Winter 2003
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.

Thinking about getting a divorce?

Remember the following key points in separating from your spouse:

1. Establish an “escape fund”. The escape fund should be sufficient to allow you to have money to pay for the cost of moving and establishing a new household. It also allows you to hire legal counsel and meet your costs of living until you can get financial support from your spouse through court order.

2. Make a list of what you own and how much you owe. You should obtain copies of your latest credit card statements, mortgage statements, titles to cars and deeds to real property. Don’t forget to get copies of your brokerage account statements, pension statements, 401K statements and credit card statements.

Protect your “Special Equity” property.

Don’t mix inherited property with your spouse’s property! Inherited items are considered “special equity”. As long as you do not commingle (mix) these items with your spouse’s property, you are allowed to leave the marriage with things that you brought into the marriage or which you inherited during the marriage. Remember, never put your spouse’s name on a bank account or on other property you brought into the marriage.

Need a place to stay?

Find a safe place to go before you tell your spouse you are breaking up. You may have an emotional desire to keep their family home. However, if it turns out that you are required to move for your protection, have a “backup plan” and know where it is you want to move whether it be to an apartment, a house or another residence. Many of your friends with large homes may be willing to rent out a room to you during the time you are going through a divorce.

Health Insurance.

Is your spouse paying for your health insurance by payroll deduction? You may lose your insurance after the breakup so check to see if your employer will insure you. The court can require your spouse to continue your health coverage but it may take a long time to get to court. Protect yourself. False allegations.

Watch out for false allegations of domestic violence. Fisher’s Law Office has noticed an alarming trend in which spouses who are not violent are nevertheless accused of violence by their husbands or wives in order to gain a tactical advantage in a subsequent divorce proceeding. If you believe you are in a divorce situation, be extremely cautious about putting yourself in a situation in which you could be falsely accused of committing an act of domestic violence. Domestic violence includes assault, battery, stalking and other attacks on members of your family or household.

Visitation and custody hints.

It is never too late to establish a good set of facts when fighting for visitation or custody. To do this, consider the following:

♦ Visit with your child’s teachers frequently. Teachers and day care professionals are excellent witnesses and have high credibility with most judges.

♦ Make it your business to help your children with their homework and know how they are progressing in school.

♦ Get to know your children’s friends and their parents.

♦ Learn the names of your child’s favorite T.V. shows, sports and video games.

May I leave Florida with my child?

This is a very common problem. Many people who have family out of state want to leave the state with their children after they are divorced. Florida has a list of statutory factors contained in Florida Statutes, section 61.13 that the court must apply in deciding whether or not a person is allowed to relocate from the state of Florida with a minor child. The factors include whether the move would improve the quality of life for the residential parent and the child, the extent to which visitation has been exercised in the past, whether the primary residential parent will comply with a substitute visitation arrangement and whether the cost of transportation is affordable by the parties. Remember, the court always looks at the child’s best interests in deciding relocation issues.

What factors does a court use in deciding whether alimony will be awarded to a party in a divorce? In Florida the courts are allowed to award alimony.

Generally, courts will order alimony for one party or the other if the parties have been married for at least ten years. However, for marriages that last less than ten years, courts can order rehabilitative alimony (alimony to allow a spouse to get an education for example or “bridge the gap” alimony). The factors the court considers in awarding alimony include the following:

  1. The standard of living enjoyed during the marriage.
  2. The duration of the marriage.
  3. The age and physical and emotional condition of the parties.
  4. The financial resources of the parties.
  5. The time required to obtain an education.
  6. The contribution of each party to the marriage.
  7. All sources of income available to either party.

What about adultery?

Does a court consider adultery when it makes an award of alimony or division of property in a marriage? Yes. Florida Statutes, Section 61.08, states, “a court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony to be awarded.” In general, a court will punish an adulterous spouse if marital funds (marital savings or marital earnings) are spent on the adulterous affair. If you are involved in an adulterous affair, do not spend money on your paramour. It’s always better to have your paramour spend money on you!

Estate planning warning.

If you have a family limited partnership, you should go back to the lawyer who helped you write it and change it immediately! In a famous tax case involving the estate of Albert Strangi, the court found that Mr. Strangi had maintained too much control over his family limited partnership, including how income was distributed among the partners. According to the ruling, Mr. Strangi wasn’t letting go of the assets which included the house he was living in. As a result, a lot of money that Mr. Strangi thought was outside of his estate was in fact a part of his estate and his heirs were forced to pay huge estate taxes and penalties to the United States Treasury. Moral to the story? Not all family limited partnerships are equal. If you have a family limited partnership in which you have not given up control over assets, you may want to have your estate attorney re-write the partnership so that assets are out of your hands or eliminate the partnership altogether. On the other hand, if you are only setting up a family limited partnership for creditor protection, you may be in good shape. The ruling in the Strangi case does not affect creditor protection aspects of family limited partnerships.

What is a constitution?

A constitution is the fundamental law of a state. It describes the extent and manner of the exercise of sovereign powers. Florida’s Constitution was written in 1885. It was rewritten in 1968 and has been amended since then.

How does the Florida Constitutional Amendment known as the “Save Our Homes Amendment” work?

In 1992, the “Save Our Homes Amendment” to the Florida Constitution was passed by the voters of Florida. It is contained in Article VII, Section 4(c) of the Florida Constitution. The Amendment states that “all persons who are entitled to a homestead exemption may not have the assessment of their property increased by more than three percent or the change in the consumer price index, whichever is lower.”

Three values on your annual homestead tax bill.

All property tax bills in the state of Florida for homestead property have three values: market value, assessed value and taxable value. The market value is the true value of the property. The assessed value each year is the value calculated using Article VII, Section 4 (limited to three percent or the consumer price index, whichever is lower) and taxable value is the assessed value less the $25,000.00 homestead exemption. The $25,000.00 homestead exemption is contained in Article VII, Section 5. In applying Florida’s Save Our Homes Amendment, remember the following:

♦ If you re-title your property to your home, your taxes will generally go up because your home’s assessed value increases.

♦ If you buy a new house, your taxes will be assessed at full value as of January 1st of the year following the year of purchase.

♦ Any new homestead property is assessed as of January 1st of the year following the creation of the homestead.

♦ Changes, additions, reductions and improvements to homestead are assessed as provided for by general law.

♦ If you lose your homestead status, your property shall be assessed at full market value without the benefit of the Save Our Homes Amendment.

♦ Lastly, if you live on “historic property”, the local county government has the right to limit the assessment on the basis of the character or use. Therefore if you live in a historic home, you may be able to obtain a much lower assessment of your property.

How does the Florida Constitution protect you?

Florida’s Constitution contains significant rights in Article I called “basic rights”.

  1. Basic rights include the right of all people to be considered equal before the law. These basic rights also include the right to enjoy and defend life and liberty, to pursue happiness and to be rewarded for industry and to possess and protect property. Basic rights cannot be deprived because of a person’s race, religion, national origin or physical disability.
  2. Florida has significant religious freedoms. Under Article I, Section 3, of the Florida Constitution, no law may be written respecting the establishment of religion or penalizing a person for their religion or the practice thereof. No money from the state government may be used to assist directly or indirectly any particular church, sect or religious denomination.
  3. Article I, Section 4, states that “every person may speak, write or publish their feelings on any issue.” No laws may be passed in Florida to restrain the liberty of speech or the freedom of the press.
  4. Florida is a right to work state. Under Article I, Section 6, of the Florida Constitution, persons shall not be denied the right on account of membership in any labor organization or non-membership of any labor organization to work. Public employees are not allowed to strike under Article I, Section 6, of the Florida Constitution.
  5. Section 8 of Article I of the Florida Constitution gives all people of Florida the right to keep and bear arms to defend themselves, however, there is a three-day waiting period between the purchase and delivery of handguns in Florida under Section 8, Article I, of the Florida Constitution.
  6. Lastly, the Florida Declaration of Rights contained in Article I, Section 11, of the Florida Constitution prohibits any imprisonment for debt except for cases of fraud in Florida.

What is habeas corpus?

Habeas corpus is a Latin term that literally means “you have the body”. Habeas corpus is an ancient legal writ that is contained in Section 13, Article I, of the Florida Constitution. The primary function of the writ is to release a person from unlawful imprisonment. The right to habeas corpus can only be suspended in times of invasion or rebellion.

Checklist for the New Year 2004.

♦ Update your Will. Call us if you need to change your Will.

♦ Make a list of your property and accounts. Tell your loved ones where your Will and the list of property is kept.

♦ Verify that your Living Will is in order.

♦ Pay your taxes early and fund your 401K plan at work.

♦ If possible, make an appointment for a “legal checkup”.

♦ Lastly, have a safe, happy and prosperous 2004!