Category: Divorce

Trouble With Florida’s New Expert Witness Rule

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Friday, December 27, 2013.

Divorce trials increasingly rely on expert psychologist testimony for custody recommendations and forensic accountants for financial opinions. The rule on using experts recently changed. Is the new law substantive and constitutional, or procedural and unconstitutional? The Florida Supreme Court may have just tipped its hand.

An article I wrote on expert witness testimony was just published in the Commentator, discussed the constitutional controversy, but left up in the air the Florida Supreme Court’s thinking because it was unknown.

However, last week, the Florida Supreme Court refused to adopt a state rule that creates restrictions on out of state doctors who can testify during medical malpractice trials.

The law stated:

If a physician or a dentist is the party against whom expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed or possess a valid expert witness certificate.

The Florida Bar Code and Rules of Evidence Committee voted to recommend adopting the statute. However, the Board of Governors voted to recommend rejecting the proposal because it was unconstitutional, and would chill the ability to obtain expert witnesses.

The Florida Supreme Court agreed with the Board of Governors, and held:

After hearing oral argument and carefully considering the Committee’s recommendation . . . we decline to follow this recommendation due to the concerns raised. Accordingly, the Court declines to adopt the legislative changes to the Code or newly created section 766.102(12), Florida Statutes, to the extent they are procedural.

The Supreme Court vote was 8-1. The Florida Supreme Court’s order can be read here.

My Article on Florida’s New Expert Witness Rule

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

We are increasingly relying on expert witnesses in divorce trials. Hiring forensic accountants, psychologists and other expert witnesses has become the new norm. But Federal and Florida courts have been using different rules to allow expert testimony in court. That’s just changed. I have a new article just published in the Florida Bar Commentator on this new change to the expert evidence rule.

The Article briefly reviews the evolution of the rules for the admissibility of expert testimony in Florida, how our rules differ from the Federal rules, the three big U.S. Supreme Court cases, the Constitutional separation of powers question, and how the new Florida Rule of Evidence 702 impacts family law.

Part I reviews Florida’s law of expert testimony from the Frye case to the Florida Supreme Court’s Marsh decision. Supporters of Florida’s old rule enjoyed the ease in which expert testimony was admitted in court. But critics charged that the expert testimony became of dubious validity.

Part II describes a Constitutional problem with the way Rule 702 was amended. A law which encroaches on the Supreme Court’s power to regulate courtroom practice is unconstitutional, but the Legislature can enact substantive law. When the legislative branch encroaches on the judicial branch, a separation of powers violation of the constitution can arise.

Part III describes the U.S. Supreme Court’s Daubert trilogy, which is what amended Rule 702 is based on. The new Rule 702 codified the Daubert trilogy, and did so with language that removes any ambiguities about how to apply it and questions about the usefulness of Florida’s prior case law.

The Article concludes by discussing some of the ways this new expert witness rule will impact your divorce, and the judges, experts, and the lawyers who practice family law.

You can read the article here.

Divorce and Alcohol: Can Drinking Save Your Marriage?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, December 5, 2013.

It sounds like I’ve asked a ridiculous question. After all, published research suggests a correlation that the more you drink the more likely you are to get divorce. However, researchers at the University at Buffalo have put a new spin on the old notion that drinking and marriages do not mix.

Scientists at the University of Buffalo’s Research Institute on Addictions (RIA) followed 634 couples from the time of their weddings through the first nine years of marriage. What the researchers found was that couples where only one spouse was a heavy drinker had a much higher divorce rate than other couples.

However when both spouses were heavy drinkers, the divorce rate was the same as for couples who were not heavy drinkers at all. And that’s the surprising outcome:

50% of couples in which one partner was imbibing significantly more than their spouse ended up divorcing. However, that number dropped to 30% for couples who possessed similar drinking habits, regardless of if they were heavy or light drinkers.

The researchers also found that there was a higher divorce rate when the heavy drinker was the wife, rather than the husband. However, this statistical difference was not significant.

What researchers have concluded is that heavy drinking spouses may be more tolerant of negative experiences related to alcohol due to their own drinking habits.

Our results indicate that it is the difference between the couple’s drinking habits, rather than the drinking itself, that leads to marital dissatisfaction, separation and divorce said Kenneth Leonard, PhD, RIA director and lead author of the study.

Make no mistake, heavy drinking can ruin your life. From a divorce perspective, it is interesting that divorce rates are worst for marriages in which one spouse drinks heavy and the other does not. The research may mean that differing behavior is to blame, not alcohol.

This study makes sense. When couples don’t see eye-to-eye on something, they may be incompatible on other issues. But spouses who drink similar amounts may have similar views on drinking, may spend more time together, and probably don’t fight as much as those who have different drinking habits.

The report from the University of Buffalo can be read here.

Courtroom Manners – How to (Not) Act in Court

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, December 2, 2013.

It’s been said that in criminal courts, judges see the worst people acting their best. If so, family judges see the best people acting their worst. child custody, relocation, and domestic violence cases put a lot of stress on people. Since you’re always being evaluated, what follows is a list of “dos” and “don’ts”.

Don’t – Come to a custody hearing wearing your Nazi uniform – complete with swastika patch on the arm and leather boots – and demand a family court judge let you see your son.

Do – Dress in a neat and professional manner.

Don’t – Speak on your cellular telephone because judges hate ringing cell phones. Judges hate ringing phone so much, that U.S. District Judge Hugh B. Clarke Jr. fined himself $50 when his own cell phone started ringing during a hearing.

Do – Keep your cell phone ringer off, and if you absolutely need to have your phone on, put it on vibrate.

Don’t – Take off your pants and show the judge your rear end. Try not to make faces or gestures, don’t show your anger or disdain for the other side or the court.

Do – Keep a “poker” face when others are talking, and be clear and confident and in a loud clear voice when you are talking.

Don’t – lose your temper in court, give the middle finger salute, dare the judge to hold you in contempt while holding your arms out as if you are being handcuffed and then contact the judge’s judicial assistant, and call her: “You little mother******; you and the judge, that mother****** son of a b****.”

Do – Be Courteous to the Court staff. Court personnel make the courts run efficiently, and angering court officers may impact your case.

Yes, sadly these are cases of what people have actually done in court, and all of these instances are documented. Consider the solemnity of the courtroom, the stress family cases have on everyone, and show some respect to the judges and others in the courtroom who deal with these cases on a daily basis.

Divorce and the Pet Dog

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Tuesday, November 26, 2013.

An ever increasing problem in divorce is over who gets to keep the pet dog and cat during and after the divorce. Imagine you’ve been married for 12 years, but you don’t have any children. Your Labrador Retriever is your closest friend, guardian and constant companion. The problem is your soon-to-be ex-husband or ex-wife feels the same way.

Nearly a quarter of divorce lawyers surveyed across the country have noticed an increase in pet-custody cases in the last five years, according to the American Academy of Matrimonial Lawyers. The article can be read here.

There is a shift occurring in our society in which the … pet is considered more a member of the family … and therefore becomes sadly a part of the battle when the family disintegrates,” said Joyce Tischler, founding director of the Animal Legal Defense Fund, a non-profit organization based in Northern California.

A 2001 survey by the American Animal Hospital Association found that 83 percent of pet owners refer to themselves as their pet’s “mom” or “dad.” That relationship is not acknowledged by the courts, where pets are still considered property, no different from the silverware, the plasma TV and the living-room sofa.

So, who does a judge award your Chocolate Lab to? Can a judge order a timesharing schedule? Any visits at all? Clients often come to me with their concerns about pets in the divorce.

Your chocolate lab may be considered a member of the family to you, but under Florida law, “Brownie” is merely chattel – personal property to be divided in divorce. A judge lacks authority to grant custody or award visitation or a timesharing schedule to personal property.

Not all states have ruled out a visitation schedule for dogs. For instance, while Texas also views dogs as personal property, in one case a Texas court authorized visitation.

Florida doesn’t because Florida courts are already overwhelmed with the supervision of custody, visitation, and support matters related to the protection of children, that courts cannot undertake the same responsibility as to animals.

Divorce vs. Separation

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Thursday, November 21, 2013.

I often meet clients who want to divorce after already being separated. Sometimes their separation is very recent, maybe after a big fight. Other times though, their separation has been going on for months – sometimes even years. Is a long term separation a good thing?

As Forbes magazine reports, sometimes the ease of a long term separation hides some real dangers. This Forbes article identifies a few problems I think everyone should consider:

1. Less Control of Assets. If you are separated, you could be out of the loop financially, and not know what the other spouse is earning, spending, investing, selling or buying.

2. Opportunity to Hide Assets. Many times one spouse uses separation periods to make assets disappear and increase debt.

3. Changed Circumstances. When we draft divorce agreements and orders we are usually trying to ‘present value’ assets and liabilities. In a long separation, people lose jobs, change jobs, become ill, retire and these changed circumstances could lower your expected alimony or support payment.

4. Relocation. Laws vary from state to state. Over times, as circumstances change, new job requirements and new relationships may mean that one of the spouses has to relocate to another state. Your simple divorce can morph into a major battle over the ability to relocate with your children.

5. Alimony Reform. Alimony change is in the air, and it is only a matter of time before alimony reform changes Florida Statutes. We dodged the bullet after the last legislative session. However, alimony reform seems more like a “when” question, rather than an “if” question.

It is easy to get into the rhythm of a long term separation. People don’t choose ‘separation limbo’, they fall into it because it is easier than confrontation. However, there are some good reasons to be cautious of long term separations.

No Fault Divorce and Taxes

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, November 4, 2013.

Some people want to eliminate no-fault divorce in Florida. There is a belief that no-fault divorces make it too easy to destroy marriage, leading to many problems in society. Russia has a different approach: tax divorce.

The United States has a marriage penalty, in which many married couples could save tens of thousands of dollars if they’d file separately. Russia is taking it to a new level though.

Russia is considering a tax on divorcing up to 30,000 rubles (roughly $941 US) an increase of nearly 7,500%! The proposed tax would be more than the average monthly salary in Russia

As Forbes explains, the legislation has two goals: raising revenue and discouraging divorce.

The tax increase could put more than 19 billion rubles ($595 million US) back into the Russian treasury each year. That would help plug holes in the budget as concerns about Russia’s deficit continue to mount: current projections indicate that the country’s deficit will clock in at 650 billion rubles ($20.4 billion US) in 2014. The revenue raised from boosting the divorce tax would cover about 4% of the lag. Since spending is already set for 2014 and 2015 (that’s right: Russia has an actual budget on paper and we don’t), the deficit will continue to grow if there isn’t offsetting revenue – the trick, then, is to find more money.

It’s all part of the rush to morality for the country over the past few months, meant to stifle Russia’s “moral and demographic decline.”

Russia is currently experiencing a high rate of divorce, roughly a 54% divorce rate. That rate eclipses divorce rate in the U.S. of a nearly 41% divorce rate.

Ironically, Russian President Vladimir Putin announced his decision to divorce his wife of thirty years, Lyudmila, in June.

Considering this latest push by the Russians to tax divorce, maybe Putin’s divorce was something practical than a love child: good ol’ tax planning.

Adultery, No Fault and Interesting Reasons To Divorce

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

Florida is a No Fault state for divorce. You don’t need a reason to divorce. Still, it is interesting to know why people divorce. A recent study out of the UK reveals some surprising reasons why people divorce, and adultery is a declining factor.

It appears that couples are less likely to cite adultery as the cause of a divorce than they were 40 years ago. However, claims of “unreasonable behavior” (a British term) have skyrocketed to more than 5 million divorce cases.

Unreasonable behavior include: making a spouse feel guilty for going out with her friends; a cross-dressing husband who decided to have a sex change; and a spouse withdrawing all the family savings and burning it in the bedroom.

The Guardian newspaper reports on a survey comparing the grounds for divorce in the 70s, 80s, 90s and 2000s as well as the present day.

In the 1970s, 29% of marriages ended because of adultery, the latest figures show only 15% of divorces were down to infidelity. In the 70s unreasonable behavior was cited in 28% of cases but it now accounts for almost half of all divorces (47%).

In the 1980s – the yuppie era – had the most adulterous break-ups – with nearly one in three (29%) of all divorces granted due to cheating on a partner. In the same decade, almost one in five divorces were down to the husband’s infidelity.

While you only need to allege an irretrievable break in the marriage to file for divorce in Florida, it is always interesting to see trends in divorces over time, even when they are from overseas.

The Guardian article can be read here.

CEO Divorces: Do you have to disclose divorces to shareholders?

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On behalf of Ronald H. Kauffman, P.A. posted in Divorce on Monday, October 28, 2013.

divorced impacts everyone: the rich and poor alike. When a spouse is also the CEO of a company, are there more risks? When the CEO of Continental Resources was getting divorced, shares of his company dropped 2.9%. Conversely, when Rupert Murdoch announced his divorce, shares of News Corp gained 1.4%. Why?

In the Continental Resources case, shareholders learned that the CEO didn’t have a prenuptial agreement, and some investors feared control of his shares was at stake.

But in Rupert Murdoch’s case, the divorce announcement stressed the parties’ prenuptial agreement, that there would be no spin-offs, and a divorce would have “zero impact” on the company

A new study from Stanford Graduate School of Business has examined three potential ways in which a CEO divorce might impact the business and shareholders.

1. Loss of control or influence. A CEO might be forced to sell or transfer a portion of his or her shares as part of equitable distribution, lump sum alimony or by agreement. Selling shares can reduce a CEO’s influence and impact decisions regarding corporate strategy, asset ownership, and board composition. Shareholder reaction to loss of control will vary.

2. Divorce impacts productivity, concentration, and energy levels. Divorce is stress. Generally, it is well known that employee divorces impact their productivity. In extreme cases, the distraction of divorce can lead to premature retirement.

3. Divorce can change appetite for risk. A sudden change in wealth – through loss of equity in the company they are running or other investments outside the firm -can alter an executive’s risk appetite, and impact decision making

Is divorce still a private matter? For most people it is. But if you are the CEO of a publicly traded company, perhaps in the future your divorce might be a matter which has to be disclosed to shareholders.

The Stanford Graduate School of Business article can be read here.

Gray Divorces: Divorcing after 50

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

So much for “till death do us part.” While the overall divorce rate has gone down, it’s doubled for couples over age 50. For the first time, more Americans 50 and older are divorced rather than widowed. Sociologists call them gray divorces.

In 1990, less than 3% of Americans older than 50 were divorced. By 2000, about 12% were. According to the latest Census Bureau’s estimate in the American Community Survey, in 2011 over 15% were divorced, while 13.5% were widowed.

In 1990, 1 in 10 persons who divorced was 50 or older. By 2011, according to the American Community Survey, more than 28 percent (more than 1 in 4) who said they divorced in the previous 12 months were 50 or older.

As the New York Times reports:

Researchers at Bowling Green warn that the rising divorce rate among older Americans has serious implications that go well beyond the couples themselves. Like widowhood, divorce can contribute to economic strain and poor health, placing a larger burden on children and, given shrinking family size, on institutional support from government and other sources.

“Staying together until death do us part is a bigger challenge than it used to be because we expect so much more of marriage than we did in the past, and we have so many more options when a marriage doesn’t live up to those expectations.

Think about it from this perspective:

“If you are a healthy 65, you can expect another pretty healthy 20 years. So with the kids gone, it seems more burdensome to stay in a bad relationship, or even one that has grown stale.”

Are women to blame:

Women have long been more sensitive to – or less tolerant of – a mediocre relationship than men and so another big factor is that with their increased work experience and greater sense of their own possibilities, they are less willing to just ‘wait it out.

What about the men?:

“Viagra is another reason – men are able to satisfy younger women. And people are living longer and they can get out and still have a life.”

Several other factors may be to blame, including:

  • Societal acceptance of divorce
  • Increased economic autonomy of women
  • Lengthening life expectancies
  • Less education is big risk factor
  • Shorter marriages less than 10 years.

Nonetheless, they say that if the rate remains constant, we can expect a 25 percent increase in the number of people that will experience divorce among Americans 50 and older.