The Brandon Bar Association

Calculating child support in Florida

laurie — Mon, 30 May 2011 12:43:48 +0000

On August 13, 2011, in Child Support, by Brent Rose

Calculating child support in Florida is pretty easy, especially with some of the online tools available. Here’s a step-by-step guide to help you calculate your own support: 1. Calculate your net incomes The first step in figuring out Florida child support is to calculate the net incomes of both parents. This is easy if you’ve [...]

Calculating child support in Florida is pretty easy, especially with some of the online tools available. Here’s a step-by-step guide to help you calculate your own support:

1. Calculate your net incomes

The first step in figuring out Florida child support is to calculate the net incomes of both parents. This is easy if you’ve both completed financial affidavits: net income will be on page two. (Page three on the long form, not including the instruction page. The long form is for people who make over $50,000 annually.) If you haven’t completed the affidavits yet, you’ll have to figure net income out yourself. But that’s pretty easy. The best way is to look on a pay stub. Net income is your after-tax income. Since you’re probably not paid on a monthly basis, you’ll have to do a little math. Everything on the child support guidelines in Florida is done on a monthly basis. If you’re paid weekly, look at your weekly net (after tax) income and multiply it by 4.33. If you’re paid twice a month, look at your after-tax income on your pay stub and multiply the amount by 2.15. Don’t forget to include bonuses and average overtime in your net income. It all counts under Florida law! If you are self-employed or you don’t have a pay stub, you can use last year’s total net income from your tax return and divide it by 12.

2. Determine childcare and health insurance amounts, if any

The second thing to know is how much childcare and health insurance costs are. It doesn’t matter who pays it. We’ll get to that later. Just know that these two amounts–if they exist in your case–get calculated into child support. Remember also that you’ll have to know these as monthly amounts. So if, for instance, daycare or aftercare gets paid weekly, you’ll have to multiply the amount by 4.33 to figure out what the monthly childcare cost is. Some things count as childcare and some things don’t. The law says a childcare is a childcare payment if it is the equivalent of a daycare. After school karate class where the kids are taken when school ends counts as childcare under the law. It would be the “equivalent of a daycare.” Babysitting by grandma while you go to the movies doesn’t count. That’s not daycare, even if grandma gets paid.

3. Determine your amount of timeshare (visitation)

If one of the parents has more than 20% of the overnights (about 73 overnights in a calendar year), then the guidelines change substantially, and the amount of money paid by the minority timeshare (noncustodial) parent to the majority timeshare (custodial) parent decreases significantly. If the minority timeshare parent has the child or children more than 20% of the overnights in the calendar year, determine what the percentage will be by counting the number of overnights and doing the math. For instance, as said before, 73 nights is a 20% timeshare. In a standard “week on/week off” schedule, each parent would have the kids for 50% of the timeshare. You must determine the exact percentage of overnights if the percentage will be 20% or over.

4. Calculate the amount of support

Once you know all the numbers from the steps above, you are ready to calculate the guidelines child support. Actually, this is the easy part:

Download the free form 12.902(e) from www.flcourts.org. Plug in all the numbers we’ve calculated in steps 1-3 and insert them into the proper boxes in the form. Follow the instructions and use the included grid to find the child support amount. If step three above didn’t apply to you, then skip lines 10 through 21 on the form. That’s all there is to it!

The Ins and Outs of Income Testing for Chapter 7 Bankruptcy

laurie — Sat, 28 May 2011 12:56:58 +0000

If you are looking to file for Chapter 7 bankruptcy, one of the things you need to pass is the median income test. The median income test – and its companion, the means test – is a formula that is used to determine whether or not the person seeking to file has enough money to make payments to creditors.

If so, they must file for Chapter 13 bankruptcy instead of Chapter 7. These tests were added in 2005 when the bankruptcy code was amended to stem the tide of Chapter 7 bankruptcies.

Testing Details

If you want to file for Chapter 7, or liquidation bankruptcy, it is necessary to measure your monthly income figure against the median income for your household size in your state. As long as your income is not greater than the median income, you typically are eligible for filing Chapter 7 bankruptcy.

In Florida, the current median income is (as of October 2010):

-$41,079 for a one-person household

-$52,073 for a two-person household

-$58,366 for a three-person household

-$68,763 for a four-person household

If your income is greater than the median income, you have to be able to pass the means test to continue with Chapter 7.

The means test looks at how much of your income is disposable. To determine this, required debt payments and certain expenses are subtracted to find out whether you would be able to complete a Chapter 13 bankruptcy, which is a restructuring of debt. If your disposable income each month falls below a certain threshold, you will be able to file for Chapter 7 even if your income is higher than the median income level for your state. If not, you will have to file for Chapter 13 bankruptcy.

The means test can be complex. There are many factors that can affect the outcome of a means test, such as family size and living expenses and write-offs such as charitable contributions and insurance policies.

For more information about the means test, and how it impacts your particular situation, contact an experienced bankruptcy attorney.

O. Reginald (“Reggie”) Osenton is the Owner and President of Osenton Law Offices, P.A. If you need a Brandon bankruptcy lawyer, Tampa bankruptcy lawyer, or Tampa bankruptcy attorney, call 813.654.5777 or visit Brandonlawoffice.com.

Posted under News and Press.
Tags: brandon bankruptcy attorney, brandon bankruptcy attorneys, brandon bankruptcy lawyer, brandon bankruptcy lawyers, tampa bankruptcy attorney, tampa bankruptcy attorneys, tampa bankruptcy lawyer, tampa bankruptcy lawyers

The Evaluation of Obesity under the Social Security Act

laurie — Wed, 25 May 2011 12:23:32 +0000

The following article provides general information on the guidelines used when the Social Security Administration evaluates obesity since October 25, 1999. Usually, the obesity issue is interconnected with ailments or “Listed Impairments” under the Social Security Act, to include but not limited to the following: diabetes, musculoskeletal impairments and pulmonary or breathing dysfunctions where spirometry testing is necessary.

The Social Security Administration removed obesity from the Listing of Impairments effective October 25, 1999. 64 Fed. Reg. 46,122 (1999). Currently, Social Security Ruling (SSR) 02-1p, outlines the evaluation of disability in regards to obesity. SSR 02-1p acknowledges that obesity can play a role in equaling a “Listing” or “Listed Impairment” under the Social Security Act. Adjudicators and judges should consider the cumulative effects not only when considering whether a claimant’s impairments meet or medically equal the Listings but also when assessing residual functional capacity. See, 20 C.F.R. Pt. 404 Subpt. P, App. 1 foll § 404.1599. (West 2002) of the Listing of Impairments. Obesity at any level in the disability application process, because it is a medically determinable impairment, must be considered in assessing a residual functional capacity (RFC) of the claimant. See, SSR 02-1p, 20 C.F.R. §404.1523.

Obesity is generally evaluated using the body mass index (BMI). For example, under the BMI chart the criteria for “obese” could be a person who is 64 inches tall and weighed at least 181 pounds. A person who is 64 inches tall and 230 pounds could meet the BMI criteria for “extreme obesity”. Often the claimant may be questioned via the adjudicator or judge about following the treating physician’s weight loss prescription. Usually, the questioning centers on the failure of the weight loss regime.

Acceptable Reason for Failure to Follow Prescribed Treatment

Under 20 C.F.R. Pt. 404 §1530 the claimant must follow prescribed treatment by the treating physician if such treatment can restore the ability to work. There are several exceptions to the general guideline. For example, under Social Security Ruling (SSR) 82-59 a claimant’s limited resources may only avail her or him the opportunity to afford periodic palliative care and thus conclude in a failure of the weight loss regime. See also,Gamble v. Chater, 68 F.3d 319, 321 (9 th Cir. 1995); Dawkins v. Bowen, 848 F.2d 1211, 1213 (11 th Cir. 1988). Further, under 20 C.F.R. Pt. 404 §1530(4) such weight loss treatment may be alleged as inconsistent where a claimant did not fully understand the importance of weight loss care and the interconnection of other ailments, e.g, diabetes. Often, the claimant’s inability to understand the weight loss regime can be supported by a claimant’s impaired mental state, e.g., limited education, below average intelligence, severe depression, etc.
It is important that the allegation of obesity as a medically determinable impairment is interconnected with the medical criteria within the Listings under the Social Security Act. Often, the adjudicator or judge should be prompted or reminded to consider the claimant’s combined impairments, e.g., obesity and diabetes, which restrict her or him from engaging in any substantial gainful activity. See, 42 U.S.C. § 416(i); 20 C.F.R. §§ 404.1523, 404.1527; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.1996) (the ALJ should consider how the combination of the claimant’s impairments affects the claimant’s ability to do basic work activities).

By: David W. Magann, Esq.

Don’t Try to Hide Assets From the Bankruptcy Court

laurie — Fri, 20 May 2011 12:53:13 +0000

On behalf of The Golden Law Group posted in consumer bankruptcy

For someone considering bankruptcy, the question of what property can be kept, rather than sold to pay off creditors, is very important. It’s only natural, when exploring debt relief options, to ask whether you can keep your home or your car.

We can explain what bankruptcy protection can do to help protect those assets. Keep in mind, however, that you aren’t likely to be allowed to keep sizable amounts of cash. Above all, you should never consider trying to hide assets from the bankruptcy court.

In a recent Florida case, a Clearwater man named Gary K. Parker listed less than $1000 in assets when he declared bankruptcy a few years ago. But he did not disclose to the court that he had kept for himself an account containing over $35,000.

In September 2010, Parker pleaded guilty to knowingly making false statements to the court. This is a felony crime that could send him to prison for five years when he is sentenced next month.

Bankruptcy court judges say this type of sentence is needed to serve as a deterrent to others who might toy with the idea of trying to hide assets. “There’s no way to keep people honest, absent this kind of message or deterrent,” says Catherine Peek McEwen, one of the judges at the U.S. Bankruptcy Court in Tampa.

The tough economy has increased the number of bankruptcy filings in Florida and around the country – and created plenty of incentive for people to try to hold onto more property than they are entitled to in bankruptcy. That temptation should always be resisted, because hiding assets is wrong and the consequences can be severe.

Source: “Hiding Assets from Bankruptcy Claims Can Become Expensive,” St. Petersburg Times, 2-19-11

Tags: cars, debt relief, hiding assets, homes

New Law Allows Reinstatement After Permanent License Revocation

laurie — Sun, 15 May 2011 12:19:15 +0000

Florida Governor Charlie Christ recently approved HB 971, which, in some situations, provides for reinstatement of driving privileges for individuals with permanent revocations due to four or more DUI convictions. The new law is effective October 1, 2010.

Starting October 1, 2010, those whose last conviction (or release from incarceration) for DUI was more then 10 years ago are eligible to apply. (Effective October 1, 2011, the time reduces to 5 years.) A hearing must be held for the Department of Highway Safety and Motor Vehicles to determine whether the qualifications have been satisfied. The conditions include:

• No drug arrest for the past 5 years
• No driving for the past 5 years
• Drug free for the past 5 years
• Completion of DUI school

If all of the qualifications are met and the DHSMV approves the application, the person must be supervised by a DUI program throughout of the entire revocation period. The first year of license reinstatement is for business purpose only driving. Additionally, an ignition interlock device is required on the person’s vehicle for 5 years.

If you have had your license permanently suspended in Florida for DUI convictions, contact us to determine whether you might qualify for reinstatement under the new law.

Stephen Lawler, Esq.

http://www.thelawlerfirm.com

Labels: DUI, FLORIDA, lawyer, License Revocation

Email Spying Could Equal Big Consequences

laurie — Sat, 14 May 2011 12:54:33 +0000

Checking your spouse’s e-mail in secret could have big consequences when filing for divorce. Take Leon Walker, a Michigan man, who is scheduled to go on trial February 7 on criminal charges of accessing the family computer to log onto his wife’s e-mail account to see if she was cheating on him. If he is convicted, Leon could face up to five years in prison and a $10,000 fine.

Walker contends that he had a right to use the computer as he bought it, and that she kept her passwords in an address book by the computer. Leon felt that he had a right to read her e-mail to check that their child and stepchild were safe as he had a feeling that she was having an affair with her second ex-husband. (Leon is the third husband.) Clara, Leon’s wife, had no idea he read her e-mail until it entered divorce proceedings.

Florida divorce attorneys and their clients are paying attention to this case as it will be interesting to see if the jury deems his actions a privacy violation instead of a criminal one. There is also the fact that she was having an affair prior to him checking the e-mails, so it changes the situation in this family law case.

Leon admitted that his wife did not know he used her e-mail account prior to it being discussed in the divorce proceedings, so Clara claims she never gave him verbal authorization to access it. Just because the computer and passwords were readily available does not automatically grant access to checking the e-mail whenever a spouse would like, her lawyer asserts.

Leon’s lawyer says he is inappropriately charged under a statute that applies to computer hackers who are after money or causing damage, not looking at a spouse’s e-mail account. Secretly checking a spouse’s electronic communications may violate state and federal wiretapping statutes such as the Wire and Electronic Communications Interception and Interception of Oral Communications Act, 18 U.S.C. §§ 2510 et seq. And in the Florida case in 2005, O’Brien v. O’Brien (Fla. 5th Dist. Ct. App. 2005), those types of intercepted communications were barred as evidence.

When a marriage has come to this point of infidelity, snooping and a question of child custody, a knowledgeable attorney can help with the emotional and financial challenges ahead.

You will have a much more favorable divorce settlement if you are proactive and can focus on what is best for your children.

When should you have a pre-nup?

laurie — Wed, 11 May 2011 12:40:51 +0000

General Family Law, by Brent Rose

I suppose the first question is, does your state even honor prenuptial agreements? If you think you’ll be divorcing in a state where prenuptials are ignored by the courts, I guess this whole article is irrelevant. To be safe though, in case you move to a state like Florida, where pre-nups are considered rock-solid contracts [...]

But when should you bother having one drafted? Here’s my opinion:

1) On a second or subsequent marriage. Sad but true, about 70% of all second marriages fail. (The good news is that only about 20% of all first marriages fail, despite what you’ve heard. You can check me on this with several sources, including the U.S. Census Bureau.) If the odds of marital failure are that high, you probably ought to consider doing a pre-nup. Plus, people going into second or third marriages usually have assets (or debts), so you might as well define how the assets and debts are going to be split while you like each other rather than in a divorce when you might hate each other.

2) When you want to eliminate or set an amount of alimony. When I draw up pre-nups, the couple almost always agrees to eliminate alimony. Alimony is, in my experience, the biggest reason for an acrimonious divorce. It’s awful to say, but people will give up lots of visitation before they’ll give up or pay alimony by agreement. You can increase the odds of a peaceful divorce immensely by putting an alimony clause in a pre-nup.

3) When one person owns a business prior to the marriage, especially where the other may work (or is already working) in the business. Businesses can easily become “family businesses” (read: marital property) if the owning spouse isn’t careful. Better to get this issue cleared up in a pre-nup then to fight over losing half of a business in a divorce.

4) When an inheritance is expected. In Florida at least, inheritance is usually not considered “marital property,” but there are many exceptions to this rule, and many ways to turn an inheritance from nonmarital into marital property. A pre-nup can solve this issue from outset.

5) When one person is wealthier or older than the other. This is the classic situation, and the one in which people obviously think of when they think of the need for a pre-nup. This is also the situation where the grown children say, “Dad [or mom] is getting married to a much younger person, so it’s time to go get a pre-nup.” It’s also probably a good time for the wealthier or older person to have his or her will examined. A spouse can get much more out of a will than a divorce, and it’s common for a younger spouse to stall a divorce case so that an older spouse can die, thus avoiding the effects of a divorce judgment or a pre-nup.

What is Probate? Florida Probate Answers Revealed

laurie — Mon, 09 May 2011 12:07:39 +0000

Posted on: 01-17-2011 Posted in: Estate Planning, Probate

Probate in Florida is a court-supervised process where assets of a deceased person (the decedent) are identified and gathered by the personal representative/executor (means the same thing). Essentially, the personal representative pays the decedent’s debts and distributes the assets to the decedent’s beneficiaries. This process can take anywhere from 3 months to over a year to accomplish, depending on the type of assets in the decedent’s estate.

There are two types of probate administration in Florida – formal administration and summary administration. Both require the hiring of an attorney to accomplish. There is also a type of proceeding that does not require the hiring of an attorney and this is called “Disposition of Personal Property Without Administration.” This type of administration only applies in limited circumstances.

A Circuit Court judge presides over the Florida probate proceedings and rules on the validity of the Will, or if a decedent died intestate, on the identity of the heirs. The judge also decides whether the person named as the personal representative is qualified to serve. Finally, the judge is responsible for issuing the “Letters of Administration” which gives the personal representative his or her authority to administer the decedent’s estate. If any disputes should arise during the administration of the estate, the Judge will hold a hearing to resolve the matter. To learn more about Florida Probate, please contact the Law Offices of Laurie Ohall.

Corporate Dissolution

laurie — Sun, 08 May 2011 02:06:41 +0000

John Hemenway in Business Law

Often when a corporation ends business its principals simply stop filing annual reports with the Division of Corporations and allow the corporation to be administratively dissolved. One important consideration often overlooked is the continuing liability under an administratively dissolved corporation. While administratively dissolved, shareholders, officers, and directors may bear personal liability for acts they take on behalf of the corporation while they know the corporation to be administratively dissolved (F.S. 607.1421). When formally dissolved, however, shareholders are generally not liable for claims, and in any event are not liable for any amount exceeding what is distributed in the dissolution (F. S. 607.1406-1407). Where a company is insolvent and makes no distributions to shareholders upon dissolution, there would generally be no liability. A Florida business law attorney can assist with the dissolution process.

Tags: administratively dissolved, corporation, director liability, dissolution, officer liability, shareholder liability

ASLEEP AT THE WHEEL IN A DRIVERLESS CAR

laurie — Thu, 05 May 2011 14:42:30 +0000

On behalf of Carman & Bevington, P.A. posted in Motor Vehicle Accidents

11
November
2010

According to the National Highway Traffic Safety Administration, an average of 1,550 people die each year due to fatal car crashes related to drowsy driving. Given the high numbers of fatalities and serious injuries related to drowsy driving, commentators and transportation experts are developing driverless cars as a possible solution.

As described in The Infrastructurist, today’s driverless cars are a “technological cocktail” of a variety of tools (computers, cameras, lasers and GPS) that allow these vehicles – with researchers ready behind the wheel to correct mistakes – to travel considerable distances facing multiple types of road conditions, including unpredictable human drivers.

Google’s driverless vehicle fleet crossed the Golden Gate Bridge without human assistance. More recently, a pair of driverless vans developed by the Italian company Vislab successfully completed the 8,000 mile journey from Italy to China without any major mishaps.

Google’s and Vislab’s efforts are a positive step toward an intelligent network of driverless vehicles that could cut down on car crashes that occur as a result of drowsy driving and texting while driving.

One such fatal crash occurred on an Oklahoma highway in 2009. According to the Washington Post, what was initially a relatively minor accident became a multiple car pile-up that killed 10 people and injured another six. The initial accident blocked the left lane, stalling traffic for a quarter mile. Then along came a big rig with the truck driver asleep behind the wheel.

Motorists and transportation experts cannot help but wonder whether a driverless car would make a positive difference.

While a number of unanswered questions remain – such as who is liable for accidents in computer-driven cars – it seems that falling asleep at the wheel in a driverless car is much better than the alternative.

Sources: Are We Ready for Driverless Cars?

Study examines toll of drowsy driving

Tags: Driverless Cars, Fatal Car Crashes, Texting While Driving