Author: Mary Cosmo, Esquire

Jury Trials are back in Lee County! Both Civil and Criminal jury trials. As you know Jury trials were suspended in March of 2020 due to the Coronavirus pandemic. The Courts have implemented safety measure to protect members of the public while serving on the jury as well as protecting all litigants and court personnel.

Temperature checks, face coverings, continuous cleaning, hand sanitizer stations, and social distancing, according to Amended Administrative Order 20-23. The order outlines how and when jury trials may safely proceed in each county. The 20th Circuit Chief Judge Michael T. McHugh has directed the Lee Clerk of Courts to begin reissuing juror summons for trials scheduled to begin on Sept. 14, 2020.

For more information see https://www.leeclerk.org/courts/jury-duty

In the digital age, we rely so much on copies and pdf files for most of everything we do in business limited only by the speed of our internet connection, why does the Court not allow probate of a copy of a will?   

In Florida, all that a testator needs to do to revoke a will is destroy it and it is deemed revoked.  Yet, no one would know that it was revoked unless the original just happened to be found in the shredder upon the testator’s passing.    Therefore, if the original will cannot be found, the Court will typically presume that the testator purposely destroyed it. 

A presumption of destruction can still be overcome by competent substantial evidence. Typically that evidence will be testimony from a disinterested witness to the will. However, there may be other ways to probate a copy of a will.

So, if you have found a copy of the will and cannot locate the original, you may need to discuss the matter further with an experienced probate attorney. 

REMOTE ONLINE NOTARY (“RON”) pursuant to 117.201-305, Florida Statute.

Beginning January 1, 2020, Florida now allows for online remote notarial acts.  Most acknowledgments, jurats, oaths, and the like are currently available.  However, some documents are not authorized in Florida for Remote Online Notarizations until July 1, 2020, of which will be: Power of Attorneys, Wills, and other testamentary documents. At that time, we will offer such services to our clients.

HOW DOES THIS WORK?

Simply email me your document in a PDF format and provide the Signor’s full name, phone number, and email address.  Or,  go to my website at www.attorneycosmo.com.  Click on “REMOTE ONLINE NOTARY” in the menu.  Simply upload your form, pay your $25.00 fee and you will be contacted by mail to verify your identity through third-party verification and adopt your e-signature.  Once complete you will be contacted to set an appointment with the Florida Approved Remote Online Notary (RON) to complete your notarial act. (electronic requirements and restrictions may apply).

WHAT IS THE COST?

There is a $25.00 fee to complete the Remote Online Notarization.  This is the allowable statutory amount.  Due to the State’s strict mandatory requirements for maintenance of the electronic log, video and audio data storage and ID Verification costs, at this time, I have been unable to offer any discounted rates for multiple transactions.  If the signor will be paying the fee, I will direct them to my website to pay online, consent to the Florida Notary and upload the document.  If it is a larger company with multiple notarial requests, I will just send an invoice to the authorized requester after the execution of each notarized document.

PLEASE NOTE – Not every signor will be able to complete the ID Verification.  If a signor fails the ID Verification, the notary cannot proceed.  The Signor may have a second try at verification but if it fails a second time there will be no further attempts and the notary will stop.  However, the notary is charged for the ID Verification for each Verification submitted so there are no refunds for a failed ID Verification.  However, if it is a technical failure or the ID Verification was not yet initiated, there may be a refund of the 25.00 fee.

HOW WILL THE NOTARY BE ABLE TO VERIFY THE SIGNER’S IDENTITY?

Through a third-party identification verification process with strict guidelines set by Florida statute.  You will be required to confirm your identity using proprietary ID verification tools and provide your name, date of birth, last four digits of your social security number, and current or previous US addresses.  You will have to answer five security questions within 2 minutes to verify your identity.  You will have to provide an acceptable form of ID.  IMPORTANT: State laws are specific and very strict regarding ID verification, and even if a person qualifies for ID verification there is no guarantee one will pass no matter how many times ID verification is attempted. 

HOW CAN I SIGN A DOCUMENT ELECTRONICALLY?

Your e-signature.  After your identity has been verified, you will then get a link to adopt your e-signature for the limited purpose of the notarial act. Your e-signature will be the signature that appears on your document.  Your E-signature is electronically attached to your ID-Verification that you completed and electronically certified to the specific document to be notarized.  There is no printing and scanning back and forth to execute the document.  The complete notarial act is completed electronically.  All you need is a computer with internet access and browser (works best with Firefox or Chrome).

HOW LONG DOES THIS PROCESS TAKE?

Once your e-signature has been adopted, the RON will be notified to contact you to complete your notary session or schedule a specific time to complete your notary session. 

(In most cases it can been done within 10-15 minutes, if not sooner, after your e-signature is adopted.  However, if the RON is in another notarial session, you will be emailed to schedule another convenient time to complete your notarization).  PLEASE NOTE-During peak hours the ID Verification process will take longer than expected due to high traffic.

Upon conclusion of the notary session, you will receive an email from Docverify with your completed documents.  The RON will also email our firm the signed and notarized document and you will be copied the email.

HOW CAN I MAKE SURE THAT MY DOCUMENT IS NOT ALTERED AFTER IT IS EXECUTED?

Each Document transaction, whether it is a notarization or an e-signature document, is assigned a digital certification, which is just like a digital fingerprint of your document.  Through this digital certification you can login to DocVerify.com and enter your document credentials and document to retrieve the digital fingerprint of your document, and it will compare the document you have with the digital fingerprint and will indicate whether there are any alterations.

WHAT IF THE SIGNOR IS NOT LOCATED IN FLORIDA AT THE TIME OF THE NOTARY, CAN I STILL USE A FLORIDA REMOTE ONLINE NOTARY?

Pursuant to the statute 117.209(3), an online notary public physically located in Florida may perform an online notarization as authorized under this part, regardless of whether the principal or any witnesses are physically located in this state at the time of the online notarization.  In addition, for those principles that are located outside of Florida, they must also consent to a Florida Notary as the act is deemed to have occurred in Florida and validity of said notarization is determined by the laws of Florida, pursuant to 117.209(4).

PLEASE NOTE—NOT ALL STATES HAVE AUTHORIZED THE USE OF REMOTE ONLINE NOTARIZATION PLEASE CHECK WITH YOUR INDIVIDUAL STATE ON APPLICABILITY AND VALIDITY OF REMOTE ONLINE NOTARIZATION IN YOUR STATE.  Most states that have e-notary laws allow their notaries to perform e-notarizations only; however, many of those e-notary states have amended their laws to allow their commissioned notaries to perform both e-notary and remote notary in most cases.  It is the responsibility of the notaries to learn the difference between e-notary and remote notary as they’re both equally important as well as what their own respective state allows them to do.

Mary A. Cosmo, Esq., is a Florida Supreme Court Certified Circuit Civil Mediator.  This means that Mary A. Cosmo, may be appointed  in cases where the dispute exceeds $15,000.  The parties share the cost of mediation on an equal basis.

What is Mediation 

Mediation is a way to settle disputes and lawsuits instead of going through an expensive trial. It allows you to control decisions affecting your family, finances, business, divorce, custody problems and other aspects of life. A trained neutral professional, Supreme Court Certified Mediator, helps the parties negotiate a settlement. At the conclusion of your mediation, if you reach a settlement, it will be written into a contract signed by both parties. The Goal of mediation is to assist people in conflict find a “win – win” solution to their legal problems without a costly courtroom battle.

What are the Possible Outcomes of Mediation?

• A complete settlement.
• A a partial settlement, wherein you narrow or limit the issues for a trail court.
• Impasse, which means no agreement was reached and the parties will continue to trial.

What to expect?

The Mediator is NOT a Judge and will not decide the outcome of your case.  In mediation the Parties have complete control over their dispute.  However, a mediator will meet and talk with all parties together and, if necessary, separately.  The mediator will discuss settlement options designed to meet each party’s goals and interests.  The process is confidential.  Confidentiality of mediation is essential to an open discussion to assist the parties movement towards a resolution.   This mean that settlement discussions cannot be used against you if no settlement is reached.  Typically, what is said in a mediation stays confidential throughout the remainder of your case with a very few limited exceptions required by law for disclosure.   Mediation is concluded when the parties sign an agreement or when they cannot agree on any solution, wherein they will continue with the court process. In the majority of cases parties are able to settle all issues and future litigation is not necessary.

PLEASE NOTE–When Mary A. Cosmo, is appointed as a mediator and although she is an attorney she is prohibited from providing any legal advise to either party.  Therefore, you must seek separate legal counsel, if you are not already represented. 

The Best Interest of the child in Florida has a statutory definition, which the Florida Family Courts are required to use to determine parental responsibility and timesharing between separating parents.   This means that when you are making decisions for your children and your decision is based on your opinion alone, it may not necessarily be the same as what a Court would do when the Court is requested to decide the same question.

Section 61.13(3), Florida Statutes.  The best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and
to be reasonable when changes are required.

(b) The anticipated division of parental responsibilities after the litigation, including the
extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and
act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of
either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient
intelligence, understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends,
teachers, medical care providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each parent to provide a consistent
routine for the child, such as discipline, and daily schedules for homework, meals, and
bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other
parent informed of issues and activities regarding the minor child, and the willingness
of each parent to adopt a unified front on all major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or
child neglect, regardless of whether a prior or pending action relating to those issues
has been brought. If the court accepts evidence of prior or pending actions regarding
domestic violence, sexual violence, child abuse, child abandonment, or child neglect,
the court must specifically acknowledge in writing that such evidence was considered
when evaluating the best interests of the child.

(n) Evidence that either parent has knowingly provided false information to the court
regarding any prior or pending action regarding domestic violence, sexual violence,
child abuse, child abandonment, or child neglect.

o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending
litigation, including the extent to which parenting responsibilities were undertaken by
third parties.

(p) The demonstrated capacity and disposition of each parent to participate and be involved
in the child’s school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment
for the child which is free from substance abuse.

(r) The capacity and disposition of each parent to protect the child from the ongoing
litigation as demonstrated by not discussing the litigation with the child, not sharing
documents or electronic media related to the litigation with the child, and refraining
from disparaging comments about the other parent to the child.

(s) The developmental stages and needs of the child and the demonstrated capacity and
disposition of each parent to meet the child’s developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan,
including the time-sharing schedule.

***This article is not intended to replace legal advise from an attorney.  Every case and Family is different.  If you are facing the same or similar legal question, seek the advise of a martial and family law attorney in your area.

***

Divorcing is a difficult time, specifically when you have minor children and the marital home is now part of the equation.  Where will you and your children live?  Which Party will ultimately get the house?  Can the other Party get excessive use and possession of the home?  Can either of you afford to maintain the home?  Who pays the mortgage?

These are questions that we may be seeing a change in the near future.  The times are changing, and the Courts are slow to progress with the times.  Currently, as was recently quoted by the 2^nd District Court of Appeal, “[t]he general rule is a trial court should award the ‘primary residential parent’ exclusive use and possession of the marital residence until the youngest child reaches majority or is emancipated, or the primary residential parent remarries, unless there are special circumstances.”[1] Special circumstances include the ability of the parties to meet their debts, obligations, normal living expenses, and the expenses of maintaining the marital residence.  In most cases, the exception swallows the rule because it presumes that there is a primary residential parent when parties divorce.  Florida no longer has a typical primary residential parent, wherein the Court would decide that one parent’s home was better than the other parent’s home, and typically that would be the marital home if the parties combined income was sufficient to support such a ruling.

The law now in Florida awards “parental responsibility” to the parents as “shared parenting responsibility unless shared parenting responsibility is a detriment to the child.  Prior to the enactment of “parental responsibility” Florida Courts would award “custody” to a “primary residential parent” and the other parent received a visitation schedule.  Now the general rule is to award both parents timesharing based on the best interest factors enumerated in 61.13 (3).  Therefore, instead of choosing one parent over the other, the Court must make specific findings based on competent substantial evidence to limit one parent’s timesharing over the other parent’s timesharing as both parents have an equal opportunity of parenting, if you will.

This brings me back to the general rule of awarding primary residential parent exclusive use and possession of the marital home until the youngest child emancipates (turns 18).  Yes, in those instances where there is substantial competent evidence to limit one’s timesharing to that which was typically regarded as the primary residential parent then this rule would be typical.  However, the aforementioned questions are not so simply answered, as not only would the Court have to determine (based on competent substantial evidence) that it is in the best interest of the children (which requires considerations of all the factors under 61.13(3)) to limit one parent’s timesharing but the Court must also determine the debts, obligations, normal living expenses, and the expenses of maintaining the marital residence.

If timesharing is awarded to a party equal to that which used to called primary residential parent, and the Parties’ combined finances are such that they can afford to meet all their financial obligations including child support, and all other obligations under the final judgement then yes this general rule still stands.  However, it may be more the exception to the rule than a general rule because more so than not the Courts (at least here in the 20^th circuit) typically start the timesharing analysis at shared parental responsibility and equal sharing of timesharing. Then, the Courts balance both sides, by moving time from one parent to the other based on the factors in 61.13(3).

In today’s world in which we live, it is more typical than not, that both parents are equal caregivers and providers during the marriage and therefore should be equal parents under the law.  After all, parenting is a constitutional right.  Therefore, in order to get exclusive uses and possession of the martial home, you would also have to get an award of timesharing that is equal to that which used to be termed as a primary residential parent.  If the Parties’ timesharing is anything less than what used to be termed as the primary residential parent, then you may be ordered to sell the martial home.  Also, if the both parties cannot afford to maintain the martial home, regardless if the Parties have children, you will likely be ordered to sell.

[1] Coristine v Coristine, 53 So. 3^rd 1204 (Fla. 2^nd DCA 2011).

***Every case is different this article is not intended to be used as legal advise.  If you are faced with a similar legal issue, please seek the advise of an experience martial law attorney who can provide the legal advise you need.***