Year: 2016

Divorce Records & Privacy

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, September 26, 2016.

Tonight is the first presidential debate. Because of the importance of presidential elections, should Donald Trump’s New York divorce records be released to the public?

A New York judge has rejected a media request to make public the contents of a 25-year-old court file on Donald Trump’s divorce from wife Ivana, saying the courts have no business deciding what information could be useful to voters.

Family Court records in New York are not open to indiscriminate public inspection. In order to access them, you must make an application to the Court. It is solely up to the judge to permit the inspection.

The New York Times and the Gannett newspaper chain filed a motion to unseal Donald Trump’s records, arguing the move was needed to contribute to public debate over Trump’s fitness for the presidency.

I’ve written about the issue of public access to divorce records before. For example, in the Tom Cruise divorce, his ex-wife could have filed in New York or California. So, why did she choose New York?

One of the main reasons is New York’s privacy law. Florida has different rules on privacy. In an effort to protect the privacy of parties to a divorce, and prevent identity theft, Florida recently adopted a confidentiality rule to better protect social security and bank account numbers for instance. But Florida court filings are not private.

Earlier this month, lawyers for both Donald and Ivana Trump filed legal papers opposing the unsealing.

His ex-wife agreed, but also contended that since she is not running for office, she should not have to sacrifice her privacy even if the court found an enhanced interest in her husband’s actions.

Her submission to the court noted published reports alleging that she claimed during the divorce that he had raped her. However, Ivana Trump’s brief said that was not her view and dismissed those reports as “previous misinterpreted statements and allegations.”

The judge agreed with Ivana Trump that there was no reason to intrude on her privacy.

“If the court were to deprive the candidate party of his rights…on the ground that there may be something in the confidential file that would be useful in determining his fitness for office, that ground does not exist in the case of his former wife, who is not a candidate.”

Manhattan Supreme Court Justice Frank Nervo rejected the New York Times’ argument in a ruling released Thursday.

“Were the court to make the confidential records available for journalistic, and thus public, scrutiny, it would impermissibly inject itself into the political process by making the value judgment of what information is useful in determining the present candidate’s, or any other candidate’s, fitness for office.”

A lawyer for the news outlets, David Schulz, said no immediate decision had been made about whether to appeal.

The article in Politico is here.

A Hague Convention for Child Support

Posted by admin on

fsBy The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Wednesday, September 21, 2016.

Enforcing child support overseas just got easier. President Obama just ratified the Hague Convention on International Recovery of Child Support.

The official statement by NSC Spokesperson Ned Price on The Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance.

I’ve written about child support issues before. My timesharing child support article is now cited as a resource in the Child Support Benchbook. The Benchbook helps judges and magistrates hone courtroom practice and decision-making, by keeping them informed by state-of-the-art science, best practices used nationwide, and knowledge.

While the United States has child support enforcement well in hand, the same has not been true in other countries. This Convention is intended to remedy non-support cases where the payer of support resides in a foreign country and fails to provide court-ordered child support.

The Convention’s purpose is to assist custodial parents in enforcement proceedings in their state courts for collection of financial support due from parents residing outside of the United States.

The Convention accomplishes this by:

a) establishing a comprehensive system of co-operation between the authorities of the Contracting States;

b) making available applications for the establishment of maintenance decisions;

c) providing for the recognition and enforcement of maintenance decisions; and

d) requiring effective measures for the prompt enforcement of maintenance decisions.

The Convention applies to:

a) obligations arising from a parent-child relationship towards a person under the age of 21 years;

b) enforcement of a decision for spousal support when the application is made with a claim within the scope of sub-paragraph a); and

c) spousal support.

A list of countries which have ratified the Convention is here.

Divorce & New Rule on Experts

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, September 12, 2016.

Divorce is so complicated, we rely on experts for help. But, the new statute governing experts is being questioned by the Florida Supreme Court. What is the status?

The Florida rule for experts was amended in 2013 and is up for review by the Florida Supreme Court. There are some interesting things about the new rule.

1. The amendment was made by the Florida Legislature, not the Florida Supreme Court. That’s unusual because rulemaking authority is the court’s job.

2. The way the Rule came into being by the Legislature could create a constitutional challenge to the rule down the road.

3. The new rule forces Florida courts to abandon the 70-year old Frye test for admitting expert testimony.

4. The new rule requires Florida courts to apply the federal standard; something the Florida Supreme Court has said it doesn’t want to do.

I have spoken and written on the rule change several times. In articles and speeches, I cautioned about a possible Constitutional problem with the way the law was passed.

However, the Constitutional issues will not be resolved until the Florida Supreme Court decides it. As the Florida Bar News reports, the two issues being argued before the high court are:

1. Should the Rules of Evidence incorporate the Legislature’s 2013 law that changed the standard for expert testimony to the Daubert standard?

2. Was the amendment a substantive law, or a rule of courtroom procedure?

The Code and Rules of Evidence Committee of the Bar, which advises the court on evidence matters, recommended 16-14 against adopting the change the Legislature.

Justice Barbara Pariente questioned whether the Court should reject adopting Daubert as a rule, because it is not actually passing on the constitutionality of the rule, which it would do when a case in controversy reaches the court.

The reaction to the law has been huge, the Court received more than 180 comments on the proposed rule change. The court responded by extending the time for oral arguments from the normal 40 minutes to 60 minutes.

The vote on the Daubert/Frye issue was one of the few times in the past three decades that CREC has voted against recommending that a legislative change be adopted as an evidence rule.

The Florida Bar News article is here.

Divorce, Nigerian Princes & Mental Incapacity

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, September 6, 2016.

Florida is a no-fault state. Divorce is granted if you prove the marriage is irretrievably broken, or mental incapacity. Kentucky doesn’t allow incompetent people to divorce. That may change.

A 1943 Kentucky decision fond that Kentucky law did not authorize a mentally incompetent person to divorce. Kentucky is one of 10 states that bar mentally incompetent people from divorcing.

The man is arguing that even a person who is deemed disabled can show what their true feelings and intentions are.

“I don’t think that they should be locked up by their guardian.”

However, the man’s wife takes a different point of view. The man’s wife argues:

She was appointed as his guardian after he sent thousands of dollars to someone he believed to be a Nigerian royal prince.

The wife’s lawyer says she still cares deeply for her husband, and he needs a guardian to stop him from wasting family money on overseas pyramid schemes.

The man filed for divorce in August 2013 after he twice sought, without success, to dissolve the disability determination and guardianship, according to an October appeals court ruling in the case. The appeals court affirmed an order dismissing his divorce petition.

The Kentucky Supreme Court has heard argument, and will render its opinion soon.

I’ve written about divorce in Florida many times. In Florida, mental incapacity does not prevent you from divorcing, but no dissolution is allowed unless the party alleged to be incapacitated has been adjudged incapacitated for a preceding period of at least 3 years.

Essentially, Florida law precludes the institution or maintenance of an action for dissolution of marriage until three years after the person has been adjudged incompetent.

The purpose of this rule is to protect individuals who have become mentally incapacitated from being suddenly divorced or abandoned by their former spouses.

Mental capacity can impact your ability to settle a divorce case. Separation agreements, such as postnuptial agreements and marital settlement agreements, must be entered into by two parties who have the mental capacity to enter into contracts.

If an individual is found to have been mentally incapable when the marital settlement agreement was entered into, then the court will likely hold that the entire contract was invalid.

The ABA article on the Kentucky case is here.

Pakistan & The Hague Convention

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, September 1, 2016.

Pakistan might sign the Hague Convention on the Civil Aspects of International Child Abduction. What does The Hague have to do with child custody?

In Pakistan, The Hague Convention has received approval almost unanimously by the Cabinet. The only words of reluctance for it have been, predictably, from the Council of Islamic Ideology.

“As with the Women’s Protection Act, and the honor crimes bills, the necessity is to continue on the right path, despite the whimpering and protests of an archaic group.”

The Hague Abduction Convention is a treaty that many countries, including the United States, have joined. The purposes of the Convention are to protect children from abduction by a parent by:

(1) Encouraging the prompt return of abducted children to their country of habitual residence, and

(2) Securing rights of access to a child.

I’ve written about child custody issues before, The basic idea behind The Hague Convention is that child custody and visitation matters should generally be decided by the proper court in the country of the child’s habitual residence.

The Convention does not apply to every international parental child abduction case. First and foremost, your country must be a signatory country to the Convention. Additionally, you must show:

– That your child was wrongfully removed to or retained in another Convention country;

– The Convention was in force between the two countries when the wrongful removal or retention occurred

– The child is under the age of 16 at the time of filing of the application.

Under the Convention, a country may refuse to return an abducted child or grant access to the child if:

– There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence;

– The child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views; or

– The return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

In Pakistan, the Convention is required if Pakistani children are stranded abroad and a parent with custody wants to force the child’s return. Many countries – such as the U.S. – advise against traveling to Pakistan because Pakistan is a non-signatory country.

The article in The Nation is here.

Dwyane Wade, Helicopter Parents & Custody

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, August 29, 2016.

Can you lose custody because your kids walk home from school? Ride a bike without supervision? A few unlucky parents have found out. Is life riskier these days, or is there another reason?

Last year, Florida’s Dept. of Children and Families placed two brothers into foster care and then in the care of a relative, Why? Because the 11-year old was found playing basketball alone in his own yard.

A few years ago, a tourist from Denmark left her child in a stroller outside a restaurant while she ate inside got her baby back from foster care yesterday evening, a day after a Family Court judge ordered that the child be returned to her.

Conversely, Dwyane Wade’s cousin was killed last week while pushing her baby in a stroller down the street on her way to enroll a child at the “Dulles School of Excellence” in Chicago’s south side.

In the United States today, leaving children unsupervised is grounds for moral outrage and can lead to a DCF investigation, family court custody problems, and even criminal charges.

On the one hand, as the story about Dwyane Wade’s cousin shows, what was safe in the past may be risky today; placing children in genuine danger. However, statistics from the National Crime Victimization Survey suggest that violent crime rates have decreased since the 1970s.

The odds that a child will be killed or abducted by a stranger – one of the fears that motivates constant supervision – are tiny in comparison with the odds that a child will be injured in a car accident. Yet parents aren’t under investigation for choosing to drive their kids to school.

I’ve written before about the Constitutional rights of parents. Overregulation of parenting choices may violate the parents’ rights. In Troxel v. Granville, the U.S. Supreme Court reaffirmed the “fundamental right of parents to make decisions concerning the care, custody, and control of their children.”

Unfortunately, Troxel is not a case often cited in family court cases, may be ignored by DCF, and most parents lack the resources to fight prolonged legal battles to vindicate their rights.

What are acceptable forms of parenting in the U.S. has shifted strongly in favor of Helicopter parenting, emphasizing protection of children from risks of harm. In a custody hearing, who wants to defend being the Danish parenting attitude?

Recently, a counter trend has emerged. Some parents argue that over-parenting to protect against remote and risks of harm may expose children to more serious risks to their well-being and development.

The Yahoo News article is here.

New School Year, Old Custody Battle

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Thursday, August 25, 2016.

Child Custody disputes about vaccinating children are back with the start of a new school year. Florida allows religious exemptions from vaccines, but California recently eliminated all religious exemptions.

Hundreds of parents are protesting California’s new state law that took effect recently, and requires vaccines for nearly all schoolchildren.

SB 277 mandates vaccines for 10 different diseases, and blocks them from attending school if their parents refuse. Experts say those who resist are putting their children at risk.

I’ve written about the interplay between custody and vaccines before. The issue is the intersection of parental rights and religion.

Unlike the new California rule, Florida still provides for a religious exemption if vaccinations are in conflict with the religious tenets and practices of the child’s parent or guardian.

Vaccine disputes are high stakes cases because of the public health issues involved. Americans are again getting sick and dying from vaccine preventable diseases which were once a thing of the past – including measles, mumps and whooping cough.

The CDC is reporting that during 2012, 48,277 cases of pertussis were reported to CDC, including 20 pertussis-related deaths. This was the most reported cases since 1955. The majority of deaths occurred among infants younger than 3 months of age.

There are only two vaccination appellate decisions in Florida, and the facts in each are strikingly similar. In both cases, the parents shared parental responsibility. Both involved chiropractors as parents who were involved in their children’s health care.

Moreover, in both cases the health care professional parent opposed vaccinations. Ironically, the outcomes in the two cases were very different.

Vaccination disputes are interesting and high-stakes cases to watch for as the new school year approaches.

The ABC news article is here.

Divorce 100 Years Ago

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, August 22, 2016.

New York keeps their divorce court documents sealed for 100 years. What was it like to get divorced 100 years ago? The New York Post finds out.

I’ve written about New York divorces before, especially the Tom Cruise divorce and why they chose New York. Only one other state, Alaska, automatically seals matrimonial cases, and that’s for 50 years.

Divorce was rare then. There were only 50 cases filed in Manhattan Supreme Court in 1915, compared to 15,000 in 2015. Living alone then was almost unimaginable for women, and men didn’t want to live alone either. The rules were different too.

Cheaters Barred from Remarrying

Otto and Frieda Bardenheier were in a10-year marriage when she began an affair with a man in October 1914. They continued their trysts at his West 66th Street apartment until her husband filed for divorce in 1915.

Judge Daniel F. Cohalan chose to punish Frieda with what was a popular penalty for cheaters at the time: He barred her from remarrying.

Name-calling was common

David Ackerman’s contemporary Herman Haenelt hit his wife, Anna, choked her and pushed her up against a wall while calling her a “dreck-sau” and “mist-stick,” German slang for “dirty pig” and “piece of s-t.”

Faking Evidence

Back then, a spouse had to be legally ‘at fault’ to divorce, which led to accusations of adultery, neglect, abuse, and fraud. If one of those grounds was not present, unhappy couples made it up.

Men would often take posed photos on a bed with a prostitute – even if he didn’t sleep with her – to try to prove that he was an adulterer and had given proper grounds for divorce.

Florida has taken efforts to keep confidential family court filings in our courthouses. In an effort to protect the privacy of parties to a divorce, and prevent identity theft, Florida recently adopted a confidentiality rule to better protect social security and bank account numbers for instance.

But Florida court filings are not private. Privacy – and confidentiality of court filings – are easily overlooked issues when filing for divorce, and something you should be aware of in deciding in which state to file.

The New York Post article is here.

Divorce Asset Protection

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Wednesday, August 17, 2016.

Nevada has little known laws to attract business in facilitating asset protection, including in divorce cases involving property division.

As the New York Times recently reported:

Over the last decade, for example, New Hampshire has passed nearly a dozen laws affecting trusts that expanded their life span, lowered taxes and made it easier to transfer assets. In 2013, the state created a special trust court subdivision to handle the complex litigation; last year, an overhaul of state banking laws simplified regulations.

Still, Nevada “is definitely the most aggressive. Starting with the absence of any state income tax and resilient secrecy protections, Nevada has added a passel of laws and regulations intended to lure trust business.

Individuals who establish irrevocable trusts have more flexibility to transfer assets to a new trust with more favorable terms. Creditors are blocked from access to money held in trusts.

I’ve written about equitable distribution before. In Florida, all marital assets are subject to equitable distribution. So, even if you leave assets to your children in a revocable trust, they can also be at risk to equitable distribution depending on the circumstances and how they are used.

However, if you create an Irrevocable Pure Grantor Trust (IPUG) and leave assets to your children in their own IPUG, there may be an argument to declare those assets as separate property.

The best way to protect assets in a divorce, of course, is to have a well-written premarital agreement covering the disposition of all of your assets in the event of divorce. Additionally, post-nuptial agreements can also be entered into during the marriage to cover the same ground.

In Florida, assets acquired before the marriage are your separate, non-marital assets. So are noninterspousal gifts, bequests, income from nonmarital assets and assets excluded in written prenuptial and postnuptial agreements.

The most important step to protect your separate assets is to keep them non-marital at all times. As soon as you put your non-marital or inherited money into a joint account with your spouse, that money will very likely be considered a marital asset to be divided in a divorce.

Even if you can show the judge the exact amount in a joint account that came from your inheritance or non-marital assets, the funds are commingled.

The New York Times article is here.

Child Custody & Special Needs

Posted by admin on

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Monday, August 15, 2016.

Children with disabilities have special needs in child custody cases. These needs can include increased expenses and multiple specialists which can dramatically impact timesharing.

Researchers have found that parents of children with disabilities are much likelier to divorce. That is due, in part, to the fact that a child with a disability has multiple needs.

It is not unusual for parents to schedule appointments with multiple schools, specialists, doctors and therapists. This can also mean significant expenses that parents of other children never have to consider.

In Florida, for purposes of establishing a parenting plan, including a time-sharing schedule, the best interest of the child is always the primary consideration.

But determining the best interests of a child with special needs requires courts to evaluate all of the usual factors, and evaluate the factors affecting the welfare and interests of a child with special needs.

For instance, our statute requires the court to consider the developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.

In relocation cases in particular, the Florida legislature requires courts to consider any special needs of the child in determining if moving away is in the child’s best interest.

I’ve written about custody before. Some things to consider when determining legal custody for a child with special needs, include:

* The frequency in the selection of doctors, specialists or evaluators as well as the frequency of required medical care and expenses – and each parent’s availability to facilitate that.

* Placement of the child into specialized programs or the need for special education services in the child’s school.

* The child’s school district becomes important because school districts have certain responsibilities and obligations to a child with special needs under state and federal law.

* The number of decisions to be made, and the speed necessary for children with disabilities, can make going to court for a resolution very ineffective for meeting the best interest of the child.

* Flexibility, which works well for many parents, may not work well for children with autism, for example, in which rigidity and predictability should be favored over frequent transitions.

Legal and physical custody issues involving special-needs children can best be resolved when the divorcing parties work together.

The ABA article is here.