March brings the Spring season and the hope of renewal—and it is an incredibly busy time for the Family Law Section. 

The legislative season is wrapping up this month, and in a few weeks, lawyers will have a better idea of the changes coming to the practice of family law. As is always the case, several bills were introduced this year that will impact how we practice. The Family Law Section is strongly opposed to HB 1395 and SB 1796—bills that dramatically alter alimony awards and include a presumption in favor of 50/50 timesharing. I am calling all Family Law Section members to reach out to the Governor to exercise his veto power to stop these bills from becoming law. Do your part to have your voice heard. You can click on the following link to reach the Governor and let him know you oppose this bill: 


Every single email/call and letter will help all Florida’s families and most vulnerable citizens. Please also feel free to share this with each and every group/organization which you are affiliated with.

Family Law Section committees have been hard at work supporting our members and advocating for families across Florida. Our Executive Council, Legislation Committee and Ad Hoc committees have spent hours meeting, discussing and setting Section policy during this very active legislative season. The Section sent representatives to Tallahassee to discuss pending legislation. Other committees, such as the Rules Committee, continue to keep a close watch on the rules of court and provide comments to the Supreme Court on how proposed rules may affect how we practice. 

Speaking of committees, the Family Law Section has released the 2022-2023 bar cycle committee preference forms, Legislation Committee applications, Executive Council applications and Secretary application. You may apply here. We encourage you to serve on a committee. This work is incredibly rewarding and impactful to those we represent and important to maintaining high standards of family law practice.

Heather L. Apicella, Chair, 2021-2022
Committee Preference Forms, along with Applications for Executive Council, Legislation Committee, and Secretary are now all available for download. The deadline to submit all forms is Tuesday, March 15 at 5 p.m.

Click HERE to download each form and get ready to take your Section experience to a new level!
In July 2021, prior to being published for comment, the Supreme Court of Florida immediately incorporated the changes to Florida Rule of Civil Procedure 1.510, Summary Judgment, into the family law rules. The Florida Bar’s Family Law Section and the Florida Bar’s Family Law Rules Committee each filed comments after the Court’s invitation.   

On February 10, 2022, the Supreme Court of Florida further amended Rule 12.510 to (a) require a detailed explanation for pro se parties of the need to respond to a summary judgment motion, and (b) to provide that no motion for summary judgment may be filed while the movant’s responses to mandatory disclosures are pending.  

The Section is proud to recognize the efforts of Co-Chairs of the Rules and Forms Committee, Kristin R.H. Kirkner and Jack A. Moring, as well as the Section’s esteemed Chair, Heather L. Apicella. 
By: Sarah R. Sullivan, Esq.

I taught a law school class about five years ago called “Law and Social Justice” which, in part, followed the women’s suffrage movement and the ratification of the Equal Rights Amendment (“ERA”). The focus was on the evolution of the movements and their effect on constitutional change. As a review, the ERA came up for ratification in 1972 and within the year, 30 states ratified it and then-President, Richard Nixon, endorsed it. It wasn’t partisan, it was popular, and fifty years later, it is still popular. So, why wasn’t the ERA made part of our constitution? What happened? 

Back to our Constitutional Law class in law school—the requirements to add a new constitutional amendment can be done in one of two ways--either by the United States Congress, through a joint resolution (both the House and the Senate) passed by a two-thirds vote and then ratified by three-fourths of the states, or by a convention called by Congress in response to applications from two-thirds of the state legislatures. In 1978, Congress acted on the premise that it could change a ratification deadline, and, as such, passed a bill to extend the ERA’s ratification deadline from March 22, 1979, to June 30, 1982. But, 1982 came and went, and still no ratification because fewer than 38 states had ratified the amendment. This is where opposition to the ERA says the ratification process died. But did it?

Article V of the United States Constitution gives Congress the right to propose an amendment and define the process of ratification, but does not speak to whether Congress can impose time limits for ratification by ¾ of the states. The United States Supreme Court has interpreted and clarified Congress’ Article V powers by allowing Congress to fix a “reasonable” and “sufficiently contemporaneous” time period to “reflect the will of the people at relatively the same period.” Clear as mud. Why? What is “reasonable” and what is a “sufficiently contemporaneous” time period? To give some historical context, the 27th amendment to the constitution, ratified in 1992, also known as the Madison Amendment, took 203 years to pass--blowing the interpretation and definition of “reasonable” and “sufficiently contemporaneous” right out of that muddy water. If you compare 203 years to the 50 years since the introduction of the Equal Rights Amendment, the time is still right (ripe) to consider full ratification of the ERA.

After the groundswell of support for the ERA in the early 1970’s, five states decided to rescind their support of the ERA. This ratification withdrawal further confuses the validity of the 38-state majority required for ratification. Can a state withdraw ratification? What counts for getting to ¾ of the states ratifying? Proponents of ERA ratification say that once you say yes, you can’t say no. That is open to debate and judicial interpretation that is currently in various federal courts across the country. 

So why does this matter? In 2020, Virginia’s state legislature, after many years, had a Democratic majority in both houses and…wait for it…was the 38th state to ratify the ERA (not counting those five states who changed their minds). Women’s rights advocates were verklempt. Opponents called foul. But, the Office of Legal Counsel in January 2020, wrote a memo opining that Congress’ authority to extend the ratification deadline was doubtful and the ERA died with the deadline’s expiration in 1982. So, to get the ERA revived, Congress and the states would have to start the ratification process all over again. In today’s divided world and political ideology, that seems impossible. 

But wait, there is more. As of 2021, with a new President at the helm in the executive, and control of both houses of Congress (in theory at least), it’s a new dawn. And, ERA proponents are laser focused on the U.S. Archivist, who plans to retire in the next few months, to certify the amendment. Will he or won’t he? Hard to say. I’m sure as one of the nation’s top library/archive professionals, the last place he wants to be is smack in the middle of a half-century long political debate.

So why does it matter, part two? Remember that class I taught 5 years ago? I asked the entire class how they felt about the term “feminism,” and whether they thought the ERA should be ratified.It wasn’t posed as one question, but as two separate issues raised as part of the study of the ERA. The women in the class didn’t want to be “labeled.” The term “feminist” had a negative connotation. They also felt women had achieved some semblance of equality making the ERA moot. I was gobsmacked—maybe because I had personally experienced “practicing law while female” and knew what hard reality those women would face once they emerged from the bubble of law school. I was born in 1972 and parts of my childhood were definitely lived in the political backdrop of the ERA. I remember debates around my dinner table, presidents and senators on television, and both my mom AND dad telling me my life knew no bounds—gender or otherwise. 

Since teaching the class, the #MeToo movement erupted. Many governmental entities--local, state and federal--have become even MORE divided concerning civil rights related to gender. Have equal rights for women become a reality? Just spend a day reading social media posts by women lawyers who endure sexist horrible situations precipitated by judges, court personnel or opposing counsel. What about the dismal statistics relating to women lawyers staying in the profession or inhabiting top, decision-making equity positions in law firms? Don’t even get me started on mansplaining. Whether it is the law of the land or not, equal rights, equal treatment, and society’s acceptance of women as equal has not been fully realized. We don’t live in a post-racial world, nor do we live in a post-gender world. Those clinging to the notion that the ERA is irrelevant, gaslight those women who experience both systemic and individual discrimination as their norm. The ERA won’t solve gender-based discrimination, but it provides a catalyst for change.    
It's that time of the year! We are now accepting nominations for the Family Law Section of The Florida Bar's 2022 Alberto Romero Making a Difference Award and will do so through April 28, 2022. The Award recognizes the work of Section members and affiliates who provide outstanding pro bono services, engage in significant volunteer community activities that improve the lives of Florida's children and families and encourage other Section members to volunteer. Recent recipients of this distinguished award are Harriet Williams of Tallahassee (2019), Kim Rommel Enright of West Palm Beach (2020) and co-winners, Sarah Kay and Caryn Stevens (2021.)

The Chair, on behalf of the Family Law Section of The Florida Bar, presents the Alberto Romero Making a Difference Award at the annual awards and installation luncheon at The Florida Bar Annual Convention in June. For more information, please contact Robin Scher at membership@familylawfla.org or by calling (561) 626-5640.  You can download the nomination form HERE.
By: Philip J. Schipani, Esq., B.C.S.

Silvas v. Silvas, 2022 WL 472949 (Fla. 4th DCA 2022)

This recent case out of the 4th DCA has a lengthy discussion of constructive trusts in the context of a dissolution of marriage. The Husband raised several issues on appeal, all of which were affirmed, except in regards to the constructive trust imposed by the trial court. The Court stated in its holding that the trial court did not abuse its discretion by imposing a constructive trust on the marital home.

The Wife filed a Second Amended Petition for Dissolution of Marriage adding counts for partition, resulting trust and constructive trust. At issue in this case was whether or not property, purchased with the Husband’s non-marital funds and transferred to his Father’s name was for his Father’s benefit or was done to help secure a construction loan for the parties’ intended marital home.

The Husband argued that the home was a gift for his parents and the Wife argued that it was intended to be their marital home and was only placed in her Father-in-Law’s name to obtain a construction loan. The trial court did not find the Husband’s testimony to be credible.
 
The Husband’s Father never lived in the home, the parties made mortgage payments directly to the lender and the Wife was the main person who worked with the contractor regarding the design and construction of the home. The contractor even gave the parties a discounted contracting fee as a wedding gift. Despite Husband's claim that the home was built for his parents, the evidence was undisputed that from the end of construction in 2007 until the death of Former Husband's father in 2017, neither of his parents ever lived in the home.
 
The trial court found that the couple obtained financing from a lender to build the home by transferring title to the father who acted as the “straw man” for the loan and executed all the loan documents. The trial court noted that additional evidence of this intent was revealed after the father died when it was discovered that the contents of the father's unprobated will, which the Husband helped arrange, devised everything to the Husband's mother with the sole exception of the subject property which was bequeathed to Former Husband.
 
The trial court also found that the father never intended to keep an ownership interest in the property. As a result, the court imposed a constructive trust on the home as part of its written final order of dissolution awarded the Wife a 50% interest in the property and a lis pendens placed on the property pending partition and sale. The Husband appealed.
 
The Court affirmed the imposition of a constructive trust, but remanded for further proceedings to allow for credit for non-marital funds the Husband used to purchase the property prior to the marriage.
 
The Court reasoned to impose a constructive trust, there must be (1) a promise, express or implied, (2) transfer of the property and reliance thereon, (3) a confidential relationship and (4) unjust enrichment.” Moreover, there must be “clear and convincing evidence” on the record establishing the factors needed to prove a constructive trust. Saporta v. Saporta, 766 So. 2d 379, 381 (Fla. 3d DCA 2000).  Florida courts have imposed constructive trusts in divorce proceedings to create an equitable outcome. See Zanakis v. Zanakis, 629 So. 2d 181, 182 (Fla. 4th DCA 1993); see also Saporta, 766 So. 2d at 381. In Saporta, the Third District remanded and instructed the trial court to impose a constructive trust on the marital home because the imposition of the trust was “necessary to do justice and ‘prevent the unjust enrichment of one person at the expense of another.’ ” Id. (quoting Geiser v. Geiser, 693 So. 2d 59, 60 (Fla. 5th DCA 1997).
By: Amber Kornreich, Esq.

The metaverse, also known as web3, “is the evolution of our current internet”[1]. The metaverse is a collection of virtual spaces made for socializing, shopping, entertainment, gaming, working, and living. These new conceptual environments may be accessed by wearing a Virtual Reality “VR” headset, such as the Oculus Quest 2, that allows a person to interact as an avatar in a completely digital world, or through smartphones or other devices’ Augmented Reality, “AR”, that superimposes computer images on the real world.

Whether through the “virtual metaverse” consisting of headsets and avatars, or the “augmented metaverse” consisting of a “merger of real and virtual worlds into a single immersive and unified reality[2]”, the arrival of the metaverse has the potential to change the lives of family lawyers and the clients we serve.

In our daily lives as Family Lawyers, we may soon be holding meetings as avatars in virtual simulations of our current offices, or new and improved virtual offices we create. Facebook, now “meta”, has already released “Horizon Workplaces”, a zoom alternative that hosts meetings via avatars[3]. New virtual productivity technologies will assist us in being more effective and more connected with our colleagues, experts, and clients, than ever before.

The metaverse may also change relationships. Weddings are now taking place in the metaverse[4]. Prenuptial Agreements may need to provide for the protection of asset classes that are not yet in existence. Relationship breaches in the metaverse may lead to divorce in both the physical and virtual worlds.

Unfortunately, the metaverse will also provide new methods to harass, assault, and stalk[5]. Courts may be presented with new questions about whether new forms of cyber-harassment will qualify for domestic violence protections and how to protect victims.

There are more questions than answers about how the metaverse will change our society. But it is clear our clients are increasingly investing in cryptocurrency assets, virtual land, and NFT’s. New challenges have already arisen in disclosure, valuation and division of these assets. Within the next decade, Family Lawyers will likely continue to evolve their practices and lives in the metaverse. Savvy family lawyers will start preparing now.

Amber Kornreich is a family lawyer at Kornreich & Associates in Miami, Florida. She is the Immediate Past President of The First Family Law American Inn of Court and currently serves on The Family Law Section’s Publications Committee.

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If you have a topic of interest regarding Family Law and you'd like to submit an article for our monthly e-Newsletter, FAMSEG, or our quarterly publication, The Commentator, email publications@familylawfla.org for more information. Thank you for your interest in contributing to our member publications!