Category: Divorce

Testing Marriage Secrecy

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, February 1, 2016.

Can emails to your husband or wife be used as evidence against you in divorce, or is there a privilege against that? A New York federal court is about to decide that issue.

Actually, there is a privilege, and it is a very old one at that. The privilege is rooted in English common law since at least 1628, when an English lord established the idea that spouses should not be forced to testify against each other.

In the New York case, a husband is being charged with supporting Islamic State, and the prosecution wants to use his letter to his wife which they found.

The Wall Street Journal has an article on Tairod Pugh, a 48-year old U.S. Air Force veteran who wrote a letter to his wife, saying he wanted to become a martyr, and to support Islamic State.

He was turned away at the Turkish border before he could cross into Syria. Now that the prosecution has the letter, Tairod wants to hide it from a jury.

A privilege, in evidence-speak, is an exception to the rule that ‘no one may refuse to give testimony or other evidence in court.’ This general rule helps to ensure fair trials.

A privilege is not a constitutional right. The right not to incriminate yourself (“taking the Fifth”) is a constitutional right. A privilege allows you to object to your own or another’s testimony about communications within confidential relationships.

I’ve written about evidence before. The Husband-Wife privilege, although ancient, has the same value today as it did then. Courts recognize the privilege to protect marriages from the harm of spouses being forced to testify against each other.

In Florida, a spouse has a privilege to refuse to disclose, and to prevent others from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

The privilege does not work in divorce cases. When one spouse uses the courts against the other spouse, our policy of encouraging settlement could be frustrated by the privilege.

In addition to exceptions, privileges have to be properly asserted or they may be lost. A spouse may waive the privilege by failing to object to the testimony when offered.

You can also waive the privilege by mentioning the confidential communication to others, and by offering testimony about it through other witnesses.

Every state in the U.S. recognizes one or both of the types of spousal privilege recognized by federal courts. There are differences from state to state with the privilege; for example, some states have many more exceptions to the privilege.

The Wall Street Journal article can be found here (paywall).

Divorce Law Changes: Update

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Friday, January 15, 2016.

Florida is not the only state modifying its divorce laws. Illinois is amending theirs to remove the word “custody”. What’s behind the movement to modify family laws around the country?

In Illinois, the changes cover new terminology that reflects recent changes in society, such as gay marriage. For example, husband and wife are now referred to as the more gender-neutral “spouses.” Child custody is now referred to as “allocation of parenting time and responsibility.”

Florida went through something similar in 2008 when it became evident that the adversarial legal system, pitting parent against parent, was unwieldy and unnecessary for large numbers of divorcing parents wanting to reach good agreements about their children.

The effort helped to ensure that children have post-divorce parenting arrangements which promote good social and psychological adjustment.

This year, House Bill 1151 is being reviewed to further revise terminology relating to parents in our laws.

I’ve written about a variety of custody issues before. Florida’s 2008 change in the law eliminated outdated and negative terminology related to divorcing parents and their children in order to reduce animosity among family members and improve the lives for children.

Florida did this by deleting the definitions “custodial parent” or “primary residential parent”, and creating a definition for the terms “parenting plan”, “parenting plan recommendation” and “time-sharing schedule.

“Custodial parent” and “noncustodial parent”; were replaced with references to either term with the term “parent” or “obligee” or “obligor”, and “custody order” or “visitation order” were replaced with “parenting plan” and/or “time-sharing plan”.

In the current legislative session, which started this week, the effort continues to modify our marital and family laws. For instance, there is a bill to reform alimony, the evidence code, and importantly, repealing the criminal code provision which makes it a second degree misdemeanor for any unmarried man and woman to cohabit together.

The legislative session in Florida is underway, and anyone interested in marital or family law should keep their eyes open for what happens in Tallahassee.

The Bellville News-Democrat article is available here.

Speaking Tonight on Expert Testimony

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, January 12, 2016.

I will be speaking on a panel tonight about expert testimony at the American Inns of Court. The topic impacts every divorce and trial, and includes changes to the Evidence Code, Constitutional issues, the Florida Supreme Court’s triennial review, and a view from the bench.

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I’ve written extensively on this topic, and recently published an article about the Daubert amendment, and how it impacted the Florida Evidence Code.

The Legislature has forced Florida courts to join the federal courts and a majority of states in adopting the Daubert standard for the admission of expert testimony and opinions.

There’s a lingering Constitutional problem. The Legislature can enact substantive law, but only the Supreme Court can regulate courtroom practice and procedure.

The trick is that the Evidence Code contains both substantive and procedural provisions. Only the Supreme Court of Florida at this point whether the Legislation violated the separation of powers.

If the Legislative branch encroached on the judicial branch, the changes are subject to a strict separation of powers doctrine review.

The Florida Bar Board of Governors, at its December 4 meeting in Naples, is recommending the Florida Supreme Court to reject the changes. The committee believes the Legislature has crossed the boundary from substantive to procedural issues.

The issue now goes to the Florida Supreme Court. The next scheduled three-year cycle report is due to the Florida Supreme Court by February 1, 2016.

The Inns of Court will be meeting at the Coral Gables Country Club 997 North Greenway Drive Coral Gables, Florida 33134.

The article is available here.

Speaking Next Week on Expert Testimony

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, January 7, 2016.

I will be speaking on a panel on expert testimony after Daubert. The topic addresses Florida’s changes to the Evidence Code, the pending Constitutional issues, and a view from a sitting circuit judge.

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I recently published an article about Daubert. In amending the Florida Evidence Code, the Legislature has tied Florida courts to the Daubert standard used in the Federal courts for the admission of expert testimony and opinions.

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.

A Constitutional issue has arisen. The Legislature can enact substantive law, but 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.

The Board of Governors, at its December 4 meeting in Naples, adopted the recommendation by the Code and Rules of Evidence Committee. They are urging the Supreme Court to not adopt the Daubert amendment to the Evidence Code.

The vote by the Code and Rules of Evidence Committee marks one of the few times it has recommended that a legislative enactment to the evidence code not be adopted.

When the committee does not recommend that action, it is generally because it believes the Legislature has crossed the boundary from substantive to procedural issues.

The next scheduled three-year cycle report is due to the Florida Supreme Court by February 1, 2016.

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

Divorce: Can You Change Your Mind?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Monday, January 4, 2016.

To divorce in Florida, the marriage must be irretrievably broken. If you change your mind and want to stay married, can you get un-divorced? New Hampshire just decided that question.

The New Hampshire Supreme Court in December upheld a lower court ruling refusing to vacate a couple’s 2014 divorce after 24 years of marriage.

Terrie Harmon and her ex-husband, Thomas McCarron, argued their divorce was erroneous because they mended fences and are a couple again.

But the New Hampshire justices, in a unanimous ruling issued a few weeks ago, said the law specifically allows them to grant divorces – not undo them.

Courts in some states – including Illinois, Nebraska, Mississippi, Arkansas, Maryland and Kentucky – will vacate divorces within a certain time frame or under certain circumstances, at the parties’ request.

What can you do if you discover your marriage is not irretrievably broken after you filed for divorce? If you do decide not to divorce, your options are limited to where in the divorce process your case is.

Pending Cases

A pending case is an ongoing case in which the final judgment of dissolution of marriage has not been entered. In pending cases, you may be allowed to voluntarily dismiss your case, or possibly abate the divorce proceedings to give your reconciliation a chance.

Post-Judgment Cases

If the final judgment has been entered, as in the New Hampshire case, there are limited ways final judgments can be set aside.

The rules allow for final judgments to be set aside by proving clerical mistakes, other mistakes, newly discovered evidence, and fraud. However, there is no authority for setting aside a final judgment because you’ve reconciled.

As people in the New Hampshire case observed:

“I think it was partly sentimental and partly that they had some business interests that a divorce and remarry would be more complicated than undoing the divorce.”

I’ve written about divorce strategy to consider before. If you want to reconcile after the divorce final judgment has been entered, you should be very wary of what you could possibly lose by reconciling. For example, re-marriage may be grounds for terminating alimony. You must consult legal and tax experts.

There are other planning issues. Retirement, taxes and social security are often times impacted by your marital status. As one of the attorneys in the New Hampshire case put it:

“People just have to be cautious in making sure divorce is what they really want.”

The New Hampshire story is available on WMUR here.

Tips if Divorce Is Your New Year’s Resolution

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, December 31, 2015.

If you are thinking about divorce next year, you aren’t alone. The month of January is sometimes called “Divorce Month.” We typically see an increase in consultations the week after New Year’s.

Whatever the reason, there are a few things that anyone looking into divorce for the first time needs to know to help them through the process and protect their rights.

Exercise

It’s easy to overlook, but the discipline, routine, and act of regular exercise helps you. If nothing else, exercise triggers your brain to release endorphins and serotonin; which makes you feel happy. Studies continually show the emotional and health benefits of regular exercise.

Prioritize

Line up your priorities for life after the divorce. Is it finding a home? Is it retiring? Getting a job? Managing your special-needs child? Consider writing down your most important goals.

Read

As the current Vice Chair of the Florida Bar Journal, I’ve written and published a significant number of articles in professional journals in the area of marital and family law. Try to learn a little about the issues you may potentially face.

Consult

Even if you aren’t certain you need to hire an attorney, or filing for divorce at all, it is a good idea to meet with an expert in Florida’s divorce and family laws. Who better than someone certified by Florida as an expert in marital and family law? We offer free consultations, but even when there is a charge, it is well worth the fee to get accurate information.

Alternatives

Litigation is something to avoid. It’s time-consuming, contentious and expensive. The majority of divorces end up settling. There are many forms of alternative dispute resolution out there, including collaborative divorce, mediation, and informal settlement conferences.

Speed

You want to complete your divorce quickly, if you started it last year. If your case has been dragging, the new year is an opportunity to settle your differences and start your new life.

Network

Making the choice to divorce is hard, and not everyone will be by your side to help you. Start to touch base with your contacts, and go to networking events. Ask colleagues to take a look at your updated résumé.

Update

Consider updating your will, trusts, insurance policies, and any other estate plans.

2016 is going to be a roller coaster. This is especially so if divorce is on your calendar. You can manage this crisis.

Divorce Gambling: How to Best Hedge Your Bet

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

A new startup will pay for your wedding. But there’s a catch: If you divorce, you pay them back with interest. Can you protect yourself from divorce?

According to Census Bureau statistics. Roughly 40% of first marriages in the United States end in divorce, nearly 66% of second marriages and 75% of third marriages are dissolved in court.

But there are a few options out there for those worried they’ll end up on the wrong side of those statistics.

Divorce Betting

Swanluv is a company that will fund your wedding. The cost of walking down the aisle surges. A survey of 16,000 brides by TheKnot.com, found that the average cost of a wedding was $31,213.

Swanluv reviews your relationship, and sets an interest rate based on your compatibility. Swanluv won’t directly profit from the breakup. Cash from divorces cover someone else’s future wedding. Swanluv plans to sell advertisements to generate revenue.

Divorce Insurance

SafeGuard Guaranty Corp., is selling one of the first world’s first divorce insurance product. Here’s how its WedLock product works.

The insurance provides cash for the legal proceedings, or the cost of a new apartment or house. It is sold in “units of protection.” Each unit costs $15.99 per month and provides $1,250 in coverage. So, if you bought 10 units, your initial coverage would be $12,500 and you’d be paying $15.99 per month for each of those units.

Prenuptial Agreements

Professionally, there is only one way to truly hedge your bet. Postnuptial and Prenuptial agreements are an issue I frequently write about. These kind of agreements protect your assets and income from a claim by your spouse in the event of death or divorce.

In the event of your death, even if you don’t make a provision in your will for your spouse, Florida law may give your spouse certain rights to a share of your estate.

If your premarital assets are significant, you can ensure that your spouse will share in it only as much as you wish should you divorce or die. This protects you and the inheritance of your children from a prior relationship.

Agreements protect your income earned during the marriage. For instance, without a prenuptial agreement, you could have to pay alimony to your ex-spouse. An agreement can set that amount – or eliminate it.

Danielle Paquette’s article on Swanluv can be found here.

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.