Legislative Update Regarding Alimony Reform

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The Alimony Reform effort for the 2017 Legislative Session has died in committee. This ends another effort at alimony reform that has failed several times in recent years: twice by veto by Governor Rick Scott and once when there was a session shutdown due to a dispute over healthcare.

This year’s bill would have provided set guidelines for calculating alimony, while also providing for criteria to deviate from those guidelines under certain circumstances. Scott vetoed a similar bill in 2016 which included a major impediment: it contained a 50/50 child time-sharing presumption clause, which the governor cited as his reason for the veto.

That presumption was removed from this year’s bill. Allen Dell attorney Philip Wartenberg, the current Co-Chair of the Family Law Section’s Legislation Committee, made the rounds in Tallahassee in February meeting with legislators to garner support for the bill in both Chambers. However, committee inaction on the bill in both Chambers has led to the bill’s failure this session. The future of alimony reform in Florida is now uncertain, but the laws on alimony are likely to remain the same for the foreseeable future. Any questions regarding the current status of Florida’s alimony laws can be directed to Mr. Wartenberg or any of the family law lawyers at Allen Dell at (813) 223-5351.

The “Stand-Alone” Family Law Rules Adopted in Florida on March 16, 2017

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After a lengthy notice and debate process, the Florida Supreme Court has finally issued its long-anticipated decision to adopt the “Stand-Alone” Family Law Rules of Procedure. These rules can be found at Rules 12.005 through 12.630, Fla. Fam. L.R.P.

Since the adoption of the initial Family Law Rules of Procedure in the mid-1990’s, the majority of the initial Family Law Rules made specific reference back to the Florida Rules of Civil Procedure. This resulted in both attorneys and unrepresented litigants having to oftentimes perform cumbersome research into two different sets of procedural rules in order to navigate their way through court proceedings. The project of converting these Family Law Rules, so that those references to the Civil Rules are no longer made by any Family Law Rule, was undertaken many years ago by the Florida Bar’s Family Law Rules Committee. In its decision dated March 16, 2017, the Court ratified all of the recommendations of the Rules Committee, with very limited exceptions. The Court additionally established the new Rules as being effective immediately on that same date.

Accordingly, a new set of procedural rules for family law matters have now become applicable to any person in the State of Florida who is presently involved in a family law dispute.

The six attorneys within Allen Dell’s Family Law Department are ready to assist and advise family law clients, as well as attorneys in other practice areas, with regard to the intricacies of these new “stand-alone” rules and forms. Please contact one of our family law attorneys today to assist you with any questions you may have regarding this significant change in the law.

The Court’s 177-page decision (including the revised Supreme Court-approved Forms) can be found at this link: http://www.floridasupremecourt.org/decisions/2017/sc16-978.pdf

Robert L. Olsen

Allen Dell, P.A Announces New Shareholder Robert L. Olsen

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Robert L. Olsen joins Allen Dell as a shareholder, where he represents clients in commercial litigation & transactions, and trusts & estates litigation. Mr. Olsen has over twenty-five years of law practice experience, with extensive arbitration, jury, non-jury, and administrative trial experience. Mr. Olsen is admitted to practice in both state and federal courts, and has tried cases in Florida as well as California, Georgia and New York with a focus on complex commercial and trusts & estates matters. Mr. Olsen also provides advice & counsel in commercial transactions, and has prior experience in corporate financial management and commercial banking.

Tallahassee – Daubert vs Frye – Florida Supreme Court nixes Daubert amendment

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Is Frye now the standard Florida courts will use to approve expert testimony in civil and criminal cases? The Florida Supreme Court, in a 4-2 decision, declined to adopt the Daubert standard in place of Frye. However, the Court did not expressly reject Daubert either, deciding to wait for a “proper case or controversy” before more formally deciding the issue.

Historically, Florida has been one of the few states that continued to follow the Frye test for the admissibility of certain expert testimony. In a move away from Frye, on July 1, 2013, the Florida legislature enacted the Daubert standard. The legislature’s action was controversial because opponents argued that only the courts, not the legislature, could enact rules of procedure. There continues to be disagreement about whether the standards for admissibility of expert testimony are procedural (and therefore require court approval) or substantive (and can be enacted by the legislature). Despite opposition, a litany of appellate courts in Florida began applying and enforcing the Daubert standard following the legislative enactment.

In October 2015, a Florida Bar committee voted 16-14 in favor of making a recommendation to the Supreme Court of Florida to refuse to adopt the Daubert standard. Opponents argued that enacting Daubert would raise “grave constitutional concerns” — including undermining the right to a jury trial and denying access to the courts. Proponents of Daubert argued that the federal court system, and a majority of the states, was already following Daubert without these constitutional rights being infringed.

In its decision the Supreme Court did not squarely address whether the legislature’s action was substantive or procedural. Rather, the Court ruled that “to the extent” the action was procedural, the court was declining to adopt Daubert. But the Court also left open the possibility that Daubert could be adopted at a later time, noting that since opponents of Daubert raised constitutional concerns about its application, said concerns “must be left for a proper case or controversy.” So, although the court declined to adopt Daubert today, it is unclear whether Daubert might be adopted at some later time.

The case is In re: Amendments to the Florida Evidence Code, Case No. SC16-181

Tallahassee – Alimony Reform Bill

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House Bill 283 has been filed regarding alimony reform. It is identical to the last version of the HOUSE bill from 2016 (no 50/50 timesharing). The bill has also been filed in the Senate, in substantially identical form but the Senate has not assigned numbers as of yet.

This bill, in substantially similar terms has made it to the Governor twice to be vetoed because of the 50/50 timesharing issue.

The bill is a complete overhaul to alimony in Florida. It creates a presumption of alimony in all marriages in excess of 2 years as well as creates guidelines for amounts and durations. It creates a presumption against alimony in marriages of 2 years or less, absent clear and convincing evidence of why it should be paid.

A few highlights:

  • Temporary alimony requires need and ability and the guidelines do not apply
  • The presumptive low end for duration is 25% the length and high end is 75% of the length.
  • To determine amount for the low end: (.015 x length of marriage) x difference in gross income of the parties. High end is (.020 x length of marriage) x difference in gross incomes of the parties
  • For marriages of greater than 20 years, 20 years is used to determine amount UNLESS the court is ordering alimony for a duration of less than or equal to ½ the length of the marriage, then the court uses the actual length of the marriage or 25 years if the marriage is in excess of 25 years
  • 14 factors the court now uses in determining where in the range amount and duration will be, including standard of living, tax consequences, need to stay home with a child, etc.
  • Codifies nominal alimony
  • Codifies ability for court to make alimony non-taxable, non-deductible
  • Clarifies that alimony and child support combined cannot exceed 55% of payors net income and if it does child support is reduced
  • Codifies special circumstances for security for alimony award
  • Creates requirements for what must be in an alimony award judgement, including a finding of ability to pay by the payor and specifically setting forth amount and duration
  • Establishes ability to deviate from guidelines with specific findings
  • Creates new ways to modify and codifies Pimm (with some modification)
    • If actual income of spouse who was imputed income exceeds imputed income by 10%, that is a substantial change for modification – well unless you are the payor and the Final Judgment says that the payor was underemployed at time alimony award was established and the court did not impute income
    • Allows for customary retirement age to be basis to modify – and permits filing within year of customary retirement age and permits finding by court if retired before customary age that it was okay based on various factors and required findings. If this is found, then that is a substantial change and presumption arises that court will modify or terminate alimony unless overcome by meeting specific guidelines in bill. Also permits temporary modification.
    • Removes the requirement for cohabitation in supportive relationship
    • Does not require the supportive relationship to be in existence at time of trial, so long as it existed within year of filing
  • Establishes that 6 months of changed income is a substantial change
  • Provides fee award for unnecessarily bringing or defending against a modification of alimony claim
  • Applies to all initial and modification actions pending on 10/1/2017
  • The statute is not alone a basis to modify.

Here is a link to the PDF of the House version:

http://www.flsenate.gov/Session/Bill/2017/0283/BillText/Filed/PDF

Amy D. Singer to Speak at Hillsborough County Bar’s Marital and Family Law Section CLE Wednesday, January 18, 2017

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Amy D. Singer will be speaking at the Hillsborough County Bar’s Marital and Family Law Section CLE entitled Collection, Enforcement and Modification of Final Judgments: The Standards and Techniques You Need to Know. The continuing education course will be held on Wednesday, January 18, 2017. Ms. Singer will speak on the issue of modifying parenting plans, including modification of timesharing and parental responsibility, the burden of proof necessary for modification, and the use of experts in such cases.

Marian McCulloch Has Become a Certified Member of The Lawyers of Distinction

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The Lawyers of Distinction is pleased to announce that Marian P. McCulloch of Tampa, was nominated and has been certified as a member.

Membership is limited to the top 10% of attorneys in the United States. Members are accepted based upon objective evaluation of an attorney’s qualifications, license, reputation, experience, and disciplinary history.

Marian McCulloch is Board Certified in Marital and Family Law by the Florida Board of Legal Specialization and Education. She confines her practice exclusively to Marital & Family Law matters.

For more information see website www.lawyersofdistinction.com

Miriam E. Mason

Allen Dell, P. A. Announces New Shareholder Miriam E. Mason

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Allen Dell announces Miriam E. Mason will be a shareholder in our firm, effective January 1, 2017. Miriam is Board Certified in Marital & Family Law, is listed in The Best Lawyers of America, and is rated AV by Martindale Hubbell.

Miriam has held numerous positions, including leadership positions, in the Florida Bar and national, state, and local professional legal associations.

Miriam served on the Marital & Family Law Board Certification and Marital & Family Law Rules Committee of the Florida Bar. While Chair of the Marital & Family Law Rules Committee, Miriam presented the initial rules to the Florida Supreme Court in oral arguments and, as a result, those rules were promulgated by the Florida Supreme Court. She additionally was a contributing author of the Amicus Curiae Brief on behalf of The Family Law Section to the Florida Supreme Court in the Canakaris v. Canakaris decision which created the concept of Equitable Distribution. In addition to being a Past Chair, Secretary, and Treasurer of the Family Law Section of the Florida Bar, she has been a member of the Executive Council, was Chair of the Education Committee which was in charge of marital and family law seminars presented around the State and was Editor of The Family Law Commentator.

During her long-time fellowship in the American Academy of Matrimonial Lawyers (AAML), Miriam served a term as President, three terms as Vice President, and has been Secretary, Treasurer and a Member of the Board of Directors. Miriam is also a Past President of the Florida Chapter of the AAML.

Miriam is an Emeritus Diplomat of the American College of Family Trial Lawyers.

Locally, Miriam is a Past President of and presently an Emeritus Master in the J. Clifford Cheatwood Inn of Court.

Please join Allen Dell in welcoming Miriam E. Mason as a shareholder in our firm, effective January 1, 2017.

Best Lawyers®

Allen Dell, P.A. ranked in 2017 “Best Law Firms”

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U.S. News & World Report and Best Lawyers, for the seventh consecutive year, announce the “Best Law Firms” rankings.

Allen Dell, P.A. has been ranked in the 2017 U.S. News – Best Lawyers® “Best Law Firms” list regionally in 6 practice areas. The firm achieved a tier 1 listing in 3 practice areas: Family Law, Health Care Law and Trusts & Estates Law.

Firms included in the 2017 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

The 2017 Edition of “Best Law Firms” includes rankings in 74 national practice areas and 122 metropolitan-based practice areas. One “Law Firm of the Year” is named in each of the 74 nationally ranked practice areas.

Ranked firms, presented in tiers, are listed on a national and/or metropolitan scale. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

Allen Dell, P.A. received the following rankings in the 2017 U.S. News – Best Lawyers “Best Law Firms”:

Metropolitan (Tampa) Tier 1

Family Law

Health Care Law

Trusts & Estates Law

Metropolitan (Tampa) Tier 2

Non-Profit/Charities Law

Metropolitan (Tampa) Tier 3

Commercial Litigation

Litigation – Construction

 

BEWARE – Do not use your work email for personal communications – a new case makes clear why

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The lines between technology and our lives have become so blurred that, for many employees, work email addresses are indistinguishable to their personal ones. Three things you need to know before your hit “send” (1) Emails between you and your attorney on matters not involving the employer’s business (i.e, your divorce) are not protected by attorney client privilege to the extent they are sent, forwarded, or stored on your employer’s communication system, (2) You have no right of privacy on your employer’s email system and your employer can monitor your emails and check on websites that you visit, and (3) That email will always be there, waiting to be discovered.

Bingham v. Baycare Health Sys., 8:14-CV-73-T-23JSS, 2016 WL 3917513, at *1 (M.D. Fla. 2016)