Latest Commentary on Recent Legal Events
Latest Commentary on Recent Legal Events
How are marital assets divided? Marital assets are assets gained during the marriage, whether by one spouse or both. Assets gained during the marriage and not specifically claimed as non-marital are presumed to be marital assets unless disproven.
Marital assets also include any increase in value of non-marital assets from either the efforts of the spouses during the marriage or the spending of marital funds or marital assets. Mixing non-marital assets with marital assets (for example, in joint accounts), may cause the non-marital assets to be considered marital.
Non-marital assets are assets of either spouse from before the marriage. Non-martial assets also include inheritance or gifts from an individual other than a spouse.
Additionally, assets obtained in exchange for non-marital assets and income from non-marital assets become non-marital. Assets can also be non-marital if both spouses agree in writing. Assets obtained after a divorce petition is filed or a divorce order is finalized are not considered marital assets.
1. Equitable Distribution.
Florida courts begin with the presumption of equitable distribution of marital assets. Equitable distribution means a fair, often equal, division of marital assets.
2. Unequal Distribution.
Florida courts can also allow unequal distribution of marital assets between the spouses based upon the following factors:
1. Distribution of Non-Marital Assets.
Non-marital assets are distributed to their respective spouses who controlled the assets prior to marriage or received the asset as inheritance or gift.
However, the value of any enhancement to non-marital assets during the marriage or through other marital assets will be considered marital.
1. Cash Payments.
Florida courts can also require cash payments by a spouse as part of, or in replacement of, the distribution of marital assets. These cash payments can be one-time, lump sum payments or continuing installments.
Alimony refers to support payments by one spouse to the other, whether a one-time payment or continuing payments. Alimony is determined separately from the division of assets.
For more information contact Max Factor.
After a divorce, child sharing and support continue until the child’s 18th birthday. However, child sharing and support may extend beyond the child’s 18th birthday by agreement of both parents. Additionally, a court may extend child sharing and support if the child is still in high school and will graduate before turning 19 years old, or has a mental or physical incapacity.
The parents may establish a plan for parental responsibility through a Marital Settlement Agreement or through a court-ordered plan. Florida law tries to promote frequent and continuing contact of the child with both parents. There is no presumption for or against either parent.
The parental plan describes what responsibilities each parent has regarding issues such as education and health care of the child. A court may consider each parent’s expressed interests regarding specific areas of the child’s upbringing.
Parental responsibility will be shared by both parents unless the court finds that sharing parental responsibility would be detrimental to the child. A court may give sole parental responsibility to one parent if the court determines it to be in the best interests of the child.
The parenting plan must also have arrangements for time sharing of the child. Time sharing can be split evenly between the parents or be unequal. Parents may alternate time sharing by certain days and weekends or on a week on/week off basis.
Important considerations for time sharing include the distance between the parents following their separation. Both parents must coordinate transportation for the exchanges of the child between parents. In fact, the Marital Settlement Agreement or court order must establish the location and time for exchanges of the child.
Other time sharing issues include school breaks (winter break, spring break, summer break) as well as holidays (including Mother’s Day, Father’s Day, and the child’s birthday). School breaks and holidays can be shared evenly, given more to one parent if the other parent has more time sharing during the school year, or alternated with each parent having the child every other year.
Time sharing can also affect the amount of child support paid by the parents. Child support is a monthly financial obligation. Child support payments may be reduced when a parent has the child for at least 20% of nights during the year. This equals 73 nights per year. Every night beyond 73 nights provides for additional reduction in child support payments.
Once a parenting plan is in place, it may not be modified unless a court finds that there is a substantial, material, and unanticipated change in the circumstances from when the first parenting plan was originally agreed to or ordered. Any modification to a parenting plan must also be in the best interests of the child. Florida Statutes 61.13
For more information contact Max Factor.
Tax Reform and Alimony
What Is Alimony?
Tax Reform is going to affect Alimony. Alimony refers to payments from one former spouse to the other required by a divorce or other court-ordered separation instrument. For alimony to apply, one spouse must have an actual need for alimony and the other spouse must have the ability to pay. Courts then consider several factors, including the marriage length, standard of living, and both spouses’ income. Generally, alimony is provided by the higher earning spouse to the lower earning spouse.
Before Tax Reform
1. Payor. The former spouse paying alimony (“Payor”) has been able to deduct alimony payments on his or her federal income tax return. For instance, a former spouse under a federal tax rate of 10% and paying $50,000 in alimony per year would save $5,000 each year in federal income taxes.
2. Payee. The former spouse receiving alimony (“Payee”) must list the alimony received as taxable income on his or her federal income tax return.
3. Recapture Rule. If alimony by the Payor either significantly decreases or ends within the first three years of payments, the Payor must pay for the amount previously deducted, “recapturing” that amount as taxable income. When this occurs, the Payee can deduct the same amount from taxable income, no longer paying taxes on the amount “recaptured.”
After Tax Reform
1. Payor. The Payor cannot deduct alimony from his or her federal income tax return.
2. Payee. Alimony received by the Payee is no longer taxable.
3. Recapture Rule. For divorces finalized after January 1, 2019, the recapture rule no longer applies since the Payor cannot deduct any alimony payments. For modifications of divorces or other separation instruments before January 1, 2019, the recapture rule still applies.
Have These Changes Occurred?
Alimony changes begin on January 1, 2019 and will apply to all divorces finalized on or after that date. The new alimony rules can also apply to changes to divorce or other court-ordered separation instruments before January 1, 2019, but only if the formers spouses expressly state in the change that they are applying the tax reform’s new alimony rules.
Significance of Changes
1. Payor. Likely Payors (usually spouses with higher incomes) may have a financial incentive to finalize a divorce prior to January 1, 2019 in order to receive the yearly savings of alimony tax deductions. These deductions can provide significant savings as alimony payments can continue for the life of the spouses.
2. Payee. For likely Payees (usually spouses with lower incomes), waiting to divorce until January 1, 2019 or after will free those spouses from paying taxes on alimony received. However, the Payor may also have less money to provide to the Payee due to now paying taxes on alimony payments. Additionally, Payees will no longer be able to use alimony received to contribute to IRA accounts as IRA accounts require contributions from taxable income.
3. Divorce Negotiations. Tax reform’s alimony changes may remove an incentive for reaching settlements prior to trial. Deducting alimony payments on federal income tax returns often encourages the higher earning spouse to agree to pay more in alimony, leading the parties to settle more quickly and more often.
For more information contact Max Factor.
Jeff Atwater is Florida’s Chief Financial Officer and one of Florida’s four Cabinet officials. He leads the Florida Department of Financial Services and also serves as Florida’s State Fire Marshal. He wrote the following article which was published by the Tallahassee Democrat on September 7, 2016.
Florida’s 10-year no-hurricane streak came to an end late Thursday night as Hurricane Hermine slammed into Florida’s coast and continued on a path that ultimately impacted most of our great state. In the days since, Tallahassee has started to pick up the pieces and return to regular routines.
I know it hasn’t been easy and we have all been working hard, but we are seeing significant signs of progress. In the last week, I have witnessed neighbors helping neighbors, and I have watched as people have stepped up to the plate to help their fellow Floridians. Nothing is more encouraging than to see the best come out of people during the worst of times.
Now that power has been restored across most of our capital city and the surrounding region, many of you must now shift focus and begin filing insurance claims to cover damage to your home or business. I encourage you to contact your insurance company, if you haven’t already, to file your claim. I have seen many insurance companies on the ground in impacted cities surveying damage and adjusting claims. Insurance can be confusing, which is why we have resources available to help.
Insurance can vary widely and every policy is different, but it’s my goal to provide you with the facts and information you need to complete your claim. Tropical Storm Hermine became Hurricane Hermine at 5 p.m. EST on Sept. 1. From the time a hurricane has been declared by the National Weather Service until 72 hours after the final hurricane watch has been lifted, damages incurred during that time are subject to a special hurricane deductible. Instead of your normal fixed-price deductible, a hurricane deductible is calculated as a percentage of the insured value of the home. Look for Coverage A on your policy documents; this could be more than your normal deductible.
As every home holds a different value, every deductible will be different, but your policy document should clearly your specific deductible amount.
As you document your losses, note that most homeowners’ insurance policies cover debris and tree removal if the downed tree damaged your residence or any adjacent structures, regardless of who owns the tree. Some policies also cover these services if the downed tree blocks the main entrance, but your insurance company will typically not cover a tree that falls to the ground but does not cause property damage.
Many policies also cover food spoilage, an unfortunate consequence of prolonged power outages. Certain limits do apply, but talk with your insurance agent about this if you are already filing a claim.
Flood damage is not covered under traditional homeowners’ policies. Flood coverage for your property and possessions must be purchased separately, and flood damage to your vehicle is covered under your automobile policy.
In summary, there is much to be considered even though you still have a lot on your mind. If you have questions about how to file a claim, if you need help finding contact information for your insurance company, or if you are not sure if your losses will be covered under your insurance policy, give my Consumer Insurance Helpline a call. You’ll get direct access to insurance experts who can help with all of these questions and more. We serve all Floridians in every county.
The number is 1 (877) 693-5236, and the line is open 8 a.m. to 5 p.m. Monday through Friday. We hope to hear from you if you have insurance-related questions, concerns, or needs. You can also call this number to report any suspicious or suspected fraudulent activity, and we will refer the information to our insurance fraud investigators for follow up.
Hurricane Hermine was strong, but the state of Florida and its people are stronger. Full recovery efforts will take time, but we will get there. If you need help, don’t hesitate to ask — ask your neighbors, ask your community leaders, give us a call, too. We’re here for you.
You may office call the office of Max Factor Law. We will be happy to assist you with your claim. My telephone number is (850)577-1699. My email address is Max@MaxFactorLaw.com. You can also contact me through the contact page.
When a house is damaged by flooding and/or water which leaks into the structure, the property owner may encounter some problems in making an insurance claim for the cost of repairing the damaged property. It is important for you to remember that all homeowner’s insurance policies are not identical. Therefore, it is important for you to review the terms and conditions of your insurance policy so that you will know what your homeowner’s policy covers and what is not covered. An insured can usually check with his insurance agent or a representative from his insurance company to find out exactly what is or is not covered by the insurance policy.
The following is a list of some of the more frequent questions which are raised when a homeowner encounters flooding and/or water damages to a home:
Water damage because a water pipe inside the house freezes because the temperature falls below zero and the water pipe burst, allowing water to leak inside the house. Normally this type of water damage is covered by the homeowner’s insurance policy. However, some policies will not cover this type of loss if house was left unoccupied and without heat, because the insured failed to perform the necessary upkeep that would have prevented this water damage.
Water leaks from your backyard swimming pool, damaging your lawn and flooding your basement. Under most policies, the water damage to your basement and the personal property inside the basement would be covered under your policy. However, the damage to your lawn would not be covered because most insurance policies exclude coverage for damage to land, including the lawn on which the house is located. Furthermore, some policies do cover certain “named perils” such as fire, explosion, vandalism and vehicles not owned by the insured, so if your lawn was damaged by one of the “named perils”, then there would be coverage for the loss. Swimming pools are not usually listed as a “named peril.” However, if a tree falls on the swimming pool and causes the water to leak from the pool, then there would probably be coverage under the insurance policy.
Your washing machine overflows, flooding part of the house. The key issue of coverage would be whether the overflowing of water was caused by your failure to properly maintain the washing machine or did sudden accidental damage cause the water overflow. Whenever there is damage to the home caused by the homeowner’s failure to properly maintain the property, then this can be excluded from coverage.
A sewer backs up, causing water to flood the basement of your house. Most insurance policies do not provide coverage for sewer backups. However, it usually is possible to add sewer back up coverage to your policy, which will increase the amount of premium you pay for your homeowner’s insurance.
Water seeps into your basement, causing damage. Seepage is considered a maintenance problem, and is normally excluded from homeowner’s insurance.
During a heavy rainstorm, water leaks through your roof causing damage to your roof and to your furniture inside the home. Most policies will not reimburse you for the roof repairs which are necessary because this will be viewed as a house maintenance issue. However, the interior water damages will normally be covered, as will any damage to your furniture. If a neighbor’s tree falls on your roof, the damage to your roof and your interior damages will normally all be covered by the homeowner’s policy.
If your house is damaged by a flash flood from the overflowing of a nearby rive or lake, this type of damage will typically not be covered by the homeowner’s policy. Flood damage is not covered by homeowner’s insurance. But if your house is in a location where flooding is a concern, you can always buy flood insurance to protect against that type of damage.
In summary, it is important for you to know what your policy covers and what it does not cover, and to understand that lack of maintenance can cause to loss to be excluded from coverage. For more information contact Max Factor.
Contempt of Court can occur when someone fails to obey an existing Court Order. For a person to be in “Contempt of Court”, there must be: (1) a Court Order that clearly imposes an obligation, (2) an ability by that person to comply with the Court Order, and (3) a willful refusal by that person to obey the Court Order.
In a family law situation, there are times when one of the parties (either the former husband or the former wife) fails to comply with an Order issued by the family law court. When these circumstances occur, the other party may want to take some type of action which will make the uncomplying party obey the existing court Order. One of the options available for the party seeking compliance with the existing Order is the filing of a Motion for Contempt and Enforcement.
A. Requirements for Motion for Contempt/Enforcement. Before a Motion for Contempt and Enforcement can be successfully filed, the following requirements must be satisfied:
1. Existence of a Court Order that clearly defines an obligation that the other party must comply with. For example, if the Court Order states that the Father must pay the Mother $100 in child support on or before the 10th day of each month until the child reaches the age of 18, then the Father’s obligation to make monthly child support payments appears to be clearly defined.
2. Ability of the Obligated Party to Comply with the Court Ordered Requirement. This means that if the Court ordered the Father to make monthly child support payments to the Mother, then the Court must receive evidence shows that the Father has the financial ability to make those monthly payments.
3. Evidence which shows that the Obligated Party has willfully refused to comply with the existing Court Order. For example, if the Father sill has the income and/or assets which would enable him to make the monthly child support payments, then this requirement would be satisfied. On the other hand, if the Father is no longer employed and/or no longer has the assets necessary to pay child support; and can show the Court that he has diligently sought other employment or other options which can help pay the child support, but has been unsuccessfully, then this requirement may not be satisfied.
B. Sanctions Court May Impose If A Party Has Ability To Comply With Existing Order But Refuses To Do So. If the Court determines that the noncompliant Party has the ability to comply with the existing Order but intentionally refuses to do so, then Court may impose one or more of the following sanctions:
1. Incarceration. If the Court determines that the noncompliant party has intentionally refused to comply with the Court’s Order and has the ability to comply with the Order, then the Court has the authority to incarcerate the non-compliant party. The purpose of the incarceration is to put pressure on the non-compliant party and try to force them to comply with the Order. If the noncompliant party initiates action to comply with the Order, then the incarceration will end.
2. Fines. Another means for the Court to address the contempt issue is to Order the noncompliant party to pay a fine as a penalty for their noncompliance.
3. Other Sanctions. Depending on facts and circumstances regarding a Party’s noncompliance, the Court may order other sanctions. For example, if a Party is employed but refuses to pay child support, then the Court may order a wage garnishment.
For more information contact Max Factor.