Tag: Best Family Divorce Attorney

Emojis and divorce: What did ???? mean?

Posted by Ron Kauffman on

Emails and texts have become regular exhibits in divorce trials. And increasingly, people are using emojis to express their intent. But did the witness’s champagne bottle and lipstick emoji mean what we thought? This is a post about emoji law.

Emojis

“Emoji” is Japanese for pictograph: e “picture” + moji “character”. Emojis are a writing system that uses symbols to represent an idea rather than words.

According to some studies, more than 90% of social media users communicate with emojis with some six billion emojis exchanged daily.

In a way, we’ve regressed to a hieroglyphics language not unlike the ancient Egyptians.

The Wall Street Journal has a great article on the increasing trend of people communicating through pictures and how we lawyers have to decipher the parties’ meaning.

Divorce Evidence

I’ve written about social media evidence in divorce before. The increasing use of emojis has put a new spin on things.

One of the first questions lawyers ask is about authenticity. Is the text, FaceBook or Instagram post even authentic? Usually, authentication of evidence like texts, emails, photographs, videos, audio recordings, and computer records is required as a condition to being admitted into evidence.

Some exhibits are so trustworthy, our Evidence Code doesn’t even require a witness. This is useful for things like: the law, and court rules for instance. For most other evidence, the Evidence Code lets the judge decide.

Over the years, the threat of false evidence being introduced in court has been diminished through the discovery process. We send out requests for admission and have pretrial conferences which have helped make authentication less of a concern.

Only after the evidence is found to be authentic can we discuss the intent of the text or post. Family law is unique. We have hearings early in the case, which means your emoji, and what you intended, can be discussed right away.

Emojis and the Law

Emojis are new, so there are no laws on the treatment of these emotion laden symbols. We only have a few cases to determine what courts do with emojis – and they do not consistently agree.

In some cases, emojis are taken under consideration when interpreting a commenter’s original intent.

For example, the appeals court in Michigan determined that “The use of the ‘:P’ emoticon makes it patently clear that the commenter was making a joke” because the face this emoticon represents usually “denotes a joke or sarcasm.”

The U.S. Supreme Court reversed a conviction of making threatening communications. The primary issue was whether a husband intended a “true threat” to his wife. The husband argued that his text was in jest because he added a “smiley” emoji sticking its tongue out.

The Supreme Court did not discuss the emoji, but reversed the conviction on other grounds.

The Wall Street Journal article is here (paywall).

 

Divorce and Privacy

Posted by Ron Kauffman on

Huma Abedin and Anthony Weiner’s divorce are a lot of things: “Messy” comes to mind, and definitely “sordid.” It has also been front page news. However, now the divorce is going to be closed to the public. Is it about reconciliation or privacy?

A Very Public Divorce

Huma Abedin was a top aide to former presidential candidate Hillary Clinton, and privacy has always been a struggle. She has been front page news most recently, as the State Department posted a number of her emails after the messages were found on her husband’s laptop by the FBI.

Several of the released documents were found to contain information classified “confidential,” and were heavily redacted.

If that wasn’t front page news enough, her husband is Anthony Weiner. Anthony is the former Democratic congressman from New York who won seven terms as a Democrat, never receiving less than 60% of the vote. Politicians don’t get elected by being shy.

In May last year, Weiner pled guilty to a sexting charge of transferring obscene material to a minor, and was sentenced to 21 months in prison and is required to register as a sex offender for the rest of his life.

According to the New York Post, the couple withdrew their divorce proceeding from the New York court where it was being heard. They’re not reconciling though, it appears they are trying to keep their divorce private.

Divorce Privacy

I’ve written about the issue of privacy and public access to divorce records before. For example, in the Tom Cruise divorce, his ex-wife could have filed in New York or California, but they chose New York because of privacy laws there.

In Florida, court filings are not private. In fact, it has long been the policy of Florida that all state, county, and municipal records are open for personal inspection and copying by anyone.

In Florida, privacy is not the rule. Far from it. Here, providing access to public records is an affirmative duty of each agency. And, any agency that maintains a public record has to provide to any person, a copy of any public record which is not exempted by law from public disclosure.

The Weiners

In a statement to the New York Daily News, Abedin’s attorney said it’s for the privacy of their family.

“In order to ensure the proceedings have a minimal impact on their child, the parties have decided to finalize their divorce swiftly and privately.”

Privacy would certainly be a change for this couple’s tumultuous and much-scrutinized marriage, which is heading to an end after the sexting scandals.

The New York Daily News article is here.

 

India and Fault Divorce

Posted by Ron Kauffman on

A new Bollywood film concerns a woman who left her husband for failing to provide a toilet. It’s based on the true story of Anita Narre who threatened divorce to get her husband to build one. Do you need grounds to file for a divorce?

Indian Toilet Shortages

Many are surprised to learn that about 60% of India’s households lack access to toilets. That is surprising news for a country associated with ‘high tech’, but the situation is so bad, health advocates launched a “No toilet, No bride” campaign.

And, a family court judge in the state of Rajasthan has ruled that failure to provide a bathroom is an act of cruelty sufficiently significant to be grounds for divorce.

Florida No Fault Divorce

The Indian case is interesting for Floridians because Indian courts can grant divorces only in limited circumstances, by proving fault, such as physical abuse.

I’ve written about no-fault and fault standard divorces around the world before. Florida, as opposed to India, is a no-fault state.

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.”

Many people argue that the introduction of no fault divorce is the reason the United States has a high divorce rate. In fact, many people think so, and want to return to the old “fault” system to promote families and er flush away no fault.

Down the Drain

The divorce case in India, described as a first by The Times of India, came in the case of a woman whose husband refused to provide a toilet, saying they were unnecessary. This forced her to go to the bathroom outside.

“We spend money on buying tobacco, liquor, and mobile phones, but are unwilling to construct toilets to protect the dignity of our family”.

Private bathrooms are in rare supply, and in some places, women have to wait until sunset to answer nature’s call.

This is not only physical cruelty but also outraging the modesty of a woman,” said the judge Rajendra Kumar Sharma.

The ruling comes at a time when the government is running a crusade against open defecation under the `Swachh Bharat Abhiyan’.

The Times of India article is here.

 

Temporary Attorneys’ Fees

Posted by Ron Kauffman on

Canada’s Financial Post has an article explaining temporary attorneys’ fees to get you through a divorce. The process is similar in Canada to here, but then again, there are important difference in attorneys’ fees you should know about.

As the Financial Post asks:

What happens when the parties are not in an equal financial position? As contingency fees are not available in family law, how can a spouse with few assets or little income retain the professionals?

In Canada, the answer is found in the Family Law Rules, which say:

A Court can make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including lawyer’s fees.

The test before interim disbursements may be granted is to show that the case cannot proceed unless the funds are granted. In addition, the party must show that their position is sufficiently meritorious to warrant pursuit, and that special circumstances exist to allow the Court to exercise this extraordinary remedy.

Florida Attorneys’ Fees

Costs can be high in divorce in Florida too. One way to level the playing field of high divorce costs in Florida is to ask one side to pay for attorneys’ fees.

In Florida attorney’s fees may be awarded in a divorce, including enforcement and modification proceedings, separate maintenance, custody and support proceedings and appellate proceedings.

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding.

I’ve written about reducing attorneys’ fees through various means before. The purpose of awarding attorneys’ fees is to make certain that both parties in a divorce proceeding “will have similar ability to secure competent legal counsel.”

There are also fees for frivolous cases. A reasonable attorney’s fee can also be awarded to the prevailing party if the court finds that someone brought a claim that was not supported by the material facts the then existing law to those material facts.

Leveling the Playing Field

While temporary attorneys’ fees may sound like a windfall for the recipient spouse, in many complex matters, one spouse alone may spend $50,000 or more on experts’ fees, with legal fees being in excess of that amount in a divorce.

When making an order for interim disbursement, the court has discretion to decide both when the payment must be made by the wealthier spouse, and the way in which a payment will be accounted for.

Often in Canada, the payment is advanced against a future equalization (property) payment owing by the wealthier spouse. In many cases, it is clear early in the litigation that a property payment is owing — the only issue is “how much.”

Courts also have the discretion to order that the payment of attorneys’ fees be advanced as a loan to the recipient spouse, or on account of spousal support.

And sometimes, a court will simply order payment to be “uncharacterized,” meaning that whether or how the payor is credited will be determined in the future by the trial judge.

The Financial Post article is here.

 

Occupation and Divorce

Posted by Ron Kauffman on

If you marry a flight attendant are you more likely to divorce than if you marry a software developer? A recent report on occupation and divorce asks that very question.

The Study analyzed data from the 2015 American Community Survey, and, based on the number of people in a particular occupation who had married at least once, calculated the percentage of people who divorced.

Librarians have about a 28% chance of divorce, while phlebotomist have approximately a 46% chance.

Another un-surprising part of the study, people with less income are less likely to be married in the first place, and more likely to be divorced.

About 25% of “poor” adults aged 18 to 55 are currently married, compared to 39% of working-class adults, and 56% of middle- and upper-class adults (above the 50th percentile).

What the report found is that there is a divorce rate of at least 48.8% in the occupations “most likely” to experience divorce; the divorce rate is under 22% in the 10 occupations “least likely” to be subject to divorce.

Divorce in Florida

I’ve written about the correlation between occupation and divorce before. The numbers don’t paint the whole picture. If a person divorced and remarried by the time of the Census, they would be counted as married.

There are various reasons cited in the study for the fault behind the divorce rate. It could be that spouses in some jobs are just quicker to jump into the next marriage than others.

The data on occupation and divorce doesn’t reveal whether it’s the nature of the jobs that lead to divorce, or if people prone to unstable relationships are drawn to certain professions.

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 for a higher divorce rate among bartenders than optometrists? Some people think so, and want to return to the old “fault” system to promote families.

Occupation as Predictor of Divorce

So, what are the occupations with the highest divorce rates:

  • Telemarketers
  • Bartenders
  • Flight Attendants

The occupations among the lowest divorce rates:

  • Actuaries
  • Physical Therapists
  • Chemical Engineers

Keep in mind that correlation is not causation. No one knows which bartenders are likely to stay married or divorced, nor give advice on choosing a profession based on the divorce rate.

Nor can the report tell you about those who choose to become bartenders may be less likely to have stable marriages for reasons other than their choice of profession.

Rolling machine operators seem to be in the same category today more because of their declining employment prospects than because of increased temptations to stray.

One question that does not command enough attention is why the correlation between relationship stability and employment prospects is so strong.

Commitment to an unstable partner — someone who runs up the credit card bills, incurs large health care expenses, or needs to be bailed out of jail — can diminish family savings, a source of peril.

The report is available here.

 

Rising Divorce Rates

Posted by Ron Kauffman on

The accepted wisdom is that divorce rates have dropped since the 1980s, and divorce rates have been declining since. A new report out of Great Britain is showing just the opposite, that divorce rates are increasing.

A recent article from the BBC in London reports that there were 106,959 divorces of opposite-sex couples in 2016 – an increase of 5.8% from 2015. It was the biggest year-on-year rise in divorce rates since 1985, when there was a jump of 10.9%.

Of 112 divorces of same-sex couples in 2016, 78% involved female couples.

Charity Relate said rising levels of household debt and stagnating wages could be putting a strain on marriages. For those in opposite-sex marriages, divorce rates were highest for women in their 30s and men aged between 45 and 49.

Overall, there were 8.9 divorces per 1,000 married men and women.

Florida and Divorce Rates

I’ve written about divorce rates in the United States before. Part of the problem with counting divorces in the U.S., is that collecting divorce statistics in the United States is not consistent.

Some counties in some states keep excellent records of finalized divorce cases, an important statistic in measuring divorce rates. Miami-Dade County, for instance has excellent records of filing online. However, other counties in Florida and outside of Florida may not.

Additionally, different American states, and the federal Census Bureau, have had a rocky history of collecting the data from across the country on divorce rates. In fact, the federal government has stopped providing financial support for detailed state collection.

Some states, especially California, have stopped reporting divorce rates entirely.

In the U.S., the increase in divorce rates is being blamed on the Baby Boomers, those born between 1945 and 1954. In the 1970s, Baby Boomers, who were then in their twenties, were equally likely to divorce.

But by 1990, couples in their twenties were more stable, but the Baby Boomers, who were entering their forties, continued to divorce “at unprecedented rates.” Since then, the biggest rise in divorce has the “massive increase” in divorce among women in their fifties.

Back in the UK

A spokeswoman in the Britain said: “Although the number of divorces of opposite-sex couples in England and Wales increased by 5.8% in 2016 compared with 2015, the number remains 30% lower than the most recent peak in 2003; divorce rates for men and women have seen similar changes.”

The most common reason for the increase in divorce rates was “unreasonable behaviour”, with 51% of women and 36% of men citing it in their divorce petitions. Unreasonable behaviour can include having a sexual relationship with someone else.

Overall, women initiated proceedings in 61% of opposite-sex divorces.

Commenting on divorce rates, Chris Sherwood, chief executive of the relationship support charity Relate, said: “It is unclear as to why there was a slight increase in divorces in 2016 and as to whether this rise will continue or not.

“We know that money worries are one of the top strains on relationships and it may be that rising levels of household debt and stagnating pay growth could be contributing factors.”

“Divorce is not something that people tend to take lightly but our research suggests that many people could have saved their marriage and avoided divorce with the right support.”

The BBC report is available here.

 

Gray Divorce

Posted by Ron Kauffman on

Yet another magazine is reporting on the rising phenomenon of “gray divorces,” or divorce among couples who are aged 50 or older. There are a few special concerns you should be aware of when divorcing after age 50.

Gray Divorces

First, some facts. Among the baby boom generation, the divorce rate has doubled since the 1990s. In 2015, up to 10 out of every 1,000 people over the age of 50 divorced, according to a report from the Pew Research Center.

Though these rates are still lower than those of younger generations, it is the increase in the number of divorces, not the actual divorce rate, that is generating interest among family law attorneys and experts.

Reasons vary. “Life is short, and once you sort of are aging and start to see a limited number of years left on your life, you start to put your own happiness first and do the things that you would want to do.”

I’ve written about gray divorces before. Like the emotional aspects, the legal nuances of gray divorce can be different than what younger couples might encounter when dealing with a split. Chief among those nuances are financial considerations, which can present unique challenges for spouses who are at or nearing retirement.

Florida Gray Divorces

When couples choose to divorce in their 30s or 40s, they still have time to recover financially, because adults at that age have several years, if not decades, left in their careers.

But when divorce occurs when a couple is in their 50s or later, the so-called “gray divorce”, careers may either be coming to a close or are completed, and spouses are often living on fixed incomes provided through Social Security or retirement benefits.

Here are some things to consider:

Valuing the Marital Estate – By the time a couple enters the golden years, they may have gold to divide, including businesses, retirement funds, and vacation homes. Valuing these assets can be difficult. The value of a business may not be apparent from balance sheets, and the sale or transfer of assets may have tax consequences. As a result, a financial advisor may be an important component in the divorce.

Medical Care – Health insurance is often tied to the employment of one spouse. With aging comes diminishing health, and declining cognitive ability. Courts may need to intervene if one party has dwindling capacity to handle their own affairs.

Long-Term Arrangements – Legal arrangements, such as wills and trusts, need to be reviewed to make sure they reflect post-divorce wishes. The same is true for long-term care, such as medical directives, living wills and trusts.

Retirement Plans – After 20 years of marriage, retirement plans can be substantial . . . and complex. Retirement plans vary in kind, and they all have different restrictions, tax consequences, distribution and vesting rules.

Lifestyle adjustment – Younger couples have time to re-accumulate wealth after divorce, but in Gray Divorces, the spouses have less time to re-establish themselves financially. One or both may be close to or in retirement, and face living on half of what they earmarked for retirement.

There are special concerns involved in a gray divorce, or when an older couple divorces. As always, information is power, so make a point to seek out experts for guidance.

Though a couple may have carefully planned for their futures when they were married, they return to the drawing board when it comes to estate planning after a divorce.

Most gray divorces involve marriages that have lasted for several decades, which makes it difficult to disentangle the spouses from each other. However, couples who divorce after many years together should receive a close-to-even split of assets, legally putting each spouse on an equal playing field for the future.

The Indiana Lawyer article is here.

 

Paying for Divorce

Posted by Ron Kauffman on

A joke floating around the internet asks:  “Do you know why a divorce cost so much? Because it’s worth it.” The joke, although in bad taste, poses another interesting question: how do you protect yourself from today’s high divorce costs?

An Un-level Playing Field

As Forbes magazine recently reported, divorce is never easy. It represents the end of a way of life you have known for years.

Not only could a divorce wear you out emotionally, it could wear you out financially.

Even the wealthiest may not have sufficient access to capital during a divorce. Assets could be frozen during the divorce. Some turn to friends or family for capital but, for some, this is not an option and certainly it is not an easy ask.

It’s not uncommon for the spouse with the financial power during the marriage to declare war against their former partner by cutting off credit cards and hiding assets.

Those who can’t bear the divorce costs, often “surrender,” reluctantly agreeing to a sub-par settlement, all because he or she can’t afford the steadily mounting divorce costs, or can’t take the stress of protracted litigation, with someone who can afford to litigate a case to death.

Florida Law on Attorneys’ Fees

One way to level the playing field of high divorce costs is to ask one side to pay for attorneys’ fees. In Florida attorney’s fees may be awarded in a divorce, including enforcement and modification proceedings, separate maintenance, custody and support proceedings and appellate proceedings.

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding.

I’ve written about reducing attorneys’ fees through various means before. The purpose of awarding attorneys’ fees is to make certain that both parties in a divorce proceeding “will have similar ability to secure competent legal counsel.”

There are also fees for frivolous cases. A reasonable attorney’s fee can also be awarded to the prevailing party if the court finds that someone brought a claim that was not supported by the material facts the then existing law to those material facts.

Paying for Divorce

People are often surprised to find out that divorce costs so much, they can be shockingly expensive. Attorneys can cost many hundreds of dollars per hour and require substantial retainers up front, and then you have to add on fees for accountants, psychologists, guardians, and other professionals.

Clients often do not have the money to simultaneously engage in divorce proceedings and be able to afford living expenses such as mortgage payments, school tuition and other personal costs during the proceedings.

Divorce funding can “level the playing field,” enabling people to fund their attorney and expert fees while maintaining their standard of living. A business niche has emerged to provide financing for those without the immediate means to fund the legal battle.

This levels the playing field significantly against the well-known tactic of wealthy husbands or wives dragging on divorce proceedings and costs ad infinitum until their spouse runs out of money and are forced to concede.

With independent financing, these individuals can pursue settlements they might not otherwise have been able to attain.

The Forbes article is here.

 

What if a Spouse Dies During the Divorce?

Posted by Ron Kauffman on

Well this is a gloomy post: it’s about death and divorce. In November 1789, Benjamin Franklin wrote: “In this world, nothing can be said to be certain except death and taxes.” If roughly half of marriages end in divorce, there are some odds that a spouse will die during the divorce case. What happens legally and emotionally when a spouse dies during the divorce?

Emotional Roller Coaster

As the Washington Post reports, a couple of years after a wife and husband separated — but before he reached a divorce settlement — he died of a heart attack at age 57.

Overnight, the wife went from almost-ex-wife to widow. But, nearly six years later, I still feel as if I was widowed on a technicality. A real widow doesn’t have a divorce lawyer and a Match profile. A real widow is pining for her spouse, inconsolable.

Sometimes she calls herself a “partial widow.” To make her point, she mentioned a friend whose fiancé died three weeks before their wedding. “She doesn’t get to call herself a widow and I do?” “That’s ridiculous.”

Misplaced Emotions

“It’s called disenfranchised grief,” and it is also referred to as the grief that has no voice, because it’s a grief that our society typically does not recognize.”

It occurs in situations that fall outside the norm and might also include, for example, mourning the death of a former spouse or an extramarital lover. A widow who was about to be divorced has no defined place in society, so we often don’t know what we’re supposed to do.

Even responding to condolences can be awkward because there’s an element of not wanting to accept sympathy for something that is a misconception on their part. Others feel for the surviving spouse in a way that doesn’t feel accurate to the experience. It’s a different kind of pain than they’re assuming.

Legal Implications

I’ve written about divorce problems before. When a spouse dies during a divorce, the death of the spouse can have major legal implications that extend far beyond the mixed feelings you may have about losing your soon-to-be ex spouse.

Divorces are unlike other civil cases. It is true that in ordinary civil cases, the death of a party does not deprive a court of the power to enter a judgment after the death of a party. This means a court can still rule. This happens frequently in breach of contract actions, and especially in personal injury cases.

However, the general principle does not apply to divorce actions since the death itself has already terminated the marriage.

In Florida, the general rule for divorce is that there can be no judgment of divorce rendered after the death of either of the parties, since that event of itself terminates the status of marriage.

This immediate stopping of the divorce when a spouse dies during the divorce process can cause a lot of problems. This is especially true in divorce cases in which the parties are elderly, or sick, and death is a very real possibility. In those cases, the parties should seriously consider ways to avoid the court losing jurisdiction because of death.

The Washington Post article is here.

 

Tips to Find the Perfect Attorney

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On behalf of Ronald H. Kauffman, P.A. posted in Attorneys on Thursday, December 12, 2013.

I’m not just marketing myself here. OK I am, but that’s not the point of this post. divorce and family cases have become complex, and the laws are changing fast. Hire an expert. Attorneys who are “Board Certified” have the only expert designation allowed by the Florida Bar. You have to start your divorce with which lawyer to choose. So, how do you choose one? The Huffington Post offered up a few tips I’d like to share:

Tip #1

Breathe!

You’re under pressure, your spouse’s attorney is flooding you with nasty letters. Guess what? This is a life crisis not an emergency.

Choosing a divorce lawyer is one of the most important things you’ll ever do. Researching options will pay huge financial and emotional dividends.

Tip #2

Tell Your Greek Chorus to Quiet Down

Most of us turn to our family, friends, and colleagues for advice. They all have agendas. Your tennis partner — still reeling from his wife’s affair with her personal trainer — will gladly produce the number of his gladiator. Your recently divorced friend who got “fleeced — I’m telling you fleeced!” will eagerly refer you to her shark litigator.

While we all need support during this time, what your loved ones don’t know can hurt you. Do your own homework. Only you can know what kind of lawyer is the right fit for you.

Tip #3

Take a Personal Inventory

Ask yourself: Is a long, bitter courtroom battle best? Try to think beyond today’s pain and rage. Do you want to squander both your kids’ college fund and any potential good will in a litigation?

Consider preserving your family’s resources and the possibility of dancing with your ex at your daughter’s wedding.

Tip #4

Educate yourself

There are many ways to get divorced. The most common approaches – Mediation, Collaborative Divorce, and Litigation – differ in a number of important ways. You need to get up to speed on them.

If you’re not sure which “type” of divorce would be best for you, interview attorneys who are the experts.

Tip #5

Avoid a sales pitch

Attorneys have an ethical obligation to explain all legal process options. If you’re not getting good answers, go elsewhere.

Tip #6

Cheaper ain’t a bargain. Expensive ain’t better.

Tip #7

Choose a good listener

A good lawyer will take the time to put you at ease by listening carefully to your story, asking relevant questions, addressing your immediate concerns and offering emotional support.

Finally…

Tip #8

Trust your gut

Picking a divorce lawyer is like dating. If there’s a voice in your head whispering “run,” then run. You’re getting out of bad relationship; don’t jump into another one.