Month: May 2018

Can You Pass the Divorce Test?

Posted by Ron Kauffman on

As if fighting with your spouse wasn’t stressful enough, in China authorities require that you pass a quiz to divorce. Here’s the rub: the better you do on the test, the less likely the divorce will be approved.

Divorce Quizzes

According to the New York Times, the Chinese Divorce Test, which has been issued in at least two provinces since last year, follow the format of a typical three-part school exam: fill-in-the-blank, short answer, and an essay.

Questions include the mundane — “When is your anniversary?” — and the philosophical: “Have you fulfilled your responsibility to your family?”

The quizzes — 15 questions, scored on a scale of 100 points — were developed as a way to prevent “impulse divorces”.

Local news outlets reported that the authorities considered a score of 60 points or higher to mean “room for recovery,” and those couples were encouraged to work on their marriages.

Florida No Fault Divorce

Florida has made it much easier to divorce, which is a subject I’ve written about before. For example, we have abolished fault as grounds for filing a divorce. The only grounds you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.”

No fault divorce laws exist in all 50 states to make it possible for one party to get a divorce without proving any bad behavior took place, and without getting the permission of the other spouse.

Before the no-fault divorce era in the United States, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over or prove wrongdoing.

No-fault laws are the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

China is different. China is going through growing pains and dealing with modern problems like separation and divorce. The Chinese Divorce Test is a novel approach to dealing with rising divorce rates.

Chinese Water Torture?

According to the Times:

Through the guidance of the questions, couples can reminisce on the moments of their relationship and reflect on their familial roles and responsibilities. Nearly two million Chinese couples divorced in the first half of 2017, an 11 percent increase from the year before, according to state news media. About 3 percent of all married couples sought a divorce last year, up from fewer than 1 percent in 2002.

The quizzes were meant only to be a starting point, not the deciding factor in whether a couple can split up. But at least one couple’s high score resulted in the authorities’ preventing their divorce in another province last year.

A court in Yibin, a city in Sichuan Province, refused to grant the couple a divorce in September after citing their stellar test scores, according to local news outlets.

More than 70 percent of divorces filed in China last year were initiated by women, The South China Morning Post reported, citing the Supreme People’s Court. In most filings, incompatibility was given as the major reason; 15 percent cited domestic violence.

However, a smaller number of divorces appear to be shams resulting from a quirk in Chinese real estate law. Some cities limit the number of properties a married couple can own. By legally divorcing, a couple can buy more real estate in some of the world’s most expensive cities.

Experts said the state’s focus on preventing divorce stems from a Confucian belief that a stable society is made up of complete families. Some Chinese citizens criticize the quizzes for treating people like children.

So, if you remember your wedding anniversary you can’t divorce? Divorce isn’t a case of amnesia.

The New York Times article is here.

 

Prenuptial Agreements in Jeopardy

Posted by Ron Kauffman on

Many people are starting to notice that the new tax law could wreak havoc on their prenuptial agreement. If you are planning on getting married this summer, here’s a few things to consider before signing that prenup.

Prenuptial Agreements

I’ve written about prenuptial agreements before. Prenuptial agreements, or prenups, are agreements you sign with your fiancé before marriage that outline how you two would end up in case of divorce or death.

A prenup can resolve things like alimony, ownership of businesses, title of properties, and even each spouse’s financial responsibilities during the marriage.

There are many other concerns that can be addressed in the prenup:

  • Caring for a parent
  • Going back to school
  • Shopping habits
  • Credit card debt;
  • Tax liabilities;
  • Alimony and child support from previous relationships; and
  • Death or disability.

A few of the points of a prenup, is that you get to decide on the amount of alimony, the terms of alimony or whether you will pay any alimony at all, and how to divide movie royalties and other assets.

And because prenuptial agreements can impact how much alimony you agreed to pay or received, the new tax overhaul comes into play heavily in your agreement.

Tax Law Overhaul and Alimony

The new tax law offers an avenue for challenge because courts will likely have to consider how the law has changed since the contracts were created.

For example, beginning in 2019, people paying alimony will be no longer be able to deduct their alimony payments. That little change in the law could mean they effectively pay double in post-tax costs compared to what they had previously agreed to in their prenups.

President Trump, who pushed the new tax law, told New York Magazine in 2006 that his prenup with Melania Trump made his marriage stronger despite being a “hard, painful, ugly tool,” he didn’t disclose any details of the agreement.

More than 60% of divorce attorneys said they had seen a rise in the number of clients seeking prenups in the previous three years, while just 1% reported a drop.

There aren’t hard numbers, but it’s fair to say that prenups have become more popular in recent years as younger Americans delay marriage, and the divorce rate has skyrocketed for people over 50 who often use prenups if they remarry.

Prenups and New Tax Changes

If prenuptial agreements aren’t amended to factor in the tax changes, it will be up to divorce attorneys to settle — or judges to decide — whether the amounts or formulas still stand for couples who divorce starting in 2019.

Even if both parties agree to an adjustment in alimony, they’ll need to agree on exactly how much to cut the payers’ obligations. Divorcing couples could end up hiring rival accountants as expert witnesses to sway judges.

For those in the top income-tax bracket — the likeliest to have a prenup — being able to deduct the payout from taxable income had been a big saving because every dollar in alimony reduces the payer’s taxable income by the same amount.

Top earners in high-tax areas like California and New York City can face marginal tax rates close to 50 percent. Without the deduction, a spouse who agreed to write a $10,000 check each month could be on the hook for what is effectively almost $20,000 in pre-tax income.

Lawmakers said they eliminated the alimony deduction to end what they called a “divorce subsidy” under the old law.

The change, which raises an estimated $6.9 billion over the next decade, doesn’t affect divorces and separation agreements finalized before the end of 2018.

However, next year the newly divorced won’t be able to deduct alimony payments, but recipients will get the money tax-free (previously, the payments had to be reported as part of their taxable income).

Ultimately, the change could hurt alimony recipients. Payers could plead with judges to revise their obligations given the new law — a valid legal argument given that many prenups specifically mention that the payments are intended be deductible.

Those potentially reduced payments are likely to overpower the benefit recipients get from being able to receive the payments tax-free because they tend to be in lower tax brackets than the payers.

The Bloomberg article is here.

 

New Article: Ambiguous Divorce Agreements

Posted by Ron Kauffman on

Seeing more emojis? Are you confused about their meaning? For some light reading this Memorial Day weekend, my new article dealing with legal ambiguity in divorce agreements, “If it looks like a duck: Emojis, Emoticons and Ambiguity,” in the Spring 2018 Florida Bar Commentator, is now available in print and to download. Here is the abstract:

What are Emojis?

Originating in Japan in 1998, emojis are small digital images used to express an idea or an emotion in electronic communications. The term emoji is Japanese for “picture character.” Picture (pronounced “eh”), and character (pronounced moh-jee).

Today, roughly 70 percent of the public uses some type of social media. Social media has changed many of the ways in which we communicate. For one thing, social media has increased our use of emojis.

One report found that more than 92 percent of people use emojis on social media.

Emojis have spread to the business world, where nearly half of workers add emojis to professional communications, and companies use them to increase sales and brand awareness. You can order your next Domino’s with the “Slice of Pizza” emoji.

Emojis have also spread to family law courts, as parents are frequently using texts, emails and social media in order to communicate their agreements and understandings about their kids.

Ambiguous Divorce Agreements

There are unique issues with emojis, rendering them hard to interpret. This is a subject I have written about frequently. For one thing, there’s no definitive source as to what emojis mean.

That unknown can make agreements between parents about custody, visitation, temporary support in emails, texts or on social media, ambiguous. Divorce agreements are interpreted like any other contract.

Basic interpretation begins with the plain language of the contract, because the contract language is the best evidence of intent.

Courts are not supposed to rewrite terms if they are clear and unambiguous. Anyone seeking to show a court any evidence outside a fully integrated contract, must first establish that a contract is ambiguous.

Emojis and Legal Ambiguity

A contract is ambiguous when its language is reasonably susceptible to more than one interpretation. That’s where emojis come in, they can be very ambiguous. But why?

Emojis are also small, making them hard to read. Interpreting an emoji can depend on what kind of device they appear in. For example, a 24-inch computer monitor displays thing differently than a 4-inch phone screen.

Emojis don’t always mean the same thing universally, so there can be many different meanings depending on which country you are in. For example:

????

The “Folded Hands” emoji symbolize “please” and “thank you” in Asia. However, in the U.S. it means: “I’m praying,” and frequently, “high-five”!

????

The “Pile of Poo” emoji is a pun on the Japanese word for excrement (unko), which starts with the same “oon” sound as the word for “luck” and is complimentary in Japan. But, in the U.S. the emoji is used to express contempt. Strangely, Canadians use the emoji the most.

You can’t understand an emoji’s meaning just by looking at one. People use emojis in ways that have nothing to do with the physical objects they represent, or even what typographers intended.

There are regional, cultural and slang meanings to consider too. After all, emojis’ inherent ambiguity is one reason why they’re increasingly becoming evidence in court.

The Spring 2018 Family Law Commentator is available here.

 

Divorce Fraud

Posted by Ron Kauffman on

There are many ways for spouses to commit divorce fraud, especially during the proceeding. A Texas man was just found guilty of forging his wife’s signature on divorce papers — while giving himself a small break on support, and adding a couple weeks to summer visitation. What can be done about divorce fraud?

The Texas Divorce Fraud Case

According to reports, her husband, Brian Kimmell, had been staying at her residence when in October he went to court, without her, to file the divorce papers.

Although the 10-year marriage had ended in separation, they maintained a civil relationship for their son and she believed he had traveled up from San Diego – where the Navy had stationed him – in order to attend their son’s football game.

About eight months before Brian Kimmell allegedly forged his documents — social media posts showed that he had gotten married to another woman even though he was still married to her.

The unsigned divorce papers had Brian paying $1,000 a month in child support. In the forged copy the amount was reduced to about $700.They had agreed to him taking their son for a month each summer, but in the forged documents he had their son for a couple weeks more.

When Cassie Kimmell heard that the case had stalled, she said she called a Navy official and Naval Criminal Investigative Services agents met with Port Orchard police investigators and turned over handwriting samples from Brian Kimmell.

The samples were sent to the Washington State Patrol Crime Lab and were analyzed by a handwriting expert who wrote in reports that it was “highly probable” that the signature on the divorce document was not made by Cassie Kimmel, and that Brian Kimmell “probably” signed it instead.

Divorce and Fraud

In Florida divorce papers, such as judgments and marital settlement agreements can be set aside on various grounds, including fraud. Divorce fraud has become very common, and I’ve written on the subject before.

In certain cases, Florida allows you to challenge and vacate or modify a marital settlement agreement if the agreement was based on things like fraud, deceit, duress, coercion, misrepresentation, overreaching.

Additionally, Florida courts have allowed challenges to agreements where the marital settlement agreement makes unfair or unreasonable provision for the challenging party given the circumstances of the case.

Judgments are another area of fraud, especially in light of the Texas divorce fraud case. The thinking is that cheaters should not be allowed to prosper, and it has long been central to our legal system.

Florida rules of court expressly allow you to get some relief from a judgment if it was the product of fraud (whether intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.

Extrinsic fraud is conduct which prevents you from presenting your case. This is usually done by keeping you away from court; falsely promising a compromise; ignorance by an adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat; and so on.

Intrinsic fraud, on the other hand, is fraudulent conduct within a case and pertains to the issues in the case. For example, false testimony in a proceeding is intrinsic fraud.

Courts have available to them all kinds of sanctions, in a wide variety of shapes, attempting to encompass the virtually limitless ways people in divorce manage to misbehave.

Back in Texas

After the divorce was reversed, and then completed again with Cassie Kimmell’s actual signature, Brian Kimmell received no visitation with their son and has to pay $1,300 a month.

He also was tagged with about $32,000 of additional payments to Cassie Kimmell, which comes on top of paying legal fees for the second divorce and the criminal case.

Reached through an attorney, Brian Kimmell wrote in an email to the Kitsap Sun that his career had ended and he lost his rights to see and speak to his son despite having to continue to pay child support.

All this and I still don’t even know what for. I never used to think something like this could really happen to a person. Needless to say, my eyes have been opened.

On March 1, Brian Kimmell pleaded guilty to the first-degree perjury charge and was sentenced to six months of home detention, which he was authorized to serve at his residence in Texas.

The King5 article is here.

 

Challenging Divorce Agreements

Posted by Ron Kauffman on

A recent case in Florida shows that if your prenuptial agreement, divorce agreement, or mediated marital settlement agreement is poorly written, and the terms are ambiguous, you could be back in court fighting over it – as one South Florida couple found.

Prenuptial Agreement Miami

Clear as Mud

After a hearing, a family trial court judge found that a divorce agreement was “clear and unambiguous” and entered a final judgment. On appeal, the appellate court found the same contract to be ambiguous and reversed and remanded to hold more evidentiary hearings.

The confusion? The parties’ mediated settlement agreement required dividing the Former Husband’s pension, which provided:

The wife is entitled to 50% of the marital portion of this plan through the entry of a Qualified Domestic Relations Order. The marital portion is defined as the amount from the date of the marriage through the date of the filing of the Petition for Dissolution of Marriage.

The wife contended that the entire pension is marital because the enhancement was purchased with marital funds; the former husband argued that the purpose of the Agreement provision was to divide the pension 50/50, except for the enhancement portion.

Legal Ambiguity

I recently wrote an article in the Florida Bar Commentator about legal ambiguity and emojis. Divorce contracts are construed in accordance with its terms, so that where the terms are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document.

When a term is ambiguous or unclear, the trial court may consider extrinsic evidence as well as the parties’ interpretation of the contract to explain or clarify the language.

Ultimately, the appellate court considers whether the contractual provision was actually ambiguous; if not, ‘the language itself is the best evidence of the parties’ intent, and its plain meaning controls.

Determining if a contract is ambiguous may require the court to consider reading the entire agreement to clarify what the parties meant by including the provision.

A provision is ambiguous if it is fairly susceptible to different constructions.

Emojis and Ambiguity

Originating in Japan in 1998, emojis are small digital images used to express an idea or an emotion in electronic communications. Emojis are increasingly becoming evidence in family court, because they create ambiguity in agreements.

Emojis are also small, making them hard to read. Interpreting an emoji can depend on what kind of device they appear in. For example, a 24-inch computer monitor displays thing differently than a 4-inch phone screen.

Emojis don’t always mean the same thing universally, so there can be many different meanings depending on which country you are in. As a result, state and federal courts around the country are increasingly having to interpret emoji meanings.

Back to the Pension

The retirement provision was found to be ambiguous because it was fairly susceptible to different constructions. If the parties intended to split the pension equally, they could easily have said that the pension would be divided 50/50.

Yet, the Agreement refers to the “marital portion” of the FRS plan, a wording that suggested that the parties contemplated that some portion of the plan was non-marital.

The court found that a possible reading of the provision is that the marital portion of the plan is only that portion attributable to the former husband’s time of service with BSO.

Because of the ambiguity, the appellate court remanded the case back to the trial court to hold more hearings.

The appellate case is here.

 

Divorce and Leaving the House

Posted by Ron Kauffman on

Rumors abound of marital discord between Melania and President Trump. Generally, couples fight over who stays and leaves the house during a divorce. What if the marital home is the White House should the First Lady move out?

Meet the Trumps

Some people are claiming the issue of vacating the marital house is uncharted territory for a sitting president (assuming they divorce), since no American president has ever gotten a divorce while in office.

Usually, both spouses are entitled to stay in the marital home. However, staying in the home can be denied if a spouse is damaging it, or the children are exposed to domestic violence, for instance.

However, Donald Trump doesn’t have a deed to the White House, it’s not his property. The White House is owned by the people of the United States of America.

There’s also the issue of presidential security. Having an estranged spouse in the White House may make the Secret Service uneasy if there were divorce proceedings.

Housing Issues

I’ve written about the marital house during a divorce before. Generally, the home remains a marital asset, which is subject to equitable distribution, regardless of who lives there during the divorce process.

If a home is marital then both parties have equal rights to buy – out the other’s share. Both may also be on the hook for liabilities.

Children’s Issues

Until a divorce parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life.

Moving out can create the appearance of a new ‘primary residential parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Cost

The person leaving during a divorce may still have to contribute for the expenses of the home while also paying for a new home. It can be costly, and prohibitive expensive when you know that the process will take a long time.

Settlement

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty and may be less inclined to settle.

If you Leave

Before moving out, there should be some discussions about maintaining the home and who is paying for which expenses, an inventory should be made of the personal property, artwork, silverware etc., and the boundaries for when the ‘out-spouse’ can use and enjoy the home after vacation

1600 Pennsylvania Avenue

Because both sides during a divorce have a right to live in a “jointly titled home” during divorce, except for extreme circumstances such as domestic violence, the First Lady should have no trouble.

However, the White House is part of the President’s compensation package for serving as President of the United States. If so, it is President Trump’s right to live there and not his spouse’s.

They could also both live in White House. The White House is built big enough that Melania would have an entire room, bedroom, almost a wing, just for herself.

Having been burned down by the British, the White House could easily handle divorcing spouses. Right?

The Daily News article is here.

 

Property Division is not Nirvana

Posted by Ron Kauffman on

Kurt Cobain’s acoustic guitar from the MTV Unplugged concert is legendary. The equitable distribution of Kurt’s iconic guitar was a major property division issue in the divorce between Kurt’s daughter and her husband. The case of Kurt’s guitar is now decided.

About a Girl

The divorce between Kurt Cobain’s daughter Frances Bean Cobain and her Isaiah Silva may be over, but Cobain lost a prized possession to her now Ex-Husband: her father’s famous guitar.

Isaiah claimed he owns Kurt’s former Martin D-18E guitar from the famed MTV performance. The guitar is a very rare; only 300 were made.

For the Cobains however, the guitar’s sentimental value is immeasurable, as it was the last guitar played by Kurt before his suicide.

Silva argued the model had given him the guitar as a present, while she denied ever giving it to him. That was for the judge to decide.

Florida Property Division

I’ve written about equitable distribution and various types of property divisions in Florida before. Let’s assume that the guitar was in fact a wedding gift from Frances to Isaiah.

What happens? In all likelihood, the guitar would be considered marital property, not just Isaiah’s, and would have to be equitably distributed.

In Florida, “Marital assets and liabilities” include interspousal gifts during the marriage. In divorce proceedings, the court must divide the marital assets between the parties.

Courts begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on certain relevant factors.

These factors include things like the contribution to the marriage by each spouse, the economic circumstances of the parties, and any interruption of personal careers or educational opportunities of either party for instance.

So, what are “marital assets and liabilities”? They include things like assets acquired during the marriage, and interspousal gifts during the marriage for instance.

However, “nonmarital assets” include things like assets acquired before the marriage, and assets acquired by non-interspousal gift. This sort of non-interspousal gift argument may have been similar to what Isaiah argued successfully in court.

Smells Like Teen Spirit

Although she lost the iconic guitar in the equitable distribution, Frances did get the house they bought together, and doesn’t have to provide any spousal support; Silva had been asking for $25,000 a month.

The People article is here.

 

The ‘Do Over’: Prenuptial Agreements

Posted by Ron Kauffman on

In light of the wedding of Prince Harry and Meghan Markle, the Guardian has an interesting story this weekend about second marriages. If you are going to ‘do it again’, that is, get married a second time, one thing to help make your second marriage successful is a prenuptial agreement.

The Second Time Around

As the Guardian reports:

The National Center for Family and Marriage Research recently analyzed marriage and divorce data, and found that the overall divorce rate was greater for second marriages. In fact, the probability of divorce is around 50% for first marriages.

I never changed my name the first time, as my children already had their father’s surname and it never made me doubt my maternal status. But, with a second marriage, now there are three possible surnames in my family, the only one who shares mine is the dog, and I urgently want a merger.

The National Center for Family and Marriage Research also discovered that for second marriages, the divorce rate is more like 67%.

Prenuptial Agreements

Prenuptial agreements aren’t just for people entering second marriages, they are important for any couple planning to marry. I have written extensively on prenuptial agreements.

A prenup can help keep your non-marital property yours. The property you brought into the marriage is yours – mostly. But over time it is common for people to start mixing things up. Inheritance funds get deposited into joint accounts; properties get transferred into joint names…and all for good reason.

Unfortunately, tracing commingled property is expensive, and hard to prove. But, if you put it in writing at the beginning, you might be able to avoid this task, and save some money down the road.

Prenuptial agreements also help you to change the law. For example, right now in Florida, there has been an ongoing debate about alimony. When you go to court, a judge has to follow state law regarding alimony.

However, through prenuptial agreements you can modify Florida’s legal standards for awarding alimony, in addition to modifying what the current law says about the amount of support and the duration of the alimony period.

For second marriages, a prenup is an especially good idea. What some clients don’t realize is that going through a second, third, or fourth divorce can be more complicated than first-time divorces.

In multiple divorces, couples are older, and have less time to make up for losses. Also, couples are competing for dwindling resources. Child-support, alimony, and dividing up of the retirement accounts may still be pending, and there can be little left to divide in a second divorce.

Prenuptial agreements can be extremely important if you are thinking of marrying again, and they are not just for the ultra-rich. You can limit what’s in a prenup.

Some can simply state what assets each party has brought into the marriage, and what assets each party will take away if the marriage ends. Or, if there is a disparity in incomes, you can add to the contract how much the lower-income spouse will receive.

Also, if you have children from previous marriages, you can also provide some protection for an inheritance.

Second Marriages: The Do Over

The general view of a second wedding is that they’re a bit of a joke. Not a contemptible joke, more of a puzzled, “Why’s she getting married again? She must be one of those people who just enjoys getting married. Wait, they’re both divorced?

They’ll be at it again in a couple of years, to two completely different people. It’s probably an excuse to dress their children up in novelty costumes.

A hardcore of bystanders will infer from a previous marital breakdown that the person is flaky – for which see Germaine Greer’s not entirely disapproving comment about Meghan Markle: “I think she’ll bolt. She bolted before. She was out the door.”

Logically, it makes sense – people who don’t stick at things won’t stick at things – but statistically it doesn’t, as second marriages are more likely to last than first ones.

So in fact, there is nothing as deadly serious as a second marriage. The death-wish rubric which is somewhere between an anachronism and a metaphor in a first marriage is now completely literal: you will definitely be parted by death, because you definitely will not be parted any other way.

As a result, I observe the marriage of Prince Harry and Markle with a profound fellow feeling that I have never before had for a sleb-come-princess, and doubt I will have again.

You might presume that a second wedding is quite liberating, in that you can finally make authentic decisions and you don’t have to invite your relatives. In fact, the main liberation – and this might be more me than the Waleses – is that you don’t have any money.

We’re already getting married on a Wednesday afternoon because the council has a midweek special, in a dress I bought in a charity shop, and a suit he inherited from an uncle of eerily similar dimensions.

The Guardian article is here.

 

There’s No Divorce Emoji

Posted by Ron Kauffman on

Emojis and emoticons are popping up in divorce cases, and people are landing in hot water. My new article on emojis and legal ambiguity, which was just published in the Florida Bar Family Law Section Commentator, can help anyone faced with interpreting emojis avoid feeling ????.

Emojis ????

Originating in Japan in 1998, emojis are small digital images used to express an idea or an emotion in electronic communications.

Today, roughly 70 percent of the public uses some type of social media.  Social media has changed many of the ways in which we communicate. For one thing, social media has increased our use of emojis.

One report found more than 92 percent of people use emojis on social media. Emojis have spread to the business world, where nearly half of workers add emojis to professional communications, and companies use them to increase sales and brand awareness.

Emojis in Court ????‍⚖️

They can’t simply be overlooked by courts, because emojis and emoticons say a lot about the sender’s intent. Ignoring them would be like calling a witness to the stand and ignoring their facial expressions.

Emojis fail the ‘duck test’: if it looks like a duck, and quacks like a duck, then it is probably a duck. That’s because emoji meanings can be so puzzling, a “duck” emoji, may mean anything but a duck.

For example, a U.S. federal court recently held that a “Smiley” emoticon =) converted an email into a joke, the email meant the opposite of what it said, and a criminal defendant’s lawyer did not violate the Sixth Amendment by sending the prosecutor an email joking: “stipulate that my client is guilty. :)”

An Israeli court awarded damages based on emojis after a prospective tenant sent a landlord a text saying: “Good morning ???? we want the house???????? ????‍ ✌ ☄ ???? ???? just need to go over the details. . .” The landlord removed his ad, then the tenant disappeared. The court awarded the landlord 8,000 shekels.

Ambiguity: What does ???? Mean?

I’ve written about marital settlement agreements and prenuptial agreements before. There are unique issues with emojis, rendering them hard to interpret. For one thing, there’s no definitive source as to what emojis mean.

That unknown can make agreements in an email, a text or an actual marital contract, ambiguous. Marital agreements are interpreted like any other contract. Basic interpretation begins with the plain language of the contract, because the contract language is the best evidence of intent.

Courts are not supposed to rewrite terms if they are clear and unambiguous. Anyone seeking to show a court any evidence outside a fully integrated contract, must first establish that a contract is ambiguous.

A contract is ambiguous when its language is reasonably susceptible to more than one interpretation. That’s where emojis come in, they can be very ambiguous. But why?

Emojis are also small, making them hard to read. Interpreting an emoji can depend on what kind of device they appear in. For example, a 24-inch computer monitor displays thing differently than a 4-inch phone screen.

Emojis don’t always mean the same thing universally, so there can be many different meanings depending on which country you are in. For example:

????

The “Folded Hands” emoji symbolize “please” and “thank you” in Asia. However, in the U.S. it means: “I’m praying,” and frequently, “high-five”!

????

The “Pile of Poo” emoji is a pun on the Japanese word for excrement (unko), which starts with the same “oon” sound as the word for “luck” and is complimentary in Japan. But, in the U.S. the emoji is used to express contempt. Strangely, Canadians use the emoji the most.

Conclusion

You can’t understand an emoji’s meaning just by looking at one. People use emojis in ways that have nothing to do with the physical objects they represent, or even what typographers intended. There are regional, cultural and slang meanings to consider too. After all, emojis’ inherent ambiguity is one reason why they’re increasingly becoming evidence in court.

The Spring 2018 Family Law Commentator is here.

 

Thelma & Louise and Alimony

Posted by Ron Kauffman on

A star of movies and television, actress Geena Davis, has announced she is divorcing her husband, Reza Jarrahy. According to documents, her husband is seeking alimony from his wife, and has asked that a request for spousal support by Davis be denied. What is alimony?

Earth Girls are Easy

This is Geena Davis’ fourth marriage. The actress’ husband filed for divorce after nearly 17 years of marriage on Tuesday. According to court documents obtained, Jarrahy cited irreconcilable differences and stated Nov. 15, 2017, as their date of separation.

In the court documents, which were filed under the names Rob Doe vs. Veronica Doe, Jarrahy is asking for spousal support and joint legal and physical custody of their children.

He is also asking the judge to deny any request by Davis for spousal support.

Florida Alimony

I’ve written about alimony and alimony reform in Florida often. In every dissolution of marriage case, the court can grant alimony to either party – husband or wife.

There are several types of alimony in Florida: bridge-the-gap, rehabilitative, durational, or permanent alimony. The court can also award a combination of alimony types. Alimony awards are normally paid in periodic payments, but sometimes the payments of alimony can be in a lump sum or both lump sum and periodic payments.

In determining whether to award alimony or not, the court has to first make a determination as to whether a party, like either Davis or her husband, has an actual need for alimony, and whether the other party has the ability to pay alimony.

Once a court determines there is a need and ability to pay alimony, it has to decide the proper type and amount of alimony. In doing so, the court considers several factors, some of which can include:

  • The standard of living established during the marriage.
  • The duration of the marriage.
  • The age and the physical and emotional condition of each party.
  • The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
  • The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

A League of Her Own

Davis is not only an actress, but a film producer, writer, and former archer. She is known for her roles in The Fly, Beetlejuice, Thelma & Louise, A League of Their Own, and The Accidental Tourist, for which she won the 1988 Academy Award for Best Supporting Actress.

The People article is here.