1 SPECIAL Representing ISSUE The Family Law C O M M E N T A T O R Volume XXII, No. 4 Winter 2007 Carin Porras, Ft. Lauderdale, Editor IN THIS ISSUE: From the editor...2 Meet Your Executive Council...3 Representing a Homeowner: Issues Involving a Marital Residence...6 Representing the Service Member: The Service Members Civil Relief Act...8 Representing the Professional Athlete: Helpful Hints In Navigating Your Way Through Dissolution and Paternity Matters...11 Representing an Attorney in a Family Law Action: Interview with Jonathan Root, Esq...13 Take the Family Law Crossword Challenge!...14 Want a Learned, Speedy Trial? It s Time to Hire Your Judge...16 Representing a Party With Tax Issues...19 Spotlight: Orange County Bar Family Law Committee...22 Representing a Public Figure: Dealing With the Press in Family Law Matters Don t Do It!...21 Representing a Business Owner: What Are All Those Business Entities? Legislation Summary...27 Representing the Elderly: Important Questions to Ask Your Elderly Client...29 Coming up! Key West RETREAT! April 19-22, 2007 Weston Key West Resort & Marina Reservations: 305/ Improving Your Practice, Enhancing Your Life As I start my term as Chair of the Family Law Section of The Florida Bar, I want to thank our outgoing Chair, Jorge Cestero, for his hard work and dedication. His effort laid the groundwork for the year to come. His strong leadership helped our section establish a better relationship with The Florida Bar and addressed the needs of children in the Family Court system with a groundbreaking pro bono program. This year, the section will continue the work begun last year and will also focus upon serving the needs of its members. The Family Law Section s theme for the bar year is: Improving Your Practice, Enhancing Your Life. Join a Committee! One of the best ways to improve your practice is to be an active member of a Family Law Section Committee. Through committee work, you can become a better lawyer because committees provide an opportunity for you to learn about changes in the law, to network with other lawyers from across the state of Florida, and to have a direct impact in shaping the Rules of Procedure and the Statutes which govern our practice. In an effort to encourage you to be active in one or more section committees, I have implemented a new program which guarantees each section member the opportunity to serve on any committee he or she chooses, with the exception of our legislation committee which is limited to thirty members. I have also created two new committees this year, Equitable Distribution and Children s Issues, so that we may better address all areas of Family Law. Finally, the leadership of each substantive section committee committed to hold telephonic committee meetings throughout the year and to publish committee newsletters so that every committee member, whether they attend the formal committee meetings held in September, January, and June, may stay up to date with the work of Message from the chair the committee. I hope that you will take advantage of the enhancements to our section committees by joining by Tom Sasser, a section committee Esq., today. If you have not West Palm already joined a section Beach committee, please contact our Section Administrator Debby Beck at or at to sign up for a committee. Improving the Practice Our CLE Committee, chaired by Patty Alexander, has big plans for this year s educational programs. The committee has planned monthly telephonic seminars and two major seminars, one in the fall covering children s issues in another in the spring addressing financial issues. In addition, the Family Law Section Certification Review Course Committee, led by Peter Gladstone, Charles Fox Miller, and Caryn Green, has been working diligently for more than six months on this year s Certification Review Course Extravaganza. It will be bigger and better than ever with new speakers, an expanded format, and new, special activities for you and your family at the Walt Disney World Resort. The section also has a very full legislative agenda that will be pursued under the leadership of Magistrate Diane Kirigin. The section hopes to propose ground breaking legislation relating to parenting continued, page 20
2 2 COMMENTATOR Fall 2006 From the editor By Carin M. Porras, Fort Lauderdale First, I hope you all enjoyed the summer issue of the Commentator, our special values issue. In my editor s message, I unforgivably neglected to thank Kathy Beamer of West c. porras Palm Beach for her work as associate editor on that issue. Kathy did such a great job in getting the authors to submit timely articles that we moved the values issue ahead of this one. Thank you, Kathy! In this issue, we attempt to address some issues family law attorneys face in their representation of spouses with different professions and problems. Mark Sullivan s article regarding the ins and outs of representing a member of the armed forces (or his or her spouse) is especially timely, given our presence in conflicts abroad. Mark s bio clearly shows how qualified he is to address these issues. If you plan to represent a sports figure, read Adam Swickle s article on representing a professional athlete. You might want to avoid representing attorneys after reading Cinnamin O Shell Turk s interview with Jona- than Root on the subject. Douglas Greenbaum, a new member of the Family Law Section s Executive Council, writes about issues involved in representing the senior members of society we can all benefit from this information! And who hasn t represented a business owner, or the spouse of a business owner? Cinnamin O Shell Turk defines a number of different ways businesses are set up and the basic differences between them. Another place we ve all been representing parties with tax issues. Maria Gonzalez gives us a handle on how to deal with some of those touchy areas. And Hallie Agostinelli discusses decisions involved in keeping (or selling) a marital residence. You will also find advice from Jeff Weissman about representing public figures and (not) dealing with the media. And, in light of the crowded dockets in family law divisions throughout the state, Nancy Harris s article about the use of private judges or binding arbitration in your family law cases is especially valuable. In addition, General Magistrate Diane Kirigin, the current and past chair of the Family Law Section s Legislative Committee, has provided a 2006 Legislation Summary, a clear and concise look at what happened in The Commentator is prepared and published by the Family Law Section of The Florida Bar. Tom Sasser, West Palm Beach... Chair Allyson Hughes, New Port Richey...Chair-elect Peter L. Gladstone, Ft. Lauderdale...Secretary Scott Rubin, Miami... Treasurer Carin Porras, Ft. Lauderdale... Editor Debby Beck, Tallahassee... Administrator Lynn M. Brady, Tallahassee... Layout Donna Richardson, Tallahassee... Typesetting Statements of opinion or comments appearing herein are those of the editors and contributors and not of The Florida Bar or the section. the 2006 legislative session. As in every issue, you will find notices of upcoming continuing legal education seminars and photographs from past family law section events. This issue also contains photographs of the current 2006 Executive Committee and Executive Council members. Don t miss a few new, and hopefully continuing features to the Commentator, like the local bar news- - this time coming from the Family Law Section of Orange County Bar Association. I would like to include news from a different county in each issue so that we can all benefit from the ideas of others to incorporate into our respective local groups. Please contact me to contribute news from your county. I am also happy to include a Benchmarks column where we can read news about important events in the lives of our section members. I invite and encourage you to me news to include in this area. As you can see, it is not limited to awards or events of a legal nature. Finally, we have a crossword puzzle on equitable distribution issues, created by Kathy Beamer and General Magistrate Diane Kirigin. I hope you enjoy this Fall 2006 issue of the Commentator. Many thanks to Cinnamin O Shell Turk, who served as associate editor for this issue and who did a wonderful job ensuring that the articles in this issue were completed promptly! In addition, she submitted both an interview and an article be sure to read them. Comments on this issue and suggestions for future issues are encouraged. Please them to The theme of our winter 2006 issue is Interesting Alimony Issues. And spring 2007 s issue will be centered on Nontraditional Family Issues. If you have any ideas for articles, or checklists, hot tips, practice pointers, forms, book lists or informative websites on these topics, please share them with all of us.
3 Fall 2006 COMMENTATOR Meet Your Executive Council Mr. Thomas Sasser, Chair 1800 S. Australian Ave Suite 203 West Palm Beach, FL (561) Fax: (561) Mr. Angel Bello-Billini Lgl Aid Society of Orange Co 100 E. Robinson St. Orlando, FL (407) Ms. Allyson Hughes, Chair-elect 7604 Massachusetts Ave. New Port Richey, FL (727) Fax: (727) Mr. Alexander Caballero 307 S. Magnolia Ave. Tampa, FL (813) Fax: (813) Mr. Peter Gladstone, Secretary 1 Financial Plz Ste 2208 Fort Lauderdale, FL (954) Fax: (954) Ms. Michele Cummings P.O. Box 1900 Fort Lauderdale, FL (954) Fax: (954) Mr. Scott Rubin, Treasurer 44 W. Flagler St. Miami, FL (305) Fax: (305) Ms. JJ Dahl 1001 East Avenue Clermont, FL (352) Fax: (352) Mr. Jorge Cestero, Immediate Past Chair P.O. Box 2907 West Palm Beach, FL (561) Fax: (561) Mr. Lawrence Datz 4348 Southpoint Blvd., Ste. 330 Jacksonville, FL (904) Fax: (904) Ms. Patricia Alexander 120 E. Palmetto Park Rd., Ste. 150 Boca Raton, FL (561) Fax: (561) Ms. Jeannie Etter 46 S.W. 1st St., Ste. 200 Miami, FL (305) Fax: (305) Ms. Kathryn Beamer Suite Palm Beach Lakes Blvd. West Palm Beach, FL (561) Fax: (561) Ms. Terry Fogel 44 W. Flagler St., Ste. 350 Miami, FL (305) Fax: (305)
4 4 COMMENTATOR Fall 2006 Ms. Dori Foster-Morales 44 W. Flagler St. Miami, FL (305) Fax: (305) Mr. Joseph Hood 709 W. Azeele St., Ste. B Tampa, FL (813) Fax: (813) Ms. Melinda Gamot 315 5th St. West Palm Beach, FL (561) Fax: (561) G.M. Jon Johnson 800 E. Twiggs St., Rm. 480 Tampa, FL (813) Fax: (813) Mr. Douglas Greenbaum 311 S.E. 10th Ct. Fort Lauderdale, FL (954) Fax: (954) Honorable Amy Karan 175 N.W. 1st Ave., Ste Miami, FL (305) Fax: (305) Ms. Jennifer Harrington 2329 Sunset Point Rd., Ste. 204 Clearwater, FL (727) Fax: (727) G.M. Norberto Katz 2211 E. Michigan St. Orlando, FL (407) Ms. Nancy Harris 505 E. Jackson St., Ste. 306 Tampa, FL (813) Fax: (813) G.M. Diane Kirigin South County Courthouse 200 W. Atlantic Ave., Ste. 217 Delray Beach, FL (561) Fax: (561) Ms. Amy Hickman 2423 Quantum Blvd. Boynton Beach, FL (561) Fax: (561) Mr. David Manz 5800 Overseas Hwy., Ste. 40 Marathon, FL (305) Fax: (305) Mr. Benjamin Hodas 501 N. Federal Hwy. Lake Park, FL (561) Honorable Raymond McNeal 2640 S.E. 45th St. Ocala, FL (352)
5 Fall 2006 COMMENTATOR Mr. Charles Fox Miller 2435 Hollywood Blvd. Hollywood, FL (954) Fax: (954) Mr. John Schutz 1210 N. Olive Ave. West Palm Beach, FL (561) Fax: (561) Ms. Carin Porras Brydger & Porras, LLP 100 N.E. 3rd Ave., Ste. 480 Fort Lauderdale, FL (954) Mr. Mark Sessums P.O. Box 2188 Bartow, FL (863) Fax: (863) Ms. Elisha Roy 315 5th St. West Palm Beach, FL (561) Fax: (561) Mr. Jeffrey Weissman 1 Financial Plz Ste 2208 Fort Lauderdale, FL (954) Fax: (954) Ms. Robin Scher 7777 Glades Rd. Ste 400 Boca Raton, FL (561) Fax: (561) Mr. Frank Zilaitis 25 W. New Haven Ave., Ste. F Melbourne, FL (321) Fax: (321) Mr. Scott Schiltz P.O. Box Clearwater, FL (727) Fax: (727) Ms. Nancy Gregoire, Board Liaison One Financial Plaza 100 S.E. 3rd Ave., Ste. 900 Fort Lauderdale, FL (954) Fax: (954) Notice to Attorneys Filing Actions Under Florida Statutes Chapter 63 FLORIDA PUTATIVE FATHER REGISTRY SEARCH REQUIRED IN ALL TERMINATION OF PARENTAL RIGHTS AND ADOPTION ACTIONS UNDER CHAPTER 63 In each proceeding for termination of parental rights or adoption filed under Chapter 63, Florida Statutes, the petitioner must submit an application for a search of the Florida Putative Father Registry to the Department of Health, Office of Vital Statistics. After the search has been completed, the State Registrar shall issue a certificate for filing with the circuit court. Information required for the search is outlined in section , Florida Statutes. All information contained in the Registry is confidential and exempt from public disclosure except as provided in section , Florida Statutes. The current fee for a diligent search of the Registry is $9.00 or, for an expedited request, $ Processing the request typically takes 5 to 7 business days. Special mailing may be accomplished by providing a pre-paid express envelope or carrier ID number with the search request. Checks or money orders should be made payable to Office of Vital Statistics and mailed to: P.O. Box 210, Jacksonville, Florida The physical address for express mail is: 1217 Pearl Street, Jacksonville, Florida Forms may be obtained from the Office of Vital Statistics, any Florida county health department, or at the following website: Contact by telephone at (904) , ext or ext
6 6 COMMENTATOR Fall 2006 Representing a Homeowner: Issues Involving a Marital Residence By Hallie Agostinelli, Countrywide Home Loans The decision of how to settle the marital residence can be one of the most difficult issues in a divorce case. As with many of the other issues, this one can be quite emotional and complex. Aligning yourself with a seasoned mortgage professional will add to your service and ensure that however the property is settled, it will be done in a way that protects your client s interest and future ability to obtain financing. Listed below are some common problems and solutions to guide you through the process. The Quit Claim Deed The Quit Claim Deed is a legal document in which a vested party releases or quits any claim to said property. This document is signed by all parties and is recorded at the county courthouse. Problem: Many times during property settlement, the departing resident quits his/her claim to the property assuming this will release them from ownership and liability of the property. Actually, the Quit Claim Deed does relinquish the party of any ownership rights but does not relinquish that party from any financial obligation to that property. In other words, that party is still responsible for the mortgage payments but has no ownership. Another danger of the Quit Claim Deed is that it violates clause 18 of the Mortgage/Deed of Trust. Quit Claiming the property without the lender s consent may cause them to call the Note due and payable. In other words, the mortgage may need to be paid in full immediately. Solution: The party remaining in the residence will need to refinance the property in his/her name only and at closing a Quit Claim Deed can be recorded with the new loan. Mortgage Liability The settlement agreement or divorce decree will spell out the terms of your divorce, including but not limited to, property settlement issues. This document is legally binding and is signed by all parties. It will designate out who gets what and who is paying for what joint debts. Problem: All parties will assume that if a mortgage is mentioned in the settlement agreement, they are no longer financially responsible for that debt. In the lender s view, this party is still on the Note and is still responsible for that debt. The mortgage will continue to report on the departing party s credit report and any late payments will affect his/her score. In addition, when that party attempts to purchase another residence, this debt will count against them. Solution: Any debt that is joint needs to be refinanced to take the other party off the obligation. In some cases, you can obtain cancelled checks to show who is making the payments and it can be taken out of the qualification process, but if there are any late payments, it MUST be included in the borrower s debts. Child Support Problem: Most parents who receive child support or alimony need that income to qualify for a mortgage. The assumption is that if it is mentioned in a settlement agreement or is court ordered, the lender will automatically count this as income. The lender will require evidence that the child support is ordered or agreed upon, but it will also require evidence that it has been received on a regular basis in the past. Some parties will not pay the recipient directly and may pay a debt instead, such as day care. Others may not get payments on a timely basis at all. As with any other income source, the lender will look to see if it is stable. They will ask for evidence of receipt of the income for the past six months and require that it continue for the next three years. Solution: Receive child support or alimony by check monthly or directly through the court or spouse s employer. Keep copies of the checks and the bank statements showing the deposits. Homestead Exemptions The Homestead Exemption is a $25,000 credit given to every person who has legal title to a residential property and lives there permanently. Problem: When the party departing the marital residence buys a new home, they cannot claim Homestead unless they are off the deed from the marital residence. Most parties will assume that if it is mentioned in the settlement agreement,they are relinquishing rights to the property. This is true to some extent, but not for Homestead Exemption purposes. Solution: The party remaining in the marital residence will need to refinance the mortgage in his/her name only and a Quit Claim Deed can be recorded with the new mortgage relinquishing the departing party of the exemption on that property. Purchasing a home while separated Problem: Lenders will require a settlement agreement for any party purchasing a home while separated. Any spouse will need to sign the new mortgage/deed of trust and other mortgage documents even if they are not on the loan. Often times, all parties are not willing to cooperate with something like this. Solution: Have the settlement agreement drawn up and executed prior to purchasing a home. Agree in the settlement papers for all parties to cooperate on any mortgage closings until the divorce is final. The spouse not residing in the property being purchased can sign a Quit Claim Deed to be recorded with the mortgage which will clear up any issue of ownership or liability.
7 Fall 2006 COMMENTATOR 7 Mark your calendar! (Look for brochures in the mail and information on the Family Law Section s website.) 2007 January Family Law Midyear Committee Meetings & 2007 Matrimonial & Family Law Review Course [C0422] Returning to the Grand Floridian Hotel, Disney World Room rate: $175 per night, s/d occupancy Call for reservations: February 21 Telephonic Military Affairs Seminar March Equitable Distribution CLE, Crunching the Numbers A Financial Workout for Matrimonial Lawyers [C0440] Ft. Lauderdale & Tampa April Family Law Section Spring Retreat The Hilton Key West Resort & Marina Group room block rate: $295 per night, s/d occupancy Call for reservations: June The Florida Bar Family Law Section Annual Meeting Orlando Marriott World Center June 27th 8:00 a.m. Welcome Breakfast 9:00 a.m. 5:00 p.m. Committee meetings 12:00 noon 2:30 p.m. Membership Awards & Installation Luncheon 6:00 p.m. 8:00 p.m. Section Membership Reception July 18 Family Law Section Telephonic Legislative Update August Family Law Advanced Trial Advocacy Seminar Ritz Carlton, Naples October 3-4 Pre/Post Nuptials/Marital Settlement Agreements Ft. Lauderdale & Tampa Membership Benchmarks Congratulations to Diane Kirigin, General Magistrate for Palm Beach County in the South County Courthouse in Delray Beach. On June 10, 2006, the South Palm Beach County Bar Association honored her for exemplary public service. Diane received a lifetime achievement award at an event held at the Manalapan Ritz-Carlton. A member of the Executive Council of the Family Law Section of the Florida Bar, Diane also holds the position of Chair of the Legislation Committee for the second consecutive year. We thank her for her tireless work and dedication to family law issues; her award is so well-deserved! Congratulations go to Elisha Roy of West Palm Beach, who participated in the 5K Hat Shirt Squirt Race on June 24, 2006, and came in first in the under-34 women s group. The race was put on by the Young Lawyers Division of The Florida Bar in conjunction with the Florida Skin Cancer Foundation. All proceeds from the run went to skin cancer research.along with being a runner, Elisha is a member of the Board of Governors of The Florida Bar Young Lawyers Division and is on the Executive Council of the Family Law Section of The Florida Bar. We applaud her efforts and successes both in the legal field and on the road! Go Richard! Richard West had a wonderful time recently attempting to climb Mt. Rainier. During this trip, he enjoyed much hiking, eating, and drinking. Perhaps his excellent skills in time management and delegation, along with efficient and effective lawyering, enable him to take vacations we would all love. N. Diane Holmes is this year s President of the Central Florida Family Law American Inns of Court Chapter. The Chapter held their first meeting on September 11, 2006 and enjoyed a program presented by the pupilage group of Patrick Magill and Judge Alice Blackwell White. Family Law section members Angel Bello-Bellini, Ingrid Keller, Steve Marsee and Carlton Pierce also participated in the program.
8 COMMENTATOR Fall 2006 Representing the Service Member: The Service Members Civil Relief Act With the conflict in Iraq continuing to place heavy demands on the nation s armed forces, more and more National Guard and Reserve service members (SMs) are being called to duty. Just like those on active duty, these Reserve Component personnel have families, may have been divorced, and need guidance on visitation, child support and other subjects. Thus, family law attorneys today are more likely than at any time in recent memory to see military issues in their offices. For over 60 years, service members were protected by the Soldiers and Sailors Civil Relief Act. This Act stayed and limited actions against service members off fighting a war or otherwise occupied with military duties which made it hard to respond to a lawsuit. In 2003 the Soldiers and Sailors Civil Relief Act was replaced by the Service members Civil Relief Act (SCRA), which is a complete revision of the old Act and extends many of its protections. The provisions of the new Act most important to family law attorneys are discussed below. Extension of Protection to National Guard: The new Act extends protections to National Guard members called to active duty for 30 days or more pursuant to a contingency mission specified by the President or the Secretary of Defense. 50 U.S.C. App. 511(2) (A) (ii). Stays and Delays Expanded to Administrative Actions: The new Act expands the service member s right to ask for a stay of proceedings to include administrative hearings. 50 U.S.C. App Therefore, the stay rules discussed below apply to both tribunals. By Mark Sullivan, Esq., Raleigh, NC Procedure for Obtaining Stays: When a service member lacks notice of the proceedings, the new Act requires a stay (or continuance) of at least 90 days when 1) the court decides that there may be a defense to the action and such defense cannot be presented in the defendant s absence, or 2) with the exercise of due diligence, counsel has been unable to contact the defendant (or otherwise determine if a meritorious defense exists). 50 U.S.C. App. 521(d). When the service member defendant has notice of the proceeding, a 90 day stay (minimum) applies upon the service member s request, if the stay request includes two things. The first is a letter or other communication that 1) states the manner in which current military duties materially affect the service member s ability to appear, and 2) gives a date when the service member will be available to appear. The second is a letter or other communication from the service member s commanding officer stating that 1) the service member s current military duty prevents appearance, and 2) that military leave is not now authorized for the SM. 50 U.S.C. App Of course, these two communications may be consolidated into one if it is from the service member s commander. Impact on Family Law Cases: Consider the potential impact of this stay provision in family law cases. Assume custodial mom gets mobilization orders and takes off for Afghanistan, leaving the parties child with her mother in Florida. How is dad to get custody when mom s lawyer interposes a stay request to stop the litigation dead in its tracks? If mom has executed a Family Care Plan (FCP), (which is required by military regulations) leaving custody with the maternal grandmother, will that document executed by mom, approved by her commanding officer and accompanied by a custodial power of attorney displace or overcome a court order transferring custody to dad? Can the court even enter such a custody order given the stay and default provisions of the SCRA? To see how this plays out in custody cases, see Lenser v. Lenser, 2004 Ark. LEXIS 490 (upholding the judge s grant of custody to the mother when the mobilized father requested a stay to keep physical custody with his own mother) with Dilley v. Dilley, Chancery No. CH04-195, 2004 Va. Cir. LEXIS 235 (Cir. Ct., Shenandoah Co., November 2, 2004) (granting continued custody to the service member-mother and maternal grandmother despite the mother s absence overseas, allowing the mother s stay request and denying the father s motion for temporary custody). On another front, think about support. If the custodial dad has no support order, how can he get one if the mother is deployed overseas? Think about a divorce. Many divorces go by default, but the SCRA forbids entry of a default judgment against a service member unless certain conditions are met. Clearly, the stay provisions will impact many family law cases. Additional Stays or Appointment of Counsel: An application for an additional stay may be made at the time of the original request or later. 50 U.S.C. App. 522 (d) (2). If the court refuses to grant an additional stay, the court must appoint counsel to represent the service member in the action. 50 U.S.C. App. 522(d) (2). Once again, give this some thought. What is the appointed attorney supposed to do tackle the entire representation of the service member, whom he has never met, who is currently absent from the courtroom and who is likely unavailable for even a phone call or a consultation if he or she is on some distant shore in harm s way? And, by the way, who pays for this? There is no provision for compensation in the SCRA. How would you
9 Fall 2006 COMMENTATOR respond if her honor beckons you to the bench next Monday and says, Counselor, I am appointing you as the attorney for Sergeant Sandra Blake, the defendant in this case. I understand that she s in the Army, or maybe the Army Reserve or National Guard. Whatever. Please report back to the court in two weeks and be ready to try this case.? Defenses: The SCRA states that an application for a stay does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense as to lack of personal jurisdiction). 50 U.S.C. App. 522). Defaults: Before the entry of a default, the movant must file an affidavit stating whether or not the defendant is in military service and showing necessary facts in support of the affidavit. Criminal penalties are provided for filing a knowingly false affidavit. 50 U.S.C. App. 521(c). If the movant cannot swear that the other side is not a service member, a default judgment may not be entered unless the court appoints an attorney for the absent service member. 50 U.S.C. App. 521(b) (2). If the court fails to appoint an attorney, the judgment or decree is voidable. Attorney for The Absent : The role of the appointed attorney is to represent the service member. The statute does not say, however, what tasks are to be undertaken by the appointed attorney. Obviously, counsel for the service member should probably request a stay of the proceedings as long as possible unless asked not to by the service member. However, how can an appointed counsel act given that her actions may not waive any defense of the service member or bind the service member? Can she, for example, stipulate to the income of her client or of the other party or agree to guideline child support? Arguably, the Act means that appointed counsel must contest everything, object whenever possible and refuse to make even reasonable stipulations or concessions. Such conduct is, of course, at odds with the ethical requirements that counsel act in a professional and civil manner, avoiding undue delay and expense. Default Protections: If a default decree is entered against a service member, whether the judge complies with the terms of the SCRA or not, the Act provides protections. The SCRA allows a member who has not received notice of the proceeding to move to reopen a default judgment. To do so, he or she must apply to the trial court that rendered the original judgment. In addition, the default judgment must have been entered when the member was on active duty in the military service or within 60 days thereafter, and the service member must apply for reopening the judgment while on active duty or within 90 days thereafter. 50 U.S.C. App. 521(g). Reopening or vacating the judgment does not impair any right or title acquired by a bona fide purchaser for value under the default judgment. 50 U.S.C. App. 521(h). To prevail in his motion to reopen the default decree, the service member must prove that, at the time the judgment was rendered, he or she was prejudiced in his ability to defend himself due to military service. In addition, he or she must show that there is a meritorious or legal defense to the initial claim. Thus, a motion or petition to reopen a default judgment or order should clearly state the service member s defense. Interest Rates: The new Act says that interest in excess of 6% per year must be forgiven. 50 U.S.C. App. 527(a) (2). The service member must request this reduction in writing and include a copy of his/her military orders. 50 U.S.C. App. 527(b) (1). Once the creditor receives notice, the creditor must grant the relief effective as of the date the service member is called to active duty. The creditor must forgive any interest in excess of the six percent with a resulting decrease in the amount of periodic payment that the service member is required to make. 50 U.S.C. App. 527(b) (2). The creditor may challenge the rate reduction if it can be shown that the service member s military service has not materially affected his or her ability to pay. 50 U.S.C. App. 527(c). Obviously, this provision can be a huge boon to a service member who has substantial credit card debt becontinued, next page
10 10 COMMENTATOR Fall 2006 The service member from preceding page fore being called to active duty. It can also be a big help to service members paying high mortgage interest. Eviction Protection: The new act bars evictions from premises occupied by service members for which the monthly rent does not exceed $2,400 for the year It also provides a formula to slightly increase the rent ceiling each year. The 2006 rent ceiling is $2, U.S.C. App. 531(a). Servicemember Relocations: The old Act allowed a service member to terminate a pre-service dwelling, professional, business, agricultural, or similar lease executed by or for the service member and occupied for those purposes by the service member or his or her dependents. The new Act extends this provision by also extending coverage to leases entered into by active duty service members who later receive orders for a permanent change of station or a deployment for a period of 90 days or more. Automobile Leases: The new Act allows termination of automobile leases (for business or personal use) by service members and their dependents. Pre-service automobile leases may be canceled if the service member receives orders for active duty for a period of 180 days or more. Automobile leases entered into while the service member is on active duty may be terminated if he or she receives permanent change of station orders to a location outside the continental United States or deployment orders for a period of 180 days or more. 50 U.S.C. App Other Resources: The best source of quick information on the SCRA is A Judge s Guide to the Service members Civil Relief Act, found at An extended treatment of the SCRA and family law issues may be found in Sullivan, Family Law and the Servicemembers Civil Relief Act, and Legal Considerations in SCRA Stay Request Litigation: The Tactical and the Practical, Divorce Litigation, Vol.16/Number 3, March Also see Sullivan, The Servicemembers Civil Relief Act: A Guide for Family Law Attorneys, in Brown and Morgan, 2005 Family Law Update, pp (Aspen Publishers 2005). The Army JAG School s guide to the new Act will be on-line shortly, taking the place of the current guide which deals with the old Act but is still available (and still quite useful in understanding and interpreting the statute) at mil/tjaglcs. Click on TJAGLCS Publications, go to Legal Assistance, and then look for publication JA 260. Mark Sullivan is a retired Army Reserve JAG colonel who practices with Sullivan & Grace, P.A. in Raleigh, NC. He is a board-certified specialist in family law and past president of the North Carolina Chapter of the American Academy of Matrimonial Lawyers. He is currently chair of the Military Committee of the ABA Section of Family Law. The Florida Bar Family Law Section Southern Hospitality Fall Retreat The Ritz Carlton, Amelia Island, November 1-4, 2007 Thursday, November 1, :00 p.m. Chair s Welcome Reception Friday, November 2, :30 a.m. - 11:30 a.m. Breakfast and CLE Afternoon Evening Saturday, November 3, 2007 Speaker: Mark Chinn, Author of How to Build and Manage a Family Law Practice On your own for beach combing, golf, tennis, spa Dine Around (TBA) 8:30 a.m. - 11:30 a.m. Executive Council Meeting Afternoon On your own for beach combing, golf, tennis, spa 5:30 p.m. - 6:00 p.m. Reception 6:00 p.m. - 10:00 a.m. Beach Party Dinner with live band and dancing Sunday, November 4, 2007 Check-Out All coastal view rooms only $ per night. Deadline for reservations is September 17, CALL NOW for Reservations:
11 Fall 2006 COMMENTATOR 11 Representing the Professional Athlete: Helpful Hints In Navigating Your Way Through Dissolution and Paternity Matters By Adam B. Swickle, Esq., Ft. Lauderdale As a young boy growing up in South Florida, I remember my father taking my brothers and me to every professional and college football game imaginable. I remember peering through the chain link fence at the Dolphin practice facility during training camp just to catch a glimpse of my favorite players. Never would I have imagined that I would one day be representing such individuals and assisting them with various legal issues affecting their lives. For approximately the past ten years, I have represented a significant number of professional athletes in both divorce and paternity matters. During that time, I have come to the realization that the professional athlete not only possesses unique talents and skills which he or she displays for the general public, but also has unique issues that need to be dealt with when facing a divorce or paternity suit. Unlike most individuals who work a nine to five job, five days a week and receive income on a regular basis, the professional athlete, especially the player in the National Football League (NFL), has an income structure which is anything but consistent or guaranteed. Furthermore, unlike other aspects of the professional athlete s life, the work and travel schedule leaves little to be desired. While the average American worker receives income which is fairly simple to calculate on an average monthly basis, the professional athlete is generally paid for work completed during a specific season. Furthermore, while most individuals pay income taxes based on both federal law and the governing tax laws of their home state, the professional athlete is affected by various tax laws and rules from other states regardless of the locale of the employment. In addition, in light of the grueling travel schedule and implications which a seasonal employment can have on a player s available time, establishing a timesharing schedule in cases where custody and visitation are issues can be tricky and quite costly to the parties. Over the years, I have found that many attorneys and judges struggle with the true financial structure of the professional athlete and how to calculate the correct average monthly income. Very often, the lack of understanding of salaries, bonuses, retirements, and the like causes unjust results. As a result of the unique factors and issues that surround the professional athlete, it is essential for an attorney to arm him or herself with as much information as possible. The following are some helpful hints and useful advice which may assist an attorney navigating the complicated landscape of a divorce or paternity action involving a professional athlete. First, the internet is your friend. Make sure to search the internet for all articles and publications regarding the particular athlete. You will find that information concerning a player s contract, roster assignment, schedule, injury reports, and the like can be found on such websites as NFL.com or a specific team s website. Such information is very easy to access and is essential when attempting to complete an accurate Child Support Guidelines Worksheet. Furthermore, such information can be useful when formulating interrogatories and a request for production. Finally, this information will also assist in establishing a visitation schedule is in the best interest of any children and which serves to foster a meaningful relationship with the non-residential parent. Second, review the player s contract with both the particular organization and the agent. Pay careful attention to the salary structure and payment schedule of the particular player. Specifically, most player contracts, especially those of players in the NFL, differentiate between signing bonuses, base salary, and performance bonuses. Such information is critical for an attorney to determine whether or not specific funds which the player may receive can be used in calculating child support. Furthermore, it is important to be familiar with the salary structure of the particular sport in order to determine whether or not various funds under the player s contract are guaranteed and/or reoccurring. For example, while most contracts governing professional baseball and basketball players are guaranteed, a careful reading of an NFL player s contract and understanding of the collective bargaining agreement between the owners and NFL Players Association indicates that there is very little guaranteed to the NFL player other than a portion of the signing bonus. In fact, there are many circumstances where even a signing bonus is not truly earned or realized at the time it is received. In some circumstances, a team can demand a portion of a player s signing bonus to be returned if certain conditions precedent are not met. Lack of knowledge and understanding of this fact by attorneys and judges alike can cause great confusion when calculating the appropriate child support pursuant to the Florida Child Support Guidelines. Furthermore, a misapplication of these principles can cause one s client to be responsible for an unreasonable and unnecessary support amount. Therefore, it is imperative to understand that the salary structure of a professional athlete is unlike any other you will encounter in your practice. continued, next page
12 12 COMMENTATOR Fall 2006 Professional athlete from preceding page Next, familiarize yourself with the tax implications of the individual player s pay structure. By way of example, it is a widely held belief that simply because a player may engage in an employment with an NFL organization in the State of Florida, they are not responsible for the payment of certain state taxes. In fact, the structure of the NFL players salary demands that each individual pay certain taxes in the state which they have performed their services. As a result, while an NFL player who is employed by the Miami Dolphins or Tampa Bay Buccaneers may not pay state income taxes for those home games played in Florida, they are required to pay certain taxes for games which they perform their services outside the State of Florida. As a result, this creates a tax structure which is unlike that of the average client. Therefore, it is recommended that an attorney, in dealing with such tax issues, hire a qualified forensic accountant in order to project the tax consequences based on the athlete s game schedule and pay structure. Simply using the athlete s current or prior W-2 and/or prior tax return will not be sufficient given the fact that Interested in Advertising in the Commentator? Ad and Fee due: September 15, 2006 Size of Ad Payment 1/3 page 2 1/4 x 9 3/8 inches $ /2 page 7 1/4 x 4 5/8 inches $ /3 page 4 3/4 x 9 3/8 inches $ Full Page 7 1/4 x 9 3/8 inches $ Back Cover 7 1/4 x 7 1/4 inches $1, Your advertisement may be submitted electronically as a.jpg,.tif or.pdf file, at 300 ppi or larger. Black & white camera-ready copy is also acceptable. Payment is by check only and must accompany the proposed ad and signed agreement below. Checks will be cashed only when the ad has been submitted to the printer. Payment will be accepted on a per-issue basis only. The Family Law Commentator will accept all advertising that otherwise is in keeping with the publication s standards of ethics, legality and propriety, so long as such advertising is not derogatory, demeaning or contrary to The Florida Bar rules and procedure; Standing Board Policy (e). The editor reserves the right to place the submitted ad in an issue as space permits during the layout stage. * For further information, contact Debby Beck, Family Law Administrator, 850/ or flabar.org Company Name: Address: Contact: Phone No: Payment Enclosed: $ (written to: The Florida Bar) I hereby agree to comply with all of above procedures and policies as set forth by the Family Law Section of The Florida Bar Contact Signature: Date: Send to: Debby Beck, Administrator, The Florida Bar, 651 E. Jefferson St., Tallahassee, FL the NFL player schedule changes from year to year. Thus, the tax implications change from year to year. Failure to consider this issue will certainly result in an incorrect support amount. Finally, make sure to familiarize yourself with the collective bargaining agreement between the owners and players associations of the particular sport. This will enable you to determine the player s retirement structure and true income. By way of example, the NFL has established multiple mandatory retirement payments which are automatically deducted from the player s game checks. While many athletes are aware that they are having funds removed from their game checks for the purpose of retirement, many of them are unaware of the fact that these deductions are mandatory and deductible under certain scenarios. Obviously, the fact that these multiple retirement plans are mandatory will certainly have an effect on the bottom line. Furthermore, look to determine if the player is required to pay mandatory union dues which are very common for professional athletes. Such dues are deductible if deemed to be mandatory. In closing, remember that the professional athlete is unlike any other client you will represent. Based on the nature of the profession and the complicated salary structure, it is necessary for you to obtain as much knowledge and information as possible regarding all issues in order to successfully navigate your way through any dissolution and/or paternity matter. Adam Swickle graduated from Nova Southeastern University Shepard Broad Law Center in 1995; from he was an assistant public defender in the Broward County Public Defenders Office. In 1996, he went in to private practice and since 2004, he has been a partner in Swickle & Swickle, P.A. Mr Swickle is licensed in the State of Florida and the United States District Court for the Southern District of Florida. His areas of practice include Criminal Defense, Matrimonial/Family Law, Commercial Litigation, and Personal Injury.
13 Fall 2006 COMMENTATOR 13 Representing an Attorney in a Family Law Action: Interview with Jonathan Root, Esquire By Cinnamin O Shell Turk, CPA, Boca Raton COT: Are there any special challenges in representing attorneys in a matrimonial litigation? JR: Attorneys think that because they are attorneys, they know what they re talking about in family law, which is not always the case. When you represent another family attorney, you know they already have knowledge on the subject matter so in reality they ve hired you not necessarily to give them knowledge, but to help them be objective. COT: Does it make it more difficult? JR: It can be because unfortunately they re being subjective instead of objective. You know when they say that the person who represents themselves is a fool? So they ve hired you but in reality they really would rather represent themselves. They ve hired you as some kind of mouthpiece and then you start getting into the litigation and you start hearing from them more than you re hearing from yourself and you start asking why don t you just represent yourself? and they realize that they don t want to represent themselves. They re like a frustrated attorney inside of a litigant. COT:. Have you ever had to fire someone because of that? JR: No. I have pleasant experiences with the attorneys I ve represented because I set down the law immediately that I am going to listen to them but I am not going to necessarily follow what they say because they can t objectively analyze the case and figure out what needs to be done. They are too concerned with the emotional aspect of the action, which interferes with their thought process. So they can be very difficult and they can also be cautious because they have experience and they have knowledge in the area and they know the facts of their case. COT: What about issues involving an attorney s income? JR: When you are dealing with attorneys you have a couple of issues. They may have an S Corporation through which they run some personal expenses, so you have to worry about that. Then you have attorney clients who place money into their trust accounts and they hide it in their trust accounts. They have privilege issues. Then there are guys that say all that information is privileged and obviously you can t have the privilege so you re going to have to fight and get in camera inspections by judges or have ways to redact letters and names and things of that nature so that you can go through and check it out but you have attorney/client privilege issues, big time, when you represent an attorney because they are going to hide behind the privilege. COT: Doesn t that make the fees higher? JR: Absolutely. The case is going to be expensive because you are going to deal with an accounting nightmare because you can t just ask them who s this client? because they are not going to tell the name. All they will tell you is that It s Mr. S. so you ask What kind of case do you represent Mr. S. on? and Is there a fee agreement?. Depending on how intense it is, you have to match the fee agreement with the trust account stuff. You may also have contingency fee cases in which you have to find out what kind of contingency and you may have to bring in another attorney to evaluate the case to figure out the value of the case. COT: Have you had difficulty in valuating contingency cases? JR: I haven t done a case where I represent somebody and their husband or wife is a personal injury attorney. It s usually commercial litigators so for the most part I haven t dealt with where you have to bring in somebody to actually assess the value of those cases. Now the income is the same kind in every case except you re going to hide behind that privilege. That s the difference between involving yourself in an attorney type case. The other thing is that you could have a process where there are other partners so they don t want to disclose the firm income. You just have some logistics issues that arise because these partners are attorneys and they don t want to have their personal lives and their finances put on the chopping block. Cinnamin O Shell Turk is a partner with Bastian & O Shell, Certified Public Accountants in Boca Raton, Florida. Cinnamin is a Certified Public Accountant, Accredited in Business Valuations, Certifed Valuation Analyst, and Certified Fraud Examiner. She is also a Member of several professional organizations.
14 14 COMMENTATOR Fall 2006 Take the Family Law Crossword Challenge! Puzzle created by Kathryn Beamer, West Palm Beach and G.M. Diane Kirigin, Delray Beach
15 Fall 2006 COMMENTATOR 15 CROSSWORD CLUES: ACROSS 2. Remedy unavailable for equitable distribution 4. If marital, subject to equitable distribution 7. The Court needs to make as to date of valuation for equitable distribution. 11. Case holding that delegation of decision making is not a marital effort sufficient to make premarital asset marital 12. Fourth step in the equitable distribution analysis 14. First step in the equitable distribution analysis 15. Seminal case which created lump sum alimony as a mechanism to achieve equitable distribution 17. This asset can be active or passive 18. is not controlling if asset purchased during the marriage. 19. Can be active or passive 24. This liability can be equitably distributed. 25. This case discusses enhancement of non marital assets during marriage. 27. Can you apply this formula? 28. The presumption of gift described in Robertson only applies to this type of property. 30. This can be a basis for unequal distribution. 31. Step two in equitable distribution analysis 34. through income may not constitute income for determining support 35. This type of enhancement of non marital property results from marital labor or funds. DOWN 1. Although no longer good law, this case is still cited for its recognition of special equity. 3. This case sets forth standards for an award of exclusive use and possession of a marital residence which is not distributed, at least until a later date 5. This shifts once a gift is proven 6. This case construes where spouse is employed full time in family corporation but not a decision maker but whose efforts enhance martial property 8. This is generally deemed to be passive appreciation 9. Seminal case on enhancement in value of non marital assets clarified by ADKINS 10. If wrongful can justify unequal distribution of assets. 13. Component of a professional or business practice. 14. If derived from non marital assets it remains non marital 16. This can be determined on date of filing or other date in the discretion of the court. 20. This case finally settles the double dipping issue. we think 21. Starting point for valuation of goodwill 22. This case holds that a failure to raise tax consequences in the evaluation of marital property is a waiver thereof 23. The Supreme Court case on pass-through income 26. There must be justification by the court for this kind of distribution 29. This perquisite of employment may be subject to distribution 31. While fixed for determining marital assets, this can vary for determining value. 32. If interspousal, marital property. Puzzle answers appear on page 20..
16 16 COMMENTATOR Fall 2006 Want a Learned, Speedy Trial? It s Time to Hire Your Judge By Nancy Hutcheson Harris, Tampa Do you want what Brad Pitt and Angelina Jolie have??? If so, then it s time for you to incorporate into your practice, binding arbitration and the use of private judges. According to a recent article, the Pitt/Aniston divorce was presided over by a private judge the parties hired to keep their private matter Private. In California, this practice is so popular that at the start of a divorce case, the first question most family law lawyers ask is Who s going to be our private judge? 1 Florida has cleared the way for binding arbitration and private judges with Chapter (Florida Statutes 2005) recognizing both methods as viable alternatives to traditional courtroom litigation. With the recent and continuous reductions to judicial budgets across the state, and with an ever-increasing demand for judicial time by traditional and pro se litigants, the courts are becoming ever more crowded. In addition, family law attorneys and their clients experience frustration and uncertainty associated with having a newly elected or inexperienced judge decide their case. Many family law judges have never practiced family law. Moreover, more often than not, a family law judge who has attained sufficient understanding of the law and a comfort level in analyzing the facts, experience burn out and anxiously await a transfer. We need practical alternatives to courtroom resolution for those cases that cannot be negotiated or mediated. The answer in many states has been a growth in binding arbitration and voluntary trial resolution. According to a recent ABA article, in California there are more than 500 former public judges, including six former justices of the State Supreme Court, who are listed in directories as seeking private judging assignments. 2 Private judging has now become a big business nationally. What is Private Judging? Private judging (or voluntary trial resolution ) is a process in which the parties in a disagreement agree to retain a neutral person as a private judge. In some states, the court can refer issues of fact or law to a private judge. This private judge will hear the case and make a decision in a manner similar to a public judge. The key difference between private judging and arbitration is that a court retains a supervisory role over the private judge. 3 A private judge, although agreed upon by the parties, is appointed by the court. However, trial (or motion hearing) need not be held in the courthouse. Interestingly, in California, the state in which private judging is most widely used, the two areas of law most likely to refer to private judges are personal injury and domestic relations matters. 4 What is Binding Arbitration? Binding arbitration is another private process where disputing parties enter into a written agreement retaining one or several individuals to make a binding decision about their dispute after receiving evidence and hearing argument. Unlike mediation, the arbitrator is empowered to make a decision. The binding arbitration process for a final hearing is similar to traditional trial practice with opening statements, the presentation of evidence, and closing arguments. It is usually more informal, held in a private office and can be completed far more quickly than can a trial. The parties can decide whether or not to follow the Rules of Evidence or to apply a different standard than the governing law. Just as in a traditional motion or trial practice, the attorneys provide to the arbitrator, statutory or case law in support of the relief they are seeking or, to distinguish their opponent s case. And, like a judge, the arbitrator issues a ruling in arbitration, called an award by either announcing the decision or providing a lengthy reasoned written award. The arbitrator may ask the litigants to provide to him or her proposed findings of fact and a proposed award. He may ask that this be provided either before or after the full hearing. Before the process begins, the parties can reserve or waive their appellate rights, understanding however, the grounds upon which an arbitration award can be reversed are very narrow. What Cases are Best Suited for Private Judging or a Binding Arbitration? Family law lawyers should consider suggesting the use of a private judge or a binding arbitrator when a case has the following characteristics: 1) Your client wants a prompt resolution to his or her case; 2) Where there are substantial delays in obtaining a hearing for temporary relief or discovery issues because of a crowded docket; 3) When your client wants more control over the process used to resolve the dispute than traditional mediation would provide; 4) When your client or the opposing client is a public figure and privacy is highly valued; 5) When the parties, either of them, have anxiety over courtroom formality and prefer an informal setting; 6) When both parties and their counsel want the benefit of scheduling
17 Fall 2006 COMMENTATOR 17 in the future various dates for different issues to be resolved as the case progresses or of scheduling as much time for their hearing or trials as is actually needed rather than what is available on the court s docket; 7) When your client is interested in a cost-efficient resolution since it is widely accepted that fees are in direct proportion to the time a case remains pending; 8) When the parties are genuinely interested in resolving their issues but have not been able to do so in mediation or negotiation; 9) And finally, when the presiding judge is inexperienced or has little to no background or knowledge of family law or, has made it clear to all that he or she disdains family law disputes and treats the litigants and/or the attorneys in due fashion. 5 Who Should Serve as an Arbitrator or a Private Judge? In some states, there are specific statutory or rule requirements governing who can serve as a private judge. In our own Chapter 44, a private judge must be a member of The Florida Bar in good standing for more than five years. There are no rule or statutory requirements for an arbitrator. Characteristics of a successful arbitrator or private judge might include: the ability to understand the facts and to interpret conflicting facts sensibly, to then decide the case according to the standards which actually apply to that case, and the ability to explain the decision convincingly and in terms which the losing party will recognize as having had his day in court, if not agree with. 6 Can All Issues be Determined by Binding Arbitration or Private Trials? No, and Yes. Rule of the Rules of Civil Procedure specifically excludes civil or criminal contempt matters from arbitration. Moreover, Section (14) provides that child custody, visitation and child support matters may not be determined in arbitration or voluntary trial resolution. However, neither the statutes nor the rules prevent an arbitrator or private judge from being appointed by the court as a Special Magistrate (f/k/a special master) under Rule of the Florida Family Law Rules of Procedure. Accordingly, if a family law case involves issues of child custody, visitation or child support, this appointment will be one of the first actions taken by the arbitrator. In fact, if custody is the prime issue in dispute and the parties cannot afford a custodial evaluation, it might behoove the parties to consider having a custodial evaluator arbitrate the case and appointing him or her as a Special Magistrate to decide such issues. How Do You Select an Arbitrator or Private Judge? Selecting the arbitrator or private judge is an all important process especially given that factual findings are not subject to appeal. 7 Consider that if you insist on a particular person to arbitrate and that person rules against your client, your client may blame you. One way to avoid that problem is to have each attorney prepare a short list of three to five arbitrators or private judges with their biographies. This list is then compiled into one and both parties and their counsel strike names alternately until only one name is left. 8 Of continued, next page Interested in participating in SECTION COMMITTEES? Just Show Up! These committees meet via conference calls and only three times on-site. Interested Section members seeking to be active within the Section should attend the meeting Thursday, January 25th at the Grand Floridian at Walt Disney World, or call Section Administrator, Debby Beck at 850/ Adoption/Paternity & Dependency Children s Issues CLE (Continuing Legal Education) Domestic Violence Equitable Distribution General Magistrates & Hearing Officers Litigation Support Committee (for Affiliate members) Mediation & Collaborative Law Publications Rules & Forms Sponsorship Support Issues
18 18 COMMENTATOR Fall 2006 Private judge from preceding page course, in arbitration, you could have a panel of three or five arbitrators wherein the majority decides each issue. Although this may guaranty a studied approach, the cost of multiple arbitrators may not be worth the benefit of multiple minds. Another simple way of selecting an arbitrator is to have each party or counsel put an equal number of qualified names into a hat and have a neutral person pick out a name. Assuming you have selected arbitrators or private judges who have substantial expertise, the parties should have confidence in the selected decision-maker, no matter how that name is chosen. In the Tampa Bay area, a family law arbitration group was recently formed with eight sage family law lawyers available to provide binding arbitration. When a case is referred to the group for arbitration, the arbitrator is chosen by the group administrator, at random, much like the blind assignment of judges by the Clerk of Court. One no cause strike is allowed for each party. If either party strikes the selected arbitrator then another arbitrator is chosen by blind rotation. If the parties agree then that person becomes the appointed arbitrator for the case. How Much is This Going to Cost? Because binding arbitration or a private judge can come into a case at any point during litigation and because this process provides for a speedy resolution, the cost of arbitration or voluntary trial resolution is likely to be less. There is no waiting until the court can grant a hearing and then, of course, no sitting in the courthouse with your experts (all running their meters) or witnesses while waiting for your hearing. Moreover, because you can get a rapid decision on the issue at hand, there are far fewer nasty grams between counsel and less hazardous client behavior while waiting for hearing time. Kathleen Robertson, who practices family law in Los Altos, California confirms that Using a private judge can save 30 to 50 percent in time and fees. 9 The hourly rates of an arbitrator or private judge can vary substantially but would be consistent with the hourly rates charged by these individuals in private practice. One should count on paying somewhere between $300 - $475 an hour for all time devoted to the issue including telephone conferences and prep time. But money isn t the only savings. Having the confidence in an experienced and learned decision-maker coupled with the ability to get in and out of court reduces the stress of family law matters and provides a comfort level to clients (and their counsel) both of which are priceless. Endnotes: 1 Daily, Laura Trial Offer pg. 20, AARP, May & June, ABA, Section 8 of Dispute Resolution 3 Honeyman, Chris, Broad Field Project, Id. 5 Id. 6 Id. 7 Chapter (11), Florida Statutes (2005) 8 Honeyman, Chris, Supra 9 Dailey, Laura, Supra For your convenience, we have deposition suites available from Miami to Vero Beach We offer all court reporting services including: realtime reporting Ascii disks videotape depositions condensed transcripts Iword index foreign language translators transcripts via Check out our website at for online scheduling, deposition suite locations and maps. Toll Free: Palm Beach Lakes Blvd. (561) Phone Suite 502-K (561) Fax West Palm Beach, FL
19 Fall 2006 COMMENTATOR 19 Representing a Party With Tax Issues By Maria Gonzalez, Esquire, North Miami Beach We all recognize that in any divorce proceeding there are always tax aspects and consequences to consider. In those instances, where the family breadwinner has elected not to file federal income tax returns during the marriage or has filed the returns, but failed to pay the taxes and associated penalties and interest due to the IRS, some of the most severe tax implications may result. At times, the penalties and interest imposed by the IRS will far exceed the principal income tax due. More and more often, involving a tax attorney in these complex cases becomes a necessity to fully protect your client. What should you consider doing if you receive mandatory disclosure from a professional self-employed spouse and his or her response to your request for production of three years of income tax returns is none ; or a party files a financial affidavit disclosing hundreds of thousands of dollars as a contingent liability to the IRS for unpaid income taxes, related penalties and interest? Instead of working towards resolution of equitable distribution of the marital estate, you are faced with immediately addressing matters such as minimizing the income taxes, penalties and interest involved, protecting your client from any future liability flowing from any late tax filings; getting the non-compliant spouse current with the IRS; determining how the ultimate tax liability should be shared between the parties and whether an unequal distribution is justified; and whether your client should join in a joint tax return filing. There are instances where a court may assess more of the tax liability to the non-filing or non-compliant spouse where that spouse was either responsible for not filing the return, he primarily benefited from the income generated during the tax year in question or he has the superior ability. 1 There may be instances where equity dictates that the base tax liability be shared equally by the parties, but the non-compliant spouse Construction Ahead be assessed all resulting penalties and interest. However, in Pierre-Louis v. Pierre-Louis, 715 So.2d 1073 (Fla. 3d DCA 1998), the District Court of Appeal held exactly the opposite. It ruled that the non-compliant spouse should be solely responsible for the entire tax liability including the penalties and interest. The Court reasoned that there existed justification for an unequal distribution of the marital tax debt under (1) (b), Fla. Stat. 2 Interestingly, in Ruiz v. Ruiz, 821 So.2d 1112 (Fla. 3d DCA 2002), the Third District Court of Appeal determined that a husband s withdrawal of IRA monies (which were only partially used to cover marital debts) would not subject the husband to sole responsibility for the resulting income tax liability created by the withdrawals. The court reasoned that there was no justification for an unequal distribution of the tax liability. Likewise, a $90,000 tax debt was deemed marital and the District Court of Appeal found no basis for unequal distribution of that debt in Branch v. Branch, 775 So.2d 406 (Fla. 1st DCA 2000). In Branch, the husband solely managed the couple s finances and his failure to pay the tax lien resulted in doubling the penalties and interest due. However, absent evidence that the husband diverted funds otherwise available to pay the tax lien (and thereby engaged in marital waste ), the tax lien was to be shared equally by the parties. Equal division of unpaid income taxes may also result despite the fact that the parties filed separate income tax returns for the subject years. In Barner v. Barner, 716 So.2d 795 (Fla. 4th DCA 1998), the husband s earnings were used to support the family during the three year period in question and the income taxes due were primarily associated with his earnings. Accordingly, the court reasoned that the husband should not be punished because he is the only one who generates income. Id Based on the foregoing cases, it is unclear exactly which factors will weigh more in support of an unequal distribution of the marital tax liability upon the non-compliant spouse. Therefore, it is up to you to argue the specific facts of your case. If the non-compliant spouse decides to file late filings, should the dependent spouse agree to sign any joint income tax returns? Consider whether signing a joint return will destroy the other spouse s possible innocent spouse status and expose him or her to the income taxes due. Consider propounding supplemental discovery requests to determine whether the IRS has assessed unpaid taxes or commenced collection activity. Remember that some procedures available to a spouse to limit his or her tax liability are time sensitive to actual commencement of collection activities. Determine whether a deficiency notice has been issued, or tax liens placed on the parties real property. continued, next page The Family Law web site is temporarily closed for updating and reconstruction. We ll be up and running by January 22nd. We apologize for any inconvenience to Section members. Visit us soon at
20 20 COMMENTATOR Fall 2006 Tax Issues from preceding page To advance your claim for an unequal distribution of the income tax liability, conduct discovery aimed at establishing the following: how the tax debt came about, who made the decision not to file or pay income taxes during the subject years, who primarily benefited from the income generated during the time in question, who controlled the parties finances and how earnings or other available income were utilized in lieu of payment of taxes and why, and who had knowledge of non-payment of the taxes. 3 Conclusion When you are faced with complex tax issues in adissolution of marriage action, tailor your discovery to determine everything you need to know to best tackle the problem, determine whether an unequal distribution of the tax debt is appropriate and consider retaining a tax attorney to assist in resolving your more complex tax issues. Maria C. Gonzalez is board certified in marital and family law and a partner at Young, Berman, Karpf & Gonzalez, P.A. in North Miami Beach. Endnotes: 1 Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981) (income tax liability was $250,000 at time of dissolution of marriage. Trial court assessed first $150,000 to the non-compliant husband) 2 See also, Stewart v. Stewart (696 So.2d 1237, 1240 (5th DCA 1997) (Sharp, W., dissenting) (husband was non-compliant taxpayer and was held solely responsible for entire tax debt where wife had no knowledge of nonpayment and was not involved in his business). 3 Lorman v. Lorman, 633 So.2d 106 (Fla. 2d DCA 1994) ; Nicewonder v. Nicewonder, 602 So.2d 1354 (Fla. 1st DCA 1992). CHAIR S MESSAGE, from page 1 and child support. The section also intends to advocate for the adoption of the Uniform Premarital Agreements Act. All of these legislative proposals will improve the law and the lives of your clients. The section s Rules and Forms Committee, chaired by Ron Bornstein, is actively addressing many proposed rule changes which may have a direct impact on your practice. While the rule making process proceeds at a very slow pace, the section is actively pursuing changes to the Rules of Procedure which will make your practice more effective and efficient. Improving Your Life While the Family Law Section performs a tremendous amount of work each year, I am hopeful that each section member will take time this year to evaluate the balance between their personal life and their family law practice. As family lawyers, we work exceedingly hard and it is important that we take time to do things with our families and for our own personal enjoyment. To that end, we have planned two excellent retreats. The first retreat was in Vermont in mid-october to enjoy the Fall foliage and cool weather. Highlights of this retreat included having the Orvis store to ourselves for the Welcome Reception, the backroads tour of Vermont, and lessons in fly fishing, falconry, and off-road driving. Due to cold weather, Section dinner was brought inside, although it was scheduled to be outside at the lake. A special thank you to Judge McNeal and his wife, Marilyn, for providing music and getting everyone to dance... and to Jeff Weissman and his Ipod to allow the music to continue til the wee hours of the night. In April 2007, the section will relax at a retreat in beautiful Key West. The retreat committee, led by David Manz, is working on a full schedule of activities, emphasizing a relaxed island lifestyle. I hope that you will take time out of your busy practice to attend one of the section s retreats. Attending section retreats, however, is only one way to improve the quality of your life. Following in the footsteps of our outgoing chair, Jorge Cestero, I am continuing his initiative which encourages each and every member of our section to represent a child in the family court system on a pro bono basis. One of the greatest ways to help yourself is to reach out to help others in need. This type of community service fosters a sense of fulfillment that cannot be attained in any other way. I encourage you to contact your local legal aid society to notify them that you are willing to accept the representation of a child on a pro bono basis. If you are unable to find a child in this manner, please contact the Family Law Section so that we may attempt to work with your local bar association to identify a child within the family court system who needs your assistance. crossword puzzle ANSWERS, from page 14 Across 2. IDO 4. Asset 7. Findings 11. Oxley 12. Distribution 14. Identification 15. Canakaris 17. Option 18. Title 19. Enhancement 24. Lien 25. Adkins 27. Landay 28. Real 30. Waste 33. Classification 34. Pass 35. Active Down 1. Ball 3. Duncan 5. Burden 6. Robbie 8. Inflation 9. Straley 10. Dissipate 13. Goodwill 14. Income 16. Value 20. Acker 21. Thompson 22. Kadanec 23. Zold 26. Unequal 29. Bonus 31. Date 32. Gift