Category: Divorce

Is Florida’s New Expert Witness Rule In Jeopardy?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, December 14, 2015.

Few people know that Florida passed a new law about expert witnesses. There are a couple of Florida cases, it impacts every divorce trial, and we’re all waiting for the Florida Supreme Court to weigh in.

I recently published an article giving a little history about the new Florida statute, along with a review on the three big U.S. Supreme Court cases where the new rule was forged. In the article, I wrote about the possible Constitutional problems with the way the law was passed.

Generally, legislation which encroaches on the Supreme Court’s power to regulate courtroom practice and procedure is unconstitutional, but the Legislature can enact substantive law.

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.

However, the Constitutional issue will not be known until a case is presented to the Supreme Court. However, the Florida Bar Board of Governors last week voted to reject the new rule, and keep the old rule announced in Frye.

The Board voted 33-9 to reject Daubert, the new rule, accepting the recommendation of the Bar’s Code and Rules of Evidence Committee. The Florida Supreme Court will make the final decision, setting up a possible conflict between the court and the lawmakers, who passed the law in 2013 to adopt Daubert.

The issue has been hotly debated in the legal community, with 688 lawyers and legal groups sending comments to the Bar. The overwhelming majority of respondents favored keeping Frye.

Florida’s amendment of Rule 702 is similar to the way Arizona tossed the Frye standard. After the Arizona legislature enacted a similar Daubert bill, the statute was declared unconstitutional under a separation of powers argument.16 However, the bill pressured the Arizona Supreme Court to amend Rule 702 itself, which it later did.

Until the Florida Supreme Court weighs in on the Constitutionality of the amendment to the expert witness rule, no one is really sure of its future.

An article on the Bar’s vote can be read here.

New Article: The Daubert Crucible

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, November 20, 2015.

My new article on the amendments to our expert witness rules is available at the Family Law Section website. The Daubert Crucible not only discusses the changes to the expert witness statutes, but witchcraft. Below is a summary.

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In amending the Florida Evidence Code, the Legislature has bound Florida courts to the Daubert standard for the admission of expert testimony and opinions.

I’ve written on the changes to the Evidence Code before. Although the amendment became effective in 2013, the changes to the law are still so new, there are less than a handful of appellate decisions which have reviewed the amendments.

Are the Changes Even Constitutional?

Still up in the air are lingering Constitutional doubts. While the Legislature can enact substantive law, only the Supreme Court can regulate courtroom practice and procedure.

The trick is that the Evidence Code contains both substantive and procedural provisions. If the Legislative branch encroached on the judicial branch, the changes are subject to a strict separation of powers doctrine review.

However, the Florida Supreme Court denied certiorari to a case which specifically asked the high court to review the Constitutionality of the amendments.

There is also fierce debate within the Florida Bar. The Board of Governors is required to vote on all procedural rule changes before those changes are submitted to the Florida Supreme Court.

At the Board’s most recent meeting, the Committee voted 16-14 in support of rejecting the new Daubert standard. Then, at the Family Law Section special meeting last week, my own motion to adopt the Daubert standard was voted down.

A webpage has been set up at www.floridabar.org/daubertfrye with background information on the matter and a link to a comment form for member input.

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

It also makes a great holiday read.

More Older Couples Divorcing

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, November 6, 2015.

Hilary Stephens was 57 when she walked away from her 28-year marriage. As the New York Times reports, late-life divorces are on the rise.

A late-life divorce, also called “silver” or “gray” divorce, is becoming more common, and more acceptable. In 2014, people age 50 and above were twice as likely to go through a divorce than in 1990.

Reasons for Late-Life Divorces

Remarriage. Many are in second marriages, and the divorce rate is about 2 1/2 times greater for second marriages than first.

Life expectancy. People are dying later in life. These days, if you’re 50 or 60, you could live on for another 30 more years.

Loss of Stigma. Separation no longer holds the stigma it once did.

Status of women. Women initiate a majority of divorces. “As women gain financial independence, they feel safe leaving an unhappy union.”

I’ve written about late-life divorces before. Some things to consider if you are considering a late-life divorce:

Florida, like many states, is going through a lengthy legislative alimony reform battle. Your expectations about support and alimony could be frustrated.

Your retirement money could be cut in half. Retirement accounts, and other assets, are presumptively split evenly.

If you keep the house, you may have to give up something. We are out of the housing recession, and houses have a lot of value now. You may have to take a smaller share of a pension, or a smaller alimony amount.

Children are still a factor. Maybe there isn’t the same gut-wrenching custody issues, but a lot of parents provide some kind of financial assistance for adult children.

Get a prenuptial agreement if you are considering marrying a second time.

There are special concerns involved when older couples divorce. As always, information is power, so make a point to seek out experts for guidance.

The New York Times article is here.

Divorce & Credit Scores

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, October 5, 2015.

No, this isn’t about how to preserve your credit during divorce (a useful topic by the way). Instead, it’s about whether you can predict the stability of a marriage based on credit scores.

Credit scores have become ubiquitous in household financial and non-financial decisions. For example, credit scores are a feature of every mortgage taken out, and every car and consumer loan you apply for.

A good credit score impacts your access to credit, the interest rate you borrow at, and your ability to buy on credit despite changes in your income. Lately, your credit is being used in areas besides debt underwriting.

For example, companies use them to see how much your car insurance should be, how much your cell phone plan will cost, and approval for renting a house. Lately, employers are running your credit score before their hiring decisions.

I’ve written before about the latest trends in divorce: like will your divorce last longer if you move to New Jersey? Is there a right time to marry? Along those lines, a new paper suggests evidence of the role credit scores play in staying married or in a long-term relationship.

Two professors have found that a couples’ average level of, and the match quality in credit scores, measured at the time the relationship starts, are highly predictive of subsequent separations.

That’s because initial credit scores and match quality predict subsequent credit usage and financial distress. Financial distress and the amount you buy on credit, in turn, correlate with relationship dissolution.

Credit scores and match quality appear predictive of subsequent separations even beyond these credit channels, suggesting that credit scores reveal an individual’s relationship skill and level of commitment.

The Abstract of the paper looks interesting. They explored how credit scores play a role in forming marriages and long-term cohabitations, as well as your ability to maintain a relationship. Not surprisingly, they found a large and significant role for credit scores in the formation and dissolution of committed relationships.

The study’s results lead to a hypothesis that credit scores reveal information about an important relationship skill: an individual’s general trustworthiness and commitment to non-debt obligations.

They also found that when individuals have a long exposure to greater trustworthiness, as measured by surveys, they tend to have higher credit scores even years after they leave those areas.

The abstract can be read here.

Forced Drug Testing, Divorce . . . and an online exam!

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, September 8, 2015.

It’s been said that divorce is stressful. OK, I said it, but I’m not alone. Psychologists have been saying that too. Can you be ordered to take a psychological evaluation or a drug test because divorce is so stressful?

How much stress does it take to push you “over the edge”?

Not everything is equally hard to deal with. I’ve written on the subject of stress before. The stress of divorce is more stressful than a change in responsibilities at work. The Social Readjustment Rating Scale (SRRS), more commonly known as the Holmes and Rahe Stress Scale, helps you measure your total stress score.

You can take the Holmes and Rahe Stress Scale test now by clicking here.

It happens more frequently than you think. A witness meets you outside of court. Then, you are surprised to see that person in court ready to testify that you’re a drug addict, or crazy, or worse. Suddenly you’re ordered to be examined by a psychologist, take a drug test, or some other exam.

That’s scary in a custody battle because the mere fact that the court thinks there is suspicion for you to be examined can be unsettling in a high stakes case.

I recently won an appeal defending against exactly this situation. Generally, compulsory evaluations are only authorized when the requesting party has good cause for the examination, and the issue is actually in controversy.

This had been the law for psychological and physical examinations, but no appellate court had really addressed the issue of drug testing. In my recent appeal, the court tackled that issue specifically creating a precedent for other courts in the state.

As often happens in court, witnesses and attorneys make a lot of arguments and conclusory allegations about the other side’s health conditions, or drug use, or mental state, and otherwise attack their character.

What the appellate court seems to be saying in this recent appeal is that conclusory allegations alone do not put a person’s condition “in controversy”. Additionally, those mere allegations are not necessarily “good cause” for a forced exam.

This recent victory is a big win for Floridians, as the case becomes binding precedent on all Florida trial courts until there is a conflicting district court opinion, or until the Florida Supreme Court steps in.

The AshleyMadison Hack & Divorce

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, August 21, 2015.

If you’re one of the few claiming not to know about the computer hacking of 37 million user accounts on the cheating site AshleyMadison.com, you’re probably lying. What does the hacking mean for divorce?

Many commenters are predicting that the exposure of millions of Ashley Madison’s members (no pun intended) to the public will lead to a crush of divorces. However, there are reasons to doubt that wisdom.

Having actual proof of an affair can be helpful in divorce. In fact, Florida law specifically provides that evidence of an extra-marital affair can be a factor in determining the amount of alimony, if any, to be awarded.

However, proof that your spouse had an affair does not always mean a better settlement or judgment in your favor. As I’ve written before, no-fault divorce is the law in Florida, and judges don’t spend a lot of time pondering why you are divorcing.

That doesn’t mean evidence of an affair is not relevant. Some prenuptial agreements have infidelity clauses and other morals clauses which may be enforceable to an extent in Florida courts.

Additionally, spouses who introduce their secret boyfriend or girlfriend to the kids, or spend time with potential hookups while with the children, are not going to win a prize as ‘parent of the year’.

The recent hacking and posting of AshleyMadison customer information will be big news. Here, tens of millions of people doing business on the web, who expected the highest level of privacy that the commercial web offers, found out the internet is not so secure to do business on.

But it may not be the marriage killer people predict.

Divorces Gone Wrong

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, August 4, 2015.

Divorce is bad enough: splitting time with your children, losing half of everything you own, and possibly paying support for years. Could it get worse? You bet, if you do it wrong you could end up in prison.

A Virginia man was charged with two counts of bigamy after his wife found out her husband had not divorced his previous wife before they got married.

Blake was charged with two counts of bigamy and two counts of forgery. From behind bars, Blake explained that he has had three different marriages.

“I got papers in the mail saying we were divorced, but evidently you get two sets of papers. I signed my name and everything on it”

“I thought the marriage wasn’t real and that’s why I got married to Jessica”

He and his current wife Jessica believe his second marriage of two weeks wasn’t valid, and theirs is. He’s convinced the charges are being levied against him out of revenge.

It doesn’t happen often, and the Virginia police department spokesperson reported they made two bigamy arrests in the past 10 years.

I’ve written about the importance of having a board certified attorney to handle a divorce. If your divorce is done wrong, the rule is that an honest belief that your divorce was validly granted, is not a defense to a prosecution for bigamy.

Could it happen to you? It happens in my experience when innocent jurisdictional rules are ignored. In order to get divorced in Florida, for instance, you have to have been a resident here for six months. If you aren’t, your divorce decree may be invalid.

You could read more on the Virginia story here.

Divorce & Social Media . . . in China!

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, July 24, 2015.

With prosperity comes social problems. The divorce rate in China has risen along with the country’s new wealth. China’s divorce rate climbed by 3.9%, the 12th consecutive annual increase.

Forbes reports on what’s driving the increase. To learn more, they discussed the divorce problem with Liu Lin, a divorce lawyer at Beijing Shuangli Law Firm.

One big factor, he said, is the growing use of social media such as Alibaba-backed Weibo and Tencent’s WeChat. “Social media is a catalyst for divorce,” Liu said.

In the 1980s, divorces were mainly caused by liaisons at settings like dance halls and public squares. Social media is a catalyst for divorce. Through social media, people can get a better understanding of what kind of love they want, but that discovery often happens outside of their marriage.

For example, in the Fengtai District Court in Beijing, the wife had an affair with someone she met on QQ. They lived together and the marriage ended. In another case, a man met a woman through Weibo. He then left his home in Beijing to live with the woman in Hunan.

The one that has an affair usually initiates the divorce, no matter if it’s wife or husband. Normally, assets are split 50-50, with consideration of the wife’s interest as stipulated under relevant law.

Whether one side or the other had an affair isn’t considered in the split of assets. Even though property is split by half, women are disadvantaged in the proceedings.

In China, men’s capacity to earn is much greater than women’s, and they have a lot of private assets that are not known to the wife. Usually, what women win in court is only part a husband’s true assets.

I wrote an article about the impact of social media on divorces in the Florida Bar Commentator. Personal details, they type of evidence we find on social media sites, are important.

Consider the following example:

Husband denies anger management issues but posts on Facebook . . . : “If you have the balls to get in my face, I’ll kick your ass into submission.”

Or this:

Mom denies in court that she smokes marijuana but posts partying, pot-smoking photos of herself on Facebook.

Going through a divorce causes you to be placed under a magnifying glass. If you post things on social media sites that could help your estranged spouse’s case, an attorney will likely make use of that as evidence.

The Forbes article is available here.

Tips if you’re Divorcing and over 50

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, July 10, 2015.

Blame it on the Baby Boomers (why not?) but U.S. News reports that the divorce rate for those over 50 has doubled. There are 7 important things to know about if you are divorcing in your 50s.

I’ve written about the issue of divorces by people over the age of 50 before. A study out of Bowling Green State University published their results in The Journals of Gerontology. Interestingly,48% of the divorcees were in their first marriage.

The U.S. News article mentioned seven things to consider:

1. Alimony.

While younger couples may have alimony ordered to provide financial support for their ex, it is often only long enough for lower earning spouses to get back on their feet. But in long-term marriages, courts will more likely consider longer terms of alimony payments, and even permanent alimony.

2. Your retirement money.

All of your marital assets are equitably distributed in a divorce. Many people overlook the fact that their retirement funds may be marital assets. To the extent your retirement funds are marital, they will likely be split evenly.

3. If you keep the house . . .

No one wants to give up their marital home, it provides security during a stressful period, and has a lot of emotional significance. However, selling the home sometimes makes the most sense. If you decide to keep the house, your spouse is going to get something in his or her column in return.

4. Your kids may still be a factor.

If there is a silver lining in a gray divorce, it is that children’s issues do not play a central role. Custody, visitation, and child support issues are usually out of the picture. But not always.

Many adult children live in the home after college, and parents may want to agree to maintani them. Additionally, many parents provide financial support to adult children who may suffer from disabilities. In Florida, child support can be awarded beyond the age of 18 if a child suffers from a disability.

5. Being bitter benefits no one.

The transitional stage of divorce means that emotions are running high. Try to keep conversations neutral. “Be polite, be civil, but keep it businesslike.”

6. Make new friends.

Getting a divorce can have an impact on relationships beyond the marriage. It can polarize friends and leave some ex-spouses feeling alone and defensive.

Possible outlets for social interaction could be taking up your earlier hobbies, finishing that degree, volunteering, or even getting involved in politics.

7. Get a prenuptial agreement.

If you are even considering another marriage, you must get a prenuptial agreement. Without one, a second divorce can take retirement savings – that have already been split once – and divide them even further.

The U.S. News article can be found here.

Divorce & Free Speech

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, June 17, 2015.

The colorfully named “The Pyscho Ex-Wife,” was a website launched by a divorcee to air his frustrations about his divorce. It turned into a battle over free speech. Can you publicly bash a parent, or does the best interests of the child beat free speech?

The Psycho Ex-Wife was a popular site:

“We have been through 3 custody evaluations, 6 false contempt petitions, 3 custody schedules, 1 psych evaluation, 1 false child abuse allegation, 2 false calls to the local sheriff’s office, 4 years of parental alienation, $80,000, 1 break in, 1 case of stalking, 1 restraining order, and we FINALLY have 50/50 custody of their children”

The blog quickly grew into a huge community, with a recommended reading list in which registered members discussed everything from mental health to legal issues.

The Wife complained to Pennsylvania, Judge Diane E. Gibbons judge, who ordered him to shut The Psycho Ex-Wife down.

“Father shall take down that website and shall never on any public media make any reference to mother at all, nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than ‘happy birthday’ or other significant school events.”

“I don’t care if you guys fight in private,” Gibbons said in her ruling. “I don’t care what you do in private. But you are not going to do it in front of these kids.”

I’ve written about free speech and family law before. According to UCLA law school professor and First Amendment expert Eugene Volokh:

“The court order categorically orders the removal of a Web site, and prohibits all public statements – factually accurate or not – by one person about another person,” he wrote. “That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult.”

In Florida, as under the U.S. Constitution, offensive speech is protected as long as it isn’t obscene, defamatory, or threatening to national security. Speech restrictions are ordinarily unconstitutional.

However, if the speech restrictions in family court are narrowly focused on preventing one parent from undermining the child’s relationship with the other parent, they may pass constitutional muster.

Professor Volokh’s exhaustive article published in the NYU Law Review is available here.