Decision from 4th District Court of Appeals Confirms the Court Must Hold an Evidentiary Hearing to Consider Temporary Relocation

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On April 10th the 4th DCA confirmed the provision in Fl.Stat. 61.13001 and held in Rivero v. Rivero that a court must hold an evidentiary hearing in order to consider a temporary relocation of a minor child pending a final hearing on a parent’s request to relocate. The appellate court determined that the trial court erred when it only considered the verified pleadings and argument of counsel when it permitted he mother to move with the minor child to North Carolina pending a final hearing. Preparing for an evidentiary hearing on a relocation issue is time-consuming. Parents who wish to relocate should contact counsel well in advance of the date they anticipate they will need to move.

Senate Vote Puts Changes to Spousal Support and Alimony Law One Step Closer

On Thursday the Senate approved Bill 718 by a 29-11 vote. The Bill could be taken up by the House as early as next week. The Bill proposes to completely alter the discretion judges currently have to award alimony, imposes severe limits on awards of spousal support, and makes substantial changes to the most recent changes to the law on spousal support which already made it more difficult for the disadvantaged spouse to obtain an award of spousal support and provided substantial relief to the higher-earning spouse.

Kira Willig to Serve on Board of Directors of the Miami International Book Fair

Congratulations to Kira E. Willig, who has been selected to serve on the Board of Directors of the Miami International Book Fair. The Miami Book Fair International was founded by Miami Dade College and community partners in 1984. Since then it has been recognized as the nation’s finest literary festival.

Supreme Court Considers Marriage Equality

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Two domestic relations cases came before the Supreme Court of the United States this week that has gripped the nation’s interest and polarized proponents for and against marriage equality. Domestic relations are typically left to each state to decide so that each state is generally permitted to enact their own lows governing marriage, domestic relations, and divorce. The result is that there are different rules in each state governing getting married, being married, and getting divorced. It is unusual for the Supreme Court to have not one but two cases in the same session dealing with marriage rights. Both cases involve same-sex marriages and the rulings have potential far-reaching effects for our local community.

The first case involves a California Proposition passed by voters in the 2008 election to ban marriages between couples of the same sex. A lower court has already ruled this Proposition unconstitutional and now the issue is in the hands of the highest court in the land.

In 2008, in the same election where Proposition 8 passed in California, Florida voters passed a similar law: a Constitutional Amendment called “Amendment 2” which states that
“Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

This Constitutional Amendment extended Florida’s previous statute banning recognition of same-sex marriages, but also to domestic partnerships and civil unions that many other states that do not recognize same-sex marriages authorize as a marriage “lite” type of relationship. These other types of unions are not necessarily limited to same-sex couples but also offer marital-type relationships to, for example, senior citizens who wish to confer certain rights on each other but not jeopardize their children’s inheritance or their ability to be self-supporting through a deceased spouse’s pension or social security benefits by remarrying.

Amendment 2 extended Florida’s 1997 ban on any recognition of same-sex marriage. Fla.Stat 741.212 codified the federal Defense of Marriage Act and defines marriage as between one man and one woman and states that Florida will not recognize any same sex marriage even if the couple legally married in another state. This means that Florida residents who legally wed in a same-sex union in another state cannot enjoy any state benefits of marriage, and also cannot obtain a divorce in Florida. These couples remain wedlocked despite their desire to dissolve their union, equitably distribute their assets, deal with support obligations, and remarry…all benefits conferred on opposite-sex married couples without question.

The second case before the Supreme Court of the United States involves the federal Defense of Marriage Act passed by the Clinton Administration that 1) defines marriage as between one man and one woman, 2) allows states to not recognize legal same-sex marriages from other states, and 3) denies federal benefits to same-sex couples legally married in their state. This means that couples who are legally married in their state cannot file taxes jointly as a married couple, among many other federal implications.

In the case before the Supreme Court, the third part of DOMA regarding federal benefits is at issue. The facts before the case are this: an elderly woman whose legal spouse and partner of 40 years died. If her spouse had been a man, she would have paid $0 in estate taxes. But because her life partner and spouse was a woman, she was ordered to pay $363,000 of her wife’s estate to the federal government because the federal government would not recognize her marriage and extend the same rights to her as it would an opposite-sex married couple. Regardless of one’s opinion on whether there should be federal benefits for married couples in general, it is only fair and equitable that as long as those benefits are offered, they should be equally applied across the board and not based on the gender of the spouse someone chooses to marry.

Decisions are expected to be published this summer. The legal status of Florida Statute 742 and Amendment 2 that do not permit or recognize same-sex marriages or any union resembling marriage could be affected by the Court’s rulings. In the meantime, Florida residents in legal same-sex marriages will have to continue the fiction of being married in one state and not have their union recognized in Florida or by the United States of America, while others patiently wait to join in a marital union that will be recognized by the state where they live.

Proposed Changes to Get Parties Divorced Quicker

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House Bill 231 attempts to resolve the problems of dissolution of marriage cases that last for several years, leaving parties and their children in limbo while all of the issues slog through the courts. Unfortunately, without the funding the Courts requested to relieve the Judges of their overburdened caseloads, this seems like a Band-Aid on a gushing wound.

The proposed statute will give a Judge discretion after a case has been pending for 180 days (approximately 6 months) to divorce the marriage and reserve jurisdiction to decide any unresolved issues, such as a parenting plan, division of assets and liabilities, spousal support, child support, and attorney fees.

If a case has been pending for 365 days (1 year), the Court shall immediately grant the divorce (reserving on unresolved issues) unless the objecting party can show he or she would suffer irreparable harm.

Some of the benefits of this ruling is that it will allow people who have emotionally moved on and have new partners to remarry, or make real estate purchases that sometimes otherwise would have required the cooperation of their estranged spouse. A disadvantage is that a spouse who was covered through a family insurance plan will be required to use COBRA (which generally terminates after thirty-six months) or obtain their own insurance before issues of property division and support are finalized.

If the bill passes and becomes law, it will be interesting to see how often a party or a Judge asks to use this statute and what far-reaching consequences may come about.

Proposed Changes to Spousal Support and Alimony Law

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We also have our eye on Senate Bill 718, which proposes to completely alter the discretion judges currently have to award alimony, imposes severe limits on awards of spousal support, and makes substantial changes to the most recent changes to the law on spousal support which already made it more difficult for the disadvantaged spouse to obtain an award of spousal support and provided substantial relief to the higher-earning spouse. The Family Law Section of the Florida Bar opposes Senate Bill 718 and the bill has been discussed by my family law practitioners in the media because of the drastic changes to the current law. While many practitioners have expressed a desire for more predictable outcomes in order to achieve settlement without court intervention, the general consensus seems to be that Senate Bill 718 goes too far in limiting spousal support and promotes gender inequality, as women tend to be the recipients of spousal support.

Current Law: The current version of the Fla.Stat.61.08 which was enacted in just the last couple of years, defined a short term marriage as 1-7 years, a moderate term marriage of 7-17 years, and a long-term marriage of 17 years. After a 17 year marriage, there was a presumption that permanent alimony as appropriate. The last version of the statute also established durational alimony and capped it at the length of the marriage, and made permanent alimony the alimony of last resort.

Marriage Length: The proposed statute would consider any marriage up to 10 years a short-term marriage. A couple would have to be married at least 20 years to have a long-term marriage. However, permanent alimony is stricken from this new version of the statute and a spouse can only receive durational alimony up to half of the length of the marriage (instead of permanent alimony or alimony up to the length of the marriage). The statute also provides that there is a presumption that no alimony is appropriate in a marriage of up to ten years.

Retirement Age: The proposed statute also sets a limit up to the recipient’s spouse’s normal retirement age (65 or 67 depending on year of birth) for social security retirement benefits, even if the award would be cut short of the 50% length of the marriage. If a 55 year-old were to get divorced after a 30 year marriage and could prove he or she had the need for support and the other spouse had the ability to pay, the award would last for ten years until the spouse reached the age of 65 when it would automatically terminate unless the recipient of the spousal support went back to court. Previously, the burden was on the person paying support to ask the court to reduce or terminate the award of spousal support.

Cap on Income: Another change is to establish a 33% cap on the percentage of net income a court can take from a paying spouse. Interestingly, the statute does not impose any baseline threshold of the percentage of net income.

Retroactivity: The statute allows nearly any person currently paying spousal support to ask the Court to modify their spousal support obligation to comport to the new statute.

Proposed Changes to Florida Time-Sharing Law

Proposed changes to Florida Family Law.

A new development in time-sharing has come about with Senate Bill 1466 that was filed on March 7th and is currently being considered by the Children, Families, and Elder Affairs Committee.

The bill proposes that there should be a presumption that it is in the best interests of a minor child to have equal time-sharing with each parent. Under current law, which was established in 2009, the Court has twenty statutory factors to consider when establishing a time-sharing schedule.

This proposed statute would mean that all children will spend an equal number of overnights during the year with each parent unless the parent who does not want an equal time-sharing schedule can demonstrate to the Court why a different time-sharing plan should be in effect.

Interestingly, it was only as recent as 2009 when the law on the books was that a rotating schedule of equal time with the parents was considered detrimental to a child’s best interests and the Courts endeavored to create one primary home for children.

The legislature should consider the input of parents, educators, pediatricians, and mental health professionals who are the best observers of how the time-sharing plans put into place by the Courts as dictated by the legislature impacts children to ensure that the best interest of children are truly being met.

Supreme Court of Florida Affirms Judgment Against Phillip Morris

Tobacco Litigation News.

Today the Florida Supreme Court issued its opinion in the case of James L. Douglas v. Phillip Morris USA, Inc. Significantly, the Court upheld the judgment in favor of the tobacco victim’s family, found that there was no violation of due process by holding the Defendant to the findings that the Defendants have common liability for strict liability, negligence, breach of express and implied warranty, fraudulent concealment, and conspiracy to fraudulently conceal claims.

Kira Willig Super Lawyers Rising Star

Congratulations to Kira who has been selected as a Super Lawyers Rising star for the fourth year. “The Super Lawyers selection process is a comprehensive, good-faith and detailed attempt to produce a list of lawyers that have attained high peer recognition, meet ethical standards, and have demonstrated some degree of achievement in their field.”

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