Latest Commentary on Recent Legal Events
Latest Commentary on Recent Legal Events
With Hurricane Season now upon us, it is important to be aware of some of the basic issues which can arise from the insurance coverage applicable to storm damages. Look for the duties after loss requirements in the insurance policy.
Most insurance policies have a section which requires an insured to comply with certain requirements if there is any loss or damage to property which is covered by the insurance policy. These requirements are usually identified as “Duties After Loss.” While each insurance policy may contain a different list of “Duties After Loss”, the requirement for an insured to comply with these “Duties” is usually the same. Most insurance policies will contain language which states that a legal action cannot be brought against the insurance company unless there has been full compliance with all of the “Duties After Loss”.
The following is a list of some of the “Duties After Loss” which may create problems for an insured claiming storm damage:
1. Prompt Notice of the Loss. This duty requires an insured to give notice to the insurance company within a reasonable time after the insured is aware of damage to the property insured by the insurance policy. The reason for this duty is so that the insurance company can inspect the loss and take the necessary action to repair the damages and prevent additional damage to the insured property. For example, if a windstorm causes damage to the roof of a house, prompt notice will allow the insurance company to make temporary or final repairs to the roof which will prevent or limit any interior damage from water leaking into the interior of the building due to the roof damage. If the insured fails to give prompt notice of the loss, then the insurance company may deny a claim for some or all of the interior water damage.
2. Sworn Proof of Loss. This duty requires the insured to submit a sworn document (“Proof of Loss”) containing the information requested by the insurance company. Normally the insurance policy will give a time limit for the insured to submit the sworn proof of loss, such as 60 days. This means that the insured will have 60 days after the insurance company request that a POL be produced to submit a signed and sworn document. The insurance company will normally provide the insured with the forms which need to be filled out, signed and sworn to.
3. Examination Under Oath. An Examination Under Oath (EUO) requires the insured to appear before a representative of the insurance company (usually the insurance company’s attorney) to answer questions under oath about any matter related to the loss or claim, including any records or documents related to the loss or claim. A court reporter will normally be present to record each question and answer during the EUO. After the EUO is completed and transcribed by the court reporter, then the insured will have the opportunity to review the transcript and make any corrections which are necessary to make the transcript true and correct.
Most insurance policies contain a provision which states no one may bring a legal action against the insurance company unless there has been full compliance with all of the policy’s Duties After Loss. For example, this requirement means that if an insured is requested to submit a Sworn Proof of Loss and fails to do so, or is requested to submit to an Examination Under Oath and fails to do so, then the insured will probably not be allowed to file a lawsuit against the insurance company until these duties are satisfied. Another issue which may arise from an insured’s failure to comply with the Duties After Loss, is whether the insurance company was prejudiced by the insured’s failure to timely perform the Duties After Loss. For example, if the insurance company can show that the insured’s delay in performing its Duties After Loss resulted in the insurance company being unable to determine the type and amount of damage caused by the storm and the cost of repairing those damages, then the insured may be prevent from filing a lawsuit to collect the damages caused by the storm. Consequently, the insured should be diligent in complying with the Duties After Loss. Contact Max Factor for more information.
On April 15, 2016, Governor Rick Scott vetoed a bill which would revise Florida’s alimony and child sharing laws. The Florida Governor quickly made his decision after many supporters and protestors spent time at the capitol in order to make their views known. The bill greatly affected the family law community due to its major changes in alimony calculation and child-sharing guidelines. The majority of the parties were in agreement with the section on alimony but greatly disapproved of the new child time-sharing policy.
The bill (SB 668) would change how alimony is determined, getting rid of bridge-the-gap, durational, rehabilitative, and permanent alimony all together. The new policy would require judges to use a calculation guideline based on the length of a marriage and the income of the parties involved. For marriages lasting less than twenty years, the alimony would be calculated by multiplying the amount of years of the marriage by the difference in the monthly gross income and then by 0.015. For marriages lasting twenty years or longer, alimony would be calculated by the amount of years of the marriage by the difference in the monthly gross income and by 0.020. For the shorter marriages (less than 20 years), the alimony would only last a fourth of the time that the marriage did. For the longer marriages (20 years or more), the alimony would last for three quarters of the length of the marriage.
The bill also contained changes to child time-sharing guidelines. It created a policy that assumed that 50/50 time sharing custody would be best for the child regardless of the circumstances.
Gov. Scott cited in his veto statement “This bill’s proposed revisions to Florida’s alimony and child custody laws have evoked passionate reactions from thousands of Floridians because divorce affects families in many different ways. The one constant, though, is that when a divorce involves a minor child, the needs of the child must come before all others. Current law directs a judge to consider the needs and interests of the children first when determining a parenting plan and time-sharing schedule. This bill has the potential to upend that policy in favor of putting the wants of a parent before the child’s best interest by creating a premise of equal time-sharing. Our judges must consider each family’s unique situation and abilities and put the best interests of the child above all else.”
We will see if the alimony and time-sharing issues will return in the upcoming 2017 session.
The bill (SB 668) also contains child time-sharing language that calls on the courts to presume that 50/50 custody is in the best interest of the child.
Changes in Alimony and child-sharing laws have been the hot topic in the legislature for several years. All that is left is to wait to see whether Governor Scott will sign the new bill making it law. As a reminder, ,n 2013 he vetoed an alimony reform bill opposing a clause making it retroactive to existing alimony awards; a provision which was not included in this year’s bill.
The Florida law regarding alimony is up for consideration again this year by the Florida Legislature. A House bill aimed at effectively ending permanent alimony is heading to the House floor after clearing its final committee of reference on Thursday.The Judiciary Committee approved the measure (HB 455), sponsored by Republican state Rep. Colleen Burton of Lakeland, by a 14-3 vote.
Chiefly, the measure limits judges’ discretion in awarding alimony by providing guidelines for how much an ex-spouse should get and for how long. The idea is that “no matter where you live, you can anticipate you will receive equal treatment,” Burton said. Her bill picked up a key Democratic supporter in state Rep. Jared Moskowitz of Coral Springs, a self-described “child of divorce. He said he knows from first-hand experience that “an indefinite financial relationship between two divorced parents is bad for the children.”
Lawmakers heard from Tarie MacMillan of Wimauma, a 65-year-old woman paying permanent alimony for 16 years. Her husband, a former insurance executive, decided to stop working and lives on 65 percent of her income, she said. Alimony “needs to be a formula,” said MacMillan, a jewelry dealer. “It’s so wrong for one adult to live off another for so long.”
Others continued to insist that the changes will be at the cost of mothers who opted to leave the workforce and raise children. After a breakup, they have trouble finding jobs and depend on alimony, some as their sole support. “There’s no consideration for a stay-at-home mom who has no work experience,” activist Cynthia Wheeler of Palm Beach County said. Wheeler’s recent appearance in Tallahassee resulted in her being ejected from a Senate committee when she refused to leave the lectern. On Thursday, she again spoke over her allotted one minute and until two sergeants-at-arms turned off her microphone.
It’s the third time in recent years the Legislature has attempted to change Florida’s alimony law. A companion bill, sponsored by Republican Kelli Stargel of Lakeland, has not yet been heard in the Senate. Another family-law bill moving this session is SB 250, sponsored by Brandon Republican Tom Lee, that would change state law on child-sharing. It would create an assumption that equal time-sharing for both parents after a divorce is in the best interest of a child.
Florida law states that both parents are legally obligated to provide support for their minor child/children. Child support payment is considered a right of the child not the parent. The purpose of child support is to meet the the child’s basic needs for food, clothing and shelter, as well as to allow the child/children to share in the wealth and good fortune of their parent’s. In a dissolution of marriage or paternity action, child support is calculated pursuant to guidelines set forth in the child support laws in Florida. The child support guidelines are also used for actions to modify the amount of child support.
The amount of Child support is established based on the Florida Child Support Guidelines formula. The formula takes into consideration the net income of both parents, health insurance premiums being paid the parents and the daycare costs for the child/children. The formula also accounts for the number of over-nights the child/children spend with each parent. The Child Support “guidelines” are contained in Section 61.30, Florida Statutes.
The Florida Department of Revenue uses a calculator to determine the specific amount to child support to be paid by the parents. The Calculator can be found here.
When child support is initially determined, retroactive support may be established for the time period between the date the parents separated and the date that the child support order goes into effect. If the parties separated more than twenty-four months prior to the filing of the action requesting child support, retroactive support will generally be capped at twenty-four months. The law regarding retroactive Child Support is also found in Section 61.30, Florida Statutes.
In Florida, Child Support can be modified at any time based upon a showing of a substantial, permanent and unanticipated change in circumstances. What constitutes a substantial change in circumstances includes but is not limited to, the loss of a job, the termination of the child’s attendance at daycare, the disability of a parent, an increase in the costs of health insurance or daycare, or a substantial increase or decrease (15% or greater) in either parent’s income. Further, a permanent change is one that has lasted or is anticipated to last for one year or more. Generally, a modification can only be effective as of the date of filing of the action for modification. Therefore, any arrears that accrued due to non-payment of child support after the loss of a job but before the modification action was filed will remain due and owing. The law regarding modification is found in Section 61.13, Florida Statutes.
There are a number of ways to enforce child support. Including: contempt of court, suspension of the obligor’s driver’s license, and the placement of a lien on the obligor’s property. The Florida Department of Revenue has additional enforcement mechanisms including suspension of the obligor’s passport, and seizure of the obligor’s bank account.
The Clerk of Court can also will enter a judgment on the arrears that have accrued when child support is payable through the State Disbursement Unit. Once such a judgment is entered, interest begins to accrue. Therefore it is best to make child support payments in a timely manner whenever possible. There is no statute of limitations on the enforcement of child support and its arrears. Therefore, child support can be enforced after the children emancipate, and even against the estate of the obligor after the death of the obligor. The law regarding enforcement of Child Support is found in Section 61.13, Florida Statutes.
For more information please contact me at Max@maxfactorlaw.com
Clients often ask what to expect at a family law mediation. Family law mediations can involve many issues, including: dissolution or divorce; child sharing; child support; divisions of assets and liabilities; as well as, other family law issues that arise.
What is mediation?
Mediation is a process where a neutral third party, called a mediator, acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal, non-adversarial, confidential process that gives decision making authority to the parties. The role of the mediator includes, but is not limited to, assisting the parties with identifying issues, fostering joint problem solving, giving information and suggestions, and exploring settlement alternatives. The objective of mediation is to help disputing parties reach a mutually acceptable and voluntary agreement.
What are the benefits of a family law mediation?
There are many benefits of mediation.
• Mediation is a confidential process; therefore, nothing said from the time the order of referral is signed until the mediation ends may be disclosed, except where disclosure is required or permitted by law.
• Mediation empowers the parties. It is a process that encourages and facilitates the resolution of a dispute between two or more parties and gives decision making authority to the parties.
• Mediation is an informal and non-adversarial process.
• Mediation may resolve all of the issues in your case and can be more efficient and economical.
Who may serve as a family law mediator?
For general information about the qualifications for a mediator in Florida please go to http://www.flcourts.org/resources-and-services/alternative-dispute-resolution/. All mediators provided by the Second Judicial Circuit ADR Unit are certified as family, dependency or county civil mediators.
How to schedule a family law mediation through the Second Judicial Circuit ADR Unit?
Your attorney will schedule the mediation with opposing counsel. Mediations ordered in all six counties of the Second Judicial Circuit (Franklin, Gadsden, Jefferson, Leon, Liberty, and Wakulla) are scheduled by emailing Mediations@leoncountyfl.gov.
Do I have to attend family law mediation?
For county civil, ($5,000-$15,000 in dispute), family and dependency cases, you must be physically present for all mediations unless you have obtained the written consent of the other party, or a court order allowing you to appear by telephone. You will be responsible for obtaining the court order if the other party objects to your attendance by telephone.
In all cases the lawyer or non-lawyer must have full authority to settle the case on behalf of the party they are representing.
Who else can attend a family law mediation?
If you have hired an attorney, the attorney may attend, but is not required to do so. However, attorneys can be beneficial to the mediation process. Mediators are not allowed to give legal advice; therefore, the parties may wish to have an attorney present for that purpose.
Other interested parties (e.g., family members or friends) may attend the mediation only if consent is given by the other party.
CHILDREN MAY NOT ATTEND MEDIATION, unless they are specified in the order of referral to mediation. The Second Judicial Circuit ADR Unit does not have child care facilities.
How long does a family law mediation take?
One session of family court mediation is scheduled to last three hours. Parties attending mediation must be prepared to spend the full three hours at the session, but often the session does not last for three hours. Normally, the mediation takes between two and three hours to complete. If the mediation is not completed within that timeframe, you must pay an additional fee for another session.
If the parties reach a settlement, the mediator will prepare the agreement. This will take additional time. All parties must remain throughout the entire session, including the preparation and execution of the agreement.
How much do I pay for family law mediation?
For family court mediation, the cost depends on the combined gross incomes of both parties in a family case. If the combined gross income (before taxes) is less than $50,000, the fee is $60 per party, per 3-hour session.
If the combined gross income is greater than $50,000 but less than $100,000 the fee is $120 per party, per 3-hour session.
If the combined gross income exceeds $100,000 then your case does not qualify for the Second Judicial Circuit ADR Unit. You must select a private mediator. In all cases mediation fees must be paid before the mediation begins.
When must the fees for the family law mediation be paid?
All mediation fees must be paid prior to the mediation session beginning. You must obtain an invoice from the Second Judicial Circuit ADR Unit or the Mediator prior to paying the fee with the Clerk of Court. All fees are paid to the Clerk of the Court in the county in which the case is pending.
If the court has approved your motion to appear by phone or you have received consent from the other party to appear by phone you must contact the Second Judicial Circuit ADR Unit immediately to receive instructions on how to pay your mediation fee.
What is a parent coordinator?
A parenting coordinator is an impartial third person whose role is to assist the parents in successfully creating or implementing a parenting plan.
What if I have a family law mediation question not covered by this discussion?
If you have any unanswered questions we welcome you to contact our office at (850) 577-1699 or email.