Month: October 2018

Upcoming Speaking Engagement

I will be speaking at the Family Court Services, Lunch & Learn discussion series in Miami on Wednesday, November 14th. I will be discussing how to keep calm and survive a Florida licensing board, Florida Bar or Florida Judicial Qualifications Commission complaint.


Let’s face it, when your receive a complaint from your licensing board, the Florida Bar or the Judicial Qualifications Commission, it’s scary.

Panic may set in. Facing a formal complaint can be a daunting experience and may be a “scarlet letter” on your career. When you work in the arena of family law, you need to be especially prepared for the possibility of receiving a complaint.

Don’t be spooked. Through this presentation, mental health professionals, attorneys, and the judiciary will become familiar with the process of a licensing board, Florida Bar and JQC complaint, from submission through possible hearing outcomes.

Dr. Netta Shaked, Judge Jason Dimitris, and Ronald Kauffman, Esq. will outline how complaints may impact you, both professionally and personally. In addition, we will highlight ways to cope with and overcome the results of the complaint process, on a professional and personal level. Lastly, we will identify some red flags and tips for avoiding a complaint altogether.

Register here.


Divorce Fraud: Student Loans

This is kind of scary for Halloween. Market Watch has an interesting article about a husband who paid off his wife’s student loans during their very short marriage, and his wife thanked him by filing for divorce after a mere 24 months of marriage. Was the husband the victim of divorce fraud, and tricked into paying off his wife’s student loans?

divorce fraud

Tricked or Treated?

As the Market Watch article reports: “[b]efore I married my wife two years ago, she had huge amounts of debt to her name, including large amounts of student loans. After we married, we diligently almost paid everything off, helped by my salary being three times that of my wife.”

She recently asked for a divorce, saying she was taking the house and my retirement. My question is: Does the fact we paid off her debts she held before get spread evenly? Had I not paid all of her debts our net worth would be near the same with a better outcome for me.

We’ve only been married a few years, and frankly I can’t help feeling taken advantage of. The only advice I can find discusses whose responsibility the student loans would be, but now it just seems that she got me to pay all of her debts, and got some new stuff, while I threw away years of my life.

Please tell me there’s hope.

Florida Divorce and Student Loans

Is there hope for Market Watch’s husband?

I’ve written about student loans in the past. Florida is an equitable distribution state. The initial premise behind an equitable distribution of marital assets and liabilities – such as student loans – is equal distribution.

However, when proper justification is shown, a family court judge may make an unequal distribution.  The burden is difficult. A distribution of marital debts, whether equal or unequal, must be supported by factual findings and based on substantial competent evidence. The rationale for the distribution also has to be disclosed by the judge.

As a general proposition, student loan debt incurred during the marriage is a marital liability. So, in the absence of findings supporting the unequal distribution of a student loan debt, marital student loan debts must be equitably distributed between the parties.

The fact that the husband will not receive any benefit from his ex-wife’s education because of the divorce is not a factor to be considered when allocating a marital debt for student loans.

In sum, absent some other justification for an unequal distribution, controlling case law in Florida will usually prohibit a family court judge from awarding student loan debt incurred during the marriage solely to one party or the other.

Out of Luck?

As Market Watch reports, divorce after two years is a tough break, “especially given all the help you gave your wife with her student debt. That’s a particularly unusual kind of debt, in that it’s virtually impossible to discharge.”

The article concludes by noting that “[t]he best thing you have going for you right now is your honest intentions going into this marriage and your (good) behavior throughout. Having examined all the details, the judge may not be able to say the same thing about your wife.

The Market Watch article is here.


International Custody and Abductions

Can you go to jail for helping parents abduct their own children? A few people in Australia face criminal charges for violation of international custody orders and could go to jail on child abduction charges.

International Custody

Who Can it be Now?

A vigilante group that allegedly financed and assisted women in Australia to abduct their own children and keep them hidden in violation of international custody orders issued by family courts in Australia has been caught by police.

Police charge the group with using many tactics, including: dyeing their hair, changing their names and altering their dates of birth

Police allege that for the past decade the group, headed by a doctor, has operated a sophisticated syndicate of “like-minded people”, who used clandestine methods to abduct and move children around the country.

Hague International Child Abduction

I’ve written on international custody issues, and specifically the Hague treaty on International Child Abduction, and will be speaking on the subject at the prestigious AAML Florida Bar Certification Review Course in Orlando in January.

The Hague Convention on the Civil Aspects of International Child Abduction provides remedies for a “left-behind” parent. The Convention seeks to deter abducting parents by eliminating their primary motivation for doing so: to “deprive the abduction parent’s actions of any practical or juridical consequences.”

The removal or the retention of a child is to be considered wrongful where:

  • a child is removed from his or her country of habitual residence and the removal is in breach of rights of custody under the law of the State in which the child was habitually resident immediately before the removal or retention; and
  • at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

So, when a child under 16 who was habitually residing in one signatory country is wrongfully removed to, or retained in, another signatory country, the Hague Convention provides that the other country: “order the return of the child forthwith” and “shall not decide on the merits of rights of custody.”

Throw a few on the barbie

This is a very big international custody and child abduction case. Four people have been charged over organizing and financing an abduction syndicate which allegedly assisted in the parental abduction of children against international custody orders. Police have also identified a yacht, purchased and re-fitted for $140,000, used to transport abducted children to New Zealand or South Africa.

During the two-year investigation, 10 missing children were safely located in the custody of a parent who had abducted them. Five of those were reportedly linked to the syndicate.

It is alleged the group did not go by any name, but operated on a “word-of-mouth” basis, using a variety of encrypted phone applications to communicate and to

“The actions of this group do not protect children. What it does is potentially endanger the safety and wellbeing of them.”

The Sydney Morning Herald article is here.


New Divorce Expert Witness Rule

Few people know that in 2013 Florida passed a law changing how divorce expert witnesses could testify in family law cases. Many people warned that the new law may be unconstitutional because of the way it passed, but waited for the Florida Supreme Court to decide. This week it did.

Divorce Expert

The Frye Pan

People rely on all sorts of expert witnesses in divorce and family law cases, maybe more than most areas of law. Routinely, people will come to trial with accountants, psychologists, and other experts in tow.

Since 1923 courts have relied on the Frye Rule, which states that expert opinion based on a scientific technique is only admissible where the technique is generally accepted as reliable in the scientific community.

In 1993, the U.S. Supreme Court adopted a new standard which requires trial judges to screen expert testimony for relevance and reliability. The “Daubert test” developed in three product liabilities cases. The plaintiffs tried to introduce expert testimony to prove products caused their damages. The U.S. Supreme Court ultimately tightened the rules for admitting expert testimony

Too Many Cooks in the Kitchen

In 2013, the Florida Legislature amended the Florida Evidence Code to start following the U.S. Supreme Court’s Daubert standard for the admission of expert testimony and the basis for an expert’s opinion.

I’ve written about the Constitutional problem with the way the legislature created the new law. When the legislature passes a law encroaching on courtroom practice and procedure, the laws are unconstitutional. However, the Legislature can enact substantive laws.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.” Given that the Evidence Code contains both substantive and procedural provisions, there is a question whether the Legislature violated the separation of powers doctrine.

The Florida Evidence Code contains both substantive and procedural provisions, so there was a suspicion that the Legislature violated the separation of powers doctrine when it amended the code this way. At the time however, that issue has not been accepted by the Florida Supreme Court to date. The latest decision corrected that.

Frying Daubert

This week, the Florida Supreme Court weighed in on the new evidence law and found it unconstitutional. This latest ruling turns back the clock on the Florida Evidence Code.

First, the Supreme Court said that the 2013 amendment was not substantive law because it didn’t create, define, or regulate a right, and solely regulated the action of litigants in court proceedings.

Second, the evidence code amendment conflicted with a rule of this Court, namely, the Frye rule as modified in Florida cases, which the Legislature can’t repeal by simple majority.

Finally, the Florida Supreme Court said it was concerned that the evidence code changes limited access to courts by imposing an additional burden on the courts:

With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.

The Supreme Court opinion is available here.


Pet custody is going to California

Pet custody is closer to becoming a reality after California passed a law making pets community property but letting judges decide who gets to keep them. What is Florida’s law on pet custody?

Pet Custody

California Dreaming

All the leaves are brown, and the sky may be grey, but California just began a new era for how pets are treated after a divorce. A new law passed on Thursday makes sure pets are seen as more than just property when it comes time to split up assets in a divorce.

According to the San Diego Tribune, Assembly Bill 2274 will ensure care of a pet is taken into consideration both while divorce proceedings are underway and after they’re made official.

With the new law, a person can petition the court for sole or joint ownership based on care of the pet, which is defined to include “prevention of acts of harm or cruelty” and “the provision of food, water, veterinary care and safe and protected shelter.”

The law also adds a new ability for a person in the divorce to request an order that would require one person in the marriage to care for the pet prior to the divorce becoming final.

Florida Pet Custody

I’ve written on the development of pet custody cases and statutes before. Pet custody cases are becoming more and more prevalent around the country. That is because state lawmakers and advocacy groups are promoting the notion that the legal system should act in the best interests of animals.

Pets are becoming a recognized part of the family. About 15 years ago, states began to allow people to leave their estates to care for their pets. Recently, courts have gone so far as to award shared custody, visitation and even alimony payments to pet owners.

Florida doesn’t have pet custody or visitation laws. Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children.

Accordingly, Florida courts have not or cannot undertake the same responsibility as to animals.

I Remember California

The law in California used to be like Florida, viewing pets as property to be argued over in the separation of assets.

“There is nothing in statute directing judges to treat a pet differently from any other type of property we own, I know that owners view their pets as more than just property. They are part of our family, and their care needs to be a consideration during divorce proceedings.”

Now, rather than seen as a valued property item or dollar amount to be divided, the well-being of the pet will get more consideration.

California Calling

Supporters of the law hope the new law will lead to fewer homeless animals. But not everyone is happy. The Association of Certified Family Law Specialists opposed it, saying divorces already face significant delays and issues of contention in court, especially when it comes to children.

“By adding in sole or joint ownership of pet animals as a determination courts can make in divorce proceedings, the already backlogged family court proceedings may become even more delayed as judges consider the myriad factors that come into play when making decisions about community property division and child custody.”

The San Diego Tribune article is here.


Divorce Privacy

Like any optimist, U.S. Rep. Keith Ellison is hoping divorce privacy laws will keep his personal history from impacting his campaign to become Minnesota attorney general. That may be difficult with the Star Tribune suing to unseal his divorce records.

Divorce Privacy

Minnesota Allegations

Ellison and his ex-wife, Kim Ellison, divorced in 2012. The related records have been sealed, so the public cannot access the information. The efforts to unseal the divorce records follow allegations by Ellison’s ex-girlfriend, Karen Monahan, that Ellison domestically abused her in 2016.

Ms. Monahan, a Sierra Club organizer, reportedly said she suffered “emotional and physical abuse” during their long-term relationship, including an incident in which she said Mr. Ellison dragged her from a bed and screamed obscenities at her.

The Star Tribune argued that, given the public interest around that situation and Kim Ellison’s public support of her ex-husband, the divorce records are a matter of concern to voters.

Divorce records are typically public, but judges will often agree to seal them if both parties to the case agree and no one else objects.

Florida Divorce Privacy

I’ve written on divorce privacy issues before. Divorce privacy is an issue that comes up a lot. Divorces in court are public events, and the filed records of court proceedings are public records available for public examination.

Both the public and the media can challenge any closure order by a divorce court. The closure of court proceedings or records should only really occur  when it’s necessary to comply with established public policy, to protect trade secrets; or to protect children in a divorce among other reasons.

Florida also has new rules protecting sensitive data from public view. This includes protecting Social Security, Bank Account, Debit, and Credit Card Numbers because if those numbers are included in a document, they may become part of the public record.

If information is absolutely required, there is a rule with procedures for sealing and unsealing of court records. Also, the Clerk of Court has the authority to redact or make confidential only specific information.

If sensitive information has already been filed in Court Records, you must complete and submit a “Notice of Confidential Information Within Court Filing” in order to remove or seal it.

Close Race

The Star Tribune argued that, given the public interest around that situation and Kim Ellison’s public support of her ex-husband, the divorce records are a matter of concern to voters.

Divorce records are typically public in Minnesota, but judges will often agree to seal them if both parties to the case agree and no one else objects. The Ellison campaign released a statement from Kim Ellison on behalf of both her and Keith Ellison.

“Our divorce simply isn’t the public’s business, and therefore, when we separated, we jointly asked the court to seal the file. Now, one month before a closely contested election for Minnesota Attorney General, a conservative group wants to probe our divorce file in search of something to use against Keith in this race. I am disappointed that the Star Tribune would choose to file this motion.”

Polls show this is a very tight attorney general race. A poll released September 16 shows Republican challenger Doug Wardlow and Ellison with 41 percentage points each. The Star Tribune/Minnesota Poll released September 19 shows Ellison with a five-point lead. That is still within the margin of error.

The Star Tribune article is here.