Keeping It All in the Family: Taking Financial Discovery from the New Spouse in Post-Judgment Support Cases by Ronald H
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SPRING 2011 COMMENTATOR 25 Keeping it All in the Family: Taking Financial Discovery from the New Spouse in Post-Judgment Support Cases By Ronald H. Kauffman, Esq., Miami, FL Bob and Sandy Simpson’s mar- Just as the world turns, parties Given that Florida’s right to pri- riage ended in divorce court. Did that remarry after divorce; and their new vacy is not a fringe doctrine, but is finish the matter? No way. Bob re- spouses can sometimes get caught an express provision in the state membered you as a good listener, and in the post-divorce dragnet. Courts Constitution, the Florida Supreme he is back in your office after getting generally will not consider the in- Court has concluded that the pri- hit with a contempt motion. Bob looks come and assets of the new spouse vacy right in Florida’s Constitution like the walking dead as he nervously for purposes of modifying or enforcing is much broader in scope than that hands you a hard copy of the motion. child support and alimony. More- of the Federal Constitution.6 Bob tells you he’s not bothered by over, courts cannot impose liability The unintended disclosure of per- contempt, or even getting sent to the for marital obligations on the new sonal financial information is ex- big house, but if the subpoena is not spouse. Accordingly, discovery of the tremely dangerous, and keeping it “squashed” – he’ll be six feet under. income and financial resources of a hidden from criminal minds is an out The subpoena was not served on Bob new spouse is usually out of bounds. of control problem. In order to keep though; his new wife Nueva is the The big picture this article paints financial information secure, it is usu- human target. The subpoena seeks is that there are two different stan- ally withheld from people with family information on Nueva’s income and dards authorizing discovery of a new ties, let alone the real world. Despite business. spouse’s finances in post-judgment these privacy concerns, the state – These are not good times for the alimony and child support cases.2 through the Family Law Rules of Simpsons. Bob earns 30-something Procedure for example – can require a year from the Biz, way down from Alimony: The Shield the disclosure of sensitive records. the happy days when he earned mad Even then, disclosure can be made money flipping hot properties.1 Bob Assume Sandy’s contempt action in a ‘nip/tuck’ fashion, which scrubs has no assets in his name besides an against Bob is limited to alimony. away sensitive information from pub- American chopper, a souvenir from When Bob shuffles into your office lic view.7 his married with children days. holding Nueva’s notice of deposition, Demonstrating 20/20 foresight, Sandy, the bachelorette, lives with what is the answer to that $64,000 the Florida Supreme Court has tried Question: is the subpoena served on friends near Smallville – it’s a full 3 to do the right thing, and extend an house. Sandy feeds her son Dexter the Nueva justified? individual’s legitimate expectation of leftovers she sneaks while moonlight- Curb your enthusiasm, the answer privacy to cover their financial and ing for a top chef. Sandy is a law and is the right of privacy. Compared to bank records.8 In cases propounding order gal, but her boyfriend Chuck is Florida’s privacy laws, Federal laws discovery on the young and the rest- an outcast who drives Sandy crazy seem to come from another world. less new spouse, the right to privacy like a fox. For example, the U.S. Constitution has served as a sanctuary to reveal- Bob is not the biggest loser though; does not specifically mention a right ing the family fortune. Bob married the good wife, and is of privacy. Instead, federal privacy In addition to the strong privacy ‘livin’ large’ in Nueva’s house. Nueva law developed over time on specific rights in Florida, there is the issue of took Bob to Hawaii when he turned issues, in a variety of cases – such as relevance. Generally, a new spouse is Roe v. Wade – which periodically face Five-O, and bought him a top gear car. 4 not required to pay the child or spou- Bob sponges off Nueva’s largesse, and the jeopardy of being overturned. sal support owed by his or her current has no problem keeping up with the Vice versa, the Florida Constitution spouse.9 The financial status of a Kardashians. contains an express right of privacy new spouse is therefore not relevant Ever the gossip girl, Sandy tells written into it: to a determination of the amount of her attorney there is easy money to be Every natural person has the alimony a divorced spouse is capable had if Nueva is brought in the game. right to be let alone and free from of paying.10 A trial court is limited to Sandy also confesses with glee that governmental intrusion into the considering the financial resources of she would like to ruin Bob’s charmed person’s private life except as the parties, not the chips of assistance life, and turn him into one of those otherwise provided herein. This thrown to them by family or friends.11 mad men. Bob tells you he and San- section shall not be construed to Schneider v. Schneider, 348 So.2d dy are bitter rivals, and wants a ‘no limit the public’s right of access 612 (Fla. 4th DCA 1977) is the guid- holds barred’ trial to burn the notice to public records and meetings as ing light for discovery of a new of deposition. provided by law.5 spouse’s financials in alimony cases. 26 COMMENTATOR SPRING 2011 All in the Family in which the new spouse is a high avoid alimony payments. income earner, the former spouses In addition to portraying a typical from preceding page are going to receive big love from family feud, the Hayden case added their new spouses.15 Evidence that something extra to the Schneider In Schneider, the former wife served Nueva paid for Bob’s attorneys’ fees, test: “if there is a showing that the interrogatories requesting informa- for example, is not enough to over- husband has transferred significant tion about the new wife’s bank ac- come Sandy’s burden.16 Additionally, assets to the [new] wife’s name, and counts and real estate holdings. Mr. alleging Bob overstated his expenses as a result has no assets of his own Schneider’s objections to discovery – in order to mislead the trial court with which to satisfy his support did not receive cheers from the judge, as to his ability to pay alimony – is obligations, then the present wife’s and when the gun smoke cleared, he insufficient.17 The challenge is show- finances are relevant to the question filed an interlocutory appeal with the ing what a scheme to avoid paying of the ability of the husband to pay court’s clerks. The Fourth District alimony looks like. alimony and child support to the for- reversed the trial order, and denied One of these amazing stories can mer spouse.”20 access to the new wife’s financials. be found in Hayden v. Hayden, 662 The twin peaks of Schneider and In order to overcome the relevan- So.2d 713 (Fla. 4th DCA 1995). A Hayden, which established the criteria cy and right to privacy objections, true blood businessman, Mr. Hayden for permitting discovery of the new Schneider placed the burden of proof had an MBA degree, yet worked part- spouse, may have also taught spouses 12 on the party seeking discovery. time at less than $1,000 per month how to get smart about their schemes. Schneider required a showing that a – far less than other men of a certain In Pratt v. Pratt, 645 So.2d 510 (Fla. 3d 18 former spouse was deliberately ter- age. Testimony about Mr. Hayden’s DCA 1994) for instance, Mr. Pratt had a minating or reducing employment extensive job search was found to be change of heart about paying alimony to keep from paying alimony, and shameless, and the court concluded after leaving his nine to five job. relying on the new spouse for liv- he was faking it. Most shocking, fo- Demonstrating greed, and a bit of ing expenses in completion of the rensic investigators deduced from 13 masterpiece theatre, Mr. Pratt tes- scheme. Put simply, in order to over- tax returns that the new wife had tified his new wife owned her own come objections to financial discovery between $40,000 and $125,000 in business alone, and he held no in- of Nueva, Sandy must prove that Bob income producing assets, and did not terest in it. However, the new wife’s is a pretty little liar about his income. work outside the home. Mr. Hayden business had one major customer, The challenge in demonstrating may have been bewitched by his new who happened to be the same ma- Bob had a scheme to avoid paying wife, but evidence that he transferred jor customer at Mr. Pratt’s old busi- alimony can be as hard as winning assets into her name looked more ness. Moreover, Mr. Pratt and his new American Idol.14 When the new like a cover up than the work of an wife shared joint checking accounts spouse is a high income earner, it 19 angel. Perhaps Mr. Hayden was just – which contained deposits from the is not enough to show that Bob is being human, but to the court he ap- business – from which Mr.