Year: 2015

New Article: The Daubert Crucible

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, November 20, 2015.

My new article on the amendments to our expert witness rules is available at the Family Law Section website. The Daubert Crucible not only discusses the changes to the expert witness statutes, but witchcraft. Below is a summary.

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In amending the Florida Evidence Code, the Legislature has bound Florida courts to the Daubert standard for the admission of expert testimony and opinions.

I’ve written on the changes to the Evidence Code before. Although the amendment became effective in 2013, the changes to the law are still so new, there are less than a handful of appellate decisions which have reviewed the amendments.

Are the Changes Even Constitutional?

Still up in the air are lingering Constitutional doubts. While the Legislature can enact substantive law, only the Supreme Court can regulate courtroom practice and procedure.

The trick is that the Evidence Code contains both substantive and procedural provisions. If the Legislative branch encroached on the judicial branch, the changes are subject to a strict separation of powers doctrine review.

However, the Florida Supreme Court denied certiorari to a case which specifically asked the high court to review the Constitutionality of the amendments.

There is also fierce debate within the Florida Bar. The Board of Governors is required to vote on all procedural rule changes before those changes are submitted to the Florida Supreme Court.

At the Board’s most recent meeting, the Committee voted 16-14 in support of rejecting the new Daubert standard. Then, at the Family Law Section special meeting last week, my own motion to adopt the Daubert standard was voted down.

A webpage has been set up at www.floridabar.org/daubertfrye with background information on the matter and a link to a comment form for member input.

The article is available on the Florida Bar Family Law Section website here.

It also makes a great holiday read.

Denying Visitation: Is Jailing Kids the Answer?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Sunday, November 15, 2015.

Three children, estranged from their father, refused a court order to timeshare with him. The judge sent them to juvenile detention for the summer. Did it work?

As the Detroit Free Press reports, the judge was abrupt:

You both are going to live in Children’s Village. Your mother is not allowed to visit, no one on your mom’s side is allowed to visit. Only your father and therapist . . .

When you are ready to have lunch with your dad, to have dinner with your dad, to be normal human beings, I will review this when your dad tells me you are ready. Otherwise, you are living in Children’s Village til you graduate from high school.

That’s the order of the court.

Good bye.

The children had refused to speak to their father, they did not show up for planned visitations, would bow their heads and refuse to look at him during supervised visits. Their mother failed to bring them for visitation.

Judge Gorcyca, who blamed the mother for poisoning the children’s attitude toward their father, ordered the children be sent to juvenile detention for defying her court orders – while in court – that they go to lunch with their father.

I’ve written before about parental alienation. Parental alienation involves one parent “programming” a child to denigrate the other parent to undermine and interfere with the child’s relationship with the targeted parent.

In the Detroit case, the children – ranging in age from 9 to 15 – were held in contempt of court for disobeying the judge’s order to “have a healthy relationship with your father.”

These are not unsophisticated parents. The father is an internationally prominent traffic safety researcher and GM engineer. The mother is a pediatric eye doctor, glaucoma researcher, and an assistant professor of ophthalmology at the University of Michigan.

In sentencing the children to jail for refusing to follow her orders to have a relationship with their father, the court took severe action.

But did it work?

According to Detroit area newspapers, the three children went to juvenile detention, and a court-ordered, five day intensive therapy treatment designed to treat parental alienation. They are now residing with their father, his second wife, and their young half-brother.

The Father is asking the judge to prohibit the children’s mother from contacting them, or appearing at their schools, for the next 90 days, part of the protocol in reuniting children with an estranged parent.

The Detroit Free Press article is here.

Mortgages & Divorce

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Tuesday, November 10, 2015.

It’s real estate tax time, and deciding how to equitably distribute the marital home in a divorce can be a headache – especially when both spouses are on the mortgage.

As the New York Times recently reported, when there is equity in the home, each spouse typically wants to take a share as part of the settlement agreement.

But if one person wants to remain in the home, rather than sell it and split any profit, then that spouse will likely have to qualify for a mortgage on his or her own.

There are a lot of issues involved in the marital home. I’ve written before about property divisions when the housing market was down. Now that the housing market is in recovery, different issues arise.

Spouses who choose to stay in the home may have to refinance the mortgage to cash out enough equity to pay off their soon-to-be Ex. But even a spouse who has the financial resources for a buyout will still have to get a mortgage in his or her name.

The spouse walking away from the house, not only wants their share of the equity in the property, but must get their name off the mortgage so their credit score won’t reflect the debt, and so they won’t be liable for any non-payment.

Once your name is on the mortgage, you are jointly and severally liable for the entire debt amount. The mortgage can tie up your credit, making it difficult to qualify for another mortgage, or even a car loan.

Worse still, if there’s a default or late payment of the mortgage – you are not only going to be sued – your credit report score could drop considerably, even though you are not at fault.

In order to determine who gets to keep the house, you must consider who qualifies for a new mortgage on their own. If you do, could you afford all the other expenses associated with living in that home: taxes, insurance, utilities, lawn, pool, maintenance etc.

As the New York Times reports:

This preparation should happen early on in the divorce process, but too often people are too busy arguing, litigating, fighting, and having no idea of the whole picture.

A few things to consider: find out from a mortgage broker how much mortgage you could afford early on in the case. Spouses planning to count child support and alimony as income to qualify for a mortgage should know that lenders will require proof of at least six months’ receipt of that income before closing. In addition, there are other Fannie Mae guidelines.

The New York Times article is available here.

More Older Couples Divorcing

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, November 6, 2015.

Hilary Stephens was 57 when she walked away from her 28-year marriage. As the New York Times reports, late-life divorces are on the rise.

A late-life divorce, also called “silver” or “gray” divorce, is becoming more common, and more acceptable. In 2014, people age 50 and above were twice as likely to go through a divorce than in 1990.

Reasons for Late-Life Divorces

Remarriage. Many are in second marriages, and the divorce rate is about 2 1/2 times greater for second marriages than first.

Life expectancy. People are dying later in life. These days, if you’re 50 or 60, you could live on for another 30 more years.

Loss of Stigma. Separation no longer holds the stigma it once did.

Status of women. Women initiate a majority of divorces. “As women gain financial independence, they feel safe leaving an unhappy union.”

I’ve written about late-life divorces before. Some things to consider if you are considering a late-life divorce:

Florida, like many states, is going through a lengthy legislative alimony reform battle. Your expectations about support and alimony could be frustrated.

Your retirement money could be cut in half. Retirement accounts, and other assets, are presumptively split evenly.

If you keep the house, you may have to give up something. We are out of the housing recession, and houses have a lot of value now. You may have to take a smaller share of a pension, or a smaller alimony amount.

Children are still a factor. Maybe there isn’t the same gut-wrenching custody issues, but a lot of parents provide some kind of financial assistance for adult children.

Get a prenuptial agreement if you are considering marrying a second time.

There are special concerns involved when older couples divorce. As always, information is power, so make a point to seek out experts for guidance.

The New York Times article is here.

Your Foreign Custody Order is not Enforceable Here

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, November 3, 2015.

A Pennsylvania court refused to follow or recognize a foreign country’s custody order, instead allowing one of its courts to change custody. Are international child custody orders valid here?

The case of H.L.K. v. F.A.A. involved dual citizenships: the Mother was a U.S. citizen and the Father Saudi Arabian. They married in Pennsylvania in 1994, and moved to Saudi Arabia.

Three children were born, and all were dual citizens. In 2008, the Mother moved back to Pennsylvania, and filed for divorce. Before a court could enter the divorce, she reconciled, moved back to Saudi Arabia, and in 2012 divorced there.

Immediately following the divorce, the Mother was forced to leave Saudi Arabia without the children because she was no longer sponsored by the Father, and because of Saudi guardianship laws.

In June 2013, the Father let the children visit Pennsylvania for summer timesharing. The Mother kept them, and sued for custody in Pennsylvania. At the same time, the Father sued in a Saudi court, which awarded him sole custody of the children.

The Father then tried to have his Saudi custody order recognized in Pennsylvania to enforce it. The Mother objected. The Pennsylvania court sided with the Mother, and refused to enforce it.

Why? The Saudi Order states, in part:

First, the non-Muslim shall not have right of custody of a Muslim.

Second, custody of each girl who attains the seventh year of age is with her father.

Third, if either parent desires to live in a remote country, priority for child custody shall go to the father whether the traveler is the father or mother.

Fourth, the female after attaining seventh year of age shall have no choice and she should stay with her father till marriage . . . the father is often more careful in protecting his daughter.

The Pennsylvania court found the Saudi judgment (especially the highlighted portions) violated state public policy, and refused to register it under principles of comity.

Foreign laws are increasingly being challenged in the U.S. For example, Islamic and American laws sometimes clash as you could probably guess fromt he bolded language in the Saudi order.

I’ve written about the intersection of Family law and Islamic law before. In 2014, Florida passed a law which prohibits our state courts from basing a decision on a foreign law that does not grant the parties the same rights guaranteed by the Florida or U.S. Constitutions.

The opinion is available here. Thanks to the Volokh Conspiracy for its analysis.

More Couples Getting Prenups

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Friday, October 30, 2015.

A recent survey of divorce lawyers shows that more than 60% cite an increase in prenuptial agreements. What’s behind the uptick?

I’ve posted about the importance of prenuptial agreements before. Yet only 5 to 10% of marrying Americans get prenuptial agreements. Recently, the Wall Street Journal ran an article worth talking about.

People forget that prenups are not just about how assets are divided in a divorce. Prenuptial agreements also can determine who gets what when one spouse dies.

Although 50% of marriages end in divorce, but of those that don’t, 100% end in death. In either case, assets have to be distributed. Prenuptial agreements can prevent heartache and wasting money to distribute those assets.

Two big reasons prevent people from asking for prenuptial agreements:

(1) Many couples feel a prenup predicts doom. It almost feels like you’re planning to fail. Most people are optimistic about their marriages, and think that requesting a prenuptial agreement would signal uncertainty.

(2) Many couples also believe that, in spite of the statistics showing that more than half of all marriages end in divorce, it won’t happen to them. Statistically, most think their own chance of divorcing is about 12%.

However, prenups provide certainty and protections beyond the law:

A prenup protects your premarital assets from a claim by your spouse in the event of death or divorce. In Florida, assets that you owned before marriage aren’t subject to a claim in a divorce – but increases in value could be.

In the event of your death, even if you don’t make a provision in your will for your spouse, Florida law may give your spouse certain rights to a share of your estate.

If your premarital assets are significant, you can ensure that your spouse will share in it only as much as you wish should you divorce or die. This protects you and the inheritance of your children from a prior relationship.

Prenups protect your income earned during the marriage. For instance, without a prenuptial agreement, you could have to pay alimony to your ex-spouse. An agreement can set that amount – or eliminate it.

Currently there are two Florida bills aimed to eliminate permanent alimony, and reduce long-term alimony. This hurts traditional couples in which one spouse left the workforce. Agreeing in advance about how to divide assets earned or future earnings can protect the stay-at-home spouse.

More couples are entering prenuptial agreements because they think they will actually strengthen their marriages. Providing couples with protection from the unknown outweighs the pain of talking about these issues before the wedding.

The Wall Street Journal article is here.

The Gossip Girl’s Custody Mistakes

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Tuesday, October 27, 2015.

Kelly Rutherford, the “Gossip Girl” actress, made mistakes in her divorce. She lost an international custody dispute, and now timeshares with her children in Europe. What happened?

I’ve written before about avoiding divorce mistakes. A recent Vanity Fair article reminded me of those posts. Vanity Fair details Kelly’s problems in a surprisingly favorable article.

Kelly had bad luck with marriage. She left her first marriage to a Venezuelan banker after he got sick from a heart condition. The marriage lasted 7-months.

Her second marriage to German businessman Daniel Giersch lasted longer, she filed after 28-months. She had two children with Daniel, and Kelly’s mistakes began almost immediately.

Daniel argued to a family judge that Kelly was excluding him from the children. This can be a big mistake when you’re trying to prove you facilitate a relationship with the other parent.

– The court found Kelly withheld news of their child’s impending birth, and when he asked to be at the hospital, she refused.

– Kelly left his name off the birth certificate, the “father” field was left blank.

– The court found Kelly “falsely represented” to a custody evaluator that she placed the Father’s name on the birth certificate when she hadn’t. Worse, she refused to add it when confronted with the issue in Court.

– The court found Kelly withheld the children for over a month, and unilaterally enrolled them in school.

– Kelly was found to be making negative remarks about Daniel in front of the kids, accusing him of “dealing arms and drugs”, being “homicidal”, and telling her son to “scream and call the police” if he was in an airport with his dad.

– In the courthouse, Kelly’s lawyer called the State Department to get the Father deported, promising to call off the arrest and deportation if the Father would agree not to have any visitation with his kids.

These actions are mistakes, as courts look at which parent will foster a meaningful relationship with the other parent in custody decisions.

This August, Kelly refused to return the children to Europe. By refusing to return them, Kelly placed the kids in a needless court hearing. A court in New York immediately returned them to their Father.

Kelly’s coup de grâce of mistakes? This is not a press statement you want to issue:

“What the judge did yesterday was shocking, illegal, and abusive to my children. Without any legal authority, a judge from the lowest ranking court in the state court system violated the highest ranking federal constitutional rights of my American citizen children.”

There is a lot you can learn from watching celebrity divorces. The Vanity Fair article is available here.

Cosmetic Surgery & Divorce: Keeping Abreast of the Law

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Friday, October 23, 2015.

Mommy makeovers during a divorce are nothing new. Recent studies shows up to 40% of women with new ‘buns’ and breasts leave their husbands. But can your husband repossess them?

Plastic surgery is now a $10 billion industry, and is increasingly common. For divorce purposes, research shows an increasing connection between plastic surgery and divorce.

One recent study suggested that up to 40% of women who undergo plastic surgery end up leaving their partner who supported (read paid) them through the surgery.

I’ve written on this topic before. When your wife’s new lips, buns and breasts are paid for with marital funds – can they be considered a marital asset subject to division?

While the Florida Supreme Court has never really tackled these big issues, the North Dakota Supreme Court finally ruled on the issue for all of us, and you can read the decision yourself:

“Do we have any lines to be drawn? Is dental work a marital asset? Is a hip replacement a marital asset?” Justice Daniel Crothers asked attorney Christina Sambor during Supreme Court arguments on Thursday.

Citing cases from Hawaii, Delaware and Kentucky, Erik Isaacson invites us to hold that breast implants are a marital asset, the value of which are subject to distribution in the division of the marital estate. We decline . . .

Luckily, Mrs. Isaacson was saved from a very painful property division! Isaacson, and other state court opinions that address cosmetic surgery in divorce, have only done so in cursory manners, without regard to the surgery value as “property.”

There is little case law or statutory guidance on the value of cosmetic surgery enhancements, or their accompanying debt. With the increasing use of cosmetic surgery, the time has come to create some.

The UK Telegraph article is available here.

Is Mediation Privileged?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Agreements on Monday, October 19, 2015.

What happens in mediation stays in mediation. Sort of. The truth is that while confidentiality is one of the hallmarks of mediation, confidentiality is not absolute.

Mediation is a process where a neutral, third person – called a mediator – encourages and facilitates resolving your case. Consider it an informal meeting in which the goal is to reach a voluntary agreement.

A mediation privilege does exist in Florida, which means that in general, whatever is said during mediation is considered privileged – and can’t be disclosed to the court, or other people.

The law is found in the Mediation Confidentiality and Privilege Act, which Florida enacted in 2004. Generally, all communications during mediation are confidential.

If you disclose things to others, you could be subject to sanctions, equitable relief, compensatory damages, attorneys’ fees, mediator’s fees, and costs incurred in the mediation proceeding.

The confidentiality law also means you can refuse to testify, and prevent others from testifying about mediation communications. But, there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless you agree otherwise.

‘There is a strong reason to protect discussions during mediation; however, there is an equally strong policy argument to promote the enforcement of settlement agreements. If the agreement is needed to show fraud, duress or illegality, then the settlement agreement can be admissible in court.’

I’ve written about prenuptial agreements and post-nuptial agreements before. The act provides two other significant exceptions to confidentiality for mediation communications: those “willfully used to plan a crime, commit or attempt to commit a crime, conceal ongoing criminal activity, or threaten violence”, and those intended “for the limited purpose of establishing or refuting legally recognized grounds for voiding or reforming a settlement agreement reached during a mediation.”

The benefit of this confidentiality is that it allows parties the ability to speak more freely during mediation, without fear that what they say will affect the outcome of their case.

Meet with your attorney before the mediation to review any outstanding questions you may have about the process, and about the mediation privilege.

Send Domestic Violence Victims To Jail?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Wednesday, October 14, 2015.

Domestic violence injunctions are critical for safety in divorce, but unlike other crimes, domestic violence victims sometimes fail to appear at trial. Can a victim go to jail?

I’ve written about domestic violence (D.V.) before. And anyone scanning the headlines in the Miami Herald knows that the dangers of domestic violence are all too real.

But in D.V. cases, a victim’s non-cooperation by failing to appear at trial, or recanting testimony, is a well-known problem. Some estimate up to 90% of D.V. victims recant or minimize reports of abuse.

The usual response to a failure to appear and recanting, (or even false statements) in D.V. cases is to turn a blind eye. After all, who wants the bad press for prosecuting – or sentencing to jail for contempt – a poor, battered, traumatized domestic violence victim?

On the other hand, turning a blind eye to a crime committed by domestic violence victim, such as perjury or disobeying a subpoena, has its own repercussions. This is a big conflict in D.V. court.

Earlier, a Seminole County domestic violence judge resolved the conflict by scolding the victim and then sentencing her to 3 days in jail for failing to appear to testify against her attacker.

The link below has a video of the proceedings in July as a sobbing woman tried to explain why she didn’t attend the trial for the father of her 1-year-old son – even though a subpoena required her presence and the judge seated a jury.

“Your Honor, I’m very sorry for not attending …,” said the woman. “I’ve been dealing with depression and a lot of personal anxiety since this happened …”

As deputies placed the woman in handcuffs, she begged Collins for a different outcome. But the judge closed her binder and told the woman to “turn around.”

In addition to the wasted resources, because she refused to testify against her attacker, the defendant was sentenced to only 16 days in jail, minimizing a violent crime.

There is a conflict about how to handle victims who fail to appear or lie in a domestic violence cases. There is little guidance over when and if a victim should be charged can be arbitrary.

The video and story can be seen here.