Relocation

Cardboard Box with Warehouse Relocation on Hand Truck White Background.

Relocation has become an important and often contested part of dissolution proceedings. In our society many people have to relocate. The Florida statutes define relocation as “a change in the principal residence of a parent of at least 50 mile for at least 60 consecutive days”. This does not include temporary absence for vacation, education or the provision of health care for the child.

Both parents can agree in writing to the relocation as long as the agreement reflects their consent to the relocation and spells out a time sharing plan for the non relocating parent along with any transportation arrangements needed for visitation. You must seek ratification of the agreement by the court. There may not have to be a hearing unless one is requested. If both parents cannot agree then the statutes provide for the court to make the decision.

Florida has changed the relocation statute to eliminate the requirement that a notice of relocation be filed before a petition to relocate is filed in court. Now, in the absence of an agreement between the parents, a parent seeking relocation files a court petition immediately and must serve it on the other parent. The other parent has 20 days to file a written response to the court just as in any other court proceeding. The court then schedules a hearing.

There is no presumption for or against any relocation. The factors that a court will consider in determining whether to allow the relocation are set out in the statute 61.13001.

Failure to follow this procedure and removal of the child without permission subjects you to contempt of court and other proceedings to compel return of the child.

If you are faced with this situation I strongly recommend that you consult the attorney of your choice.

American Taxpayer Relief Act of 2012

2013-TaxAs you probably know, Congress passed at the 11th hour the American Taxpayer Relief Act of 2012 (the 2012 Tax Act), signed into law by the President on January 2, 2013. The 2012 Tax Act makes several important revisions to the tax code that will affect estate planning for the foreseeable future. What follows is a brief description of some of these revisions and their impact:

The federal gift, estate and generation-skipping transfer tax provisions were made permanent as of December 31, 2012. This is great news for all Americans; for more than ten years, we have been planning with uncertainty under legislation that contained built-in expiration dates. And while “permanent” in Washington only means that this is the law until Congress decides to change it, at least we now have more certainty with which to plan.
The federal gift and estate tax exemptions will remain at $5 million per person, adjusted annually for inflation. In 2012, the exemption (with the adjustment) was $5,120,000. The amount for 2013 is expected to be $5,250,000. This means tliat the opportunity to transfer large amounts during lifetime or at death remains. So if you did not take advantage of this in 2011 or 2012, you can still do so ó and there are advantages to doing so sooner rather than later. Also, with the amount tied to inflation, you can expect to be able to transfer even more each year in the future.

The generation-skipping transfer (GST) tax exemption also remains at the same level as the gift and estate tax exemption ($5 million, adjusted for inflation). This tax, which is in addition to the federal estate tax, is imposed on amounts that are transferred (by gift or at your death) to grandchildren and others who are more than 37.5 years younger than you; in other words, transfers that “skip” a generation. Having this exemption be “permanent” allows you to take advantage of planning that will greatly benefit future generations.

Married couples can take advantage of these higher exemptions and, with proper planning, transfer up to $10+ million through lifetime gifting and at death.
The tax rate on estates larger than the exempt amounts increased from 35% to 40%. The “portability” provision was also made permanent. This allows the unused exemption of the first spouse to die to transfer to the surviving spouse, without having to set up a trust specifically for this purpose. However, there are still many benefits to using trusts, especially for those who want to ensure that their estate tax exemption will be fully utilized by the surviving spouse.

Separate from the new tax law, the amount for annual tax-free gifts has increased from $13,000 to $14,000, meaning you can give up to $14,000per beneficiary, per year free of federal gift, estate and GST tax- in addition to the $5 million gift and estate tax exemption. By making annual tax-free transfers while you are alive, you can transfer significant wealth to your children, grandchildren and other beneficiaries, thereby reducing your taxable estate and removing future appreciation on assets you transfer.
And, you can significantly enhance this lifetime giving strategy by transferring interests in a limited liability company or similar entity because these assets have a reduced value for transfer tax purposes, allowing you to transfer more free of tax.

For most Americans, the 2012 Tax Act has removed the emphasis on estate tax, planning and put it back on the real reasons we need to do estate planning: taking care of ourselves and our families the way we want. This includes

Protecting you, your family, and your assets in the event of incapacity;
Ensuring your assets are distributed the way you want;
Protecting your legacy from irresponsible spending, a child’s creditors, and from being part of a child’s divorce proceedings;
Providing for a loved one with special needs without losing valuable government benefits; and
Helping protect assets from creditors and frivolous lawsuits. For those with larger estates, ample opportunities remain to transfer large amounts tax free to future generations, but it is critical that professional planning begins as soon as possible.
With Congress looking for more ways to increase revenue, many reliable estate-planning strategies may soon be restricted or eliminated. Thus, it is best to put these strategies into place now so that they are more likely to be grandfathered from future law changes.

Further, as is well publicized, the 2012 Tax Act included several income tax rate increases on those earning more than $400,000 ($450,000 for married couples filing jointly). Combined with the two additional income tax rate increases resulting from the healthcare bill, income tax planning is now more important than ever.

If you have been sitting on the sidelines, waiting to see what Congress would do, the wait is over. Now that we have increased certainty with “permanent” laws, there is no excuse to postpone your planning any longer.

What You Can Learn From Actor Philip Seymour Hoffman’s Will

Actor Philip Seymour Hoffman
Actor Philip Seymour Hoffman

When actor Philip Seymour Hoffman died unexpectedly this past February, he hadn’t updated his will in about 10 years, and his estate planning left something to be desired.

Hoffman’s will created a trust for his son Cooper, and left the rest of his roughly $35 million fortune to his longtime companion Mimi O’Donnell.

It’s worth taking a look at what Hoffman might have done differently:

• First of all, apart from the trust for his son, everything passed through probate, which tied up the assets and caused the estate distribution to be made public (which is how we know these details). If Hoffman had used additional trusts, the world wouldn’t know the extent of his wealth or how he planned to distribute it.

• Second, Hoffman never updated his will after his other two children were born. So while Cooper will benefit from a trust, Hoffman’s other children will get nothing. Presumably, O’Donnell (the mother of all three children) will take care of them. But if O’Donnell remarries and becomes part of another family, she could eventually leave a big chunk of Hoffman’s wealth to complete strangers rather than to his own children. Hoffman could have largely avoided this prospect through the use of trusts.

• Third, although Hoffman and O’Donnell were a couple for 14 years and had three children together, they never formally married. As a result, his estate will probably have to pay about $15 million in federal and state taxes – whereas if the couple had tied the knot at some point, the entire estate would probably have been tax-free.

Of course, the decision to marry is complex and involves many considerations other than estate taxes. Still, one has to wonder whether Hoffman might have felt differently about marriage if he had known that remaining legally single would be so costly to his partner and his children. It’s also worth noting that even if Hoffman had still wanted to remain single, he might have been able to use other techniques to reduce the tax burden for his heirs.

The Online Shopping Cart: Protecting Your Purchases

Internet ShoppingMore and more of us are buying products online, whether through websites of established vendors who also have brick-and-mortar stores or from businesses whose entire existence is online. Internet shopping is perfectly safe, and extremely convenient, so long as you follow some precautions and are aware of the legal protections available to you if things go wrong.

These days, security is not as much of a concern as it used to be when shopping online, but you certainly shouldn’t ignore it. Make sure that you are using the most recent version of your Internet browsing system, which will encrypt, or scramble, your information, making it harder to steal.

It is usually safe to pay online with a credit or debit card. If problems arise, however, the Fair Credit Billing Act protects you. This law gives you the right to dispute charges and temporarily withhold payment while the charges are being investigated. You can further protect yourself by keeping up-to-date records of your online transactions. Keep copies of your online communications with the company and your purchase order and confirmation number. Also, review your bank and credit card statements for billing errors or unauthorized purchases, which might have been made by someone who illegally accessed your information.

UNDER FEDERAL LAW, IF YOU DO NOT RECEIVE THE GOODS YOU ORDERED WITHIN A CERTAIN TIME FRAME, USUALLY 30 DAYS, YOU CAN DEMAND A REFUND.

You can further limit your exposure by acquiring a low-limit credit card and using that card for your online purchases. The lower limit reduces potential exposure if the number is misappropriated.

Problems at the Mailbox
Before hitting the “purchase” button, you should make sure you review the company’s return, refund, and shipping and handling procedures. You will also want to make sure you make note of your order number (many retailers will actually email this to you as soon as the sale is completed).

Save any emails or correspondence when your purchase arrives, examine the item carefully as soon as possible. Contact the seller immediately if you discover a problem. Tell the seller in writing about any problems, ask for a repair or refund, and again, keep copies of any correspondence in case you have to take the company to court.

Under federal law, if you do not receive the goods you ordered within a certain time frame, usually 30 days, you can demand a refund. Companies that cannot make delivery within the legally required timeframe must tell you and also inform you of your right to cancel the order with a full refund.

If the product never arrives and you aren’t making any inroads with the seller, you have additional legal rights under the Fair Credit Billing Act (FCBA) when you’ve paid for the goods with your credit card. Under the FCBA, you can contact the card issuer in writing about such disputes (note—do not send the letter to the billing address, but rather to the address listed on your statement for “billing inquiries.”) The Federal Trade Commission (www.ftc.gov) hosts sample dispute letters on its website. You will want to contact your credit card issuer within 60 days of receiving the bill that contains the challenged charge. The issuer will then acknowledge your complaint within 30 days and will resolve the dispute within two billing cycles. If your credit card issuer isn’t responding to your calls and letters, consider working with your attorney to determine your rights and FTC protections and the proper next steps. You likely have steps to find a solution, but know that time is of the essence.

You may withhold payment on these disputed amounts while your credit card issuer is investigating the issue. However, the disputed amount may be applied against your credit limit during this time. For example, if your limit is $1,000 and you dispute a charge for a $750 television, your credit limit will be capped at $250 during the investigation.

A special note if an online deal seems too good to be true—be on the lookout for gray-market goods. These are products that were not manufactured or intended for sale in the United States, but have found their way here through circuitous routes. Gray-market vendors will happily sell such goods to you at a substantial discount. These products are often made by high-end manufacturers, arrive in excellent condition, and work perfectly fine. On the other hand, gray-market goods may also arrive without a set of instructions in English or a U.S. warranty. If you buy a gray-market good, you take on the risk that if the product is broken or doesn’t live up to your expectations, you won’t have any recourse with the manufacturer or seller. It is the ultimate “buyer beware” situation.

Be Careful About Sending Text Messages to An Ex-Spouse It Could Be Considered “Cyberstalking”

Modern mobile smart phone. Sending and Receiving SMS Messages. E

Text messaging can be a good way for ex-spouses to communicate with each other about certain topics, such as the practical details of child custody. Text messages are short and quick, and they can be less likely to lead to extended arguments than a phone call.

On the other hand, sending repeated text messages to an ex-spouse, ex-lover or ex-partner can sometimes be considered harassment – especially if the texts are insulting or have a threatening under- tone. Sometimes, repeated texting can result in a restraining order…or even criminal charges.

Consider Florida’s statute on “cyberstalking”….

d) “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.”

(FLORIDA STATUTE 784.048(1) (d))

Stalking is a misdemeanor and is punishable by a fine or imprisonment. If the stalking is accompanied by a “credible threat” it is a felony. You can get an injunction to prevent further stalking.

So it’s important to be careful about texting. If you feel that your ex-spouse is stonewalling you about your children or other important matters, it’s best to consult your lawyer to discuss the best way to handle the situation. And if you feel that your ex’s texting has become genuinely harassing, you should consult an attorney for advice or, if you feel imminently threatened, call the police.

Divorce Survival Kit

Divorce2

  1. Get counseling so that you can unload your emotional baggage.
  2. Look to the future not backwards-move on. Allow plenty of time for readjustment.
  3. Do not try to “get back” at your spouse. Revenge has no place in a courtroom.
  4. Take care of yourself so that you can maintain your composure and sense of balance. Divorce is stressful-allow yourself plenty of time to decompress.
  5. Mediate your case rather than litigate if at all possible. Litigation is stressful.
  6. Tell your children that they are not to blame and that they are not being rejected or abandoned.
  7. Continual anger, bitterness and criticism of the other parent can harm your children more than the dissolution itself.children need to respect both parents.
  8. Get counseling for your children. .
  9. Do not force your children to take sides.
  10. Do not change the childrens’ routine too quickly. Children need to have a sense of continuity and order and direction.

You Can Be Served With Legal Process By Email

Legal concept

Beginning September 01, 2012, you can be served with a lawsuit by email. This is a big change in the legal system. For instance, there is no longer a requirement that the sheriff personally serve you with process. You can now be served by email!

This applies to civil suits in the trial court divisions for civil, probate, small claims and family courts only. It also applies to appellate cases in the Supreme court, District Courts of Appeal and the Circuit courts when sitting as an appellate court.

It does not apply to criminal prosecutions right now Criminal suits in the trial courts for criminal, traffic and juvenile cases will begin the same e service procedure as of October 01, 2013.

THERE WILL BE MANY QUESTIONS AS THIS NEW LAW BECOMES EFFECTIVE. WE DON’T KNOW ALL THE ANSWERS YET. BUT WE DO KNOW ONE THING- WE ALL NEED TO CHECK OUR EMAILS CAREFULLY STARTING SEPTEMBER FIRST, 2012

2014 Division of Property – Equitable Distribution

Family break up silhouette.

The Florida statutes provide that the marital assets and liabilities will be “equitably distributed” between husband and wife. This remedy is in addition to all other remedies available to the court such as alimony and child support. The specific statute is F.S. 61.075.

This statute applies regardless of the size of the marital estate and involves a 4 step process:

  1. Identify all assets and liabilities.
  2. Classify which assets and liabilities are marital or non-marital.
  3. Valuation of the asset or liability.
  4. Distribution of the asset or liability.

Note: There is a presumption that marital assets and liabilities should be distributed equally unless there is a justification for an unequal distribution. Note also that there is a presumption that all assets and liabilities acquired subsequent to the date of the marriage are marital assets or liabilities unless clearly established otherwise. The statute provides the criteria for a court to use in determining whether the distribution should be equal. These factors are similar to the factors for determining alimony and include such things as the duration of the marriage, the economic circumstances of the parties and the contribution of each to the marriage, just to name a few. See the statute for a full listing. The statute also contains a definition of marital and non-marital assets. The court may order an interim partial distribution during the pendency of the litigation if the circumstances of the case warrant it.

None of these 4 steps are simple questions. There have been volumes of litigation on each of these steps. These issues must be decided on a case by case basis.

This article is for general reference only, and it is not intended to be a substitute for the hiring of an attorney. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.

Divorce Laws in Florida

divorce papers

Divorce Law in Florida has the purpose of dissolving or terminating a marriage with the good of both parties in mind. A divorce is called dissolution of marriage in the court system. It is begun by filing of a petition for dissolution along with a summons.

The petition describes to the court in general terms basic facts about your situation and what you are seeking in the divorce (such as alimony, child support, equitable distribution of the marital property, child custody, temporary support, etc.) There is a filing fee which must be paid to the court for filing the petition.

The summons is a document which accompanies the petition and tells your spouse that he or she has twenty days to respond. It is usually served upon the opposing spouse by formal service of process, either by the sheriff or by a private process server. There is a charge for serving this document and the proof that the process server has served it upon the other spouse is placed in the court file. It is called the return of service.

Information Gathering

The next step is information gathering. This can be done informally by the parties themselves or formally by their attorney’s. Formal methods include subpoenas to third parties such as employers or financial institutions, interrogatories (written questions) directed to the next step party, depositions of the other party or third parties, or requests for admissions. These methods are governed by strict rules and deadlines and there are penalties for failing to comply. Informal information gathering is much less costly and time consuming.

A part of information gathering may be the hiring of experts such as psychologists, accountants, appraisals and neutral financial advisors. It is advisable to put together a team to assist you with all aspects of the divorce.

Going To Court

The next step will be going to court and attempting to resolve your differences. This can take as little as a few weeks or as long as two years or more, depending on the levels of cooperation and animosity between the parties and their attorneys. There can be pretrial hearings before the case goes to trial, depending again on the parties and the attorneys involved. Generally, the higher the level of animosity between the parties and their attorneys, the more pretrial hearings there will be and the higher the costs will be. At trial, the court will hear the evidence and make its decision. Dissolution cases are usually tried before the judge without a jury.

Divorce, entered into without competent counsel, can have devastating effects that result in an increase in the time it takes for you and your family members to resume a happy and healthy lifestyle. Its important that you know your legal rights and protections. Spousal support, custody rights, child support, visitation schedules, parental rights, property division, and protection of your assets, even protection of your retirement account, are issues that must be addressed. Even an amicable divorce agreement, drafted by the concerned parties themselves, may omit information that affects their rights and costs each of them for years to come. Many such mistakes can be avoided by consulting an attorney.

This article is for general reference only, and it is not intended to be a substitute for the hiring of an attorney. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.

 

Common Medicare Sign-Up Error Can Bring Penalties

medicare2Most people should sign up for Medicare when they reach 65; if they wait until later, they have to pay a significant penalty when they do sign up.

There’s an exception, though, for people who are still employed at age 65 and are covered by a group health plan. These people can delay signing up for Medicare without a penalty.

But here’s a common problem: Suppose you’re no longer working when you turn 65, but you’re still covered by your old employer’s group health plan under COBRA?

COBRA is a federal law that allows many workers to continue on their employer’s health plan for up to 18 months after their employment is terminated or their hours are reduced.

Many people assume that they can delay signing up for Medicare if they still have COBRA coverage when they turn 65. But that’s not true. If you’re no longer employed when you turn 65, you have to sign up for Medicare Part B or you will face a penalty, even if you still have COBRA coverage.The penalty for delaying can be very significant – there’s a 10 percent premium penalty for each year that enrollment is delayed. For example, if you turn 65 in 2012 but wait until 2014 to enroll in Medicare, your monthly Part B premium will be 20 percent higher than the standard premium.. .and this will be true for the rest of your life.

The rules for signing up for Medicare Part D, which covers prescription drugs, are a little differ­ent. People who aren’t employed when they turn 65 but still have COBRA coverage can delay signing up for Part D without a penalty, but only if the prescrip­tion drug plan they have under COBRA amounts to “creditable coverage,” which means that it’s expected to pay on average as much as the standard Medicare Part D plan.

The penalty for delaying enrollment in Part D is also more complicated; it’s calculated by multiply­ing 1 percent of the national base premium by the number of months that you were without creditable coverage.

Medicare enrollment begins three months before you turn 65, and runs for seven months.