May has arrived and we will be having the Section’s In-State retreat from May 13 through May 16, 2021 at Hutchinson Shore Resort and Spa. After the year that we have had, the In-State retreat will give us the opportunity to begin having some normalcy return to our lives.
In January 2021 we held our annual Marital Review Course with over 1670 attendees. The Family Law Section realized a net profit of $568,365.14 from the review course. I would like to recognize the Chair of the 2021 Marital and Family Law Review Course Sarah Kay and the other committee members Michelle Klinger Smith, Kristen Kirkner, and Jerry Rumpf, along with the AAML and Mark Sessums, the current President, our co-sponsors of the review course. Additionally, I am truly grateful to Susan Stafford and Willie Mae Shepherd who made sure the program was a great success.
The Florida Legislature completed the legislative session on April 30, 2021. I am pleased to report there were no changes to the current alimony and timesharing statutes. The officers of Legislation, along with the committee members, put in countless hours monitoring every bill that could impact family law in Florida. I want to thank the officers and the committee members for their hard work and dedication.
Please make sure that you attend our annual committee meetings on June 9, 2021. The meetings will be by Zoom and the schedule can be found HERE.
In closing, I am going to leave you with a quote that has been attributed to both Ralph Waldo Emerson and also Gene Simmons:
“Make sure that you leave the world a better place than you found it.”
An in-depth review of all legislation that passed in the 2021 Florida Legislative Session related to or touching upon marital and family law, including, but not limited to dissolution of marriage, adoption, dependency, child support, parenting time, alimony and the like. CLE Credit: 1.5, course #4725
12:00 PM - 12:05 PM
Opening Remarks and Introductions
Veronica R. Jackson, Tallahassee, FL
12:05 PM - 12:55 PM
What Legislation Passed & What Didn't Pass
Sheena Benjamin-Wise, Esq., Fort Lauderdale
Jack Moring, Esq., Crystal River
12:55 PM - 1:15 PM
What to Expect in the Future
Sheena Benjamin-Wise, Esq., Fort Lauderdale
Jack Moring, Esq., Crystal River
1:15 PM - 1:30 PM
Questions / Closing Remarks
Ronald H. Kauffman, Esq., Miami
SECTION TO VOTE FOR NOMINATED SLATE ON JUNE 9
The Nominating Committee met to vote on the slate to be nominated for Executive Council terms (expiring in 2025) and Executive Committee Secretary.
Here is the nominated slate that will be submitted to the Section and elected by acclamation at the Section's Annual Meeting on June 9, 2021.
CONGRATULATIONS to the nominees! We look forward to seeing you and all FLS members on June 9!
Board-Certified Family Lawyer Rana Holz of Rubinstein & Holz, P.A., Fort Myers, will present Part II of this series with insights to assist both attorneys and clients in evaluating how Social Security contributions and entitlement impact financial issues in divorce, including property distribution and support needs and obligations.
Part II - Thurs., May 6, at 12:00 p.m.:
Property Distribution, Child Support and Case Law
2019 Social Security Facts
· 64.1 million people received some form of Social Security Benefits.
· 117.9 million workers contributed to Social Security.
· The number of women who received benefits only as a dependent declined to 19%.
· At the same time, 24% of all women eligible for benefits have dual entitlement
· 2.8 million children under age 18 received Social Security benefits in 2019.
Join your colleagues and friends at the 71st Annual Florida Bar Convention at the Hilton Orlando Bonnet Creek & Waldorf Astoria. The Annual Convention provides the ultimate environment to network with colleagues, judges and friends.
NOTE: The Family Law Section Committee Meetings will take place VIRTUALLY on Wednesday, June 9, from 8 a.m. - 5 p.m., so you do not need to be on-site at the Convention to participate.
Meeting times and login information are provided in the link above, so mark your calendars for this important day, which includes the opportunity for you to vote for the upcoming Bar Cycle's nominated slate of officers.
The Family Law Section of The Florida Bar played an active role during the 2021 Florida Legislative Session, successfully advocating for laws that protect strong, healthy families and, above all else, put children’s needs first.
Chief among the section’s priorities was to ensure an automatic presumption of 50-50 timesharing was not adopted by the Florida Legislature and that dramatic changes to the laws governing alimony were not implemented.
Throughout the session, The Family Law Section of The Florida Bar sought to educate lawmakers, meeting one-on-one with bill sponsors and key members, and testifying before various committees where the bills were under consideration. The section also launched a public campaign opposing key changes that would harm Florida families, publishing multiple letters and opinion pieces in newspapers around the state, and delivering the message straight to the Florida Capitol via a digital ad campaign.
The Family Law Section of The Florida Bar also offered its expertise on various other issues including a panel discussion on grandparents’ visitation, changes to out of home placement and adoption laws, child support, parents bill of rights and the Community Property Trust Act.
Because of the section’s unwavering vigilance throughout the session, Florida’s laws that uphold family institutions, promote healthy families and, above all else, protects children’s needs, remain protected.
CASE LAW UPDATE
By Philip J. Schipani, Esq., B.C.S.
Natali v. Natali, 46 Fla. L. Weekly D675 (Fla. 2nd DCA 2021) – This case involved a Final Judgment of Dissolution of Marriage which included a phased timesharing plan. The Final Judgment was reversed for including an impermissible prospective-based best interest analysis.
In this matter the timesharing plan entered by the lower court included the use of phases. Phase 1 allowed only supervised visitation; Phase 2 allowed for unsupervised visitation. The Father could pass from Phase 1 to Phase 2 by satisfying two predetermined conditions (regularly exercising supervised timesharing for three (3) months and file proof with the Court of completion of a coparenting class). The terms of the timesharing plan did not require any participation from the court for the transition from Phase 1 to Phase 2.
The Court based its reversal of the timesharing plan on the basis of Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010) wherein the Supreme Court vacated part of a dissolution judgment that permitted the wife to relocate the parties’ child twenty months after the final hearing. The Arthur Court held that the best interest determination was required to be made at the time of the final hearing and that a contrary “prospective-based analysis is unsound.”
The Fifth DCA has interpreted Arthur narrowly to conclude that the prohibition on prospective-based determinations does not apply outside the context of a petition for relocation of a child. Rivera v. Purtell, 252 So.3d 283 (Fla. 5th DCA 2018). By contrast the First DCA has taken a broader view of Arthur and applied the prospective based prohibition to a timesharing determination. J.P. v. D.P., 196 So.3d 1274 (Fla. 1st DCA 2016).
This Court (the Second DCA) has applied Arthur beyond relocation provisions. Eisele v. Eisele, 91 So.3d 873 (Fla. 2d DCA 2012) “a trial court is not equipped with a crystal ball that enables it to prophetically determine whether future relocation is in the best interests of a child.
The Court reversed the parenting plan due to the same “crystal ball” problem addressed in Eisele. The Court held that the portion of the parenting plan that prospectively allows the Father to automatically graduate to unsupervised timesharing upon the satisfaction of predetermined conditions and that the Father shall retain the right to petition the court for a modification, but that any best interest determination must not be prospective-based.
FLORIDA SUPREME COURT ADOPTS AMENDMENTS TO FAMILY LAW RULES OF PROCEDURE ON SERVICE
By Mark E. Sawicki, Esq.
On Thursday, April 8, 2021, the Supreme Court of Florida announced its adoption of proposed amendments to rules and forms that will require documents that are served but not filed to be served in accordance with Florida Rule of General Practice and Judicial Administration 2.516 (Service of Pleadings and Documents)(“Rule 2.516”).
The proposed amendments to Florida Family Law Rule 12.080 (Service of Pleadings and Filing of Documents) as referred by the Family Law Rules Committee were adopted. Family Law Rule 12.080(a)(1) now requires every pleading subsequent to the initial pleading and every other document filed or required to be filed by statute or rule to be served pursuant to Rule 2.516. Under Family Law Rule 12.080(a)(3), Rule 2.516 procedure also applies to service on the party during an attorney’s limited appearance under Family Law Rule 12.040(f), including requirements for service of recommended orders and service on defaulted parties.
The Florida Rules of Civil Procedure, the Florida Small Claims Rules, and the Florida Rules of Appellate Procedure were also amended to reflect Rule 2.516 procedure. Amendments are effective April 8, 2021.
CELEBRATING ASIAN AMERICAN HERITAGE
BY REMEMBERING OUR CONSTITUTIONAL PAST
By Sarah Sullivan, Esq.
May is Asian American/Pacific Islander Heritage Month. I have a confession to make. I hadn’t paid close attention to many of the monthly cultural designations each year, until the George Floyd murder last summer. That event ignited our country’s discussion of race. More specifically, what does it mean to live something other than white and cis-gendered in the United States? Then, after the summer of racial awakening (or maybe re-awakening), our Asian brothers and sisters became the brunt of a new wave of hate crimes. But, was it really a “new” wave?
One of the first cases I remember from my con law class (that actually stuck with me) was Korematsu v. the United States of America. The case centered on President Roosevelt’s executive order restricting the free movement of persons of Japanese descent issued shortly after the attack on Pearl Harbor. The government action led to establishment of internment camps during World War II. Mr. Korematsu, an American citizen of Japanese descent, evaded the order by staying in his home located in a designated military zone. The government apprehended Mr. Korematsu and sent him to an internment camp—and Mr. Korematsu sued in federal court based on the 5th Amendment. The Supreme Court affirmed the appropriateness of the government’s military evacuation order, finding that the focus on one race didn’t necessarily mean it was unconstitutional. Justice Black, the author of the majority decision, stated, “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can." The majority applied the strict scrutiny standard, yet still affirmed the constitutionality of the government’s actions.
The Korematsu decision, for many decades, even though unpopular, was never actually reversed until the case of Trump v. Hawaii in June 2018. Hawaii filed suit against then-President Donald J. Trump, for his travel ban executive order, alleging the order was unconstitutional for discriminating against groups of people based on their race or religion. While the United States Supreme Court upheld President Trump’s travel ban for national security interests, Justice Roberts, writing the majority opinion, took the opportunity to address Korematsu, stating, “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’” Mr. Korematsu’s conviction had already been overturned in 1983 by the federal district court, even if the precedent created by his case hobbled along for another 35 years.
My remembrance of the Korematsu case provides context and comparison to the racial struggles Asian and Pacific Islander Americans endure. The federal government provided reparations to survivors of the Japanese internment camps, recognizing, in hindsight, the injustices against American citizens of Asian descent. As a Supreme Court decision, the Korematsu case reminds us of the “bad law” that failed to truly be stamped out until 2018. The discriminatory themes of Korematsu quietly sat under the surface until most recently. The current slew of hate crimes against Asian Americans reminds us racism still exists, and all of us have a responsibility to not only condemn it, but to take action against it. May we remember the racial and ethnic discrimination experienced by Asian/Pacific Islanders in the United States, take action against discrimination when we have opportunity to do so, and above all, celebrate the achievements and contributions by Asian/Pacific Islanders to the diverse fabric of our American life.
By Matthew E. Thatcher, B.C.S.
The use of electronic signatures has enabled virtual mediations and other aspects of our practices to proceed. Incorporating electronic signatures is a practice option that should be considered for retention when the our practices return to an in-person format.
Electronic signatures are, and have been, expressly recognized by Florida law for the past 25 years as enumerated within section 668.001 of the Electronic Signature Act of 1996. Section 668.004, Florida Statues, expressly provides that, unless otherwise provided by law, “an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature.” This of course begs the question of what constitutes an electronic signature.
An electronic signature turns fundamentally upon the intent of the person who uses it. In Fla. Stat. § 668.003(4) of the Electronic Signatures Act, an electronic signature is defined as:
any letters, characters, or symbols, manifested by electronic or similar means, executed or adopted by a party with an intent to authenticate a writing. A writing is electronically signed if an electronic signature is logically associated with such writing.
The utilization of a commercial e-signature software services is a simple solution to deciphering context clues in determining if the inclusion of a signature in an e-mail string or marking on an electronic document was “intended” to be a binding signature under Chapter 668.001 et. Seq. These programs require that the person executing the document confirm that they are signing the document with the mark that they have designated through the program. The affirmative acceptances leading to the final execution of the instrument should be sufficient to comply with the requirements of Fla. Stat. § 668.003(4). Thus, an electronic signature would have the same force and effect as a written signature pursuant to Fla. Stat. § 668.004. Most of these programs will generate a report confirming the date, time, e-mail address and, sometimes, the location of the person who executed the document.
While the most common usage of these electronic signature programs in the family law context has been to execute mediation agreements, an electronic signature can be used in any situation where you would otherwise require a signature. Think about using an electronic signature to expedite a client’s ability to sign your engagement agreement. Think about using an electronic signature to have a client sign a document such as a financial affidavit or the certification for Rule 12.285 Mandatory Disclosures under oath containing the written declaration language of Fla. Stat. §92.525(2).
There are many commercial electronic signature programs available to you. This brief article is not an endorsement of any particular program. Three electronic signature programs which are commonly used are in alphabetical order: Adobe Sign; DocuSign; and Hello Sign.
William "Trace" Norvell, Esq.
Mission of the Committee:
The Family Law Section Technology Committee is a vibrant group dedicated to assisting Florida family law practitioners and litigation support professionals through delivery of relevant technology-related information and tools. The Technology Committee achieves its mission by (1) completing projects as requested by the Section’s Executive Council and Executive Committee; (2) providing technology-related content for the Section’s publications; and (3) maintaining the Section’s website current in both content and features.
What the Committee does:
The Family Law Section Technology Committee serves to support Florida family law practitioners and litigation support professionals through supporting the work of the Section leadership and other Section committees.
Goals of the Committee this bar cycle:
This year the Committee focused on: maintaining and regular and recurring Tech Tips section in the FamSeg e-newsletter which includes the goal of having at least every member write, or co-write, at least one submission; monitoring the completion of the proposed 2020 website upgrade; continue our work on building the website’s committee member’s only sections; provide topics and lecturers for at least one Facebook Live presentation; and as always, recruiting and increasing the membership of the Committee and the Family Law Section.
How the Committee’s work supports its members, the Section and/or Florida’s Families:
Technology Committee explores communication options to maximize accessibility of committee leadership and continuity of communication between committee leaders. Technology Committee members review and draft technology-related content for the Section’s publications including FamSeg e-newsletter the Family Law Section Commentator, and the Section’s column in The Florida Bar Journal. Also, Technology Committee members regularly review and suggest updates to and improvements for the Family Law Sections based on new and innovative technology.
One thing you did not know about the Committee until you joined:
I didn’t know how crucial the technology committee was to the workings of the Family Law Section. When I joined the Committee, I thought it was going to be more a discussion or round table about technology in the legal practice, and while we do discuss these issues, what I found was that the technology committee is a group of dedicated section members who are striving to maintain the innovate principles of the Family Law Section. As we have seen the past year and half, technology in the board room and the court room are becoming increasingly linked and the Technology Committee is a key player in helping to maintain and inform the Section about what can be possible, while at the same time working to educate the members of the section what is possible now and how to use the technology as well as safeguard yourself from having it being used against you.
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