Year: 2016

Grandparent Visitation Rights Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Grandparent Rights on Wednesday, February 3, 2016.

It’s been about 15 years since the U.S. Supreme Court decided the grandparent rights of visitation case Troxel. What is the status of grandparent visitation 15 years on?

In Troxel v. Granville, grandparents asked to expand their visitation rights. The children’s mother had reduced the grandparents’ visitation to one afternoon a month.

The U.S. Supreme Court reasoned that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.

So, as long as a parent is adequately caring for his or her child, there will normally be no reason for the state to inject itself into the private realm of the family. The basic presumption in Troxel is that fit parents act in the best interests of their children.

However, the Troxel court did not hold that the Due Process Clause requires a showing of harm or potential harm to the child as a condition to granting visitation. That is a Florida law.

Instead, the U.S. Supreme Court left those decisions for the states to decide on a case-by-case basis.

I’ve written about grandparent visitation. Florida has its own constitution. The Florida Constitution contains an express right of privacy written into it:

Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

It surprises many Floridians – because of the large percentage of grandparents here – but grandparent don’t have visitation rights here. But grandparent visitation is alive and well in Indiana.

In this year’s Indiana Supreme Court case, a child’s maternal grandparents filed for visitation after their relationship with the child’s father became contentious.

Based on the opinion of mental health experts, the trial court ordered grandarent visitation totaling approximately 79-days per year. The Indiana Supreme Court affirmed the order.

Florida law is not like Indiana’s. Grandparent child custody and timesharing rights do not exist in Florida. without the showing harm to the child violates parents’ privacy.

With the Florida legislature in session, and new bills dealing with a parent’s right to delegate certain powers regarding the care and custody of the child, grandparent visitation may be an area to keep an eye on.

The Indiana Lawyer article is available here.

Testing Marriage Secrecy

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, February 1, 2016.

Can emails to your husband or wife be used as evidence against you in divorce, or is there a privilege against that? A New York federal court is about to decide that issue.

Actually, there is a privilege, and it is a very old one at that. The privilege is rooted in English common law since at least 1628, when an English lord established the idea that spouses should not be forced to testify against each other.

In the New York case, a husband is being charged with supporting Islamic State, and the prosecution wants to use his letter to his wife which they found.

The Wall Street Journal has an article on Tairod Pugh, a 48-year old U.S. Air Force veteran who wrote a letter to his wife, saying he wanted to become a martyr, and to support Islamic State.

He was turned away at the Turkish border before he could cross into Syria. Now that the prosecution has the letter, Tairod wants to hide it from a jury.

A privilege, in evidence-speak, is an exception to the rule that ‘no one may refuse to give testimony or other evidence in court.’ This general rule helps to ensure fair trials.

A privilege is not a constitutional right. The right not to incriminate yourself (“taking the Fifth”) is a constitutional right. A privilege allows you to object to your own or another’s testimony about communications within confidential relationships.

I’ve written about evidence before. The Husband-Wife privilege, although ancient, has the same value today as it did then. Courts recognize the privilege to protect marriages from the harm of spouses being forced to testify against each other.

In Florida, a spouse has a privilege to refuse to disclose, and to prevent others from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

The privilege does not work in divorce cases. When one spouse uses the courts against the other spouse, our policy of encouraging settlement could be frustrated by the privilege.

In addition to exceptions, privileges have to be properly asserted or they may be lost. A spouse may waive the privilege by failing to object to the testimony when offered.

You can also waive the privilege by mentioning the confidential communication to others, and by offering testimony about it through other witnesses.

Every state in the U.S. recognizes one or both of the types of spousal privilege recognized by federal courts. There are differences from state to state with the privilege; for example, some states have many more exceptions to the privilege.

The Wall Street Journal article can be found here (paywall).

Running the Marital Business After Divorce

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Equitable Distribution on Monday, January 25, 2016.

Over 1.4 million businesses are jointly owned and equally operated by husbands and wives, and 1.7 million businesses are jointly owned but run primarily by a husband. Can you run a business after divorce?

The Wall Street Journal has an article today on running a business during and after divorce. The article is primarily aimed at spouses who started and ran a business together during the marriage.

During a divorce, spouses who spent years building a company suddenly find themselves having to divide it up. One spouse may demand a bigger share of the company, another may get defensive about the business’s finances and refuse to divulge details. Old resentments can surface.

The worst case scenario is that you have to liquidate the business, and split any proceeds. When you’re going through a divorce, people don’t always act their best. If you have a bad relationship with your spouse, they may not be compelled to find another solution besides liquidating.

I’ve written about the impact of divorce on business values before. Selling a business is a likely scenario in divorce, whether you live in a Community Property state like California, or an Equitable Distribution state like Florida.

In Florida courts have to set apart the non-marital assets and liabilities, then distribute the marital assets and liabilities between spouses. The court starts with the premise that the distribution should be equal, unless there is a reason for an unequal distribution.

Some of the reasons for dividing property, including businesses, unequally are:

(1) The economic circumstances of the parties.

(2) The duration of the marriage.

(3) Interruption of personal careers or educational opportunities.

(4) The contribution to the personal career or education of the other spouse.

(5) The desirability of retaining an interest in a business intact and free from any claim or interference by the other party.

(6) The contribution of each spouse to the acquisition, enhancement, and production of income.

(7) The intentional waste, depletion or destruction of marital assets.

If spouses can’t live with each other, there’s a good chance they won’t be able to work together either. However, to stay in business together, couples need ask some questions:

– Will you be more successful together or apart?

– Are the children better off if the business closes?

– Can you communicate effectively with each other?

– Can you define new boundaries at work?

While it’s impossible to take emotions entirely out of the process, businesses do survive divorce, and the emotional turmoil can be minimized.

The Wall Street Journal article is here.

SHAME! Using Facebook to Enforce Support

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Support on Friday, January 22, 2016.

Arizona’s “Hashtag Governor” announced that his state will start using social media to publicly shame deadbeat parents who refuse to pay their child support.

In Florida every child has the right to financial support from both parents. The Department of Revenue is the state agency responsible for Florida’s Child Support Enforcement Program. In Miami-Dade County, the Office of the State Attorney handles the program.

The Department of Revenue locates parents, establishes paternity, gets support orders and enforces them. Florida wants parents, not the state, to take care of their children. And, if the parents are not paying, we all are paying.

Florida has a number of ways to enforce child support orders:

– contempt of court,

– suspension of driver’s license,|

– property liens,

– Passport suspension, and

– Bank account seizure

There is no statute of limitations on the enforcement of child support and child support arrears. Child support can be enforced after the children are over 18, and even against the estate of a parent after a parent’s death.

Arizona announced a new way to enforce child support orders. Governor Doug Ducey launched a campaign to crack down on “the worst of the worst” parents by posting their names and photos to Twitter and Facebook.

“For too long, you’ve been able to remain anonymous – able to skirt your financial and legal responsibilities with no shame. Not anymore,” the governor proclaimed. Effective immediately, he said, the state would begin posting the photos, names and money owed by “these losers” to social media, with the hashtag #deadbeat.

It’s simple. If you’re old enough to father a child, then you’re old enough to accept financial responsibility for that child. If you don’t want you’re embarrassing – unlawful – and irresponsible behavior going viral: Man up, and pay up,” the Republican governor said.

The governor said the shaming campaign is targeting 421 deadbeats in the state (34 of whom are women) who collectively owe $20 million. “These deadbeats are the worst of the worst,” he tweeted on Wednesday.

I’ve written about child support related issues before, as well as written an article on social media and family law. The collection and enforcement of unpaid child support is a big issue in Florida, and impacts us all.

The Business Insider article on Arizona is available here.

Domestic Violence is Now Illegal . . . in China

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Domestic Violence on Monday, January 18, 2016.

Roaring into the 21st Century, China approved its first law against domestic violence. The law “prohibits all forms of domestic violence” to protect people from abuse in the home.

The new law was approved after a seven-day session of the Standing Committee of the National People’s Congress, and will come into force on March 1st.

In China, “the most heated arguments were over the definition of ‘family member’ and what constitutes “domestic violence.”

Who are Family Members?

Under current law, family members are blood relatives, people related by marriage, and those related by adoption.

The new domestic violence law includes an article that covers “people who live together” for example, guardians and their charges, those living in foster families and people in cohabiting relationships. Cohabiting relationships are not recognized under current Chinese law.

In Florida, “Family” includes people who you are related to by blood or marriage; spouses, ex-spouses, parents, grandparents, aunts, uncles; parties intimately involved and living together but never married; adopted children; step-parents and step-children, and others or a person who is the parent of your child, regardless of whether or not you have ever been married or lived together.

What is Domestic Violence?

In China, the new law defines domestic violence as physical, psychological, or other harm, as well as verbal abuse. Sexual violence has not yet been written into the law.

In Florida, “domestic violence” can include: assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any other criminal offense resulting in physical injury or death.

According to the All-China Women’s Federation, almost 25 percent of Chinese women have experienced violence in their marriage, yet the organization said it receives only 40,000 to 50,000 complaints from women each year.

Until 2001, when China amended its marriage law, abuse wasn’t considered grounds for divorce and violence in the home has traditionally been regarded as a private matter to be dealt with by family members.

I’ve written about domestic violence issues many times. In Florida, as opposed to China, there are four kinds of civil injunction petitions that can be filed:

(1) domestic violence,

(2) sexual violence,

(3) dating violence, and

(4) repeat violence.

Each type has different requirements based on your relationship with the other person, and what occurred.

The China Daily article is here.

Divorce Law Changes: Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, January 15, 2016.

Florida is not the only state modifying its divorce laws. Illinois is amending theirs to remove the word “custody”. What’s behind the movement to modify family laws around the country?

In Illinois, the changes cover new terminology that reflects recent changes in society, such as gay marriage. For example, husband and wife are now referred to as the more gender-neutral “spouses.” Child custody is now referred to as “allocation of parenting time and responsibility.”

Florida went through something similar in 2008 when it became evident that the adversarial legal system, pitting parent against parent, was unwieldy and unnecessary for large numbers of divorcing parents wanting to reach good agreements about their children.

The effort helped to ensure that children have post-divorce parenting arrangements which promote good social and psychological adjustment.

This year, House Bill 1151 is being reviewed to further revise terminology relating to parents in our laws.

I’ve written about a variety of custody issues before. Florida’s 2008 change in the law eliminated outdated and negative terminology related to divorcing parents and their children in order to reduce animosity among family members and improve the lives for children.

Florida did this by deleting the definitions “custodial parent” or “primary residential parent”, and creating a definition for the terms “parenting plan”, “parenting plan recommendation” and “time-sharing schedule.

“Custodial parent” and “noncustodial parent”; were replaced with references to either term with the term “parent” or “obligee” or “obligor”, and “custody order” or “visitation order” were replaced with “parenting plan” and/or “time-sharing plan”.

In the current legislative session, which started this week, the effort continues to modify our marital and family laws. For instance, there is a bill to reform alimony, the evidence code, and importantly, repealing the criminal code provision which makes it a second degree misdemeanor for any unmarried man and woman to cohabit together.

The legislative session in Florida is underway, and anyone interested in marital or family law should keep their eyes open for what happens in Tallahassee.

The Bellville News-Democrat article is available here.

Speaking Tonight on Expert Testimony

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

I will be speaking on a panel tonight about expert testimony at the American Inns of Court. The topic impacts every divorce and trial, and includes changes to the Evidence Code, Constitutional issues, the Florida Supreme Court’s triennial review, and a view from the bench.

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I’ve written extensively on this topic, and recently published an article about the Daubert amendment, and how it impacted the Florida Evidence Code.

The Legislature has forced Florida courts to join the federal courts and a majority of states in adopting the Daubert standard for the admission of expert testimony and opinions.

There’s a lingering Constitutional problem. The Legislature can enact substantive law, but only the Supreme Court can regulate courtroom practice and procedure.

The trick is that the Evidence Code contains both substantive and procedural provisions. Only the Supreme Court of Florida at this point whether the Legislation violated the separation of powers.

If the Legislative branch encroached on the judicial branch, the changes are subject to a strict separation of powers doctrine review.

The Florida Bar Board of Governors, at its December 4 meeting in Naples, is recommending the Florida Supreme Court to reject the changes. The committee believes the Legislature has crossed the boundary from substantive to procedural issues.

The issue now goes to the Florida Supreme Court. The next scheduled three-year cycle report is due to the Florida Supreme Court by February 1, 2016.

The Inns of Court will be meeting at the Coral Gables Country Club 997 North Greenway Drive Coral Gables, Florida 33134.

The article is available here.

Alimony and Domestic Violence

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Alimony on Sunday, January 10, 2016.

Divorce is not always bad. A woman divorced her husband after he raped her. But she works and he’s unemployed. Should she pay him alimony? A New York court just decided that case.

A Brooklyn man, who’s serving a 40-year prison sentence for raping his abused wife, just lost his request to get alimony payments from her.

The Ex-Husband, claimed he supported his wife throughout the marriage, when she went to school, and paid for the tuition with “hustled cigarettes” and by collecting public assistance.

A Brooklyn Supreme Court Justice found the Husband hadn’t even done that much. Worse, the judge found that the Husband had beat up his wife so many times during their marriage, that she wound up losing her job because of her excessive absences:

He “engaged in extreme acts of physical and sexual violence” against his wife throughout the marriage, and was arrested twice for attacking her.

The judge held:

“To award any portion of plaintiff’s retirement account to defendant, under the facts and circumstances here, would be contrary to the interest of justice.”

I’ve written about alimony a few times, especially now that a bill to amend our alimony laws is at issue. Our statutes currently provide for alimony to be paid under certain circumstances.

In Florida, the court may grant alimony to either party. There are several types of alimony: bridge-the-gap, rehabilitative, durational, or permanent, and any combination of these forms of alimony can be awarded.

Florida courts may even consider the adultery of either spouse and the circumstances in determining the amount of alimony, if any, to be awarded.

Before determining whether to award alimony, Florida courts first make a specific factual determination as to whether a spouse has an actual need for alimony, and whether the other spouse has the ability to pay alimony.

If so, the court has to consider a variety of factors to determine an alimony award. This can include any factor necessary to do equity and justice between the parties.

That appears to be what the New York judge considered when denying alimony to the rapist husband.

The article can be found here.

Speaking Next Week on Expert Testimony

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, January 7, 2016.

I will be speaking on a panel on expert testimony after Daubert. The topic addresses Florida’s changes to the Evidence Code, the pending Constitutional issues, and a view from a sitting circuit judge.

fla-supreme-ct-thumb-450x300-67600

I recently published an article about Daubert. In amending the Florida Evidence Code, the Legislature has tied Florida courts to the Daubert standard used in the Federal courts for the admission of expert testimony and opinions.

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.

A Constitutional issue has arisen. The Legislature can enact substantive law, but 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.

The Board of Governors, at its December 4 meeting in Naples, adopted the recommendation by the Code and Rules of Evidence Committee. They are urging the Supreme Court to not adopt the Daubert amendment to the Evidence Code.

The vote by the Code and Rules of Evidence Committee marks one of the few times it has recommended that a legislative enactment to the evidence code not be adopted.

When the committee does not recommend that action, it is generally because it believes the Legislature has crossed the boundary from substantive to procedural issues.

The next scheduled three-year cycle report is due to the Florida Supreme Court by February 1, 2016.

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

Divorce: Can You Change Your Mind?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, January 4, 2016.

To divorce in Florida, the marriage must be irretrievably broken. If you change your mind and want to stay married, can you get un-divorced? New Hampshire just decided that question.

The New Hampshire Supreme Court in December upheld a lower court ruling refusing to vacate a couple’s 2014 divorce after 24 years of marriage.

Terrie Harmon and her ex-husband, Thomas McCarron, argued their divorce was erroneous because they mended fences and are a couple again.

But the New Hampshire justices, in a unanimous ruling issued a few weeks ago, said the law specifically allows them to grant divorces – not undo them.

Courts in some states – including Illinois, Nebraska, Mississippi, Arkansas, Maryland and Kentucky – will vacate divorces within a certain time frame or under certain circumstances, at the parties’ request.

What can you do if you discover your marriage is not irretrievably broken after you filed for divorce? If you do decide not to divorce, your options are limited to where in the divorce process your case is.

Pending Cases

A pending case is an ongoing case in which the final judgment of dissolution of marriage has not been entered. In pending cases, you may be allowed to voluntarily dismiss your case, or possibly abate the divorce proceedings to give your reconciliation a chance.

Post-Judgment Cases

If the final judgment has been entered, as in the New Hampshire case, there are limited ways final judgments can be set aside.

The rules allow for final judgments to be set aside by proving clerical mistakes, other mistakes, newly discovered evidence, and fraud. However, there is no authority for setting aside a final judgment because you’ve reconciled.

As people in the New Hampshire case observed:

“I think it was partly sentimental and partly that they had some business interests that a divorce and remarry would be more complicated than undoing the divorce.”

I’ve written about divorce strategy to consider before. If you want to reconcile after the divorce final judgment has been entered, you should be very wary of what you could possibly lose by reconciling. For example, re-marriage may be grounds for terminating alimony. You must consult legal and tax experts.

There are other planning issues. Retirement, taxes and social security are often times impacted by your marital status. As one of the attorneys in the New Hampshire case put it:

“People just have to be cautious in making sure divorce is what they really want.”

The New Hampshire story is available on WMUR here.