach, may mean not just poverty but misery.
The Economist article is here.
A Royal Prenup
Posted by Ron Kauffman on December 6, 2017 with 0 Comment
When Prince Harry asked Meghan Markle to marry, many dreamed of her fairytale wedding. Grizzled divorce attorneys thought of something else: what kind of royal prenup would his Highness make her sign. Surprisingly, some think none.
That's right. Some people in Great Britain are speculating that Ms. Markle and Prince Harry may not sign a pre-nuptial agreement before their royal wedding next Spring. Why not?
According to the Britain's Daily Express, for instance, the 33-year-old prince would not take the steps to protect his £30 million fortune after his engagement to the US actress was announced by making her sign a royal prenup.
History of Royal Prenups
Many would have said anyone in their position should be advised to have royal prenup. And the reason being is so they can resolve financial matters between themselves without it being in the spotlight.
There is precedent among the Royals too. For instance, when Crown Princess Victoria of Sweden married her former fitness instructor, agreements were drawn up to define how the wealth would be divided should they separate.
Lawyers acting for the princess ensured that all property, inheritance and gifts belonging to the royal household remained in her name alone. A royal prenup may be required to do that.
After Prince William's engagement to Kate Middleton was announced, many urged the couple to sign a prenuptial agreement, saying it was important to be practical and ensure that every future eventuality was considered.
Florida Prenuptial Agreements
I've written on the topic of prenuptial agreements before. A prenuptial agreement is called many things: sometimes "antenuptial agreement", other times "premarital agreement", or most often "prenups".
A prenup is a legal contract, much like any other legal contract, and it is entered into before a marriage by the couple intending to marry. So, why have one?
The contents of prenuptial agreements can vary widely. However, prenups commonly include clauses that spell out how to divide property accumulated before and after the marriage, and support or alimony in the event of divorce or death.
There are times when a prenup is a "must-have". For example, when one person enters the marriage with significantly more money or assets than the other, or you want to keep parts of your finances separate.
Arguments about money are a known predictor of divorce. In order to avoid that, it is better to discuss with each other the terms of a prenuptial agreement when times are good.
Prenups can also have extreme clauses. For example, prenups can include provisions to cover you in the event your spouse engages in excessive drug use, has extra-marital affairs, becomes an excessive spender, or begins a gambling habit.
Future Royal Prenup?
With the British Supreme Court having recognized the validity of prenups, a debate has begun in British legal circles as to whether it would have been prudent for the royal couple to have taken advantage by having a royal prenup, just in case.
Prenuptial agreements have been popular across the pond in the U.S. for many years, but were never part of British law. That is changing in the U.K. due to a relatively new case.
After a 2010 ground-breaking case in Britain, prenuptial agreements are now afforded heavy weight within the UK Family Court, unless considered to be unfair.
The British prenup case involved a German heiress and French investment banker. To help protect her £106 million fortune, the couple signed a prenup, which stated neither party would benefit financially if the marriage ended.
When the Judges found in favor of the Wife's prenup, the case marked the first time that prenuptial agreements were recognized as enforceable under British divorce law.
Prenuptial agreements are not simply about money either. Kings, Queens, Princes and Princesses can also use prenups to ensure confidentiality is maintained after any unseemly split.
The U.K. Express article is here.
Divorce Benefits?
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.
As U.S. News and World Report shows, 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 benefits of a divorce are not enough to make you run out and get one, but there are a few financial benefits that could make a very bad situation seem a little better if you look hard enough.
Financial Control
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.
On the other side of divorce is some freedom.
Some people have also found that after a divorce from a spendthrift, you can accumulate big savings, thanks to budgeting on your priorities.
Early Access to Retirement Money
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.
Potentially Better Investment returns
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.
More College Financial Aid
Divorce can be difficult for children, but there is one place where they may have a benefit: college financial aid.
The Free Application for Federal Student Aid only requires financial information from the custodial parent rather than both parents.
If you are divorced the FAFSA will consider only the custodial parent's income.
For financial aid purposes, the custodial parent is the one your student lived with the most in the last 12 months, or the parent who provided the student with the most financial support.
The custodial parent for FAFSA purposes may be different from the parent who has legal custody.
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.
Getting a divorce isn't something to rush into, but if you find yourself in the midst of a crumbling marriage, don't despair. You may still come out ahead thanks to these little-known financial benefits of divorce.
House Buying Tips After Divorce
Buying a house is a big deal at any point in your life. However, if you're looking to buy a house in mid-life, after a divorce, the decision is even bigger. That's because you have to consider your wealth, retirement and fluctuations in how much you earn. Here are some things to consider before shopping.
Check your debt
After the housing crash of 2008, buying and lending requirements for real estate have changed a lot.
There is increased scrutiny of mortgage applications. Before you even start to look for a house, look at your financial situation. How much money is available to you after spousal support and child support are paid, and after the property division?
Your 'debt-to-income ratio' is the amount of debt you have, as compared to your overall income. That debt-to-income ratio number is as important as your credit score.
Any lender is going to look carefully at how much debt you are carrying after the divorce. So, if you want to buy a house after the divorce, and debt is a big concern, plan to reduce your debt before you apply.
Florida Property Division
I've written about property issues before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.
Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties.
In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.
Unequal Distributions
However, if there is a justification for an unequal distribution, the court must base the unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.
Additionally, courts can consider the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
However, courts generally can't base unequal distribution on one spouse's disproportionate financial contributions to the marriage unless there is a showing of some "extraordinary services over and above the normal marital duties."
More House Buying Tips
Buy a house you can afford.
Buying a house within your budget is a great idea, and this is especially true when buying a house after your divorce, and during your middle years. That's because your income can fluctuate due to changes in employment and the payment and receipt of support. So, it is important to have a realistic view of just how much home you can afford.
Looking for a home you can afford will help you avoid late payments.
There is also the chance of foreclosure because you did not plan to have the money to make the mortgage payment without dipping into your retirement, or savings.
Make a Big Down payment.
If after the divorce you have sufficient funds, consider using them to make a large down payment amount. Typically, twenty percent down is customary.
Making a larger down payment will lower your monthly mortgage payment, and could shorten the length of the mortgage.
Buying a house after you divorce in your middle years requires a close look at what your debt and expenses are. You want that debt and home expense to be a low part of your Florida living requirements.
Ronald H. Kauffman has practiced law in Florida since 1993, and was admitted to the State Bar of California in 1992.
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