Tag: family law attorney

Family Law, Free Speech & Insulting a Lawyer

In family law cases, courts can issue injunctions that curb your right to free speech, especially if children are involved but maybe not if you are insulting a lawyer. A recent case out of Michigan asks if the trial court can protect a divorce lawyer against threats from a dissatisfied former client.

Speech Restriction Family Law

Chilling Speech

A former husband was placed on probation after pleading no contest to two violations of a domestic violence injunction that prohibited him from contacting his ex-wife. As a condition of his probation, he was barred from engaging in “any assaultive, abusive, threatening, or intimidating behavior.”

While he was out on probation, the former husband violated his probation because of a series of e-mails he sent over the course of a month to his former attorney who represented him in his divorce and the injunction proceeding.

Cruelly, he called his former lawyer a “pussy” and a “negligent piece of shit,” accusing him of “ignor[ing] child abuse” and owing the former husband money, and finished with a: “Fuck you.”

In his later e-mails, he copied various other people, including the county prosecutor, and referred to his former lawyer as a “fraud” and a “twat,” accused him of breaking the law, and even accused the presiding judge of ignoring evidence of child abuse and parental alienation.

Some of the e-mails included photos, such as a photo of the presiding judge and his family at a judicial investiture and another of the former husband’s children, edited to appear as though they were in a jail cell.

The former lawyer reported the emails to the probation officer, who filed a warrant request alleging a technical probation violation for his “threatening/intimidating behavior”. At the probation violation hearing, the former lawyer testified that the e-mails made him fear for his safety.  He also testified about several telephone calls in which he allegedly threatened him, although he could not recall the substance of those threats.

After the presentation of evidence, the former husband argued that the e-mails were constitutionally protected speech.  The trial court disagreed, finding that he intended to threaten and intimidate his former lawyer, and the speech was not protected under the First Amendment because the language in his e-mails constituted fighting words.  He appeals.

Florida Speech Restrictions to Protect Against Violence

I have written about speech, domestic violence in family law cases before. To state a cause of action for protection against domestic violence in Florida, you must allege sufficient facts demonstrating that you are a victim of domestic violence or have reasonable cause to believe you are in imminent danger of becoming a victim. Domestic violence means, in part, any assault, battery, or any criminal offense resulting in physical injury of one family or household member by another family or household member.

An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance. Fighting words, or words that would tend to incite an immediate breach of the peace could be actionable but it would depend on the circumstances.

Muffled in the Mitten State

On appeal, the former husband complained the trial court violated his First Amendment rights by finding him guilty of a probation violation based on constitutionally protected speech.

Under the Constitution, protected speech under the First Amendment includes expressions or ideas that the overwhelming majority of people might find distasteful or discomforting.” However, the right to speak freely is not absolute.”

States may restrict certain categories of speech that by their very utterance inflict injury or tend to incite an immediate breach of the peace. Here, the trial court erred in concluding that the former husband’s speech was not protected by the First Amendment because it was threatening in nature.

The right to free speech does not extend to “true threats,” which are defined as statements in which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.  Excluded from this category are jests, hyperbole, or other statements whose context indicates no real possibility that violence will follow.

To establish a true threat, the State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The true-threat exception to the First Amendment encompasses only physical threats, and our Supreme Court explicitly declined to extend the exception to encompass nonphysical threats.

The trial court should have assessed whether the former husband intended to communicate a serious expression of an intent to commit an act of unlawful violence against the lawyer or whether the purported threats were physical.

Although his e-mails were offensive and inappropriate, they did not express an intent to commit an act of unlawful physical violence.  Accordingly, his speech did not fall within the true-threat exception to the First Amendment. The emails were also not “fighting words,” personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.

Generally, speech made over the Internet, far removed from any potential violence, is not considered to be inherently likely to provoke a violent reaction. Although the former husband’s language might provoke violence if delivered in person, the fact that it was communicated via e-mail, far removed from any potential violence, renders it unlikely to provoke a violent reaction.

The opinion is here.

Beautiful No Fault Divorce

Divorce lawyers hear many reasons for filing for divorce. “My spouse is too beautiful”, however, is a new one. But it does not matter as most states abolished fault as a ground for divorce. But in some state legislatures there is an effort to overturn our system of no-fault divorce.

beauty no fault divorce

In the eye of the beholder

A prominent right-wing commentator, Steven Crowder, is making waves this month after he complained his ex-wife started the divorce process on her own. Crowder emphasized the divorce was against his will, and is blaming the no-fault system of divorce:

“Since 2021, I’ve been living through what has become a horrendous divorce. . . This was not my choice. My then wife decided she didn’t want to be married anymore. And, in the state of Texas, that is completely permitted.”

Crowder’s comments come on the back of recent proposals by state legislatures to overturn no-fault divorce laws on the books in Texas, Nebraska, and Louisiana. The repeal of no-fault divorce would hit Zambian husband, Arnold Masuka, hard.

Masuka has taken the extraordinary step of seeking the dissolution of his marriage because his wife is exceptionally beautiful.

This surprising revelation left officials and witnesses in awe at a local court in the Zambian capital city of Lusaka. The newspaper, Zambian Observer, reported that during the divorce proceedings, Masuka shocked those present in court when he candidly expressed to the judge that his wife, Hilda Muleya, possessed a beauty that had caused him countless sleepless nights.

The sheer allure of his wife had become an overwhelming source of anxiety for him, leading him to make this unconventional request. Masuka explained to the court that he lived in a state of perpetual fear, constantly worried about the possibility of losing his wife to another man.

Florida No-Fault Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce. Interestingly, given the recent attack on no-fault divorce, it was former Governor Ronald Reagan of California who signed the nation’s first no-fault divorce bill.

The no fault divorce law eliminated the need for couples to fabricate spousal wrongdoing in pursuit of a divorce; indeed, one likely reason for Reagan’s decision to sign the bill was that his first wife, Jane Wyman, had unfairly accused him of “mental cruelty” to obtain a divorce in 1948.

I’ve written about divorce and infidelity issues before. The no-fault concept in Florida means you no longer have to prove a reason for the divorce, like your wife’s exceptional beauty. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Lost in Lusaka

Masuka’s increasing fear of his wife’s beauty had grown so intense, that he found himself hesitating to leave his wife Hilda unattended. He stopped going to work, and was totally consumed by the nagging thought that his wife might be lured away by other suitors.

In Masuka’s eyes, Hilda, originally from Gokwe, Zimbabwe, was the epitome of beauty. Among all the women he had encountered in his life, none had captivated him quite like her. This powerful attraction had become both a blessing and a burden, fueling his insecurity and prompting him to take this unusual legal recourse.

As the court listened attentively to Masuka’s heartfelt plea, it became evident that his intentions were driven by genuine concern for his wife’s well-being. However, whether the dissolution of their marriage was a viable solution remained to be seen.

Ultimately, the fate of Arnold Masuka’s marriage rests in the hands of the court, which will consider the implications of his request for dissolution.

The Nigeria World article is here.

The Constitutional Right to “Divorce” and An Interesting Coronavirus Thought: World 2.0

There are a lot of intersections between the Constitution and family law. Two law professors offer one constitutional right not considered much: the right to unmarry. Some would refer to it as the right to bifurcate your divorce case. And as an interesting thought on the coronavirus, are we in World 2.0?

Constitutional Right Divorce

It’s a Constitution We’re Expounding

Reason discusses two law school professors, Brian L. Frye and Maybell Romero, want to marry. But they have a problem. They can’t marry each other because they’re both currently married to other people.

They want to end their existing marriages, and their spouses have even agreed to divorce. But the government will not allow them to re-marry until it decides to dissolve their current marriages.

The Constitution protects the fundamental right to marry the person of your choice, so long as the choice is mutual. But the government can and does regulate the dissolution of marriages.

While people can divorce, they need the government’s permission. A marriage isn’t over until a government official says it is. And a person cannot remarry until their divorce is final.

During the quarantine brought on by the coronavirus, the professors believe that people should be able to end a marriage immediately, and start a new one whenever they want as a matter of constitutional right.

Florida Bifurcation of Divorce

I’ve written about various family law issues before. Sometimes, people need a divorce, and like law professors, need one fast. Can you get an immediate divorce?

Put another way, when can a family law judge enter a dissolution of marriage final judgment, but reserve jurisdiction to determine all of the other issues in a divorce relating to custody, support, and property rights for later?

In a highly unusual procedure, there’s also a trifurcated dissolution. The family law court first dissolves the marriage. Then separates the remainder of the financial issues, and reserves on timesharing and child support for the children.

The real issue is bifurcation, and it is a split procedure of entering a final judgment to divorce and keep power over the case to determine all the other issues. The practice is rare and limited to special cases.

In general, family law judges try to avoid this kind of split procedure. The law is designed for one final judgment and one appeal of divorce. Splitting the process can cause a lot of legal and procedural problems which result in delay and additional expense to people.

So, in Florida this split procedure is really only used when it is clearly necessary for the best interests of the parties or their children. The convenience of two law professors to remarry would not justify its use.

The Constitutional Right to Divorce

Because of the quarantine, Professors Frye and Romero hit on a timely and recurring problem in family law: people are stuck in marriages they want out of, but cannot remarry until a government official has permitted it.

State law determines who can marry, when they can marry, and how they can marry, subject to constitutional limitations. Different states have regulated marriage differently, some more liberally than others.

Historically, the regulation of marriage and divorce has been very unjust. In Pace v. Alabama (1883), the U.S. Supreme Court held that a state law prohibiting interracial sexual conduct did not violate the Equal Protection Clause. Plessy v. Ferguson (1896) held that state laws prohibiting interracial marriage were constitutional. Loving v. Virginia, 388 U.S. 1 (1967) ended the ban. We just went through a similar tortured history with same sex marriage.

In part because of the history of unjust state laws, the professors believe people should be able to end a marriage whenever they want. In fact, they believe it is a constitutional right.

If marriage is a fundamental right, then unmarriage must also be a fundamental right. After all, the Supreme Court held in Obergefell that marriage is a fundamental right because it expresses individual autonomy and honors the mutual desire of two people to be joined in perpetual union.

When you file a marriage certificate, you are married (ed. Florida has a 3-day waiting period after issuance of the license before you can get married). But when you file a divorce petition, you aren’t divorced.

The fundamental right to marry recognizes that the Constitution prohibits the government from telling people who they have a right to love, and requires the government to make the economic and social benefits of marriage available to everyone who wants to exercise them.

Interesting Coronavirus Thoughts: World 2.0

Interesting thoughts from the website Marginal Revolution. We are living in a new age. But is it World 2.0?

World 1.0 World 2.0
Physical Digital
Suit, tie, wristwatch, office Good lighting, microphone, webcam
Commute + traffic jams Home + family
Cities Internet
$100k for college Not paying $100k for a webinar
Too much technology Too little technology
Assume some government competence Assume zero government competence
WHO Who?
20th century 21st century

The abstract on the “Right to Unmarry” is here.

Happy Thanksgiving

The divorce and family law offices of Ronald H. Kauffman, P.A. will close at 1PM on Wednesday, November 21 for the Thanksgiving holiday. We will re-open at 9AM on Monday, November 26. We wish you and your family a safe and happy Thanksgiving holiday.

Thanksgiving timesharing

Before Thanksgiving’s arrival is the time to resolve child custody and timesharing problems so you can enjoy your turkey dinner with minimum stress for you and your children.

Below are suggestions to make your Thanksgiving visitation issues a little easier:

Alternate. Some families alternate Thanksgiving every other year. If you get the kids for Thanksgiving this year, next year will be the other parent’s turn. Having a regular plan to fall back on can eliminate the potential for what is fair.

Be flexible. An easy Thanksgiving schedule for everyone may require some changes from the normal visitation schedule.

Be respectful. You may not want to be friends anymore, but you need to figure out how to communicate with your ex without all the emotional baggage.

Don’t mix issues. Do not bring up unrelated issues which could make a problem free Thanksgiving dinner impossible. Set aside your differences until after the holiday season.

Pick your battles. Thanksgiving may be more important to you than Easter is to your ex-spouse. Don’t fight just for the sake of fighting.

Protect the children. Your children’s memories of Thanksgiving should be about great food and family fun. They should not be forced to witness you and another parent arguing.

Plan. Start talking about the holiday visitation schedule sooner rather than later, the longer you wait the harder it can be.

Thanksgiving can be stressful. But the weather has cooled and the kids are on vacation. Try to make the holidays the best time of year.

 

Family Court Services Lunch and Learn

I wanted to thank Family Court Services for hosting their Lunch and Learn series yesterday at the Family Division court located in the Lawson E. Thomas Courthouse Center. A special thanks to Judge Jason Emilios Dimitris and Dr. Netta Shaked for inviting me to speak with them on how to “Keep Calm and Survive a Licensing Board, Florida Bar, or JQC complaint.”

family law

Family Court Services

Where do parents turn to when they are unable to focus on their children’s needs due to their own turmoil in divorce and family law proceedings? Where can children find people to talk to who know what they are going through? The answer is Family Court Services.

Miami-Dade County is fortunate to have Family Court Services, which has been providing unique and crucial services to children and families for more than 20 years.

Family Court Services also assists all the judges and general magistrates in the family division with some of the Court’s most difficult family cases by providing solution-focused and brief therapeutic interventions.

KidSide

The mission of Family Court Services is helped through KidSide, Inc., a 501(c)(3) not-for-profit organization that supports Family Court Services in its mission to help high-conflict families heal. Gifts and donations to KidSide, Inc. are tax deductible to the extent provided by law.

Information on helping KidSide is here.

 

Family Law is Moving!

We’re pleased to announce that, beginning Monday, May 7, 2018, one of Florida’s premier marital and family law firms, the Law Offices of Ronald H. Kauffman, P.A., will be starting the workday in our new offices at One Biscayne Tower.

One Biscayne Tower

That’s right, we’re moving around the corner, across the street from Bayfront Park and Biscayne Bay. The new office building is named One Biscayne Tower and the address is:

2 South Biscayne Boulevard

Suite 3400

Miami, FL 33131

One Biscayne Tower is an iconic skyscraper on Biscayne Boulevard across from Bayfront Park. It comprises “Class A” office space and has been a long-standing symbol of the City of Miami.

The building often appears on postcards of the Miami skyline and is a signature building of Miami. Our new offices provide sweeping views of beautiful Biscayne Bay, the park, and bustling downtown Miami.

One Biscayne Tower has won five Office Building of the Year (TOBY) Awards, including the 2007 Miami-Dade TOBY Award and the 2007 BOMA Southern Regional TOBY.

Ronald H. Kauffman, P.A

Specializing in all family law matters both domestically and abroad, our lawyers are experienced in sophisticated marital and family law cases and led by a lawyer who is board-certified in marital and family law by the Florida Bar Board of Legal Specialization and Education.

A “Super Lawyer”, accomplished writer and speaker, Executive Council of the Florida Bar’s Family Law Section, our attorneys and firm have been professionally admired for serving our clients with the utmost skill, discretion and confidentiality in divorces, alimony, child custody and relocation cases, as well as prenuptial and postnuptial agreements.

Our firm website is here.