Spring 2002
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. In this issue, we discuss a variety of issues that might impact your life. If you have questions about what you read in this newsletter, please call us today.


There are numerous trends in divorce law that clients at Fisher's Law Office need to be aware of.

¨ The new "40% visitation rule". Under Florida Statutes, Chapter 61.30, Florida sets forth guidelines for determining child support. Generally, child support is based upon the income of the parents. However, Governor Jeb Bush signed a new law which requires the divorce judge to calculate child support under a different formula if a child spends more than 40% of the time with the non-custodial parent.

¨ If you are a father whose child visits overnight more than 146 nights per year, you may be eligible for a substantial reduction in child support.

¨ Failure to disclose income has become rampant in the Florida court system. Florida law requires that parents provide the court with a full accounting of their income on a financial affidavit. Fisher's Law Office has noticed a trend in which income reported on tax returns and financial affidavits are understated.

¨ In order to determine actual income of a current or former spouse, you may want to have your lawyer subpoena bank records, credit card statements, credit applications and brokerage records of your former spouse to verify a former spouse's income. For example, reimbursement of expenses that reduce living expenses is considered income under Florida's child support statute. Therefore, expense reimbursements from employers should always be obtained.

¨ If you have any doubt as to the truthfulness of your former spouse's financial disclosures, you should see an attorney right away.

¨ The family law divisions of the clerks of the courts and the family law division of Hillsborough and Pasco Counties have gotten extremely busy over the last year. Many clients have to wait several months for even a preliminary hearing in their cases. If you are planning on leaving your spouse, you should have enough financial reserves to carry you for several months while you wait for a court to rule on initial support matters.

¨ Courts are increasingly concerned about the well being of children in divorce court. Specifically, the courts, in some jurisdictions including Pasco County, Florida, are requiring parents to complete a "Minor Child Questionnaire" providing information about the children and parents to help the court identify issues effecting the children.

¨ Courts are concerned about the mental health of parents and all parents now must attend divorce and parenting classes before a final hearing can be scheduled..

¨ Older men are going back to court in droves to reduce their alimony. Fisher's Law Office has noticed an alarming trend in which men claim to be unemployed due to the recession or a medical condition and then ask a court to reduce their alimony. In order to determine whether alimony should be reduced, courts should consider all financial resources of the man. Financial resources include ability to work, investments, stocks, bonds, retirement funds and other assets that could be tapped to pay the alimony owed.

¨ Moral for Fisher's Law Office clients: If you are paying alimony, be aware that you may be able to reduce your alimony. If you are receiving alimony, it's a good idea to monitor the activities of your former spouse so that later you can testify that he has the ability to pay alimony even though he claims that he does not.


¨ Congress passed a taxpayer bill of rights law that provides, among other things, that a taxpayer can sue an IRS agent who commits one of the "ten deadly sins". As a result, the IRS collection efforts have fallen to an abysmal level. For example, in the year 2000 the number of physical seizures of personal property and other tangible assets fell to less than 200 for the entire United States. Since there are 285,000,000,000 Americans and over 125,000,000,000 Americans filed tax returns in 2000, this is a very low number compared to prior seizure rates.

¨ Be aware of tax scams. There are numerous Internet and other confidence games and promoters of tax scams. One example of a recent tax scam is the "slavery reparations" scam in which African Americans are asked to pay large fees in order to obtain tax credits and refunds for slavery reparations (See IRS News Release IR-2002-08). There is no such tax law provision for credits and refunds for slavery reparations in the United States at the present time. Last year the IRS received over 80,000 returns claiming 2.7 billion dollars in false reparation refunds.

¨ Don't be the victim of a tax scam. Always see a reputable certified public accountant or lawyer when you file your tax return.


The Internal Revenue Code contains a special section that deals with the division of retirement plans upon divorce, separation and other family law situations. (See 26 U.S.C., Section 414(p). This section of the Internal Revenue Code defines a Qualified Domestic Relations Order (QDRO) and provides rules for how the money in such plans can be legally divided by a family law court. Although the rules can become somewhat complicated, the basic process is as follows:

¨ A family law court must first enter a domestic relations Order which relates to child support, alimony or marital property rights of a spouse, former spouse or child.

¨ The Order must state the name and address of the person to receive the money from the plan as well as the portion of the plan benefits the person will receive and the name of the plan to which the Order applies. The plan trustee should be specifically named.

¨ The Order cannot change the benefits provided under the plan or increase benefits to be paid.

¨ As a practical matter, most employers pre-approve Orders and agree to honor them if they are entered by a court.

¨ Important points to remember. Always find out the amount of retirement benefits your spouse has in a divorce. Also, if your spouse owes you back child support or alimony, consider using a QDRO to attach your spouse's assets to satisfy the arrearage.

¨ Lastly, retirement plans often represent the biggest asset in a divorce. Never waive your rights to your spouse's retirement plans without finding out how much is in the plan.


(a) With more and more Americans falling further and further behind on their bills, it has become relevant to review the Fair Debt Collection Practices Act. This federal law provides that once you tell a debt collector to stop calling you, he must stop calling. Moreover, you can ask a creditor to cease all communications and he is not allowed to communicate with you except to sue you.

(b) Here are some things that creditors cannot do:

¨ Creditors cannot use abusive or profane language.

¨ Creditors cannot call you before 8:00 a.m. or after 9:00 p.m.

¨ Creditors cannot make false statements while trying to collect a debt.

¨ Creditors cannot ask to be transferred to the personnel office so they can garnish your wages.

¨ Creditors cannot ask you to pay money that is not owed.

(c) Why are creditors becoming more aggressive? With the economy in recession and consumers owing over 1.65 trillion dollars in unpaid accounts, creditors are becoming desperate to collect the money that's owed them. High levels of loan delinquencies and over 1.4 million personal bankruptcies a year make debt collectors' jobs even harder and they therefore are exploiting consumers' ignorance by trying to collect money using illegal methods. If you feel that a creditor has used an improper method of collecting money from you, you should consult with a lawyer or contact the Federal Trade Commission (the FTC).

(d) Remember the following ways of protecting yourselves from creditors:

¨ Write the creditor a letter within 30 days of being contacted by the debt collector to dispute the debt if you don't believe the debt is owed.

¨ If a debt collector threatens you or calls late at night, make a log of the telephone calls.

¨ If you are sued, you can counter-sue for violation of the Fair Debt Collection Practices Act.

¨ If a debt collector continues to contact you, write him a short letter and tell him not to communicate with you. If he does communicate with you again, you can sue for violation of the law. And remember, the Fair Debt Collection Practices Act only applies to outside debt collectors and not to "in house" credit collectors.

¨ Lastly, remember that the average debt collector was only successful in collecting 11% of amounts owed in the year 2000.

(e) If you live in Florida, remember that your homestead cannot be seized by most creditors such as credit card companies. Never take out a mortgage against your house to pay credit cards and never tap into your 401K plan to pay debts.

¨ Never allow a creditor to convince you that you should take an exempt asset, such as a 401K plan, an individual retirement arrangement (IRA) or your house and sell it or borrow against it to pay the creditor you are dealing with.


In the famous Florida Supreme Court decision Weiand vs. State, 732 So.2d 1044 (Fla. 1999), the Florida Supreme Court ruled that a citizen has no duty to retreat in his home before using deadly force in self defense. Under the Weiand, this is true even if you are attacked by a co-occupant of the home. Fisher's Law Office always recommends that you run away from any violence whether it is committed by a co-occupant of your home or an outsider.


¨ Now is a time that you should become more vigilant than ever regarding your investments. Use extreme caution when investing through your company's 401K plan and in your own accounts. The reason for this is that if you have a high percentage of your assets invested in one company's stock, you are vulnerable to loss if the company's stock becomes worthless. Recently, a large company called Enron had all of its stock value wiped out and many employees lost everything. Moral? Always diversify your investment portfolio.

¨ If you have money with a brokerage firm, make sure you sign up for Internet online access. Double check the statements mailed to you by going online to verify that the information in the statement mailed to you is the same as the information online. Recently a broker in Ohio named Frank Gruttaduria with Lehman Brothers was alleged to have stolen over 125 million dollars from his customers. How did he do it? The stockbroker had statements mailed to a post office box and then printed special statements full of lies and mailed them to his customers. Meanwhile, he was stealing millions and millions of dollars from his customers' accounts. Remember, use common sense even if you know your broker well. Always double check your account online.

¨ According to T. Rowe Price's chief investment officer David Testa, the last fifteen years have experienced very positive economic activity because of increasingly lower tax rates, falling interest rates and reduction in cost of pension plans for corporations. Mr. Testa feels, however, that these three positive trends are now reversing themselves and that the next era may include substandard investment returns. You've been warned.


In the case of Schiller vs. Miller, 621So.2d 481 (4th DCA, 1993), the appellate court heard a case in which Mr. Miller gave Mrs. Schiller, among other things, the use of a 5.8 karat diamond engagement ring. Mr. Miller claimed that the ring was a mere "loan" and not a gift. Mrs. Schiller claimed it was a gift. The appellate court ruled that the lower court had the right to require Francine Schiller to hold on to the ring and not sell it until the case was completed. Moral to the story? If you receive an engagement ring, make sure that it is understood to be a gift and not a mere loan or a conditional gift.


¨ Florida Statutes, Section 877.22 prohibits minors from being in a public place or establishment between midnight and 6:00 a.m. on Saturdays, Sundays and legal holidays. In addition, a minor who has been suspended or expelled from school may not be or remain in a public place or within 1,000 feet of a school during the hours of 9:00 a.m. and 2:00 p.m. during any school day.

¨ A minor who violates the above two laws after receiving a prior written warning must pay a $50.00 fine for each violation.

¨ If a minor violates a curfew and is taken into custody, the minor will be transported to a police station or another facility that conducts a curfew program in the community. The law enforcement agency is then supposed to contact the parent and if successful, must request that the parent take custody of the minor. If the parent does not pick up the child within two hours, the law enforcement agency may transport the child to his residence or take the child into protective custody as called for under Florida's dependency laws.