David S. Willig: New Florida Law Impacts International Family Cases

DivorceDavid S. Willig: New Florida Law Impacts International Family Cases

DAVID S. WILLIG, ESQ. – A new statute in Florida, coming into force from October 2014, is likely to impact international family cases to the extent they call for the application of foreign law. The foreign law angle is, perhaps, not so farfetched. We often hear about fellow Americans, some famous and some not so famous, getting married in exotic locales such as Italy, France and Jamaica.

The new Florida statute will be codified in the Dissolution of Marriage section, Chapter 61, and will also be applicable in cases under Florida’s enactment of the Uniform Interstate Family Support Act. The act itself purports to codify the holdings of different lines of cases involving choice of law provisions, forum selection clauses, enforceability of foreign judgments, the application of the law of a foreign state, and, finally, dismissal of a case on the grounds of forum non conveniens.

The statutory language immediately sets up a conflict between “strong public policy” and the policy of freedom of contract, which most would argue is a fairly strong public policy in the state of Florida. Indeed, the entire exercise suggests, first, an examination of degree of the relative importance of public policies that may be antithetical, or conflicting with the freedom of contract.
One such area is predictable from the outset, since the statute by its terms seems limited to family law-related cases. We can be confident that the principle requiring that the court look out for the best interests of a minor child is one such “strong” public policy.

We know that because such a rule applies even in the context of family law cases which do not have any element involving choice of law provisions, forum selection clauses, enforceability of foreign judgments, or the application of the law of a foreign state. If regular parties to a divorce in Florida make a marital settlement agreement that, in the trial court’s appreciation, does not represent the best interests of any minor children, that is a strong public policy that we already know overrides the freedom of contract of the parents who made such an agreement.

Perhaps, more vexing in the new statute is the language that a court may not enforce a choice of law provision in a contract selecting the law of a foreign country, or even apply the law of a foreign country which contravenes the strong public policy of this state or that is unjust or unreasonable. This is where some difficult choices may emerge for family law judges deciding such issues.

With respect to foreign judgments or orders, by including a kind of definition of comity, that portion of the statute almost ensures some debate between “offending the public policy” and “contravening the strong public policy.”
Perhaps, ironically, the silver lining is that this new statute “only” applies to family law cases. This might be little comfort to the approximately 20% of Floridians who are foreign-born, and a good number perhaps married abroad, as well.

In reality, though, how much of a threat might this statute be to the public embroiled in family law-related litigation? On its face, as mentioned already, the new statute limits its application solely to matters governed by or relating to chapter 61 (dissolution of marriage, etc.) or Chapter 88 (Uniform Interstate Family Support Act).

Another important point, though, is that the statute refers principally to contracts, on one hand, and judgments or orders of a court of a foreign country, on the other. It is true that in many countries, it is not uncommon for parties to enter into pre-nuptial agreements. Still, these may often not contain the kind of detail, anyway, to contemplate, in most cases, choice of law provisions.

It may not be so difficult to see how this statute will be reconciled with existing Florida law, such as the principle of lex loci contractus, i.e., that the law governing a contract is the law of the place where the contract is formed. That principle contains its own “public policy” exception. Similarly, in cases where the foreign pre-nuptial agreement is signed before a “Civil-Law Notary” in a foreign country, the court will have to reconcile this new statute with the implicit public policy of recognition of foreign notarial acts suggested in the Florida regulations governing Civil-Law Notaries in this state.

How We Can Help
If you, a friend or a family member find themselves in a situation such as this, please call the Law Office of Scott A. Ferris, P.A. at 305 670-3330 right away. Scott A. Ferris, Esq. is a licensed family law attorney who has been practicing law since 1987. He is available whenever you need him to pursue your rights. Please learn about our firm at www.FerrisLawFirm.com.
Republished by the Law Office of Scott A. Ferris, P.A.

Source: www.thefloridalawjournal.com