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Uniform Collaborative Law Act (UCLA)
Please see the statewide chart of enactment of the Uniform Collaborative Law Act (UCLA), with links to state laws or rules. As discussed below (see History), Collaborative practice started in 1990, evolved, and grew. In 2010, the National Conference of Commissioners on Uniform State Laws finalized the Uniform Collaborative Law Rules and Uniform Collaborative Law Act. Six years later, Florida joined 13 other states that had formalized the collaborative option to resolve divorces. Florida’s version in the Uniform Collaborative Law Process Act works with Florida’s Family Law Rule of Procedure 12.745, Florida’s Rule 4-1.19, Rules Regulating the Florida Bar, and…
Commingling: How Mixing Assets Can Change Everything in a Florida Divorce
May 23, 2025 By Michael P. Sampson Sampson Collaborative Law You saved money before getting married. You fell in love and tied the knot without a prenup. Now, your marriage is falling apart. You’re thinking about divorce and discover that your savings might be split. Why? You mixed your pre-marriage money with money earned during the marriage. In Florida, this mixing—called commingling—can turn your separate property into shared property. It can change how your assets are divided in a divorce. Pour cream (the money earned during marriage) into a cup of steaming black coffee (your premarital savings). The now creamy…
Imminent Sale Doctrine – Closing Costs in Florida Divorce
By Michael P. Sampson Sampson Collaborative Law, March 16, 2025 Divorce can feel overwhelming, especially when it’s time to divide the marital home. In Florida, whether realtor fees and closing costs come off its value depends on the Imminent Sale Doctrine and solid evidence. Courts stick to strict guidelines, but the collaborative process offers couples flexibility. Let’s explore the imminent sale doctrine, considering fees, closing costs, and tax consequences on the sale of marital residence. What’s at stake? How might you move forward? What if there is no imminent sale? Closing Costs and Realtor Fees: The Imminent Sale Doctrine: Evidence…
Florida Collaborative Family Law Rule of Procedure 12.745
RULE 12.745. COLLABORATIVE LAW PROCESS (a) Application. This rule governs all proceedings under chapter 61, part III, Florida Statutes. (b) Collaborative Law Process. (1) Initiating Process. (A) A collaborative law process begins, regardless of whether a legal proceeding is pending, when the parties sign a collaborative law participation agreement. (B) When a proceeding is pending before a court, the parties may sign a collaborative law participation agreement to seek to resolve a matter related to the proceeding. The parties shall promptly file with the court a notice of the agreement after it is signed and it shall operate as an…
When Clients Retain Their Power: The Collaborative Law Process
The Collaborative Law Process values client control and self-determination. By retaining power to resolve disputes, they can express themselves and participate in teh collaborative process in ways and at levels other processes not primarily focused on them don’t encourage…
Florida Dependent Adult Children
Effective July 1, 2023, Florida law provides for support for Florida dependent adult children. Section 61.1255, Florida Statutes sets out procedures for establishing support and factors a judge must consider in deciding the right amount. See CS/CS/226 (signed June 12, 2023) and Laws of Florida, Ch. 23-213. Consider the collaborative process to help plan for support and decision making for your special needs child who will become an adult dependent. Who Is a Dependent Adult Child? Children with special needs become adults with special needs, dependent on their parents’ support. A “dependent adult child” is an unmarried adult incapable of…
Include Allied Professionals in the Collaborative Process
Experts routinely help decision makers understand complex issues. Blurry pictures come into sharp focus. Gaps in understanding get filled.
Likewise, to clients who choose the Collaborative Law Process to resolve their issues, Collaborative allied professionals provide quality information and helpful knowledge…
Florida Income Deduction Orders
On December 5, 2019, the Florida Supreme Court amended the form for income deduction orders. Florida Family Law Form 12.996(a)…
Florida Collaborative Divorce Forms
In 2020, the Supreme Court of Florida adopted collaborative divorce forms. See Florida Family Law Rules of Procedure Forms 12.985(a)-(g). See In Re Amendments to the Florida Family Law Rules of Procedure – Forms 12.985(a) – (g) (Collaborative Law Process), 345 So. 3d 1, Case No. SC19-1032 (Fla. October 14, 2020). These forms are for Florida couples like you who may be considering the collaborative process for your divorce. The forms generally guide lawyers newly engaged in the collaborative law process. In July 2017, Florida’s Collaborative Law Process Act, section 61.56, Florida Statutes, took effect. On May 18, 2017, the…
FAQs Florida Collaborative Divorce
Frequently asked questions regarding Florida Collaborative Divorce…
Harness Collaborative Contract Power!
By Michael P. Sampson ABA Just Resolutions, February 22, 2022 Updated June 25, 2025 A Climate of Positive Energy Valentine’s Day 1990. The founder of the Collaborative movement, Stuart G. Webb, writes to the Honorable A.M. “Sandy” Keith, Justice of the Minnesota Supreme Court. Mr. Webb’s love interest? A power source for creative settlement he’d conceived: the Collaborative process. The “climate of positive energy” Stu had witnessed and wanted to sing about often occurred by accident. He found it happened when lawyers used their “analytical, reasoned ability to solve problems and generate creative alternatives and create a positive context for…
Collaborative Family Law: Florida Favors Settlement Agreements
Florida favors settlement agreements of family law disputes. Parents may agree to take on obligations based on future events. That’s true even if a court otherwise couldn’t impose those obligations. This power parents have in collaborative divorce to make marital settlement agreements makes collaborative special. Purpose of Florida’s Divorce Statute Includes Promoting Settlement Since July 1, 1971, the purposes of the dissolution of marriage statute haven’t changed. For 50 years, the purposes of Florida’s divorce statute have been: (a) To preserve the integrity of marriage and to safeguard meaningful family relationships; (b) To promote the amicable settlement of disputes that arise between parties to a…
Florida Parenting Plan Basics: Collaborative Family Law
What is a Parenting Plan? In Florida, a ‘Parenting Plan’ governs the relationship between parents “relating to decisions that must be made regarding the minor child.” Section 61.046(14), Florida Statutes. See CN v. IGC, 316 So. 3d 287 (Fla. 2021). A court’s authority to order parenting plans comes from section 61.13(2), Florida Statutes. That section sets out minimum required parenting plan provisions. For example, they include “time-sharing schedule arrangements” that specify when the child will be with each parent. You and child’s other parent may agree to a parenting plan in Florida. Moreover, courts often prefer and approve agreed parenting plan provisions to…
Defenses to Child Abduction Claims: Hague Convention
By Michael P. Sampson Sampson Collaborative Law, August 26, 2025 What are the six defenses to child abduction claims under the Hague Convention? A parent who moves with a child from the child’s home country to another country, or retains the child in the other country, may face accusations that the move or retention is wrongful. The parent who stays behind may assert the parent who moved or kept the child from the home country committed wrongful child abduction in violation of international law. Unless the parents agree to quick alternative dispute resolution such as mediation or the collaborative process…
Florida Parenting Coordinator Rules
The Supreme Court of Florida amended the Florida Rules for Qualified and Court-Appointed Parenting Coordinators (“Parenting Coordinator Rules”). See In Re: Amendments to the Florida Rules for Qualified and Court-Appointed Parenting Coordinators, 345 So. 3d 714 (Fla. 2021). Effective October 1, 2023, the Parenting Coordinator Rules define “coparent,” list many functions of a parenting coordinator, and say how a parenting coordinator may withdraw before the court okays the withdrawal. See In re: Amendments to the Florida Rules for Qualified and Court-Appointed Parenting Coordinators, 367 So. 3d 1206 (Fla. 2023). Summary of Florida Parenting Coordinator Rules Qualifications, Rostering, and Renewing: Part I…
Update Florida Beneficiary Designations After Divorce
What happens to your beneficiary designations of your spouse when you divorce? With few exceptions, when you divorce in Florida, provisions of your will that “affect” your ex are void, under section 732.507(2), Florida Statutes. It doesn’t matter if the marriage occurred before or after you signed your will. Will Provisions that “Affect” an Ex-Spouse As amended effective July 1, 2021 (Laws of Florida, Ch. 2021-183), section 732.507(2) provides any provision of a will you made that “affects” your spouse is void when you divorce. Upon entry of a final judgment of dissolution of your marriage, for purposes of construing…
Remind Divorced Employees to Update Beneficiary Designations
Employers: think about reminding your employees to update their beneficiary designations and forms after divorce. For multiple covered assets, section 732.703, Florida Statutes voids upon divorce beneficiary designations of an ex-spouse. See State Farm Life Insurance Company v. Stone, Case No. 5:15-cv-267-Oc-30PRL (MD Fla. October 9, 2015). In Stone, the court allowed interpleader of disputed proceeds of former husband’s life insurance policy until former wife’s conflicting claims with a successor beneficiary could be resolved. Similar automatic revocation on divorce applies to will and trust provisions designating an ex-spouse as beneficiary. Effective July 1, 2021, Florida’s Probate Code, Section 732.507(2), Florida Statutes (wills)…
Divorce and Beneficiary Designations — Florida Statutes §732.703
Introduction How does divorce affect your beneficiary designation of your ex when you die? Multiple assets covered under Florida’s automatic revocation statute, Section 732.703, Florida Statutes, pass as if your surviving ex-spouse died first. How it Plays Out: Life Insurance Beneficiary Designations A former wife named as primary beneficiary on her former husband’s life insurance policy claims benefits. Following their divorce, however, he never changes his beneficiary designation. Relying on Section 732.703, Florida Statutes, the life insurance company may review the insured’s marital status on the death certificate and pay out the proceeds. The company may avoid the delay and expense of…
Collaborative Parenting Plans: A Child’s Prospective Best Interests
Collaborative Parenting Plans in Florida divorce or paternity cases may address your child’s future best interests in ways Florida family judges can’t. Judges are not prophets: A judge has no crystal ball to see how future events might affect your child’s best interests. In making decisions about timesharing and parenting arrangements, a family judge generally can’t engage in “prospective-based” analysis of a child’s best interests. That means they must decide issues looking at a snapshot of the present. Typically, they base that look on evidence about the past. Florida law generally stops judges from extrapolating from the snapshot a movie about…
Collaborative Family Law Agreements: A Child’s Future Best Interests
Judges Must Make Decisions About Children’s Best Interests Based On Present Facts, Not Future Best Interests. Judges must decide parenting issues based on your child’s best interests as of the final hearing, not on your child’s future best interests. A judge has no crystal ball to determine if parenting plan changes, triggered by future events, would be in your child’s future best interests. Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010) (the trial judge cannot predict if future relocation is in a child’s best interests). For example, in Amiot v. Olmstead, 321 So. 3d 305 (Fla. 1st DCA 2021), the court…
Florida Parenting Plans & Events Reasonably Certain to Occur
When Can a Judge Look Ahead? When ordering a parenting plan in a Florida divorce or paternity action, the judge generally must stick to the present. The judge must make determinations based on findings about your child’s present best interests. That means avoiding “prospective based determinations” about your child’s future best interests. But what about events reasonably certain to occur? Can you and a judge look ahead? Exception: No Crystal Ball for Events Reasonably Certain to Occur An exception to this general rule is judges may allow a timesharing plan that applies the child’s best interests, as determined at the…
Children’s Best Interests: Parenting Plans Entail Prediction
Parenting plans govern parents’ future conduct in relationship towards each other and towards their children. These relationships comprise regular and holiday timesharing schedules, decision making about major events in a child’s life, and communications. Parents and judges necessarily look ahead to create parenting plans that promote children’s best interests. Therefore, parenting plans entail prediction. Yet, under Florida’s extraordinary burden for modifying parenting plans generally stops a judge from engaging in “prospective-based” analysis of a child’s best interests. Don’t Parenting Plans Govern Future Conduct and Entail Prediction? As the concurring judge observed in Natali v. Natali, 313 So. 3d 958 (Fla. 2d DCA…
Collaborative Parenting Plans: Extraordinary Burden for Modification
In Florida, parents face an extraordinary burden for modification of a parenting plan. This burden is called the “substantial change in circumstances” test. The test for modification applies unless the initial final judgment provides otherwise. In Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005), the Florida Supreme Court considered the issue of what test trial courts should use in modifying rotating custody agreements. The court concluded that unless otherwise provided in the final judgment, the two-part “substantial change” test used in Cooper v. Gress, 854 So. 2d 262 (Fla. 1st DCA 2003), applies to the post-dissolution modification of all custody agreements. The substantial change in circumstances test…
Collaborative Parenting Plans: Judges Must Safeguard Children
When considering parents’ agreements, judges must safeguard children. A court isn’t bound by parents’ agreements regarding child support, custody, or visitation. Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996); see also Yitzhari v. Yitzhari, 906 So. 2d 1250, 1257 n. 4 (Fla. 3d DCA 2005). A Court’s Responsibility to the Child Florida family law judges have a heavy responsibility to safeguard children. In carrying out this responsibility, they must ensure purported agreements or arrangements between parents don’t shortchange their child. A court “is not bound by an agreement of parents regarding child support, custody, or visitation.” See Puglisi v. Puglisi, 135 So. 3d 1146 (Fla…
Anticipating Events Reasonably Certain to Occur: Collaborative Parenting Plans
Parents in Florida divorce and paternity cases may anticipate and plan for events reasonably certain to occur in their children’s lives. They may enter into parenting agreements that flexibly adjust provisions when predicted and planned for events take place. Case Examples of Events Reasonably Certain to Occur For example, in Rivera v. Purtell, 252 So. 3d 283 (Fla. 5th DCA 2018), parents “could reasonably anticipate the circumstances that would exist” when an event occurred, and the court, “could therefore make a reasoned best interests determination based upon those anticipated circumstances.” See also Stevens v. Stevens, 929 So. 2d 721 (Fla. 5th DCA…
Enlist Court Review When Events Occur: Collaborative Parenting Plans
A court has an ongoing obligation to safeguard minor children’s best interests. Collaborating parents may agree to enlist court review to approve modifications when events they anticipated in their parenting plans occur. Parents’ attempts to trigger automatic modifications for uncertain future events, which may not take place for months or years (if they ever do), invite reversal. For example, in Natali v. Natali, 313 So. 3d 958 (Fla. 2d DCA 2021), the court rejected a parenting plan that provided multi-phased timesharing arrangements. Such arrangements would automatically progress once predetermined but contingent events might happen. First, dad had to exercise supervised visitation…
Resolve Future Impasses: Collaborative Parenting Plans
Many parents agree to resolve privately future impasses if they can’t agree on decisions for their children. Parents who choose the collaborative process appreciate court fighting can be costly and drawn out. These concerns apply equally for initial proceedings and for future modification actions. Therefore, to resolve impasses, consider returning to the collaborative process or mediation before you go to court. Example Language for Collaborative Agreements and Parenting Plans to Resolve Future Impasses In collaborative divorce, parents often commit to return to the collaborative team if they get stuck and can’t agree about important decisions for their children. Therefore, they…
Contingencies Parents Build into their Parenting Plans in Florida Divorces
Can parents build contingencies in parenting plans for future events? For events you anticipate that are reasonably certain to occur, can you build automatic modifications into your parenting plan? CN v. IGC: Leaves Open Question of Whether Agreed On Contingencies are “Modifications” In CN v IGC, 316 So. 3d 287 (Fla. 2021), a mother invited the Supreme Court of Florida to hold a contingency a judge anticipated and built into their modified Parenting Plan wasn’t a “modification.” Mom claimed the contingency – her completing therapy – wouldn’t be an “unanticipated” change in circumstances. Section 61.13(3), Florida Statutes required changes on…
Agreeing to a Different Burden for Modification: Florida Parenting Plans 
You may agree your judgment will provide for a different burden for modification than the substantial change in circumstances test. Read more about that extraordinary burden here. Authorizing Agreements to a Different Burden for Modification than the Onerous Substantial Change in Circumstances Burden The Supreme Court of Florida noted a judgment could provide a different standard to be applied when a parent seeks to modify custody. See Wade v. Hirschman, 903 So. 2d 928, 932 n. 9 (Fla. 2005). Wade approvingly cites Mooney v. Mooney, 729 So. 2d 1015 (Fla. 1st DCA 1999) (parents agreed that the beginning of school would constitute a change…
Beneficiary Designations Checklist for Collaborative Teams
This Beneficiary Designations Checklist for collaborative teams can help couples develop options for beneficiary designations after divorce. Collaborative Practice teams may use the checklist when one spouse may want the other named as beneficiary of insurance policies, annuities, accounts, or other assets. The couple and their Collaborative Practice team may follow the checklist work towards Collaborative marital settlement agreements and beneficiary designations that achieve their goals. For example, the couple may decide securing alimony or child support protects their family if the spouse owing support dies. Then, life insurance, trust provisions, or will provisions naming the ex-spouse as beneficiary may…
Collaborative Marital Settlement Agreements: Insurance Policies
On divorce, Florida law automatically revokes insurance policy beneficiary designations in favor of an ex-spouse. But, to avoid automatic revocation on divorce, you and your spouse may say in your collaborative marital settlement agreement you intend to designate one or the other as beneficiary. Otherwise, on entry of a final judgment of dissolution of marriage, most insurance policy beneficiary designations of an ex-spouse end. Therefore, consider overriding automatic revocation of beneficiary designations under insurance policies. After divorce, you may want the insured policy holder to redesignate a spouse as beneficiary. For example, you may decide you’d like to secure alimony or child…
Automatic Revocation of Will Provisions that Affect an Ex-Spouse
Spouses should know Florida Statutes automatically revokes certain will provisions upon a final judgment of dissolution or annulment. Florida’s automatic revocation on divorce statute section 732.507(2), Florida Statutes may void provisions of a will that “affect” a former spouse. After a Florida divorce, courts must administer and construe wills as if the former spouse had died at the time of the divorce. That’s true unless the will or the dissolution or divorce judgment provides otherwise. Invalidated Will Provisions – Carroll v. Israelson The court in Carroll v. Israelson applied the automatic revocation on divorce statute. It invalidated provisions of a…
Collaborative Marital Agreements — Beneficiary Designations After Divorce
Florida law revokes on divorce beneficiary designations that “affect” an ex-spouse. For more, read here, here and here. Therefore, to avoid automatic revocation of beneficiary designations on divorce, Collaborative Marital Settlement Agreements should address interests in: assets subject to beneficiary designations under wills (section 732.507(2), Florida Statutes) assets subject to beneficiary designations under life insurance policies (Section 732.703, Florida Statutes) retirement plans employee benefit plans assets subject to pay-on-death or transfer-on-death designations. Spouses may want to maintain after divorce one or both as designated beneficiaries of assets. Indeed, sometimes that’s important to benefit their children, secure alimony, or achieve other purposes…
Parenting Plans – Consent to Child’s Mental Health Treatment
How do parenting plans provide for consent to mental health treatment for a child? What does “mental health treatment” even mean and include? Further, what if parents don’t agree on mental health treatment their child should continue, undertake, or stop? In this context, how does shared parental responsibility and decision making work? Specifically, may one parent consent to mental health treatment for the child when the other doesn’t agree? Must they even confer before one parent authorizes mental health treatment for their child? Shared Parenting and Decision Making – Mental Health Treatment First, we discuss basics of shared and sole…
Parental Responsibility & Decision Making
Parents in Florida divorce and paternity cases decide if they will share parental responsibility and decision making for their child. Therefore, they must agree to a “Parenting Plan” or have a judge decide on a plan. In collaborative practice, parents work with a collaborative neutral facilitator and collaborative professional team. How does that work? The collaborative team helps parents write their parenting agreements. Typically, the agreements includes the regular and holiday schedule and how the parents will share important decisions. Florida law calls this decision-making authority “parental responsibility.” The Supreme Court of Florida approved form parenting plans, including Form 12.995(a)…
Shared Parental Responsibility and Sole Parental Responsibility
Parents who “share parental responsibility” retain full parental rights and responsibilities for their child. This means both parents confer with each other to make decisions for their child. See Section 61.046(17), Florida Statutes. In sharing responsibility for decisions, parents generally must communicate with each other. They must try to agree about important decisions. Most parents would do that while together. But when they don’t or can’t agree, options for resolving disagreements include collaborative law practice, mediation, litigation, and other means. Shared Parenting Unless Detrimental The court must order shared parental responsibility unless the court finds it would be detrimental to the…
Shared Parenting – Retained Consent to Mental Health Treatment
Florida law treats consent to a child’s “mental health treatment” differently from other shared major parental decisions. In 2016, Florida law changed to mandate certain provisions in parenting plans. See Laws of Florida 2016-241. Most parenting plans say parents will share parental responsibility. For such plans, section 61.13(2)(b)3., Florida Statutes, requires providing that either parent retains consent to mental health treatment for their child. Moreover, omitting from a parenting plan or final judgment that either parent alone may provide such consent is legal error. For example, see E.V. v. D.M.V.H., 273 So. 3d 1132 (Fla. 2d DCA 2019) (parenting plan sufficiently provided…
Florida Law: Each Parent Retains Consent to Mental Health Treatment
In 2016, Florida law changed to mandate, in parenting plans designating shared parental responsibility, that either parent retains consent to their child’s mental health treatment. See Section 61.13(2)(b)3., Florida Statutes, amended by Laws of Florida 2016-241. Analysis of the final version is available here. A parenting plan that doesn’t provide for either parent to consent to the child’s mental health treatment is legally deficient. See Hernandez v. Mendoza, 346 So. 3d 60 (Fla. 4th DCA 2022) (parenting plan that provided for shared parental responsibility over health care decisions failed to provide that either parent could consent to mental health treatment…
Collaborative Practice: Shared Parental Responsibility for Health Care
How do courts in Florida handle shared parental responsibility over a child’s health care? Florida family judges must determine parenting matters according to the child’s best interests and the Uniform Child Custody Jurisdiction and Enforcement Act. Exception to Best Interests: Modification of Parenting Plan There is an exception. Modification of a parenting plan and time-sharing schedule requires showing a substantial, material, and unanticipated change of circumstances. See Section 61.13(2)(c), Florida Statutes. Courts have described this burden of proof as “extraordinary.” The extraordinary burden for modification became less so. On June 27, 2023, the Florida Governor signed an amendment to…
Collaborative Process: Clarifying Intent About “Mental Health Treatment”
Florida’s divorce and paternity statutes don’t define “mental health treatment.” When they’re sharing parental responsibility, each parent retains parental consent to mental health treatment. However, by clarifying and agreeing to the scope of “mental health treatment” for their child, parents may avoid confusion and future litigation. Parents in collaborative practice may define by agreement “mental health treatment” and a protocol for decision making about mental health treatment. They may show the judge their agreement is in their child’s best interests. Judges Should Respect Parents’ Agreements Clarifying Intent About “Mental Health Treatment” Judges have an independent duty to safeguard a child’s…
What Is “Mental Health Treatment”?
Florida law provides either parent may consent to their child’s mental health treatment. But, what is “mental health treatment? Are there definitions of “mental health treatment” that may guide divorcing parents? The answer is there are definitions of “mental health treatment.” Such definitions may guide parents and their Florida collaborative practice team. That way, parents in collaborative divorce may attempt to clarify their intent about “mental health treatment” for their child. Florida Juvenile Justice System – Techniques That Constitute “Mental Health Treatment” of Children First, parents and their Collaborative Divorce team may consider prevention, early intervention, control, and rehabilitative treatment…
Language – “Mental Health Treatment”
Parents in the Collaborative Process may consider using definitions of “mental health treatment.” This article give example language using definitions. For more about definitions, read the discussion here. Example Language- Mental Health Treatment For our Parenting Plan, “Mental Health Treatment” means these techniques, as defined in Florida Administrative Code, Rule 63N-1.0081: (a) Individual therapy or counseling; (b) Group therapy or counseling; (c) Family counseling or therapy; (d) Behavior therapy; (e) Psychosocial Skills Training; or (f) Juvenile sexual offender therapy and juvenile sexual offender treatment We agree the Mental Health Treatment, as defined above, must: be provided by a Licensed Mental…
Informed Consent By One Parent – Florida Mental Health Professionals
When Florida parents divorce and share parental responsibility, either may consent to mental health treatment for a child. Therefore, mental health treatment providers generally may accept informed consent by only one parent to mental health treatment. Informed Consent by One Parent: Each Parent Has a Fundamental Right to Direct Their Child’s Mental Health Parents’ Bill of Rights 2021 Effective July 1, 2021, Florida adopted the Parents’ Bill of Rights, Chapter 1014, Florida Statutes. See Laws of Florida, Chapter 2021-199. The Parents’ Bill of Rights states “a” parent has the fundamental right to direct his or her child’s mental health. The state…
Florida Mental Health Providers & Informed Consent
This post summarizes Florida mental health informed consent rules for mental health providers. Florida parents who divorce typically share parental responsibility. When they do, either may consent to mental health treatment for a child. Each parent remains their child’s natural guardian. See Section 744.301(1), Florida Statutes. As summarized in the table below, mental health treatment providers generally may accept informed consent by only one parent to “mental health treatment.” A mental health provider’s ability legally to accept informed consent from only one parent may differ from what may be in the child’s best interests. Moreover, a mental health provider’s accepting…
What If Parents Disagree About Child’s Mental Health Treatment?
One parent disagrees with the other parent’s consenting to mental health treatment for their child. They share parental responsibility, so each parent retains consent to. mental health treatment. To move forward, the parents may often face costly, time consuming, and inadequate remedies. The parent who doesn’t consent may ask the court to modify the parenting plan. But, to succeed, the parent must allege and prove: a substantial change in circumstances, the other parents’ decision is detrimental to the child, and continued shared parental responsibility would be detrimental to the child. The petitioning parent would request ultimate authority or sole responsibility…
Corporation or Trust Challenges to Service of Process and Jurisdiction
By Michael P. Sampson (part 1 of 8) What corporation or trust challenges to service of process or jurisdiction are available to get out of a Florida divorce case? This series discusses corporation or trust challenges to service of process and jurisdiction foreign corporations or trusts sued in a Florida divorce may assert to secure dismissal. The Problem: Foreign Corporations or Trusts Sued in Florida Divorce The president of a corporation, manager of a limited liability company, trustee of a family trust, or principal of another business entity receives a summons in a Florida family law case. One spouse contends…
Challenge to Service of Process in Florida Divorce
By Michael P. Sampson (part 2 of 8) Service of Process – Effective Service is Required A corporation or trust a spouse names in a Florida divorce may first consider a challenge to service of process. Through effective service of process, the spouse notifies the business entity or trust of the spouse’s legal claims against it. When the spouse accomplishes effective service, a court may exercise its authority over the entity or trust if the court has jurisdiction to resolve the claims. Service of Process: Can the Corporation or Trust Challenge Service? An entity sued in a family law lawsuit…
Family Law Pleadings: Allege Personal Jurisdiction
By Michael P. Sampson (part 3 of 8) For the Florida court to adjudicate claims against the corporation or trust, does the family law pleading allege personal jurisdiction over the entity? If service of process on an entity is sufficient in the family law case, is there personal jurisdiction over the entity for the family law party to proceed against the entity? Family Law Pleading Must Allege Personal Jurisdiction Over Foreign Entity A court has no jurisdiction over foreign entity named in a divorce action when the family law pleading fails to allege personal jurisdiction. Namely, the spouse who want…
Long-Arm Statute or Alter Ego? Personal Jurisdiction Over Corporation in Florida Divorce
By Michael P. Sampson (part 4 of 8) A spouse may attempt to bring in a corporate entity or trust into the divorce either under the Florida Long-Arm Statute or on an alter-ego theory. To pull in the foreign corporation or trust, the spouse must plead a basis for Florida long-arm jurisdiction. Alternatively, the spouse may allege the Florida court should act against the foreign entity because it’s merely the other spouse’s alter ego. Under Florida’s Long-Arm Statute, the spouse must pass a two-pronged test for establishing personal jurisdiction over a foreign entity. Instead, the spouse may assert personal jurisdiction is…
Long-Arm Jurisdiction: Specific or General?
By Michael P. Sampson (part 5 of 8) First Prong: Is Personal Jurisdiction Over the Corporation or Entity Appropriate Under Florida’s Long Arm Statute? The first prong of the two-pronged test for bringing a foreign corporation or trust into a Florida family law action is establishing long-arm personal jurisdiction. Does the family law pleading allege specific or general jurisdiction? Long-arm jurisdiction over a foreign corporation or entity a spouse names in a family law matter may be specific or general. Jurisdiction – Specific or General? First, specific jurisdiction under sections 48.193(1)(a)-(h), Florida Statutes attaches where the defendant entity either “personally or through an…
Alter Ego Basis for Jurisdiction in Florida Family Law Action
By Michael P. Sampson (part 6 of 8) Alter Ego Basis for Jurisdiction: Piercing the Corporate Veil The two-step process for establishing long arm jurisdiction does not apply when a spouse is traveling under a different theory: the alter ego basis for jurisdiction. The spouse may allege the entity is the other spouse’s alter ego and the Florida court should pierce the corporate veil of the entity. In a family court action, a court may pierce the corporate veil if a spouse can prove both that the entity is a “mere instrumentality” or alter ego of the other spouse and…
Jurisdiction Over Property at Issue in Florida Divorce
By Michael P. Sampson (part 7 of 8) In Rem Jurisdiction Over Property Located in County Where Florida Divorce Is Pending If property at issue in a divorce case is within the court’s jurisdictional boundaries, it doesn’t matter if the owners or those claiming an interest in the property reside outside Florida. The court has in rem jurisdiction over the property at issue. Jurisdiction in rem, founded on property within the court’s territorial bounds, can substitute for personal jurisdiction. See Stephens, Scott, Florida’s Third Species of Jurisdiction, Vol. 82, No. 3, Florida Bar Journal 10 (March 2008). A court may not…
Sworn Affidavits to Support Challenges to Jurisdiction in Florida Divorce
By Michael P. Sampson (part 8 of 8) Sworn Affidavits or Declarations: Be Prepared! An entity drawn into a family law dispute typically must assemble sworn affidavits or sworn declarations to support challenges to service of process or personal jurisdiction or both. See Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995). Nonresident defendant corporations or trusts challenging long-arm jurisdiction in a Florida divorce must file sworn affidavits or sworn declarations to support their challenges. But, if the spouse attempting to establish jurisdiction over the nonresident fails to plead a legally sufficient basis for personal jurisdiction over it, the burden…
Domestic Partnership Agreements: FAQs
This final installment of a 7-part series about domestic partnership agreements answers frequently asked questions (FAQs) about them. Using the Collaborative Process for Negotiating a Domestic Partnership Agreement The Collaborative Process can assist a couple with negotiating a domestic partnership agreement. A full collaborative team includes a lawyer for each party, a neutral financial professional, and a neutral mental health professional may work with the parties in negotiating a domestic partnership agreement or, if the parties intend to marry, a premarital agreement. The couple and their collaborative team meet together. First, they identify each person’s goals and interests. Next, they work on…
Domestic Partnership Agreements: Financial Disclosures
This sixth installment of a 7-part series about Domestic Partnership Agreements discusses financial disclosures and privacy. To avoid later attack on the domestic partnership agreement, the partners should make fair and reasonable financial disclosures to each other. Disclosures to Consider For Florida “family law matters” (which Florida Family Law Rule of Procedure 12.010 defines broadly) such as divorce, Florida Family Law Rule of Procedure 12.285 mandates extensive financial disclosures. “Family law matters” includes matters arising from support unconnected with dissolution of marriage and declaratory actions related to premarital agreements. The list below includes items modified from the list that the Florida Supreme Court…
Survivor’s Rights on Domestic Partner’s Death
This fifth installment of a 7-part series about Domestic Partnership Agreements discusses survivor’s rights on death. Florida law provides for survivor’s rights if a married person dies before the other spouse and they have no premarital or postnuptial agreement. But for unmarried domestic partners, Florida law provides no survivor benefits upon the decedent’s death. Through careful planning and drafting of a domestic partnership agreement, however, partners can achieve similar financial rights on death. Elective Share – Create Equivalent Survivor’s Rights for Domestic Partners? A survivor’s right available to a surviving spouse, but not to unmarried couples, is the “elective share.”…
Domestic Partnership Agreements: The Home and Joint Expenses
This second installment of a 7-part series about domestic partnership agreements discusses the home and joint expenses. Partners Acquiring a Home Together Two people may acquire a home together. They may contribute different amounts to the purchase price. During their relationship, they may contribute different amounts towards improvements, the mortgage, insurance, and property taxes. Further, they will undoubtedly have home and joint expenses. Recognizing these contributions, domestic partnership agreements may establish a fair formula for splitting net proceeds if (i) the home is later sold or, (ii) if one person dies before the other and they are still together, a buyout…
Domestic Partnership Agreements: Overview
This first installment of a 7-part series gives an overview of domestic partnership agreements. Married and Unmarried Committed Couples Many couples who could not legally marry now can. In Obergefell v. Hodges, The United States Supreme Court described the fundamental right to marry, commit to, and intimately associate with the person you love through marriage as one of identity and liberty. But thousands of people in committed intimate relationships choose not to marry. Instead, they choose to stay happily unmarried. Their identity and liberty interests allow them that choice. Property and support issues are no less important to people in unmarried…
Domestic Partners: Support When the Relationship Ends
This fourth installment of a 7-part series about Domestic Partnership Agreements discusses support when the couple’s relationship ends. Florida law generally provides, when there is no premarital agreement, a spouse’s right to alimony on divorce depends on the spouse’s need for alimony and the other spouse’s ability to pay. But, when a couple is not married, how are support rights determined? No Palimony…But Creating Support Rights by Contract Although Florida courts will honor common law marriages validly established in other states, Florida itself no longer has common law marriage. Florida law provides no support (or “palimony”) for unmarried couples. But…
Collaborative Divorce – Rule 4-1.19
This article discusses Florida’s ethical rule for the collaborative law process in family law matters, including collaborative divorce. Florida’s Collaborative Law Process Act, section 61.56, Florida Statutes, took effect July 1, 2017. On May 18, 2017, the Supreme Court of Florida adopted Florida Family Law Rule of Procedure 12.745 and Rule 4-1.19, Rules Regulating the Florida Bar. Collaborative Divorce – Florida Rule Regulating the Florida Bar 4-1.19(a) – Duty to Explain the Process (a) Duty to Explain Process to Client. A lawyer must obtain the informed consent of a client in a family law matter before proceeding in the collaborative law process after providing…
Custody of Children by Extended Family Member Including Fictive Kin
What does custody of children by an extended family member look like in Florida? An “extended family member” may ask the court for “temporary” or “concurrent” custody of a child. Does Florida give rights to “psychological parents?” Custody of a child is “temporary” if the award excludes the parents. It’s “concurrent” if the extended family member shares custody with the parents. 1. Custody of Children by an Extended family member includes “fictive kin.” A “fictive kin” is someone “unrelated by birth, marriage, or adoption who has an emotionally significant relationship, which possesses the characteristics of a family relationship, to a…
Florida’s Collaborative Law System
Florida’s collaborative law system for collaborative divorce has four parts: a statute, a family law rule of procedure, an ethical rule, and Florida Supreme Court Approved Family Law Forms. Florida’s Collaborative Law Process Act, section 61.56, Florida Statutes, took effect July 1, 2017. On May 18, 2017, the Supreme Court of Florida adopted Florida Family Law Rule of Procedure 12.745 and Rule 4-1.19, Rules Regulating the Florida Bar. The Florida Supreme Court approved family law forms for collaborative divorce. They’re available here. Florida’s Collaborative Law System: Promoting Peace & Early Settlement The Florida Collaborative Law Process Act, rules, and forms…
Why Jeff Bezos should have gotten a prenup & why you should too
By: Hanna Horvath, Policygenius The richest couple in the world is a couple no more. What is a prenup? Jeff Bezos, the CEO of Amazon and the richest man in the world, announced he and his wife, MacKenzie, are getting divorced. The couple hadn’t signed a prenuptial agreement, meaning his soon-to-be ex-wife could be walking away with half of his approximately $136 billion fortune. Michael Sampson, a divorce attorney from Florida, describes it as a “contract between two marrying people and their agreement on how finances will be handled in divorce or in death.” Prenups became prominent after the establishment…
Domestic Partnership Agreements: Separate and Joint Property
This third installment of a 7-part series about Domestic Partnership Agreements discusses separate and joint property. Separately-Acquired and Jointly-Acquired Property Domestic partnership agreements should list or include an attached schedule of each party’s separate property. If the parties agree, the agreement should protect ownership of property and interests in trusts as separate property. Such agreements typically say how income from separate property will be treated while the couple remains together – will the income also be separate property…or joint? Enhancement in Value of Real and Personal Property Brought into the Relationship Couples may agree, as many do, to allocate any growth…
Florida Collaborative Law Process Act, §61.55 – 61.58, Florida Statutes
PART III, CHAPTER 61, FLORIDA STATUTESCOLLABORATIVE LAW PROCESS ACT 61.55 Purpose.61.56 Definitions.61.57 Beginning, concluding, and terminating a collaborative law process.61.58 Confidentiality of a collaborative law communication. 61.55 Purpose.—The purpose of this part is to create a uniform system of practice for the collaborative law process in this state. It is the policy of this state to encourage the peaceful resolution of disputes and the early resolution of pending litigation through a voluntary settlement process. The collaborative law process is a unique nonadversarial process that preserves a working relationship between the parties and reduces the emotional and financial toll of litigation.History.—s. 4, ch. 2016-93. 61.56 Definitions.—As used…
Collaborative Divorce: Dividing Retirement Accounts
The Challenge: In collaborative divorce, dividing retirement accounts can be tricky. Collaborative teams, usually with a neutral collaborative financial professional’s help, must often figure out premarital and marital components of retirement assets. How might the collaborative team approach the challenge? Premarital Accounts Calculator: One tool that may be useful as the collaborative team develops options for allocating the marital and nonmarital components of premarital individual retirement accounts (IRAs), investment accounts, and other plans: Florida Law on Marital and Nonmarital Retirement Assets: State law guides treatment of marital and nonmarital retirement assets. In Florida, marital assets include: The enhancement in value…
Second Parent Adoption – Florida Reinstates Same Sex Adoption
In the Matter of the Adoption of D.P.P., 158 So. 3d 633 (Fla. 5th DCA 2014), the Fifth District Court of Appeal reversed an order vacating a second parent adoption. Trial Court Undoes Same Sex Adoption The trial court terminated the parent-child relationship between a mom (G.P.), and the parties’ child and voiding the adoption. Because two unmarried women had filed an uncontested petition for adoption, the court held the circuit court never had subject matter jurisdiction to grant the adoption. The Fifth DCA Resinstates 2d Parent Adoption The Fifth District disagreed and reinstated the adoption and G.P.’s parental relationship…
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