Proposed Changes to Child Time-Sharing Laws

Senate Bill 250 has passed in both houses and is awaiting Governor Scott's signature. This law change affects how the courts will decide child custody and time-sharing. According to the bill analysis, the significant changes and potential effect are:

"The bill creates a presumption that equal time-sharing is presumed to be in the best interest of a child. Assuming that placing a presumption in law simplifies time-sharing actions, parties to a time-sharing action may spend less on litigation costs."

And -

"The bill provides additional guidelines for the court to use in determining a time-sharing schedule of a minor child. Current law provides that the public policy of the state is for each minor to have frequent and continuing contact with both parents after the parents separate or divorce. Consistent with existing legislative intent, this bill creates a rebuttable presumption that approximately equal timesharing with a minor child by both parents is in the best interest of the child. A party may overcome the presumption by providing evidence based on factors that affect the welfare and interests of the child and the circumstance of the family.

Current law provides a list of factors for the court to consider in establishing or modifying a time-sharing schedule, based on the best interests of the child. In addition to the factors presently provided in law, this bill adds the following:

The amount of timesharing requested by each parent; and

• The frequency that a parent would likely leave the child in the care of a nonrelative on evenings and weekends when the other parent would be available and willing to provide care.
• The bill requires a court to support an order that provides for unequal timesharing with written findings of fact."

If the Governor approves this bill and signs it into law it is scheduled to be in effect on October 1, 2016. 

In my opinion, although the presumption that 50/50 times-haring is in the best interest of the child sounds like a good idea, it could have significant drawbacks. Parents would be required to overcome the presumption that 50/50 time-sharing is appropriate, and may pro se litigants are going to struggle to do that. Would they be required to have the other parent evaluated? Would this bill lead to additional litigation as the parties attempt to overcome the rebuttable presumption supporting 50/50 time-sharing? What do you think?  

National Women's History Month

In March we celebrate National Women's History Month. I do not identify as a feminist, but there are many women I admire. These are just a few on my list:

Eleanor Roosevelt

When President Franklin Roosevelt was stricken with polio in 1921, the first lady, Eleanor Roosevelt, took a more active interest in public issues in order to restore his links with the world of politics. Throughout her adult life she played a leading part in women's organizations and was active in encouraging youth movements, in promoting consumer welfare, in working for the civil rights of minorities, and in combating poor housing and unemployment. In 1933 she conducted the first press conference ever held by a U.S. president's wife, and in 1935 she began writing a daily column, "My Day," which was syndicated in many newspapers. She also conducted a radio program, and traveled around the country, lecturing, observing conditions, and furthering causes.

Mother Teresa - 1979 Nobel Peace Prize

Mother Teresa taught in India for 17 years before she experienced her 1946 "call within a call" to devote herself to caring for the sick and poor. Her order established a hospice; centers for the blind, aged, and disabled; and a leper colony. In 1979 she received the Nobel Peace Prize for her humanitarian work.

Justice Sonia Sotomayer

Sonia Sotomayor – the fearless federal trial court judge who saved Major League Baseball from a ruinous 1995 strike – entered the record book as the first Hispanic and the third woman to serve on the High Court. Sotomayor was born in the Bronx on June 25, 1954 to Juan Sotomayor and Celina Baez, both native Puerto Ricans. Her father worked in manual labor and her mother was a nurse. The family took residence in the Bronxdale Houses, one of the most coveted complexes in the city-owned housing projects. Sotomayor’s father passed away when she was nine. Following his death, Celina began working six-day weeks as a nurse to support the family. Sotomayor decided to become an attorney at the age of 10 upon watching an episode from the legal drama "Perry Mason."

Judge Sonia Sotomayor is the first Latina to sit on the United States Supreme Court. She was a judge of the United States Court of Appeals for the Second Circuit when President Barack Obama picked her to replace retired justice David Souter on the U.S. Supreme Court in 2009.

Malala Yousafzai - 2014 Nobel Peace Prize

Much of the world's population, especially in poor countries, is made up of children and young people. To achieve a peaceful world, it is crucial that the rights of children and young people be respected. Injustices perpetrated against children contribute to the spread of conflicts to future generations. Already at eleven years of age Malala Yousafzai fought for girls' right to education. After having suffered an attack on her life by Taliban gunmen in 2012, she has continued her struggle and become a leading advocate of girls' rights.

In her speech, "I am many" Ms Yousafzai said the award was not just for her: "It is for those forgotten children who want education. It is for those frightened children who want peace. It is for those voiceless children who want change.

"I am here to stand up for their rights, raise their voice. It is not time to pity them. It is time to take action so it becomes the last time that we see a child deprived of education."

Besides the famous women in history, each of has women in our personal histories whom we admire and celebrate. This month, please take note of the women in your history and present who have made your world a better place ... mothers, sisters, colleagues, teachers, and daughters.

In the United States, National Women’s History Month began in 1981. Congress petitioned President Reagan to proclaim the week beginning March 7, 1982 as “Women’s History Week.” He did so, saying:

American women of every race, creed and ethnic background helped found and build our Nation in countless recorded and unrecorded ways … As leaders in public affairs, American women not only worked to secure their own rights of suffrage and equal opportunity but also were principal advocates in the abolitionist, temperance, mental health reform, industrial labor and social reform movements, as well as the modern civil rights movement.

Women’s History Week was recognized for the next five years until the National Women’s History Project lobbied Congress to designate the entire month of March as “National Women’s History Month.” Since President Reagan issued such a proclamation in 1987, March has been officially labeled as such. 

Investigation or Harassment?

When does protecting consumers become harassment? Even without any consumer complaint about any damage done the Florida Bar has the right to initiate an unauthorized practice of law investigation on their own; for the “potential” harm that could occur. Even though no one has complained of any harm, damages, error, or mistake caused or done by a document preparer, the Florida Bar can and does investigate document preparers on the slimmest excuse. Considering that there is no required consumer complainant, all document preparers are subject to being investigated at any time at the whim of the Bar.

The Florida Bar can and does initiate unauthorized practice of law complaints against document preparers for stating in their advertising things like:

• Using the word "legal" in their business name;
• Using the word "legal" on their website;
• Using the phrase "legal services" in their business name or website;
• Offering free consultations;
• Stating their years of prior experience as a paralegal;
• Referring to herself/ himself as a paralegal or legal asssistant;
• Stating their education, degrees earned;
• Stating that document services are a low cost alternative to the high cost of attorney fees;
• Using words such as "help", "assistance", and "solutions" to describe their services.

The Florida Constitution authorizes the Florida Supreme Court to regulate and govern the practice of law:

Florida Statute 454.021 Attorneys; admission to practice law; Supreme Court to govern and regulate.—

(2) The Supreme Court of Florida, being the highest court of said state, is the proper court to govern and regulate admissions of attorneys and counselors to practice law in said state.


The Florida Supreme Court has exclusive jurisdiction regulation of the Florida Bar, regulation of admissions to the Bar, and creating and amending the Florida Rules of Court, The Florida Supreme Court, in turn delegates the authority to investigate unauthorized practice of law to the Florida Bar. The Florida Bar, as an official arm of the court, is charged with the duty of considering, investigating, and seeking the prohibition of matters pertaining to the unlicensed practice of law and the prosecution of alleged offenders.

Florida Bar UPL Rules state:


10-2. DEFINITIONS RULE 10-2.1 GENERALLY

(a) Unlicensed Practice of Law. The unlicensed practice of law shall mean the practice of law, as prohibited by statute, court rule, and case law of the state of Florida.

10-5. COMPLAINT PROCESSING AND INITIAL INVESTIGATORY PROCEDURES RULE 10-5.1 COMPLAINT PROCESSING

(b) Review by Bar Counsel. Bar counsel shall review the complaint and determine whether the alleged conduct, if proven, would constitute a violation of the prohibition against engaging in the unlicensed practice of law. Bar counsel may conduct a preliminary, informal investigation to aid in this determination and, if necessary, may employ a Florida bar staff investigator to aid in the preliminary investigation. If bar counsel determines that the facts, if proven, would not constitute a violation, bar counsel may decline to pursue the complaint. A decision by bar counsel not to pursue a complaint shall not preclude further action or review under the Rules Regulating The Florida Bar. The complainant shall be notified of a decision not to pursue a complaint and shall be given the reasons therefor.

Legal Document Preparers and Freedom of Speech

My dad often used the term "aggressively stupid" to describe officious petty bureaucrats. He had other favorites too, IPA was his acronym for "idiots per acre", as in "the IPA index is off the charts here". He was also a life long snob, using yet another personal acronym, LSE, which stood for lower-socio-economic to describe anyone who he thought was beneath him, which was most people. The two years I spent living with him as a teenager were endlessly interesting and educational. Dad was super intelligent and quite the misanthropist. He retired from the U.S. Navy as a Captain and was a psychiatrist; and managed to alienate three of his five children before he died.

I could not help but think about my dad when I read recent Florida Bar unauthorized practice of law (UPL) letters sent to legal document preparers. IPA certainly came to mind. But more on point, is the aggressively stupid label. In the most recent UPL letters the Florida Bar and UPL Committee has stated that legal document preparers may not use the word "legal" anywhere on their websites. At first, it was that we may not use the word "legal" to modify services - legal services. I concede that could be confusing ... maybe. Then it was that legal document preparers may not use the word "legal" in their email address. Next it was that legal document preparers may not use the word "legal" in their business name. Funny, I have been the Director of the Florida Association of Legal Document Preparers since 2010, and that one is news to me. And, the latest is, that legal document preparers may not use the word "legal" on their website, anywhere, or in any of their advertising.

This is the stupid part: Legal document preparers may not use the word "legal", but others can? What about bloggers? I'm a blogger, this is a blog. The name of this blog is "Legal Sunshine". I can think of a whole slew of ways to use the word legal that have little or nothing to do with lawyers or legal document preparers. Legal, legal, legal. Street legal, legal limit, legal job, legal questions, legal information, legal dictionary and on and on. And just for fun, I went on the Florida Division of Corporations' site and found pages and pages of business names that include the word "legal". I'm betting that not all of them are attorneys.

The reason for the prohibition as stated by the Florida Bar UPL Committee is that consumers could be confused and think that a legal document preparer is an attorney. I'm not sure how someone could think that, since disclaimers abound. Nearly every legal document preparer site and advertisement displays, at minimum, the following: "We are not attorneys and do not provide legal advice". Plain language that. Show me a consumer who, after reading that basic disclaimer, believes that the legal document preparer is an attorney, and I'll show you a consumer who most definitely needs help with his legal documents. And, as education and income correlate, that same consumer very likely also could not afford to retain counsel.

This is the aggressive part: Through the power of the Florida Supreme Court, the Florida Bar is authorized to investigate UPL. In reality, the Florida Bar has absolutely nothing to do with legal document preparers until and unless there is unauthorized practice of law. The Florida Bar does not regulate legal document preparers in any way; does not oversee legal document preparers in any way; and does not license document preparers in any way. However, UPL is a third degree felony. Right up there with: Grand Theft; Grand Theft Auto; Cocaine Possession; Possession of a Controlled Substance

Burglary of an Occupied Structure; Uttering a Forged Instrument; and Child Neglect just to name a few. I don't believe for one second that the intent of that law is to persecute legal document preparers trying to earn a living. I do believe that if the Florida Bar UPL Committees get their way and prohibit legal document preparers from using the word "legal" to describe the forms they prepare that the First Amendment is in serious jeopardy. And, I believe that I'll be damned, and we will all be damned if our freedom of speech is so curtailed.

Today is National Freedom Day

On February 1, 1865, Abraham Lincoln signed a joint resolution that proposed the 13th Amendment to the U.S. Constitution. The amendment was made to outlaw slavery and was ratified on December 18, 1865. On June 30, 1948, President Harry Truman signed a bill to proclaim February 1 as the first official National Freedom Day in the United States.

One way to celebrate National Freedom Day is to reflect on and savor the freedoms that we enjoy.

Here are a few:

• The freedom to belong to, endorse, or criticize whatever religious or political groups we wish. This is not common in many parts of the world, where criticizing the majority religion or political party can get you sent to jail or even killed.

• We have the peace and security of being able to be in the minority, and not fear that the majority will come kill you and your family for your beliefs. In America, we've learned to tolerate differences without resorting to violence. 

• We have the freedom to spend our money on whatever goods or services are legally for sale, without having to buy from a government enforced monopoly. 

• We have the freedom to change our government. If someone doesn't like the current officeholders, they can form a movement, publicize their views, get candidates to run, mobilize their voters, and replace those officeholders.

• American citizens exercise one of their guaranteed freedoms by going to the primary polls to vote for their favorite presidential candidates. U.S. elections provide for an orderly and peaceful transition of governmental leaders.

• We have the freedom to change our government. If someone doesn't like the current officeholders, they can form a movement, publicize their views, get candidates to run, mobilize their voters, and replace those officeholders. This is not the rule in many countries. 

• We have the freedom to start our own business ventures. If you see an economic opportunity, you can form a business to try and take advantage of this. You don't need to have relatives in high places or other connections to gain permission to start a business.

• In the US you can change your residence, business or spouse very easily.

• And every Sunday, as well as during the week, Christians and people of all faiths are free to worship in the place of their choice. No barred doors. No Secret Police. No censoring of the message by government security. The freedom to worship according to one’s conscience is one of our nation’s most cherished values.

• In the democracies of western Europe, and in Germany in particular, if you change your residence then you must register the change with your local police precinct.

• In many countries around the world there are not even basic human rights – especially religious freedom. Christians – especially in Islamic and communist countries – are forced to worship underground. Reading a Bible could bring imprisonment.

• North Korea – Kim Jong Il must be worshipped as a “god” with no exceptions. Up to 700,000 North Koreans are suffering in prison camps, some for simply practicing their faith underground. As one North Korean said last December, “we can only celebrate Christmas in our hearts.”

• Saudi Arabia – The country is considered a friend of the U.S. due to its support of the war on terrorism. However, there is absolutely no religious freedom. A person charged with apostasy – changing one’s faith from Islam – could face death.

• Iran – Islam is the official religion in Iran and all laws and regulations must be consistent with the official interpretation of Shariah (strict Islamic law). Since hard-line conservative Mahmoud Ahmadinejad became president in 2005, persecution has increased for Christians and others.

• Freedom of international travel is a big one.  As of 2014, a passport from the United States grants entry to 174 countries (tied for #1 with the UK, Germany, Sweden and Finland) either with no visa at all, a visa purchased on arrival, or an "e-visa" purchased online in advance.

• While citizens of most developed countries in Europe have fairly similar freedom of international travel, but politics or other factors limit travel for citizens of many countries that are economically or politically powerful. Israelis and Brazilians only get access to 147 and 146 countries without advance visas, respectively; Taiwanese only 132, Russians only 100, Chinese and Indians only 52!

(This information was collected from my travels around the web, most notably from quora.com, Christian Science Monitor, and Wikipedia).

Over 25,000 hits

Thank you readers. This blog has received over 25,000 hits since its inception. I know that isn't many in the wide world of the blogosphere, but its a benchmark for me. I appreciate your comments, guest posts, and readership.

January is the MOST popular month for divorce.

According to history.com, in 1643, the first record of a legal divorce in the American colonies, Anne Clarke of the Massachusetts Bay Colony was granted a divorce from her absent and adulterous husband, Denis Clarke, by the Quarter Court of Boston, Massachusetts. In a signed and sealed affidavit, Denis Clarke admitted to abandoning his wife, with whom he had two children, for another woman, with whom he had another two children. He also stated his refusal to return to his original wife, thus giving the Puritan court no option but to punish Clarke and grant a divorce to his wife, Anne.

The tradition continues ... family law document preparers know that inquiries and requests for divorce assistance spike during January -- even to this day, nearly 400 years after the first recorded divorce. The reasons consumers most frequently give for their choice of month, is that they did not want to upset the children, the in-laws, or life in general over the holidays. They wait, sometimes biting their tongues and holding their breath until Christmas is long gone and the New Year's party is well over before making the move to file for divorce. The decision to file for divorce may have been made months earlier.

Filing for divorce is a stressful time for all involved. There are almost always emotional issues, financial issues, and property issues to be sorted our and worked through. Here are some do's and don't's from someone who has been through it personally a time or two; and prepared documents for hundreds of divorces.

Do:

• Try to settle as many issues amicably as you possibly can.
• Tell the children of the pending divorce in a reasonable and loving way, assuring them that you will always be a family -- its just that Mom and Dad will no longer be married.
• Cherish the memories. Even if the love has died, remember that you loved this person once.
• Take care of yourself by making sure your support system is intact - whether it is your friends, a formal support group, a counselor, or divorce coach.
• If there are children of the marriage, be especially aware that the children are experiencing as much or more upheaval than you are due to the pending divorce.
• Resist the temptation to involve yourself in a new relationship too soon.

Don't:

• Allow yourself to be pulled into needless emotional turmoil.
• Let your guard down completely. Even though you want it to be amicable, that doesn't mean that you need to be careless.
• Manipulate the children to hurt your soon to be ex.
• Hide money. Be truthful about your finances, and expect the same from your spouse.
• Say unkind things about your ex in front of the children, other family, or friends.
• Don't dwell on blaming your spouse, the blame game doesn't help anything.

Document preparers may not provide legal advice or representation. Obvious as it sounds -- document preparers prepare documents. We can also give legal information and explain procedure. Most family law document preparers are also good listeners and don't mind hearing their customer's stories. .

Sometimes consumers ask whether they need an attorney. 

There is more than one answer.

1. If both parties are in complete agreement and understand exactly what they're agreeing on, then there may be no need for an attorney.
2. If someone thinks they need an attorney, then they probably do. If the customer is afraid of going to court without an attorney; they expect nothing but a fight; feels bullied by their spouse; their spouse has an attorney; or if English is their second language are all good reasons to retain an attorney.
3. A pro se litigant can always retain an attorney if the proceedings become contentious. Family law attorneys are specifically allowed to unbundle their services, they are not required to take on the entire case. Document preparers charge on average between $200-$400 to prepare divorce documents, usually as a flat fee. Attorneys hourly rates may well be $300-$500 per hour.

The Florida Association of Legal Document Preparers has member document preparers throughout the state, many of whom prepare divorce documents. To locate a document preparer in your area for assistance, look through our member directory or call 800-515-0496. We're here to help.