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.
1. TRENDS IN DIVORCE AND FAMILY LAW
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
¨ 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
¨ 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.
2. TRENDS IN INCOME TAXES
¨ 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
¨ Don't be the victim of a tax scam. Always see a reputable certified
public accountant or lawyer when you file your tax return.
3. NEVER FORGET QDROs (QUALIFIED DOMESTIC RELATIONS ORDERS) WHEN
GOING THROUGH A DIVORCE OR COLLECTING CHILD SUPPORT OR ALIMONY
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.
4. HOW CAN YOU PROTECT YOURSELF FROM CREDITORS?
(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
¨ 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.
5. FLORIDA'S CRIMINAL LAW HAS CHANGED
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.
6. INVESTMENT STORM WARNINGS
¨ 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.
7. INTERESTING CASE OF THE MONTH
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.
8. CURFEWS FOR MINORS IN FLORIDA ARE THE LAW!
¨ 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.