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Residents of the Miami-Dade area, even Florida itself, have heard a lot about Dwayne Wade over the past year. He has had a storied history both on the court and in court. As one of the Miami Heat’s most prized players, Dwayne Wade has lived the typical athlete’s life of marriage and divorce that involve high stakes finances mixed with public attention. Wade’s stands out for its marathon duration, however.The beginnings of this divorce epic began quite simply. In 2002, Wade married his high school girlfriend. The marriage lasted five years until he filed for divorce. The divorce was finally granted three years later in 2010 after a long, drawn-out divorce court battle. Wade retained full custody of their two sons after the court, in its 102 page ruling, described his wife as embarking on a relentless crusade to alienate Wade’s children away from him. Now in 2013, six years after divorce was filed for, the one last thing left unresolved was the division of Wade’s fortune. Until now.

The claims made by Siohvaughn Funches, Wade’s former wife, have been a tabloidist’s dream. On July 19, despite claims by Wade’s attorney that Wade had been paying Funches $25,000 a month in spousal support, Funches took to the streets of Chicago, portraying a destitute woman with a sign reading “NBA Miami Heat star, mother of his children on the streets”. Wade additionally had provided her with four cars, paid for her mortgage, maintenance, security and taxes. During the legal process, Funches employed 16 different attorneys to battle Wade, all fees for which Wade paid.

The settlement agreement entitles Funches to $5 million. There are strings attached to this agreement, however. The agreement includes a “non-disparage” provision essentially meant to discourage and punish disparaging remarks made by one party against the other. Reportedly, this provision also protects against comments made by Funches against Wade’s new girlfriend and Wade’s family.

Such non-disparage provisions are not uncommon in celebrity splits, but are a good idea in most separations where children are involved. Negative comments made with malice, especially made unwittingly during the emotional turmoil of a separation or divorce, often have a major impact on the development of the children and their desired relationship with their loving parents. Non-disparage agreements must be carefully constructed, and it is advisable to speak with a Florida divorce attorney to achieve the best results.

The book is now closed on the division of finances for Wade and Funches. But no one should assume the story is over, as Funches is still exploring methods to acquire visitation rights for their children. Wade’s attorney says that due to her history and seeming mental instability, visitation rights may be difficult to acquire, however.
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Commonly known as DOMA, the Defense of Marriage Act was partly overturned by the Supreme Court on June 26, 2013.DOMA was originally enacted in 1996 under President Clinton. One component of the statute permits states to refuse to recognize same-sex marriages performed under the laws of other states. President Clinton, later in 2009, admitted that he supported same-sex marriage but ultimately did not feel it was a federal issue. The other part of the statute defines marriage, for federal purposes, as between one man and one woman, effectively precluding married same-sex couples from receiving federal benefits. It was this federal definition (“Section 3”) that the Supreme Court struck down.

In 2011, the Obama administration proclaimed that although it is their belief that the Section 3 is unconstitutional, they would continue to enforce the bill but refused to defend it in court. Prior to the historic Supreme Court ruling, Section 3 was struck down as unconstitutional in the Court of Appeals for eight federal circuits.

The case that made it to the Supreme Court which ultimately led to its overturning is United States v. Windsor. The case followed Edith Windsor who had married her spouse Thea Spyer in Canada in 2007. The couple moved to New York and New York state recognized their same-sex marriage. When Thea died, she left her entire estate to Spyer. Historically, when a spouse dies in the US, the spouse, and only the spouse, will be exempt from federal estate taxes; if the estate is left to anyone but a spouse then the limit is $3.2 million dollars before estate taxes apply. In Edith’s case, the IRS did not recognize Edith as a legitimate spouse under DOMA leaving Edith with an estate tax bill totaling over $300k.

Windsor proceeded to sue for a refund of the money she did eventually pay. The grounds were that such a tax under DOMA’s non-recognition was a violation of her Fifth Amendment right of equal protection. The two federal courts ruled in favor of Edith and the case made it to the Supreme Court; oral arguments were heard in March 2013. The court found Section 3 unconstitutional as “a deprivation of the equal liberty of persons that is protected by the Fifth Amendment”.

Governor Scott and Senator Marco Rubio disagreed with the SCOTUS decision but identified that it won’t affect Florida ban. The Florida state ban on gay marriage was introduced in 2008. The Florida ban would need to be repealed by either an act of legislature, which is slow and the bill was introduced based voted on by the citizens of Florida (62%), or by a petition requiring nearly 700,000 signatures. Equality Florida, a gay-rights group, announced it will campaign in 2014 for a bill to challenge the Florida ban.

Although the focus is on same-sex marriage, an interesting effect of this case is same-sex divorce. Historically, upon a divorce, ex-spouses could transfer unlimited money between them in settling property distribution. Same-sex couples now can settle divorces without imposing large tax fees. Additionally, federal gift taxes would not apply to same-sex spouses.
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How can a couple that has never had a marriage ceremony or a marriage certificate be married? This legal theory is known as common law marriage and it treats a man and woman who act like a husband and wife as a husband and wife upon splitting up.Florida recognized common law marriages for many years until 1968 when the state ended it with Florida statute 741.211.

This does not mean that no common law marriages exist in Florida. Florida will, in fact, recognize common law marriages in two main capacities: Couples having entered a common law marriage before 1968 and couples seen as married under common law from a state that permits common law marriage. As stated succinctly in the opinion of Johnson v. Lincoln Square Properties, Inc., “Florida has always determined the validity of marriage in accordance with the laws of the place where the marriage occurred.” Such a following also requires Florida to look at how those states treat property acquired during the marriage.

The states which recognize common law marriages are: Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire (select cases), South Carolina, Rhode Island, Texas, Utah, and the District of Columbia.

Courts in these states will look at the following elements when deciding to recognize the couple as married under common law:

– (1)The couple has cohabited in a common-law state
– (2) with the intention to be married
– (3) for a period of time (which will be viewed subjectively on a case by case basis)
– (4) and has held themselves out as married (joint tax returns, shared surnames, etc)

If all these elements are not present, the couple cannot be deemed to be married under common law. As one might notice, there is much subjectivity with each element, and it is important for individuals to contact an experienced family law attorney to assess their potential situation and assist in the process.

If a common law marriage is found to be valid, the couple will be treated as no different than a traditionally married couple in these states. They will need to go through all the same formal divorce proceedings to dissolve their marriage.
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The Indiana Court of Appeals has ruled in favor of a Canadian couple in their suit against an Indiana-based adoption agency after the couple learned of their potential child’s drug addiction.The baby, only days old, began showing signs of drug addiction while still in the hospital. The addiction was inherited from the birth- mother who had abused methadone while pregnant. The couple learned of the child’s condition from a social worker, days after the agency knew.

A Bond of Life Adoptions, the adoption agency operating out of Indiana, originally succeeded in having the couple’s complaint dismissed from trial court. The agency relied on a release clause found in their contract signed by all potential adoptive parents which limits liability against the agency for claims derived from unknown medical conditions of the child or the child’s birth family.

The couple’s complaint, based heavily on a breach of contract theory, cited the failure of the agency to disclose important medical information to the couple which would have affected their decision to adopt. Since the discovery of the condition, the couple withdrew from the adoption process, completely distraught, and has expressed that they will not likely explore further adoption opportunities.

In the court’s opinion overturning the trial court’s dismissal, the court listed an unfortunately long history of adoption agencies hiding behind such releases citing that withholding information is not protected under “unknown medical conditions”.

Adoption providers, such as agencies or attorneys, are often barred from disclosing identifying information regarding the birth parents. However, this does not include medical or psychiatric information which would likely be important for the adoptive parents to know.

Nearly half of the states permit some sort of civil liability against adoption providers for a wrongful omission or commission. One of those states is Florida. Issues like this are another major reason that smart adoptive parents will seek out a knowledgeable experienced family law attorney.

Wrongful adoption suits, recognized in a number of states, vary in the basis of their elements. Most wrongful adoption suits do in some way allege that, through intent or negligence, the adoption provider did not act in good faith to inform the parents of potentially important information. Wrongful adoption claimants typically involve elements of misrepresentation, fraud, negligence, or contractual breach of good faith. Courts look at whether the information not disclosed is “material”. Information is “material” if it would have impacted the adoptive parents’ decision to adopt.

Many couples looking into adoption often explore international adoptions to avoid some of these problems, but US News recently reported on the failures of international adoption providers to diagnose, identify, or explore medical or psychological issues in the child and the child’s family. Plus, suits become incredibly more complicated if not impossible when brought against an international adoption agency.
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A new research study released by UCLA has revealed that lower income marriages are more harshly affected by the common divorce causes of economics.Previous studies have shown typically that lower income marriages suffer higher rates of divorce. This study, carried out by Dr. Karney and Dr. Trail of the university, found that lower income couples hold more traditional view on marriage than higher income counterparts.

The study examined over 4,000 Floridians and a cross examination of 1,500+ individuals of other states with the average age of respondents in the mid-40’s. The study viewed how these lower income respondents compared to higher income individuals in regard to their standards, values, and their marriage experience. The lower income marriages suffered more as a result of substance use and money problems but their attitudes indicated a higher degree of disapproval for divorce.

Commenting on the social pressures, Dr. Trail noted that people with lower incomes “have similar standards for choosing a marriage partner and experience similar problems with managing their relationships”. The study’s conclusion indicated that public policy intended to educate low income couples on pitfalls of divorce would be better served to address the root problems facing the individuals that actually lead to the divorce in the first place.

Lessons to Learn
As a result of the study findings, there is no disparity in the romantic levels amongst different economic demographics but rather how the individuals are impacted by life’s curve balls.

With money being the leading cause of divorce, there are many things couples of any economic range can do to lessen their chances of facing divorce.

First, understand that any couple has an income disparity between the partners. Too much of an income disparity can lead to guilt, resentment, imbalance of power, and money disputes.

Secondly, ensure that both parties understand both person’s views of money, savings, and spending. Communication is a couple’s best defense to future misunderstandings.

Thirdly, a budget between couples will keep both individuals informed of expectations.

Fourthly, create a balance of contributions. This prevents the bigger earner from feelings of resentment from the lower earner. This also clarifies expectations, which is one of the most important point parts of healthy communication between couples.

Lastly, plan ahead. Any income range can benefit from a prenuptial agreement which protects the assets going in and removes any incentive to divorce. The agreement will establish what property belongs to whom, and what property will be treated as marital property to be split in the event of a divorce.

One other concern low income couples and couples with an income disparity must consider is the possibility of child support. Income disparity and total income will both be taken into account in child support proceedings. Child support becomes especially important for a non-working parent who suddenly has full custody.
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Oklahoma tycoon Harold Hamm, one of the top 100 richest men in the world, is making as big of an impact on the world of divorce as he has on the world of oil. The founder and CEO of Continental Resources is splitting from his wife of 25 years, Sue Ann Hamm and the first estimates place the costs to Harold at the $5-billion mark.The couple has been estranged since Sue Ann claims she uncovered an affair Harold had in 2010. Divorce papers were filed in May 2012. There has been no clear evidence found of a prenuptial agreement between the couple. Provided no agreement is produced, Sue Ann would be entitled to “marital property” including 50% of Harold’s 68% of controlling shares for Continental Resources.

The title for world’s most expensive divorce is currently held by News Corp. founder Rupert Murdoch at the cost of 1.7 billion.

Aside from a missing prenuptial, the biggest contributing factor will be Sue Ann’s contributions to Harold’s success. She has acted as a lawyer, economist, and executive for Continental Resources and is even responsible for creating its oil and gas marketing groups. Such contribution is known as joint business ventures – and is a major point courts look to when dividing property. In absence of such direct corporate assistance, many could argue that they contributed to the household. Plus since much of the growth of Continental shares have occurred after the couple tied the knot, courts will view this as “shared growth”.

Tax Implications

According to a recent overview of the Hamm’s tax situation, Forbes described the couple’s tax situation. Internal Revenue Code section 1041 governs transfers between spouses and in the case of divorce. It supersedes previous case law, which taxed property acquired through divorce as taxable income. Because Harold has held his shares since he founded the company in the late 60s, his share of taxes each year is minimal. However, if now Sue Ann, after receiving 5 billion dollars worth of stock in her ex-husband’s company, wants to sell the stocks for cash she will face massive tax burden
Lessons to Learn in your Florida Divorce:

Get a pre-nup. Harold is a smart business man and can calculate a risk. But this is also Harold’s second marriage. Learn from him that even though you may think everything is going great in your relationship, you must remain prepared.

Consider your contribution. Contribute to the financial well-being of your household. Whether directly through business or at home, both will matter in court.
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This blog has previously discussed changes to Florida’s alimony laws (Senate Bill 718). Governor Scott vetoed this bill which included, as well, updates to Florida’s child custody laws.Specifically, child custody schedules were updated. Previously, there was never a codified mandate or guide that the custody break-down be 50/50 with both parents; rather judges just deemed what is right by a scattered amount of standards. Senate Bill 718 codifies a presumption that there be a 50/50 time sharing agreement between parents as, according to the legislature, it “is in the best interest of the child”. The bill does provide for basic and necessary exceptions or considerations to this presumption however.

Some of these considerations include: physical, mental and emotional safety of the child; distance makes the sharing too burdensome; a court order has prevented contact with one parent; a parent is incarcerated; domestic violence has occurred; clear evidence that extenuating circumstances require a modification of the schedule; or a parent does not wish to retain his/her level of custody.

Govenor Scott has admitted he does approve of “several forward looking elements of this bill” but he recognizes the importance alimony plays to many households. Currently, only four states have ended permanent alimony. Gov. Scott further criticized the Florida bill for its retroactive application which damaged ideas of fairness and “could result in unfair, unanticipated results.”

No Custody for Rapists

This April, the Florida legislature approved another more specific child custody bill which has been long overdue. The bill, SB 964, would prohibit a convicted rapist from acquiring child custody rights over the child conceived from the attack. The Florida House unanimously passed SB 964 with a vote of 115-0. The bill will be going to Governor Rick Scott and will take effect upon his expected signature.

A staff report in support of the bill reported that only 19 states terminate parental rights of convicted rapist for any child conceived through their crime. Now, with Florida having passed the bill, a startling 30 states (as well as the District of Columbia) remain which have no law on the books that bars a rapist from seeking visitation or custody rights. These states are as follows: Arizona, Arkansas, Colorado, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Rhode Island, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia, and Wyoming.

Previously, rapists could seek custody of the child born from their attack. In some cases, this can even be used as a backdoor bargaining chip to discourage the victim from reporting the incident, testifying, or participating in sentencing hearings.
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Spousal Refusal
In the context of healthcare and elder law, “spousal refusal” occurs when a healthy spouse (in this case referred to as the “community spouse”) refuses to pay for the healthcare expenses incurred by their unwell spouse. Generally, married spouses are obliged to financially contribute to the healthcare costs of their spouses, including nursing home costs.A spouse facing spousal refusal may fill out a form with Medicaid stating their spouse is refusing to contribute. Medicaid will then seek contribution or reimbursement from the “community spouse.”

In response to the often tight finances of the elderly, the federal government passed the Spousal Refusal law, which protects the community spouse from extraordinarily burdensome expenses, which may severely endanger the community spouse’s finances. In such cases, this law allows the ill spouse Medicaid access, and permits Medicaid to later seek reimbursement from the community spouse’s estate after his or her death. This methodology has generally been quite effective for couples facing significant healthcare costs in that it protects the couple’s assets, provides for the ill spouse, and gives reimbursement to Medicaid.

Dangerous Legislation
Currently pending in Florida’s House and Senate are two bills (HB 1323 and SB 1748) which would force the ill spouse to “cooperate” with Medicaid in seeking reimbursement from the refusing spouse. If the ill spouse is incapable of cooperating due to the nature of their illness, the ill spouse’s agent would be required to cooperate against the community spouse. Cooperation, although not yet defined, may include filing documents or testifying alongside Medicaid against the community spouse.

Certain amendments are being proposed by elder advocate associations such as the AARP and the Florida Department of Children and Families, which are attempting to move the focus off of mandated cooperation by striking sections and shifting the focus to targeting higher income individuals who are abusing the concept of Spousal Refusal. The purpose of the legislation should not be to make certain elders indigent, but rather to ensure that ineligible individuals cannot hide assets.

Without such amendments, the proposed legislation could have serious implications for elderly married couples. People who have been married for decades could begin considering divorce to separate property so that the ill spouse can continue to receive their much needed Medicaid, and the community spouse can pay family bills. Further, oftentimes when an elderly individual becomes too ill to oversee their affairs they appoint a child. If agents of ill individuals are legally forced to cooperate in seeking contribution from the community spouse, you will see houses divided and individuals compelled to speak against their parent or grandparent’s financial interest.
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Florida Family Court Judge and former prosecutor Susan Aramony, of the 17th Judicial Circuit Court (Broward Circuit), passed away in her Fort Lauderdale home on Monday April 8, 2013.

Ms. Aramony graduated from Emory University School of Law in 1981 and went on to lead a successful career as a prosecutor. After graduation, Ms. Aramony served as a Broward County Assistant State Attorney for the Juvenile Division of Broward County. Prior to her appointment to the bench, Ms. Aramony had ascended to head of the Juvenile Division. During this time, Ms. Aramony operated as a member of the Gang Activity Prevention Advisory Board and as the chairwoman of the Juvenile Justice Board of Broward County.

After having served over 12 years in the Juvenile Division, Governor Jeb Bush appointed her as the Unified Family Court Judge of the 17th Circuit, Broward Circuit in December 1999, taking office the following January. Then-governor Jeb Bush explained his motivation in selecting Ms. Aramony, stating that “Susan’s hands-on experience as an assistant state attorney within Florida’s legal system has given her the knowledge and skills needed to do a tremendous job”. According to Bush, her experience in the juvenile system gave her the perspective to see the harmful effects crime has on the family unit and how to best be fair to the parties. In 2008, Ms. Aramony was re-elected as County Family Court Judge for an additional six year term.

Ms. Aramony’s reputation was renowned throughout the Florida family court system, and her thirteen year legacy on the bench has garnered admiration for her character and dedication. Chief Administrative Judge Peter Weinstein described Ms. Aramony as “one of the most caring, kind and concerned human beings I’ve ever known”. These views were shared by Broward County’s top defense attorneys and prosecutor, with State Attorney Mike Satz describing her as “a very good person who touched the lives of many, many people” and Public Defender Howard Finkelstein recounting that Ms. Aramony was “always fair, as a judge and as a prosecutor”.

Aramony’s family has expressed their wishes that cause of death not be disclosed but mentioned that she was home at rest with her husband and sons when she passed away. However, according to the Daily Business Review Broward affiliate, Ms. Aramony had suffered a long battle with cancer.
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Divorces that occur in Florida are not always marriages that occured in Florida. Many married couples in the state of Florida tied the knot either in another state or maybe even a foreign country. When a couple divorces many US states consider the law of the jurisdiction where the nuptials were made.But in some cases there are exceptions.

The Florida Senate Judiciary Committee is reviewing a bill that would ban courts and other tribunals from considering the religious or foreign law of the originating jurisdiction of the marriage during a divorce proceeding. In place, Florida would be applied for such matters of divorce, alimony, division of property, child custody and support.

The current bill, introduced by Republican state Senator Alan Hays and Representative Larry Metz, is viewed by some as a direct affront to civil rights and individuals’ freedom of religion. Opponents see the bill as specifically rallying anti-Islamic attitudes to ban Sharia law. Sharia law is the Islamic moral code and is the law in numerous Islamic countries covering most criminal and civil actions including marriage and divorce. Sharia law applies in full as the de facto law of states including Saudi Arabia and Iran and influences the law of other major Muslim countries. The United Kingdom even allows for Sharia tribunals to mediate family law issues for consenting individuals and maybe soon will allow Sharia divorce in court.

Some basics of Sharia divorce:
Under Sharia law, a divorce is initiated once one partner says they want a divorce three times in a row. Different regions dictate whether this is a symbolic initiation or an immediate confirmation. Then the couple goes into a period known as talaq in which the couple is separated for three months. The man may insist on his wife’s return or if not the divorce is confirmed. One problematic factor of Sharia law is that a man may not be forced to pay alimony after the talaq period when the divorce has been finalized.

Similar bills in Florida have been proposed in the past, by the same two legislators of the current bill. In no instance has either proponent of the bill been able to cite a family law case where Sharia Law has been relied upon.

Last year, the 10th Federal Circuit Court of Appeals court invalidated an Oklahoma law that would have prohibited courts from considering Shariah law specifically. This specificity within the bill was likely its downfall, as it targeted a single group on the basis of a protected characteristic (religion). Proponent of the Oklahoma bill used as support a New Jersey case in which a judge refused to grant a restraining order for the wife because he was relying on the expectations of spouses as set out in Sharia law.
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