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Imminent Sale Doctrine Pink and white roseate spoonbill

Imminent Sale Doctrine – Closing Costs in Florida Divorce

Collaborative Divorce, Property Distribution /

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 In Florida, splitting property in divorce follows section 61.075, Florida Statutes. The Imminent Sale Doctrine acts like a checkpoint at an airport —only those with a boarding pass (proof of an impending sale) can get through the gate to deduct realtor fees or closing costs. Without it, the distribution value of the marital residence stands firm, with no such deductions. Florida courts have shaped this standard. They say, for the judge to deduct these fees and closing costs from the value of the marital residence, there must be proof of an “imminent sale” – one about to happen – and reliable cost estimates. For example, in Goodwin v. Goodwin, 640 So. 2d 173 (Fla. 1st DCA 1994), the First District Court of Appeal held:   “The estimated cost of selling may be deducted from the value of the property where there is evidence as to the estimated sale costs.”  The court cited a foreclosure case, Savers Federal Savings and Loan Ass’n v. Sandcastle Beach Joint Venture, 498 So. 2d 519 (Fla. 1st DCA 1986), and a divorce case, Taber v. Taber, 626 So. 2d 1089 (Fla. 1st DCA 1993).  Savers Federal Savings and Loan Ass’n v. Sandcastle Beach Joint Venture: Failure to Consider Sales Costs In the foreclosure case, Savers Federal Savings and Loan Ass’n, the First DCA received a real estate appraiser’s expert opinion about the fair market value of condo project. The S&L foreclosed on the project, then sought a deficiency judgment for the difference between the foreclosure sale price and the FMV of the project. The trial judge denied the lender’s deficiency claim based on a finding the value of the property on the date of the foreclosure sale exceeded the debt owed. But the judge accepted an overstated value for the property, by not considering sales costs. The appraiser used two different appraisal methodologies – the cost approach and the market analysis approach. Both approaches assumed imminent sale of the units. Under the cost approach, he arrived at a replacement cost for the condo units as new, less depreciation, and adjusted that for profit, overhead, and the owner’s paying selling costs to individual purchasers over 18 months. Under the market approach, the expert compared the subject townhouses to sales of similar units. He arrived at a gross price, then presumed the seller would sell each unit individually over 18 months based on then-current sales rates.  Under both approaches, the expert testified items that hadn’t yet occurred, including sales expenses, should come off the value. The judge acknowledged the condo project would be sold – an implicit imminent sale – yet failed to deduct associated sales costs. That was wrong. Taber v. Taber – No Imminent Sale In contrast, in Taber, the divorce case First DCA cited in Goodwin, the court considered if the trial court abused its discretion by awarding the former husband an unequal distribution of marital assets. There, a real estate agent testified about the fair market value of the marital home. Then the judge deducted closing costs at .083 percent to which a real estate sales expert testified. Yet there was no evidence of an imminent sale of the home. The Taber court reasoned: In determining the value of real estate, it is entirely appropriate to deduct the estimated cost of selling the property where the value of the property is based on the prospective sale of the property, and the witness as to value indicates such a deduction is appropriate. Savers Fed. Savings and Loan Ass’n v. Sandcastle Beach Joint Dev., 498 So. 2d 519 (Fla. 1st DCA 1986). Absent such evidence, however, a further deduction of value for selling costs is inappropriate. Shaw v. Charter Bank, 576 So. 2d 907 (Fla. 1st DCA 1991). In the instant case, there appears to be no evidence that sale of the property was imminent or that the value was based solely on the ability to sell the property. It is, therefore, unclear from the record on what basis the judge allowed a deduction for closing costs. Reed v. Reed – 2025 – No Imminent Sale – Deducting Closing Costs Disallowed Following Taber, the court in Reed v. Reed, Case No. 4D2023-2584 (Fla. 4th DCA Feb. 19, 2025) likewise tossed out an 8% closing cost deduction. No sale was planned, unless the former wife’s payment default triggered a sale.  Speculative Evidence Won’t Cut It Under the imminent sale doctrine, guessing at realtor fees and closing costs when no sale is imminent is like planning a grocery budget without a shopping list. It’s so much guessing and wandering up and down the aisles. Courts don’t allow that without competent substantial evidence to support deducting these fees and costs. Instead, judges follow a clear line: no deduction without solid evidence of an imminent sale or court order, as seen in Reed and Goodwin. In Reed, the wife wanted to keep the home and property on which she ran a bed and breakfast for years, so no sale was imminent. The court disallowed an 8% cost cut, unless she missed a deadline for paying an equalizing payment.  Daubert – Expert Opinions Must Be Based on Data Not Hunches Solid evidence to support claimed deductions isn’t just a suggestion—it’s key.  Regarding expert opinion, Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), raises the bar. This US Supreme Court case, the evidentiary standard from which Florida adopted, demands expert testimony be based on tested, reliable methods, not on guesses. See Section 90.702, Florida Statutes; In re Amendments to the Florida Evidence

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Florida Collaborative Family Law Rule of Procedure 12.745

Collaborative Divorce, Jurisdiction and Procedure /

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 application for a stay of the proceeding. A court in which a proceeding is stayed under this subdivision may require the parties and collaborative lawyers to provide a status report on the collaborative law process and the proceeding. The status report may only indicate whether the process is ongoing or concluded and no other information. The status report may not include a report, assessment, recommendation, finding, or other communication regarding a collaborative matter. A court shall provide notice to the parties and an opportunity to be heard before dismissing a proceeding, in which a notice of collaborative process is filed, based on delay or failure to prosecute. A court may not consider a communication made in violation of this subdivision. (2) Concluding and Terminating Process. A collaborative law process is concluded by: (A) the resolution of a collaborative matter as evidenced by a signed record; (B) the resolution of a part of the collaborative matter, evidenced by a signed record, in which the parties agree that the remaining parts of the matter will not be resolved in the process; (C) a party unilaterally terminating the collaborative law process, with or without cause, by (i) giving notice to other parties in a record that the process is ended, (ii) beginning a contested proceeding related to a collaborative matter without the agreement of all parties, or (iii) in a pending proceeding related to the matter: a. initiating a pleading, motion, order to show cause, or request for a conference with the court; b. requesting that the proceeding be put on the court’s active calendar; or c. taking similar action requiring notice to be sent to the parties; or (D) except as otherwise provided by subdivision (b)(3), a party discharging a collaborative lawyer or a collaborative lawyer withdrawing from further representation of a party. If a proceeding is pending before a court, the parties shall promptly file with the court notice in a record when a collaborative law process concludes. Any stay of the proceeding is lifted when the notice is filed. The notice may not specify any reason for termination of the process. (3) Discharge or Withdrawal from Representation. A party’s collaborative lawyer shall give prompt notice to all other parties in a record of a discharge or withdrawal. If a proceeding was pending prior to the initiation of the collaborative process, the party’s collaborative lawyer shall comply with the requirements of Florida Rule of General Practice and Judicial Administration 2.505. Notwithstanding the discharge or withdrawal of a collaborative lawyer, a collaborative law process continues, if not later than 30 days after the date that the notice of the discharge or withdrawal of a collaborative lawyer is sent to the parties: (A) the unrepresented party retains a successor collaborative lawyer; and (B) in a signed record: (i) the parties consent to continue the process by reaffirming the collaborative law participation agreement; and (ii) the agreement is amended to identify the successor collaborative lawyer and the successor attorney signs the participation agreement. (c) Approval of Interim Agreements. A collaborative law process does not conclude if, with the consent of the parties, a party requests a court to approve a written agreement resolving an issue in the collaborative matter while other issues remain pending. (d) Alternative Dispute Resolution Permitted. Nothing in this rule shall be construed to prohibit the parties from using, by mutual agreement, any other permissible form of alternative dispute resolution to reach a settlement on any of the issues included in the collaborative process. (e) Emergency Order. During a collaborative law process, a court may issue emergency orders to protect the health, safety, welfare, or interest of a party or a family or household member as defined in section 741.28, Florida Statutes. (f) Disqualification of Collaborative Lawyer and Lawyers in Associated Law Firm. (1) Except as otherwise provided in subdivision (f)(3), a collaborative lawyer is disqualified from appearing before a court to represent a party in a proceeding related to the collaborative matter. (2) Except as otherwise provided in subdivisions (b)(3) and (c), a lawyer in a law firm with which the collaborative lawyer is associated is disqualified from appearing before a court to represent a party in a proceeding related to the collaborative matter if the collaborative lawyer is disqualified from doing so under subdivision (f)(1). (3) A collaborative lawyer or a lawyer in a law firm with which the collaborative lawyer is associated may represent a party: (A) to ask a court to approve an agreement resulting from the collaborative law process; or (B) to seek to defend an emergency order to protect the health, safety, welfare, or interest of a party, or a family or household member as defined in section 741.28, Florida Statutes, if a successor lawyer is not immediately available to represent that person, but only until the party or family or household member is represented by a successor lawyer or reasonable measures are taken to protect the health, safety, welfare, or interest of that person.

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Family Law Pleadings Must Allege Basis for Personal Jurisdiction. Photo by Todd Rhines (Unsplash) Hand outstretched to sunset.

Family Law Pleadings: Allege Personal Jurisdiction

Collaborative Divorce, Jurisdiction and Procedure /

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 to join the entity must allege it is subject to long-arm jurisdiction and has sufficient minimum contacts with Florida to defend here. See Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995) (if a petitioner fails to plead a legally sufficient basis for long-arm jurisdiction, the respondent “need not come forward with affidavits to prove a negative — that is, that there is no jurisdiction.”) Thus, in Rollet v. de Bizemont, 159 So. 3d 351 (Fla. 3d DCA 2015), the court dismissed a divorcing French wife’s complaint that failed to allege sufficient long-arm jurisdictional facts against a nonresident foreign entity and her nonresident husband. She alleged he fraudulently or under undue influence assigned a contract to buy a South Beach condo without her consent and to divest her of property rights.  Similarly, in Morgan v. Morgan, 679 So. 2d 342 (Fla. 2d DCA 1996), a mother’s unsworn pleading alleging a nonresident father failed to provide child support to children in Florida was deficient. She failed to allege a proper basis for jurisdiction under the Long Arm Statute. Likewise, an ex-wife’s pleadings fell short in Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA Jul 6, 2022). The trial court should have dismissed her action against her nonresident ex-husband. She failed to establish a basis under Florida’s long-arm statute for specific or general personal jurisdiction over him to adjudicate her claims to domesticate and enforce a Hawaiian divorce judgment.  Threshold Analysis: Does the Family Law Pleading Allege Personal Jurisdiction? As a threshold matter, a plaintiff must plead (and if challenged, prove) that a non-resident defendant engaged in statutorily enumerated conduct before  a court may treat service of Florida process outside the state as if the plaintiff had effectuated service within Florida. Section 48.193(3), Florida Statutes; Cortez v. Palace Resorts, Inc., 123 So. 3d 1085 (Fla. 2013); Murphy. As discussed above, the Murphy court found the former wife’s pleadings deficient to allege a basis for long-arm jurisdiction over her ex-husband. To satisfy the pleading requirement, she had to plead at least language that tracked the long-arm statute. But she didn’t have to plead specific facts supporting service of process on him. Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA 2022). Alternatively, she could’ve alleged specific facts about how his actions fit within one of the sections of the long-arm statute. Dep’t of Legal Affairs v. Wyndham Int’l, Inc., 869 So. 2d 592 (Fla. 1st DCA 2004). But all she alleged was how long he had lived in Florida before he left, the properties he used to own in Florida, and the possibility that he may still own property in Florida.  Grammar Rules: The Long-Arm Statute Requires Personal Jurisdiction to Be Based on Current Activity Following grammar rules, the Murphy court read Florida’s long-arm statute as requiring jurisdiction to be based on current (not exclusively past) substantial and not isolated activity. Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996); Gibbons v. Brown, 716 So. 2d 868 (Fla. 1st DCA 1998).  We say this because the linking verb in the statutory provision that we highlighted in the prior paragraph (viz.: “is engaged”) is in the present tense. It is part of an adjective clause that begins with the relative pronoun serving as the subject of the clause—“who.” That clause altogether modifies the antecedent of “who,” which is “a defendant.” This adjective clause, stated in the present tense, thereby describes the type of defendant subject to general jurisdiction in subsection (2). That is to say, because the verb “is” links the past participle “engaged”—operating here as a subject complement—to the relative pronoun it modifies—“who”—the clause effectively links “engaged” (in the present tense) to the defendant being described. This means, in turn, that jurisdiction must be based on current (not exclusively past) “substantial and not isolated activity” within Florida. Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA Jul 6, 2022).  Alleging Contributions of Marital Funds or Effort Alone Is Insufficient to Establish Long Arm Jurisdiction A spouse’s alleging an entity must be brought in because of either spouse’s marital contributions of marital funds or effort is not enough to bring the entity within the jurisdictional reach of the circuit court where the Florida divorce action is pending. See Fishman, 657 So. 2d at 46. See also Manus v. Manus, 193 So. 2d 236 (Fla. 4th DCA 1966). In Manus, the court upheld quashing service on the president of a foreign corporation, while he was in Florida en route to the Bahamas. The wife failed to show her claim against the corporation arose out of an obligation or cause connected with the corporation’s activities in Florida. Instead, her claim was merely based on the husband’s majority ownership of stock in the corporation and alleged threats to remove his assets from the state and country. Operating a Business or Owning Property in Florida Operating a business in Florida, owning real property in Florida, committing a tortious act in Florida, breaching a contract in Florida, or engaging in substantial business activity in Florida may give rise to long arm jurisdiction. Section 48.193, Florida Statutes. For example, Florida’s jurisdiction extended to a foreign corporation in a marriage dissolution case, because the suing spouse alleged the corporation unlawfully removed or encumbered marital assets. Thus, the predicate for jurisdiction was the alleged commission of a tortious act within Florida. Lee B. Stern & Co., Ltd. v. Green, 398 So. 2d 918 (Fla. 3d DCA 1981). But consider Bacinello v. Admiral Marine Surveyors LLC, 338 So. 3d 326 (Fla. 3d DCA 2022).

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Personal Jurisdiction Long arm statute or alter ego. Colorful hands. Photo by Tim Mossholder (Unsplash)

Long-Arm Statute or Alter Ego? Personal Jurisdiction Over Corporation in Florida Divorce

Collaborative Divorce, Jurisdiction and Procedure /

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 established because the entity is merely the “alter ego” of the other spouse.  Personal jurisdiction refers to whether the actions of an individual or business entity permit the Florida court to exercise jurisdiction in a lawsuit naming the individual or business entity. See Borden v. East-European Ins. Co., 921 So. 2d 587 (Fla. 2006). See generally section 48.193, Florida Statutes; White v. Pepsico, Inc., 568 So. 2d 886 (Fla. 1990); Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989) (to subject a defendant to personal jurisdiction, “due process requires that the defendant have certain minimum contacts with the forum”). Florida Long Arm Statute First prong: Specific Jurisdiction or General Jurisdiction Specific Jurisdiction Long-arm jurisdiction over a foreign corporation or entity may be specific. See sections 48.193(1)(a)-(h), Florida Statutes. Specific jurisdiction is where the defendant either personally or through an agent does any of the acts enumerated in those subsections. Specific jurisdiction occurs “when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum.” White v. Pepsico, Inc., 568 So. 2d 886, 888 n.3 (Fla. 1990) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)). General Jurisdiction Alternatively, long-arm jurisdiction may be general. See section 48.193(2), Florida Statutes. General jurisdiction may lie when a defendant is “engaged in substantial and not isolated activity” in Florida. See Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014)(good analysis of specific and general jurisdiction, resulting in reversal of order denying motion to dismiss personal injury suit for lack of personal jurisdiction). Unlike specific jurisdiction, “general jurisdiction” lies over a defendant “engaged in substantial and not isolated activity within this state.” Section 48.193(2), Florida Statutes. There’s no “connexity” required between the nonresident’s activities in Florida and the cause of action the plaintiff asserts in the complaint. Wendt v. Horowitz, 822 So. 2d 1252, 1260 n.7 (Fla. 2002); White, 568 So. 2d at 889 n.4 (“‘Connexity’ is the term courts have adopted to mean a link between a cause of action and the activities of a defendant in the forum state.”); Am. Overseas Marine Corp. v. Patterson, 632 So. 2d 1124 (Fla. 1st DCA 1994).  For general jurisdiction, facts about the nonresident’s contacts must be extensive and pervasive. Reliance Steel Products Co. v. Watson, ESS, Marshall & Enggas, 675 F. 2d 587 (3d Cir.1982). When a spouse fails to plead any basis under the long-arm statute or under an alter-ego theory, dismissal is appropriate. For example, in Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA 2022), the trial court should have dismissed a former wife’s action against her nonresident former husband. She asked the Florida court to adjudicate her claims to domesticate and enforce a Hawaiian divorce judgment. But Ms. Murphy failed to plead and establish a basis under Florida’s long-arm statute for specific or general personal jurisdiction over her former husband. He countered the complaint with a sworn motion to dismiss. She failed to refute his sworn statements he was a North Carolina resident whose prior residency in Florida was incidental to military service. Further, she failed to allege and establish a sufficient basis for general jurisdiction. She had to show, but couldn’t, that he presently engaged in substantial and not isolated activity within Florida. Specific or General Jurisdiction under Florida’s Long-Arm Statute: Are the Entity’s Florida Contacts the Basis for the Spouse’s Claims Against It? If an entity’s contacts with Florida are also the basis for the suit, those contacts may establish specific jurisdiction. For example, see section 48.193(1)(a)-(h), Florida Statutes; Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014) (affidavits revealed few contacts between Florida and the defendant, which had engaged in isolated transactions with Florida companies, mostly over the Internet, without having targeted Florida for business); Caiazzo v. American Royal Arts Corp., 73 So. 3d 245 (Fla. 4th DCA 2011) (applying traditional minimum contacts analysis, whether or not the Internet is involved); Canale v. Rubin, 20 So. 3d 463 (Fla. 2d DCA 2009).  In determining specific jurisdiction, courts consider: See Corporacion Aero Angeles, S.A. v. Fernandez, 69 So. 3d 295 (Fla. 4th DCA 2011). Alternatively, if an entity’s contacts with Florida are not also the basis for the claims, jurisdiction must arise from the entity’s general, more persistent, but unrelated present contacts with Florida. Fla. Stat. §48.193(2). For more about long-arm jurisdiction – specific or general – keep reading here. Questions About Corporations and Trust in Florida Divorce? For questions about personal jurisdiction over foreign corporations and trusts and opportunities in Florida Collaborative Divorce to resolve issues globally, contact Michael P. Sampson of Sampson Collaborative Law. Related Blog Posts:

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Long-Arm Jurisdiction: Specific or General?

Collaborative Divorce, Jurisdiction and Procedure /

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 agent does any of the acts” enumerated in those subsections. See also Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA 2022) (dismissing ex-wife’s action to domesticate and enforce Hawaiian divorce decree against nonresident ex-husband, for failure to establish specific or general personal jurisdiction). In contrast, general jurisdiction under section 48.193(2), Florida Statutes lies where the nonresident is “engaged in substantial and not isolated activity.” Such activity must be present activity, not past or speculative activity. See Murphy v. Murphy. Specific Jurisdiction: Acts Subjecting Entity to Florida’s Jurisdiction An entity that personally or through an agent does certain acts submits itself to the jurisdiction of the courts of Florida for any action arising from the acts. Fla. Stat. §§48.193(1)(a) 1-9. These acts include: (a) The entity was engaged in solicitation or service activities within Florida (48.193(1)(a)6.a); or (b) Products, materials, or things processed, serviced, or manufactured by the entity anywhere were used or consumed within Florida in the ordinary course of commerce, trade, or use (48.193(1)(a)6.b). Seek Dismissal If Suing Spouse Fails to Allege Sufficient Facts to Support Specific Jurisdiction Insufficiently alleging jurisdictional facts against an entity gives grounds for dismissal in the family action. See Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995); Hollowell v. Tamburro, 991 So. 2d 1022 (Fla. 4th DCA 2008). In Fishman, the trial court should have dismissed wife’s claims against husband’s three out-of-state corporations. Her petition failed to allege a legally sufficient basis for Florida to exercise long-arm jurisdiction over the corporations. Dismissal When Pleadings Allege No Sufficient Basis for Personal Jurisdiction Other cases support dismissal when a party fails to allege a sufficient basis for jurisdiction. For example, see Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA 2022) (ex-wife alleged no basis for long-arm jurisdiction over nonresident ex-husband). Likewise, in Rollet v. de Bizemont, 159 So. 3d 351 (Fla. 3d DCA 2015), the court reversed denial of nonresident husband’s motion to dismiss for lack of personal jurisdiction. The pleadings insufficiently alleged a basis for personal jurisdiction over him. General jurisdiction: What is Substantial and Not Isolated Activity? Florida courts have jurisdiction over a foreign entity engaged in “substantial and not isolated activity” within Florida. It doesn’t matter if the activity is interstate, intrastate, or otherwise. Moreover, it doesn’t matter if the claim arises from that activity.  In Florida, substantial and not isolated activity means “continuous and systematic general business contact” with Florida. Caiazzo v. American Royal Arts, Corp., 73 So. 3d 245 (Fla. 4th DCA 2011). See also Olson v. Robbie, 141 So. 3d 636 (Fla. 4th DCA 2014); Vos, B.V. v. Payen, 15 So. 3d 734 (Fla. 3d DCA 2009); Gadea v. Star Cruises, Ltd., 949 So. 2d 1143 (Fla. 3d DCA 2007).  Standard for Establishing General Jurisdiction is More Demanding Than Specific Jurisdiction The standard for establishing general personal jurisdiction is more demanding than the standard for establishing specific personal jurisdiction.  “General jurisdiction requires far more wide-ranging contacts with the forum state than specific jurisdiction, and it is thus more difficult to establish” Canale v. Rubin, 20 So. 3d 463, 467 (Fla. 2d DCA 2009). If a plaintiff fails to meet the due process test for specific jurisdiction, the test for general jurisdiction will rarely be met. Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014). Section 48.193(2), Florida Statutes requires no connection between a petitioner’s claim and the foreign defendant’s Florida activities. Vos, B.V. v. Payen, 15 So. 3d 734 (Fla. 3d DCA 2009).  General Jurisdiction under Long-Arm Statute: Extensive and Pervasive Current Substantial and Not Isolated Activity For general jurisdiction, Florida’s long-arm statute requires it be based on current (not exclusively past) substantial and not isolated activity. Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA Jul 6, 2022); Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996); Gibbons v. Brown, 716 So. 2d 868 (Fla. 1st DCA 1998). Grammar Rules – General Long-Arm Jurisdiction – Defendant Is Engaged in Substantial, Not Isolated Activity in Florida Following grammar rules, the Murphy court read the long-arm statute as requiring jurisdiction to be based on current (not exclusively past) substantial and not isolated activity. Section 48.193(2), Florida Statutes says general jurisdiction lies over a defendant “who is engaged in substantial and not isolated activity within this state.” (Emphasis added). There, the former wife failed to establish not only her nonresident former husband’s “extensive and pervasive” contacts with Florida, but also that he currently maintained those contacts with Florida at the time she filed suit. We say this because the linking verb in the statutory provision that we highlighted in the prior paragraph (viz.: “is engaged”) is in the present tense. It is part of an adjective clause that begins with the relative pronoun serving as the subject of the clause—“who.” That clause altogether modifies the antecedent of “who,” which is “a defendant.” This adjective clause, stated in the present tense, thereby describes the type of defendant subject to general jurisdiction in subsection (2). That is to say, because the verb “is” links the past participle “engaged”—operating here as a subject complement—to the relative pronoun it modifies—“who”—the clause effectively links “engaged” (in the present tense) to the defendant being described. This means, in turn, that jurisdiction must be based on current (not exclusively past) “substantial and not isolated activity” within Florida. Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA 2022).  General Jurisdiction: Other Cases on Continuous, Systematic Activity Many cases discuss general long-arm jurisdiction. What level of activity is sufficient for general jurisdiction to

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Florida Family Law Alter Ego Jurisdiction. Woman behind sheer curtain. Photo by Ian Keefe (Unsplash)

Alter Ego Basis for Jurisdiction in Florida Family Law Action

Collaborative Divorce, Jurisdiction and Procedure /

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 that the other spouse engaged in “improper conduct” in the formation or use of the entity.  A corporation is a separate legal entity, distinct from the persons comprising them. See Gasparini v. Pordomingo, 972 So. 2d 1053 (Fla. 3d DCA 2008); Am. States Ins. Co. v. Kelley, 446 So. 2d 1085 (Fla. 4th DCA 1984) Those who seek to pierce the corporate veil carry a heavy burden. Eagle v. Benefield-Chappell, Inc., 476 So. 2d 716 (Fla. 4th DCA 1985). It’s not enough to establish alter-ego that companies use the same logo and intellectual property under a licensing agreement. See, e.g., Schumacher Group of Delaware, Inc. v. Dictan, 327 So. 3d 404 (Fla. 3d DCA 2021). In Schumacher, a Delaware holding company wasn’t the alter ego of affiliated entities. The companies kept separate books and records. They had separate boards of directors. The holding company didn’t control the affiliates’ business operations. So…what facts establish a nonresident entity is the alter ego of a Florida resident? When Have Courts Found Nonresident Alter Egos Are Subject to Florida’s Jurisdiction? Florida courts have permitted a nonresident shareholder of a resident corporation to be subjected to jurisdiction, when the claimant alleges that basis and evidence establishes the nonresident entity has operated as the mere instrumentality (or “alter ego”) of the resident shareholder or entity and the other party engaged in improper conduct in the formation of the entity. See Bellairs v. Mohrmann, 716 So. 2d 320 (Fla. 2d DCA 1998); Dania Jai-Alai Palace, Inc. v. Sykes, 450 So. 2d 1114 (Fla. 1984). See also Abdo v. Abdo, 263 So. 3d 141 (Fla. 2d DCA 2018) (trial court lacked personal jurisdiction over two business entities to whom siblings transferred websites, where plaintiffs failed to make any specific allegations the entities breached a fiduciary duty, aided and abetted such a breach, or conspired to facilitate one). Sufficient Allegations Required to Pursue Piercing the Corporate Veil Under the Alter Ego Basis for Jurisdiction To establish an alter ego basis for jurisdiction, a suing spouse must allege facts sufficient to “pierce the corporate veil” of the entity. See Parisi v. Quadri de Kingston, 314 So. 3d 656 (Fla. 3d DCA 2021). In Parisi, in an ancillary probate action, the decedent’s sister and personal representative of her estate attempted to allege civil conspiracy by (i) an Argentine man, (ii) his alleged “alter-ego” Delaware limited liability company, and (iii) a Miami cohort. The PR alleged they conspired to steal her dying sister’s Miami Condo. The court discussed the requirements for specifically pleading alter-ego, then dismissed the PR’s complaint against the nonresident with leave to amend. See also WH Smith, PLC v. Benages & Associates, Inc., 51 So. 3d 577 (Fla. 3d DCA 2010) (reversing denial of motion to dismiss because the plaintiff failed to establish personal jurisdiction under the alter ego theory); Woods v. Jorgensen, 522 So. 2d 935 (Fla. 1st DCA 1988). See also Hobbs v. Don Mealey Chevrolet, Inc., 642 So. 2d 1149 (Fla. 5th DCA 1994); Qualley v. International Air Serv. Co., 595 So. 2d 194 (Fla. 3d DCA 1992). Elements for Piercing the Corporate Veil To “pierce the corporate veil,” a spouse should specifically plead and must prove three factors: (1) the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation; (2) the corporate form must have been used fraudulently or for an improper purpose; and (3) the fraudulent or improper use of the corporate form caused injury to the claimant. In re Hillsborough Holdings Corp., 166 B.R. 461 (Bankr.M.D.Fla.1994). See also Seminole Boatyard, Inc. v. Christoph, 715 So. 2d 987 (Fla. 4th DCA 1998). Extension of Alter-Ego Theory to Nonprofit Corporation The alter ego theory has been extended to allow a trial court to inquire whether a non-profit corporation is the alter ego of a spouse in a dissolution proceeding to achieve equitable distribution. See Barineau v. Barineau, 662 So. 2d 1008 (Fla. 1st DCA 1995) (reversing final summary judgment entered for not-for-profit religious organization and remanding for determination of whether the corporation was engaged in improper conduct involving assets that a court could rightfully consider and account for in equitable distribution). Consequences of Failing to Allege Sufficient Facts for Alter Ego: Dismissal of Entity Absent necessary allegations by a spouse in a pleading attempting to bring in an entity on an alter-ego theory, the pleading may be dismissed. See In re: Big Foot Properties, Inc., Case No. 3:11-BK-6868-JAF, Adv. No. 3:12-ap-168-JAF (Bankr. M.D. Fla. 2012). The alter-ego remedy is not available to a spouse who has not alleged and cannot establish that the other spouse used the corporate form to prevent execution on a liability that did not yet exist when the entity was used. Braswell.  See also Noah Technologies, Inc. v. Rice, Case No. 2:14-cv-325-FtM-29DNF (M.D. Fla. November 18, 2014) (stating court was unaware of any cases applying the “reverse alter ego” theory to pierce corporate veil in jurisdictional contexts). Joinder of an Entity “Inextricably Intertwined” with a Spouse Distinct from alter-ego, in the divorce context, is joinder of a corporate entity “inextricably intertwined” with a spouse. See Hoecker v. Hoecker, 426 So. 2d 1191 (Fla. 4th DCA 1983) (error to dismiss corporation from dissolution action, given husband’s testimony, “I’m the company,” and evidence of the parties’ conduct that demonstrated a blending of marital and business partnerships). Likewise, in Rosenberg v. North American Biologicals, Inc., 413 So. 2d 435 (Fla. 3d DCA 1981), the husband’s intimacy with the defendant corporations made the wife’s

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Five Monopoly Hotels

Jurisdiction Over Property at Issue in Florida Divorce

Collaborative Divorce, Jurisdiction and Procedure, Property Distribution /

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 exercise in rem jurisdiction to resolve disputes over real property outside the court’s territorial boundary. Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So. 2d 484 (Fla. 5th DCA 1987) (an action asking the court to act directly on property or title to the property is an in rem action, which must be brought in the county where the land lies). This rule is known as the “local action rule.: See also State, Dep’t of Nat. Res. v. Antioch Univ., 533 So. 2d 869 (Fla. 1st DCA 1988); Seven Hills, Inc. v. Bentley, 848 So. 2d 345 (Fla. 1st DCA 2003). In Rem Jurisdiction Over Property in Florida Divorce An example of in rem jurisdiction over property in a divorce is an action to partition real property or personal property a spouse and another owner, such as a foreign trust or corporation, co-own. Under these circumstances, in rem jurisdiction over the property lies in the circuit court of the county in which the property is physically located. “A partition judgment is unquestionably in rem.” Sammons v. Sammons, 479 So. 2d 223 (Fla. 3d DCA 1985). In divorce, both the dissolution of marriage and division of property rights may be conducted through in rem jurisdiction. Davis v. Dieujuste, 496 So. 2d 806 (Fla. 1986); Montano v. Montano, 520 So. 2d 52 (Fla. 3d DCA 1988).  Under section 64.031, Florida Statutes, a spouse owning an interest in real property or personal property may file a partition action against the cotenants, coparceners, or others interested in the lands to be divided.  For example, in Martinez v. Martinez, 219 So. 3d 259 (Fla. 5th DCA 2017), a wife’s petition for dissolution of marriage included a partition count against her stepson and corporations her husband created during the marriage. She alleged her husband had been commingling the parties’ marital assets with assets owned by the stepson and corporate respondents. She sought partition of the marital assets, recognition and equitable distribution of her interest in the corporations. Further, she asked the court to claw back and equitably distribute assets transferred to the corporations and stepson. The Fifth DCA held the trial court erred by granting the stepson’s motion for summary judgment on his stepmom’s claims against him. No In Rem Jurisdiction if the Property is Outside the County of the Divorce Action For the divorce court to acquire in rem jurisdiction over property, it isn’t enough for a spouse seeking divorce simply to describe property in the divorce petition. To have power to include provisions in a divorce judgment that affect property rights in such property, the property must lie within the county where the divorce action was filed. Contreras v. Contreras, 336 So. 3d 772 (Fla. 3d DCA 2021). Joinder of Nonparty Co-Owners of Property in Florida Divorce Is Necessary to Adjudicate Their Interests A divorce judge can’t adjudicate property interests of co-owners unless joined as parties. In Bailey v. Bailey, 310 So. 3d 103 (Fla. 4th DCA 2021) a mother-in-Law claimed interest in real property, to be distributed in a divorce. The wife sought partition of the property. After joining mother-in-law as an indispensable party, the wife dropped her partition claim.  But the mother-in-law claimed she owned the property with the divorcing couple as joint tenants with rights of survivorship. She moved to intervene, but the trial court denied her motion. The divorce judge could adjudicate only the husband’s and wife’s respective one-third interest in the property, but that adjudication would likely impact the right of survivorship in the property held as joint tenants. Therefore, the 4th DCA held, the mother-in-law’s joinder was required. See also Salituri v. Salituri, 184 So. 3d 1250 (Fla. 4th DCA 2016), in which the same court reversed a judgment purporting to distribute property in a divorce absent joinder of the husband’s dad, who co-owned the property.  In a dissolution of marriage action, in Matajek v. Skowronska, 927 So. 2d 981 (Fla. 5th DCA 2006), the trial judge erred in adjudicating the full value of and assigning to the wife real property titled to a partnership co-owned between Husband’s limited liability company and a partner not a party. Corporate Property: No Power to Transfer Property Without Joining Entity A Florida trial court has no power or authority to transfer property of a corporation without joining the entity. See Ehman v. Ehman, 156 So. 3d 7 (Fla. 2d DCA 2014); Mathes v. Mathes, 91 So. 3d 207 (Fla. 2d DCA 2012). See also Sandstrom v. Sandstrom, 617 So. 2d 327 (Fla 4th DCA 1993) (the court lacked jurisdiction to order a transfer of a corporation’s assets because it was not made a party) and Ashourian v. Ashourian, 483 So. 2d 486 (Fla. 1st DCA 1986).  In Nichols v. Nichols, 578 So. 2d 851 (Fla 2d DCA 1991), an order distributing corporate property in a dissolution of marriage proceeding was reversed because the corporation was not made a party. Likewise, in Keller v. Keller, 521 So. 2d 273 (Fla. 5th DCA 1988), the court had no authority to award wife a Mercedes owned by husband’s corporation because the corporation was not joined).  See also Buchanan v. Buchanan, 225 So. 3d 1002 (Fla. 1st DCA 2017) (court had no power to order a company not joined as a party to continue paying spouse’s salary). Property Business Entities and Trusts Own Isn’t the Same as Spouses’ Ownership in the Entities Assets nonparty LLCs, corporations, partnerships, or trusts own ordinarily aren’t divisible

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Black Labrador Taking Oath Raised Paw. Affidavits to Support Challenges to Jurisdiction in Florida Divorce. Image by Fabian Gieske (Unsplash)

Sworn Affidavits to Support Challenges to Jurisdiction in Florida Divorce

Collaborative Divorce, Jurisdiction and Procedure /

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 of refuting jurisdictional facts with affidavits doesn’t shift to the nonresident.  Similarly, a defendant’s coming forward with sworn affidavits or declarations to contest jurisdictional allegations a spouse may have plead shifts the burden to the spouse to prove by affidavit the basis upon which long-arm jurisdiction may be obtained. Murphy v. Murphy, 342 So. 3d 799 (Fla. 1st DCA 2022). In Murphy, the trial court should have dismissed a former wife’s action against her nonresident former husband. She failed to establish a basis under Florida’s long-arm statute for specific or general personal jurisdiction over him to adjudicate her claims to domesticate and enforce a Hawaiian divorce judgment. He challenged her jurisdictional allegations about how long he had lived in Florida before he left, the properties he used to own in Florida, and the possibility that he may still own property in Florida. His sworn affidavit denied he owned Florida property currently, resided in Florida when she filed her action to domesticate and enforce a Hawaiian divorce decree, or maintained substantial, ongoing contacts with Florida. Courts Derive Facts About Threshold Challenges to Service of Process or Jurisdiction from Sworn Affidavits or Declarations In reviewing a motion to quash service or dismiss for lack of personal jurisdiction, the court likely will derive facts from sworn affidavits or sworn declarations to support challenges, transcripts, and other records. See Rollet v. de Bizemont, 159 So. 3d 351 (Fla. 3d DCA 2015) (reversing denial of nonresident husband’s motion to dismiss accompanied by his affidavit detailing reasons his wife could not plead sufficient allegations to establish personal jurisdiction over him). Multiple Florida cases illustrate how important sworn affidavits or declarations are. For example, in Hamilton v. Hamilton, 142 So. 3d 969 (Fla. 4th DCA 2014), a family stock purchase agreement provided for mandatory venue and consent to jurisdiction in Florida, but a Michigan stepson’s affidavit refuted many allegations regarding contacts with Florida, independent of the forum selection clause, that could establish the requisite minimum contacts. The plaintiff stepmother filed no response or affidavits refuting stepson’s statements. Similarly, in Marina Dodge, Inc. v. Quinn, 134 So. 3d 1103 (Fla. 4th DCA 2014), affidavits before the trial court revealed few contacts between the defendant and Florida. The court in Extendicare, Inc. v. Estate of McGillen, 957 So. 2d 58 (Fla. 5th DCA 2007) relied on affidavits to support challenges to jurisdictional allegations in a complaint. The plaintiff failed to meet its burden to offer sworn proof to contradict the jurisdictional allegations in the affidavit, thus failed to establish a basis for jurisdiction. See also Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla.1989), which sets forth the process for determining factual issues raised by a motion to dismiss for lack of personal jurisdiction and Bellairs v. Mohrmann, 716 So. 2d 320 (Fla. 2d DCA 1998) (following the Venetian Salami procedure regarding the alter ego theory for establishing jurisdiction).  Explain Corporate Relationships with Affidavits or Declarations For jurisdiction, how do courts handle foreign entities affiliated with Florida companies? Sworn affidavits and declarations can help judges figure out complex corporate structures. That way, the judges can determine if a spouse’s claims against a foreign entity within the structure is subject to personal jurisdiction. Eight acts or contacts Florida’s long-arm statute lists can subject an entity to specific jurisdiction. The spouse’s action must also “arise from” one or more of the acts or contacts that give rise to specific jurisdiction.  “Arise from” means a substantive connection between the basis of the cause of action and activity in Florida. There must be a direct affiliation, nexus, or substantial connection between the basis for the cause of action and the action that falls under the long-arm statute. Schumacher – Merely Sharing Trademarks In The Schumacher Group of Delaware, Inc. v. Dictan, 327 So. 3d 404(Fla. 3d DCA 2021), a Delaware holding company, principally doing business in Louisiana, supported its motion to dismiss with its vice president’s declaration. The medical malpractice plaintiff alleged insufficient jurisdictional facts to satisfy the long arm statute requirements. The VP’s declaration stating the company was a holding company doing no business in Florida, had no office in Florida, had no employees in Florida, and owned or lease no property in Florida. Further, the VP explained the Delaware holding company did not control its Florida affiliates’ business operations. The entities maintained separate corporate books and records and separate boards of directors.  Reversing the trial court, the appellate court accepted the declaration and other record evidence as sufficient to refute the plaintiff’s theories, and ordered the trial judge to dismiss the Delaware holding company. The court rejected that merely sharing trademarks, which aren’t legal entities through which a company could act, supported specific long-arm jurisdiction. Further, the plaintiff failed to overcome the declaration by presenting evidence to show such sharing met the “arising from” requirement for specific personal jurisdiction. Affidavits to Support Challenges May Be Excused When Spouse Fails to Plead Jurisdictional Basis A spouse who has sued a corporation or trust must plead a basis for jurisdiction before the burden shifts to the entity to file affidavits to support challenges to jurisdiction.  As noted above, however, when the spouse hasn’t sufficiently served the entity or pled a basis for jurisdiction, the court may excuse the entity from filing affidavits contesting service of process or jurisdiction. That is, the burden of establishing lack of jurisdiction never shifts to the entity. Fishman, Inc. v. Fishman, 657 So. 2d 44 (Fla. 4th DCA 1995).  In Fishman, the wife joined three out-of-state corporations

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Collaborative Divorce – Rule 4-1.19

Collaborative Divorce, Jurisdiction and Procedure /

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 the client with sufficient information about the collaborative law process, including, but not limited to, the following: (1) the material benefits and risks of using the collaborative law process to resolve a family law matter; (2) the nature and scope of the matter to be resolved through the collaborative law process; (3) alternatives to the collaborative law process; (4) that participation in the collaborative law process is voluntary and any client may unilaterally terminate the collaborative law process for any reason; (5) that the collaborative law process will terminate if any participating client initiates a proceeding or seeks court intervention in a pending proceeding related to the collaborative law matter after the clients have signed the collaborative law agreement; (6) limitations on the lawyer’s participation in subsequent proceedings imposed by family law court rules on the collaborative law process; and (7) fees and costs the client can reasonably expect to incur in the collaborative law process, including the fees of the lawyers, mental health professionals, and financial professionals. Collaborative Divorce – Florida Rule Regulating the Florida Bar 4-1.19(b) – Collaborative Participation Agreements (b) Written Agreement Required. A lawyer is prohibited from representing a client in the collaborative process in a family law matter unless all participating lawyers and clients sign a written agreement that includes: (1) a statement of the clients’ intent to resolve a matter through the collaborative law process under these rules; (2) a description of the nature and scope of the matter; (3) identification of the lawyers participating in the collaborative law process and which client(s) they represent; (4) that the clients will make timely, full, candid and informal disclosure of information related to the collaborative matter without formal discovery and will promptly update previously disclosed information that has materially changed; (5) that participation in the collaborative law process is voluntary and any client may unilaterally terminate the collaborative law process for any reason; (6) that the collaborative law process will terminate if any participating client initiates a proceeding or seeks court intervention in a pending proceeding related to the collaborative law matter after the clients have signed the collaborative law agreement; and (7) that the clients understand that their lawyers may not represent the clients or any other person before a court in a proceeding related to the collaborative law matter except as provided by court rule. Collaborative Divorce – Florida Rule Regulating the Florida Bar 4-1.19(c) – Duty to Address Domestic Violence (c) Duty to Address Domestic Violence. A lawyer must reasonably inquire whether a client has a history of any coercive or violent relationship with another party in a family law matter before agreeing to represent a client in the collaborative law process and must make reasonable efforts to continue to assess whether a coercive or violent relationship exists between parties in a family law matter throughout the collaborative law process. A lawyer may not represent a client in the collaborative law process in a family law matter and must terminate the client-lawyer relationship in an existing collaborative law process in a family law matter if the lawyer reasonably believes that the lawyer’s client has a history of any coercive or violent relationship with another party in the matter unless: (1) the client requests to begin or continue the collaborative lawprocess; and (2) the lawyer reasonably believes that the safety of the client can be protected during the collaborative law process. Florida Family Law Rules Committee Commentary COMMENT The collaborative law process involves the nonadversarial resolution of disputes through voluntary settlement procedures. Florida statutes and court rules permit collaborative law to resolve disputes in family law. Lawyers engaging in the collaborative law process in family law matters must comply with legislative and court requirements regarding the process. As part of this nonadversarial and voluntary resolution of disputes, lawyers who engage in the collaborative law process in a family law matter, and any other lawyers in that lawyer’s firm, may not afterwards represent any party in any related proceeding except to request that a court approve the settlement reached during the collaborative law process or in specified emergency situations in accordance with family law court rules. Before agreeing with the client to proceed in the collaborative law process in a family law matter, a lawyer should first consider whether a prospective client is an appropriate candidate for the collaborative law process and must provide the client with sufficient information regarding the benefits and risks of the process, including the lawyer’s limitations regarding subsequent proceedings. See also rules 4-1.4 and 4-1.2. To determine whether a client is a good candidate for the collaborative law process, the lawyer must inquire regarding any history of coercive or violent relationships with any other persons who would be parties to the collaborative law process in the family law matter. See also rules 4- 1.1 and 4-1.2. The lawyer also must provide the client with information about other reasonably available alternatives to resolve the family law matter, which may include litigation, mediation, arbitration, or expert evaluation. See also rule 4-1.4. The lawyer should assess whether the prospective client is likely to cooperate in voluntary discovery and discuss that process with the client. See rules 4-1.1 and 4-1.2. The lawyer should also advise the client that the collaborative law process will terminate if any party initiates litigation or other court intervention in the matter after signing a collaborative law agreement. Id. The lawyer

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Florida’s Collaborative Law System

Collaborative Divorce, Jurisdiction and Procedure /

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 create a uniform collaborative law system. This system encourages peacefully resolving disputes and settling litigation through early voluntary effort. For examples of fights between couples who didn’t collaborate, browse Florida family law cases since 2011 with this free case search tool.  In addition to promoting peacefully resolving disputes, Florida’s collaborative law system promotes a future goal:  Preserving parties’ working relationship. Parents often must work together after they divorce to raise their kids and make decisions together when they share parental responsibility. The Collaborative Process: Informed Consent As noted above, a key to Florida’s collaborative law system is its collaborative ethical rule. Under Rule 4-1.19, Rules Regulating the Florida Bar, your prospective lawyer team member must have your  informed consent to resolve your matter using the collaborative method.  Therefore, as you consider your options, expect that your prospective lawyer and you will discuss: the material benefits and risks of using the collaborative law process to resolve your family law matter; the nature and scope of the matter to be resolved; alternatives to collaborative (including do-it-yourself, mediation, or litigation); that participation in collaborative is voluntary and any client may unilaterally terminate the process for any reason; that the collaborative law process will terminate if, after signing the collaborative participation agreement, any participant initiates a court proceeding or seeks court intervention related to the collaborative law matter; limitations on the lawyer’s participation in subsequent proceedings imposed by family law court rules; and fees and costs you can reasonably expect to incur, including fees of the lawyers, mental health professionals, and financial professionals. Collaborative: Transparent Exchange of Information Another important key to Florida’s collaborative law system is a procedural rule, which promotes open sharing of important financial information. This means the collaborative process is transparent, which saves money parties who litigate spend: taking depositions, issuing subpoenas, fighting over requests for documents, and hearings to resolve discovery disputes.  Collaborative: A Goal-Focused Process In litigation and mediation, divorcing couples focus on, assert, and often won’t budge from positions. The result? Drawn out court fights case summaries of which appear here. That’s true even when thinking about each person’s and the family’s goals might be better for everyone. But Florida’s collaborative system and rules create a process focused on and encouraging people to identify and work towards goals. First, a collaborating couple commits to resolve issues openly and with respect.  Towards this end, they commit to listening and other communication guidelines. Next, the couple agrees not to take positions. Instead, they agree to focus on future needs and goals. The couple starts by identifying on a whiteboard their goals and interests and often find common ones. Consistent with these principles, Florida Family Law Rule of Procedure 12.745 states the couple will make timely, full, candid and informal disclosure of information.  In collaborative matters, there’s no formal discovery. Clients must update important information when it changes. Read More About Florida’s Collaborative System and Rules Read the Supreme Court of Florida’s opinion adopting the collaborative rules at In Re Amendments to Rule Regulating Florida Bar 4-1.19, 218 So. 3d 440 (Fla. May 18, 2017) and amended January 4, 2019, effective March 5, 2019 at In Re Amendments to Rule Regulating Florida Bar – Biennial Petition, 267 So. 3d 891 (Fla. January 4, 2019). Uniform Collaborative Law Act (UCLA) The collaborative movement is global. Among its 2,700 members, the International Academy of Collaborative Professionals lists in its directory members from: Australia Austria Bermuda Brazil Canada France Germany Hong Kong Ireland Italy Japan Malaysia Netherlands New Zealand Panama Puerto Rico Singapore Spain Switzerland United Kingdom United States of America In the United States, Florida is among 28 jurisdictions (including the District of Columbia), that adopted the Uniform Collaborative Law Act or Rules. For a chart of state enactment, with links to various state collaborative laws, click here. In 2024, Kentucky, Louisiana, and Mississippi joined the movement. The movement surges on: in 2025, Connecticut and Oklahoma adopted the Uniform Collaborative Law Act. They became the 27th and 28th jurisdictions to have adopted the Uniform Collaborative Law Act or Rules. 

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