The Florida legislature passed Senate Bill 718 which aimed to drastically overhaul Florida family laws.  In summary the bill made two major changes.  First, it completely changed the alimony laws in Florida.  It eliminated what is known as “permanent periodic alimony.”  Permanent periodic alimony is rarely ordered under current law, as the Court must find that no other alimony is appropriate prior to ordering permanent periodic alimony.  In the cases where permanent periodic alimony is ordered the marriage is almost always one of “long duration,” or over seventeen years.  There must also be a need by one spouse and the ability to pay by the other spouse. The bill made other changes to alimony in cases of short and moderate duration marriages.  Primarily establishing alimony guidelines, similar to the Florida child support guidelines. This bill would have applied retroactively, meaning, final judgments and even agreements previously reached would be affected.

The other major proposed change was to child time-sharing.  The legislation would have created a presumption for equal time sharing.   Under current law most family attorneys and judges strive for an equal time-sharing plan.  However, there are certain factors the Court must consider before ordering timesharing.  The overriding concern for the family court judge in any child case is the best interest of the child.  The proposed legislation essentially mandated that equal time-sharing was in the best interest of the child absent a showing otherwise.

Below is the letter that Governor Scott wrote explaining his reasons for the veto.

Currently Florida’s alimony laws are governed primarily by Florida Statute § 61.08 and the relevant caselaw surrounding alimony.  Florida Statutes were heavily revised in 2009 codifying much of the preceding caselaw.  In Florida there are four types of alimony, bridge-the-gap, rehabilitative, durational, or permanent.  The type and duration of alimony is based on the length of the marriage, need of the recipient spouse, and ability to pay of the payor spouse.

Marriages lasting less than seven years are considered short term marriages.  Permanent alimony is rare for marriages of this length.  However, bridge-the-gap, rehabilitative, or durational alimony may be appropriate if there exists need and ability to pay.  Marriages of seven to seventeen years are considered moderate duration marriages.  For moderate duration marriages alimony is more likely to be awarded; however, it is still unlikely that the court will award permanent alimony absent clear and convincing evidence of need and ability to pay.  Marriages exceeding a length of seventeen years are the most likely to have permanent alimony awarded when there exists need and ability to pay.

When determining whether alimony is appropriate the Court is guided to look at several statutory factors, including:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.”

Fla. Stat. §61.08(2)(a-j).

The Florida House of Representatives is currently considering House Bill 231 which would dramatically change Florida’s alimony laws.  Among the major changes the bill would eliminate permanent alimony.  It would also eliminate much of the discretion our trial judges currently possess in determining need and ability to pay.  The new language would provide stringent guidelines for the percentage of the payor’s income which may be awarded for alimony and for the duration a party may receive the alimony.

For more information about the current alimony laws please visit: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.08.html

For more information about the current proposed alimony revisions: http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_h0231__.docx&DocumentType=Bill&BillNumber=0231&Session=2013

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.

CAPE CORAL, Fla. (September 25, 2012) Liridona Sinani has joined the attorneys at Martin Law Firm announced firm principal, Steven E. Martin.

Liridona Sinani’s practice focuses primarily on family law, probate litigation and general civil litigation.

Liridona earned her Bachelor of Arts degree, with Cum Laude honors, in Political Science and International Affairs and a minor in Political Philosophy from Florida State University, where she received a full scholarship to complete her studies. It was her interest in these fields that led her to pursue an Internship at the Executive Office of the Governor in Tallahassee, FL and to later travel to Hague, Netherlands and Strasbourg, France to examine the inner workings of major international courts and tribunals, such as the International Court of Justice and the International Criminal Court.

She earned her Juris Doctor degree, with Cum Laude honors, from the University of Florida Levin College of Law, where she also received partial scholarships to complete her studies. Liridona successfully earned certificates in Criminal Justice and International and Comparative Law upon her graduation from law school. While in law school, Liridona served as a Research Assistant for her International Trade Law Professor and served on the executive board of the Florida Journal of International Law, where she evaluated articles submitted for publication in this premier international law journal.

Liridona spent her first summer of law school working for the Innocence Project of Florida in Tallahassee, where she contributed to the Project’s mission to exonerate wrongfully convicted individuals. She also served as a Certified Legal Intern at the Office of the Public Defender for the Fourth Judicial Circuit, helping represent indigent clients defend misdemeanor charges.

Liridona is fluent in Albanian. She is committed to serving those in her community, volunteering her time to community organizations, including: Restoration of Civil Rights, Habitat for Humanity, Children Beyond our Borders, Three Rivers Legal Services, local homeless shelters, and local middle and high schools. She received the Pro Bono Certificate of Excellence from the University of Florida Levin College of Law. Liridona grew up in Southwest Florida having attended Dunbar High School.

Liridona is admitted to practice in the State of Florida.

Martin Law Firm is a group of attorneys founded by Steven and Eviana Martin, a husband and wife team focusing on estate planning, civil litigation, corporate and business planning, family law, personal injury and real property law.  Their offices are located in Cape Coral, Fort Myers and Naples. Members of the firm are admitted to practice in the state of Florida and in the Federal Court for the Middle District of Florida. For more information, call (239) 443-1094 or visit www.martinlawfirm.com.

In Florida, for an adoption to be valid, the parental rights of the biological parents must first be terminated. For those rights to be terminated, voluntary or involuntary termination of rights must occur. When rights are involuntarily terminated, it is usually through a dependency case or child abuse. Parental rights may be terminated after a full evidentiary hearing and a determination by clear and convincing evidence that each person required to give consent, among other things, has been properly served notice of the proceedings and has been determined to have abandoned the child, or failed to either file a written answer or appear at the hearing.

But, what happens when one spouse tries to give the child up for adoption without the consent of the other spouse? What procedure must the trial court follow in a petition for termination of parental rights? This similar fact pattern appeared in a recent opinion by the 5^th District Court of Appeals where the mother tried to give the child to an Adoption Agency without telling the father or getting the father’s consent, and lying to the Adoption Agency about it. The adoptive parents filed a petition to adopt the child, alleging that the father had abandoned the child. At the hearing, the trial court found that the father had not abandoned the child and no other evidence existed to terminate his parental rights. However, the trial court proceeded to adjudicate the child dependent and ordered the father to pay child support, have visitation with the child, and enter into a case plan. The appellate court affirmed the trial court’s decision denying adoptive parents’ petition to terminate father’s parental rights but reversed the trial court’s order adjudicating the child dependent and ordering the father to pay child support, have visitation with the child, and creating a case plan, finding that the trial court should have dismissed the petition to terminate parental rights entirely.

According to Florida Statute 63.089(5),

[i]f the court does not find by clear and convincing evidence that parental rights of a parent should be terminated pending adoption, the court must dismiss the petition [and] [f]urther proceedings … must be brought in a separate … dependency action.

The appellate court noted that after the trial court found that there was insufficient evidence to support termination of father’s parental rights, the court had no choice but to dismiss the petition. According to the appellate court,

[t]he statute is clear that any dependency proceedings would have to be filed separately in a dependency action pursuant to chapter 39.

See V.M. v. Home at Last Adoption Agency, 37 Fla. L. Weekly D1733 (Fla. 5^th DCA 2012).

Eviana Martin, an attorney at the Martin Law Firm, P.L. has recently attended the 20th Annual Bankruptcy Law Convention organized by the National Association of Consumer Bankruptcy Attorneys in San Antonio, Texas.

One of the topics discussed at the conference was “The Big Freeze” referring to Wells Fargo a/k/a/ Wachovia Bank putting a hold on the individual’s bank account if that individual files for bankruptcy protection. The bank is fast at putting a hold on the bank account even if the individual filing for bankruptcy protection does NOT owe any money to the bank and even if the funds are claimed as exempt in bankruptcy. It does not matter if you are filing Chapter 7 or Chapter 13 bankruptcy, just the fact of having any funds in the Wells Fargo bank account is enough for the bank to “freeze” the account.  The bank “preserves” the money in the account for the bankruptcy trustee. An individual can prevent this from happening by withdrawing the funds from the bank account before filing the bankruptcy case. Eventually the funds will be released back to the debtor and the hold will be lifted, but this process might take several weeks and if the money in the account were intended to be used to pay the utilities bill or mortgage, by losing access to these funds an individual’s payments might be jeopardized.

Another hot topic discussed at the conference was the recent state and federal foreclosure settlement with five of the U.S. largest mortgage servicers including Bank of America, Citi, JPMorgan Chase, Ally/GMAC, and Wells Fargo banks. The settlement applies to the homeowners in the State of Florida whose loans were serviced by the above mentioned loan providers and who were harmed by the bank’s unfair mortgage servicing practices and foreclosure abuses. The logistics of the settlement awards and the application procedures and requirements are still in the workouts.  The settlement is intended to provide mortgage relief and direct payments to the Florida borrowers. The settlement consists of two segments- one is the federal settlement in the amount of approximately $25 billion dollars and second is a portion of the settlement in the amount of estimated $8.4 billion dollars available to Florida residents who meet the application criteria and have mortgages with one of the five servicers listed above.

Homeowners who are current on their mortgages but who owe more than the property is worth, will also be evaluated for possible eligibility for mortgage modifications and principal reductions to the first and second mortgages. Qualifying homeowners who lost their homes in foreclosure lawsuits from January 1, 2008 to December 31, 2011 might also be eligible to receive cash payments. The settlement will also address the future loan servicing practices and will require the loan servicers to comply with a stricter mortgage servicing standards. The settlement does not release the banks from the criminal liability or individual claims from the borrowers or class action lawsuits.

The settlement Monitoring Committee, consisting of  numerous State Attorney Generals, is currently looking to select a settlement administration companies that will be in charge of receiving and reviewing the claims for the settlement benefits. The Committee will also overview the bank’s compliance with the settlement provisions and deadlines, imposing penalties and fines for non-compliance. The Committee estimates that the review of the claims will start as early as June 2012 and will continue for the next six to nine months.

Since the duration of this agreement is limited to three years, homeowners are encouraged to contact their lenders directly to inquire about the application process and the qualifications for the mortgage modification programs or monetary awards. Listed below is contact information that will help you to further inquire into the workouts of the settlement agreement:

For the further information regarding the financial restitution for the borrowers who lost their home in foreclosure between January 1, 2008 and December 31, 2011, contact the Attorney General’s Office at www.myfloridalegal.com.

For the loan modifications and refinancing options for borrowers who are current but underwater on their homes, contact the banks directly:

Ally/GMAC: 800-766-4622

Bank of America: 877-488-7814

Citi: 866-272-4749

JPMorgan Chase: 866-372-6901

Wells Fargo:800-288-3212

However, if your loan is owned by Fannie Mae or Freddie Mac, you are not affected by this settlement. If you are not sure whether your loan is owned by one of these servicers, check their websites:

Fannie Mae at http://www.fanniemae.com/loanlookup

Freddie Mac at http://freddiemac/mymortgage

More information could be found on www.nationalmortgagesettlement.com or www.myfloridalegal.com.

Eviana Martin is an attorney with the Martin Law Firm, P.L. Her practice focuses on Bankruptcy and Consumer Law. She is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. She represents clients from Lee, Charlotte and Collier Counties at the firm’s offices in Fort Myers, Cape Cora, North Fort Myers, and Naples, Florida.

MARTIN LAW FIRM ATTORNEYS RECEIVE LEGAL ELITE RECOGNITION

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.

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

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

Via WINK NEWS – LEE COUNTY, Fla.- The saga surrounding Mindy McCready’s custody battle over her son, Zander McCready, continues.

Mindy McCready’s mother and stepfather, Gayle and Michael Inge, have released the following statement:

“Currently, our grandson is in foster care with strangers with the State of Arkansas. We would like to express our gratitude to the Florida Department of Children and Families for its effort in this case and also to the Arkansas foster family for their help in taking care of our grandson. We would like to plea for his return to Florida before Christmas.

The accusations made by Mindy McCready against us are false and hurtful. These accusations are the same accusations made by Mindy for the past four years and have been thoroughly investigated by the Florida Department of Children and Families and the presiding judge in our grandson’s case. We cannot get into specifics due to confidentiality in any child dependency matter.

The Arkansas Department of Human Services seems to be claiming jurisdiction over this case in violation of the UCCJEA (Unifom Child Custody Jurisdiction and Enforcement Act). Their position is in stark opposition to the basic principals outlined in the UCCJEA. We disagree with Arkansas DHS’s position as Florida has home state jurisdiction under the UCCJEA and a Florida Court has been involved in this case since 2007. In fact, there was a hearing in the Florida Court that concluded in early November for which a decision was pending at the time Mindy fled to Arkansas with the child. We are our grandson’s legal guardians.

The court in Arkansas has not yet ruled on the claims of the Arkansas DHS and has not yet ruled on the threshold issue of whether it even has jurisdiction under the UCCJEA to hear the case. It is our opinion that the State of Florida has ‘home state’ jurisdiction over this case, not the State of Arkansas. More practically speaking, having a case such as this handled in a state over a thousand miles away from our grandson’s family, doctors, teachers and classmates is an absurd and unjust result and clearly not in the best interest of our grandson. Our grandson is in the custody of strangers for the Holidays. This is the first time in his life he has been with strangers. It is hard for us as a family to see how in any way this is the best interest of our grandson. He is only a 5-year-old boy. He has been stolen by his mother, recovered from authorities hiding in a closet, then put in the care of strangers. How could this possibly be in the best interest of our grandson?

In custody and dependency matters justice delayed is often a failure of justice. Please join us in our prayers that the Arkansas court can reach its decision on the UCCJEA issue sooner rather than later so our grandson can return home to us, his family and friends in Lee County for the holidays.”

http://www.winknews.com/Local-Florida/2011-12-21/Inges-release-statement-regarding-McCready-custody-battle