Tag: divorce court

Increase in Court Openings = Increase in Divorce

Posted by Ron Kauffman on

An increase in court openings are signaling an increase in divorce filings. Around the country divorce and family law courts are starting to re-open, and there has been a noticeable increase in the number of people filing for divorce and custody too. So it’s not just you, if that was what you are thinking. As we appear to be near the end of the pandemic shutdown, many couples are separating and seeking divorce.

Covid Divorce Court
Court Attire Post-Quarantine

Covid Divorce Court

According to figures from the Superior Court of California published in the New York Times, divorce filings are up significantly in Los Angeles over the last five months. And some lawyers and relationship experts say that divorce filings in New York and other states are also on the rise.

Of course, it’s difficult, if not impossible, to know whether the higher rates are because more people want to get divorced or because many courtrooms were closed during the pandemic, creating a backlog. Though New York keeps its divorce records sealed, attorneys have seen enough anecdotal evidence to know that divorces seem to be on the rise almost everywhere.

During the pandemic, many people were experiencing marital problems and putting off splitting up for practical reasons.

In some cases, couples were waiting for the vaccines to be approved and to gain more social and economic stability before leaving their marriages.

The same is probably true for Florida, where many divorce attorneys are anecdotally reporting evidence of new filings and new clients seeking consultations to discuss filing for divorce and custody.

Florida Divorce

Divorce rates have also increased because it is easier to get a divorce. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery. This required additional expenses, making divorces more expensive and cumbersome than before.

I’ve written about fluctuating divorce rates before. Part of the problem with keeping track of divorce court filings in the U.S. is that, unlike in other countries, collecting divorce statistics in the United States is not consistent in all of the states.

Different states keep different statistics and within each state, individual counties within those states keep excellent records of finalized divorce in some cases but not in other counties. These varying statistics are an important source for measuring divorce rates, and they are not consistent.

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. One of the reasons for the discrepancy in keep statistics is because the federal government stopped providing financial support to the states for detailed state collection of data.

Divorce Cases Spreading

Two months ago, 2,704 married people responded to one recent survey regarding the effect on marriages from the reopenings after lockdowns. Among the survey’s questions was: “Since the reopening following the lockdowns of 2020/2021 and a significant return to normal from the changes of the Covid-19 pandemic, has your marriage relationship been impacted?”

21% of respondents answered that the pandemic had harmed their marriage, a 10% increase from a survey asking the same question the year before.

The rising number of divorces could reflect marital problems that had been hidden from view for much of the last year and half. Now that many people have been vaccinated, things are starting to normalize. That return to normalcy, or at least semi-normalcy, could mean that couples are finally completing divorces they were forced to delay.

Extramarital affairs, often times a trigger for filing for divorce, may be rising too. During the pandemic hotels and bars were shut down and there were few people traveling for business, so there was no place to go to have an affair.

Now that things are opening up again, it is to be expected that couples are getting divorced because they either caught a spouse having an affair, or they are having one themselves.

There’s a lot of angst out there, which is why many divorced people are now approaching new relationships by holding potential partners to a higher level of maturity and authenticity, and that starting from the dating level, will never again ‘settle’ for just anyone.”

The New York Times article is here.

 

Free Speech and the Stark’s Divorce

Posted by Ron Kauffman on

Pity the Starks of the North. As if the Red Wedding wasn’t enough, now they filed for divorce. To keep things calm, the divorce court restrained them from harassing, abusing, or making disparaging remarks about the other in front of their children and employers. Then things went south.

Winter is Coming

After a five-year marriage, Pamela Stark filed for divorce from her husband, Joe Stark. She is an attorney (formerly a prosecutor) and filed her complaint pro se. He is a sergeant with the Memphis Police Department.

Pamela’s email to the town mayor claimed she was a victim of domestic violence by Joe and a victim of misconduct by the entire Police Department in the handling of her investigation.

She named her husband by name and rank and described her version of the physical altercation between them and the events that followed. Pam asked the mayor in an email to “look into this before it goes further.”

Pamela also wrote the following in a Facebook post:

I speak now as a recent victim of domestic violence at the hands of a Memphis Police Officer. I can attest to how wide the thin blue line can get . . . However it is even more devastating. Who do you turn to when those worn to serve and protect and enforce the law, don’t.

Joe asked the divorce court to order the Facebook post removed, arguing “that such dissemination of these allegations could cause immediate irreparable harm to his reputation and employment” because he and Pam have mutual friends on Facebook. The judge agreed.

Florida Divorce and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children in custody cases. Florida courts have to balance a parent’s right of free expression against the state’s interest in assuring the well-being of minor children.

In one Florida case, a judge prohibited a parent from speaking Spanish to a child. The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

In the Florida case, the judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

An appellate court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy. Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children.

In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

Chilling Speech

Joe testified that his co-workers at the police department saw Pam’s Facebook post, that they have many mutual friends on social media, and that a special prosecutor from another city was appointed to conduct an investigation regarding the alleged incident of domestic violence involving him and Pam.

The trial court ordered that the post be removed:

  • The Court: Ms. Stark, please stand. Are you going to comply with this Court’s orders?
  • Ms. Stark: No, I’m not.
  • The Court: All right. I’m making a finding that you are in direct contempt of court by willfully refusing to comply with this Court’s orders. You will be held held in custody until such time that you decide that you want to change your position and you apologize to this Court.

Pam at first refused to take down the post, but was jailed for four hours and then did. Pam appealed the contempt order. However, the divorce case in which the restraining order was entered was still pending.

Because she appealed from the contempt order, she was limited in her ability to raise issues, and when Pam took down the Facebook post, the contempt issue became moot.

The Reason article is here.

 

Divorce Court Circus

Posted by Ron Kauffman on

America’s Mayor, Rudy Giuliani, was reportedly yelling and cursing his way through his recent divorce court hearing in New York. The judge blasted both the ex-Mayor and his wife, Judith Nathan, for turning the room into a divorce court circus.

Divorce Court Circus

Big Apple Circus

According to news reports, Giuliani snapped “Goddamnit!” at one point when accused by a lawyer for Nathan of failing to pay a $21,000 in nursing home bill arrears for her mother, as promised.

“That’s total bulls–t! That’s total bulls–t!” he hissed at another point, when the opposing lawyer, Bernard Clair, later suggested that Giuliani’s reported mistress, Maria Ryan, could be the one to grant appraisers access to multiple Florida properties they’re fighting over.

How do you avoid turning your trial into a divorce court circus?

Florida Divorce

If criminal court judges see the worst people acting their best, family judges see the best people acting their worst. Divorces are stressful, and issues like child custody, relocation, and domestic violence can take their toll on people.

I’ve written about courtroom behavior before. Since you’re always being evaluated in court, and in light of the Giuliani divorce antics, what follows is a list of “dos” and “don’ts” to avoid your own divorce court circus. (These are true stories by the way.)

  • 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 during your testimony.
  • 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.
  • Do – Keep your pants on.
  • 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 won’t help your case.

Sadly, these are cases of what people have actually done in court, and all of these instances are documented. Consider the seriousness of the divorce process and the stress family everyone is under to do the right thing.

A New York State of Mind

Acting as the divorce court circus master, Supreme Court Justice Michael Katz chided:

“Mr. Giuliani!” “Don’t interrupt the proceeding. You have lawyers representing you”.

The Giulianis don’t get along well together. For example, he alleges that Nathan approached him at the Emerald Dunes Golf Club in Florida and took his photograph. Nathan’s side said it never happened and that Giuliani shouted at her and insisted he was at the club buying items for his girlfriend’s daughter.

The judge reluctantly stepped in to play peacemaker.

“Whoever is in the room first gets to stay in the room. If Mr. Giuliani is in one room in one of their common clubs, he can go to a different room and visa versa.”

Earlier, the judge scolded at the parties and lawyers:

“At this juncture in a case — it’s been almost a year since filings — the process calms down. Yet it’s still a circus.”

Asked outside court what was holding up the divorce, Giuliani said, “Her.”

The New York Daily News article is available here.

 

Divorce Dress Code?

Posted by Ron Kauffman on

There are a lot of curious family laws around the world, but a divorce dress code? One of the most peculiar laws comes from the African nation of Ghana, where divorce is permitted on one condition: the parties attend divorce court dressed the way they dressed at their wedding ceremony.

Divorce Dress Code

This is your Ghanaian Divorce

According to viral news reports – from such trusted sources as the internet – citizens of Ghana are allowed to divorce but only if they attend court dressed the same way they dressed at their wedding; with wedding gowns and tuxedos.

This condition creates very humorous situations in the so-called “Divorce Rooms”, where Ghanaians must go if they want to end their marriage.

In other African countries like in Togo, to be able to divorce, first you must go to your mother-in-law and explain your reasons for divorce in the hope you can receive her approval. Togo today may have a 0% divorce rate.

Florida Divorce

The official term for divorce in Florida is “dissolution of marriage”, you don’t need to show fault, and you definitely don’t have to wear your wedding gown.

Instead, you need to prove you have been a resident of the State of Florida for more than six months before filing your petition and be able to state under oath that your marriage is “irretrievably broken.”

Additionally, mental incapacity is grounds for divorce in Florida, but a court must determine one of the spouses to be incompetent after an examination by a committee. If there is a declaration of mental incapacity, there is a three-year waiting period.

While there are no dress codes in Florida, I’ve written about how you should dress in court before. For example, and as one couple painfully learned, don’t come to a custody hearing wearing your Nazi uniform. You should instead dress in a neat and professional manner.

Meanwhile in Nigeria…

Sure, the Ghana divorce dress code story is fake news. But the idea of dressing appropriately for court is a universal concept. It shows respect for yourself, your children, the court, and the people who labor in it.

In other news, it appears a Nigerian man really did marry his guitar in a ceremony in Lagos. Harris Best shared photos of himself and his guitar – which he dressed in a white wedding gown – on his Twitter account. He took other musical instruments to the wedding venue at Aguda Local Council Development Area in Lagos.

The PM News article from Nigeria is here.

 

Divorce Denied

Posted by Ron Kauffman on

Can you lose a divorce case? An English woman who wants to divorce her husband of 40 years actually lost! The British Supreme Court ruled she must stay married because her husband refuses to divorce. How does the recent British case compare with a Florida divorce?

Divorce Denied

Stuck

Five judges at Britain’s highest court unanimously upheld rulings by a family court and the court of appeal that Tini Owens, 68, cannot divorce, but must stay married to Hugh Owens, 80, despite her complaint that the marriage was loveless and had broken down.

“The appeal of Mrs. Owens must be dismissed. She must remain married to Mr. Owens for the time being,” the supreme court judge Lord Wilson said in the majority ruling. “Parliament may wish to consider whether to replace a law which denies to Mrs. Owens any present entitlement to a divorce in the above circumstances.”

Tini’s case has thrust Britain’s lack of provision for no-fault divorce into the spotlight. Even spouses mutually seeking to end a marriage must, unless they have been living apart, assign blame and make often damaging allegations that lawyers say inflame potentially amicable proceedings.

Florida No-Fault

I’ve written about no-fault divorce before. Historically in Florida, in order to obtain a divorce, one had to prove the existence of legal grounds such as adultery. This often-required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

In 1971, Florida passed its “no-fault” divorce law. The rationale behind no-fault laws was that requiring someone to prove legal grounds to dissolve the marriage was not serving any useful purpose.

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010.

Stiff Upper Lip

Back in Britain, Tini and Hugh Owens married in 1978. Tini first consulted solicitors about a divorce in 2012, but despite her having an affair the couple continued to live together until February 2015.

Tini asked for divorce because her husband prioritized work over home life, his lack love and affection, his moodiness, and they had grown apart. Her husband denied the allegations about his behavior, and still hoped his wife would change her mind and return to live with him.

The trial judge dismissed her divorce, ruling that her case was flimsy and exaggerated. The judge said that while Hugh was “somewhat old-school”, Tini was more sensitive than most wives.

She appealed, where it was again dismissed. The three appeal court judges said she had failed to establish, in the legal sense, that her marriage had irretrievably broken down, despite one saying she had reached her conclusion with “no enthusiasm whatsoever”.

The supreme court’s judgment on Wednesday morning was her last hope. They noted:

Tini would be able to divorce in 2020, when the couple will have been separated for five years and she will be eligible for a divorce without consent or evidence of fault.

In the U.K., keeping a stiff upper lip is an attribute of the British who stay resolute and unemotional in the face of adversity. Tini will just have to stick it out until 2020.

The Guardian article is here.

 

There’s No Divorce Emoji

Posted by Ron Kauffman on

Emojis and emoticons are popping up in divorce cases, and people are landing in hot water. My new article on emojis and legal ambiguity, which was just published in the Florida Bar Family Law Section Commentator, can help anyone faced with interpreting emojis avoid feeling ????.

Emojis ????

Originating in Japan in 1998, emojis are small digital images used to express an idea or an emotion in electronic communications.

Today, roughly 70 percent of the public uses some type of social media.  Social media has changed many of the ways in which we communicate. For one thing, social media has increased our use of emojis.

One report found more than 92 percent of people use emojis on social media. Emojis have spread to the business world, where nearly half of workers add emojis to professional communications, and companies use them to increase sales and brand awareness.

Emojis in Court ????‍⚖️

They can’t simply be overlooked by courts, because emojis and emoticons say a lot about the sender’s intent. Ignoring them would be like calling a witness to the stand and ignoring their facial expressions.

Emojis fail the ‘duck test’: if it looks like a duck, and quacks like a duck, then it is probably a duck. That’s because emoji meanings can be so puzzling, a “duck” emoji, may mean anything but a duck.

For example, a U.S. federal court recently held that a “Smiley” emoticon =) converted an email into a joke, the email meant the opposite of what it said, and a criminal defendant’s lawyer did not violate the Sixth Amendment by sending the prosecutor an email joking: “stipulate that my client is guilty. :)”

An Israeli court awarded damages based on emojis after a prospective tenant sent a landlord a text saying: “Good morning ???? we want the house???????? ????‍ ✌ ☄ ???? ???? just need to go over the details. . .” The landlord removed his ad, then the tenant disappeared. The court awarded the landlord 8,000 shekels.

Ambiguity: What does ???? Mean?

I’ve written about marital settlement agreements and prenuptial agreements before. There are unique issues with emojis, rendering them hard to interpret. For one thing, there’s no definitive source as to what emojis mean.

That unknown can make agreements in an email, a text or an actual marital contract, ambiguous. Marital agreements are interpreted like any other contract. Basic interpretation begins with the plain language of the contract, because the contract language is the best evidence of intent.

Courts are not supposed to rewrite terms if they are clear and unambiguous. Anyone seeking to show a court any evidence outside a fully integrated contract, must first establish that a contract is ambiguous.

A contract is ambiguous when its language is reasonably susceptible to more than one interpretation. That’s where emojis come in, they can be very ambiguous. But why?

Emojis are also small, making them hard to read. Interpreting an emoji can depend on what kind of device they appear in. For example, a 24-inch computer monitor displays thing differently than a 4-inch phone screen.

Emojis don’t always mean the same thing universally, so there can be many different meanings depending on which country you are in. For example:

????

The “Folded Hands” emoji symbolize “please” and “thank you” in Asia. However, in the U.S. it means: “I’m praying,” and frequently, “high-five”!

????

The “Pile of Poo” emoji is a pun on the Japanese word for excrement (unko), which starts with the same “oon” sound as the word for “luck” and is complimentary in Japan. But, in the U.S. the emoji is used to express contempt. Strangely, Canadians use the emoji the most.

Conclusion

You can’t understand an emoji’s meaning just by looking at one. People use emojis in ways that have nothing to do with the physical objects they represent, or even what typographers intended. There are regional, cultural and slang meanings to consider too. After all, emojis’ inherent ambiguity is one reason why they’re increasingly becoming evidence in court.

The Spring 2018 Family Law Commentator is here.