Tuesday, January 9, 2018

View from the Family Law Bench on the Recent Tax Reform Bill

VIEW FROM THE BENCH ON THE TAX REFORM BILL APPLIED TO FAMILY LAW – HONORABLE WESLEY D.TIBBALS

As many of you now know, the tax reform bill passed and eliminated the taxability and deductiblity of alimony for any divorce or separation instrument (as defined in section 71(b)(2)of the Internal Revenue Code) executed after December 31,2018. The article segment below was written prior to the passage of the bill, but is informative as to additional impact the bill may have on financial issues in family law.
“Another area of negotiation that could be affected under the TCJA is the party allowed to claim minor children as dependents. The proposed increase in the child tax credit from$1,000 to $1,600 per child would offer a greater tax break to the custodial spouse. The proposed elimination of the Alternative Minimum Tax (AMT) may enable the higher earning spouse to benefit financially by claiming one or more children on his or her tax return. Under current code, the AMT would often eliminate any potential benefit of sharing deductions between spouses, enabling the lower-earning spouse to claim the children and minimize his or her tax burden. Higher earning spouses have a more level playing field under the new legislation and improved rights to deductions. They also have a greater ability to benefit from filing as Head of Household rather than as single.
Tax reform could also affect state child support guidelines.Currently, child support is typically calculated based on the combined monthly net income of the parents. The net income and number of children affected is then compared to the statutory guideline criteria to determine the basic support obligation. Parents are responsible to provide their proportionate share of support based on those guidelines. This net income is calculated by subtracting federal, state, FICA, local and various line item deductions from gross income. The elimination of alimony deductibility and Alternative Minimum Tax adjust these bottom lines, as will the increase in child taxcredit and adjustment to tax brackets.”

--Donna Kline, House GOP Tax Proposal and the Impact on Divorce Negotiations

Thursday, October 30, 2014

Marital & Family Law Decisions throughout Florida - September 2014



New post on Stephens' Squibs - Florida Family Case Law Updates


Stephens’ Squibs – September 2014

by Eddie Stephens



Alimony:


Hammad v. Hammad, 39 Fla. Law Weekly D1964 (Fla 5rh DCA 2014). Trial court’s award of durational alimony remanded for lack of findings.


Valente v. Barion, 39 Fla. Law Weekly D1973 (Fla. 2nd DCA 2014). Award of permanent alimony in 12 year marriage remanded for findings of fact.


Beal v. Beal, 39 Fla. Law Weekly D1905 (Fla. 5thDCA 2014). Award of alimony that requires party to deplete equitable distribution to pay expense remanded for redetermination.


Appeals:


Clark v. Clark, 39 Fla. Law Weekly D2027 (Fla 5thDCA 2014). Trial court erred by granting alimony and fees when relief not requested in pleadings. Fact issue was in pretrial stipulation, and the fact husband did not appear at final hearing to object did not constitute issue was tried by consent.


Konoski v. Shekarhar, 39 Fla. Law Weekly D1824 (Fla 3rd DCA 2014). Appellate counsel admonished for filing appendix with matters outside the record.


Colin v. Colin, 39 Fla. Law Weekly D1837 (Fla. 5thDCA 2014). Party waives any argument regarding lack of findings unless he raises issue to trial court via rehearing. Party waived objection to child support guidelines when attorney “did not have any objections” to guidelines at trial.


Attorney’s Fees:


Eldridge v. Eldridge, 39 Fla. Law Weekly D1843 (Fla. 5th DCA 2014). Trial court erred awarding former wife attorney’s fees. Even though there was a disparity in parties’ assets, wife had a net worth of $3,000,000 and $130,000 in annual income and therefore, had no need.


Equitable Distribution:


Nguyen v. Huynh, 39 Fla. Law Weekly D1982 (Fla. 1st DCA 2014). Award of credits reversed when no findings of fact explaining evidentiary source of amount. Omission renders it impossible to conduct meaningful appellate review.


Eldridge v. Eldridge, 39 Fla. Law Weekly D1843 (Fla. 5th DCA 2014). Trial court erred reclassifying alimony payments to Wife as corporate distributions 6 years after final judgment.


Parenting:


Orizondo v. Orizondo, 39 Fla. Law Weekly D1906 (Fla. 5th DCA 2014). Trial courts order abdicating timesharing to desire of 17 ½ year child constitutes reversible error.


Procedure:


Scheller v. Sollecito, 39 Fla. Law Weekly D1803 (Fla. 4th DCA 2014). Trial court erred vacating judgment sua sponte 9 months after judgment entered. Rule 1.530 allows court to vacate judgment sua sponte within 15 days of judgment, or 10 if correcting subject of judgment.


Same Sex Marriage:


Shaw v. Shaw, 39 Fla. Law Weekly D1813 (Fla. 2ndDCA 2014). Same sex couple legally married in Massachusetts and relocated to Florida. Relationship failed and parties resolved all issues in written agreement. Parties asked court to adopt agreement and dissolve marriage. Trial court dismissed action for lack of jurisdiction “that which does not exist under law.” 2nd DCA certifies that order on appeal requires immediate resolution by Supreme Court.


Shaw v. Shaw, 39 Fla. Law Weekly 5561 (Fla. 2014). Supreme Court sends same sex marriage issue back to 2nd DCA and declines jurisdiction over issue.


Support:


Knudson v. Drobnak, 39 Fla. Law Weekly D1987 (Fla. 4th DCA 2014). Error to include day care not actually incurred in support arrears.


Cameron v. Cameron, 39 Fla. Law Weekly D1838 (Fla. 5th DCA 2014). Court cannot include contribution from employer to health insurance premium to gross income without subtracting cost of insurance from gross. Trial court also erred when it pronounced orally parties would divide cost of day care pro rata to parties’ income, then obligate one party to 100% of expense in judgment.



Eddie Stephens



Monday, September 15, 2014

Most RECENT Florida Family Law Case Updates! (Decisions in August 2014)


Ladies and Gentlemen, Judd Bean Law proudly presents August 2014's Family Law Case Updates aka Stephens' Squibs, put together by top-notch Florida Attorney, Mr. Eddie Stephens (Board Certified in Family & Marital Law).  These cases have been divided by Mr. Stephens into sections, for ease of use, and also include a brief summary to cut your research time, so you can focus on other important things, i.e., Family, Church, Community, Etc.!  Hope these "hot off the press" case summaries can be of massive benefit to you, someone you know, or a client of yours!  
Alimony:
Mills v. Mills, 39 Fla.L.Weekly D1569 (Fla. 2nd DCA 2014).  Error to award alimony when obligor had no ability.  Trial court not required to equalize financial positions especially when it is clear both parties remain in a situation where their income does not cover their expenses.
Attorneys’ Fees:
Chadbourne v. Chadbourne, 39 Fla.L.Weekly D1740 (Fla. 1st DCA 2014).  Error not to award Wife attorneys’ fees when husband left with net worth of $17 million and Wife had net worth of $1 million.  To require Wife to pay $200,000 in fees would require inequitable diminution of equitable distribution.
Domestic Violence:
Droke v. Andino, 39 Fla.L.Weekly D1780 (Fla. 5th DCA 2014).  Error to enter injunction against repeat violence based on one incident of violence.
Selph v. Selph, 39 Fla.L.Weekly D1695 (Fla. 4th DCA 2014).  Evidence of oppressive relation insufficient to support domestic violence injunction.
Parrish v. Parrish, 39 Fla.L.Weekly D1623 (Fla. 2nd DCA 2014).  Error for court to deny domestic violence based on erroneous belief that incident predated agreement to dismiss previous domestic violence injunction.
Branson v. Rodriguez-Linares, 39 Fla.L.Weekly D1568 (Fla. 2nd DCA 2014).  Injunction affirmed when basis was staling.  No evidence of domestic violence or reasonable fear of domestic violence needed.
Enforcement:
Goff v. Goff, 39 Fla.L.Weekly D1762 (Fla. 4th DCA 2014).  Trial court reversed for requiring husband to support child staying at college through 21st birthday when husband agreed to support child through 21st birthday only if she was living at home with her Mother.
Fuller v. Fuller, 39 Fla.L.Weekly D1575 (Fla. 2nd DCA 2014).  Error for trial court to enter order granting contempt when court orally announced it would deny contempt.  Remanded for appropriate findings.
Equitable Distribution:
Ballard v. Ballard, 39 Fla.L.Weekly D1670 (Fla. 1st DCA 2014).  Trial court erred charging a $42,000 account to husband that had significantly diminished by time of trial without finding that husband used funds inappropriately.
Imputation:
Steele v. Love, 39 Fla.L.Weekly D1534 (Fla. 4th DCA 2014).  Trial court affirmed for imputing regular in kind gifts from husband’s parents that reduced his living expenses as income.
Modification:
Anderson v. Durham, 39 Fla.L.Weekly D1747 (Fla. 1st DCA 2014).  Trial court erred in denying former husband’s petition for modification of alimony when former husband had a decrease in income due to good faith retirement and trial court gave no explanation as to denial.
Parenting:
Pierson v. Pierson, 39 Fla.L.Weekly D1741 (Fla. Dr1st DCA 2014).  Error to award Wife ultimate authority over children’s religious upbringing and prohibiting father from doing anything that conflicts with Catholic religion in front of children when there was no evidence children were harmed by Father’s religious beliefs.
Mills v. Mills, 39 Fla.L.Weekly D1569 (Fla. 2nd DCA 2014).  Error to fail to include holiday timesharing schedule in parenting plan.
Procedure:
McGee v. McGee, 39 Fla.L.Weekly D1797 (Fla. 1st DCA 2014).  Error to transfer venue to county where venue would not be appropriate.
Julia v. Julia, 39 Fla.L.Weekly D1792 (Fla. 4th DCA 2014).  Court deprived wife due process in denying her opportunity to present case or provide closing argument.
Relocation:
Rolison v. Rolison, 39 Fla.L.Weekly D1625 (Fla. 1st DCA 2014).  61.13001 does not apply if parent relocate child before petition for dissolution of marriage is filed.
Support:
Christensen v. Christensen, 39 Fla.L.Weekly D1741 (Fla. 1st DCA 2014).  Error not to include alimony paid when calculation support.
Bower v. Hansman, 39 Fla.L.Weekly D1685 (Fla. 3rd DCA 2014).  Error to include child support received for child from another relation as income when calculating support. 
Ballard v. Ballard, 39 Fla.L.Weekly D1670 (Fla. 1st DCA 2014).  Trial court erred by filing to impute income to determine support to father who voluntarily retired early and was capable of work.
Johnson v. Mccullough, 39 Fla.L.Weekly D1639 (Fla. 4th DCA 2014).  Trial court reversed for adopting a child support worksheet submitted after hearing as this is not evidence.

NOTES & THANKS:  
Thanks again to Eddie Stephens, Esq., a truly dynamic attorney & selfless person, who can be found on his work-page at Ward <> Damon - Attorneys at Law and his personal page at www.facebook.com/livingextraordinarylife, which is dedicated to living an extraordinary life!  His Twitter handle is @stephenssquibs.

Thursday, September 11, 2014

Will Florida have legal same-sex marriage within a year?

A Florida attorney is predicting that Florida will see marriage equality within a year, and he points to a Tampa lawsuit as the case that may represent the tipping point.

Eddie Stephens, a partner with Ward Damon law firm based out of West Palm Beach, said there are two factors indicating that Shaw vs. Shaw, the lawsuit by a same-sex couple legally married in Massachusetts who now live in Florida and want a divorce, will result in significant progress for marriage equality in Florida.

First, the case was filed earlier and is four to five months ahead of other, similar Florida cases.

Second, the circumstances of Shaw vs. Shaw deny the plaintiffs access to a court.

“There’s a constitutional argument there that if you’re denied the right to a court, that has to be addressed,” Stephens said. “So likely it will be addressed in Hillsborough before the Supreme Court deals with these other counties.”

Stephens is referring to circuit judges in Palm Beach, Broward, Miami-Dade and Monroe counties who have declared the Florida ban on same-sex marriages unconstitutional over the past few weeks. The Hillsborough case “is a weird situation,” he said, because the couple can’t get divorced in Massachusetts because of residency requirements, and they can’t get divorced in Florida because Florida law will not allow recognition of their same-sex union. This creates the urgent access to court situation, which Stephens said the “other cases don’t really possess that element.”

As far as his prediction that same-sex marriage will be legal in Florida in a year, Stephens is basing that on the process and length of time for adoption by gay people to become legal in Florida.

“When we dealt with same-sex couples adopting it was a challenge from Miami, and it was just an opinion from the Third District Court of Appeals. No one challenged it any further so that became the law of the land,” Stephens said. “Now it looks like there is so much momentum with other circuit judges striking down the statute, it seems like [a similar decision] will be a given in Tampa.”

After the adoption decision, he said it took about a year to finalize things, and that’s why he thinks Florida is about a year away from same-sex marriage.

Currently, Shaw v. Shaw is still in process. According to Brett Rahall, who represents one of the women seeking a divorce, the judge dismissed the case May 9, and they filed an appeal May 10. Now, they’re working on a brief he expects will be filed later this month.

“[The brief] tells the appellate court why we’re complaining about the order [to dismiss] from the trial judge,” Rahall said. “It says the judge made a mistake refusing to grant the divorce because the statute and constitutional amendment relied upon to make that decision are unconstitutional.”

In the meantime, the Family Law Section of the Florida Bar, the Florida Chapter of American Academy of Matrimonial Lawyers and the City of Miami are all requesting permission to file friend of the court briefs in the case, arguing the women’s marriage (and divorce) should be recognized in Florida.

BY : JAMIE HYMAN
WatermarkOnline.com

Tuesday, September 9, 2014

Divorce Can Be Expensive, But Try Getting Unmarried (WSJ's "How To" Divorce)

Now that the vacation suitcases are put away and the children are back in school, it may be time to start planning for something that you may have been putting off—a divorce.
Divorce is a huge step and not one to be taken lightly due in part to its enormous emotional and financial ramifications. But as the economy continues to improve, more couples who have postponed their divorces are likely to pursue them.
National U.S. divorce statics are pretty lousy. There is no reliable central database and some states, most notably California, don't even count the number of divorces annually.
That said, the reported number of divorces runs at about 40% of marriages. In 2011, for instance, there were 877,000 divorces and 2.1 million marriages, according to the National Center for Health Statistics.
Whether it's the seven-year itch or you're just plain unhappy and you feel it's time to make a change, there a few things you need to consider before you file.
1. Know What You Own and Make Copies.
Gather as much information as possible, as early as possible, regarding your family's finances, says Solon Vlasto, a financial planner in McLean, Va. "As a divorce progresses, documentation becomes more difficult to locate," he says.
Begin by making a list of assets, debts and sources of income. Try to obtain at least three years of tax returns. Gather employee and retirement-benefit information and insurance documents. Make copies of everything.
Start tracking expenses, if you haven't already. The more information you collect, the better. There will be a point in the divorce where you'll have to review your cost of living, Mr. Vlasto says.
Create a record of all valuables such as jewelry, art and collectibles, says Nicole Feuer, a divorce mediator in Westport, Conn. "Take photos, as sometimes these items can 'disappear' in a divorce," she says.
James Gambaccini, a financial planner in Fairfax, Va., says you should sign up for electronic statements for all of your individual accounts so that your spouse can no longer see these by opening the mail. Also, be sure to change your individual account passwords so that your spouse isn't tempted to log in to your accounts, he says.
Don't hide money, though, says Lili Vasileff, a collaborative-divorce practitioner in Greenwich, Conn. "It gives rise to dishonesty and fraud and it will be discovered in divorce," she says.
If you have reasonable grounds for concern, seek legal advice for how to preserve your financial assets before filing for divorce, she says.
Scott Pollack
2. Save and Budget.
One of the most overlooked aspects of divorce is budgeting for it, says Ms. Vasileff.
"Decide how much you will budget and which accounts will be used to pay for your divorce expenses," she says. Try to avoid tapping into the "wrong" accounts to pay for it. Taking money out of an individual retirement account, for example, may cost a penalty and taxes, she says.
You'll need liquid funds for legal costs and possibly for a separate living arrangement, and money for daily expenses. You should have at least three months' expenses plus several thousand more saved for your attorney's retainer, she says.
"Keep this cash in separately titled checking accounts, money-market savings and short-term CDs rather than any long-term investments," she says.
You'll also need to create a budget to support your likely scaled-down lifestyle. Most people grossly underestimate how much they spend, says Molly Goetz, a financial adviser in Towson, Md.
After the divorce, you may end up with half of your previous assets but be spending the same amount as before, she says. "Start thinking about the life you want to lead post-divorce and determine what steps you might need to take to achieve that," Ms. Goetz says.
3. Watch and Establish Credit.
Get an individual credit card if you don't have one already, and consider freezing joint credit cards.
Obtain a credit report for yourself, says Anthony Ogorek, a financial planner in Williamsville, N.Y. A credit report will detail balances outstanding as well as open and closed lines of credit.
"This can be critical in the event a spouse tries to retaliate by running up credit balances," he says.
It can also determine if your spouse has opened accounts you are unaware of, says Bonnie Sewell, a financial planner in Leesburg, Va. You can obtain a copy of your report free at AnnualCreditReport.com.
4. Watch the Timing.
Mr. Gambaccini suggests looking to file your divorce in a year when you're earning less money—for example, when you get no bonus or there is a big decline in the value of your investments. While a court will typically look at income over many years, having a recent decrease in earnings may lower future payments, such as alimony, he says.
During the Great Recession, several of Mr. Gambaccini's clients suffered income declines. "They saw this as a way to get out of a bad marriage at a discount," he says.
5. Consider Selling the Family Home.
It can be a mistake to try to keep the marital home, says Mr. Vlasto. While there's often a strong desire to keep it, especially when children are involved, a home is an expensive asset to maintain, he says.
Maintenance, taxes, homeowners-association fees and insurance all add up quickly.
"All expenses need to be considered," he says.
Consider whether you'll realistically be able to afford the home post-divorce, especially if your ex-spouse died, became disabled, lost a job or couldn't make alimony payments.
6. Look into Alternatives.
Explore various options for divorce resolution, Mr. Vlasto says. "Litigation isn't the only option," he says. "It's expensive and you have the least amount of control."
Consider other methods of getting help during your divorce, such as mediation, arbitration and collaborative divorce, depending on your situation.
Write to Veronica Dagher, Wall Street Journal, at veronica.dagher@wsj.com

Tuesday, August 12, 2014

Despite Severe Backlash, Tampa Church Stands by its Decision to Cancel Gay Man’s Funeral



Article Originally Posted by WatermarkOnline.com

Tampa – The pastor of a Tampa church that canceled a funeral 24 hours before it was to take place because parishioners learned the deceased was gay has shown no regrets for his decision.


A day before she was to host guests at her son’s funeral, Julion Evans’ mother, Julie Atwood, was told she could not have the funeral services at New Hope Missionary Baptist Church because it would be “blasphemous.”

New Hope Missionary Baptist
Church in Tampa
Pastor T.W. Jenkins for New Hope said he did not know Evans, 42, was gay until he saw his obituary which listed his surviving husband. After members of the congregation saw and called to complain, Jenkins said he did not think it was acceptable to hold the funeral services at New Hope.

“Based on our preaching of the Scripture, we would have been in error to allow the service in our church,” Jenkins said in an interview, according to WFLA-TV. “I’m not trying to condemn anyone’s lifestyle, but at the same time I am a man of God, and I have to stand up for my principles.”
Kendall Capers, Evans’ husband and partner of 17 years, said their relationship was not a secret. The two were legally married a year ago in Maryland.

“This is 2014, this is not the 60s or the 70s,” Capers told the NBC affiliate. “So at the end of the day I just want his wrong-doing to be exposed.”

Evans, 42, died July 26 after a four-year battle with amyloidosis, an illness that claimed the lives of his father and brother. The disease is incurable and attacks the body’s organs.

The late, Julion Evans, and his surviving
husband, Kendall Capers
The funeral services were scheduled Aug. 2. Due to the last-minute cancellation, Atwood and Capers tried to change the funeral location and to notify everyone who would attend of the new venue. Still, some mourners showed up at New Hope still and missed the funeral.


Capers said he wanted the funeral services at a church and would have understood the church’s position if they had just refused to hold the funeral when first approached and not cancel it the day before. Capers called it a “disrespectful” and “wrong” decision.

Jenkins, according to an article by the New Civil Rights Movement website, has no regrets.

“Our trials come to make us strong,” Jenkins told his flock during Aug. 10 services, according to WTSP-TV. “My family is doing fine,” Jenkins can be heard telling his parishioners. And he asked his “church family” to “please remain focused and prayerful … and we will continue to stand on the word of God.”

The church members applauded.

Jenkins has been the subject of countless news reports. The church’s Facebook page received well over 1,000 negative reviews and comments until it was taken down and contact information was removed from its website.  

Should a gay man or woman be denied a funeral at their own church?


Tuesday, August 5, 2014

The Best Way to Divorce?

“One of our strongest weapons is dialogue.”
- Nelson Mandela
Article authored by Attorney Stann Givens, Partner, Givens Givens Sparks.
Criminal trials involve bad people at their best and divorce trials involve good people at their worst," many judges have told me. I learned exactly that more than 40 years ago when I found myself going from prosecutor to divorce lawyer.
Today, after decades of handling the "knock down, drag out" divorce cases where I actually did have a client murdered by her state trooper husband during the process, I heard about lawyers in other states handling divorces by the use of collaborative law.
"Collaborative law" is where the clients and lawyers agree from the beginning that the only goal is a fair resolution of all of the issues and agree that there will be no trial. The idea is that, if you can reach the agreement by this method, you will have saved lots of time, energy and money in the process. What seals the deal in the beginning is the agreement that if a deal cannot be reached, then both lawyers have to get off the case.
This allows each spouse to have confidence that the other spouse's lawyer will really try to help reach a fair deal. There is no incentive for the lawyer to churn up litigation.
The concept has been amazingly successful. I have only been involved in one collaborative method divorce that was not successful and fifteen or so where the former couple has reached an amicable division of parenting responsibilities, assets and monthly support.
At first, I was impressed at how successfully both sides used the services of a jointly-hired forensic accountant to create a list of all of the assets and debts, value privately owned business assets and analyze the couple's standard of living for alimony purposes. In previously contested cases, there had been occasions to use a neutral accountant for these purposes, but it has been even more successful with each party realizing that there is not going to be a contested trial.
There has been an even more dramatic change to the collaborative divorce process when the lawyers in my community began using mental health professionals as facilitators for the couples involved. These psychologists and mental health counselors have brought much more trust in the process. They direct each of the meetings, call timeouts when things begin to get "uncollaborative" and meet individually with each spouse periodically to make sure that both are still trusting of the process and prepared to work within it to reach their goals.
I have seen scenarios that in the past would have taken twice as long, been absolutely hostile the whole way and cost each party loads of money, turn into situations where time, money and energy have been saved. Not to mention the great intangible that the couple is much more likely to avoid harsh words with each other in front of the children both during the process and for the rest of their lives.
Bottom line: If you are a friend of mine heading for divorce, I am going to suggest that you explore trying to do it the collaborative way.
To learn more about collaborative divorce, contact Stann at www.familylawfirmflorida.com
-----
From Judd's POV 
  • In my experience, most attorneys seek to negotiate “collaboratively” with their counterparts, while maintaining their ethical obligation to represent and protect their client’s interests. However, the utilization of a formal collaborative approach to the resolution of marital disputes may encourage divorcing couples to be more open minded to creative solutions to financial, property, custody and other issues, which may then be incorporated in a settlement agreement.  Thus, I am a very big fan of the recent upswing in collaboratively handling divorce matters.

How do I reach Judd Bean Law?

  • At Judd Bean Law, we work hard to help with our amazing clients' marital rights in our Tampa-area office locations. Our goal is to assist you in obtaining the proper amount of guidance and instilling confidence by proactively forming a game-plan for you. As a potential client to Judd Bean Law, please know that everything will be explained in a straightforward manner before taking your case to the next level. We pride ourselves on putting an incredible value on knowledge, and spreading it to our clients... the very BEST in the world!
  • If you have a potential Dissolution of Marriage, Paternity, Post-Judgment or other Family Law question(s), please contact our managing attorney, Judd R. Bean, II, directly at (813) 803-2525, or to his email at judd@juddbeanlaw.com. Thanks and enjoy the rest of the week!


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spouse,  and your children make an important and often difficult
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