Changes in Florida’s Alimony Law: A Special Episode
Changes in Alimony Law in Florida
On June 30, 2023, Florida Governor Ron DeSantis signed an alimony reform bill into law. In this special bonus episode, Seth walks Pete through the changes this law brings to bear. What happens to cases finished before this went into effect on July 1, 2023? How does it change those currently under way? What should you watch out for in your own divorce?
There are various factors that goes into alimony now, not to mention how it changes depending on short-term, moderate-term and long-term marriage. There’s going to be a lot of work for everyone to go through the process of this now being implemented, so this episode’s designed to help you better understand what all of this means.
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Pete Wright:
Welcome to How To Split A Toaster: A Divorce Podcast About Saving Your Relationships from TruStory FM. Today, Florida's reforming alimony. What does that mean for your toaster?
Seth Nelson:
Welcome to the show, everybody. I'm Seth Nelson, and as always, I'm here with my good friend, Pete Wright. Today, breaking alimony news, Pete.
Pete Wright:
I know. We are breaking into our hot summer of fun here on The Toaster with you, not anywhere near the show until this breaking alimony news is important enough to bring you out of vacation.
Seth Nelson:
Yeah, this is unbelievable. There has been alimony reform percolating in Florida for over 10 years. Similar alimony reform bills have gone to previous governors. Even this governor who vetoed it last year, a previous governor had vetoed it once or twice. Finally, there is alimony reform, whether you like it or not. The reason I say finally is 'cause it was going to keep coming up every year, every year, every year. But the governor signed this law on June 30, 2023. It became effective July 1, 2023.
Pete Wright:
A high-level question that I think sets up, you and I have been talking about this alimony reform coming for a long time. We've been planning on, what are we going to do? How are we going to let people know? It's been months and we thought this was a dead issue until the next cycle. Here he does it on the 30th, Friday. Friday's the time you bury news, right? So what's the story with this alimony reform? Are people happy with it, are not happy with it? Not even the legal community, but just generally.
Seth Nelson:
No. It has been one of the hotly contested issues in Florida legislature and with the governor for years 'cause it impacts so many people. Like all things that impact so many people, there's two sides to every story, and most of our laws can be improved. There's some positive things here. There's some negative things here, depending on what side of the equation you are on. Are you paying or are you receiving? Okay? There's certainly things that are better, and to prevent litigation that should make it easier, hopefully, to save attorney's fees and costs. There's also things that some people are going to find really upsetting and bad, so we'll talk through it. But the reason they did it on a Friday, it wasn't to bury the news, I don't believe. It's because the effective date was the next day, and he was still making that decision-
Pete Wright:
Okay.
Seth Nelson:
... right up till the end.
Pete Wright:
Okay. All right. So where do you want to start in walking through this? It's not an easy piece of legislation. It seems like there are a lot of pieces that have been impacted. Where do you want to start with it?
Seth Nelson:
So I'm going to start with briefly what there was and what is no longer.
Pete Wright:
Okay.
Seth Nelson:
In Florida, and this only relates to Florida, but in Florida there were different types of alimony on June 30, 2023, not on July 1, 2023. The old law there was bridge the gap alimony, that's still there. That is for two years, very short-term marriage, just get somebody transitioning from married life to single life. Think of down payment on a house potentially, or first and last month's rent moving expenses, pretty tight two years. The amount cannot change, the length cannot change. That's it. You're done. Then there's durational alimony. That's the old law, still in the new law, durational alimony, and the old law was, is there a need? Does someone have the ability to pay? Stay-at-home mom, married for 10 years, the most alimony she could get was based on need and ability to pay, which as we've discussed before, you do a full standard of living analysis.
Then you impute income or she gets a job, that means she has less money that she needs from her former spouse because she's working. The most and length of time on a 10-year marriage you could get was 10 years. That has changed. There was also rehabilitative alimony. Rehabilitative alimony, you want to go back to school, you want to get an education, you want to get a certificate so you can get a better job, that's still here, little nuanced modifications. Then there was permanent alimony, and we discussed it before. This is why people hate lawyers. We use the word permanent alimony. It doesn't really mean permanent, it means until either party dies, until someone is in a supportive relationship. They're sharing a bank account with someone. They're living with someone else. They're commingling their assets. They're spending money on each other's children. There's all these factors to prove a supportive relationship. If someone loses their employment, there's a modification. You can't pay the alimony. You can't afford it anymore.
Pete Wright:
So it's permanent unless.
Seth Nelson:
Exactly, or if you retire, but you had to actually retire, and then when you retire, we talked about it before, you get the pleasure of going back to court to say, "I can't pay my alimony anymore. I'm 72 years old. I'm still under this alimony obligation. I just retired. I can't afford it anymore. I'm living off my retirement, not off of my huge income I had before," but you have to go to court and argue about it. Okay?
Pete Wright:
Yeah. Okay.
Seth Nelson:
Permanent alimony in Florida no longer exists. If you have a case pending as of July 1, 2023 or a case-
Pete Wright:
Wow.
Seth Nelson:
... after July 1st, 2023, it is gone. It is no longer the law of Florida. Permanent is done.
Pete Wright:
That seems huge. That seems like the big deal.
Seth Nelson:
Huge, that's the big headline. Permanent alimony no longer in Florida.
Pete Wright:
If you're currently paying permanent alimony because your case was settled and closed five years ago, it's still in effect. Is that correct?
Seth Nelson:
You're still under that court order, and we're going to get to this-
Pete Wright:
Okay.
Seth Nelson:
... because you're talking about modifications and how does it get modified. So if you're now retired and you're under permanent alimony and you bring a suit, I think this new law applies. That's going to get found out the courts and by appeals. So there's going to be like with all laws, you go to the trial court. They're going to do their best to interpret the law. Somebody's going to be unhappy with that decision, they're going to appeal it. The appellate court's going to define it more clearly, and that's going to happen all over the state in the six different appellate court jurisdictions. District court of appeals they are called. They're not going to agree. I'm telling you now, Pete, they're not going to agree, and then it's going to go to the Florida Supreme Court to define it some more; takes years.
Pete Wright:
That was my next question, how long do you think that takes? I imagine suits have been brought probably already.
Seth Nelson:
For sure. Oh, I've got cases pending right now that I'm going to apply this law to. I've got some that we're trying to set for trial that this law is going to apply to. I got others that this law is going to apply to.
Pete Wright:
Any other considerations into this alimony discussion?
Seth Nelson:
Yes. We're about to get into them, going to get into the nitty-gritty, so stick with me on this 'cause this is what people are going to want to know. Okay? Now, what I'm going to focus on is not a modification, I'm focused on in a proceeding for a dissolution of marriage, you're getting divorced. What is the alimony law? Here it is. Okay? One, you have to define the length of your marriage because the length of the marriage will impact the potential length of your alimony.
Pete Wright:
This is if you're only married a couple of years, you're probably going to get a lot less than if you've been married for 40 years.
Seth Nelson:
Oh, that's true, in length of time, not necessary money. Okay? We're just talking time.
Pete Wright:
Okay.
Seth Nelson:
Short-term marriage is anything less than 10 years. That's a change, it used to be seven years. Now it's 10 years as a short-term marriage. Okay?
Pete Wright:
Okay.
Seth Nelson:
A moderate term is a marriage between 10 years and 20 years.
Pete Wright:
Okay.
Seth Nelson:
That is a change. It used to be up until 17 years, now it's 20.
Pete Wright:
Okay.
Seth Nelson:
Anything greater than 20 years is a long-term marriage.
Pete Wright:
Does it matter how they went into defining what short, medium, and long-term is?
Seth Nelson:
Yes. From the date of marriage to the date you file for divorce.
Pete Wright:
Okay.
Seth Nelson:
So what happens is people would rush to the courthouse, and people will still rush to the courthouse when they're at nine years, six months, 11 months, they're going to rush to the courthouse and file before they hit this 10-year mark.
Pete Wright:
Okay.
Seth Nelson:
Okay. So it's a rebuttable presumption. Basically, it says, look, if you're nine years, 364 days, maybe I can go to court and say, "Judge, that's 10 years."
Pete Wright:
Yeah. Right.
Seth Nelson:
Close enough.
Pete Wright:
Right.
Seth Nelson:
Right?
Pete Wright:
Okay.
Seth Nelson:
But what does that do for you? Why do we care? We care because that helps define the amount of time that you can potentially receive alimony. First off, on a short-term marriage, remember 10 years or less, may not exceed 50% of the length of the short-term marriage. You're married for five years. The most you're getting is two-and-a-half years.
Pete Wright:
Then it's just off, cold turkey.
Seth Nelson:
Done.
Pete Wright:
That seems big too. Wow.
Seth Nelson:
Okay?
Pete Wright:
Yeah.
Seth Nelson:
If it is a moderate-term marriage, 10 to 20 years, 60% the length of the marriage.
Pete Wright:
Okay.
Seth Nelson:
Okay? So you see why there's a difference between nine years and 11 years?
Pete Wright:
Yeah, for sure.
Seth Nelson:
Okay? It's another 10% of time.
Pete Wright:
Yeah.
Seth Nelson:
Then if you're in a long-term marriage, I'm going to be very particular with my words, Pete, 'cause it's actually, the long-term marriage is exactly 20 years or longer, 75% the length of the marriage. So the longer you're married in these brackets, it increases from 50 to 60 to 75.
Pete Wright:
So you're married 40 years, you have a long chapter of your life with somebody. You divorce, the alimony can go up to 30 years.
Seth Nelson:
75%-
Pete Wright:
Okay.
Seth Nelson:
... and then it stops.
Pete Wright:
Okay.
Seth Nelson:
Now, here's the thing that we really need to understand, how much. We just talked about length of time of marriage talks about how long you can receive. So first off, that's going to save a lot of time and money about arguing, 'cause it's defined, right?
Pete Wright:
Yeah.
Seth Nelson:
So now how much? This is a huge fight in alimony cases. I'm going to just say stay-at-home mom, for ease of sake in this conversation. What are her true needs? Is she living beyond her needs? What's going on? Does she really need to have all the fanciness and luxuries of this great lifestyle? But we're going to have two houses now, same incomes, people's lifestyles have to drop. You can still do the need analysis, but here's the kicker: You are going to potentially receive what your need is or 35% of the difference in you and your spouse's net income, whichever is less. So I'm going to say that again, and we're going to do math. Okay?
Pete Wright:
Oh, my goodness. I love math so much.
Seth Nelson:
I know, it's brutal. Here's the deal. Let's say for easy math, a husband's making $10,000 net a month. $120,000. He brings in to his bank account after taxes are paid, other deductions that are allowed, 120,000. Okay? Let's say we all agree that the wife can earn $40,000 take home.
Pete Wright:
Okay.
Seth Nelson:
Okay? 120 minus 40,000, 80,000, right?
Pete Wright:
So that's the difference.
Seth Nelson:
But you can only get up to 35% of the difference. So times 0.35, the most that wife can get is $28,000 a year, which divided by 12 is $2,333 a month.
Pete Wright:
Okay.
Seth Nelson:
So ultimately, in that case, she can get 28 grand. She started with 40, 28, she has 68,000. He had 120 minus the 28 he pays her. He has 92,000. That's the most.
Pete Wright:
Just high-level contrast, it feels like the wealthier party, the alimony-paying party benefits under this new alimony calculation.
Seth Nelson:
A lot of people are reading it that way.
Pete Wright:
Should I not be reading it that way?
Seth Nelson:
No. You can certainly read it that way, because what it does is it gives this cap, and it lowers the length of the duration, because duration used to be the full length of the marriage. Now it's half the length or 60%. In long-term marriages. It used to be permanent, now it's 75%. So these are a lot of benefits for the payors, the people that are making that alimony payment.
Pete Wright:
Okay.
Seth Nelson:
Okay. So here's a little nugget. You want to avoid having a forensic accountant figure out need and ability to pay, go through all of your expenses and talk about credit card statements for a year, bank account statements for a year, looking at what you spent on cash, going through the grocery bill. How much is for the kids? How much for me? How much is for her? All that analysis that we've done for year after year after year in cases, if you're going to be the payor, you can say, "I don't want to do that analysis. I'm going to pay you the difference of 35% of our net incomes, 'cause that's the most you're going to get in court," and I'll settle that today.
Pete Wright:
Wow. Wow.
Seth Nelson:
Big savings.
Pete Wright:
Huge.
Seth Nelson:
Think of all the attorney's fees and all the litigation expenses you just paid. Now, I'm a divorce lawyer, Pete, what am I going to say if I'm on the other side of that offer? I'm going to tell my client to take it. I don't have an argument.
Pete Wright:
Right.
Seth Nelson:
Right? So here's what I do. If I represent the payor, I'll pay you 32%. Do you want to spend all the money to go try to get three more percent? 'Cause if you roll the dice and we do the analysis, and it turns out that you only need 30%, not 32 or 35, you just lost.
Pete Wright:
So there's still some gamesmanship to go on.
Seth Nelson:
Come on, Pete. We're divorce attorneys.
Pete Wright:
Right. You found a way. You found a way [inaudible 00:16:12] finds a way.
Seth Nelson:
The law just passed, and I already found a way, okay? But the person might say, "Yeah, I'm willing to spend all that money, and let's go through all your bills."
Pete Wright:
Yeah.
Seth Nelson:
Okay?
Pete Wright:
Okay.
Seth Nelson:
Those are the big changes. So that is going to be a huge, huge change in Florida family law.
Pete Wright:
Okay. One of the things I was asking were the extenuating case circumstances that go into or have gone into determining alimony. Do you consider things like the circumstances of the divorce, adulterous relationships, anything like that weigh into it? Do we know?
Seth Nelson:
They can do all that, but really what you're looking at is who got what in the divorce, and does that spin off the income too? There's still all those factors that you look at when you're talking about the age and mental emotional condition of the parties. Okay? They also, legislature did some good stuff, including whether either party is physically or mentally disabled, where they can't really work necessarily. Okay? How much income, like I said, is being generated from non-marital or marital property? If you're wealthy enough that you have three investment incomes and in investment properties that you get income off of and you get all those three properties, well, that income you get is income. So it counts, right? The earning capacity of the person, special consideration, if you are raising a minor child that has special needs, mental or physical disabilities.
Pete Wright:
That's not included in child support calculation?
Seth Nelson:
No. It can be if there's extra money that has to be paid for care. But this is saying, "We can't hire a full-time nanny," or, "I have to homeschool because..." So that is a consideration. Any other factor to do equity and justice between the parties, it's always the catchall.
Pete Wright:
Yeah. Right, that's everything else.
Seth Nelson:
But the court, the trial court, when they're making these findings has to write down all these factors and all these findings to implement this stuff. There's a lot in here that's giving the judges a lot of work to do when they're making these determinations. I shouldn't say most, a lot of cases when they go up on appeal, there's only one question on appeal, did the trial judge make a mistake? A lot of them get reversed and remanded, set back down to the trial judge saying, "You didn't make the written findings. You didn't make the written findings." So as trial lawyers in divorce court, what we need to do is when we say to the judge, "Here's what we think your ruling should be, we need to put in those factors," 'cause that's not a reason to get overturned and turned back. You're just wasting your client's money.
Pete Wright:
Yeah. Yeah. Mostly because we've been talking about this for so long, Seth, the Florida Senate filed the bill in March, approved or passed in April, late April. We've been talking about this for a long, long time. Do you have a sense of what the complicating factors were that led to the bill that the governor signed? How different is the bill that passed the Senate to the one that the governor signed on the 30th of June?
Seth Nelson:
I'm going to rephrase that question a little bit. Why did it get signed this year and not previous years? Okay?
Pete Wright:
Okay.
Seth Nelson:
One reason is there's the Florida Family Law Section of the Florida Bar. They were opposed to this bill for many, many years. Each year, the group of mainly payors were that were looking for alimony reform, were bringing bills. The Florida Family Law Section of the Bar would always oppose it. They were getting their bill through Senate. They were getting their bill through that Florida House, and it was going to the governor and the governor's phone and email and letters would just be overboard. Okay? Like I said before, two governors have already vetoed it, one more than once. This year, those two organizations came together and said, "We agree on this bill.
Pete Wright:
So the bar has actually, for the first time, agreed that this is a passable law?
Seth Nelson:
They did. Now, I'm going to put on my political hat here.
Pete Wright:
Let's do it.
Seth Nelson:
Florida governor is running for President of the United States.
Pete Wright:
Yep.
Seth Nelson:
I would be shocked if that organization, his presidential campaign, did not poll this, do research on it, do focus groups on it, how it's going to play both ways 'cause it's a political decision. Okay? There's always that inside baseball, inside politics, who brought the bill, "Is the senator that brought the bill supporting me. If I'm the governor running for president or supporting another candidate?" There was some issues with that going on. So put all that aside. Ultimately, people that are running for president and they're about to sign a bill like this, I would be shocked if they didn't poll test it and go forward on it.
Pete Wright:
Yeah. I feel like if I put on the cynical glasses, like climbing the ladder of cynicism, it only goes down.
Seth Nelson:
Right. Exactly. One way.
Pete Wright:
I feel like we have to say all that stuff, get it out loud. Who knows? Might be a significant donor question, might be who knows, what are the reasons are that got it signed this year? But the fact is, that's where we landed. So if we're silver lining it a little bit from where I sit, reducing the amount of complexity in the alimony calculation can only be a good thing. If that's what we're looking for, we've reduced complexity for payors and payees, that has to be a net positive, even if it's financially potentially a net negative.
Seth Nelson:
For the recipient, 100%.
Pete Wright:
Yeah.
Seth Nelson:
I have initial consultations almost every single day I come to work, and my question at the front end is, "How can I serve you? What are your goals for this conversation?" A lot of clients don't know that, the answer to that question, so I will tell them, "Here's what I think your want is. Tell me if I'm right. You want information. My personal goal at the end of this is you'll say to whoever you're going to call your support system, 'I had a good conversation with Seth Nelson. I did not like everything he said, because Florida law sucks-
Pete Wright:
Yes.
Seth Nelson:
... I understand it a little more now, and I know what I'm facing.'" So if I'm sitting here having a beer with you looking over a lake, that would be amazing, and we would say, "Here's what's all wrong with this law. But in my world, this is my world. I am in this legal system. I have this law. Here's the things I think are potentially good. Old law, there's no savings component. The recipient of money in alimony wasn't allowed to put money away."
Pete Wright:
Oh, now you can? That's a change?
Seth Nelson:
"Well, the way I'm going to argue it, "Judge, they're paying 35%. Who cares what she does with the money?
Pete Wright:
They could do whatever they want with the money.
Seth Nelson:
Exactly.
Pete Wright:
Okay.
Seth Nelson:
Okay. So that could be a potential savings or something good. Yes, it's less time. There's no way to spin that other than it's bad.
Pete Wright:
Yeah, for sure.
Seth Nelson:
Right? But for the payor, it at least defines it. For the recipient, it defines it because now we're not going to go to court arguing over, "I want seven years, judge. I want to only pay three." "I want 10." Right? No one walks into court and says, "The max I can get is 10. Just give me three, judge."
Pete Wright:
Right.
Seth Nelson:
Right?
Pete Wright:
Right.
Seth Nelson:
I always thought that was an arbitrary number that the judge picked 3, 5, 7, so now it's helps define... So the more clear the law is, the less there is to argue about, the less fees and cost.
Pete Wright:
Yes, for sure. So that has got to be on some tabulation, a win. This is a thing that is obviously a strong check your local jurisdiction conversation, because we're talking about Florida family law. But do you have any sense of how this new Florida law parallels other states? Is this a trend sweeping the nation?
Seth Nelson:
Yeah. Florida was behind.
Pete Wright:
Okay. Okay.
Seth Nelson:
Not surprising. I can say that I live in Florida.
Pete Wright:
Right. You can say that.
Seth Nelson:
That's like when you make any ethnic joke, you can say, "It's okay, because I'm that ethnicity."
Pete Wright:
Yeah.
Seth Nelson:
Right?
Pete Wright:
Right.
Seth Nelson:
So, okay, we got to talk about something else before we go, though.
Pete Wright:
Oh, sure.
Seth Nelson:
I know I'm throwing a lot at you.
Pete Wright:
Yeah.
Seth Nelson:
What happens if you're going to modify this?
Pete Wright:
Oh, yeah. You mentioned that earlier. It's not the same?
Seth Nelson:
No. So first off, before old law, you had to actually retire and then file. Now, you are allowed to file six months before retirement.
Pete Wright:
Okay.
Seth Nelson:
Because now you can know, okay?
Pete Wright:
Yeah.
Seth Nelson:
Now you actually have to retire when the factors is, are you going to go back to work. Right? You don't get to say, "I'm retiring." You retire for three months. You terminate your alimony, woo, they hire you back. Right? Also, if you're modifying because someone's in a substantial supportive relationship, you're living with someone, old law, they had to be in the supportive relationship. I literally would have people that we would file for a substantial change in circumstance, they're living together. By the time I got to trial, they broke up.
Pete Wright:
Ugh.
Seth Nelson:
Right?
Pete Wright:
Yeah.
Seth Nelson:
I will tell you, for years in my marital settlement agreement, I put in a little nugget that said, "Alimony will terminate upon the recipient entering into a supportive relationship." It didn't say that they had to be in one. If they entered into it, it's done. It's all or nothing. So they couldn't play that game of, "We broke up."
Pete Wright:
Okay.
Seth Nelson:
Okay?
Pete Wright:
Okay.
Seth Nelson:
If I represented the recipient, I wouldn't put that. I would say, "No. You can modify it according to Florida law", but that was in a lot of my agreements, and it had worked in more than one case. I don't have to do that anymore because this says that if a supportive relationship exists or has existed in the 365 days before the filing of the petition. So when you file, if you look back a year, if they were in a supportive relationship in that year, it can be modified or terminated-
Pete Wright:
Wow.
Seth Nelson:
... because you can't play the game anymore.
Pete Wright:
Yeah. There's no more racing to court.
Seth Nelson:
Right, or to break up or whatever the case may be. Okay? Also, this is really big because we talked about when you get to retire, you can file it before, and there is a provision in here that when you go to retire and you want to lower your alimony or terminate your alimony, the court's allowed to look at all of the assets that you received during the marriage, from the final judgment. You got divorced, you get half the assets.
Pete Wright:
Yeah. You split the house, you get the piano, whatever.
Seth Nelson:
And the role in the wasteful depletion of the assets you received.
Pete Wright:
Wasteful depletion.
Seth Nelson:
Yep. So you have some people who are not good with their money. They receive a million dollars hypothetically, in a retirement account because their spouse controlled the money and gave them an allowance during the marriage because the husband in this case did not handle money well. The wife was making all the money, so put him on an allowance. They get divorced, she gets a million dollars in retirement, he gets a million dollars in retirement.
Pete Wright:
He puts it all in speculative crypto.
Seth Nelson:
Or just pulls it out and spends it on stuff he's not supposed to spend it on because he was receiving alimony and the alimony was supposed to meet his need. He depletes a million dollars, cashes it out early, pays taxes and penalties, lives beyond his means, and now she goes to retire and he goes, "I don't have any money. How am I going to support myself? I'm working at a drug store."
Pete Wright:
She doesn't have the responsibility to-
Seth Nelson:
Right.
Pete Wright:
... care for him.
Seth Nelson:
So this makes people manage their money, and if not-
Pete Wright:
Fascinating.
Seth Nelson:
... you are not going to be looking to your former spouse to keep paying when you had a million dollars in retirement and you wasted it. Okay? So there's little things like that that aren't so little if you are the guy or girl or woman or man on the other side of that case.
Pete Wright:
Okay. Did that cover it? Do we feel like we've done the hot news justice?
Seth Nelson:
We've done the hot news on alimony.
Pete Wright:
Yeah.
Seth Nelson:
We might have another one when it comes to parenting plans, 'cause there's been changes there too.
Pete Wright:
Oh dear. Okay. Well, rack that up for season eight. It's coming around the corner. Seth, I'm glad we got you out of your vacation to read the news.
Seth Nelson:
I feel like I should be like on CNN now.
Pete Wright:
Yeah, you really should. You've done the yeoman's work preparing for this one. Thank you so much. Thank you everybody for hanging out with us in this interruption in our summer of fun. The episodes continue after this one that are more summery and fun than ever. So thank you, everybody. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright. We'll see you right here next time on How To Split A Toaster: A Divorce Podcast About Saving Your Relationships.
Outro:
Seth Nelson is an attorney with NLG Divorce & Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce and Family Law. Seth Nelson is licensed to practice law in Florida.