Latest Commentary on Recent Legal Events
Latest Commentary on Recent Legal Events
Clients often ask me, “what can I expect in my divorce case?” It is a good idea to explain the process of a dissolution case during one of the first meetings with the client, so he/she will know what to expect as the process unfolds. Although many clients make the comment, “my divorce case is different,” there are many aspects of the process that will be common in almost all cases.
Petition for Dissolution – A divorce case in Florida is begun by filing a “Petition for Dissolution of Marriage” with the Clerk of the Circuit Court. The Respondent, the person served with the divorce petition, must file an Answer within 20 days.
All divorce cases in Florida are heard by a judge, not a jury (unless paternity or personal injury is involved, those issues can be tried by a jury). Judges do not want excessive emotion brought into their courtrooms. Therefore, a good attorney will make sure the client will be calm in the courtroom. The demeanor of a client in court, whether testifying or not, will be observed by the judge. Many divorce cases are heard in a judge’s chambers, except for trials and hearings involving numerous witnesses.
Answer/Counter-Petition – In responding to the Petition, the Respondent will file an Answer. The Answer often includes a “Counter-petition for Dissolution of Marriage.” If the Respondent is requesting relief not addressed in the original Petition it is recommended that a Counter-petition be filed to allow the Court authority to award the affirmative relief to the Respondent.
Discovery – During the case, each attorney has the right to obtain “discovery” (i.e., information and documents, often financially related) from the other attorney. There are five types of discovery in Florida: 1. Mandatory Disclosures, 2. Request for Admissions, 3. Interrogatories, 4. Request for Production of Documents, and 5. Depositions. The Respondent has 45 days to respond to discovery requests served with the Petition. Thereafter, either party who receives a discovery request must respond within 30 days.
Mandatory Disclosures – It is mandated by the Florida Supreme Court that each party in a family law case produce certain documents at the beginning of the case. The documents which need to be produced are as follows:
-Tax Returns for prior 3 years
-Pay Stubs (evidence of income) for 3 months prior to Financial Affidavit
-Loan Apps/Financial Statements for 12 months prior to the Financial Affidavit
-All deeds, promissory notes and leases
-Checking, Savings, Money Market CD statement (3 months)
-Brokerage Account statements for last 12 months
-Pension, Def Comp, IRA, 401(k) etc, most recent statement
-Dec Page, last statement for life ins policy
-Health and Dental cards for self/spouse/children
-Corp/Partnership/trust tax returns last 3 years(over 30% int)
-Credit card statements, promissory notes, prior 3 months
The “mandatory disclosure” can be waived by the parties, but should not be waived in cases involving significant assets and/or liabilities. However, the filing of a “Financial Affidavit,” which is part of mandatory disclosure, cannot be waived. A Financial Affidavit is the most important financial document filed by each party in a divorce case. It contains detailed information about one’s income, monthly expenses, assets, and liabilities. Florida law permits a final judgment of divorce to be reopened at any time if a spouse filed a significantly inaccurate Financial Affidavit.
Request for Admissions – A request for admissions, sometimes also called a request to admit, are a set of statements sent from one litigant to an adversary, for the purpose of having the adversary admit or deny the statements or allegations therein. Requests for admissions are part of the discovery process in a civil case. If admitted, the statement is considered to be true for all purposes of the current case. Parties may also use this discovery device to request that other parties verify that documents are genuine. Requests for admission are generally used toward the end of the discovery process to settle uncontested issues and simply the trial.
Interrogatories – Interrogatories are written questions submitted to the opposing party during the divorce process. Interrogatories must be answered, truthfully, under penalty of perjury within 30 days. The opposing party may object to answering the questions if they feel they are arduous in nature and have no bearing on the case. Interrogatories should be straightforward, asking for information that would be readily available. Florida law permits divorce lawyers to add up to ten additional questions to the form Standard Family Law Interrogatories, most attorneys surprisingly do not do so.
Request for Production – A Request for Production is a request for documents from the opposing party that relate to issues in your divorce case. The “request for production” of documents must set forth the items to be inspected. You must describe the documents by individual item or by category. Below are samples of information or documents you can ask for:
•All written reports of each person whom you expect to call as an expert witness at trial.
•All documents upon which any expert witness you intend to call at trial relied to form an opinion.
•All written, recorded, or signed statements of any party, including both parties to the divorce, witnesses, investigators, friends, family members or employer of the parties concerning the subject matter of this divorce action.
•All photographs, videotapes or audio tapes, emails, surveys or other graphic representations of information concerning the subject matter of this divorce action.
Depositions – A deposition is, “An important tool used in pretrial discovery where one party questions the other party or a witness in the case. Often conducted in an attorney’s office, a deposition requires that all questions be answered under oath and be recorded by a court reporter, who creates a deposition transcript. Increasingly, depositions are being videotaped. Any deponent may be represented by an attorney. At trial, deposition testimony can be used to cast doubt on a witness’s contradictory testimony or to refresh the memory of a suddenly forgetful witness. If a deposed witness is unavailable when the trial takes place — for example, if he or she has died — the deposition may be read to the judge in place of live testimony.”
Florida Mandated Court Submissions – It is mandated by the Florida Supreme Court that each party in a family law case produce certain documents at the beginning of the case. Those documents include, but are not limited to, the following:
Notice of Social Security Number
Certificate of Mandatory Disclosures
Certificate of Completion of Child Parenting Class
Child Support Worksheet
Marital Settlement Agreement
Mediation – Meditation during divorce is a way of finding solutions to issues such as child custody and spousal support. It is an alternative to formal process of divorce court. During mediation, both parties to the divorce and their attorneys meet with a third party. This third party, the “mediator” assists the parties in negotiating a resolution to their divorce. Parties have the opportunity to discuss the issues, clear up any disagreements and come to an agreement that they both agree to. The mediator is an objective party. It is not his/her job to resolve problems or force an agreement on the parties. He/She helps the parties come to an agreement by acting as an intermediary. He/she may offer an opinion or make suggestions but, at no time are they allowed to force an agreement upon the parties. A mediator has no power and the sole function of a mediator is to facilitate settlement if possible. Proceedings are confidential. Mediation is required in Florida divorce cases before any hearing for temporary relief or trial. The benefits of settlement, with or without mediation, is saving substantial attorney fees and costs, eliminating the time and emotion of trial, and having a certain result of a settlement agreement, and not relying on the judge to make all decisions for both parties.
Trial – If mediation is unsuccessful, then trial is the only remaining option, unless the parties settle before trial. The problem with a late settlement is the cost of additional attorney fees and litigation costs. The judge will schedule a Pretrial Conference. Each attorney, under Florida law, is required to file a Pretrial Conference Statement which lists the lay witnesses, expert witnesses, documents anticipated to be introduced at trial, the stipulations (attorney agreements) to reduce unnecessary issues at trial, the estimated length of trial, etc. The judge will schedule the trial date (often 60-90 days after the Pretrial Conference). Typically, attorney fees for trial, including the preparation and attendance at trial, will be three to four times more than the attorney fees previously incurred.
A divorce trial is not to air all the dirty linen. It’s not a “She did, he did” drama, like a daytime soap. It is the standard legal way that contracts are examined, broken, changed, or ended, when the two parties to that contract can’t come to a decision. Marriage is a legally binding contract over which the State retains the right to rule whether or not it can be dissolved. It is a legal process.
The process is for each side to present to the court their demands, backed up by their documents and reasons for their demands. Of course there are “arguments” on both sides, i.e. reasons for the demands, presented both in writing and then orally by the attorneys representing the parties. But here is the most important point: A trial can be your best friend because the decisions made by the Judge are not arbitrary. He makes his decisions based on (A) The facts presented (B) The supporting documents provided, and (C) Case law that is already on the books, i.e. cases that have already happened over the years on which judges have ruled. At the completion of the trial, the judge will issue an Order on all of the issues of the case.
For more information on what I can expect in my divorce case, click here.
By: Associated Press
February 23, 2015
TALLAHASSEE, Fla. (AP) — A Florida appeals court is throwing out a lawsuit challenging a law that lets elected officials place their assets in a blind trust.
The court did not rule on whether the law is constitutional. Instead the three judges with the 1st District Court of Appeal concluded that there was no “controversy” that required a ruling now.
Jim Apthorp, a former aide to the late Democratic Gov. Reubin Askew, filed the lawsuit. He says letting politicians use a blind trust violates constitutional requirements of full financial disclosure.
Florida Gov. Rick Scott has used a blind trust. He dissolved it last summer and disclosed his finances before qualifying for the ballot.
The appeals court said since no one had a blind trust, there was no legal reason to consider the lawsuit.
The Florida Fifth District Court of Appeal recently issued an opinion on this issue. In Botee v. Southern Fidelity Insurance Company, the court was faced with the question, “will a homeowners policy cover arson of a vacant house?” The court’s opinion regarding the arson of a vacant house was filed on February 6, 2015.
The Court made the following holdings: 1.Where the insured home was destroyed by an intentionally set fire, arson was encompassed within the “vandalism and malicious mischief” provision to exclude coverage under the insurance policy; 2. The policy exclusion was unambiguous; and 3. The plain and ordinary meanings of “vandalism” and “malicious mischief” include “arson.” Therefore, arson of a vacant house was not covered by the insurance in this case.
Homeowner’s policy’s vacancy exclusion, excluding from all-risk coverage to the structure losses caused by “vandalism and malicious mischief,” included “arson.”
A homeowner’s insurance policy’s vacancy exclusion, excluding from all-risk coverage to the structure losses caused by “vandalism and malicious mischief” if the structure had been vacant or unoccupied for more than 30 days prior to the loss included “arson.” Thus, there was no coverage for the loss to the insured’s home caused by an intentionally set fire after it had been vacant for more than 30 days prior to the fire. This was true even though the policy provided named perils coverage for loss to personal property caused by “fire or lightning.” The all-risk and named perils coverage were contained in two distinct sections of the policy, and it was only necessary to consider the all- risk section and the general conditions and definitions applicable to the entire policy to determine coverage since the loss was only to the structure and not to any personal property. The issue was one of first impression for this Court.
Although no Florida appellate decision has squarely addressed the issue presented in this case, other jurisdictions have addressed similar policies and found that “vandalism,” included arson in all-risk policies that did not distinguish between “fire” and “vandalism,” as is the case here. In Battishill v. Farmers Alliance Ins. Co., 2006 – NMSC – 004, 139 N.M. 24, 127 P.3d 1111, 1115 (N.M. 2006), the Supreme Court of New Mexico was asked to address a similar question with terms and policy provisions like those of the instant case. As here, in Battishill, a home, damaged by an intentionally set fire, had been vacant for more than thirty consecutive days prior to the fire, and did not contain any personal property. Id. at 1112. The policy in Battishill provided for all-risk coverage (subject to various exclusions) on the structure and named perils coverage on personal property caused by specific perils  such as “fire or lightning” and “vandalism or malicious mischief.” The structure coverage contained an exclusion for loss resulting from “[v]andalism and malicious mischief if the dwelling has been vacant for more than 30 consecutive days immediately before the loss.” Id. at 1114-15. Based on its determination of the common and ordinary meaning of the terms used in the exclusion provision, the Battishill court held that arson was a form of vandalism and malicious mischief. Id. at 1115. Since the court found that the exclusion was clear and unambiguous, it was unnecessary to read both the all-risk (structure) provision and the named perils (personal property) provision together, as the loss was only to the structure. The court concluded that coverage was excluded under the policy. Id. The Fifth DCA agreed with the analysis in Battishill.
Likewise, Costabile v. Metropolitan Property & Casualty Insurance Co., 193 F. Supp. 2d 465, 478 (D. Conn. 2002), held that “vandalism” was unambiguous and included “arson.” The policy in Costabile provided all-risk coverage for the structure, and did not list vandalism and fire as separate causes of loss. The personal property coverage was for named perils, including fire. Id. at 474. The court noted that “damage to the dwelling or private structures and damage to personal property are separate and distinct types of coverage contained in a single policy.” Id. The court determined that “vandalism” included “arson” based on the clear and plain meaning of the terms within the context of the distinct provisions of the policy. Id. at 476-77; see also Durrence, 872 F.2d at 379 (finding that, based on common sense interpretation of vandalism provision in vacancy exclusion, exclusion would apply to arson fire); Estes v. St. Paul Fire & Marine Ins. Co., 45 F. Supp. 2d 1227, 1229 (D. Kan. 1999) (finding that “vandalism” exclusion included arson); Potomac Ins. Co., of Ill. v. NCUA a/k/a Nat’l Credit Union Ass’n, No. 96 C 1044, 1996 U.S. Dist. LEXIS 9844, 1996 WL 396100, at *4 (N.D. Ill. July 12, 1996) (holding that ordinary meaning of “vandalism” in all-risk policy included arson); Bear River Mut. Ins. Co. v. Williams, 2006 UT App 500, 153 P. 3d 798, 801 (Utah Ct. App. 2006) (determining that vandalism and malicious mischief exclusion encompassed arson).
Here, the Policy provides all-risk coverage against direct physical loss to the structure under Coverage A, the structure provision, and named perils coverage for direct physical loss to the contents of the structure under Coverage C, a separate personal property provision. There is no reason to consider Coverage C in order to determine the meaning of Coverage A. Each are separate and distinct provisions, though common policy definitions and general conditions and provisions would control both. Although arson could be included within “fire or lightning,” these terms appear only in Coverage C, the personal property provision, not Coverage A, the structure provision. As the loss in the instant case was only to the structure and not to any personal property, it is only necessary to read Coverage A and the general conditions and definitions applicable to the entire Policy. In that context, the Court concluded that the plain and ordinary meanings of “vandalism” and “malicious mischief” include “arson.” Therefore, it need not read Coverage C to create an ambiguity when the vacancy exclusion in Coverage A is clear on its face. The Court affirmed the trial court’s final summary judgment.
Florida Attorney Advertising Rule is Unconstitutional.
On December 8, 2014, the United States District Court for the Southern District of Florida, decided that Florida Bar Rules 4-7.13 and 4-7.14 are Unconstitutional. Rules 4-7.13 and 4-7.14 as restated in the Guidelines completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media. (Rubenstein v. Florida Bar, 2014 U.S. Dist. LEXIS 170133).
In this case, the Plaintiffs (Robert Rubenstein and Rubenstein Law, P.A.) challenged on First Amendment grounds, certain rules and guidelines concerning attorney advertising designed and implemented by the Bar. Florida attorneys are required to submit all non-exempt advertisements to the Bar for evaluation as to rule-compliance. Rule 4-7.19, Rules Reg. Fla. Bar (2013). An attorney may obtain an advisory opinion from the Bar concerning the compliance of a contemplated advertisement, but may also begin advertising prior to Bar review. Id. Advisory opinions “are advisory only and are not the basis for action by [the Bar’s] grievance committees.” Florida Bar Procedures for Issuing Advisory Opinions Relating to Lawyer Advertising or Solicitation § 1 (2002) (“Opinion Procedures”). The Bar must advise the attorney as to its evaluation of all filed advertisement by issuing a Notice of Compliance or Notice of Noncompliance. Rule 4-7.19. The Bar may subsequently change its finding of compliance and must then provide Notification of Noncompliance. A finding of compliance by the Bar is binding on the Bar in any subsequent grievance proceeding, such that a favorable opinion serves as a safe harbor, protecting the advertising attorney from discipline arising out of dissemination of the subject advertisement. By contrast, the Rules provide that “[a] lawyer will be subject to discipline as provided in these rules for . . . dissemination of a noncompliant advertisement in the absence of a finding of compliance by The Florida Bar.” The Rules further provide that where a Notice of Noncompliance is issued, the Bar is required to “advise the lawyer that dissemination or continued dissemination of the advertisement may result in professional discipline.”
Relying on the newly amended Rules, Plaintiffs developed, at great expense, an advertising campaign featuring information regarding past recoveries for clients. Between May and October 2013, Plaintiffs submitted a series of television advertisements to the Bar for its evaluation. The Bar issued opinion letters in which it advised Plaintiffs that some advertisements were in compliance, some were not in compliance, and that some which were not in compliance could be brought into compliance with appropriate disclaimers. Id. Plaintiffs’ advertisements include, for example, a television segment animated with a cartoon car accident, a courthouse and dollar signs drawn on a dry-erase board; using an attorney voice over; and depicting the words “COLLECTED OVER $50 MILLION FOR THEIR CLIENTS IN JUST THE LAST YEAR! Gross proceeds. Results in individual cases are based on the unique facts of each case.” Critically, the Bar’s notice to Plaintiffs advised that its advertisements which included statements regarding past performance or results complied with the revised Rules, including the general rule against “false and misleading” attorney advertising.
In early 2014, the Bar’s Board of Governors issued new “Guidelines for Advertising Past Results.” . The Guidelines were issued “to assist lawyers in complying with these requirements when advertising past results.” The Guidelines provide that:
The inclusion of past results in advertising carries a particularly high risk of being misleading. Such advertising will require the inclusion of more information than most types of advertising in order to comply with Rules 4-7.13(a)(2) and 4-7.14(a). Indoor and outdoor display and radio and television media do not lend themselves to effective communication of such information. Consequently, the Bar generally will not issue a notice of compliance for advertisements in such media that include references to past results.
The Guidelines also contain specific restrictions and instructions regarding, for example, advertising dollar amounts and aggregating past results.
Shortly following issuance of the Guidelines, the Bar notified Plaintiffs that it had withdrawn its prior approval of multiple advertisements. The Withdrawal Letter explained that “subsequent to the issuance to you [Plaintiffs] of the prior opinion, the Florida Bar Board of Governors issued guidelines on interpretation of Rule 4-7.13(b)(2) regarding past results.” Id. at 1. The Bar then stated that:
The Board of Governors has directed staff to withdraw the Florida Bar staff’s advisory advertising opinion that was previously issued . . . only as to past results. The remainder of the prior Florida Bar staff advisory advertising opinion remains in effect. The Florida Bar staff advisory advertising opinion is that the advertisement(s) do not comply with the new past results guidelines adopted by The Florida Bar Board of Governors and therefore do not comply with Rule 4-7.13(b)(2) . . . .
The Withdrawal Letter further instructed that “references to past results generally may not be advertised in indoor and outdoor display media (billboards and other signs) or in television and radio advertisements. You may not include the reference to past results in the advertisement(s) as they appear in your submission in these media.” It advised that “[u]se of an advertisement that does not comply with the lawyer advertising rules past the time period noted above [of thirty days] may result in disciplinary action,” but explained that “[t]his letter does not constitute disciplinary action, nor does it mean that the bar has opened an investigation.”
Plaintiffs filed their lawsuit against the Florida Bar in March 2014. Plaintiffs have continued to disseminate the subject advertisements.
The Court granted summary judgment in favor of Plaintiffs. Stating there are no factual issues in dispute regarding the Bar’s blanket prohibition on the use of past results in attorney advertising on indoor and outdoor display, television and radio media. The Bar failed to demonstrate that the Rules regarding the use of past results in attorney advertising as interpreted by the Guidelines advance a substantial governmental interest, or that the those restrictions are not more extensive than necessary to serve that interest. The Court Ordered that Plaintiffs’ Motion for Summary Judgment, is GRANTED and the the Guidelines’ interpretation of the Rules to completely prohibit the use of past results in attorney advertising in indoor and outdoor display, television and radio media, contained in the section of the Guidelines titled “Unacceptable Media”, is UNCONSTITUTIONAL in violation of the First Amendment to the United States Constitution. Further the Court enjoined the Bar from enforcing Rules 4-7.13 and 4-7.14 as restated in the Guidelines to completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media.
On Friday, January 2, 2015, the US Supreme Court on declined a request from Florida officials to postpone the date when same-sex marriages can begin in the state.
As reported by NBC News, in August, a federal judge declared the state’s ban unconstitutional, but that order was put on hold until Jan. 5. The state asked the 11th U.S. Circuit Court of Appeals to delay the date, and when it refused, the state went to the Supreme Court.
Friday, without comment, the justices declined to grant the delay. Justice Clarence Thomas and Antonin Scalia said they would have granted it. Florida Attorney General Pam Bondi said she respects the court’s decision.
“Regardless of the ruling it has always been our goal to have uniformity throughout Florida until the final resolution of the numerous challenges to the voter-approved constitutional amendment on marriage,” Bondi said in a statement. “Nonetheless, the Supreme Court has now spoken, and the stay will end on January 5.”
As a result, same sex marriage and divorce is now legal in the State of Florida. Next month, the court is expected to review appeals of recent same-sex marriage rulings. If the justices act in time, the issue could be heard during the current court term.
Reported by Pete Williams of NBC News
Family law involves several different areas. One area of family law is dissolution of marriage. When handling dissolution cases, client’s often ask whether alimony is available in Florida. Often one of the parties in a dissolution matter believe they have a need for financial assistance from the other party. That financial assistance is called alimony. Florida law allows several different types of alimony. The Court can award temporary alimony until the final divorce hearing is held. At the final hearing the Court may order a final alimony amount. Several factors are considered when the Court is asked to order alimony. The length of the marriage is a major consideration for Florida alimony. The length of the marriage is general put into one of three different classifications. A short-term marriage is a marriage having a duration of less than 7 years. a moderate-term marriage is a marriage having a duration of greater than 7 years, but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. To obtain Florida alimony, there has must be a need for assistance on the part of the requesting party and an ability to pay alimony by the other party.
Permanent alimony is generally only ordered for long-duration marriages, as long as the legal criteria are met. It is also available for moderate duration marriages if the Court deems it is appropriate based on clear and convincing evidence in consideration of the legal factors It may also be allowed for short duration marriage in exceptional circumstances. If the Court awards permanent alimony, it must make a finding that no other form of alimony is fair and reasonable. Permanent alimony may be modified based upon a substantial change of circumstances.
Bridge the Gap Alimony
Bridge the gap alimony is a short term need not to exceed two years. It is for short or moderate duration marriage, or long-duration marriage, if there is no ongoing need for support on a permanent basis. Bridge the gap alimony is not modifiable as to amount or duration.
Rehabilitative Alimony can be modified upon a substantial change of circumstances pursuant to Florida Statute, or upon non compliance with the rehabilitative plan, or completion of the plan.
Collection of Alimony
Florida alimony can be withheld from a paycheck. A party can also be ordered to pay the money to Support Enforcement who will distribute it to the other party. Failure to pay alimony can result in the suspension of driving privileges. However, the court may allow a work permit. If a party is unemployed or underemployed and fails to pay court ordered support, the judge can order the party to seek employment and enter a job training or work program.
Termination of Alimony
Generally, alimony will terminate when the recipient re-marries. A court may also reduce or terminate alimony when the recipient is residing with someone in a “supportive” relationship. There are several criteria which the court will consider in deciding whether a “supportive” relationship exists, such as whether the couple hold themselves out as husband and wife, and the nature of their financial dealings. Durational alimony terminates upon death of either party, the re-marriage of obligee, or substantial change of circumstances pursuant to Florida Statute. Bridge the gap alimony terminates upon death of either party or re-marriage of the obligee. Rehabilitative alimony terminates upon substantial change of circumstances pursuant to Florida Statute or upon completion of the plan.
If you have questions about alimony please contact me.