Author: Ron Kauffman

New Divorce Expert Witness Rule

Posted by Ron Kauffman on

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

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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

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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.

 

Custody and Free Speech

Posted by Ron Kauffman on

Can a judge order you not to post photos of your child on Facebook or other social media? A case out of Oklahoma shows how child custody rulings can crash into your First Amendment rights.

Custody Speech

Oklahoma: Like the Play, Only No Singing

According to reports, Sabrina Stone gave her infant son up for adoption. Shortly before the child turned two, he tragically drowned in his new family’s (the Russells’) swimming pool.

According to the Russells, Stone threatened them and their other child and other family members; she came to the funeral home and wrote her name several times in the viewing book, listing herself as “bio mother”; and she posted allegedly “stolen pictures” of the son.

The Russells then got a restraining order forbidding Stone from contacting the Russells, but also providing that, Defendant shall not post any pictures of the minor child on social media, including Facebook.

Florida Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children in custody cases. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, there was a case a in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

The Second District Court of Appeals, which covers Tampa and Southwest Florida, reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children.

In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

Oklahoma: We’re OK you’re not.

The Oklahoma injunction covered any pictures, and when Stone posted a picture, she was arrested for violating the order, and prosecuted and convicted.

The arrest warrant was based on Stone’s posting “pictures of the deceased child on face book,” as well as “several post[s] and comments about the situation,” not on any allegations of threats, violence, or the like.

The free speech case is available at Reason here.

 

Hollaback Girls Mediate Custody

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Singer, Gwen Stefani and her ex-husband, Bush lead singer Gavin Rossdale, are trying to reduce the ‘misery’ of ‘people at war’ and mediate their child custody problems years after finalizing their divorce. But, how does a court resolve child custody disputes like this?

custody

The Chemicals Between Us

A source tells E! News the pair are “going to mediation” because of disagreements regarding their three son’s upbringing. They don’t agree on custody and the time the kids are spending with each of them.

Since Gavin recently finished his tour with Bush and will be home more often, he wants more time with their three sons. However, the source says, “Gwen believes that she provides a consistent living environment and that the kids should be with her the majority of the time.”

“They are older now and taking their school work and activities seriously. She thinks Gavin still very much lives a rock star lifestyle and it’s in the kid’s best interest to be with her.”

More importantly, the source says, “She wants to raise the kids a certain way and it’s very challenging because Gavin has different priorities.”

The Little Things of Florida Custody

I’ve written about child custody issues before. In 2008, Florida modified its custody laws to get rid of outdated and negative terminology about divorcing parents and their children to reduce animosity.

The law did that by creating new legal concepts such as “shared parental responsibility, “parenting plan”, and “time-sharing schedule.

Shared parental responsibility, is similar to joint physical and legal custody, and is a relationship in which both parents retain their full parental rights and responsibilities. Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their children.

In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child. Issues relating to children’s timesharing are major decisions affecting the welfare of children. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

For these parents, courts will want to know how long the children have lived in a stable, satisfactory environment, and the desirability of maintaining that continuity. Where the parents live is also very important, especially with school-age children.

Also, what are the home, school, and community records of the children, and which parent provides a consistent routine for the children, such as discipline, and daily schedules for homework, meals, and bedtime.

Everything Zen

Following their split in 2015, the boys have spent a majority of their time with Gwen in Los Angeles while Gavin has toured with Bush and completed a brief stint as a judge on The Voice U.K.. Gavin touched on this when he talked to The Sun’s Fabulousmagazine.

“It was weird because I had to go and make a home from scratch that could compare to the great one they already have. That was the challenge for me as a dad.”

Gwen has since found love with country singer Blake Shelton, who gets on very well with the boys. The couple has even taken vacations with the children together.

The E! News article is here.

 

Divorce Games

Posted by Ron Kauffman on

Unless you’re a total noob, got hit by a ‘bolt’, or simply have ‘no-skin’, you’ve probably heard about the wildly successful computer game “Fortnite.” Like ‘football widows’ of old though, spouses who are married to “Fortnite” addicts are increasingly filing for divorce

Divorce

Battle Royale

Fortnite: Battle Royale is a bright multiplayer shooter game and is now one of the biggest online games ever. How big? Many people tune in just to watch others play on streaming sites like Twitch and YouTube.

The daily mobile revenues of Fortnite has reached $2 million, and the game has generated more than $1 billion from in-app purchases alone. Fortnite has taken its creator, Epic Games, to a valuation worth up to $8 billion.

Interestingly, CNBC is reporting that at least 200 couples in the United Kingdom filed for divorce in 2018 citing addiction to online survival game “Fortnite” and other online games as one of the reasons for their parting of ways.

The Heals: Florida No Fault Divorce

I’ve written about the no-fault concept before. The official term for divorce in Florida is “dissolution of marriage”, and you don’t need to prove some kind of fault as grounds for divorce. Florida abolished fault as a ground for divorce.

In Florida, either spouse can file for the dissolution of marriage. You must prove that a marriage exists, one party has been a Florida resident for six months before filing the petition, and the marriage is irretrievably broken.

However, fault may be considered under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and determination of parental responsibility.

Storm Troopers

The 200 U.K. couples who cited “Fortnite” and other online games when they filed divorce petitions with Divorce Online still only represented a small fraction of the total number of divorce proceedings this year.

“These numbers equate to roughly 5% of the 4,665 petitions we have handled since the beginning of the year and as one of the largest filers of divorce petitions in the UK, is a pretty good indicator”

In June, the World Health Organization officially recognized “gaming disorder” as a mental health condition afflicting gamer who are lacking in control over their own gaming habits for periods of months at a time.

In these cases, the WHO says, there is “increasing priority given to gaming over other activities to the extent that gaming takes precedence over other interests and daily activities, and continuation or escalation of gaming despite the occurrence of negative consequences.”

Roughly one-third of “Fortnite” players average between six and 10 hours of playing the game per week. That’s about average for video games overall (6.5 hours per week, according to another survey), but more than 38 percent of respondents said that they play “Fortnite” more than 11 hours per week.

Of course, “Fortnite” isn’t only being blamed for disintegrating relationships. The game has also been blamed for anything from “extremely tired” students to violent behavior in children.

The CNBC article is here.

 

Alimony Home Run

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Major League Baseball’s Pete Rose said in court documents he’s in “poor health” as he attempts to finalize a divorce from his estranged wife, Carol Rose, so he can marry girlfriend Kiana Kim. Pete Rose is looking to score a home run by limiting his alimony exposure.

Alimony

Charging the Mound

Rose filed the divorce pleading because the noted the longtime Cincinnati Reds superstar, who’s now 77, is dealing with a myriad of physical issues.

“[Rose] is currently disabled and can barely walk or travel,” the filing read. “His health is deteriorating and [he] has a heart condition and [is] on blood thinners.”

The documents seem to be in relation to establishing his income as part of the divorce. The papers say he lost two jobs in 2017, Fox Sports and Hit King, so his yearly income has dropped by more than half.

Rose says he still makes $453,000 a year according to TMZ Sports but has “great debts” and major expenses including attorney’s fees.

Florida Alimony

I’ve written about alimony in Florida before. 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 someone like Rose’s wife 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.

In Pete Rose’s case, he’s going to be putting up evidence that his age and his physical and emotional condition should be given a lot of consideration by the court in determining alimony or the amount of alimony.

Double Play

The 17-time All-Star selection, three-time World Series champion and 1973 NL MVP is going for a double play. In addition to his physical condition, Rose added he’s lost around $550,000 in annual income over the past year, bringing his yearly earnings to $453,000.

Rose is attempting to block his wife from receiving spousal support or forcing him to cover legal fees related to the divorce, by proving his financial condition does not justify it.

The Cincinnati native was banned for life in 1989 for betting on baseball. His attempt to gain reinstatement, and create a potential Hall of Fame path, was denied by commissioner Rob Manfred in 2015.

Rose was enshrined in the Reds Hall of Fame in 2016.

The Bleacher Report article is here.

 

Winning Child Support Modification

Posted by Ron Kauffman on

If ‘money talks’, actor Charlie Sheen is talking a lot about how he can no longer afford child support after being “blacklisted” in Hollywood, according to court documents obtained by People and Us Weekly. What would the entertainer have to prove to get a child support modification in Florida?

child support modification

Defeat is not an option

The “Two and a Half Men” star, 52, filed requests to modify his child support payments to ex-wives Denise Richards and Brooke Mueller, the news sites report.

Sheen shares twin sons, 9, with Mueller, to whom he was married between 2008 and 2011; and daughters 14, 13, with Richards. That marriage lasted from 2002 to 2006.

Florida Child Support

I’ve written about child support issues before. For famous actors such as Sheen, and other high-income parents, the child support guidelines can award support far exceeding any child’s needs.

Because of this problem, the guidelines expressly provide the amounts can be adjusted upward or downward. Florida allows deviations by up to 5 percent after considering relevant factors. And the statute authorizes deviations by more than 5 percent, pursuant to a list of enumerated factors.

Not on Wall Street Anymore

Sheen’s case is ironic: the famous and flamboyant actor – surrounded by “goddesses”, infused with “tiger blood”, and bragging about “winning”, claims he can’t afford his child support payments.

If Sheen is asking for a modification of his child support, he would have to prove a substantial change in circumstances, the change was not contemplated at the time of final judgment, and the change is sufficient, material, involuntary, and permanent in nature.

Courts will also want to know whether Sheen is voluntarily reducing his income by failing to use enough effort to find work commensurate with his acting abilities.

There’s also the added problem of his flaunting his wealth. Media reports on Sheen have always shown him flaunting an extravagant hedonistic lifestyle.

“I’m bi-winning. I win here, I win there!”

The USA Today documents also reportedly reveal Sheen’s reasoning behind his “dire financial crisis” with less than $10 million to his name.

“I have been unable to find steady work, and have been blacklisted from many aspects of the entertainment industry,” he alleges in the filings. “All of this has resulted in a significant reduction in my earnings.”

In addition to child support payments, the documents show Sheen is “past due” on payments to his home mortgage and pool and gardening services.

The USA Today article is here.

 

Heartbreak Postnuptial Agreement

Posted by Ron Kauffman on

Lisa Marie Presley, daughter of rock legend Elvis Presley, is as happy as a ‘hound dog’. A judge in her divorce from Michael Lockwood recently ruled that her postnuptial agreement waiving alimony is valid.

postnuptial agreement

Are You Lonesome Tonight?

Although she is single, the daughter of music legend Elvis Presley is not without her riches. The family court ruling means she won’t have to pay her estranged husband spousal support, according to court papers obtained by TheWrap.

In an order handed down Aug. 17, a judge found that a 2007 post-nuptial agreement signed by Presley and Lockwood in which they waived spousal support in the event of a split, is valid.

The Wonder of Postnuptial Agreements

I’ve written about various marital agreements before. Postnups are written agreements signed after a couple gets married, or have entered a civil union, to settle the couple’s affairs and assets in the event of a separation or divorce.

Postnuptial agreements are enforceable in divorce cases. But, there are two separate grounds by which either spouse may challenge such an agreement and have it vacated or even modified.

First, a spouse may set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

The second ground to vacate a settlement agreement contains multiple elements. Initially, the challenging spouse must establish that the agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties.

To establish that an agreement is unreasonable, the challenging spouse must present evidence of the parties’ relative situations, including their respective ages, health, education, and financial status.

With this basic information, a family court judge may determine that the agreement, on its face, does not adequately provide for the challenging spouse and, consequently, is unreasonable.

In making this determination, the trial judge has to find that the agreement is “disproportionate to the means” of the defending spouse. This usually requires some evidence to establish a defending spouse’s financial means. Additional evidence may also be necessary.

Keep in mind that this standard for avoiding or modifying the agreement happens when a couple is not in the midst of litigation against each other. This does not govern marital settlement agreements entered into during the course of divorce litigation.

Return to Sender

According to the papers, the agreement was arrived at the year after Presley and Lockwood married, and before the couple’s twins were born.

The order purportedly said that the post-nuptial agreement stated that:

“in the event of a judgment of nullity, legal separation or dissolution of marriage, neither party shall be obligated to pay spousal support to the other.”

The court added that Lockwood didn’t read this because it didn’t interest him, but he signed documents containing that language, twice, initialing every page on the July 2007 copy, and his attorney “signed the November 2007 version.”

Viva las agreements. The Wrap article is here.

 

Divorce and Student Loans

Posted by Ron Kauffman on

According to a recent survey, borrowers with student loans have been found to take on more debt, are more likely to divorce, and that just holding student loans can be a contributing factor in some divorces.

divorce student loans

Recent Study

Money problems are usually an indicator of divorce. Since student debt can constitute a major financial strain, it can impact a marriage. This new survey underscores the importance of minimizing your debt.

The survey showed that:

  • The average Class of 2017 graduate walked away with a diploma and $39,400 in debt; and
  • The 2017 graduate’s debt represents a 6% increase from the previous year; and
  • Americans owe $1.48 trillion in loans.

It’s clearly taking a toll – not just on finances – but on marriages. This new survey reveals that these loans could increase your likelihood of getting divorced. According to a new study, 58% of divorcees with student loans took on debt to help pay for attorney fees and other related costs during their divorce proceedings. Compare that with 48% percent of all divorcees who borrowed money to pay for a divorce.

Couples with student loan debt are more likely to delay divorce because of cost. More than a third of respondents with student loans (35%) delayed their divorce because they couldn’t afford it, compared with 24% of couples without student debt.

Florida Divorce and Student Loans

I’ve written about equitable distribution and divorce debt before. While the initial premise behind an equitable distribution of marital assets and liabilities is equal distribution, if there is a proper justification, a family court judge may make an unequal distribution.

As a general proposition, student loans incurred during the marriage are marital debts. And, unless there is a proper justification supporting an unequal distribution of student loans, they must be equitably distributed between the parties.

Sometimes people argue that a spouse won’t receive any benefit from the other spouse’s law school or medical school degree. However, the benefit of an education is not considered a factor the court should consider when allocating a marital debt for student loans.

Survey Says . . .

The survey also had some other sobering results:

  • 13% of respondents who had student loan debt going into their marriage claim that it eventually led to the end of their marriage.
  • Almost 7 in 10 divorcees have changed how they manage their money after their divorce.
  • 36% of borrowers with student loan report they lied to a partner about money.
  • Roughly one third respondents claimed a decreased sex drive because of their student loans.

Large debts and monthly payments can make it difficult to buy a home, save for retirement, or make it from paycheck to paycheck. Worse still, you’re probably stuck with your student loan whether you can afford it or not.

The Survey is here.