The Florida Bar Section Commentator

Administrative Law

Volume XXVI, No. 1 Sarah R. Sullivan, Esq., Editor Fall 2012

www.familylawfla.org 2 COMMENTATOR FALLfall 2012

Section INSIDE THIS ISSUE: calendar Message from the Chair...... 3 Meet the Chair – Carin M. Porras...... 7 Look for brochures in the mail Editor’s Corner...... 9 and information on the Family Law Section’s website: Income Withholding for : Important Changes in 2012...... 11 www.familylawfla.org. Newly Adopted Income Withholding for Support (IWO)...... 14 Paternity in the Modern Family...... 25 November 14 C1476: Telephonic Seminar – Section Family Law Section Fall Retreat – Wyoming, Sept. 4-8 (Photos)...... 26-27 Service CLE: Mechanics of Board Service of Process – Active-Duty Service Member...... 31 Certification Dividing Military Pensions in : Part I...... 32 November 29 Out of the Ivory Tower and Into the Trenches:...... 36 Executive Council Meeting Tampa Airport Marriott What Every Divorce Lawyer Needs to Know About the Florida Administrative Code When Evaluating a Forensic Psychologist’s Report...... 37 December 12 CLE 1477: Telephonic Seminar Enforcement: The Civil Contempt Conundrum...... 40 – Child Support Enforcement & Florida Family Law for Gay, Lesbian, Bi-Sexual and Transgendered Persons...... 43 Passport Issues CLE Section: 2013 • Marital & Family Law Certification Review...... 45 January 23 • The Shield and the Sword: Protecting Yourself and Your Client in the FLS “Tips & Nibbles” seminar for Practice of Family Law...... 47 exam registrants • Mechanics of the Marital and Family Law Certification Exam...... 48 January 24 • How to Handle Family Law Cases Involving the Department of Revenue...... 50 Committee Meetings January 26 Executive Council Meeting January 25-26 AAML & FLS Marital & Family Law Certification Review Conference

February 20 CLE 1479: Telephonic Series Part 1 “Non-Divorce Issues a Divorce Lawyer Needs to Know: Probate, Guardianship, Elder Law The Commentator is prepared and published by the Family Law Section of The Florida Bar. March 8 Carin M. Porras, Ft. Lauderdale – Chair CLE 1478: Children’s Issues Live & webcast - Fort Lauderdale Elisha D. Roy, West Palm Beach – Chair-Elect G.M. Norberto Katz, Orlando – Treasurer April 10-13 FLS Spring In-State Retreat Maria C. Gonzalez, Weston – Secretary Gasparilla Inn, Boca Grande David L. Manz, Marathon – Immediate Past Chair Sarah R. Sullivan, Jacksonville – Editor May 15 CLE 1480: Telephonic Series Part 2 Vicki B. Simmons, Tallahassee — Administrator “Non-Divorce Issues a Divorce Lynn M. Brady, Tallahassee — Design & Layout Lawyer Needs to Know: Probate, Guardianship, Elder Law Statements of opinion or comments appearing herein are those of the authors and contributors and not of The Florida Bar or the Family Law Section.

COVER PHOTO: Articles and cover photos to be considered for publication may be submitted Wyoming Mountain Scene to Sarah Sullivan, Editor, at [email protected]. by Program Administrator MS Word format is preferred for documents, and jpg images for photos. Vicki Simmons fall 2012 COMMENTATOR 3

Message from the Chair

This is my first chair’s message for At the beginning of September, we amazing and fit perfectly with this the Commentator. I became Chair of journeyed west to Wyoming for the year’s theme of communication – all the Family Law Section at the end fall retreat. We stayed at the Jack- forms. Many thanks to Dr. Debi Day of June and the time is flying by; it’s son Lake Lodge in Moran, Wyoming, and Laura Davis Smith for their already October! I look forward to a which is located in Grand Teton Na- presentations on, of course, commu- productive and successful year with tional Park. Approximately 50 sec- nication – persuasive communica- your support. tion members and their guests had tion – written, verbal, and nonverbal. My focus this year is on communi- a fabulous time in a spectacular set- And to my very good friend Claudia cation – how positive communication ting. Not only did we enjoy the mag- Willis, who checked out the Jackson can improve our relationships – with nificent mountains, lakes, and wild- Lake Lodge in March (when the facil- our clients, opposing counsel, judicial life of Grand Teton National Park, ity was closed and vacant, snow was officers, and our families and friend – but we also marveled at the geysers, abundant, and the lodge resembled and our lives. the hotel in “The Shining”). These first few months of my term Shortly after coming back from the have certainly been busy. We enjoyed Wild West, we traveled to St. Peters- an informative and entertaining burg for our fall meetings. I hope that weekend in Captiva at the gorgeous all those who attended the meetings South Seas Island Resort for a well- agree that Friday meetings are bet- attended Leadership Retreat from ter than the Wednesday meetings we July 12-14th. While we encountered have had in the past in conjunction some stormy weather, it did not pre- with The Florida Bar meetings. vent us from taking advantage of the We have a large number of commit- many activities and fun available tees led by hardworking and enthu- at the resort. Our section lobbyists, siastic members. Bob Merlin and Nelson Diaz and Edgar Castro, Doug Greenbaum chair the always with the help of Legislation Commit- lively Alternative Dispute Resolution tee co-chairs Thomas Duggar and Committee. These folks have three Heather Apicella, did a wonderful hour meetings! job of taking us through the complex Loreal Arscott and Judy Migdal and convoluted legislative process Mack, chairs of the Children’s Is- that goes on in Tallahassee every year. sues committee, invited two great We also had the pleasure of meeting Carin A. Poras speakers – Professor Michael Dale Nelson’s and Edgar’s beautiful wives Section Chair, 2012 - 2013 from Nova Southeastern University, and absolutely adorable baby daugh- and attorney Lou Reidenberg, who ters! I hope all of those who attended presented on the need for lawyers for left with a better understanding of children in dependency cases. Their lecture was both informative and how the section and its committees, mud pots, waterfalls, and attractions interesting. as well as The Florida Bar, function of Yellowstone National Park. The – and how best to communicate with Debra Welch and Julia Wyda weather was perfect, the food deli- the members of each! Congratulations graciously agreed to chair the Con- cious, and the company superb. It to Loreal Arscott, Victoria Cruz- tinuing Legal Education committee was a great opportunity for hiking, Garcia, Sarah Kay, and Robin for a second year. They and their Scher, who received scholarships to kayaking, floating down the Snake diligent committee members have attend the retreat! River, star gazing, wildlife photogra- already put on a number of excellent Retreat activities included bocce, phy, horseback riding, and fishing – a and well attended CLE seminars kayaking, and games involving candy. real outdoors vacation. A highlight and they have many more scheduled The children – and the adults – had of the trip was a “Horse Whisperer” in the upcoming months. Be sure to a great time with that last activity. demonstration at nearby Diamond check out the upcoming seminars at The shelling was wonderful and the Creek Ranch, where cowboy Grant www.familylawfla.org. location magnificent. This little piece Golliher treated us to an inspiring The committee of Florida – Sanibel and Captiva – is show of how to develop trust using is ably chaired by Robin Scher and breathtakingly beautiful. respect and discipline; it was truly continued, next page 4 COMMENTATOR FALL 2012

Chair’s Message ——————— Elisha Roy and the Long Range structions on the use of the IWO and from preceding page Planning Committee are tasked with IDO and how we are to utilize them looking to the future of the section and in the many cases involving support. preparing for that future. We look for- Doug Greenbaum kindly consent- Amy Cosentino. Both these wom- to hearing their ideas and plans. ed to head the Sponsorship committee en are passionate about domestic Magistrate Barbara Beilly and and, with his committee, has already violence issues and they have great Christopher Rumbold chair the come up with a new annual sponsor- plans for their committee this year Magistrates and Hearing Officers ship form and obtained a number and the next. Look for news on the all committee. They have a number of of sponsors! The annual form is on day CLE seminar they are planning ongoing projects, which include the the website; we invite all to suggest for next year; it is sure to be informa- production of a document which will sponsorship to those who might be tive and interesting! provide information regarding the interested in networking with family Chair John Foster and his com- procedures of all the magistrates and lawyers at our events and meetings. mittee are hard at work on a number hearing officers throughout the state. The Support Issues committee is of issues dealing with equitable dis- They are also planning a “traveling” another of the extremely hardwork- tribution. This committee continues seminar, which will address the law ing Family Law Section committees. to amaze me with their dedication to and issues relating to appearances In their second year chairing this this topic area. before magistrates and hearing of- committee, Magistrate Barbara Under the leadership of Chair ficers. Goiran and David Hirschberg are Magistrate Norberto Katz, our Ingrid Keller, Patricia Alexan- already going strong and delving into Ad Hoc Finance Committee awarded der, Belinda Lazzara, and Laura a number of important support issues. four scholarships for the Leadership Davis Smith have put together a We have a number of active Ad Hoc Retreat, to the four very deserving splendid program for the 2013 Mari- committees this year, including one women mentioned above, all of whom tal & Family Law Review Course, to investigate the issue of are active Family Law Section mem- scheduled for January 25-26, 2013 at and changes to Ch. 61.08 and 61.14, bers. Magistrate Katz will be receiv- Loews Royal Pacific Resort in Univer- chaired by Thomas Duggar; one to ing applications for three scholar- sal Studios. Don’t miss this instruc- investigate probate/family related is- ships for the 2013 Marital & Family tive and informative (and fun) time! sues headed by Kimberly Rommel- Law Review Committee. Be sure to Great speakers and great materials! Enright; and another to research check the website for this applica- Remember, if you want to get the and provide guidance on “parentage” tion and apply soon – the deadline is written materials, you must register issues, chaired by Caryn Green, November 10, 2012! by December 18th! Abigail Beebe, and John Foster. The Legislation Committee is Fort Lauderdale attorney and me- A new “Sections Liaisons” Commit- chaired this year by Thomas Dug- diator Steve Berzner chairs the tee, led by Terry Fogel, will look into gar and Heather Apicella. Thomas Membership Committee. Along with and implement ways to network and and Heather will have their hands Mentoring Chair Robin Scher, Steve connect with other sections. So many of full this year (as every year); with the will be heading to Miami for the 9th our family law cases include non-fami- help of our lobbyists Nelson Diaz and Minority Mentoring picnic. This is the ly law issues – property, tax, criminal, Edgar Castro, they will do a wonder- ultimate networking event for minor- elder, health care, social security, bank- ful job in keeping track of the many ity law school students from all over ruptcy, and estate issues – to name a bills filed that impact family law! Florida and is held at Amelia Earhart few – and we (and our clients) can ben- Sheila Furr, a psychologist and Park in Hialeah on Saturday, Novem- efit from relationships we make with affiliate member of the section, and ber 10, 2012. There are games and lawyers who practice in these fields. Erica Foerch, a Florida Registered food and fun at the picnic; come by I cannot forget Kim Nutter and Paralegal, chair the Litigation Sup- and say hi to Steve and Robin and oth- the diligent Ad Hoc Guardians and port Committee. Sheila and Erica are ers at the Family Law Section table. Attorneys Ad Litem committee. This working extremely hard to ensure The very capable Lori Caldwell committee took on the enormous that our affiliate members are prop- Carr agreed to chair the important task of preparing a training manual erly listed on the website so that the Rules & Forms committee without for Guardians ad Litem. Well, they Family Law Section members can knowing that she would be called completed that as well as a video reach them and benefit from their upon to submit Comments to the Flor- designed to assist in the training pro- knowledge and expertise. They are ida Supreme Court on the IWO (In- cess. The committee is now moving also planning telephonic seminars come Withholding Order) within days forward to market this excellent and which will be absolutely great for of her appointment! Lori did a great much needed product; expect more paralegals and young family lawyers. job and we all wait for the court’s in- information on this soon! fall 2012 COMMENTATOR 5 new Fall 2012

Read Publications chair Sarah production of our e-newspaper, FAM- work with her. Sullivan’s editor’s message and be SEG. I don’t have a clue how Luis Congratulations to Thomas Dug- amazed at the variety of related top- does what he does but he does a great gar of Tallahassee and Lawrence ics she has put together for this is- job in getting our news out the fast Datz of Jacksonville, who were re- sue of the Commentator. Who knew way! And keeping our website up to cently admitted to the Florida Chap- administrative issues could be so date and full of information about our ter of the American Academy of Mat- interesting! Thanks are also due to events, seminars, and activities! Amy Hamlin and Ron Kauffman, I am also thankful to have the as- rimonial Lawyers, and to Nicole the wonderful chairs of the Commen- sistance and input of the other Ex- Goetz of Naples, who was appointed tator. And chairs of the Florida Bar ecutive Committee members – Chair to the Big Bar Family Rules Commit- Journal, Sarah Kay and Monica elect Elisha Roy, Treasurer Norber- tee by President Gwynne Young. Pigna, have a number of great fam- to Katz, Secretary Maria Gonzalez, I believe I may have gone over my ily law related articles lined up for and Immediate Past Chair David word limit so I will end by thanking that publication– don’t miss Ron Manz. Their support is invaluable! you for your confidence in me to lead Kauffman’s fascinating article on Our section administrator is Vicki the Section this year, and invite you grandparent rights in the September/ Simmons. Vicki has just completed to join us in our events and committee October issue of the Journal. her first whirlwind year with the And thank goodness for Luis In- Family Law Section. Vicki is a charm- work. Enjoy the wonderful articles in signares! Luis handles an area that ing, gentle, lovely Southern woman this Commentator! is still foreign to me – technology and I hope she will be with the section Best regards, and all related issues, including the for years to come; it is a pleasure to Carin Porras 6 COMMENTATOR FALL 2012

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American Academy of Economic & Financial Experts fall 2012 COMMENTATOR 7 Meet the Chair – Carin M. Porras “Example is leadership” – Albert Schweitzer

By G.M. Diane M. Kirigin

Last year, in The for a division of Pfizer. In 1983 her The Florida Bar, that she first became Commentator, we first son, Benjamin, was born. Later, very active in voluntary bar work created the tradi- he was joined by two other siblings, through her local Broward County tion of introducing David and Kenneth. Carin and her Bar, as a result of the encouragement the new Section family moved to Florida in 1987. In of Gordon C. Brydger, her boss. She Chair via an article 1991 when her Sons were 8, 7 and 4 progressed through the local Broward in the first edition years of age respectively, Carin took County Bar leadership ranks in a of The Commenta- the first step toward a legal career 4-year progression from 1998 – 2002. tor for that Chair’s by applying for admission at the Uni- Thereafter, Gordon encouraged her d. Kirigin year. It is therefore versity of Miami Law School. She involvement in Section committee my privilege to introduce you via was admitted there and during law work. Section leaders, Jorge Cestero this article to your new chair, Carin school she variously worked at the and Thomas J. Sasser, suggested she M. Porras. State Attorney’s Office as a Victim aspire toward a future role in leader- Those of us who have participated Advocate and as a law clerk at Wicker ship. in leadership of the Section are often Smith, an insurance defense firm. Carin’s initial interests reflected called upon to discuss the advantage In 1994, Carin graduated from the her prior career as a teacher per her of Section membership. Undoubtedly University of Miami cum laude. She membership on the Section’s Publi- the primary advantages we ascribe to subsequently was admitted to and cations and Continuing Legal Edu- Section membership are the opportu- is a member of the New Jersey and cation committees. She also joined nity to network with other attorneys, Florida Bars, as well as having been the Support Issues committee and judicial officers and affiliate members admitted to practice before the U.S. has served for many years on the statewide and to forge friendships. Supreme Court. Section’s Legislation committee. Ul- This is not mere “puff” but these op- In 1995 Carin went to work part- timately, Carin went on to chair the portunities are truly beneficial. In time as an associate for Gordon C. Section’s Publications (2005-2007) fact, it was through our work on vari- Brydger, Esquire. After only two and Continuing Legal Education ous Section committees over many months, she began working full-time, (2007-2009) Committees. She has for years that Carin and I got to know ultimately becoming a partner in several years chaired the annual Cer- one another and become friends. I’d the law firm which is now titled Bry- tification Review Course and has suc- like to share with you what I know dger & Porras, L.L.P. Carin told me cessfully guided that event through (and through the preparation of that she was attracted to a family two different event venue changes this article have researched and/or law practice because she enjoyed the during her tenure in that position. learned) about your new Chair. work which she described as “never Carin’s theme for her year as Sec- Carin grew up in Foxboro, Mas- boring” since many family law cas- tion chair is “Educating and mentor- sachusetts (she is still a Patriots’ es interface with other legal areas ing through better communication.” fan) but left Massachusetts to at- such as real estate, trust and estates, This year, the Section’s publications tend Earlham College in Richmond, criminal law, taxation, immigration, and the retreat CLE seminars will Indiana where she double majored etc. In 2003, Carin became Board reflect that theme. Carin supports in French and Spanish. (She is flu- Certified in marital and family law and places great value on the men- ent in both languages.) During her by The Florida Bar. Carin is AV-rated toring of new family law attorneys. sophomore year at Earlham College by Martindale Hubbell and has been She has found over her years in the she lived in France. In her senior year recognized by “Super Lawyers” for practice that many young attorneys she lived in Colombia, South America her excellence in the field of family start out their career with no experi- where she met her former husband. law annually from 2007 to 2012. ence or guidance whatsoever. She After they married, they lived in Co- When I asked Carin to describe her reports that “sadly few firms provide lumbia for 2 years. During that time path toward Chairmanship of the a formal ‘mentoring’ program despite Carin taught English. Upon return- Section, she explained that although the need to provide new family at- ing to the United States they lived she became a member of the Section torneys with a supportive environ- in New York where Carin worked quickly after gaining admission to continued, next page 8 COMMENTATOR FALL 2012

Meet the Chair procedural and substantive informa- whom she is extremely proud. Carin’s from preceding page tion and guidance on issues unique eldest son, Benjamin, graduated from to the new attorney during his or her the University of Florida and has first few years of practice. completed a one-year dental resi- ment to feel safe to ask questions.” Carin is excited that during this dency at Temple University Dental When I asked what advice she would coming year, the Section will extend School. Recently he was admitted to give to someone desiring to pursue a and expand its scholarship program a graduate dental specialty program career in family law, she responded to facilitate participation by Section at Nova University and is engaged to that she would first and foremost members in leadership, trial advocacy be married. Her middle son, David, encourage that new attorneys sit is a graduate of the University of in on hearings (running the gamut and the annual Certification Review Florida. He worked for 3 years as a from Uniform Motion Calendar hear- courses, to provide greater diversity ings to trials) before various family and accessibility to leadership and trial clerk traveling with judges for law judges, general magistrates and education to our constituents within the U.S. Tax Court conducting tax child support hearing officers to ob- the Section. She sees this as part and trials. David is presently a “2L” at the serve, first-hand, various attorneys parcel of the Section’s ability to “give Columbus School of Law which is af- and judicial officers in hearings and back” to improve the legal profession, filiated with the Catholic University trials. Observing both procedure and and in turn, to make things better in Washington, D.C. This past sum- substance, in action, is essential by for the families that we serve within mer he worked at an immigration learning both from the best and worst this State. clinic. Carin’s youngest son, Kenneth, of those they observe. Second, she The Chair also believes that the is a graduate of Florida State Univer- encourages new attorneys to: study Family Law Section members can sity with an accounting degree. He is the rules of procedure and rules of learn from their peers in other Sec- employed as an auditor at the Florida evidence; sign up for various CLE tions and Divisions within the Bar. Auditor General’s office in Tallahas- programs, especially Basic Fam- Toward that end, she has established see, Florida. Carin also has 2 beauti- ily CLE, attend Family Law Section an Ad Hoc Section Liasion commit- ful and well-behaved “daughters” of events; purchase and study the CLE tee to proactively reach out to other the four-legged variety, specifically, survey materials from the annual Sections and Divisions, such as the two Maltese dogs named Leia and Certification Review course. Third, General Practice, Solo and Small Toby. she would encourage new attorneys Firm Division. If I were asked to describe Carin in to seek out and establish a network I could not end this article without just 10 words or less, the adjectives: of mentors who can provide practical, talking about Carin’s children, of intelligent, dedicated, hard-working, modest, thoughtful, kind, precise, honest, steadfast and dependable come to mind. She can always be counted on to perform the tasks that she undertakes and to focus on the best interests of the Section. Albert Schweitzer once said, “Example is leadership.” All members of the Sec- tion are blessed this year to have a Chair who has in the past led by example and who will continue to lead us by example during the 2012 -2013 bar cycle. Therefore, I encourage each and every one of you to participate in the Carin’s “boys”: David, left, Kenny in the Section and assist Carin, and the middle and Benjamin rest of the Executive Committee, on their journey for this bar cycle start- ing today. Remember - if your actions inspire others to dream more, learn more, do more and become more, you too are a leader. I predict if you under- Carin’s other “kids”: Leia and Toby take this journey that it will enrich you and benefit Florida’s families. fall 2012 COMMENTATOR 9

Greetings family law prac- Military Pensions in Divorce: titioners and welcome to your Part I”) and Angie Aguilar (“Ser- new “year” with the Family Law vice of Process—Active Duty Section. This issue of the Com- Service-member”) provide us mentator is a potpourri of topics with the armor we need to prop- relating to administrative law. erly represent military families “What?” you say, “I thought this in family law actions. was the Family Law Commen- Many family law practitio- tator!” Yes, yes it is. However, ners may not think of utilizing in our practice, we collide with Editor’s Corner Florida’s administrative code to several administrative agen- evaluate a forensic psychologist cies, and in some cases, our cli- Sarah R. Sullivan, Esq. used in family law litigation. ents have frequent interaction However, Chris Bruce in his with these agencies. Although article, “What Every Divorce we may never defend against Lawyer Needs to Know About a IV-D child support enforcement case, or represent an the Florida Administrative Code When Evaluating a individual who is receiving supplemental security income Forensic Psychologists Report,” breaks down the cumber- from the social security administration, our practices some administrative code and gives us some great tools and our clients benefit from our institutional knowledge. for ensuring that our experts in the court system comply This issue is dedicated to examining those administra- with best practices. tive agencies and systems that affect our clients and our With a competitive job market for all law school gradu- practice. ates, legal experience while in law school is essential to Recently, family law practitioners and the Courts have setting oneself apart from other job seekers. From a stu- been faced with inconsistencies between federal and state dent perspective, Joel Feigenbaum lauds the benefits of income withholding orders. Cynthia Holdren explains “practicing” while a student in a clinical program in his the interaction of the federal child support withholding article, “Out of the Ivory Tower and Into the Trenches, A guidelines and Florida’s income withholding practices by Student’s Perspective on the Role of Clinical Education the Department of Revenue child support enforcement in Training a Litigator.” in her article, “Income Withholding for Child Support: Finally, Brian Karpf gives us some hot tips on uses of Important Changes in 2012.” Important supplements to civil contempt and enforcement in family law proceed- this article included in this issue are the federal income ings in his article, “Enforcement: The Civil Contempt withholding instructions and forms as well as a state Conundrum.” Knowing the limits of what the court can addendum order making the federal IWO applicable in do in a family court order enforcement action assists the state of Florida. practitioners in advising their clients of the best way As our family structure gets more complicated, so does to proceed. Mr. Karpf also compares Florida contempt the family court practitioner’s response to the establish- and enforcement proceedings with proceedings in other ment of paternity. John Foster and Kelli Murray, in jurisdictions. Enjoy! “Paternity in the Modern Family,” examine the complex- ity of the concept of “quasi-marital children.” The article explores the evolution of the public policy surrounding the definition of “family” and how it collides with the best interest standard. Additionally, William D. Slicker Thanks to the provides us with many legal issues facing Gay, Lesbian Bi-Sexual and Transgendered parents in the context of Commentator Associate family in his article, “Florida Family Law for Gay, Les- Editor: bian, Bi-Sexual and Transgendered Persons.” In the midst of the drawdown of troops in Iraq and Monica C. Pigna Afghanistan, our nation is focused on our military ser- West, Green & Associates, P.L. vice-members and their needs. Florida benefits from an Orlando, FL influx of active duty service-members, retirees and their families. Many veterans seek the help of family lawyers for a variety of purposes. Mark Altschuler (“Dividing 10 COMMENTATOR FALL 2012 new Fall 2012 fall 2012 COMMENTATOR 11

Income Withholding for Child Support: Important Changes in 2012 By Cynthia W. Holdren, MPA

Enforcement of child support orders is not a simple pro- domestic violence or pending legal action for . cess, but standardization helps hold down costs, hasten The “written agreement” exception allows the custodial payments to families, and improve compliance among and noncustodial parent to enter into an agreement for employers and income withholders. One such standard- an alternative payment arrangement (usually direct ized process is the use of the Income Withholding for payment from the noncustodial to the custodial parent) Support (IWO) form. that must be approved by the court or administrative authority. Backgound Nationally, approximately 22 million—or more than State Disbursement Units (SDUs) one in four children—lived in households with one par- Responding to the need for one entity to receive pay- ent present in 20091. The overwhelming majority of ments in each state, PRWORA established centralized custodial parents (82.2%) were female, and the poverty collection and disbursement units or State Disburse- rate for custodial mothers was 30.4% while that for ment Units (SDUs).5 . Under the Social Security Act,6 custodial fathers was 18.8%. As might be expected, the all payments withheld by employers were to be sent to 2009 poverty rate of all custodial parents rose to 28.3% the SDUs within seven business days of the payroll date. or about twice that of the total population (14.3%). Child In addition, SDUs were mandated to furnish accounts support payments were 62.6% of the average income for of payments to parents and to the courts, a valuable custodial parents below the poverty level receiving full service essential to the courts’ review of payments and support and 20.8% for all custodial parents. Children arrearages. bear a greater burden of poverty, in that they comprise 36% of the people living in poverty but only 25% of the Standard Income Withholding Form 2 general population . These facts illustrate how critical To achieve uniformity among all issuers of income the receipt of reliable child support payments is to the withholding orders or notices, the Social Security Act financial security of families with children. requires that all entities use the Office of Management Employers and income withholders are the largest and Budget (OMB)-approved Income Withholding for source of child support payments, withholding and Support (IWO) form7, including private individuals, at- remitting 67% of payments collected from all sources, torneys and courts. OCSE published Action Transmittal 3 according to OCSE’s 2010 preliminary statistical data . 11-05, Revised Income Withholding for Support (IWO) A total of $21.3 billion was collected from employers in Form,8 that contained the revised form, instructions for 2010. Employers are a major partner in improving the its use, relevant facts about federal and state legisla- financial security of families with children. tion regarding income withholding and SDUs, and the approach selected to address issues identified with the Income Withholding previous version of the form. Key changes include: The use of wage garnishment began early in the his- • Requirement of underlying order. The note on tory of the child support program, expanding from col- page one was reworded to clarify that if the employer lection of delinquent payments to include collection of or income withholder receives this document from currently due payments. The Personal Responsibility someone other than a state or tribal child support and Work Opportunity Reconciliation Act (PRWORA) of agency or a court, a copy of the underlying order con- 1996 expanded its use further by allowing withholding of taining a provision authorizing income withholding different types of income and assets in addition to wages must be attached. and requiring states to have administrative authority to • Remittance identifier. To prominently display the initiate income withholding4. remittance identifier, it was moved to page one above If arrearages occur, child support orders entered after the case and order identifier. This payment identifica- January 1, 1994 must include a provision authorizing tion number is required by the State Disbursement income withholding without the need for a judicial or Unit (SDU) to process a payment. administrative hearing. However, there are two excep- tions to immediate income withholding: “good cause” and • Payee name. Federal law requires employers and a “written agreement” between parties. The “good cause” other income withholders to remit all child support exception occurs in cases where there was a threat of continued, next page 12 COMMENTATOR fall 2012

Income Withholding Approach for Improving the Income from preceding page Withholding Process As a part of the IWO form reauthorization, OCSE con- ducted several webinars from April through September, payments to the SDU9. 2010, inviting employers, state court administrators, and state and federal child support representatives to • Checkbox for employer returns. A checkbox on discuss ways to improve the income withholding pro- page two of the form allows the employer to indicate cess and to develop an approach for implementing the that the IWO is being returned because it does not improvements. Comments received during this process direct payments to the SDU, or the IWO is not regular were carefully considered in developing the following on its face. approach to improve the income withholding process. • Signature block. Expansion of the title clarifies that judges may sign the order. IWOs issued on or after 05/31/11 (i.e., new IWOs). • Employment termination section. Expansion of If the IWO is not directed to the SDU as required by this section allows use by income withholders in ad- federal law10 then the employer should reject the IWO dition to employers. and return it to the sender, effective immediately. • Instructions to reject and return invalid IWOs. If the employer receives a document to withhold income Guidance is provided in the instructions to the form that is not issued on the OMB-approved IWO form as to indicate circumstances under which an IWO must required by federal law11 then the employer must reject be rejected and returned to the sender. the document and return it to the sender, effective May The ability of employers to return income withhold- 31, 2012. ing orders that do not direct payments to the SDU and to return income withholding orders that are not on the IWOs issued before 5/31/11 (i.e., IWOs already OMB-approved form will ensure widespread knowledge processed by employer)*. of and adherence to these requirements. If the IWO is not directed to the SDU as required by federal law, the employer should the state child

Section makes $75,000 contribution to Bar Foundation

The Family Law Section presented a $75,000 gift to the Florida Bar Foundation at the Bar’s Convention in June. Pictured with a “check,” are (L-R): G.M. Diane Kirigin; 2012-13 Section chair, Carin Poras; immediate past chair, David Manz, and Michael Faehner, Foundation board member. fall 2012 COMMENTATOR 13 support enforcement agency in the state that issued the Cynthia Holdren, Senior Associate underlying support order on a case-by-case basis to re- with the Center for the Support of Fam- quest a revised IWO directing payment to the SDU. The ilies, has thirty+ years of experience state may use procedures under 42 U.S.C. § 666 (c) (1) in social service, child support, and (E), upon providing notice to the obligor and obligee, to employment security programs. Ms. direct the obligor or other payor to change the payment Holdren holds a Bachelor of Arts degree destination to the SDU. The employer should continue to from Mary Washington College in Fred- send payments to the non-SDU address until the state ericksburg, VA and a Master of Public child support agency or sender issues a revised IWO Administration degree from Old Do- directing payment to the SDU. c. holdren minion University in Norfolk, VA. She If income withholding is not issued on the OMB-ap- is placed with the Employer Services Team at the Office of proved IWO form as required by federal law and the order Child Support Enforcement, Administration for Children presents a problem for the employer (i.e., insufficient and Families, Department of Health and Human Services. information to process the IWO) or the order has been Publications include Improving Income Withholding for modified, then the employer should contact the sender Families with Children published in Juvenile & Family to request an OMB-approved IWO form. The employer Justice TODAY, Fall 2011. should continue withholding income until a new OMB- approved IWO form is received. Endnotes: 1 U.S. Census Bureau. (2011). Custodial mothers and fathers and their *Please note: If the underlying support order meets child support: 2009. any of the following criteria, then there is no require- Retrieved from http://www.census.gov/prod/2011pubs/p60-240.pdf. ment for states to process income withholding payments 2 U.S. Census Bureau. (2010). Income, Poverty, and Health Insurance through the SDU: Coverage in the United States:2009. Retrieved from http://www.census. gov/prod/2010pubs/p60-238.pdf 1. support order initially issued in the state before Jan. 3 Office of Child Support Enforcement. (2010). Preliminary Report. 1, 1994 and has never been modified; or Retrieved from http://www.acf.hhs.gov/programs/cse/pubs/2011/re- ports/preliminary_report_fy2010/. 2. support order initially issued in the state before Jan. 4 (42 U.S.C. § 666 (b) (8)) (2011) 1, 1994 and has no arrearages; or 5 (42 U.S.C. § 654b ) (2011) 3. support order initially issued in the state before Jan. 6 (42 U.S.C. § 666 (b) (5) and (b) (6) (2011) 1, 1994 and is not associated with a Title IV-D case. 7 (42 U.S.C. § 666 (b) (6)) (2011) 8 Office of Child Support Enforcement. (2011). Action Transmittal 11-05. Revised Income Withholding for Support (IWO) Form. Retrieved Summary from http://www.acf.hhs.gov/programs/cse/pol/AT/2011/at-11-05.htm. A standard form and payment direction is the best 9 (42 U.S.C. § 666 (b) (6) (A) (i)) (2011) method for improving the timeliness of child support 10 (42 U.S.C. § 654b) (2011) payments to families while reducing the impact of with- 11 (42 U.S.C. §§ 666 (a) (8) and 666 (b) (6) (A) (ii)) (2011) holding on employers. Standardization eliminates confu- sion and reduces errors when employers are able to find relevant information quickly and easily in one format. JOIN THE FLORIDA BAR’S Personal information that is not relevant for withhold- ing income is not disseminated. Thus, the IWO form is a practical tool that gives employers all of the information Lawyer Referral they must have to withhold correctly and one that may be integrated into their normal business practices without ervice the need to process exceptions. S ! Every year, The Florida Bar Lawyer Referral Staff makes thousands of referrals to people seeking legal OCSE Resources assistance. Lawyer Referral Service attorneys annually • Income Withholding for Support form and instructions. collect millions of dollars in fees from Lawyer Referral (2011). Retrieved from http://www.acf.hhs.gov/programs/ Service clients. cse/forms/. • Information for Courts. (2011). Retrieved from http://www. FOR MORE INFORMATION: acf.hhs.gov/programs/cse/courts.html. Phone: 850/561-5810 or 800/342-8060, ext. 5810. • Action Transmittal 11-05. Revised Income Withholding for Support (IWO) Form. (2011). Retrieved from http://www.acf. Or download an application from The Florida Bar’s hhs.gov/programs/cse/pol/AT/2011/at-11-05.htm. website at www.FloridaBar.org. 14 COMMENTATOR FALL 2012

Newly Adopted Income Withholding for Support (IWO) The new federal requirements for income withholding for support went into effect on June 1, 2012. The 9th Circuit has locally adopted the below IWO from the Sixth Circuit until the Supreme Court officially adopts a form. Various circuits have adopted the federal form with a Florida addendum, with the hope and intent that no one will have to come back later to get a new order if someone changes jobs from state to federal. fall 2012 COMMENTATOR 15 16 COMMENTATOR FALL 2012 fall 2012 COMMENTATOR 17 18 COMMENTATOR FALL 2012 fall 2012 COMMENTATOR 19 20 COMMENTATOR FALL 2012 fall 2012 COMMENTATOR 21 22 COMMENTATOR FALL 2012 fall 2012 COMMENTATOR 23 24 COMMENTATOR FALL 2012 fall 2012 COMMENTATOR 25 Paternity in the Modern Family By John W. Foster, Sr. and Kelli A. Murray of Baker & Hostetler, LLP

We’ve all heard the classic play- impossible, to address within the case to pursue an action to establish ground tune: law method.” Nevitt v. Bonomo, 53 So. paternity where, for instance, he 3d 1078, 1084 (Fla. 1st DCA 2010) “First comes love… then comes mar- manifests a substantial concern for riage… then comes the baby in the (citations omitted). the child’s welfare. In other words, baby carriage.” In her concurring opinion, Judge biological fathers are entitled to Sharp observed that the “law” in rebut the presumption that the It’s amazing how, once upon a time, this area is far from clear. Fernandez biological mother’s husband is the this simple nursery rhyme formed I, 776 So. 2d at 1119. Judge Chris quasi-marital child’s “legal father”. society’s view of the natural pro- gression of relationships. However, W. Altenbernd analyzes the state of See Kendrick v. Everheart, 390 So. modern life may not be so simple. In the law in his 1999 article entitled 2d 53 (biological father is entitled this twenty-first century world of the Quasi-Marital Children: The Com- to pursue claim for paternity where modern family, the order of romance mon Law’s Failure in Privette and he manifests a substantial interest first, second, and finally Daniel Calls for Statutory Reform. 26 in the welfare of his quasi-marital childbearing is oft disregarded and Fla. St. U.L.Rev. (1999). For centuries, child); Nevitt, 53 So. 2d at 1082- only one axiom rings true today: no the common law divided children 84 (biological father’s complaint two families are alike. into only two categories – marital sufficiently reflected standing to Children are born into different and nonmarital. At common law, the pursue paternity action); L.J. v. types of families, for example: (a) fam- biological mother’s husband was pre- A.S., 25 So. 3d 1284 (Fla. 2d DCA ilies where the biological father and sumed to be the “father” of the child 2010) (biological father allowed a mother are married to each other, (b) born during the marriage. However, hearing to establish standing and families where the biological father the advents of scientific and genetic it was error to dismiss the bio- and mother are not married with no testing make such bright lined rules logical father’s paternity action); intention to do so, (c) families where implausible. “The advent of geneti- Fernandez II, 857 So. 2d at 999 the biological father and mother are cally accurate testing for paternity (biological father was deemed to not married and intend to marry at has partially ‘broken the back’ of the be the “legal father” based upon some later date, (d) families with common law presumption of legitima- his quasi-marital child’s best in- only one parent, (e) families with cy for children born while a mother terests); Fernandez I, 776 So. 2d two mothers or two fathers, and (f) and her husband are married.” Fer- at 1120 (biological father’s pater- families where the biological father is nandez I, 776 So. 2d at 1119; 26 Fla. nity action was allowed to proceed not the biological mother’s husband. St. U.L.Rev. at 233. as to his quasi-marital children Children born into the latter category Current case law establishes certain where the mother supported the have been more recently described principles, to wit: paternity action); Lander v. Smith, as “quasi-marital children.” See, e.g., (1). In that a quasi-marital child 906 So. 2d 1131-35 (Fla. 4th DCA Fernandez v. McKenney, 776 So. 2d was born while her mother was 2005) (dismissal ordered reversed 1118, 1119-20 (Fla. 5th DCA 2001) married, the husband is the pre- and biological father permitted to (Sharp, J., concurring) (hereinafter sumptive legal father. Fernandez pursue his paternity action). referred to as Fernandez I). In that I, 776 So. 2d at 1119; (4). The establishment of the bio- scientific and genetic testing can now logical father’s paternity will not accurately, rapidly, and inexpensively (2). The presumption that the impugn or otherwise affect a quasi- determine paternity, this category mother’s husband is the child’s marital child’s . Daniel of children known as “quasi-marital legal father is rebuttable. Nevitt, children” presents distinct and com- 53 So. 3d at 1081; Fernandez v. v. Daniel, 695 So. 2d 1253, 1255 plex legal issues. Moreover, as has Fernandez, 857 So. 2d 997, 999 (Fla. 1997); Fernandez II, 857 So. been expressly noted by the First (Fla. 5th DCA 2003) (hereinafter 2d at 999; Dep’t of Rev. v. Iglesias, District Court of Appeal: “[c]ases in- referred to as “Fernandez II”); Fer- -- So. 3d --, No. 4D09-4790, 2012 volving children are never easy, and nandez I, 776 So. 2d at 1119; J.T.J. WL 126053 at *1, 37 Fla. L. Weekly cases involving “quasi-marital chil- v. N.H., 2012 Fla. App. LEXIS 5186 D160 (Fla. 4th DCA Jan. 18, 2012). dren” are particularly complicated (Fla. 4th DCA Apr. 4, 2012). (5). The overarching concern in because they “present major public (3). The biological father of the paternity proceedings is – and policy issues that are difficult, if not quasi-marital child is entitled continued, page 29 26 COMMENTATOR FALL 2012

Family Law Section Fall Retreat Wyoming, Sept. 4-8 fall 2012 COMMENTATOR 27 28 COMMENTATOR FALL 2012

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Paternity practical effect. As a result, especially proceedings involving the equitable from page 25 in a technological society with a high distribution of assets, alimony, child rate of divorce, it will now be very dif- support, or timesharing, ficult for the judiciary, relying upon paternity actions, the enforceability should be – the best interests of the common law, to return to the sub- of prenuptial agreements and other the minor children involved. Dep’t stantive law concealed within the his- family law and ancillary commercial of Health and Rehab. Serv’s v. toric presumption of legitimacy, a law issues. Mr. Foster has chosen to serve Privette, 617 So. 2d 305, 308-310 providing family units for children. on the Executive Council of the Fam- (Fla. 1993); Fernandez II, 857 So. The judiciary can no longer consis- ily Law Section and he is the Chair of 2d at 999 (finding that “the trial tently select marital fathers as legal the Equitable Distribution Committee court properly made its determina- fathers, now that the presumption of and a Co-Chair of the Paternity Sub- tion based on a finding concerning legitimacy can now be regularly over- committee for the Family Law Section come by scientific testing. If we wish the children’s best interests, as of the Florida Bar Association for the was required.”); Lander, 906 So. to further the real policies promoted 2011-2012 Bar Year. Mr. Foster has 2d at 1134-1135 (the best interests by the presumption of legitimacy, in been recognized in Florida Trend’s of the child “are the polestar which whole or in part, we must create new 2010 and 2011 Florida Legal Elite must guide judicial consideration substantive law either judicially, on under adoption, marital and family of this case”); Iglesias, 2012 WL a case-by-case basis, or legislatively law, named one of “America’s Leading 126053 at *1; J.T.J. v. N.H., 2012 in a more structured format.” 26 Fla. Lawyers for Business” in Chambers Fla. App. LEXIS 5186 at *7. St. U.L. Rev. at 238. USA and one of Orlando’s top lawyers According to Judge Altenbernd, While the case law evolves, the one in Orlando Home and Leisure Maga- common law judges in the Blackstone thing that remains clear is that the zine. He received a Family Law Sec- era saw families as desirable for chil- children – and their best interests tion Rising Star Award, 2010-2011. dren and, as such, created this legal -- need to remain the central focus presumption to ensure that children of these proceedings. As confirmed Kelli A. Murray had, and belonged to, a family. 26 by the Florida Supreme Court in is responsible for Fla. St. U.L. Rev. at 234. Today, a Privette: “This policy [of advancing handling a variety rigid application of this presumption the best interests of the child] is a of matters, includ- calls into question whether or not the guiding principle that must inform ing commercial true purpose of the common law is every action of the courts in this sen- contract, property being fulfilled in today’s modern so- sitive legal area.” 647 So. 2d at 307. ciety, particularly where the marital and other business “family” it once sought to protect no related disputes John W. Foster in the firm’s com- longer exists due to a divorce – or is has extensive expe- K. murray mercial litigation superseded by the creation of a new rience as lead coun- biologically intact “family” which in- sel intrials and practice group. Kelli’s practice also cludes the biological mother, biologi- appeals,as well as includes an emphasis on family and cal father and the minor child. stateand adminis- marital law matters involving dis- Given the evolution of the modern trative proceedings. solution of marriage, alimony, child family, the case law will continue to His practice in- support, timesharing, constitutional develop and provide more guidance cludes emphasis on rights of parents and children, pa- as to the appropriate circumstances j. foster family and marital ternity, enforcement actions, and pre- for maintenance of the status quo or law matters and and post-nuptial agreements a shift in legal parenthood. Indeed, complex construction and commer- Kelli is actively involved in the George cial litigation. He has substantial as Judge Altenbernd stated more C. Young American Inns of Court, experience in the areas of contract than a decade ago, “[t]he common law claims, tort claims and general civil the Central Florida Association for never abandoned natural rights con- litigation. Women Lawyers, the Paul C. Perkins cepts for biological fathers of quasi- Mr. Foster serves as lead trial coun- Bar Association and serves on several marital children, even long after the sel in family law or divorce (marital committees of the Family Law Section presumption had accomplished that dissolution) proceedings, including of the Florida Bar Association.

Visit the section web site: www.familylawfla.org 30 COMMENTATOR FALL 2012

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Family Law Blog Service of Process – Active-Duty Service Member By Angie Aguilar, Florida Coastal School of Law

In a dissolution of marriage for military service Commercial Matters. Concluded 15 Nov. 1965. The members, specific state and federal rules apply. The central authority can carry out service of process Service member Civil Relief Act (SCRA) provides mil- via its internal law or a method request by the ap- itary personnel a great deal of protection from civil plicant. “Each contracting state shall be free to effect proceedings that “may adversely affect the rights of service upon persons abroad without application of the service member while he/she is in active duty.” any compulsion.” Hague Convention, art. 8. A state 501 App. U.S.C.A. § 501 (2003). Generally speaking, it statute cannot be used to serve a defendant. Id. A is easier to serve a defendant with service of process defendant overseas cannot be served by publication. while they are in the United States as opposed to Fischer, supra, at 1163. Service of process by publica- overseas. George H. Fischer, Residence or domicile, tion is only allowed when the address is unknown. for purpose of divorce action, of one in armed forces, Id. Postal service via certified or registered post is 21 A.L.R. 2d 1163 (1952). not allowed unless the country in which the military State law governs plaintiff seeking to serve a officer is located allows service in that manner. Id. defendant with a petition for divorce in the United Overall, SCRA provides a military officer legal pro- States living off post. Id. In Florida, plaintiff seeking tection from divorce proceedings. 501 App. U.S.C.A. to obtain a dissolution of marriage must meet the § 501. For example, under SCRA, a court can delay residency requirement. FLA. STAT. ANN. § 61.021 a legal proceeding while the service member is on (WEST 2012). “One of the parties to the marriage active duty. Id. Sixty days following active duty the must reside six months in the state before the fil- proceeding can continue. Id. Given the protection ing of the petition.” Id. There is an exception to the afforded to service members, plaintiffs best bet to statutory residency requirement for members of the carrying out service of process is to serve a defendant military. Cruickshank v. Cruickshank, 420 So.2d while they are home from duty. 914, 914 (Fla. Dist. Ct. App. 1982). Service members seeking a divorce in Florida do not have to prove the Angie Aguilar is a third year law six month residency requirement prior to filing the student at Florida Coastal School petition for dissolution of marriage.Eckel v. Eckel, of Law. Prior to law school, Ms. 522 So. 2d 1018, 1020 (Fla. Dist. Ct. App. 1988). A Aguilar worked as a community plaintiff seeking to serve defendant who lives off organizer for a non-for-profit or- post can do so via the sheriff of the county where the ganization. Ms. Aguilar graduat- defendant lives. FLA. STAT. ANN. § 48.021 (WEST ed from the University at Albany 2009). However, if the defendant lives on base, plain- with a bachelor’s degree in Political tiff can serve defendant via a provost marshal’s office. Science and Women’s Studies. Ms. Fischer, supra, at 1163. a. aguilar Aguilar’s strong interest in immi- A plaintiff seeking to serve a defendant who is gration law sparked her decision deployed overseas needs the voluntary acceptance to attend law school. Currently, she is interning at a of the defendant. If a defendant refuses to give vol- criminal defense firm in New York and serves as a re- untary consent to service of process, plaintiff can search assistant for the Civil Rights Litigation Clinic request a court to appoint someone to serve papers at Touro Law School. Ms. Aguilar enjoys traveling to via the Hague Convention on the Service Abroad of foreign countries and believes exposure to other cul- Judicial and Extrajudicial Documents in Civil or tures is important for understanding the rule of law. 32 COMMENTATOR FALL 2012 Dividing Military Pensions in Divorce: Part I By Mark K. Altschuler, Coral Gables, FL

The pension system in the United Court Order, which divides a mili- (as in Boyett2), or a formula States began with pensions granted tary pension the same way a QDRO that uses the benefit as of retire- by the new United States government divides a private ERISA pension. ment.However, coverture does not to Revolutionary War veterans. In While the features make the Sys- follow Florida case law, since Florida a period of over two centuries, the tem complex, the various features is a bright line state. For further dis- Armed Forces Retirement System of the System creates the flexibility cussion of coverture vs. bright line, has grown in size and complexity, in drafting Military Court Orders please see “Bright Line and Cover- and has many features making it (MCO) needed to fit most cases in the ture in Divorce Pension Valuations distinct from private ERISA pensions context of Florida case law. and Distribution,” American Journal and state plans. In 1982, Congress One features of the MCO that of Family Law, Vol. 23, No. 3, Fall passed the Uniformed Services For- makes it flexible is that it can allow 2009. 1 A major problem with the bright mer Spouses’ Protection Act . This a “bright line” QDRO formula that line approach is that inflation will lead to the creation of the Military freezes the benefit as of date of filing erode the value of a benefit that is frozen as of the date of filing. The Chart 1 argument against coverture is that it allows the former spouse to share in increases occurring after the date of marriage. A hypothetical solution would be a QDRO that allows for benefit increase due to inflation only, but this is impossible in most pension formulas. For example, in private in- dustry, how can one separate salary increase due to promotion from salary increase due to inflation? However, this problem can be solved in an MCO In the Armed Forces, the salary for a fixed rank and fixed years of service increases every year, as an inflation guard. Because of the flexibility of the MCO, the Defense Financial and Ac- counting Service (DFAS) will accept an MCO that freezes the rank and service as of date of filing, but allows for future passive salary increase in the benefit calculation for the former spouse. In addition to the flexible formula, the other critical features of the MCO are the survivor benefit, and disabil- ity. Unlike almost all private ERISA plans, the Armed Forces Retirement System does not allow a separate interest QDRO, payable for the life of the Alternate Payee. Therefore, the survivor benefit has to be addressed in the property settlement agreement fall 2012 COMMENTATOR 33 and the MCO. As in the award for- higher benefit and is payable at a benefit for active or reserves person- mula, the survivor benefit is flexible, much earlier age. Both valuations nel is the 3 year average of highest and allows for more than one survivor include results under a range of cost pay, time .025, times years of service. beneficiary. The Former Spouse can of living increases, since the Armed For entry before September 8, 1980, be the survivor annuitant on the en- Forces Retirement System includes the benefit is calculated with final tire pension, just the marital portion, cost of living adjustment that is very basic pay, not the 3 year average, and or just his/her own portion, depend- close to Social Security cost of living for entry after August 1,1986, the cal- ing upon how the case is settled. increases. culation is more complex, and beyond Disability is a major issue for For a date of entry into the Armed the scope of this article. MCO’s, since under the Mansell- Forces between September 8, 1980 For active duty servicemen, years 3 Supreme Court decision, disability and August 1, 1986, the retirement continued,next page is non divisible. Therefore, in cases where the disability is subtracted from total retired pay, it will reduce Chart 2 the award to a former spouse. This needs to be addressed by way of the property settlement agreement, in- demnifying the former spouse for any reduction due to disability. There are also cases where disability is given in addition to retired pay, which can be addressed within the MCO. Due to the complexity of these is- sues, this article will be presented in 2 sections. The first will deal with Armed Forces Retirement System pension valuations and setting the award in the MCO. The concepts are closely related, because the pension valuation can be used to determine the percentage awarded to the former spouse, and also because the MCO for- mula is based on how the benefit is cal- culated. The second section will cover disability and the survivor benefit.

Pension Valuation Usually, the first step in the pension part of a divorce case is a valuation, if there are other assets to allow an offset. Charts 1 and 2 show examples of valuations for active military mem- bers and reservists. Active military personnel may retire immediately upon reaching 20 years of active duty service, while reservists must reach age 60 for retirement, upon complet- ing 20 calendar years of reserve ser- vice. The reservist may reach 20 years of reserve service (typically 60 days a year) in his or her 40’s, and retire from service, but cannot collect the pension until age 60. Note that the ac- tive duty pension has a much higher present value, since it has both a 34 COMMENTATOR FALL 2012

Military Pensions is equal to reserve points for retire- single value is needed for settlement from preceding page ment pay as of date of filing. In the purpose, assuming 3 percent cola is second (active duty) valuation (Chart a reasonable, conservative, estimate. 2), the benefit accrued as of date of fil- Assuming the case involves the re- of service for purpose of benefit cal- ing is 3 year average of highest pay as servist , the marital present value is culation is equal to calendar years of of 10/1/2005 x (.025) x 13.4182 years then $150,575, under 3 percent cola. service. For reservists, years of service of service. If only the pensions are being offset, for purpose of benefit calculation is The reason a range of cost of living and the husband’s 401(k) is valued at determined by total points at retire- increases is illustrated is because we $50,000, the offset scheme is shown ment, divided by 360. Calendar years do not know the future. Since a pres- below (Chart 3). of service determines eligibility for ent value covers a period extending Note that even if there is insuffi- retirement (20 years), and also basic to many years in the future, it is not cient cash for an immediate offset, the pay, for a given rank, for both active reasonable to use the current military valuation can be used to determine duty and reserve personnel. Reserv- cost of living increases for a benefit the percentage award for purpose of a ists must meet the additional criterion that will be paid, on the average, Military Court Order (MCO), which is of age 60, for retirement eligibility, as for another 36 years (the life expec- the Armed Forces Retirement System discussed above. Since reservists are tancy of a 48 year old female being version of a QDRO. on part time duty, the accrued points 84 years). There is no reason to award 50%, just because there are insufficient for retired pay are based on how many Looking back over the last 30 years, assets for an immediate offset, if the days in a year they serve. the geometric mean of cost of liv- percentage method above is used. In the first (reservist) valuation ing increase is over 4 percent, and Under Boyett, the husband will re- (Chart 1), the benefit accrued as the fluctuation has been from zero ceive 33.40 percent of the benefit ac- of date of filing is determined by 3 to over 14 percent. This is why us- crued as of August 1, 2006, the date year average of highest pay as of ing current cost of living increase of filing. 8/1/2006($4,099 per month in this is not a logical assumption, and the case) x (.025) x 4489/360, where 4489 valuation above shows a range. If a MCO Formula Language Below are examples of sample MCO Chart 3 language that freeze the benefit as of date of filing, and freeze rank and service as of filing date, but allow the former spouse to share in passive sal- ary increase. The first example com- pletely freezes the benefit as of date of filing, since the pay as of filing date is used in the calculation. The second example freezes the rank and service as of filing date, but allows base pay as of retirement to be used in the cal- culation, protecting the former spouse from inflation eroding a fixed benefit. 1) The Former Spouse is awarded 33.40% of the disposable military retired pay the Member would have received had the Member become eligible to receive mil- itary retired pay with retired base pay of $4,099 and with 4489 reserve retirement points, on Au- gust 1, 2006. 2) The Former Spouse is awarded 33.40% of the disposable military retired pay the Member would have received had the Member fall 2012 COMMENTATOR 35 become eligible to receive mili- prove such an order. American Society of Pension Profes- tary retired pay on the date she In addition the flexibility of benefit sionals & Actuaries (ASPPA) and attained age 60, with 4489 reserve computation, the Survivor Benefit the American Academy of Economic retirement points, with 25 years Plan under the Armed Forces Re- and Financial Experts. Mr. Altschuler of service for basic pay purposes, tirement System is also flexible, and writes a nationally distributed news- and with rank E8. allows several options in an MCO, letter on pension & QDRO topics in although only one survivor annui- divorce, DIVTIPS ®, is contributing In the second formula, both the tant is allowed. These topics will be author to Valuing Specific Assets in number of points and calendar years covered in the following article, along Divorce and Valuation Strategies in of service are specified. This is be- with property settlement agreement Divorce (Wolters Kluwer/Aspen Pub- cause while the benefit computation language under Padot4 and Blaine5, lishers: NY) and is the new author is based on number of points divided as well as pitfalls and solutions re- of the benchmark textbook, Value of by 360, salary is based on both rank garding disability. Pensions in Divorce (Wolters Kluwer). and calendar years of service. In this In addition to writing numerous sub- case, the reservist accumulated 4489 Mark K. Altschul- stantive articles for legal publications points over a period of 25 years. Note er, M.S., is Actuary including American Journal of Fami- that the second formula does not and President of ly Law, he is a noted Continuing Legal specify pay, since the pay is not fixed Pension Analysis Education speaker on various QDRO as of date of filing. The number of Consultants, Inc., issues including the Federal and Mili- points (4489), years of calendar ser- (PAC), Coral Ga- tary Retirement Systems. He can be vice (25), and rank, all as of date of bles. Mr. Altschuler, reached at (305) 777-0468, (800) 288- filing, are fixed, but pay is computed a Family Law Sec- 3675 or [email protected]. at retirement. This allows the former tion Affiliate of The m. altschuler spouse to share in the pre-retirement Florida Bar, has Endnotes: cost of living pay increases. DFAS performed over twenty-five thousand 1 USFSPA, Public Law 97-252, Title 10 USC also allows coverture language based pension valuations and QDROs and 2 Boyett 703 So. 2nd 451 (Fla. 1997) on the entire benefit at retirement, is recognized nationwide for his ac- 3 Mansell 490 U.S. 581 (1989) but this does not follow the Boyett 4 Padot v. Padot, 891 So. 2d 1079 (Fla. 2nd tuarial knowledge and his ability DCA 2004) decision. However, if the parties agree to clearly explain pension division 5 Blaine v. Blaine, 872 So. 2d 383 (Fla. 4th to a coverture formula, DFAS will ap- concepts. His affiliations include the DCA 2004)

See details, Marital & Family Law pages 45-46. Certification Review Course Presented by the Family Law Section and the AAML Florida Chapter January 25-26, 2012 • Lowe’s Royal Pacific Resort • Orlando, FL

Friday, January 25, 2013 • Tax Considerations • Evidence in Family Law • Alimony & Modification • Preserve Your Case for Appeal • LUAU RECEPTION • Practice and Procedure • Bankruptcy Saturday, January 26, 2013 • All Sorts of Temporary Relief • Equitable Distribution • Domestic Violence/Criminal Issues In • Paternity Family Law Cases • Child Support & Modification • Mediation • Agreements • All Things Child-Related • Case Law Update • Ethics

Registration opens online at www.AAMLFlorida.org on September 14th. 36 COMMENTATOR FALL 2012

Out of the Ivory Tower and Into the Trenches: A Student’s Perspective on the Role of Clinical Education in Training a Litigator By Joel H. Feigenbaum, Coral Gables, FL

All of my romantic ideas about trial advocacy have Listings, which promulgate precisely which maladies officially disappeared. I recently won my first case in and frailties qualify as a disability under the law. federal court. Appearing before a federal Administra- I discerned exactly what I needed to prove and tive Law Judge in the Social Security Administration, I convinced the trier of fact that my client, an indigent assembled the most favorable evidence available to Haitian man, was permanently disabled and entitled zealously advocate for my client. I prepared a trial to benefits for the remainder of his life. As a legal brief outlining my client’s medical and vocational his- intern for the University of Miami School of Law’s tory, which highlighted the findings of his physicals, Health and Elder Law Clinic, I was provided the rare and argued that he suffers from multiple severe and opportunity to shed my first layer of greenness with medically determinable conditions. My client and I clients who knew of my inexperience and accepted it. participated in a mock hearing in which I presented From client interviewing, fact investigation, theory my case before my professors who were playing the development, brief writing, and pretrial practice, I roles of judge and expert witness. Both my client and have engaged in the full-range of tasks associated I found this simulated trial invaluable. Receiving with litigation as well as the full-range of emotions worthwhile feedback from my professors and col- that complement each. leagues gave me the confidence and poise necessary to secure a judgment that makes my client financially As the ultimate training ground for an aspiring liti- independent for the first time in nearly a decade. gator, the Clinic afforded me the extraordinary and atypical chance to argue a real case as a 2L. A trial Until recently, my legal education has consisted of by fire of sorts, the experiential, practical learning I law school, not lawyering school. I firmly believe my have participated in has allowed me to provide direct experiences in the Clinic thus far have effectively representation to clients under the supervision of bridged the gap between the study and practice of full-time faculty. While I found the actual courtroom law. proceedings unquestionably the most rewarding and exhilarating aspect of the litigation process, perhaps Joel Feigenbaum is a Juris Doc- the most valuable experience I gained was in the tor Candidate at the University of weeks leading up to trial. Miami School of Law and obtained Prior to my hearing I was immersed and engaged his Bachelor of Arts in History at in not only a subject matter I was utterly unfamiliar the University of Richmond. He is with, but also a forum court with which I was untried. the Executive Managing Editor of In much the same way personal injury or medical the University of Miami National malpractice practitioners prepare for trial, to effec- Security and Armed Conflict Law tively advocate on behalf of my client I had to become j. Feigenbaum Review. After serving as a legal well-versed in the debilitating ailments with which intern in the University of Miami he was suffering. I poured over hundreds of pages Health and Elder Law Clinic during the 2011-2012 worth of medical records and evaluations chalk full academic year, he will return next year under a fel- of unfamiliar jargon and shorthand, comparing them lowship. Joel is a member of the Florida Bar’s Student to the Social Security Administrations, Blue Book Division. fall 2012 COMMENTATOR 37

What Every Divorce Lawyer Needs to Know About the Florida Administrative Code When Evaluating a Forensic Psychologist’s Report By Christopher R. Bruce, North Palm Beach, FL

Nearly all family law practitioners of professionals can conduct a social clude all of the following elements: (1) will eventually be confronted with a investigation. A social investigation evaluations of both parents, or legal case where the parties do not agree and study, when ordered by the court, guardian including observations, test on parental responsibility and time- shall be conducted by qualified staff results, and impressions; (2) evalua- sharing and it becomes necessary of the court; a child-placing agency tions of the children identified in the to critique an evaluation made by a licensed pursuant to s. 409.175; a court order including observations forensic psychologist. When perform- psychologist licensed pursuant to and where appropriate, test results ing a review of a psychologist’s report chapter 490; or a clinical social work- and impressions; (3) description of it is not enough for the family law er, marriage and family therapist, or interactions between each parent or practitioner to be familiar with the mental health counselor licensed pur- and each child identi- Family Law Rules of Procedure and suant to chapter 491.3 Although the fied in the court order; (4) collateral Chapter 61. To conduct an effective remainder of this article focuses on sources of information as needed; cross examination, the practitioner the standards applicable to psycholo- and (5) requests for medical records 4 must also have a thorough under- gists, arguably said standards should as needed. The psychologist should standing of Florida Administrative be followed by anyone authorized to document any failure to include the 5 Code § 64B19-18.007. This code sec- conduct a social evaluation. above referenced elements. tion cannot be ignored as it governs the scope and methodology a psy- Florida Administrative Code Conflicts of Interest chologist is required to follow when When a licensed psychologist con- The psychologist who has accepted conducting a court ordered parenting ducts an evaluation in a custody pro- an appointment as an evaluator shall plan evaluation. ceeding it is paramount to understand not serve as guardian ad litem, me- an additional set of rules found in diator, therapist or parenting coordi- Authorization for an the Florida Administrative Code gov- nator regarding the children in the Evaluation erns the methodology and scope of the case.6 Likewise, it is a conflict of inter- psychologist’s evaluation and report. est for a psychologist who has treated In any action where the parenting These rules are found in Fla. Admin. a minor or any of the adults involved plan is at issue because the parents § 64B19-18.007, which is entitled “Re- in a custody or visitation action to are unable to agree, F.S. 61.20(1) au- quirements for Forensic Psychological perform a forensic evaluation for the thorizes the court to order a social Evaluations of Minors for the Purpose purpose of recommending with which 1 investigation and study concerning of Addressing Custody, Residence or adult the minor should reside, which all pertinent details relating to the Visitation Disputes”. Said code section adult should have custody, or the child and each parent. The court may also incorporates the “APA Guidelines degree of timesharing allowed.7 That consider the information contained for Child Custody Evaluations in Di- said, and so long as confidentiality in the study in making a decision on vorce Proceedings” and “APA Specialty is not violated, a treating psycholo- the , and the technical Guidelines for Forensic Psychologists”. gist may provide a court, or a men- rules of evidence do not exclude the The remainder of this article is ded- tal health professional performing 2 study from consideration. In addi- icated to explaining the minimum a forensic evaluation, with factual tion to F.S. 61.20, practitioners must standards in the Florida Adminis- information about the minor derived also be aware of the rules regarding trative Code that a psychologist is from treatment, but shall not state the evaluation of a minor child set required to follow when conducting a an opinion about custody, residence forth in Fla. Fam. L. R. P. 12.363. court ordered parenting plan evalu- or visitation disputes.8 ation. Professionals Authorized APA Guidelines to Conduct a Parenting Requirements of Fla. Admin. § 64B19-18.007(2) in- Plan Evaluation Psychologist’s Report corporates the 1994 American Psy- F.S. 61.20(2) provides a broad body The psychologist’s report shall in- continued, next page 38 COMMENTATOR FALL 2012

only general personality assessments consultation and focal literature re- Forensic Psychologist without attempting to place results in view. from preceding page the appropriate context. Guideline #8 The scope of the evaluation is determined by the chological Association Guidelines for Guideline #4: The role of the psy- evaluator, based on the nature of Child Custody Evaluations in Divorce chologist is that of a professional the referral question. 9 Proceedings (“APA Guidelines”). expert who strives to maintain an Once the referral question is es- These guidelines are supposed to ap- objective, impartial stance. tablished by the court, the psycholo- ply only in child custody evaluations Psychologists should monitor their gist is to determine the scope of the involving disputes over decision mak- own values, perceptions, and reac- evaluation. Although comprehensive ing, caretaking and access and do not tions actively and seek peer consul- child custody evaluations generally apply to custody evaluations taken in tation in the face of potential loss of require an evaluation of all parents other contexts, such as child protec- impartiality. In conducting evalua- and children, as well as observations tion matters. The APA Guidelines are tions psychologists should maintain of interactions between them, the informed by the American Psycholog- vigilant maintenance of professional scope of the assessment in a particu- ical Association’s “Ethical Principles boundaries and adhere to standard lar case may be limited to evaluating of Psychologists and Code of Con- assessment procedures throughout the parental capacity of one parent duct”. Although the APA Guidelines the evaluation process to be in the without attempting to compare the are stated to be only aspirational, best position to indentify variations parents or to make recommendations. said guidelines are made mandatory that may signal impaired neutrality. for Florida licensed psychologists Guideline #11: The psychologist performing a court ordered parent- Guideline #5: The psychologist uses multiple methods of data ing plan evaluation by virtue of Fla. gains specialized competence. gathering. Admin. § 64B19-18.007(2). In parenting plan evaluations, gen- Psychologists should employ opti- eral competence in the clinical assess- Described here are several ment of children, adults, and families mally diverse and accurate methods of the more notable APA is necessary but insufficient in and for addressing questions raised in Guidelines10: of itself. An evolving and up-to-date a specific child custody evaluation. Guideline #1: The primary pur- understanding of child and family Direct methods of data gathering pose of the evaluation is to assess development, child and family psy- include psychological testing, clini- the best psychological interests of chopathology, the impact of relation- cal interview, and behavioral evalu- the child. ship dissolution on children, and the ation. Psychologists should attempt This factor is similar to the best in- specialized child custody literature to gain access to documentation from terest of the child standard described is critical for sustaining competent a variety of sources (e.g., schools, in F.S. § 61.13. Psychologists should practice. Furthermore, psychologists health care providers, child care pro- weigh and incorporate overlapping should become and remain famil- viders) and frequently make contact factors including family dynamics iar with applicable legal standards with members of the extended family, and interactions; cultural and envi- including Florida’s laws governing friends and acquaintances, and other ronmental variables; relevant chal- adjudication of parental responsibil- collateral sources when the resulting lenges and aptitudes for all examined ity and timesharing disputes. information is likely to be relevant. parties; and the child’s educational, physical, and psychological needs. Guideline #6: The psychologist is Guideline #13: The psychologist aware of personal and societal does not give any opinion regard- Guideline #3: The focus of the biases and engages in nondis- ing the psychological functioning evaluation is upon parenting criminatory practices. of any individual who has not capacity, the psychological and Psychologists must recognize their been personally evaluated. developmental needs of the child, own biases and if they cannot be Psychologists cannot give opinions and the resulting fit. overcome, the psychologist must on what they have not observed. This The most useful and influential withdraw from an evaluation. When guideline, however, does not preclude evaluations focus on skills, deficits, an examinee possesses a cultural, ra- a psychologist from reporting what values, and tendencies relevant to cial, or other background with which an evaluated individual has stated parenting attributes and a child’s the psychologist is unfamiliar, the or from addressing theoretical issues psychological needs. By contrast, only psychologist should prepare for and or hypothetical questions so long as minimal weight should be given to conduct the evaluation with the ap- the limited basis of the information parenting plan evaluations that offer propriate degree of informed peer is noted. fall 2012 COMMENTATOR 39

Guideline #14: Recommendations, if any, are based on what is in the best psychological interests of the Advertise in the Commentator! child. Ad Size Cost Recommendations should be based 1/3 page– (2.25 x 9.25 in.) $ 275.00 1/2 page – (7.25 x 4.5 in.) $ 350.00 on sound psychological data and ad- 2/3 page – (4.75 x 9.25 in.) $ 550.00 dress the psychological best interest Full Page – (7.25 x 9.25 in.) $ 680.00 of the child. Any recommendations Back Cover 1/2 page – (7.25 x 4.5 in.) $1,050.00 should be based on articulated as- Your RGB and / or black & white advertisement may be submitted electronically sumptions, interpretations and in- as a .jpg, .tif or pdf file, at 300 ppi or larger. Scannable camera-ready copy is ferences that are consistent with es- also acceptable. Ads in the printed mailed version will be in black & white only, tablished professional and scientific while ads in the electronic version posted on the Family Law Section website (www.familylawfla.org) may be in color upon request. standards. The Family Law Commentator will accept all advertising that is in keeping with the publication’s standards of ethics, legality and propriety, so long as such Christopher R. advertising is not derogatory, demeaning or contrary to The Florida Bar rules Bruce is a partner and procedure; Standing Board Policy 13.10 (e). The editor reserves the right with the law firm of to place the submitted ad in an issue as space permits during the layout stage. Nugent Zborowski Payment is by check or by credit card and must accompany the proposed ad and & Bruce in North signed agreement below. Payment will be accepted on a per-issue basis only. Palm Beach, Flori- For further information, contact Vicki Simmons, Section Administrator, 850-561- da. The firm’s prac- 5650 or [email protected] tice is limited to divorce and family Name: ______c. bruce law. Company Name: ______Fla. Bar No. or Fla. Bar Customer No.: ______Endnotes: 1 The “social investigation and study” referred Address:______to in F.S. 61.20 is often referred to as a “parent- ______ing plan evaluation.” Although less common Contact:______than a full blown social investigation, the court may also order the examination of only a child, Phone No. ____-____-______Fax No. ____-____-______and not the entire family. Email:______2 Stat. §61.20(1) (2011). 3 Fla. Stat. §61.20(2). METHOD OF PAYMENT (CHECK ONE): 4 Fla. Admin. Code § 64B19-18.007 (2)(e) Item # 810007 (2011). o Check enclosed made payable to The Florida Bar (mail to the address below) 5 Id. o Credit Card: __ MASTERCARD __ VISA __ AMEX __ DISCOVER 6 Fla. Admin. Code § 64B19-18.007 (2)(b). (Fax completed form to 850-561-9427.) 7 Fla. Admin. Code § 64B19-18.007 (3). Card No. : ______8 Id. Exp. Date _____/______(MONTH/YEAR) 9 Fla. Admin. Code § 64B19-18.007 (2)(b) incorporates the 1994 version of the guidelines, I hereby agree to comply with all of above procedures and policies as set forth which were later slightly updated and supple- by the Family Law Section of The Florida Bar . mented with commentary in 2009. The plain Name on Credit Card:______language of Fla. Admin. Code § 64B19-18.007 requires Florida psychologists adhere to the Billing Address:______1994 APA Guidelines, but the 2009 supplement Signature:______would certainly seem to be instructive. Date: ______10 Explanations of the selected APA Guide- lines appearing in this article are taken largely Mail or Fax to: FAMILY LAW SECTION, The Florida Bar from the 2009 APA Guidelines. See American Attention: Vicki Simmons, Program Administrator Psychological Association, Guidelines for Child 651 E. Jefferson Street Custody Evaluations in Family Law Proceed- Tallahassee, FL32399-2300 ings, http://www.apa.org/practice/guidelines/ FAX 850-561-9427 child-custody.pdf (last visited April 18, 2012). 40 COMMENTATOR FALL 2012 Enforcement: The Civil Contempt Conundrum By Brian Karpf, Miami, FL

The Court’s contempt power is a himself of assets and property. Direct civil contempt initially need only es- potent tool. It is typically an enforce- criminal contempt occurs where the tablish that (A) a prior order directs ment mechanism of last resort, but underlying conduct was actually seen the opposing party to pay the support one used to both maintain family or heard by the Court, in the presence amount, and (B) that the obligor has law principals and coerce compliance of the Court - versus indirect criminal failed to make the required payment. with rulings. When an individual contempt – where the underlying The burden of proof then shifts to attempts to avoid an obligation of conduct occurred outside of the Court. the obligor who must dispense with support – whether it be alimony or Even in family law cases, criminal the presumption of ability to pay by child support, or even an award of contempt proceedings are governed showing that, since the previous or- attorney’s fees – its contempt pow- by Florida Rules of Criminal Proce- der or judgment, they no longer have er is often times the Court’s only dure (Rule 3.830 for Direct Crimi- the ability to meet their support obli- means to compel deficient obligors nal Contempt and Rule 3.840 for gations, due to circumstances beyond to fulfill their obligations. Notably Indirect Criminal Contempt). Since their control. If the obligor is found to absent from this power, though, is the proceeding is punitive in nature, be in civil contempt, the Court must the Court’s ability to coerce compli- potential criminal contemnors are determine which tool(s) it will utilize ance with its equitable distribution entitled to the same constitutional to coerce compliance. If incarcera- awards. This discrepancy serves as due process safeguards as defendants tion is contemplated, when determin- an arguable “flaw in the system,” one in typical criminal proceedings. 471 ing the contemnor’s ability to purge which creates a double standard and So. 2d at 1277. themselves of contempt, the court all but promotes a party unsatisfied Conversely, the purpose of civil con- can look at all assets from which the with their obligations pursuant to tempt proceedings is to obtain com- purge amount could be satisfied. Get an equitable distribution award to pliance by, rather than punish, the creative. Look for less obvious sources simply ignore it, while essentially contemnor. The sanction of incarcera- than just income or bank accounts: forcing the recipient of that award to tion is still available in civil contempt Sick leave or vacation time that has incur further legal fees and endure proceedings, but may be used only a value which can be tapped, IRA ac- more litigation at a time when the when the contemnor has the ability counts, Federal Income Tax refunds, litigation was intended to cease. It to comply with the underlying order security deposits, storage units, tools, kicks a critical element of family law to be purged of contempt (this ability automobiles, jewelry, and electronics. cases out of the realm of Family Law to comply being the contemnor’s “key Is the obligor a business owner? If so, Court, relegating the obligee to be to his cell”). Id. Civil Contempt in consider their inventory, equipment, the “cat” and the obligor “mouse” in Support Matters is actually codified and furnishings. If incarceration is a chase for equity. in Rule 12.615, Florida Family Law impossible, other coercive alterna- Rules of Procedure, and is the focus tives are available. Typically, the end What Is Contempt? of this article. result is the contemnor’s satisfaction In general, criminal contempt is of their support obligations, due to used to punish an individual for an How Contempt for the overt pressure which the Court intentional violation of a court order Enforcement Purposes can employ to ensure that its support and to vindicate the court’s author- Works orders are enforced. This is why the Court’s contempt power is so crucial ity. Bowen v. Bowen, 471 So. 2d 1274 Family law support matters are in family law cases. (Fla. 1985). As such, one’s ability to often enforced through contempt. The comply with the underlying order is underlying order requiring a party to irrelevant. Criminal contempt pro- pay support is premised on a finding Where Contempt Falls Far ceedings are appropriate when it can that they have an ability to pay it. Short be established that the party in de- In subsequent cases, this creates a In the majority of circumstances, fault has continually and willfully presumption that the party still has property settlement awards are not neglected his support obligations, an ability to pay the ordered amount. enforceable by civil contempt. This or has affirmatively acted to divest Accordingly, the party moving for is most troubling in the case of an fall 2012 COMMENTATOR 41 equitable distribution award requir- of the award relies on such monies an indirect criminal contempt pro- ing the payment of money, e.g., an as a “nest egg”– whether it be for ceeding, this is not much conciliation equalizing payment, the payment extraordinary expenditures, a down to the party left short changed. of a marital debt, or the payment payment on a home, etc. Moreover, There is an exception to this flaw: of funds from a bank account. The the Court necessarily took that award where the equitable distribution basis for this stems from the Florida into consideration in determining an award is akin to an act – rather than Constitution’s prohibition against alimony or child support obligation simply the payment of money – civil imprisonment for non-payment of a (e.g., the interest income which would contempt is available. In Roth v. Roth, debt. Equitable distribution awards be earned on each spouse’s respective 973 So2d 580 (Fla 2d DCA 2008), the are typically deemed just that – pay- share of the monies). Yet, the party Court distinguished the general propo- ment of a debt – rather than in the who fails to deliver such funds to the sition that property division awards nature of support. other, in defiance of the Court’s eq- may not be enforced by contempt from Of course, awards of child support uitable distribution award, is essen- those acts which do not necessarily in- and alimony are enforceable by civil tially given a windfall, and the other, volve the payment of money (in which contempt. Even an award of attor- short changed. Take, for instance, the case a trial court may enforce property ney’s fees from one former spouse to situation where an alimony recipient division award through contempt). another is considered in the nature is in sole possession of the parties’ Such examples include failure to ex- of support and thus is enforceable by marital funds, and is ordered- but ecute and deliver various documents civil contempt. See, e.g., Fishman v. refuses - to pay the alimony payor necessary to release a former spouse’s Fishman, 656 So. 2d 1250 (Fla. 1995) their share thereof. The Family Court interest in a note and mortgage, failure This holds true even where the fees cannot coerce the payee’s compliance to name a former spouse as beneficiary incurred have nothing to do with with civil contempt. Yet, the payor of a certain life insurance policy as a support award, such as those in- remains obligated to fulfill their ali- required by the Court, and a former curred while enforcing of a timeshar- mony payment, and is stuck incurring spouse’s refusal to sign a sales contract ing order. In fact, the court may use even more legal fees as a “creditor” to when the sale of certain marital real contempt to enforce orders awarding obtain the funds to which he or she estate at a specific price was ordered in attorney’s fees even in cases with no is entitled (which may not even exist the Final Judgment. Id. Each of these children or alimony awards. Wertkin anymore). What’s more, the calcula- examples are, in part, based upon Rule v. Wertkin, 763 So. 2d 465 (Fla. 4th tion of that alimony obligation took 1.570(c)(2), Florida Rules of Civil Pro- DCA 2000)Conversely, most equitable into consideration each party’s antici- cedure, which permits the Court to distribution awards are considered pated share of such monies. enforce an order requiring the per- judgments solely for the payment of Moreover, the Family Court judge formance of an act through contempt. money and thus are left to be enforced – familiar with the case, parties, and With regard to an equitable distribu- by obtaining and enforcing a mon- the circumstances leading to its or- tion award calling for the payment of ey judgment, removing the former der - is stripped of the ability to ef- money, an analogy can be made – and spouses from the family law arena fectuate compliance with its ruling. an Order can be worded – to require on this one discrete issue – despite it After issuing a money judgment, the the physical act of a transfer or, even arising from the Family Court - and Court’s role is essentially complete in better, that a party execute certain instead placing them in the precari- the process. Then the chase begins. paperwork effectuate a transfer. This ous positions of debtor and creditor. Of course, pursuing a former spouse at least provides an argument that the While the basis for this dichotomy as such (from the position of debtor/ obligor’s failure to comply is a failure is good in theory, its application to creditor) is difficult, costly, time con- to perform an act, and thus can be family law cases is defunct. Gener- suming, and often fruitless. A “paper enforced through civil contempt. See, ally speaking (and quite ironic to the judgment” can be obtained, which is e.g.,Burke v. Burke, 336 So.2d 1237(Fla. Court’s inability to coerce compli- just the start of the chase. While the 4th DCA 1976)(although general rule ance therewith), equitable distribu- enforcing party can seek fees against is that contempt cannot be used to en- tion awards are not dischargeable the other for their efforts, actually col- force payments under property settle- in bankruptcy. They are the crux of lecting is likely just as difficult as ob- ment agreement, it may be employed divorce proceedings. No doubt, one taining the underlying awards itself. where a party fails to execute docu- spouse’s receipt of capital assets from The debtor is also left with ample time ments as part of divorce) and Firestone the other is often times the primary to spend or conceal the other’s share v. Ferguson, 372 So.2d 490 (Fla. 3d (if not sole) award to that spouse. It is of the award. While the intentional di- DCA 1979)(same). Compare Fisher axiomatic that a monetary equitable vesture of assets – and hence the abil- v. Fisher, 787 So.2d 926, 930 (Fla. 2d distribution award is inextricably in- ity to satisfy the Court’s award – is DCA2001) (Civil contempt not avail- tertwined with support. The recipient punishable by incarceration through continued, next page 42 COMMENTATOR FALL 2012

Enforcement S.W. 2d 798 (Mo. Ct. App.)(“An order can Bar Associa- from preceding page to pay money as a part of the division tion, and presently of marital property, like an order to the Liaison between pay maintenance or child support, the Family Law creates an obligation arising from Section and Young able where the husband failed to pay the existence of marital status and Lawyers Division. the wife for share professional football is not a debt in the sense used in the He was recently re- tickets) and Filan v. Filan, 549 So.2d constitution.”); and South Dakota: appointed to a sec- 1105 (Fla. 4th DCA 1989)(Former Hus- Hanks v. Hanks, 334 N.W. 2d 856 (Da- ond two-year term band could not be held in contempt kota 1983)(The Court may enforce its B. KARPF on the Family Law for his failure to pay off mortgage on equitable division of property awards Section’s Executive Council. Mr. Kar- marital home) through contempt, including those pf has also served as chairman and A number of other states avoid this requiring the payment of money from vice-chairman of multiple ABA Fam- issue by logically utilizing contempt one party to the other.) ily Law Section committees, as vice- to effectuate all orders contained in A complete fix to Florida’s problem chairman of the Family Law Com- a dissolution decree. See, e.g., Ohio: is simple and necessary: Keep family mittee of the ABA YLD, and is an Harris v. Harris, 390 N.E. 2d 789 law issues in Family Law Courts, and assistant editor of the American Bar (Ohio 1979)(”For purposes of enforc- allow family law judges to enforce all Association’s YLD Affiliate Newslet- ing a decree entered in a domestic of their orders. An equitable distribu- ter. He has served as a State Delegate relations proceeding, provisions relat- tion award is far different – and has far on behalf of The Florida Bar to the ing to the division of property as con- greater implications – than a typical ABA Young Lawyers Division Assem- tained within a separation agreement creditor seeking repayment of a debt. bly. Mr. Karpf has lectured, moder- do not constitute a “debt” within the These are families, not businessmen. ated, and produced programs on a meaning of that term as used in con- range of topics on behalf of the ABA stitutional inhibition against impris- Brian Karpf, Esq. is an associate Family Law Section, including Social onment for a debt.” This is because at the law firm of Young, Berman, Networking for the Family Lawyer: “the requirements of a property divi- Karpf, & Gonzalez, P.A., with offices Evidence, Research, Marketing, Eth- sion are not in the nature of ordinary in Miami and Weston, Florida. His ics & More; Identifying and Solving money judgments or business debt.”); practice is limited primarily to family Tax Issues in Family Law Cases; and Missouri: Ellington v. Pinkston, 859 law. Mr. Karpf is active in the Ameri- Evidence for Family Lawyers.

FloridaBarCLE

Audio CD / Family Law Section Legislative Update 2011 Video DVD #1281 products available

The Collaborative 28 Practice Areas • Over 200 Programs Practice of Law in Family Cases For a complete list of CD’s/DVD’s, #1161 visit www.floridabar.org/CLE. Click “Order Online” and search by

City, Course Number, Sponsor or Title. Case Law Update 2011: Family Law #1304 CD’s and DVD’s come with Electronic Course Materials unless otherwise indicated. fall 2012 COMMENTATOR 43

Florida Family Law for Gay, Lesbian, Bi-Sexual and Transgendered Persons By William D. Slicker, St. Petersburg, FL

In Florida, the biological parents or transgender persons who enter same-sex relationship. of a child have primary rights to pa- into relationships without a tradition In the 1960’s the concept of psy- rental responsibility (custody) and marriage will face an uphill battle chological parent arose. A psyhcho- time-sharing rights (visitation). For a for parental rights if they are not the logical parent was not a biological or same-sex oriented person, this means biological parent. adoptive parent, but was thought of that their rights to time with a child In 1976, Florida passed a statute by the child as a parent due to the that they have parented may depend that prohibited clerks of the courts adult taking on the responsibilities on whether they entered into a tradi- from issuing marriage licenses unless of a parent with the child. However, tional marriage and then “came out” one party is male and the other is fe- Florida’s courts did not adopt the psy- later in life or whether they bypassed a male. Sec. 741.04, Fla. Stat. In 1997, chological parent concept as a basis to traditional marriage and entered into Florida enacted a statute that pro- claim parental rights by step-parents. a same-sex relationship earlier in life. hibits recognition of same-sex mar- Meeks v. Garner, 598 So. 2d 261 (Fla riages even if the couple was married 1st DCA 1992); Taylor v. Kennedy, Later-in-Life Decision in another jurisdiction where such a 649 So. 2d 270 (Fla. 5th DCA 1994). The general rule in Florida is that marriage was legal. Sec. 741.212, Fla. This denial of standing was extended a parent’s sexual orientation alone Stat. In 2008, Florida amended its to the non-biological partner in a is not grounds to deny that parent state constitution to define marriage lesbian relationship so that she could parental responsibility (custody) as the legal union between one man not seek custody or visitation. Music or time-sharing rights (visitation). and one woman. Art I § 27, Fla. Const. v. Rachford, 654 So. 2d 1234 (Fla. 1st There must be a showing that the The statute prohibiting marriage DCA 1995); Kazmierazak v. Query, parent’s sexual conduct has a direct between persons of the same sex has 736 So. 2d 106 (Fla. 4th DCA 1999). adverse impact on the child. See Din- been interpreted by a Florida appel- Even a written agreement between kel v. Dinkel, 322 So. 2d 22 (Fla. 1975) late court as prohibiting marriage two lesbians, which provided that dealing with a parent involved in an between a woman and a transsexual even though only one of them was the adulterous relationship. who had been born a woman, but biological parent of a child through Accordingly, a woman who marries medically altered into a male. The artificial insemination, that they a man, has children, and then leaves court chose to follow the decisions of would both be treated as recipients the marriage to pursue a lesbian rela- other states that had refused to rec- and as co-parents, was not recognized tionship may not be denied parental ognize transsexual rather by a Florida court as sufficient to give rights solely because she is lesbian than follow the view of an Australian the non-biological partner standing to Jacoby v. Jacoby, 763 So. 2d 410 (Fla. Court that has recognized a trans- seek custody or visitation. It was held 2d DCA 2000). sexual marriage. The Florida court to be an unenforceable agreement. Likewise, a bisexual woman who held that a person’s sex for purposes Wakeman v. Dixon, 921 So. 2d 669 has children during a marriage and of marriage is determined by their (Fla 1st DCA 2006). then gets divorced, may not be denied biological sex at birth. Kantaras v. Recently, there has been a case in parental rights solely due to her bi- Kantaras, 884 So 2d 155 (Fla. 2d which an appellate court found (by a sexuality. Maradie v. Maradie, 680 So. DCA 2004). two-to-one split) that a lesbian who 2d 538 (Fla. 1st DCA 1996). The statute prohibiting recognition was the biological mother and her Further, a bisexual woman who of a same-sex marriage performed in lesbian partner who was the birth marries a man, has children, and then another state has been upheld by a mother both had parental rights and lives in a ménage a trois, may not be Federal district court. Wilson v. Ake, responsibilities to the child born out denied parental rights in a divorce 354 F. Supp 2d 1298 (M.D. Fla. 2005). of that relationship. In that case, one solely due to her sexual conduct. Pack- In the absence of a valid marriage, woman provided an egg that was ar- ard v. Packard, 697 So. 2d 1292 (Fla. there have been a variety of legal tificially fertilized by a reproductive 1st DCA 1997). theories that have sought court de- donor and then implanted into the termination as to who has a right to other woman who carried the fetus Earlier-in-Life Decisions parental responsibility (custody) and and delivered the child. T.M.H. vs. In Florida, gay, lesbian, bi-sexual, time-sharing rights (visitation) in a continued, next page 44 COMMENTATOR FALL 2012

Florida Family Law In re Adoption of Doe, 16 FLW Supp about abuse in lesbian relationships, from preceding page 49 (Fla. 11th Cir, 2008); In re Doe, 16 read Naming the Violence: Speak- FLW Supp 75, (Fla. 16th Cir. 2008). ing Out About Lesbian Battering by Florida law only permits Kerry Lobel, Free Press, 1986. D.M.T., ___ So. 3d ____,. Case 5D09- by (1) a husband and wife jointly (2) If you are suffering from domestic 3559 (Fla. 5th DCA 2011). one unmarried adult or (3) a step- violence or know someone who is, To view a young man raised by parent married to one of the biologi- please contact your local domestic two lesbians in Iowa speaking to cal parents. Sec. 63.043, Fla. Stat. violence shelter. legislators, go to http://abcnews. There are other states that have al- go.com/Health/zach-wahls-son-les- lowed the same-sex partner to adopt Copyrighted by William D. Slicker bians-speech-anti-gay-legislators/ the child of the biological parent. A story?id=12832200 Florida appellate court has recog- William D. Slick- nized that type of out-of-state adop- er practices fam- Adoption tion and granted parental rights to ily law, bankruptcy the adopting same-sex partner. Em- Florida Statute 63.042(3) prohibit- and estate planning bry v. Ryan, 11 So. 3d 408 (Fla. 2nd ed adoption by same sex persons. The and administration DCA). statute survived an earlier attempt to in St. Petersburg, Therefore, perhaps the safest way have the statute declared unconstitu- Florida. Mr. Slicker for a non-biological parent to protect tional Lofton v. Secretary of Dept. of has authored over his or her parental rights is to adopt Children & Family Services, 358 F. w. slicker 20 published arti- the child in a state that allows such 3d 804 (11th Cir. 2004), rehearing en cles. He has served banc denied, 377 F.3d 1275 (11th Cir. an adoption. on the Board of CASA and has been 2004). However, Florida courts have awarded the Lighting the Way Award subsequently found the statute to Domestic Violence by the Florida Coalition Against Fam- be unconstitutional. Florida Dept of Domestic violence happens in same- ily Violence. He currently serves on the Children & Families v. Adoption of X. sex relationships just as it does in op- board for Directions for Living and X. G., 45 So. 3d 79 (Fla. 3d DCA 2010); posite sex relationships. For a book the Pinellas Guardian Association.

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Board certified lawyers are legal experts dedicated to professional excellence. FloridaBar.org/certification CLE SECTION fall 2012 COMMENTATOR 45 CLE SECTION 46 COMMENTATOR FALL 2012

ridinG tHE tidES OF FaMiLy LaW

Friday, January 25, 2013 3:05 p.m. – 3:50 p.m. Ethics 8:00 a.m. – 8:10 a.m. Welcome and Announcements preserving the eternal flame Jonathan Schiller, Ft. Lauderdale 8:10 a.m. – 8:45 a.m. Evidence in Family Law steering toward sunrise 3:50 p.m. – 4:35 p.m. Tax Considerations Judge Richard Weis, Tampa sheltering trinkets David L. Manz, Marathon 8:45 a.m. – 9:15 a.m. Preserve Your Case for Appeal safeguarding the shore 4:35 p.m. – 5:15 p.m. Alimony & Modification Natalie Baird, Orlando prevailing winds and tides Thomas L. Duggar, Tallahassee 9:15 a.m. – 10:25 a.m. Practice and Procedure navigating by the stars 5:30 p.m. – 7:30 p.m. LUAU RECEPTION Jeffrey Weissman, Ft. Lauderdale Saturday, January 26, 2013 10:25 a.m. – 11:15 a.m. Bankruptcy suffering sun-baked terrain 8:25 a.m. – 8:30 a.m. Announcements Andrew Salvage, Ft. Lauderdale 8:30 a.m. – 9:25 a.m. Equitable Distribution 11:15 a.m. – 12:00 p.m. All Sorts of Temporary Relief trading shifting landscapes Mark Sessums, Lakeland Eddie Stephens, West Palm Beach 9:25 a.m. – 9:55 a.m. Paternity 12:00 p.m. – 1:00 p.m. LUNCH born of fire Jorge Cestero, West Palm Beach 1:00 p.m. – 1:35 p.m. Domestic Violence/Criminal Issues In Family Law Cases 9:55 a.m. – 10:50 a.m. Child Support & Modification tempering volcanic activity setting sail to explore Mark O’Mara, Orlando Susan Savard, Orlando

1:35 p.m. – 2:05 p.m. Mediation 10:50 a.m. – 11:25 a.m. Agreements lying in protected rainshadows keeping the peace Judge Raymond McNeal, Ocala Luis Insignares, Naples

2:05 p.m. – 3:05 p.m. All Things Child-Related 11:25 a.m. – 12:55 p.m. Case law update born of sea canoeing toward sunset Terry L. Fogel, Miami Cynthia Greene, Miami

Registration opens online at www.aaMLFlorida.org on September 14th. CLE SECTION fall 2012 COMMENTATOR 47

The Florida Bar Continuing Legal Education Committee and The Family Law Section present 4.0 Hours of ETHICS now The Shield and the Sword: available on Protecting Yourself and Your Client audio CD! in the Practice of Family Law COURSE CLASSIFICATION: INTERMEDIATE LEVEL Recorded Friday, October 12, 2012 Course No. 1474R AUDIO CD / DVD ORDER FORM

8:15 a.m. – 8:35 a.m. 11:00 a.m. – 12:00 p.m. 2:45 p.m. – 3:00 p.m. Late Registration Can You Keep a Secret? Must you?! Break The Lawyer’s Duty to Protect 8:35 a.m. – 8:45 a.m. Confidences/Privilege/Work Product 3:00 p.m. – 3:45 p.m. Opening Remarks Evan R. Marks, Miami Electronic Data Discovery (E-Discovery) C. Debra Welch, West Palm Beach Mark O’Mara, Orlando 12:00 p.m. – 1:15 p.m. 8:45 a.m. – 9:45 a.m. Lunch (included in registration fee) 3:45 p.m. – 4:30 p.m. Privacy Issues in the 21st Century: Avoiding Bar Grievances and Facebook, Internet and Social Media 1:15 p.m. – 2:00 p.m. Malpractice Complaints Mark O’Mara, Orlando Extortion, Coercion, and other Guerilla Moderated by David A. Garfinkel, Tactics Jacksonville 9:45 a.m. – 10:45 a.m. David L. Hirschberg, Fort Lauderdale Honorable Emily Peacock, Tampa Ethics of Dealing with Difficult People Barry Rigby, Orlando Ronald Reed, Tampa 2:00 p.m. – 2:45 p.m. Jodi Thompson, Bar Counsel, Tampa Surviving the Stress of Practicing 10:45 a.m. – 11:00 a.m. Family Law Break Dr. Deborah O. Day, Winter Park

CLE CREDITS

CLER PROGRAM CERTIFICATION PROGRAM (Max. Credit: 6.5 hours) (Max. Credit: 5.0 hour) General: 6.5 hours Ethics: 4.0 hours Marital & Family Law: 5.0 hours

TO ORDER AUDIO CD, DVD OR COURSE MATERIALS BY MAIL, SEND REFUND POLICY: A $25 service fee applies to all requests for THIS FORM TO The Florida Bar, Order Entry Department: 651 E. Jefferson refunds. Requests must be in writing and postmarked no later than Street, Tallahassee, FL 32399-2300 with a check in the appropriate amount two business days following the live course presentation or receipt of payable to The Florida Bar or credit card information filled in below. If you product. Registration fees are non-transferrable, unless transferred to a colleague registering at the same price paid. have questions, call 850/561-5831. TO ORDER AUDIO CD OR COURSE MATERIAL, fill out this order Name ______Florida Bar # ______form, including a street address for delivery. Please add sales tax Address ______to the price of audio CD. Tax exempt entities must pay the non- City/State/Zip ______section member price. Please include sales tax unless ordering party is tax-exempt or a Phone # ______nonresident of Florida. If this order is to be purchased by a tax-exempt Email Address ______organization, the audio CD must be mailed to that organization and VS: Course No. 1474C not to a person. Include tax-exempt number beside organization’s E-mail address is required to receive electronic course material and will name on the order form. only be used for this order. ❑ COURSE MATERIAL (1474M) METHOD OF PAYMENT (CHECK ONE): $60 plus tax Certification/CLER credit is not awarded  Check enclosed made payable to The Florida Bar for the purchase of the course material.) TOTAL $ ______ Credit Card – Fax to 850/561-9413. ❑ AUDIO CD (1474C)  MASTERCARD  VISA  DISCOVER  AMEX $175 plus tax (section member) $230 plus tax (non-section member) Signature: ______(includes electronic course material) TOTAL $ ______Exp. Date: ____/____ (MO./YR.) ❑ DVD (1474D) Name on Card: ______$250 plus tax (section member) Billing Zip Code: ______$305 plus tax (non-section member) Card No. ______(includes electronic course material) TOTAL $ ______CLE SECTION 48 COMMENTATOR FALL 2012

The Florida Bar Family Law Section presents Mechanics of the Marital and Family Law Certification Exam

Wednesday, November 14, 2012 Telephonic Seminar 12:00 p.m. – 2:00 p.m. Eastern Standard Time

Course No. 1476R

Dial In And Get Informed This seminar is intended to assist both those who have applied to take the certification exam and those who are thinking about taking the exam in the future. It is developed and conducted without any involvement or endorsement by the BLSE and/or Certification committees. Furthermore, those who have developed the program have had no communication with the certification committee that prepares and grades the examination and they have no information regarding the examination content or format other than the information contained in the exam specifications which are also provided to each examinee. Candidates for certification who take this course should not assume that the course material will cover all topics on the examination or that the examination will cover all topics in the course material. Materials for this telephonic seminar can be downloaded from the Family Law website – www.familylawfla.org. Registrants can email comments and questions before and during the seminar to [email protected]. This seminar is not eligible for CLE credit.

Presenters: • Ronald H. Kauffman, Co-Chair, Miami • Susan Savard, Co-Chair, Orlando • Laura Davis Smith, Co-Chair, Miami • Karen Weintraub, Co-Chair, Fort Lauderdale

12:00 p.m. – 12:05 p.m. Connection Time 12:05 p.m. – 12:10 p.m. Opening Remarks 12:10 p.m. – 12:30 p.m. Why Get Board Certified 12:30 p.m. – 12:40 p.m. Application Process 12:40 p.m. – 1:30 p.m. The Exam (a) Studying Tips (b) Format (c) Administration (d) Exam Taking Tips 1:30 p.m. – 1:45 p.m. Grading 1:45 p.m. – 2:00 p.m. Final Thoughts, Questions & Closing Remarks

How Does Telephone Broadcasting Work? Registrants will receive dial-in connection instructions two days prior to the scheduled course date via e-mail. In the instructions, you will be given a personal identification number (PIN) and a toll-free number for you to access the program. If you do not have an e-mail address, contact Vicki Simmons at 850/561-5650, two days prior to the event for the instructions. CLE SECTION fall 2012 COMMENTATOR 49

FAMILY LAW SECTION Carin Porras, Ft. Lauderdale — Chair Elisha Roy, West Palm Beach — Chair-elect C. Debra Welch, Palm Beach Gardens — CLE Co-Chair Julia Wyda, West Palm Beach — CLE Co-Chair

REFUND POLICY: A $25 service fee applies to all requests for refunds. Requests must be in writing and post- marked on or before November 7, 2012. There will be NO refunds the day of the seminar and NO refunds for “no shows.” Register me for “Mechanics of the Marital and Family Law Certification Exam” Telephonic Seminar

TO REGISTER BY MAIL, SEND THIS FORM TO: The Florida Bar, Attn: Vicki Simmons, 651 E. Jefferson Street, Tallahassee, FL 32399-2300 with a check in the appropriate amount payable to The Florida Bar or credit card information filled in below. If you have questions, call 850/561-5650.

Name ______Florida Bar # ______Address ______City/State/Zip ______Phone: (_____) ______E-mail: ______VBS: Course No. 1476R

TO REGISTER: E-mail address required to receive dial-in instructions. • BY MAIL: Complete this form and mail it with your payment to The Florida Bar, Attn: Vicki Simmons, 651 E. Jefferson Street, Tallahassee, FL 32399-2300. Please make your check payable to The Florida Bar Family Law Section.

• BY FAX: Using a credit card, complete this form and fax it to The Florida Bar, 850/561-9427.

Credit Card:  MASTERCARD  VISA  DISCOVER  AMEX

REGISTRATION FEE: $125

Signature ______Exp. Date _____/_____(MO./YR.) Name on Card ______Billing Zip Code ______Card No. ______

 Please check here if you have a disability that may require special attention or services. To ensure availability of appropriate accommodations, attach a general description of your needs. We will contact you for further coordination.

Mark Your Calendar! 2013 Marital and Family Law Review Course January 25 - 26, 2013 Loews Royal Pacific Resort at Universal Studios Orlando, Florida Cert Tips & Nibbles, 4:00 p.m. – 6:00 p.m., January 24, 2013 (Limited to registered test takers only) CLE SECTION 50 COMMENTATOR FALL 2012

The Florida Bar Continuing Legal Education Committee and The Family Law Section present How to Handle Family Law Cases Involving the Department of Revenue: Everything You Need to Know From Basic Battle Skills to Advanced Hearing Techniques COURSE CLASSIFICATION: INTERMEDIATE LEVEL Telephonic Seminar: Wednesday, December 12, 2012 12:00 p.m. – 2:00 p.m. Eastern Standard Time Course No. 1477R

DIAL IN AND gET INFORMED!

This seminar will address how to litigate Department of Revenue cases, not only from the perspective of a private attorney who handles child support enforcement issues, but also from the perspective of a Hearing Officer who works in this challenging arena on a daily basis.

11:50 a.m. – 12:00 p.m. Connection Time How Do Telephone Seminars Work? 12:00 p.m. – 12:05 p.m. Welcome/Introduction of Speakers Registrants will receive dial-in connection instructions two Amanda Colón, Esquire, New Port Richey days prior to the scheduled course date via e-mail. If The Florida Bar does not have your e-mail address contact the 12:05 p.m. – 1:00 p.m. Order Entry Department at 850-561-5831. Chapter 409 and Related Case Law, Including Child Support Defenses, Concepts and Strategies The operator will verify the entry of each call. Only those Raul A. Perez-Ceballos, Esquire, Coral Gables attorneys registered for this seminar will receive CLE 1:00 p.m. – 1:50 p.m. credit. CLE credit will be applied within two weeks after the Department of Revenue Cases: A Candid View From the attendance record has been verified. Bench: Do's and Don'ts/Tips and Traps Hearing Officer Jennifer R. Kuyrkendall, Third Judicial Circuit of Florida 1:50 p.m. – 2:00 p.m. CLE CREDITS Questions and Answers Brandon Arkin, Esquire, Tampa Sheryl Moore, Esquire, Fort Lauderdale CLER PROgRAM (Max. Credit: 2.5 hours) General: 2.5 hours FAMILY LAW SECTION Ethics: 1.0 hour Carin M. Porras, Fort Lauderdale — Chair Elisha D. Roy, West Palm Beach — Chair-Elect CERTIFICATION PROgRAM C. Debra Welch, Palm Beach Gardens — CLE Co-Chair (Max. Credit: 2.0 hours) Julia Wyda, West Palm Beach — CLE Co-Chair Marital and Family Law: 2.0 hours Brandon Arkin, Tampa — Program Co-Chair Amanda Colón, New Port Richey — Program Co-Chair Seminar credit may be applied to satisfy CLER / Certification require- Sheryl Moore, Fort Lauderdale — Program Co-Chair ments in the amounts specified above, not to exceed the maximum credit. See the CLE link at www.floridabar.org for more information. Prior to your CLER reporting date (located on the mailing label of your CLE COMMITTEE Florida Bar News or available in your CLE record on-line) you will be Paul H. Chipok, Orlando, Chair sent a Reporting Affidavit if you have not completed your required hours (must be returned by your CLER reporting date). Terry L. Hill, Director, Programs Division Register Now! How to Handle Family Law Cases Involving the Department of Revenue: Everything You Need to Know From Basic Battle Skills to Advanced Hearing Techniques

The Florida Bar PRSRT-STD 651 E. Jefferson Street U.S. POSTAGE Tallahassee, FL 32399-2300 PAID TALLAHASSEE, FL Permit No. 43

CLE SECTION fall 2012 COMMENTATOR 51

REFUND POLICY: A $25 service fee applies to all requests for refunds. Requests must be in writing and postmarked no later than two business days following the live course presentation or receipt of product. Registration fees are non-transferrable, unless transferred to a colleague registering at the same price paid. Register me for the “How to Handle Family Law Cases Involving the Department of Revenue: Everything You Need to Know From Basic Battle Skills to Advanced Hearing Techniques” Telephonic Seminar (214) wednesday, december 12, 2012 • 12:00 p.m. – 2:00 p.m. eastern standard time TO REGISTER OR ORDER AUDIO CD OR COURSE BOOKS BY MAIL, SEND THIS FORM TO The Florida Bar, Order Entry Department: 651 E. Jefferson Street, Tallahassee, FL 32399-2300 with a check in the appropriate amount payable to The Florida Bar or credit card information filled in below. If you have questions, call 850/561-5831. Name ______Florida Bar # ______Address ______Phone: ( ) ______City/State/Zip ______E-mail* ______*E-mail address required to transmit electronic course materials and is only used for this order. VBS: Course No. 1477R ELECTRONIC COURSE MATERIAL NOTICE: Florida Bar CLE Courses feature electronic course materials for all live presentations, live webcasts, webinars, teleseminars, audio CDs and video DVDs. This searchable electronic material can be downloaded and printed and is available via e-mail several days in advance of the live presentation or thereafter for purchased products. The Course Book can be purchased separately. Effective July 1, 2010.

REgISTRATION FEE (CHECK ONE):  Please check here if you have a disability that  Member of the Family Law Section: $120 may require special attention or services. To ensure  Non-section member: $175 availability of appropriate accommodations, attach a general description of your needs. We will contact you for Full-time law college faculty or full-time law student: $88  further coordination.  Persons attending under the policy of fee waivers: $0 Members of The Florida Bar who are Supreme Court, Federal, DCA, circuit, county judges, magistrates, judges of compensation claims, full-time adminis- trative law judges, and court appointed hearing officers, or full-time legal aid attorneys for programs directly related to their client practice are eligible upon written request and for personal use only, complimentary admission to any live CLE Committee sponsored course. Not applicable to webcast. (We reserve the right to verify employment.) METHOD OF PAYMENT (CHECK ONE):  Check enclosed made payable to The Florida Bar  Credit Card (Advance registration only. Fax to 850/561-9413.)  MASTERCARD  VISA  DISCOVER  AMEX

Signature: ______Exp. Date: _____/_____ (MO./YR.) Name on Card: ______Billing Zip Code: ______Card No. ______ Enclosed is my separate check in the amount of $55 to join the Family Law Section. Membership expires June 30, 2013. COURSE BOOK – AUDIO CD – ON-LINE – PUBLICATIONS Private recording of this program is not permitted. Delivery time is 4 to 6 weeks after 12/12/12. TO ORDER AUDIO CD OR COURSE BOOKS, fill out the order form above, including a street address for delivery. Please add sales tax. Tax exempt entities must pay the non-section member price. Those eligible for the above mentioned fee waiver may order a complimentary audio CD in lieu of live attendance upon written request and for personal use only. Please include sales tax unless ordering party is tax-exempt or a nonresident of Florida. If this order is to be purchased by a tax-exempt organiza- tion, the media must be mailed to that organization and not to a person. Include tax-exempt number beside organization’s name on the order form. ❑ COURSE BOOK ONLY (1477M) ❑ AUDIO CD (1477C) Cost $60 plus tax (includes electronic course material) (Certification/CLER credit is not awarded for the purchase of the $120 plus tax (section member) course book only.) $175 plus tax (non-section member) TOTAL $ ______TOTAL $ ______Related Florida Bar Publications can be found at http://www.lexisnexis.com/flabar/ 52 COMMENTATOR FALL 2012

The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399-2300

Section Activities at the 2012 Annual Bar Convention

Legislation committee members Nicole Goetz, David Garfinkel, C. Deborah Welch, Julia Wyda

Left: Award recipients Lori-Caldwell 2012-2013 Chair, Carin Porras is sworn in by Carr, Robert Boyd and Matthew G.M. Diane Kirigin. Capstraw

Award Recipients Left: Robert Merlin, Ste- ven Berzner, and Kathryn Beamer.

Right: Immediate Past Chair, David Manz and Luis Insignares