March 2001
Fisher's Law Office

Welcome to the NEWSLETTER of Fisher's Law Office, providing you with legal information you can use in your everyday life. If you have questions about what you read in this newsletter, please call us today. If you have questions, don't hesitate to call or send us an e-mail today.

File Your Tax Return Early to Prevent Being Ripped Off By Your Former Spouse

Make sure that if you have a minor child, you file your taxes as soon as possible. In this way, your former spouse cannot take a deduction for your child before you do. This "first to file rule" is not written in any statute book but as a practical matter, the first person to file generally gets the refund and the exemption and the tax benefits of having the child. Don't be a victim of an ex-spouse. Make sure you never break the "first to file rule".

What is "Unclaimed Property"?

Under Florida Statutes, Section 717.103, unclaimed bank accounts and utility deposits and other intangible amounts "escheat" to the State of Florida after five years. See if your name appears on the abandoned property list at web page ... You can also get the forms to request your property at the same web address.

Thinking of Filing a Tax Return With Your Current Spouse?

Consider this. Think very carefully before filing a tax return with a current spouse. If the spouse has income you are not aware of, you may be assessed with taxes on your spouse's income. If this happens to you, consider filing as an "innocent spouse". In general, you should not file a joint tax return with another individual if you can help it.

Going Uncontested Without a Lawyer? Here Are Some Helpful Hints

1. Buy the packet of information from the clerk of the court and read everything in detail.

2. Sit down with your spouse and decide who gets what regardless of the forms in the packet.

3. If you have minor children, real property or retirement plans, do not do your divorce by yourself. Use a lawyer.

4. If you decide to go forward with doing your divorce by yourself and cars, houses or other property or stocks are to be transferred between the parties, make sure you complete all of the transfers before filing the divorce or shortly thereafter. Also make sure that you list who gets what in the divorce papers.

5. Make full financial disclosure to your spouse by filling out the Financial Affidavit form truthfully and completely.

6. Consider going to the clerk of the court's intake division to see if they have free assistance in helping complete the divorce information.

7. Do not use paralegals if you can help it. Some paralegals have a lot of knowledge regarding divorce law but others don't have any knowledge and can lead you astray and cost you thousands and thousands of dollars should you make a legal mistake. Remember that judges are not trained to give legal assistance and will generally sign anything put in front of them as long as it looks alright. A judge may sign the divorce and you may be legally divorced even though you have not properly divided your pensions, debts, assets and children between you.

8. It is a good idea to go to an attorney to find out where you stand in relation to your divorce before you agree to any uncontested divorce. Most divorce lawyers will charge a small consultation fee and will give you valuable information that you can use in negotiating and/or resolving your divorce on a friendly basis.

9. If something doesn't seem right, it probably isn't. Never sign a form because you are in a hurry or sign forms where there are blanks. Always get a copy of everything you sign and make sure you read completely any forms or documents you are ever asked to sign especially in the divorce area. Further questions? Call Fisher's Law Office, (813) 949-2749. For a small consultation fee, we can often head off disaster.

Mediation Tips and Pitfalls

Mediation is now required in all divorce and other civil cases. Mediation rules are contained in Florida Rule of Family Law Procedure 12.741. Mediation is the process by which parties get together with an impartial mediator to try to resolve their case. As stated above, most judges will require mediation in all family law cases. If a party fails to show up for mediation without good cause, the court imposes sanctions including the cost of the mediation fees, attorney's fees and costs against the party who failed to appear.

Generally, mediators have the right to adjourn a mediation conference and to reconvene the conference at a later date.

Lawyers are allowed to appear at mediations with their client and to communicate privately with their client. However, a mediation is very difficult to set aside if an attorney attends a mediation. However, if your lawyer does not attend mediation, then under a special rule (Rule 12.740, your lawyer may file an objection to the mediation agreement within ten days after receiving a copy of the mediation agreement. Absent a timely written objection to mediation, an agreement is presumed to be approved by counsel and shall be filed by the court mediator.

Why Should You Spend $50.00 to See a Lawyer?

1. Most lawyers have experience with the area of law in which you have questions.

2. The lawyer has many years of experience that can be revealed to you in just a short consultation.

3. Often you do not need actually hire an attorney once you have found out the information the lawyer provides you in the short consult.

4. You may find out if there are significant issues you are unaware after consulting with an attorney.

5. A lawyer may be able to quickly decide whether or not an agreement is fair in a short consultation.

6. The lawyer may know the judge involved in your case and may be able to give you insight into what the judge might rule if the case was presented before him.

7. Many lawyers such as Fisher's Law Office adhere to the strict ethical rules that prevent conflicts of interest. Once you meet with an attorney in a consultation, that lawyer cannot represent anyone against you in a similar matter. For all of the reasons above, before you sign a settlement agreement or resolve a lawsuit or make a big decision in your life, consider seeing a competent attorney for a $50.00 consultation.

New Rules Require Payments of Child Support Through the State of Florida Disbursement Unit

Under changes to federal and state law, all child support payments in Florida must be sent to FL SDU, P.O. Box 8500, Tallahassee, FL 32314-8500. Clerks of the court no longer process child support payments. It is very important that when you send your child support payment to the State of Florida Disbursement Unit (FL SDU) that you include the following information:

Full name of person obligated to make payment
Social Security number of the obligor
County name (Hillsborough for example)
Your case number
Full name of the person to receive payment

Make sure that you always pay your child support to the State of Florida Disbursement Unit and do not pay clerks of courts. Clerks of courts are not able to process child support payments any longer.

Requirements for Dissolution of Marriage

Under Florida Law, you must be a resident for six months to get divorced (See Florida Section 61.021). In addition, you must be able to prove by producing a driver's license or Florida I.D. card that you have been a resident for six months (see Florida Statutes, Section 61.052) or you must bring a witness who can truthfully testify that you have been a resident for more than six months. Anyone can get divorced in Florida even if they were married in another State or country.

Petition for Dissolution of Marriage

The Petition for Dissolution of Marriage is the complaint that is filed with the clerk of the court. A copy of the petition is given to the other party by a sheriff or a process server. The Petition for Dissolution of Marriage must state that the marriage is "irretrievably broken". Also, the mental capacity of both parties should be alleged generally. If one party lacks mental capacity and they have been adjudicated (declared by a court to be incapacitated), then you must wait three years before you can divorce such a person.

Additionally, if there are minor children to a marriage, then the petition must state where the children have lived for the last five years and with whom. Once a Petition for Dissolution of Marriage is filed, the court has the authority to order marriage counseling if a party denies that a marriage is irretrievably broken. The court also has the power to order alimony and child support during the time that counseling occurs. Courts can also enforce anti-nuptial agreements. Lastly, all Petitions for Dissolution of Marriage must contain the social security numbers of the parties and the children of the marriage or a separate pleading must contain the social security numbers.

Petitions for Dissolution of Marriage may be brought against persons who reside out of State (see Florida Statutes, Section 61.061). Petitions for Dissolution of Marriage may contain a prayer for alimony under Florida Statutes, Section 61.071.

Financial Disclosures

Florida Rule of Family Law Procedure 12.285 requires substantial financial disclosure between parties at the time of divorce. The disclosures are different for parties who make over $50,000.00 than for parties under $50,000.00. For parties who make under $50,000.00 per year, the rules generally require the completion of:

(1) a Financial Affidavit ;
(2) all State and federal income tax returns for one year;
(3) Forms W-2, 1099 or K-1 for the last year;
(4) pay stubs for the last three months

Alimony is Alive and Well in Florida

Under Florida law, the judge has the right to award either party temporary alimony. On a permanent basis, the court can award alimony if a list of factors is met. The factors are contained in Florida Statutes, Section 61.08. These factors include:

(1) the standard of living;
(2) the duration of the marriage;
(3) the age and emotional condition of the parties;
(4) the financial resource of the parties;
(5) the time necessary to obtain an education by each party;
(6) each party's contribution to the marriage;
(7) all sources of income available to either party. The court also has the right to order that life insurance be taken out to insure that alimony will be paid if a spouse dies (see Florida Statutes, Section 61.08(3)).

Types of Custody Arrangements

There are three types of custody arrangements that Florida law recognizes. The most common arrangement is "shared parental responsibility" by which each party shares major life decisions in the child's life. Another type of custody arrangement is "sole parental responsibility" in which the court orders one parent to have sole control over various areas of the child's life.

Florida Statutes, Section 61.121 also allows rotating custody in which the minor child alternates living between two parents on a rotating basis.

Contempt-Failure to Pay Child Support

The Florida court system retains jurisdiction to put a parent in jail for failing to pay child support. In general, the court must find that the parent who doesn't pay child support has the ability to pay but willfully fails to do so. Once the court orders that a party should go to jail, the court requires that a "purge" be placed on the case such that the parent will instantly be released from jail when the purge amount is paid.

Driver's License Suspension for Failure to Pay Child Support

Under Florida Statute 61.13016, you can have your driver's license taken away if you don't pay child support. If you receive a letter from the Clerk of the Court or the Department of Revenue threatening this, you only have 15 days to file a petition to keep your driving privileges. If you get such a letter, see an attorney right away.

Modification of Final Judgments

Once a Final Judgment is entered, it can be modified. In general, the Florida court doors are always open to hear additional custody proceedings and child support proceedings based upon a showing of a substantial change of circumstances of the parties or their children. An increase of income is considered a basis for increasing child support. If you receive child support and several years has passed since the last time the court has examined this issue, you may be entitled to more child support. Call Fisher's Law Office if you have questions. For a short time only, you can also log onto the web page and get a free child support calculation.

Pollution in Lutz -- Red Alert!

Fisher's Law Office has noticed that a pollution caused by an orange grove pesticide called EDB has been noted in some ground waters around Lutz. One of Fisher's Law Office's clients bought land that was potentially polluted by EDB and was advised to pursue an action for fraud for failure to disclose a latent defect against the seller.

Warning: Don't be a victim of fraud. If you buy a house that has a well or a septic tank, have the well and the septic tank tested by a reputable engineering firm and water testing firm before you buy. Also, have the roof checked, the foundation checked and the title searched thoroughly.

Check the property yourself and see if there is any pollution or signs of contamination. Obtain written disclosures by the seller and ask specific questions of neighbors regarding pollution on the property. Remember: It is much harder to sue to get money back after a house has been purchased then it is to walk away from a deal before you give away your hard earned money.

Second Marriage? Get a new will written now!

If you are married for the second time and have children by a prior marriage, make sure you see an attorney and have a Will written immediately. Also, check the title on your house. If the house is titled in your name only, when you die your spouse will not inherit the house but will instead inherit a "life estate". After your spouse dies, your children inherit the house.

Be very cautious when getting married again if you own a house. Always see a competent lawyer to verify that your property passes upon your death as you wish it to pass.

Failure to Pay Credit Cards Can Result in Taxable Income!

It's true. Under a little known Internal Revenue Code Section (26 USC §6050P), Congress requires any credit card company that writes off a credit card to issue a Form "1099" to you if the your credit card debt is written off.

What this means is that you owe income tax on the amount of debt "written off" by credit card companies and other financial institutions. Moral to the story? Think twice about borrowing money that you may not be able to pay back. Otherwise, you may have to pay income tax on the amount you borrowed.

Married Woman Beware: The IRS wants to keep your refund

It's true. In 1999, the IRS mailed 2,400,000 women and told them that their name in their IRS records did not match their name in the social security records. This typically happens when a woman is born with one name and changes her name when she gets married.

If you are a woman who began to use a different name after marriage, you should go to the Social Security Administration and make sure that your name for income tax purposes is the same as your name on the social security rolls. If not, you may want to go through a legal name change to make the two names the same. If the two names are not the same (the social security records and the IRS records), then the taxpayer will be denied an income tax refund until the matter is resolved. You've been warned.