Treating Children of Divorce: The Legal Do’s and Don’ts for Pediatricians

Thousands of families experience the stress of divorce each year. While parents who are in the midst of a separation should put aside their differences for their child’s wellbeing, there are those that will misuse their child’s pediatrician to exclude the other parent from-decision making – potentially placing the physician in the middle of the dispute.

Screen Shot 2018-12-12 at 5.34.45 PMCommonly, parents and guardians will ask their child’s doctor to send a letter to the other parent or to a lawyer amid complex divorces. Doctors are often uneducated on how to properly help parents in such a conflict, including communication protocols, setting rules about what will be discussed in front of the child, and how to keep records for legal cases.

Last month, Kluger Kaplan’s Lindsay Haber spoke at the American Academy of Pediatrics (AAP) Convention during the education session, Children of Divorce: Helping Children and Families Manage the Challenges, leading the discussion about the legal perspective of treating children with divorced parents. This particular issue is multifaceted because there is not a one size fits all solution. Cases deliberated were approached first from a medical perspective and then followed by the legal perspective, as Lindsay educated pediatricians about their role in common problems that arise.

She advised the group to not overstep boundaries and to preserve neutrality by not recommending lawyers to their patients. She also left the pediatricians with practice changes they may consider with future patients including:

* Creating family assessment intake forms to be filled out yearly to learn about changes to custody, living arrangements, or decision making,

* Becoming familiar with divorce education programs, divorce mediation professionals, or support groups in the area,

* Screening children who have experienced divorce for depression and anxiety, and

* Discussing the impact of divorce on all family members during well-child visits.

It’s vital doctors establish with parents and guardians that they are unable to take sides, keep secrets or be a go-between. It just as important that doctors also avoid offering to call and repeat visit details to the parent not in attendance. The child needs equal access to both parents as do the child’s doctors unless circumstances advocate otherwise, and parents need to develop strong co-parenting strategies for the child to be provided with proper medical care.

Evolving Society, Evolving Law?

 

Introducing our KK Q&A series. Over the coming months, look out for monthly Q&A posts with Kluger Kaplan associates, digging in about some of the most interesting parts of their practices. Something special you’re dying to ask an associate or learn more about? Send us a message and we’d be happy to include it.

The world is certainly different than it was 50 years ago. No longer is it the norm to get married, buy a house, have a family – in that order. In many places, gone are the days of nuclear family, picket fence suburbia, and instead, trading in for later in life marriages, children out of wedlock, and pre-marital cohabitation. In fact, Miami is among the highest numbers of non-married co-borrowers of new mortgages this year.

But has the law changed to accommodate the new norm? Not really. We asked Lindsay Haber, KKSKL associate and family and divorce law expert, about the effect societal changes have on the practice of law.

  1. What should unmarried couples be aware of when combining their lives?
    As couples are slower to rush down the aisle, couples should be considering legalities of purchasing cars and property together, mixing incomes, accumulating debts and much more. When any sort of comingling of finances occurs, there is no real recourse in a family court should an unmarried couple break up. A popular concern for unmarried co-habitating couples is buying a home together. The question of how to own property is something I frequently see unmarried couples struggle with. If a couple is married with no prenup, real property purchased during the marriage is generally considered marital property regardless of how titled. For an unmarried couple, however, there is no such presumption of jointly held ownership when an unmarried couple titles the property in one party’s name only.  There is limited recourse for the party not titled, yet who has helped purchase the real property, pay down the mortgage, and put money towards the upkeep of the property.
  1. From your perspective, has the law had any effect on families?
    The world is changing. People are not as quick to get married, which leads to more marriages later in life. More later-life marriages mean more life events happening prior to marriage, like opening your own business, inheriting money, and creating substantial debt (be it school or otherwise), and a more complicated union is born. This, in turn, is just one of the reasons couples should consider entering into a pre-nuptial agreement prior to marriage.
  1. How has the changing view of gender roles in a marriage effected family law?
    When most people think of a family going through a divorce or paternity matter, one of their first thoughts is “how much is the man going to have to pay?” But that’s no longer the case.  I have had quite a few cases this year where the wife or mother has been the breadwinner, has had to pay alimony to her now ex-husband, or will be paying her ex-husband or ex-boyfriend child support until their child reaches the age of a majority.  I have also had several cases where both parties make nearly the same income and are surprised to learn during their divorce or paternity action that neither party is entitled to alimony or child support from the other.
  1. In an ever-changing world, can you suggest some tips for someone in the first stages of a divorce or a paternity matter?
    Many get the wrong advice from friends and family—who all probably have the best intentions for that person—but ultimately, this can do more harm than good. There is no such thing as a one-size-fits-all divorce advice. No two families are the same, so no two divorces and no two paternity actions will be the same. While a friend or family member may recommend that you should move out, empty a bank account, or immediately file for divorce, the best first step is to contact an attorney for a consultation to see if that is in fact the right step for you to take. Attorney/prospective client privilege applies in consultations so you can feel comfortable that what is said during that time will remain private.

 

Lindsay HaberLindsay Haber is an associate in the firm’s Family Law Group, focusing her practice on family law disputes, including divorces, child custody issues, domestic violence and preparations of prenuptial agreements and paternity disputes.  Beyond her national practice, Ms. Haber has handled international domestic relations issues, including international kidnapping.

5 Questions with Christina I. Echeverri: Why Divorce & Electronics Don’t Mix

 

Introducing our KK Q&A series. Over the coming months, look out for monthly Q&A posts with Kluger Kaplan associates, digging in about some of the most interesting parts of their practices. Something special you’re dying to ask an associate or learn more about? Send us a message and we’d be happy to include it.

 

Cell phones don’t seem to leave our hands these days. Amazing new technology, devices and apps have made it so much easier to improve efficiency and stay constantly connected. But there is a negative side to technology that’s become unavoidable. We’ve all been guilty at times of being caught up in the online world and ignoring the real world around us. So, we sat down with Christina I. Echeverri in our family law group to find out about how everyone’s favorite devices have had an impact on the world of divorce.

Cell Phones

1. What role does technology play in divorce cases?

For better or worse, technology has clearly effected almost every aspect of our lives. In the divorce world, however, I see it playing a role in two different ways. There are situations where my clients have chosen to file for divorce as a result of technology, and then there are clients’ divorce cases that are impaired and intensified because of technology.

2. How is that changing divorce proceedings?

Ironically, I’ve found that technology has led to a lack of communication. People are complaining that their spouse isn’t “present” – spending too much time glued to their phone, iPad, Apple Watch or the like, tablet or computer.  It has also become much harder for cheating or deceitful spouses to hide their faults. Social media plays a huge role. Remember, the internet remembers everything and “private” doesn’t always stay private. The biggest problem I’ve come across recently is that spouses are not realizing that when you write something on one device, it can also be seen in other places, and these devices do not always talk to each other. I’ve had two cases recently, where a spouse found incriminating text messages on an Apple Watch that the cheating spouse thought were deleted. Often times we come across one spouse obtaining personal information that spouse did not want the other spouse to have, such as bank or credit card statements, or a list of that spouse’s bank accounts simply because they left the information in plain view on a family computer. In many cases, this information has been instrumental to the spouse who obtained the information and has assisted with the discovery of additional funds or discovery of dissipation of assets during the litigation.

3. What should individuals know about protecting their privacy through technology during a divorce proceeding?

Individuals considering divorce or in the midst of divorce should be overly cautious about keeping private information private. Just as one would avoid case-related discussions within an earshot of the spouse, one should avoid leaving information where a spouse might have access.  Otherwise, you are potentially setting yourself up for a legal battle and giving your spouse either ammunition to file divorce proceedings or to rely on the information in divorce proceedings. There are easy ways to safeguard personal technology – passwords on cellphones and smart watches, ensuring a deleted text message is deleted on all devices (don’t trust them to sync), and a heightened level of care when it comes to protecting private information. Above all else, the safest way to avoid trouble with technology is to keep private communications old-fashioned: face to face or on the phone.

4. Have new technologies effected how attorneys handle divorce cases?

Lawyers have adapted their communication methods just as the rest of the world has, which means sometimes we communicate with our clients through text message. This can become troublesome in divorce cases since divorce is such a sensitive matter, with opponents living such intertwined lives. For example, if a client was planning a divorce and still living in the same house as their spouse, seeing a text message from a divorce lawyer on the client’s phone could be problematic. There is the possibility that the spouse may learn tactics or overhear private conversations, which can create another layer of issues during the divorce proceedings. Hence, we counsel our clients to be wary of the access their spouse may have to their electronic devices, especially email access on family computers (sometimes allowing for automatic login), shared ICloud accounts and syncing devices.

5. What advice would you give a client or potential client regarding technology in their marriage or divorce?

Technology has its drawbacks. With regards to technology in marriages, too many times it becomes a substitute for communication and the marriage takes a downward spiral. My recommendation is to put the phone away, don’t wear a Bluetooth watch, and go back to the old way of communicating with your spouse. Be an active participant in the marriage. With regards to technology and privacy during the marriage or divorce proceedings, I hope it goes without saying, my foremost recommendation is not to cheat in the first place. But if you find yourself in that situation, be thoughtful about protecting private information. If you must communicate via an electronic device, whether it be with your counsel or personal conversations, secure your information by familiarizing yourself with the syncing capabilities of all of your devices and remove automatic login options for emails on your family computer or tablet.

Christina EcheverriChristina Echeverri practices in Kluger Kaplan’s family law group, handling all aspects of divorce, post judgment proceedings, enforcement proceedings, paternity actions and prenuptial and postnuptial agreements.

Standard for Expert Opinions Uncertain in Light of the Supreme Court of Florida’s Recent Decision

 

Case

The Florida Supreme Court has declined to follow the Florida Legislature’s decision around expert witness testimony requirements. On February 16, 2017, the Supreme Court of Florida declined to adopt the 2013 amendments to the Florida Evidence Code which replaced the Frye standard for expert witnesses with the Daubert standard. The ruling shows that the interplay between the Florida Supreme Court and the Florida Legislature may create confusion and uncertainty for attorneys and judges about the standard they should apply for expert witness opinions going forward.

 

Florida Supreme Court

 

Background

In January 2013, the Florida Legislature amended the Florida Evidence Code regarding expert opinions. The purpose of the amendment was for Florida to shift from the Frye standard to the Daubert standard for expert witness opinions, in order to put Florida in line with the federal courts and most states. What’s the difference between the two?

  • The Frye Standard: an expert opinion based on a scientific technique is only admissible if such technique was “generally accepted” as reliable in the relevant scientific community.
  • The Daubert Standard: a more stringent and slow process, which requires additional hearings to determine the validity of expert opinion.

 

Ruling

The FL Supreme Court declined to adopt the new amendments, and therefore Florida will continue to use the Frye standard, unless or until challenged in a “proper case or controversy” where the Supreme Court of Florida has an opportunity to review the constitutional issues it referenced. The Court explained that even though it is the policy to adopt provisions of the Florida Evidence Code as the Legislature suggests, they have declined to on occasion “because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.”

The Court noted ‘grave constitutional concerns’ with the change. The concerns were not discussed in detail in the opinion, but touched upon the constitutional right to a jury trial and denying access to the courts.

Justice Polston, concurring in part and dissenting in part, disagreed with the majority for rejecting to replace the Frye standard, honing in on the fact that the Daubert standard is followed not only in federal courts, but also in “36 states.” Justice Polston continued, stating he knew of “no reported decisions that have held that the Daubert standard violates the constitutional guarantees” and in fact, cited to case law across the nation stating the opposite.

 

Impact

The ruling could have a substantial impact in the trial courts. For example, when a party objects to the admissibility of an expert witness opinion based upon the Daubert standard, the opposing party may argue that, based on the Court’s ruling, the Daubert amendments are unconstitutional. A party seeking to admit expert testimony could also argue that the amendments are procedural in nature, and because they were not adopted by the Supreme Court of Florida, the court should use the Frye standard in ruling on the motion.

Unless or until the FL Supreme Court rules differently on the issue, it appears this ruling is likely to cause confusion in courts across the state in applying the standard for admitting, challenging, or excluding expert opinions under the Florida Evidence Code.

 

 

Gina RhodesGina Rhodes is an associate at Kluger, Kaplan, Silverman, Katzen & Levine, P.L. and focuses her practice on commercial litigation disputes in both state and federal court.

Enforceability of Prenuptial Agreements in Florida

By Ashley P. Frankel

When couples decide to get a divorce – particularly those with significant assets – the first question that usually comes to mind is whether or not the parties have a prenuptial agreement.  A prenuptial agreement is a contract entered into by prospective spouses that lays out certain financial obligations and terms the parties will abide by during the marriage and in the event of divorce.  Florida courts generally will enforce a prenuptial agreement provided it complies with Fla. Stat. § 61.079.  Pursuant to subsection 61.079(7)(a), a prenuptial agreement is not enforceable when it was not entered into “voluntarily”, it “was the product of fraud, duress, coercion or overreaching”,  or it was “unconscionable” at the time it was entered due to deficient financial disclosures.

Florida courts are reluctant to set aside prenuptial agreements.  Public policy favors individuals ordering and deciding their own interests through contractual arrangements; however, this right is not entirely unrestricted.  While there is a strong presumption that a carefully prepared and executed written instrument expresses the true intention of the parties, in Casto v. Casto, 508 So. 2d 330 (Fla. 1987), the Florida Supreme Court set out a test for when a marital agreement may be invalidated: Continue reading