Latest Commentary on Recent Legal Events
Latest Commentary on Recent Legal Events
Below is a checklist for filing a Hurricane Claim:
If you feel like the process of managing your insurance claim is to much to handle, intimidating, or if you feel your insurance company is not treating you fairly, you should consider contacting an attorney who will represent your interest. Your attorney will work directly for you, not the insurance company. An attorney can handle every aspect of your claim and meet with your insurance adjuster, contractors, and anyone associated with the claim. The goal of your attorney is to negotiate the best possible settlement for your damaged property.
If a homeowner is forced to hire a lawyer to sue a homeowners insurer because the insurer did not pay enough for a claim, and the homeowner wins that lawsuit, then the homeowner is entitled to his or her attorney’s fees to be paid by the insurance company.
If you have any questions regarding property damage caused by Hurricane Michael, and/or related insurance claims, please contact my office for assistance.
Standard Homeowners or Renters Insurance Coverage
Types of Perils Likely Covered:
Loss of Utilities
Types of Losses Likely Covered:
Cost of preventative actions taken (e.g. boarding up windows)
Cost of temporary or emergency repairs
Cost of approved temporary lodging
Value of various personal property (subject to some limitations)
Value of refrigerator contents
Cost of authorized permanent repairs
Cost of damaged tree removal
Perils and Losses Likely Not Covered or Only Limited Coverage Available:
Damage due to flood water
Unauthorized permanent repairs
Ordinary living expenses
Sources of Additional Information:
The American Red Cross: 1.800.RED.CROSS or www.redcross.org
Federal Emergency Management Agency (“FEMA”): 1.800.621.FEMA or www.fema.gov/hurricane-irma
FILING AN INSURANCE CLAIM:
Continental (“CAN”): 1.877.CNA.ASAP
Liberty Mutual: 1.800.2.CLAIMS
Safeco Insurance: 1.800.332.3226
State Farm: 1.800.SF.CLAIM (1.800.732.5246)
Florida Office of Insurance has a “Hurricane Season Resources” web page:
QUESTIONS AND COMPLAINTS:
Florida Department of Financial Services (“DFS”), Division of Consumer Services handles all consumer-related questions and problems concerning insurance: www.myfloridacfo.com
Florida contact information*: 1.877.MY.FL.CFO (1.877.693.5236)
*This is a toll-free helpline number and only available to consumers calling from a Florida number
Out of state contact information: 850.413.3089
Office of the Florida Attorney General: www.myfloridalegal.com
Price Gouging Hotline: 1.866.966.7226
National Flood Insurance Program Call Center: Specialists are available to assist with the servicing of a claim, provide general information regarding policies, and technical assistance to aid in recovery:
By phone: call toll-free 1.800.621.3362 (select option 2)
By e-mail: complete a “Request for Support” form and send to FEMA-NFIP-Support@fema.dhs.gov
Hurricane Michael was the third-most intense Atlantic hurricane to make landfall in the United States in terms of pressure, behind the 1935 Labor Day hurricane and Hurricane Camille of 1969. It was also the strongest in terms of maximum sustained wind speed to strike the contiguous United States since Andrew in 1992. In addition, it was the strongest on record in the Florida Panhandle, and was the fourth-strongest landfalling hurricane in the contiguous United States, in terms of wind speed.(Wikipedia Hurricane Michael)
Hurricane Claims can be very complex. Businesses affected by Hurricane Michael should immediately start the claim process for the loss. Commercial Property Insurance Claims require the need for a professional to protect the rights of the business and business owners.
When a catastrophic/hurricane loss occurs, a business owner’s first impulse is to do whatever is needed to mitigate the loss and restart operations as soon as possible. However, settling a commercial property insurance claim is a complex business transaction, and business owners should treat it with the same diligence and with professional assistance as when negotiating a critical business contract. Accepting the insurance company adjuster’s opinions or the insurance company’s offer of settlement without investigation or review of all policies for available coverages will likely result in a settlement which is far less than the business is owed.
A commercial property claim includes the cost of restoring the businesses’ property to pre-loss conditions within the limits of insurance purchased, while maintaining the business during the time needed to rebuild or repair damaged property. The business owner is faced with investigating and documenting losses, tangible and not, and becoming familiar with the insurance policies which include the coverages available, limitations on those coverages, deductibles, conditions precedent, as well as the specific requirements necessary to make a claim.
The insurance policy benefits will sustain a business through the disaster and the following recovery. It is important to know which coverages the policy you purchased contains, and claim the benefits you are entitled.
When a business is damaged as the result of a hurricane, the business owner has current insurance, an experienced insurance lawyer can help. If you have been adversely affected by a hurricane and want to know your rights as a policyholder, call us to see how we can assist you in evaluating your case. By filing a hurricane damage claim, you can start recovering from this unexpected disaster.
Max Factor is an experienced insurance attorney who can assist you with this process. For more information contact Max Factor.
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.