Same Sex Marriage is Legal in all 50 States--Now What? Thoughts on the Practical Effect on the Practice of Law in Florida.

Same sex marriage (SSM) is legal in all 50 states as of June 26, 2015.  Now what?  [If you want to read the landmark decision of the US Supreme Court making SSM legal everywhere in the U.S., here's a link:  Obergefell v. Hodges.]

For Florida practitioners, there are four obvious areas in which the legalization of SSM will have an immediate and practical effect:  family law, estate planning, real property, and personal injury.

1.  Family Law:  where there are marriages, there will also be divorces. Practitioners have been fashioning SSM "divorces" for years through contracts but the remedy was woefully insufficient. The big change here from the parties' perspective is the entitlement to the benefit of the divorce code. The big change coming in family law practice is a revision of pleadings and forms such as prenuptial agreements to refer properly to the spouses in personal pronouns and appellations.  The general consensus developing is that the proper manner to refer to the parties to a SSM are Husband/Husband or Wife/Wife. [Side note; There's about a million other variations on this issue having to do with gender referencing but that is not what this blog post is about and many other more learned and nuanced sources exist on the internet--google it].  The use of the Husband/Husband or Wife/Wife appellations will cause some need for careful drafting though since most programs or forms rely on the Husband/Wife configuration to keep track of each party in a document.  So if your forms are built on that paradigm, you will have to be extra careful when using them to draft documents for a SSM-divorce or prenuptial agreement.

2.  Estate Planning:  Estate planning practitioners have also been writing same sex documents for years. The real change here is not necessarily the forms but the rights and privileges parties to SSM will now be entitled to claim.  For example, the surviving spouse of a SSM will now be entitled to claim pretermitted spouse status, elect to take the spousal share, inherit by intestacy,  be entitled to all of the rights of a surviving spouse with respect to homestead including an election to take the spouse's joint tenant's share in the homestead, be entitled to be Personal Representative in an intestate estate, and be entitled to claim personal property exemptions for personal property, vehicles and other tangibles. The HUGE impact the legalization of SSM will have on estate planning for same sex couples is really not quantifiable.  Check out my website for answers to Frequently Asked Questions about Probate and Estate Planning.

3.  Real Property:  Just as with family law and estate planning, documents will have to be revised; however, most real property practitioners have been writing deeds and other instruments for same sex couples for years.  Here again the HUGE change is the rights and privileges the SSM couple will now be entitled to claim.  First, having the right to own property as tenants by the entireties is a really big deal.  Why?  Because real property held as tenants by the entireties is very special, and immune from all efforts of collection unless the judgment holder has a judgment against both spouses.  This is really the only change for real property that matters (excluding homestead as addressed above).  The big change in practice will be remembering to acknowledge the SSM in our deeds.  Best practice has always been to reference the marital status of both grantor and grantee in every deed (so that a title examiner down the road can exclude homestead and/or tenants by the entireties issues from a transaction).  Now more than ever, this best practice will be paramount since before the homestead and tenants by the entireties was only an issue when the grantor or grantee was a man and a woman. Now any combination of genders could be a married couple so what before was a best practice is now an absolute necessity in my opinion.  I wrote about the history of homestead in Florida here.  Check out my website for answers to Frequently Asked Questions about real estate.

4.  Personal Injury:   Parties to a SSM will now enjoy the same spousal rights in personal injury and wrongful death cases as everyone else. Where before the uninjured partner in a same sex couple was not entitled to sue for loss of consortium, etc, a legally married same sex couple will enjoy these rights.

Many other practice areas will be affected by this epic shift in the landscape and my thoughts above are directed primarily to areas of my practice (1-3 above) in which I anticipate immediate changes.   Please note that I am not interested in a debate about SSM, or anyone's opinion on SSM so please do not bother commenting as I will be very liberal with the delete button. That said, I would love to read comments about the effect of this case on your practice.

Happy Wednesday!

Julie

Isler & Sombathy, P.A.


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I'm Back!

I'm back! To be honest I'm really just posting this to promote a continuing legal education seminar at which I am a speaker.  Probably not the same for everyone, but I was super excited to be asked to speak at this seminar by the National Business Institute.  Not only is it tremendously flattering, but it is very exciting to see legal education companies reaching out to our market.  I never thought I'd see the day when I could get 8 credit hours including 1 hour of Ethics without driving six hours or more! Thank you NBI for coming to Panama City! Also Probate was my first love in the law and remains one of my favorite practice areas.  Click here for more information. The Probate Process From Start to Finish.

In other news, I am working on an overview of the impact of the legalization of same sex marriage on different areas of the law. I expect to have it up in the next few days.  Until then,

Cheers!

Julie
Isler & Sombathy, P.A.


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This is a sign a lawyer lives in your house...

BINDER CLIPS FOR ANYTHING!

Happy Friday.

Julie

www.islersombathy.com

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Florida Supreme Court Opinion: Undocmented immigrants ineligible for membership in the the Florida Bar

The Florida Supreme Court issued a ruling today in Opinion No. SC11-2568 on the question of whether an otherwise qualified individual who is not a citizen and is not  legally residing in the U.S. is eligible for membership in the Florida Bar.

Short Answer:  No.

Julie





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Electronic Filing System and Confidential Information

Since the time there have been courts, there have been court files. And court files often contain very private, sensitive information such as bank account numbers, your social security number, full name, and date of birth. Before the internet, this was not that big of a deal.  In order to access this information, a person had to first know it was in a court file, and then either appear in person or write and request copies of the pleadings or evidence in the file.  In other words, there used to be a paper trail leading back to the person requesting the copies of the pleadings or evidence.  There was no anonymity.  

With the advent of the internet, online court records, online official records and for the state court system in Florida, a unified electronic filing system implemented in 2013, there is almost total anonymity and zero privacy. Luckily the courts have addressed this issue with Florida Rule of Judicial Administration 2.420 which allows a party (or in some cases a non-party) to protect their sensitive information.  Otherwise, anyone with a password and minimal computer skills can access the court files of any Florida court and print copies of anything scanned for that court file. Without getting too specific, the Clerk has some capability to research the history of activity of a username and password such that an unauthorized access can only be caught but only if the true owner of the username and password becomes aware of the misuse fairly quickly.  

In my experience,  there are two situations in which the clerk of court does not scan everything that is filed. First, the clerk does not scan old pleadings in dormant files. This is a matter of manpower.  Whenever we access a file that has not been scanned, we just call and they scan it.  Second, the clerk sometimes does not scan a file as a courtesy to someone involved.  If you call and ask that the file be scanned, they will.  But as long as no one is asking, that file just does not get scanned.  This happens everywhere, not just in the county where I reside.

Rule 2.420 creates categories of certain types of information which may be protected.  To protect your information, you have to file a notice of filing of confidential information which designates the type of information and the location of it in your pleading.  This allows the clerk to redact or not scan portions or all of any pleading (depending on the case) containing the information. Basically, your notice is a road map for the clerks, who locate and redact the confidential information in each pleading prior to making the scanned pleading available online.  So for example, if you are going to trial and intend to introduce bank statements and loan applications as evidence, then you need to do a Notice of Filing Confidential Information. Otherwise, the clerk's office will scan your documents as exhibits, thus making them available to anyone with a user name and password and rendering you very vulnerable to identity theft.

If an opposing party files pleadings or documents containing your private information like bank account numbers, social security number, or date of birth, Rule 2.425 provides a remedy in two ways.  First, the aggrieved party can ask the court to require redaction or sealing of the offending records.  Second, the court can issue sanctions against the filer as Rule 2.425 requires that parties minimize the filing of documents containing sensitive information.

If the quantity and location of the information is so pervasive in the document that redaction would be impractical and burdensome, then I recommend filing a Notice Filing Confidential Information but taking it a step further and asking the court to seal the pleadings.  For example, when proof of my client's damages required admitting into evidence copies of correspondence and proof of payments to the IRS, I asked the court to seal the exhibits rather than attempt to locate and describe each piece of confidential information. The court has the discretion to do this under Florida Rule of Judicial Administration 2.425, but it is a very drastic action and should only be requested in extreme circumstances.

Julie





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Better Late Than Never: Best of 2013

Short and sweet:  These were the top 3 posts based on page views on this blog for 2013.

1.  The Story of Arnie and Ophelia

2. Thoughts on Women Attorneys and the Conundrum of Appearance

3.  Faye's Story: Part One, Part Two, and Part Three.

Julie





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Happy Halloween!

Four jack o'lanterns in honor of the holiday

Alien

  

I think this one is spot on.  Those movies were stressful and scary weren't they?

LORD OF THE RINGS

ONE RING TO RULE THEM ALL

ONE RING TO FIND THEM

The detail is just wow.  Very clever. You cannot go wrong with a LOTR reference.  

I call this one "Descent into Sadness"

The night started out so well, and then....

My sister-in-law works for an ENT.  I have begged her for two years to do a jack o'lantern like the puking one appropriately themed for the doctor's specialty for their annual contest. Instead, she did this one.

Don't get me wrong, this pumpkin is great.  

She could totally go for the gross out 

though and it would be hilarious. 

I'm still working on her for next year.

Hope everyone has a happy and safe Halloween! 

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved