THE FLORIDA LAW BLOG

Can I Avoid Paying Alimony in Florida?

In Florida, it may be possible to avoid paying alimony, but it will depend on the specific circumstances of your case. Alimony, also known as spousal support, is a court-ordered payment that one spouse makes to the other after a divorce.

There are several factors that a court considers when deciding whether to award alimony in a divorce case, including the length of the marriage, the financial resources of each party, the standard of living during the marriage, and the earning capacity and education level of each spouse.

If you are seeking to avoid paying alimony, you will need to present evidence to the court that shows that you should not be required to pay. This might include evidence that your ex-spouse has a significant earning capacity, or that the length of the marriage was very short. You may also be able to negotiate with your ex-spouse to come to a mutual agreement on alimony payments that is acceptable to both parties.

It's important to note that trying to avoid paying alimony should not be your primary goal in a divorce case. It's important to prioritize the well-being of any children involved and to ensure a fair distribution of assets and debts. It's also important to work with an experienced family law attorney who can help you navigate the complex legal process and advocate for your interests.

 

The Requirements for Divorce in Florida

In Florida, the basis for divorce is the irretrievable breakdown of the marriage. This means that the marriage is no longer viable and cannot be saved. In legal terms, this is referred to as "irreconcilable differences." The party seeking the divorce does not need to prove fault or wrongdoing by their spouse, and there is no waiting period for a divorce to be granted. However, if the divorce involves minor children, the court may require the parties to attend parenting classes or mediation to address issues related to the children's well-being. Additionally, property division, alimony, child custody, and child support may be contested issues that must be resolved during the divorce proceedings.

WHY AUTO ACCIDENT VICTIMS SHOULD GET AN MRI

Florida auto accident victims normally go to a chiropractor as the first stop in treatment for an auto accident. This is because most primary care doctors such as MD's do not treat auto accident injuries. Further if you go to the hospital after a car accident, they normally will take an x-ray, and if you don't have broken bones and are not bleeding they send you home with some Tylenol. When the back pain sets in a day or two after the accident, this is when people normally seek an auto accident doctor. The chiropractor is uniquely qualified to diagnose and treat auto accident spinal injuries.  This is accomplished by numerous modalities, such as electrical stimulation, laser treatment, ultra sound, hot packs, massage and chiropractic adjustment. The course of therapy for chiropractic may need to continue several times a week, tapering off to once a week, or once a month over a course of several months. Normally patients improve after a month of chiropractic treatment. If improvement is not seen or if the patient is experiencing numbness or tingling in the arms or legs, an MRI is recommended to determine if there is a disc injury to the spine. A disc injury is known as a permanent injury and normally warrants a second opinion by an orthopedic surgeon or neurologist. If the patient fails to obtain an MRI, or the treating physician does not order an MRI,  it becomes more difficult to prove the patient has a permanent injury. Chiropractors are qualified and allowed to determine whether an injury is permanent or not, however an MRI certainly bolsters the diagnosis.

In addition to not having imaging proof  of a permanent injury that might require surgery, the lack of an MRI presents a unique problem for the  personal injury lawyer. When the personal injury lawyer makes a claim for damages, the claim must be supported by medical evidence in the form of medical records. Often the only records are those of the initial visit to the hospital and the chiropractor, and no MRI.  Without an MRI to prove that there was a permanent injury, and no consultation with an orthopedic surgeon or neurologist, the personal injury lawyer faces a challenge.

You need a permanent injury to be entitled to compensation for most (not all) car accident cases in Florida. This is stated in Florida’s law as follows:  “In order to recover damages in tort against the owner or operator of a motor vehicle (with respect to which security has been provided as required by Florida Statutes ss 627.730-670.7405), the plaintiff may recover damages for pain, suffering, mental anguish, and inconvenience because of bodily injury, only if the injury consists of:

*Significant or permanent loss of an important bodily function
*Permanent injury within a reasonable degree of medical probability
*Significant and permanent scarring or disfigurement
*Death.

Compensation for suffering, mental anguish, inconvenience, and pain are known as non-economic damages. Unfortunately, in Florida, most motor vehicle accidents will only provide the plaintiff money if they suffer a permanent injury (or another injury listed above). This permanent injury requirement is also known as the tort threshold.

Fortunately, there are exceptions to the tort threshold. Whether you qualify for compensation may depend on the specific types of vehicles involved in the accident. More specifically, you may or may not get compensation depending on whether:

You were driving a “motor vehicle” when the accident occurred; and/or
The person-at-fault was carelessly driving a “motor vehicle” when the accident occurred

While an MRI is not needed in every auto accident claim, it provides significant and important evidence to assist the personal injury attorney pursuing your claim.

 

 

Governor vetoes alimony legislation

Nearly three months after it sparked a heated debate in both chambers, Gov. Ron DeSantis has vetoed an alimony reform measure citing its retroactivity.

SB 1796 would have abolished permanent alimony, given ex-spouses who pay alimony a “pathway to retirement,” and created a legal presumption that 50-50 timesharing was in the best interest of a child.

“If CS/CS/SB 1796 were to become law and be given retroactive effect as the Legislature intends, it would unconstitutionally impair vested rights under certain preexisting marital settlement agreements,” Gov. DeSantis wrote in his veto letter, citing Art. I, §10 of The Florida Constitution.

The Family Law Section, and others, lobbied against the measure arguing it would interfere with existing agreements, spark bitter custody battles, and put children at risk.

“The Family Law Section of The Florida Bar has long advocated for legislative proposals that have a positive, productive impact on couples and families that are impacted by divorce,” Family Law Section Chair Philip Wartenberg and immediate past Chair Heather Apicella said in statement posted on the Family Law Section’s Facebook page from the Bar’s Annual Convention in Orlando shortly after the announcement of the veto. “The dissolution of a marriage and the subsequent custody issues are very traumatic for all involved, and it has been our mission to advocate on behalf of those impacted by divorce proceedings.

“From the very beginning of the 2022 Legislative Session, we voiced concerns over the retroactive impact of Senate Bill 1796. If signed into law, this legislation would have upended thousands upon thousands of settlements, backlogging the courts and throwing many Floridians’ lives into turmoil.

“We thank Governor Ron DeSantis for vetoing this measure and for understanding the bad precedent the retroactivity of the bill would have set for settled contracts in the state of Florida.”

(The Family Law Section advocated for this veto on its own behalf. Under Bar policies, sections, which have voluntary membership and dues payments, are given wide latitude on subjects they wish to lobby and sections must also make it clear they are representing only themselves and not the Bar as a whole.)

Sen. Joe Gruters, R-Sarasota, sponsored the bill in the Senate and Rep. Jenna Persons-Mulicka, R-Ft. Myers, carried the companion in the House. They had called the measure the culmination of a 10-year effort to eliminate permanent alimony in Florida, and insisted it was not retroactive.

One provision would have created a “wind-down” period that would, in certain circumstances, have permitted a retiring ex-spouse, after providing formal notice, to reduce alimony payments 25% per year over four years.

A similar reform bill stalled last year when the Senate objected to the equal time-sharing provision.

In 2016, Gov. Rick Scott vetoed an alimony reform measure that contained an equal time-sharing provision. In his veto message, Scott wrote that the provision would “put the wants of a parent ahead of a child’s best interest.”

Four years before that, Scott vetoed another alimony reform measure, citing concerns about retroactivity and its impact on alimony recipients.

HOW CAN ONE DRINK GET YOU A DUI?

In Florida the charge of DUI has some simple elements that the state must prove for you to be found guilty. First that you consumed alcohol or controlled substances. Second that you were operating a motor vehicle on the roads of the State of Florida. Third that your normal faculties are impaired.

If you have one drink, you have satisfied the first element of proof required for the state to convict you. Even one drink qualifies for “having consumed alcohol” or controlled substances. If you are driving on the road, you have also met the second element of DUI, that is operating a motor vehicle on the roads of the State of Florida.

The third element is interesting because the question of “normal faculties impaired” can be one of the police officers opinion, and does not require the evidence of a breath test. Surprisingly the law does not require a breath test for prosecution of DUI. The third element can be proven by the officers testimony that “ in his opinion” you were impaired. This is normally proven by physical observations such as slurred speech, red bloodshot eyes, the smell of alcohol on your breath, poor balance, difficulty producing your license and registration, leaning on the car, and what most people are familiar with the road side field sobriety tasks. So even if there is no breath test, or you refuse a breath test, the police can still provide their opinion that you were impaired based upon their observations.

Moral of this story, it is better not to have even one drink and get behind the wheel of a motor vehicle.

WHY YOU NEED A PRENUPTIAL AGREEMENT NOW MORE THAN EVER

Florida law allows a spouse to acquire an interest in your premarital home simply by marriage and the passage of time. This is not something most people are aware of until it is time for divorce. The law in particular that makes this happen is found in Florida Statutes section 61.075(6)(a)(1). This is known as the coverture fraction, and it allows your spouse to claim an interest in your premarital (purchased prior to the marriage) home based upon a complex calculation that takes into account the increase in value of the home, the paying down of the mortgage, the passive and active appreciation in value of the home. The law requires that the court shall (must) apply the formula unless a party shows circumstances sufficient to establish that application of the formula would be inequitable under the facts presented.

One way to prevent this from happening is to have a well drafted prenuptial agreement before getting married, and in the agreement specify that both spouses waive any interest in the premarital real property of the other, including any increase in value, passive or active, as well as payment of any mortgage or note. Without the protection of a prenuptial agreement, you may end up owing your spouse a substantial amount of money at the time of divorce based upon your home increasing in value or paying down the mortgage, even if the home is bought by you prior to the marriage, and even if your spouse is not added to the deed or title.

The relevant section of the Florida Statutes section 61.075(6)(a)(1) states “Marital assets and liabilities” include: a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them. b. The enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both. c. The paydown of principal of a note and mortgage secured by nonmarital real property and a portion of any passive appreciation in the property, if the note and mortgage secured by the property are paid down from marital funds during the marriage. The portion of passive appreciation in the property characterized as marital and subject to equitable distribution is determined by multiplying a coverture fraction by the passive appreciation in the property during the marriage.
(I) The passive appreciation is determined by subtracting the value of the property on the date of the marriage or the date of acquisition of the property, whichever is later, from the value of the property on the valuation date in the dissolution action, less any active appreciation of the property during the marriage as described in sub-subparagraph b., and less any additional encumbrances secured by the property during the marriage in excess of the first note and mortgage on which principal is paid from marital funds.
(II) The coverture fraction must consist of a numerator, defined as the total payment of principal from marital funds of all notes and mortgages secured by the property during the marriage, and a denominator, defined as the value of the subject real property on the date of the marriage, the date of acquisition of the property, or the date the property was encumbered by the first note and mortgage on which principal was paid from marital funds, whichever is later.
(III) The passive appreciation must be multiplied by the coverture fraction to determine the marital portion of the passive appreciation of the property.
(IV) The total marital portion of the property consists of the marital portion of the passive appreciation, the mortgage principal paid during the marriage from marital funds, and any active appreciation of the property during the marriage as described in sub-subparagraph b., not to exceed the total net equity in the property at the date of valuation.
(V) The court shall apply the formula specified in this subparagraph unless a party shows circumstances sufficient to establish that application of the formula would be inequitable under the facts presented.

WHY HOUSE BILL 719 IS GREAT FOR FLORIDA

All Florida drivers should get behind House Bill 719 entitled " Motor Vehicle Insurance".  This new legislation will provide for the first time require drivers to carry liability insurance in Florida. Until now and since 1971 the only insurance that Florida drivers had to carry was no fault, which does not provide benefits for victims of negligence, only for the occupants of the insured vehicle. The only other required coverage was property damage. So if you are the victim of another drivers negligence, there is a good chance that your injuries may not be covered since up until now drivers in Florida do not have to carry liability insurance. 

Efforts continue in the Florida legislature to repeal the state’s no-fault automobile insurance system, in effect since 1971, with a mandatory bodily injury liability regime. On April 14, 2021, the Florida Senate voted 38-1 to pass Senate Bill 54, which would replace the current Florida requirement of $10,000 in PIP benefits with mandatory bodily injury liability coverage. Significant aspects of SB 54 include:

Requiring bodily injury liability limits of $25,000 per person and, subject to the per-person limit, $50,000 in bodily injury limits for two or more people in any one crash.
Retaining the existing $10,000 financial responsibility requirement for property damage.
Requiring $5,000 in medical payments (MedPay) coverage with provisions relating to offering higher limits and deductibles. Notably, SB 54 requires insurers to reserve the first $5,000 of MedPay benefits for 30 days to pay physicians and dentists who provide emergency or hospital inpatient care.Provisions relating to insurer claim handling and bad-faith insurance actions.

 

WHY WOULD AN ATTORNEY NOT FILE SUIT IN AN AUTO ACCIDENT CASE?

Florida law places a burden on the injured party (plaintiff) to prove that they have a permanent injury. Absent a permanent injury, the court is directed by law to dismiss the case. This is often the result of a motion to dismiss filed by the defendant (at fault party) in which they allege no permanent injury. So when lawyers on TV claim that they file suit and that makes the insurance companies want to settle with them, what they really men is that they file suit on cases where there is a permanent injury. For anyone that wants to read the law here is an abbreviated snapshot of the law: Florida Statute 627.737 Tort exemption; limitation on right to damages; punitive damages.— (2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle, a plaintiff may recover damages in for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness, only in the event that the injury or disease consists in whole or in part of:
(a) Significant and permanent loss of an important bodily function.
(b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
(c) Significant and permanent scarring or disfigurement.
(d) Death.
(2). If the court finds that the plaintiff will not be able to submit such evidence, then the court shall dismiss the plaintiff’s claim without prejudice.

New Florida laws go into effect Thursday October 1, 2020

HB 1135, which revises the state’s specialty license-plate program. That includes expanding the potential number of designs from the current 123 to 150 and requiring a minimum of 1,000 sales before new specialty plates can move forward and existing plates can remain in circulation. The bill also creates plates for the University of Alabama, the University of Georgia and Auburn University and establishes a “super tag” template for nine black fraternities and sororities dubbed the “Divine 9” — Alpha Phi Alpha, Alpha Kappa Alpha, Kappa Alpha Psi, Omega Psi Phi, Delta Sigma Theta, Phi Beta Sigma, Zeta Phi Beta, Sigma Gamma Rho and Iota Phi Theta.

HB 387, which sets a $25 fee for most specialty license plates, with a $50 fee for the University of Alabama, University of Georgia and Auburn tags.

HB 205, which expands a portion of state law designed to prevent people from misrepresenting service in the military. The bill makes it a third-degree felony to use such misrepresentations to land jobs or political offices.

SB 294, which creates the “Florida Veterans Protection Act” to make it a first-degree felony to obtain or attempt to swindle $50,000 or more from 10 or more military veterans.

SB 680, which expands a 2017 law that increased penalties for people who remove fins from sharks and discard the rest of the sharks in the ocean. The new law bans the import, export and sale of shark fins but includes exceptions for people who already had federal shark fishing permits as of Jan. 1 and seafood dealers who had federal shark dealer permits. Shark fins are considered a delicacy in parts of Asia.

HB 333, which prohibits courts from granting bail to adult defendants who are appealing convictions in cases that require registering as sexual offenders or sexual predators and in which the victims were minors.

HB 675, which allows law-enforcement officers to make warrantless arrests for indecent exposure. Currently, officers need to have witnessed the incidents of indecent exposure or obtain warrants to make arrests.

SB 1286, which makes a series of changes to laws prohibiting contraband at prisons and other types of state and local detention facilities. The bill, in part, adds medical marijuana, hemp and industrial hemp to a list of prohibited contraband. Also, it addresses issues related to cell phones and vaping devices.

HB 133, which makes a series of changes related to towing vessels and vehicles. In part, the bill requires local governments to set maximum rates for towing and immobilizing vessels. It also prohibits counties and cities from imposing fees on wrecker operators or towing businesses.

HB 915, which expands state oversight of 20 commercial service airports, including requiring audits every seven years at the Orlando, Miami, Fort Lauderdale and Tampa international airports. All 20 must post online documents such as meeting notices, agendas and budgets.

COVID-19 SAFE ATTORNEY REPRESENTATION

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