One of the purposes of the probate process is to manage debts owed to creditors of the deceased andto see that creditors are paid – to the extent that is legally and financially possible. The legal procedurefor probate provides a process to manage and cut off claims against the deceased that are filed morethan three months after the publication of a Notice To Creditors in the newspaper, or more than thirtydays after service of the Notice on a creditor, if that is later. Most debts of the deceased are barred andunenforceable after two years from the date of death. Recently the Second District Court of Appeals inFlorida issued a ruling that emphasizes the need to properly follow the claim procedure if you are owedmoney by the deceased. Watch the dates as you read the following paragraph.
Edward Caulfield died on December 18, 2006. A probate administration was started and on November16, 2007, a Notice To Creditors was published. The court opinion dos not explain why so much timewent by before publication. Under Florida law the end of the creditor claim filing period was February16, 2008. A creditor, Mr. Lubee, filed a late claim on December 18, 2008, ten (10) months after theclose of the claim filing period. Note, this is the point after which the two year bar on collection of adecedent’s debts also takes effect. Then Mr. Lubee sued the estate on February 5, 2009, no doubtbecause payment had not been forthcoming. Judgment was entered in favor of the estate at the CircuitCourt level and affirmed on appeal. Why? Because Mr. Lubee didn’t file a claim within the three monthsand never asked the probate court for permission to file a late claim within two years of the death ofMr. Caulfield.
What can we learn from this case? First, if a deceased person owes you money, get legal advice about how to enforce that claim. Second, as a creditor, time is your enemy. You can even file a caveatwith the court to get notice when a probate administration is started, before a Notice To Creditors ispublished. If you are filing late, you must first ask for the Court’s permission. Third, if Mr. Caulfield hada revocable trust based estate plan and the trustee saw no need to file a probate and if Mr. Lubee fileda suit within two years of Mr. Caulfield’s death, he might have been able to collect. Trusts do not bnefitfrom the two year cutoff in probate law.

In 2005 Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act(BAPCPA) which greatly overhauled existing bankruptcy laws.  One such provision in the code seemed to be a direct response to some high profile debtors who would relocate to Florida and shortly thereafter become eligible for Florida’s Homestead Exemption.   In short, many of these debtors were basically converting non-exempt assets into exempt assets in order to protect as much property as possible from their creditors.   OJ Simpson is one such example.

In response Congress enacted Section 522(o)(4) in order to to preclude Florida’s “virtually limitless” homestead exemption in instances of fraud.  See In re Osejo, 447 B.R. 352, 354 (Bankr. S.D. Fla. 2011).  Under this section, Florida’s homestead exemption may be denied or reduced to the extent a debtor, acting with the intent to hinder, delay or defraud his creditors, converted non-exempt assets into exempt assets within ten years of filing his bankruptcy petition.

The conversion of non-exempt property into exempt property prior to filing is not necessarily fraudulent.  This is still especially true when it comes to Florida’s Homestead Exemption.   Courts have repeatedly held that a debtor’s homestead claim is presumptively valid.  This means that an objecting party would need to establish by a preponderance of evidence that the debtor acted with intent to hinder, delay, or defraud creditors.   The mere conversion of non-exempt assets into exempt assets is not enough to prove intent without extrinsic evidence of fraud.

See In Re: Cook, 23 Fla. Law Weekly B190 (Bankr.N.D. Fla 2011).

Jonathan Bierfeld is an attorney with Martin Law Firm, P.L., whose practice focuses in Bankruptcy Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida.  He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

The Florida Department of Revenue may intervene in child support cases to ensure that a minor child is receiving the care and support he or she is entitled to by law. Paternity is presumed when a husband and wife have a child within the bonds of marriage. However, if the parents are not married, the Department of Revenue may still collect child support from a father who may or may not be the actual biological father of a child.

A father may contest paternity, but the courts will always look to what is in the best interests of the child “[T]he courts require a determination of the child’s best interests. Some circumstances require specific procedures to be followed in evaluating a child’s best interests. For example, if paternity is contested, the child’s legitimacy is at issue, and the legal father has not had notice or an opportunity to be heard, the trial court is required to appoint a guardian ad litem and hear from the guardian and all the parties before proceeding.”

“A trial court may consider the child’s need for support. If the court determines that there is no compelling interest in overcoming the presumption, it must dismiss the paternity action against the putative father.”

The state has an interest in preserving parental rights, but also in ensuring that children are supported. Because of this, the court will look to the best interest of the children in any case involving minor children and family law.

See Dept. of Revenue on behalf of Garcia v. Iglesias & Garcia, 37 Fla. L. Weekly D160.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

In a typical divorce one of the major issues is “equitable distribution.” In Florida equity generally means a 50/50 split.  Although the courts do not have to evenly divide the property, the court must have legal justification for deviating from this standard. 

In a recent case the Husband had used an investment account worth approximately $50,000 to live on during the divorce case.  By the end of the case the account had no money left in it.  In ordering the equitable distribution the trial court ordered that account credited to the Husband.  However, the court did not make any provision for the fact that the Husband has literally spent the wife’s half of that account. The appellate court reversed the trial court stating:

the trial court’s attempt to offset Dan’s unauthorized expenditure by awarding him the worthless account was insufficient because Dan spent Ava’s half of the TD Ameritrade proceeds.”

Absent specific statutory reasons to deviate from an equitable distribution the trial court must order a near even split of the assets and liabilities.

See, Bryne v. Bryne, 37 Fla. L. Weekly D190 (Fla. 3rd DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

More than likely yes, however the language in the agreement will be very important.  Florida’s Constitution provides for significant protections to homestead property provided certain requirements are met.  This protection extends to the sale of the home to purchase a new home.  However, in the case of a divorce, sometimes the parties agree to sell the marital home and divide the funds. 

Language in this agreement can be very important.  In a 1996 Fourth District Court of Appeal Case the husband agreed:

Judgments, Liens, and Lawsuits Satisfied: The Husband shall satisfy any and all outstanding judgments pending against him from his share of the proceeds received from the sale of the marital property.  Husband shall further be responsible for any and all potential claims, lawsuits, or judgments pending against him individually or in connection with his profession.”

Myers v. Lehrer, 671 So. 2d 864 (Fla. 4^th DCA 1996).  In that case the Court found that the Husband’s share of the proceeds were subject to claim by third party creditors.  However in a recent case out of the Third District Court of Appeal, the Court found different language to provide protection from creditors, specifically, from a previous marriage’s child support claim. In that case the parties agreed:

The parties agree that any lien or encumbrances on the marital home not specifically listed in the parties’ Marital Settlement Agreement or Addendum thereto as liens or encumbrances to be paid shall be the sole responsibility of the Husband and shall be paid from his share of the proceeds.  This shall include, but not be limited to, lien(s) from the Husband’s attorney and any loans taken by the Husband except those listed in the Marital Settlement Agreement and Addendums thereto.”

Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). In Kerzner, the Husband, once the liens were satisfied, intended to reinvest his share of the funds into a new home.  The Court found the lack of the language “any and all outstanding judgments pending against,” from the Myers, case made it distinguishable and Husband’s share was protected from creditors other than creditors of the marital home. 

As previously mentioned, the specific creditor at issue here was his previous Wife claiming past due child support.  This is an important secondary point from this case that even child support claims are unable to collect on Florida Homestead. . 

See, Kerzner v. Kerzner, 36 Fla. L. Weekly D2608 (Fla. 3rd DCA 2011). See also, Myers v. Lehrer, 671 So. 2d 864 (Fla. 4^th DCA 1996). 

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Usually, the court will impute an income to the non-working spouse. This means that in cases where child support, alimony, and equitable distribution of assets and debts are at issue, the court will decide a wage that should be attributed to the non-working spouse. This imputed income amount will serve as the amount the spouse should be making if they were working, and most calculations throughout the case will be made using this imputed income.

As a matter of law, trial courts should consider the non-working spouse’s work history, occupational qualifications, and the prevailing earnings in the community for that class of available jobs when finding an amount of imputed income. Evidence may be presented that the non-working spouse had earned the same amount prior to quitting a previous job, that the non-working spouse is capable of working, and that the non-working spouse has options to do so.

See Middleton v. Middleton, 37 Fla. L. Weekly D105.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

If you are in a financial situation in which bankruptcy might be an option you should be wary if you have a bank account with Wells Fargo.  Wells Fargo has a national policy in place in which they automatically freeze the accounts of any customer who files a Chapter 7 Bankruptcy.  Normally when an individual files for bankruptcy, a bankruptcy estate is created which consists of that person’s non-exempt assets.  A Bankruptcy Trustee is appointed to administer the estate.  In most instances an individual can exempt a good portion of their assets from the bankruptcy estate meaning that they get to keep those assets.  This includes bank accounts.

Wells Fargo’s policy is that they automatically freeze bank accounts and wait for directions from the Trustee on when or if they should release the funds.  Wells Fargo does this even if you do not owe them any money, and even if it is likely that the all the funds in the account will be exempt.  If all or a portion of the funds are exempt then the Trustee will order Wells Fargo to release the money back to you.  However, it usually takes the Trustee about a month or so to determine if the funds are exempt.

Currently, Wells Fargo is the only bank that will freeze your account if you do not owe them money.  They have recently merged with Wachovia so it is possible that Wachovia might also institute the policy.  If you are in a situation in which bankruptcy might be an option, it is recommended that you do not have an account with either of these institutions.  Wells Fargo says that they will only freeze accounts if there is a balance of more than $5,000 in the account, but you are probably better off to not risk it.

A Federal Court in Florida recently upheld Wells Fargo’s Policy in In re Young, 439 B.R. 211 (Bankr. M.D. Fla. 2010).  Other jurisdictions have rejected the practice, but Wells Fargo is now appealing those decisions.  However, Wells Fargo is still continuing the policy of freezing accounts while they appeal.

Jonathan Bierfeld is an attorney with Martin Law Firm, P.L., whose practice focuses in Bankruptcy Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida.  He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Via NEWS-PRESS – LEE COUNTY, Fla.-  Written by Nancy Oben  noben@news-press.com

For Thomas E. Shipp Jr., some of his best days are when clients write him a note saying thank you.

Shipp, an attorney with more than 30 years of experience in wills, trusts and estate planning, said he works with families dealing with difficult situations when a loved one passes.

“They’re relying on their confidence in me,” Shipp said.

Shipp, who has worked in Southwest Florida since 1980, recently joined the Martin Law Firm’s principal office in Cape Coral. He said he’s very happy with the new affiliation.

“It’s very exciting to go from a history of a solo practice and small partnerships to an organization that’s a group practice where a client can get many services under one roof,” Shipp said.

The Martin Law Firm is run by husband and wife team Steven E. Martin and Eviana J. Martin. The firm also has offices in Fort Myers and Naples. Steven Martin said he’s glad to have Shipp’s level of experience added to his firm.

“Tom’s been in practice for 30 years and we haven’t,” Martin said. “It’s exciting for us to get Tom’s depth and breadth of experience.”

Eviana Martin agreed, adding, “It’s important to get someone with experience in wills and trusts.”

Shipp, who has been at the firm for almost two months, said with a laugh that he’s getting all the old man jokes in the office. He said that in some firms, lawyers can be territorial but at the Martin Law Firm it’s more like a family.

“What’s really impressed me here is Steve and Eviana created a tight team, working together and helping each other out. I think it’s very unique,” Shipp said.

Although he jokes around in the office, Shipp is serious about his profession. He said that he focuses on the needs of clients in order to gain their trust because they rely on him to make the proper arrangements. He said you don’t get that reassurance when you prepare the documents yourself on the Internet.

“I want to be here when a person decided I need an attorney for a will or a trust,” Shipp said. “It’s part of the ability (of the client) to sit down and get personal advice from someone you have confidence in. With us, you don’t get a printed set of directions, or a toll-free number to call, you get a person.”

Shipp said some of the hardest hurdles he has to overcome are documents that were not properly prepared and he said these documents often affect the family members who have been left behind.

“It’s not just about the money the people inherit based on those documents,” he said. “It’s about the relationship of the family and how conflict can tear those relationships apart or how this moment could bring people closer together.”

http://www.news-press.com/apps/pbcs.dll/article?AID=2012301010024

In Divorce actions, the Final Judgment is the document identifying the final order of the court in your case. Until the final judgment is entered, the court may may temporary decisions regarding issues that need to be determined during the pendency of your divorce, but the final judgment will address all issues in your case.

If the final judgment does not dispose of all integrally related matters at issue in the case, the final judgment is not necessarily the final order in the case. If the court reserves on any issues, the judgment may not be final. Once there is a final order in the case, either party may still have cause appeal the court’s decision, but the appeals court will not have jurisdiction to appeal a final judgment unless it is in fact the final order in the case, and it addresses all integrally related issues in the case.

See El Gohary v. El Gohary, 36 Fla. L. Weekly D2754.

Patricia Dills is an Attorney with Martin Law Firm, P.L., whose practice
focuses in Divorce, Child Support, Family Law, and Civil Litigation. She
primarily practices in Naples, Collier County, and Fort Myers, Lee County Florida.

One of the most common issues for long duration marriages in Florida is the spouse who has a college degree and can work but who has not worked recently in the marriage.  For example, the parties may agree for one spouse to stay at home while the children are younger but agree that the spouse will return to work as the children grow up. As it becomes time for the spouse to return to work the marriage breaks down and at the time of divorce the stay at home spouse is alleging need of permanent alimony. 

While the case is obviously harder to prove because the status quo was that the spouse was not working, it is possible to decrease a spouse’s need based on their proven ability to contribute to their own support.  In a recent case from the Twentieth Judicial Circuit, which includes Fort Myers, the Wife stayed home with the children and ran a small home business.  However, she had a nursing degree and admitted she could return to work full time.  The Court found that it was reasonable that she return to work and decreased her need based on her ability to earn full time income.  In these circumstances it is required to prove actual ability to earn and not purely a speculative ability to earn. 

See, Zambuto v. Zambuto, 36 Fla. L. Weekly D2758 (Fla. 2nd DCA 2011).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.