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Ashley McCorvey Myers

Bar Bulletin: What will the upcoming year bring for family law practitioners?

By Ashley McCorvey Myers

There are at least two theories about speculating on what the future will bring.

In one of those, Socrates said, “The only thing certain in life is change.”

So, what is likely to change this upcoming year for family law practitioners?

Three strong possibilities come to mind: The permission and recognition of same-sex marriages; alimony reform; and changes to the Rules of Procedure that impact family law practitioners, including the integration of the Family Law Rules of Procedure and the Rules of Civil Procedure into what is commonly being referred to as, “Stand Alone Family Law Rules.”

The Rules of Judicial Administration Committee will continue conducting an assessment of what Florida Bar Committee is and should ultimately be “in charge” of procedural rules of common application. U.S. District Judge Robert Hinkle in Tallahassee ruled that Florida’s state constitutional ban on same-sex marriages is unconstitutional. The judge found that the ban violated the 14th Amendment’s guarantees of equal protection and due process.

Circuit judges in Monroe, Miami-Dade and Broward have issued similar rulings. A Palm Beach County judge did not strike the ban on same-sex marriages entirely, but issued a ruling that discounted the ban in certain parameters. All of the orders are stayed pending the appellate process.

Florida’s Attorney General Pam Bondi recently declared she will continue to defend Florida’s ban on same-sex marriages as constitutional. Hopefully, the next year will bring clarity to this incredibly important issue.

A potential change to Florida’s alimony statute, Fla. Stat. §61.08, is certainly not new news. The possibility of a radical change to our alimony statute has been circling for a while now, and thankfully, it ultimately circled down the drain the past two years.

The 2013 Legislative Session brought us Senate Bill 718. The bill passed through both the Florida Senate and the House of Representatives at a breakneck pace. Many people anticipated SB 718 would become Florida’s new alimony statute until the very last minute, when lawyers, including those in the Family Law Section of The Florida Bar, and many non-lawyers launched a full-scale effort urging the governor to veto the bill. The governor did in fact veto the bill.

Prior to the 2014 Legislative Session, the same governor made it extremely clear to both sides of the alimony reform debate that alimony would not be a topic of discussion in 2014. It wasn’t.

We all want to know what is going to happen in the 2015 Legislative Session. Here is what I believe to be a certainty: The proponents of SB 718 will be back, and back in full force.

The objectionable language the governor relied upon in vetoing the bill will be removed. The rest of the bill is likely to be the same. This is not necessarily a bad thing because we are all familiar with that language.

It is also likely (but not certain) that the Family Law Section of The Florida Bar will propose a bill. The work is already in process. Both bills are expected to contain alimony “guidelines.”

We already know the proponents of alimony reform want the guidelines as set forth in SB 718. We don’t know the exact language of the Family Law Section’s anticipated proposed bill. However, the general concept of that proposed bill is that the longer the marriage and/or the greater the disparity of income, the more alimony.

The specifics remain to be seen. The type, length and effect of the formula on the requirement to first establish need and the ability to pay are unknown.

The concept of need and ability to pay as it relates to the trial court’s duty to make findings under our current statute is, evidently, unclear. Michael Korn brought to my attention that a conflict very recently developed between the 1st District Court of Appeal and the 5th District Court of Appeal with respect to whether the court must consider the factors under §61.08(2) when denying alimony.

We all know that the trial court must make findings with respect to alimony. The appellate courts have drilled that into family law practitioners heads.

However, if the trial court is denying an award of alimony, the 5th District Court of Appeal recently held that the trial court commits reversible error if it does not evaluate and make findings with respect to all of the factors in §61.08(2) when determining if there is need and ability to pay under §61.08(1). Wright v. Wright, opinion released April 17, 2014.

Conversely, the 1st District Court of Appeal recently held that when denying an alimony award, the trial court need not make findings of fact other than with respect to whether there is both a need and an ability to pay under §61.08(1). Ballard v. Ballard, opinion released Aug. 7.

In light of the fact that many Jacksonville family law practitioners also practice in St. Johns County, it is an important distinction to be aware of when preparing your final judgments or reviewing any prepared by the court. This conflict may ultimately be resolved by an entirely new statute, or the old fashioned way, by the Florida Supreme Court.

A question arose in my mind as I sat at the last Family Law Section legislation meeting and discovered that alimony guidelines would be a part of the section’s anticipated proposed alimony bill and that was: How is the Family Law Section (of which I am a member) going to do an about face from arguing no reform is needed and the negative impacts of enacting an entirely new statute to proposing an entirely new statute?

I was ultimately forced to answer my own question. The answer is that reform is coming in some form or another and it is coming hard and fast. Do we, as family law practitioners, want that reform to be imposed upon us or do we want to be part of the process of drafting a bill we can live with?

This spiel should sound familiar to anyone reading this article. It is the same advice we give our own clients at mediation when we remind them that the divorce is happening one way or another.

One can either have the trial judge, who doesn’t know his or her life, impose the result upon the party, or he or she can participate in crafting a livable, if not perfect, solution.

We are family law practitioners. This is what we do every day. We know our “life” and the lives of our clients. We should be the ones creating the livable solution, not having it imposed upon us by a very limited group that has an extreme amount of political influence.

Many thanks to those who supported me during my term as chair and particularly those who participated in the May 2014 Family Law Seminar (especially Connie Byrd, Pat Kilbane, Richard West and The Honorable Ray McNeal, all of whom went the extra mile this year).

My parting words as chair of The Jacksonville Bar Family Law Committee are simple: Participate in the process. The Family Law Section of The Florida Bar and The Jacksonville Bar Association need active members.

Ashley Myers is a board certified specialist in marital and family law, fellow of the American Academy of Matrimonial Lawyers, past chair of the Family Law Rules Committee of The Florida Bar and a current member of the Rules of Judicial Administration Committee.

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