The regular session of the Florida Legislature convened on March 7, 2017. Once again, alimony reform is high on the list of bills to be considered by both the House and Senate.
Two alimony reform bills, House Bill 283 and Senate Bill 412, have been referred to committee. The focus of the proposed legislation is to attempt to create predictability in the outcome of cases based on the parties’ income, assets, needs, ability to pay and standard of living. Presently, the courts enjoy broad discretion in setting the length of alimony payments and the amount of those payments.
Many forms of alimony exist as a matter of state statute and case law. They include permanent periodic alimony, durational alimony, rehabilitative alimony, bridge-the-gap alimony and nominal alimony. Generally, permanent periodic alimony continues until the recipient spouse either remarries, dies or engages in a supportive relationship. Decades ago this type of alimony made sense because societal pressures were such that a spouse, if divorced, would remarry. Societal norms have dramatically changed. Now couples not only routinely live together, unmarried but they, in many cases, have children while in an unmarried status.
The proposed bills presently pending in the Florida legislature would remove permanent periodic alimony as an option for the courts and replace it with durational alimony. Durational alimony is to be paid over a set period of time, such as: one year, five years or ten years. The proposed legislation would create a formula that would calculate a range of options based on the length of the marriage. A long-term marriage would result in a lengthy duration of payments.
The amount of alimony would also be the subject of a formula based on the payor spouse’s income as compared to the payee spouse’s income. The disparity between the two incomes would be applied to a mathematical formula which would create a narrowed range of payments for the court to consider. Essentially, durational alimony would be the only form of alimony remaining, should the present legislation be passed. Rehabilitative alimony, bridge-the-gap alimony and nominal alimony would no longer exist.
In past years, similar bills to the ones now pending have been passed by both the Senate and House of Representatives only to be vetoed by the governor. This occurred on two prior occasions. The lack of guidance under the present law breeds litigation and tremendous disparity in judicial rulings under the same facts and circumstances driven by a particular judge’s ideology and personal experiences. In order for justice, equity and equality to prevail, the alimony statutes in Chapter 61 must be reformed to reflect the societal norms of our times.
The insurance adjuster works for the insurance company, not the insured. During the months since Hurricane Matthew, I have heard countless people naively say “their” adjuster when referring to the insurance company’s adjuster. This misconception allows the insurance company to – as a routine business practice – underpay claims. We have all heard the old adage: Get three estimates when hiring a contractor. If this is wise advice, then why accept the insurance company estimate at face value?
My experience is that, on average, there is a 20-50% difference between the insurance adjuster estimate versus an independently-hired contractor or estimator. In short, you should always consult an experienced first party property insurance attorney in the following scenarios:
Denial of insurance coverage
Reservation of Rights letter
Delays in payment of claims
Bad faith by the insurance company
However, more often than not, the insurance company routinely relies on “underpayment of claims” in order to boost its bottom line. An experienced first party property insurance attorney knows how to maximize your claim. Most importantly, all cases are accepted on a contingency fee basis for the additional payments obtained, meaning there is no fee if we do not recover additional funds from the insurance company. In addition, the insurance company may be liable for attorney’s fees and costs under Florida law.
Please call our office for an appointment to discuss your Claim.
When working with the family of the recently deceased, the most common complaint we hear is that they are overwhelmed by paperwork after the decedent’s death. We recommend that you consider spending some time getting your “legal affairs” in order. This will make life easier in the long run for your heirs.
Our specific recommendation is that you write a letter to your potential Personal Representative (what Florida calls your Executor) explaining to your Personal Representative all aspects of your affairs and providing to your Personal Representative all of the information which you think he or she needs to know. In many cases, you are the only one with the “big picture”, and are best prepared to organize the information which your Personal Representative will need at your death. This will greatly simplify and streamline the transfer of your assets.
We suggest that you keep the originals of your important papers in a safe deposit box. This should include your original Will, Durable Power of Attorney, Living Will, Medical Surrogate Appointment, stock certificates, bonds, insurance policies, marriage and death certificates, and other similar papers, and almost as important in this internet age, of a list of websites you frequently access with updated passwords. Copies of those papers should be in separate files in a file cabinet which has a key and which is located in your home. The information which will be extremely helpful to your future personal representative includes the following:
- Safe Deposit Box location and key.
- A copy of your current Last Will and Testament and the location of the original.
- Original Living Will with another original to be held in your safe deposit box.
- Burial instructions and arrangements made, including prepayments and rights to which you are due.
- A copy of any Trust Agreements which you have established or for which you are the beneficiary. The originals should be in your safe deposit box.
- Social Security records for you and your spouse.
- Copy of your Marriage Certificate with the original being held in your safe deposit box.
- Copy of Pre-Nuptial or Post-Nuptial Agreements with location of originals noted.
- Divorce/Separation Agreement.
- Passports for you and your spouse.
- Real Estate Information. For each property owned by address:
(a) Copy of most recent tax bill for each parcel owned.
(b) Where your file is containing your Deed, Title Insurance Policy, Mortgage information, and other information regarding the property.
(c) Copy of your Mortgage Payment Coupon indicating the name, address and telephone number of the Lender and the Mortgage Loan Number.
- Automobile Title or Lease Agreement, and Boat Title, and location of each.
- List of all credit cards held including names of creditors, addresses, telephone numbers and account numbers. A copy of a statement regarding each credit card held would be helpful.
- Banking information, including name and location of each bank in which you have an account, and account numbers.
- Recent Brokerage and Mutual Fund Statements – copy of one statement for each account.
- Retirement Asset Statements, IRA, Keogh, Company Pension Plan Asset Statements.
- Partnership Agreements, Leases or other contracts to which you are bound.
- Copies of last year’s Federal and State Income Tax Returns.
- Notes Receivable, Notes Payable and other loan agreements.
- Life Insurance Policies (with master list of each policy).
- List of the name, address and telephone number of your lawyer, accountant, financial planner, stockbroker, insurance agent, including fax numbers of those individuals.
Putting all this information together may seem like a lot of trouble to you, but at least you know where everything is. Think of how much trouble it will be for someone who follows you who has no idea where these things are or even if they exist. By so doing, you will enable your Personal Representative and family members to carry out your wishes quickly, efficiently and with as little burden as possible.
Please call our office for an appointment to discuss and have prepared the documents you will need during your life (Powers of appointment, Medical Surrogate appointments, etc.) and after (Last Will and Testament, Revocable Trusts) to make handling your affairs straight forward and as uncomplicated as possible.
All individual debtors who file bankruptcy must participate in credit counseling within six months before filing for bankruptcy and complete a financial management instructional course after filing bankruptcy. These courses can be completed online from your home computer.
At the time of filing, a means test (analysis of your income and expenses) to determine if you qualify to file a Chapter 7 or if you must file Chapter 13. In applying the means test, the courts will look at your average income for the 6 months prior to filing and compare it to the median income for Florida. If the income is below the median, then you may choose Chapter 7. If your income exceeds the median, the remaining parts of the means test will be applied to determine if you can file Chapter 7 or if you must file Chapter 13.
To begin the bankruptcy process you must itemize your current income sources; major financial transactions for the last two years; monthly living expenses; debts (secured and unsecured); and property (all assets and possessions, not just real estate). You should also collect your tax returns for the last two years, deeds to any real estate you own, your car(s) titles, and the documents for any loans you may have.
Once you have gathered this information, we will help you determine which property is exempt from seizure. In Florida, exemptions include:
- Your house, mobile or modular home, or condominium (may not exceed half-acre in a municipality or 160 acres elsewhere). The exemption is limited to $160,375, unless you occupied this Florida homestead and previous Florida homesteads for a continuous 1,215 day period.
- Personal property such as prepaid accounts like hurricane savings, medical savings and college education trust deposits; motor vehicle up to $1,000; pre-need funeral contract deposits; any personal property up to $1,000 or $4,000 if no homestead claimed
- 100 percent of wages earned by the head of the household, up to $750 a week; federal government employees’ pension payments needed for support and received up to three months prior to bankruptcy
- Pensions, tax-exempt retirement accounts like 401(k)s, profit sharing/money purchase plans, SEP and SIMPLE IRAs, defined benefit plans, IRAs and Roth IRAs to $1,283,025, state/municipal pensions and ERISA qualified benefits
- Public benefits such as unemployment compensation, veterans benefits, Social Security, workers compensation and crime victims’ compensation, unless debts for treatment of crime-related injury are part of filing
- Alimony/child support
- Insurance payments such as death benefits, annuities (excluding lottery winnings), life insurance cash surrender value, disability/illness benefits and fraternal society benefits.
To actually file, we will complete a petition and several schedules which describe your current financial status and recent financial transactions (typically within the last two years). If your creditors or the judge feel or find out that you have not been entirely forthcoming in your bankruptcy filing, it could jeopardize the outcome of your petition.
If you are filing a Chapter 13 bankruptcy, a proposed repayment plan must also be submitted. The plan sets out the amount of money you have available, after reasonable monthly expenses have been paid, to put toward your outstanding bill and how this money be apportioned to your creditors. Priority claims (such as taxes and back child support) must be paid in full; unsecured debts (like credit card debt and medical bills) are usually paid in part. Depending upon the judgments of those involved with your case, unsecured debts can be paid off for as little as 10 cents on the dollar.
Once we have filed your bankruptcy petition with the bankruptcy court, an automatic stay goes into effect which prevents your creditors from making direct contact with you or staking a claim on any of your property from the day of filing forward. The stay will also stop the proceedings in any pending foreclosure action filed against you.
In a recent case out of the Florida’s Fourth District Court of Appeal , the appellate court affirmed the trial court’s decision to deny the husband permanent, periodic alimony. The parties had been married 17 years and the husband was unemployed receiving Social Security Disability benefits but had a total net worth of over $1.3 million consisting of real estate, financial holdings, and retirement plans. The wife was grossing over $10,000 per month in income and had a net worth of over $600,000. The trial court imputed income to the husband based on a 3% investment rate of return on his real estate and financial assets, including his non-liquid assets, and based on the imputation of income, found the husband did not have the need for alimony.
In upholding the trial court’s ruling, the appellate court acknowledged that while the law was not clear on the issue of whether a trial court should impute income based on a reasonable return on a former spouse’s non-liquid assets, it was not an abuse of discretion to do so. The appellate court went on to state that a contrary rule would simply encourage spouses with substantial non-liquid assets to engage in strategic gamesmanship, such as delaying the liquidation of their assets, for purposes of advancing or defending alimony claims.
The implications of this case is great. It could mean that a spouse is not entitled to alimony despite his lack of income where he owns substantial non-liquid assets, such as a retirement account. However, the appellate court seems to suggest that the imputation of income from non-liquid assets is only reasonable when it applies to assets that are typically investment assets and does not require the spouse to invade the principal of his assets.
If you think that your divorce judgment is inequitable and you need legal advice on appealing it, please contact us .
By Carol Yoon- Associate Attorney