New Florida Evidence Rule 702 Can Impact Your Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, July 3, 2013.

Divorce law in Florida is becoming so complicated, that the use of expert witnesses – like accountants, vocational experts, and psychologists – are becoming very common to determine values, need and ability and parenting issues.

The Florida rule for experts is Rule 702 of the evidence code, and it was just amended. In fact, it is so new that it just became effective on July 1st. There are some interesting things about the new rule.

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

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

3. The new rule forces Florida courts to abandon the Frye test for admitting expert testimony, a test we’ve used for around 70 years.

4. The new rule requires Floirda courts to apply the standard developed by the U.S. Supreme Court in Daubert; something the Florida Supreme Court has said it doesn’t want to do.

5. The Frye test was a very lenient test, especially as applied here in Florida. In Florida, Frye allowed in all expert testimony – even some “junk science” opinions – as long as they were generally accepted standards.

6. The new (for Florida) Daubert rules, require judges to act as gatekeepers, and focus on an experts qualifications, the relevance of the testimony and the reliability of the testimony using a multi-factor test.

7. The rule change will require state judges to become familiar with the new evidentiary test, and even brush up on the scientific method.

8. For family lawyers, the Daubert test offers an opportunity to challenge the qualifications, relevancy and reliability of experts which we never had before.

9. The change will also force expert witnesses to stay on top of their professional literature, and be able to defend their choice of methods, tests or evaluation techniques.

The Florida Legislature seems to be on a mission to re-write family law, trying to pass alimony reform, change equitable distribution, and modify Rules 702 and 704. Big changes have occurred, and clients need to discuss with their family attorneys about any new issues and strategies to consider.

Gay Marriage after DOMA

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On behalf of Ronald H. Kauffman, P.A. posted in Marriage on Monday, July 1, 2013.

In case you didn’t hear the news, the Supreme Court last week ruled that married same-sex couples were entitled to the same federal benefits as same-sex couples and, by declining to decide a case from California, effectively allowed same-sex marriages there.

The rulings leave in place laws banning same-sex marriage around the nation, and the court did not say there was a constitutional right to same-sex marriage.

So, the effects are probably limited to couples married in the 12 states (and California) that recognize gay marriage. But the number of states recognizing gay marriage is likely to grow.

The majority opinion did something unusual, it stated that laws based on “animus” against gays and lesbians are unconstitutional:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. …The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.

This is a different analysis when the Supreme Court strikes down discriminatory laws. Specifically, the Court did not recognize “homosexual relations” as a “fundamental right,” or homosexuals as a suspect class. If the Supreme Court had done that, the Windsor case would have been a “fifty-state solution”, mandating same-sex marriage in every state. But it didn’t.

In Windsor however, the Court used state marriage laws to identify an individual’s liberty interest that justifies subjecting a federal law to heightened scrutiny. This is not how the doctrine has been done in the past.

Because of the Court’s striking down DOMA this way, states are free to define marriage as they wish – subject to Equal Protection and Due Process clause restraints – and the fight over “gay marriage” will continue in the states for years, as other litigation winds its way back to the Court.

You can read more about the two gay marriage rulings in the New York Times here.

Unseen Problems with DOMA

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, June 24, 2013.

Because many people are familiar with divorce, either through their own divorce or living through their friend’s divorce, it can be a prism to understanding legal controversies.

I was involved in a case on behalf of a client who was in a 9 year relationship, and this client has a 2 year old. There is a house and a rental apartment, and two 401(k)s to distribute. We are also going back and forth about the amount of child support and alimony to be paid.

In other words, this is a typical divorce. Except for one thing, both of the parties are women. Under the federal Defense of Marriage Act (otherwise known as DOMA), the law we apply in every other divorce doesn’t apply to this relationship. This form of discrimination can lead to unfairness which directly impacts your bank account.

In a typical divorce, one party might have to pay alimony to the other. Under our tax code, alimony when paid pursuant to a court order or written agreement, is tax deductible to the paying spouse, and is included in the taxable income of the payee spouse.

The tax-deductibility of alimony allows divorce lawyers to use the tax deductibility in ways to maximize the dollars available to everyone. Sometimes the payor spouse may actually want to pay more alimony because the overall payment for both child support and alimony could be less after you tax effect the payment.

However, under DOMA any support payment paid cannot be construed as alimony in Florida, and would not be deductible under our Federal tax code, because the couple is homosexual. Under DOMA certain tax advantages available to every heterosexual married couple are not available to homosexual couples by law.

Many people have different views about same-sex marriage, but there are a few far-reaching effects of DOMA that many people may not be aware of. Sometimes, putting it into perspective of a divorce, which many people are familiar with, can give people a better understanding why people oppose DOMA.

In the next week or so, the U.S. Supreme Court will announce its decision in the federal DOMA case. The name of the case is United States v. Windsor, and can be followed here.

Reducing the Stress of Your Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, June 17, 2013.

Divorce is not a sprint, it’s an endurance race. Sadly, divorce is also one of the most painful you may have to go through. Even couples who are amicably divorcing suffer through major divorce-related stressors.

Believe it or not, dealing with stress can help be the difference between resolving the divorce successfully or not. I’ve seen clients do some of the most harmful and self-destructive things to themselves and their case solely because of the stress of the divorce.

So, how do you overcome stress? Recently, Huffington Post asked some of their readers on Facebook how to keep calm during the most burdensome days of their divorces.

“From repeating simple mantras to finding solace in their favorite Pandora station, click through the slides below for some of our favorite answers, then head to the comments and tell us what helped you de-stress during your divorce.”

Some of the best suggestions I read:

  • Exercise: “A 10-15 mile bicycle ride (and boy was I fit!)”
  • Being Proactive: “planning my future”
  • Music: “Pandora.com and a long walk”
  • Self-improvement: “Massage therapy school”
  • Entertainment: “classic movies”
  • Friendship: “My best friend”
  • Family: “My daughter”
  • Staying Active: Painting

There are many stressful situations in life. Finding your stress relief can help you deal with stress ad hopefully resolve problems. Sometimes it may not seem hard, but it isn’t too difficult to find pleasure in this world. Even simple things such as chatting with a friend, watching a good movie, or going for a long walk or run can ease the burden of splitting up.

Five More Ways to Lose Your Divorce

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, June 12, 2013.

Anyone can tell you how to win your divorce. Few people ever tell you what not to do . . . until it’s too late. This could leave you wishing someone had warned you beforehand. So, if you want to learn 5 MORE ways to lose a divorce, pay attention.

6. Hire that mean lawyer you heard about

Run-of-the-mill divorces are boring. But everyone loves a good fight! Retaining the most litigious attorney in town will ensure that you will spend a lot of time contesting even the smallest and insignificant issues, and alot of money too.

Better still, once you’ve taken the gloves off, you’re guaranteed to get an equally aggressive response. Judges love it. What would you rather do, cheer on a couple of fighting lawyers, or deal with some dull legal issue?

7. Represent yourself

There is a quaint saying out there that: “the person who represents themself has a fool for a client.” Lawyers are for sissies and celebrities. I’ll let you in on a little secret: if you can divide by 2 and read, you can handle your own divorce. It’s really that easy.

8. Lie to your lawyer

There’s another old saying that: “in the middle of every client is a lie.” We expect it. And, lying to your attorney has two big advantages:

First, lying to your attorney will surprise your attorney in court, and we lawyers love to be surprised in court.

But there is another advantage: It tells your lawyer to watch out because you’re the type of client who will lie about anything. This will cause your attorney to drop your case as soon as possible, leaving your case dead in the water.

9. Lie to the judge

Let’s face it; if you want to lose, there’s really no substitute for lying to the guy or gal deciding your case. If you sprinkle a few lies in your testimony, pretty soon the judge will catch some, and start questioning everything you’ve said.

This is exactly what you want: to have the judge doubt everything about your case. Not only will you lose, you could win a free night’s stay at the Turner Guilford Knight hotel.

10. Bring the kids into it

Unfortunately, children are not parties to a divorce. That’s a shame, because kids love parties. In fact, the “Rules” require a court order to even bring your children to court. And we all know how much kids hate to be kept out of things.

So, bring the kids to court, let them read the court papers, and be sure to tell them what the other parent said about them. Involving the kids tells the judge that you will probably violate the judge’s order.

Play your cards right, and you can lose your case before you’ve uttered the first word.

Top Reasons to Have a Prenuptial Agreement

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On behalf of Ronald H. Kauffman, P.A. posted in Agreements on Monday, June 3, 2013.

Property division are important for couples planning to marry. Many people believe prenuptial agreements are only for the rich and famous. However, prenuptial agreements help all couples. Here are a few reasons why:

Keeps Your Non-Marital Property Non-Marital. The property you brought into the marriage is yours. 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 can avoid this task and save some money down the road.

You Can Change the Law. 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 an agreement 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.

Avoid Expensive Divorces. Let’s face it, divorce can be expensive, and the cases don’t end quickly. A prenuptial agreement can simplify things by resolving issues ahead of time, way before the divorce is even filed. Once you have entered an agreement spelling out what happens in the event of a divorce, the case becomes a lot more cheaper, simpler and faster to resolve.

Protects Your Children’s Inheritance. Prenuptial agreements protect property from falling into the hands of the new spouse, often seen by children from earlier marriages as a “gold digger.” An agreement helps assure your children that any inheritance is protected, and they don’t need to resent the new spouse.

It is important to be aware of all of the consequences of marriage, and do what planning you can to avoid complications and costs in advance

Divorce to Save Taxes? The Marriage Penalty Tax

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, May 31, 2013.

Being married comes with joys, sacrifices, tax penalties and . . . wait, tax penalties?

The marriage penalty is the situation where a married couple pays higher income taxes than they would have paid if they were un-married and filed individual tax returns. Should you divorce to avoid this penalty?

The new American Taxpayer Relief Act of 2012 sort of reduced the marriage penalty by making permanent the Bush-era expanded standard deduction and the expanded 15% bracket for joint filers.

But for high income earners, the new law raises taxes on couples making more than $450,000 and individuals making more than $400,000. As it turns out, some couples are discovering they could save over $25,000 a year if they divorced.

Think about that for a second. If a couple could save over $25,000 a year on their taxes, they could take a Celebrity Cruise to Italy, ski Deer Valley, put a little cash away towards Penn, and still have some mad money to spend just by divorcing and turning their marriage into a long term relationship.

There are a lot of risks though, known and unknown. I would encourage anyone – before they even thought about speaking to their spouses – to think about a few things:

  • The impact on your relationship. I don’t know of a good way to ask for a divorce: “Honey, I want a divorce. No, no wait, come back, it’s to save big bucks . . . really!”
  • There is no fake divorce. Once the court signs the final judgment of divorce, you are divorced. Once you’re divorced, your Ex may find someone who thinks marriage is more valuable than 5% adjusted gross income.
  • IRS rules regarding your filing status have something to say. IRS publication 504 warns that if you obtain a divorce just to file as unmarried with the intent to remarry the next tax year, you have to file as married individuals.
  • State law. All no-fault states have minimum requirements for getting a divorce. Florida, for instance, requires at a minimum that your marriage be irretrievably broken before you can get a divorce.

In addition, there are estate planning issues, retirement and social security complications, and many other issues besides the mere tax savings.

Most people who marry do so forever, and with the sincere intention of honoring their vows. Is the money worth it?

A Presumption of Equal Timesharing: Pros and Cons

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On behalf of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Wednesday, May 29, 2013.

Florida divorce has tons of legal presumptions. This month Governor Scott vetoed a Senate bill that created another one: a presumption of equal timesharing.

Fifty-fifty timesharing between parents sounds like a great idea, and there are strong arguments for and against a presumption of equal timesharing. Here are some of the pros and cons:

Pro

  • Each year, cases are tied up in expensive litigation to establish a right to timesharing that, had the parents not been divorced, they would automatically have.
  • If we presume children should spend equal time with both parents, it would encourage Florida’s existing policy of frequent contact with both parents after divorce.
  • Equal timesharing reduces the amount of custody litigation that takes place in Florida, sparing children from being dragged into the middle of bitter custody battles.
  • Equal timesharing puts the burden on the parent opposing equal timesharing, changing the dynamics of custody litigation.
  • A presumption of equal timesharing could discourage people from engaging in custody litigation that serves no purpose other than to cause unnecessary expense, and significant unnecessary stress on the other parent.
  • Equal timesharing is consistent with Florida’s existing no-fault concept.

Con

  • Equal timesharing is unworkable in many families;
  • A presumption of equal time can never be implemented;
  • The presumption of equal timesharing creates a uniform rule where the flexibility of ‘the best interest of the child’ is needed.
  • An equal timesharing presumption won’t lead to an increase in the number of equal timesharing schedules;
  • Equal timesharing may force some children into arrangements that is not in their best interests, and focuses the court’s attention on the quantity of parenting time, not the quality of parenting;
  • A presumption in favor of equal time might replace the best interest of the child test in decision-making.

So, will equal timesharing save children from custody battles, and lead to more time with both parents? Or is the presumption of equal timesharing just distracting courts from focusing on the quality of parenting and forcing them to only consider the quantity of parenting?

The text of Senate bill 718 can be read here.

Sex, Marriage and Taxes in court

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On behalf of Ronald H. Kauffman, P.A. posted in Marriage on Thursday, May 23, 2013.

Alright, this post is not as exciting as the title suggests. But, in March our highest court did hear arguments in the Defense of Marriage Act (DOMA) case, and that case has an interesting twist which could impact other divorce cases.

Edith Windsor and Thea Spyer were a lesbian couple in New York, and married in Toronto, Canada where it was legal. Two years later, Spyer died. While New York recognizes same-sex marriages, under DOMA the federal government can’t.

As a result, Windsor had to pay more than $363,000 in estate taxes. Had their marriage been treated the same as an opposite-sex marriage, she would not have had to pay any taxes. Windsor sued the government to get her money back.

A trial judge held part of DOMA violated the equal protection clause of the Fifth Amendment, and that Windsor should be repaid her taxes with interest. The court of appeals upheld the trial judge, and the government petitioned the Supreme Court to grant certiorari.

Then the train went off the tracks. President Obama ordered the Justice Department to stop defending DOMA in federal court. In response, Republicans in the House of Representatives ordered their own Bipartisan Legal Advisory Group (known as BLAG) to defend the statute.

BLAG’s ability to argue the case is a problem. If the parties agree the statute is unconstitutional, how can someone come in and take over the case. Is that really a “case or controversy” giving jurisdiction? This can happen in other family law cases when grandparents, guardians ad litem, attorneys ad litem and government agencies get involved.

So, the three big issues before the U.S. Supreme Court are whether:

(1) DOMA violates the 5th Amendment’s guarantee of equal protection as applied to a legally married same-sex person;

(2) Obama’s agreement that DOMA is unconstitutional deprives the U.S. Supreme Court of jurisdiction to decide this case; and

(3) BLAG can continue with the case after the Justice Department drops it.

You can follow the case here.

What is a Florida No Fault Divorce?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, May 20, 2013.

Florida abolished fault as grounds for filing a divorce. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” But is no fault divorce the reason the United States has a high divorce rate? Many people think so, and want to return to the old “fault” system to promote families.

A new bill in Iowa, Iowa House File 338, would require one of five conditions for a divorce to proceed in a marriage involving children: adultery, physical or sexual abuse, imprisonment, if one spouse is missing more than a year or if the couple has lived apart for more than two years.

The bill’s author, Rep. Ted Gassman, says he will continue to push for banning no-fault divorce if minor children are involved, saying:

This basically is an attempt on my part to keep fathers in the home. I sincerely believe that the family is the foundation of this nation and this nation will go the direction of our families. If our families break up, so will this nation.

There’s a 16-year old girl in this whole mix now. Guess what? What are the possibilities of her being more promiscuous? What are the possibilities of all these other things surrounding her life that a 16-year old girl, with hormones raging, can get herself into?

Despite the attack no fault-divorce laws are under, no fault 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, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over, or throw mud at each other and prove wrongdoing like adultery or abuse.

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. We will have to see if Florida, like Iowa, will introduce a bill to eliminate “no-faul” divorces.