Changes to Florida’s alimony law could bring fairness to everyone

Posted on April 17, 2012 by admin

Circulating around the news recently have been some stories about potential alimony

Nanette Cruz, family law attorney

Nanette Cruz, Family Law Attorney

reform; and with the passing of House Bill 549 in February it seems as if the disenfranchised spouses of Florida may be one step closer to receiving relief from alimony laws that have been called “antiquated” and “unfair.” Though the Bill is still waiting to be reviewed before the Senate and has not yet become Florida law, the changes it proposes would create a world of difference for the divorcees who call Florida “home.”

Currently in Florida there are six different types of alimony, most of which are temporary and designed to help “bridge the gap” between married life and a new single life after divorce. Some of them are short-term and some are long-term, and for the most part these types of alimony are not being widely contested by members of the public. There are some changes being proposed to these various shorter term alimony set-ups to help a person going through a divorce readjust to a single life and a single income. Some of the proposed changes include:

  • A maximum payment period of 2 years on “bridge the gap” alimony agreements
  • An obligation for the court to make modifications to rehabilitative and durational alimony agreements under certain circumstances
  • Durational alimony to be considered as an arrangement for both moderate and long-term marriages, for a maximum period of 50% of the length of the marriage

However, it is the permanent alimony provision that Florida allows to some recently divorced spouses which is causing a special interest group known as Florida Alimony Reform (FAR) to speak up loudly about the damage it does to taxpayers and families around the state. The current laws allow courts to modify permanent alimony arrangements only in some circumstances. The proposals put forth in HB 549 will make changing alimony agreements easier overall, and in some cases compulsory.

As a family law attorney who helps families through this turbulent time, I can understand where FAR and other people who feel they’ve been victimized by the current system are coming from. When a marriage is dissolving, alimony payments are often established based on the provider’s income, and can be extremely helpful in allowing the payee not to slip into a state of financial difficulty. However, as time goes on, one or the other person’s financial situation may change and it can leave one person in dire financial straits.

Under current law, permanent alimony payments are awarded in the majority of cases where the marriage lasted longer than 17 years. This arrangement expires only in the event of either party’s death, or if the recipient gets remarried. Sometimes, the payer is ordered to take out a life insurance policy with the ex-spouse as the sole beneficiary as well. This situation can make the alimony payments continue basically indefinitely; until “death do you part” and then afterward. The proposal would increase the minimum length of a “long-term” marriage to 20 years and would include additional provisions and changes for those couples in a long-term alimony settlement, including:

  • A termination of alimony at the payer’s retirement and no requirement of life insurance.
  • A maximum period of alimony payments of 60% of the length of the marriage. So, if a couple was married 25 years the alimony would end 15 years after the divorce or at the payer’s retirement, whichever comes first.
  • A termination of the alimony if the recipient of payments is found by the court to be engaged in a new “supportive relationship.” Even if the recipient is not remarried, if he or she lives with someone new for over 3 months and begins to be known in the community as being in a relationship with that person, the alimony payments can be reduced or terminated to reflect the recipient’s new source of financial support.
  • If the payer remarries or begins to engage in a “supportive relationship” with someone new, the recipient will not be able to modify the alimony agreement to include the new person’s income.
  • If the payer is found to be disabled and suffers a decrease in income, the alimony agreement will be significantly adjusted to reflect the person’s new financial situation

These changes equate to a fairer situation for all. When the original law was written women were not as strong a force in the workplace, and today couples often cohabitate and support each other financially without marrying. Bringing the alimony laws in line with the lifestyles and situations of today is a viable solution to easing the process of divorce and the legal battles which can ensue. Especially since these laws do not affect a couple’s child support, childcare, and custody arrangements.

The issue of alimony reform is receiving national attention and Massachusetts is now in the spotlight, having instituted new legislation that went in effect March 1st and is said to have brought one of the most outdated systems in the country “into the 21st century.” Florida should also consider making changes to create a compromise where both members of a marriage are able to walk away and establish new lives for themselves without feeling that they are burdened by their dissolved relationship. Couples should be able to part ways as amicably as possible, modify the divorce agreement if their life situations change, and move on to remarry and enjoy a life after their divorce. In an age where we all strive for more equity and fair treatment, it is realistic to evaluate what is fair between a couple who has parted ways and change the law to coincide with equal treatment to both parties.

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Mark Anthony and Jennifer Lopez Divorce May Be An Example to the Latin American Community

Posted on August 2, 2011 by admin
Nanette Cruz

Nanette Cruz, Family Law Attorney

Jennifer Lopez and Mark Anthony’s divorce has been big news in the pop culture sphere lately – and who wouldn’t understand why? They seemed like the Latin American fairy-tale couple, built to last. There has been some speculation about where the couple will officially file for divorce and how that will affect every aspect of the divorce proceedings. Reportedly, Jennifer owns property in California, New York, and Florida, so depending on where they can prove residency they may have options, and the location might make all the difference in how a settlement is reached. Florida and New York have more laws in common with each other regarding marital assets and division of property than either of them has with California, although all three states have their individual differences. I’ve discussed in a recent blog about the British real-life fairy tale wedding but now I’d like to bring it back across the pond and show the other side of the story, and the other side of the benefits of a prenuptial agreement.

In Hispanic culture, marriage is forever. Realistically though, this is not the first marriage for either of them. In their previous marriages they did not sign prenuptial agreements, and had to pay out to their exes. I extensively discussed the types of coverage that prenuptial agreements provide in the event of a divorce in my last blog, but it’s worth mentioning again here. In the case of Jennifer and Mark, money that either person made before the marriage, property purchased separately, intellectual property ownership rights, or any other asset which may come up during the divorce would be much better protected by a prenup. There has been a lot of debate as to whether or not this couple has a prenuptial agreement, and how it will affect the divorce proceedings and division of their assets. It will be interesting (however heartbreaking!) to watch the disclosure of details about this as the divorce develops.

Although prenuptial agreements get a bad reputation for being a sign of a lack of faith in the marriage, the truth is they serve many more purposes. Prenuptials can provide coverage in the event of a death that a Will may not cover. Even if Jennifer and Mark were not currently going through a divorce, their picture-perfect image of marriage could have greatly benefited the Hispanic community as an example if they would have had the foresight to make sure their assets were protected.

In Florida, for example, the state Constitution protects spouses in the event of death and places them as primary benefactors in the event of a spouse’s death. Spouses who have suffered the death of their significant other are able to claim life estate in property such as a home or land, they can file for an elective share of communal property, can ask for a family allowance of the estate, and are generally considered first in the distribution of assets over children or other family members. Therefore, even if a Will is written stating a specific distribution of assets to others, such as leaving a family homestead to a child or business investments to a business partner, the Constitution may override the Will and the spouse may remain the recipient of the asset.  A prenuptial agreement can preemptively settle probate and inheritance disputes by allowing a future spouse to waive any and all rights to the estate or any benefits receivable in the event of the spouse’s death after the marriage.

For all purposes, disclosure is crucial in a prenuptial agreement. If you are considering getting married with a prenup make sure that you are accurate and thorough in the information you provide to your attorney. You need to make a full financial statement including all assets, income, and liabilities. You need to be honest and complete in reporting this to both your spouse and your attorney. If it comes into question after the marriage and you want to make amendments, it may be too late by that point. You can also decide to look into a postnuptial agreement after the fact, but be prepared to undergo an even more thorough process of disclosure and documentation. However your marriage ends the thoroughness of the documentation and the accuracy of the information can prove helpful and useful – even if it’s in probate 50 years later.

The example of Mark and Jennifer – if they didn’t protect themselves with a prenup – could be an example to the Hispanic community of what can happen in divorce, but it would have been nice if they could have acted instead as an example of how a prenup can benefit a life-long marriage. As in any culture, some Hispanics can be superstitious, believing the stereotypes about prenups as jinxes or a sign that the couple isn’t really in love. Instead, we should recognize that a prenup is a legal document which protects our property rights for the things we own before we get married, even if we expect the marriage to last forever. If you are considering marriage and unsure what a prenup might do for you, please contact an attorney to learn about your rights and protections under your state laws.

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The Scoop on Prenuptial Agreements

Posted on May 31, 2011 by admin
Nanette Cruz

Nanette Cruz, Family Law Attorney

Getting married is very romantic and exciting, but sometimes people need to pay attention to the more practical side of this milestone, whether out of preference or out of necessity. I know I’ve covered prenuptial agreements before, but based on my current work at the firm, I wanted to discuss the topic a little further.

A prenuptial agreement is a contract that a couple enters into before getting married. It explicitly states the amount and type of assets that each spouse is entitled to in the event they separate or divorce. Naturally, a lot of people consider this process a real damper on their relationship and new-found commitment to stay together “until death do us part.” But a prenuptial agreement can hardly be considered too precautionary these days for a few reasons.

For one, America’s divorce rate has no signs of slowing down from the steady 50%. It isn’t unreasonable to ask your spouse to sit down with you and discuss the possibility of divorce when there is a one in two chance that it will happen to you. Many factors go into creating a lasting marriage, and in some circumstances, it just doesn’t work out.

Also, it’s rather unfair to assume that one or more of the spouses is acting selfishly. Some marriages are not just between the man and woman; they may have children or dependents that rely on them for support. If a person is getting remarried, their financial situation may be more fragile than a younger individual’s who is just starting to build wealth or who does not have children to care for.

Plain and simple: it isn’t fair to judge a couple who decides to get a prenuptial agreement. The decision is personal, and not every contract states that the wealthier person gets to keep their money. There are certain waivers in a prenuptial agreement that account for specific situations, and if they are included, can keep the spouse from collecting specific awards. Common waivers include:

Waiver of alimony. If included, this waiver could keep a spouse from collecting monthly support payments from the other in case they get divorced.

Waiver of interest in appreciation or separate property. If both spouses contribute to improving one spouse’s non-marital asset (say, a house that he or she bought before marriage), then this waiver could prevent the other spouse from collecting money based on the appreciation, or increase in value due to improvements, of the property.

Waiver of interest in retirement plans. This waiver is similar to waiving interest in appreciation, but it deals explicitly with the monetary interest earned on retirement accounts, such as 401(k)s or IRAs.

Waiver of interest in homestead. Florida’s constitution allows each person to have a homestead. That is, they are allowed to keep their home if it is their primary residence. If one spouse owns the home and passes away, the surviving spouse may not be able to keep that home from being passed on to the deceased’s heirs if they sign a waiver of interest in homestead.

Waiver of elective share. A spouse’s “elective share” is the assets they may be able to claim if their husband or wife passes away. In Florida, excluding a spouse from your will does not keep them from being able to claim part of the estate. In fact, sometimes, they can claim 30% of the value. Having your spouse waive their elective share could provide more money or assets for your children if you pass away.

Waiver of family allowance. In the event of a spouse’s death, the surviving spouse may be able to claim up to $18,000 in family allowance benefits while the estate is being executed.

Many of the waivers featured in a prenuptial agreement may also be found in another document that helps protect your interests: a will. If you have children, you may want to consider how they will be provided for if you were to pass away. Would your spouse assume duties as a parent, including financial support? Would they want certain pieces of property, maybe a family heirloom? It’s important to write these preferences and wishes down in an official document in order to protect your family’s interest. Talk to an attorney to learn about your options.

The ideas behind creating a will are similar to those that prompt a couple to create a “pre nup,” so why is it still taboo? As our society begins to realize that not all marriages leave each individual living “happily ever after” and that the economic impact of divorce can ruin a person’s finances, maybe we’ll also begin to value prenuptial agreements for what they really are rather than what we perceive them to be.

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Is Everyone Who Owes Back Child Support a Dead-Beat Parent?

Posted on May 19, 2011 by admin
Nanette Cruz

Nanette Cruz, Family Law Attorney

It’s tough when parents split up. They have to deal with the emotional aspects of their parting ways, but then they also have to face the reality of raising a child (or children) in two different homes and on their individual budgets. Child support is intended to provide the care-taking parent with the money it takes to purchase resources for the child, but some procedures and communication methods can prevent the system from working to its full potential of helping families move on with their lives.

Those who have little to no familiarity with child support laws and the Florida Department of Revenue can assume, albeit superficially, that anyone who is not paying child support deserves the title of “dead beat” mom or dad. I don’t think this is a very fair assumption though, mainly because some people who aren’t paying child support may not be able to, and the system is too slow to help alleviate their responsibility before it is too late.

What if a parent is severely injured and unable to work? What if they are working, but only earning enough to barely support themselves? In these situations, the parent may not have to pay child support, but each situation is different. Florida’s Department of Revenue may change child support on a case by case basis, but unfortunately, these cases can also be made much worse by slow, bureaucratic communication.

If a parent doesn’t pay child support, state agencies can begin to restrict that parent’s rights in order to force them to do so. Under Florida law (specifically, statute §61.1306), a driver can have their driver’s license suspended if they owe back child support. For example, Florida’s Department of Revenue, which is in charge of administering the child support program, will tell the Department of Motor Vehicles to suspend a parent’s driver’s license if they are late on their payments. If the driver is caught driving on a suspended license, they can go to jail. The hope is that the parent will pay the child support they owe because they don’t want to go to jail. But again, what if they can’t?

Here comes a problem: the Department of Revenue puts the parent’s hardship on record after they’ve already notified the DMV that the parent is delinquent. Suddenly, the parent can’t drive to work in order to earn the money needed to satisfy their debt. Additionally, if that parent was injured, they can’t drive to a doctor’s office or physical therapy appointments, which could help return them to full work capacity. What do they do in the mean time?

Well, they could hire a lawyer to help. But there again is the issue of money. Attorneys want to help people struggling with child support disputes, but these cases can take time and a lot of communication to successfully resolve. Their services aren’t usually free, but a child support attorney may be an indebted parent’s best resource in returning to a life of normalcy.

It’s true that some parents don’t pay child support because they want to spite their ex, because they don’t want to take responsibility for their child, or simply because they don’t want to give up their money. Children are always negatively affected in these situations, but sometimes, it’s the injured or unemployed parent who suffers as well. This sad situation is one that many people don’t know their way out of without professional guidance.

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The Fairy Tale and the Reality of Marriage

Posted on May 4, 2011 by admin
Nanette Cruz

Nanette Cruz, Family Law Attorney

The whole world watched on April 29, 2011 as His Royal Highness William, Prince of Wales, married his long-time girlfriend – a British commoner – Kate Middleton. It’s a true Cinderella story, in grand style, and has captured the imagination of the world. Sparkling, glittering, and fabulous, their wedding will be one of the news highlights of the year.

Not to burst this beautiful bubble, or bring anyone down from a cloud of fantasy, but the reality remains most of us will not have a wedding, or a marriage, which compares with these two. The truth is, behind all the glamour of their royal ceremony lies the harsh fact that … marriage is hard and serious business.

Marriage is not something which should be taken lightly, or rushed into without sincere and serious conversation. It is a commitment which ties two lives together – not just romantically and emotionally, but financially and legally. American law entitles a married couple with rights not available to unmarried citizens, but also places responsibilities on married people that they should be aware of. A commitment of this magnitude can’t help but to affect all aspects of a person’s life.

Before marriage.

Every situation is unique, but the legalities are the same for most married couples. No one can tell you all the specifics of what should be discussed before marriage is seriously considered, but consulting an attorney is never a bad place to start, especially if the husband and wife have children from previous relationships, property or debts about which they are concerned, if they’ve moved from another state in which they were married by Common Law, or are naturalized citizens from another country. Assets, liabilities, life plans and preferences … all these things are important. The bottom line is, if you can’t talk over the serious aspects of a life together, how can you expect to be able to enjoy the fun aspects?

No one likes to think of a potential end to their marriage before it even begins, but it is something which Floridians face every day. With the divorce rate higher than 50% of the marriage rate in 2009 prenuptial agreements become more popular and in higher demand every year. Some people are taking the opportunity to combine the effort of putting together a pre or postnuptial agreement with their estate planning, making sure not only are they protected individually in case of a dissolution of marriage, but also that their fiancé, spouse, and other loved ones are provided for and given instruction in the event of some kind of emergency before, during, or after the wedding. As the old adage goes: “Expect the best, but prepare for the worst.”

Specific legal considerations.

Although some states do recognize a Common Law Marriage practice, Florida does not, and a couple must be issued a Marriage License from a City or County Clerk in order for their marriage to be recognized by the state. The process of obtaining a marriage license is not necessarily difficult, but can take some time, and couples should take this into consideration with their wedding planning. The application for a Marriage License does have some cost associated with it (up to about $70) which can be reduced if the couple completes a Premarital Preparation Course and presents certificates with their application for a Marriage License. These courses are at least 4 hours long, can be completed together or separately, and will help couples become familiar with the issues they may face once married.

Once a couple is married, they become legally entwined in matters of shared parental responsibility, property rights, and financial responsibility for one another. When applying for a Marriage License the clerk of the circuit court has to make available a Family Law Handbook to each couple which goes over these matters in more specific detail and make both a husband and wife aware of their rights and responsibilities.  

It is a fairly common custom to see one or the other person change their name, reflecting the age-old custom that the person is being “brought into” the other’s family. (“Kate Middleton” now became “Her Royal Highness, Catherine, Duchess of Cambridge” after her wedding ceremony!) While this is not necessary, it can be time and energy consuming and should be looked into as soon as possible in the marriage process.  The person who is changing their name will need to apply with the State for this change of record,  and will have to remember to do the same with the Social Security department, as well as the IRS, and other personal records (like bank records, credit agencies, and school records.) This can be another factor in which consulting an attorney provides invaluable.

While we all love a beautiful fairy-tale ending and the Royal Wedding has brought the most romantic and idealistic picture of marriage into the public forefront these past few months, we must remember that “Will and Kate” have had a lot of help not generally provided for the rest of us. Their status provided them with privileges the rest of us are not likely to see, but act as an example for the rest of us, and can help us remember the realistic difference between royalty and regular citizens. The best way to prepare for our own personal “Happily Ever After” is to know and understand what lies ahead on the road together.

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The Big Picture on “Whistleblowing.”

Posted on April 20, 2011 by admin
Nanette Cruz

Nanette Cruz, Trial Attorney

In light of the near national government shut-down two weeks ago and the overwhelming concern in the news with the national budget crisis, I started thinking about the False Claims Act, which helps the government recover monies for the American public. As the state and federal governments go further into the red any potential income becomes increasingly precious, the False Claims Act is gaining both popularity and importance.

The False Claims Act,  also known as the “Qui Tam Act” or “whistleblowing,” has been a part of our legal system over 150 years. If a company is filing fraudulent claims with the government and receiving government money based on those claims, a “whistleblower” (usually an employee) may bring a case against the fraud on behalf of the government. In these types of cases, the person filing suit – the Relator – is a joint party with the government against the fraudulent company, and is therefore entitled to a percentage of any award in the suit.

It’s easy to understand why citizens like this act: they have a chance to do the right thing of helping to defend their government against being defrauded – and potentially receive a reward for doing so. What may not be so obvious here is the importance or scale of the money recovered and how recovering it is good for the American people.

Last week in Miami Dr. De Los Rios was convicted of five felony counts having to do with Medicare fraud. So what did he do? For approximately 2 ½ years he falsified documents to bill Medicare for services which were not actually administered and prescribed expensive medication unnecessarily just for the Medicare reimbursement. These actions cost the Medicare program almost $12 million of tax-payer dollars. That’s $12 million Floridian dollars which easily could have been put to better use for the public. In fact, since 2007, over a 1,000 charges have been brought against suspected falsified Medicare claimants – to the tune of $2.3 billion American dollars.

So the good news is: all this money which was falsely paid out by the government can be recovered, reclaimed, and re-circulated back into the state and national budgets. And the individual who “blew the whistle” on the fraud is compensated for their assistance. Everyone goes home happy, right? So why aren’t there more whistleblowers all over the place? Why don’t we hear about False Claim suits everyday?

Because many people are afraid to speak up. They have a number of very understandable questions, like: “How does it work?” and “What do I do if I want to blow the whistle on someone?”

The short answers to these questions are: “It’s complicated.” and “Call an attorney.”

The long answers are:

“How does it work?”

First, your attorney will file a lawsuit under seal in Federal court and serve the offices of the US Attorney General and the local US Attorney with a copy of the complaint, along with a written disclosure. Neither the defendant nor the public will be made aware of the lawsuit. The government attorneys will have 60 days to decide if they would like to intervene in the suit against the defendant, file an extension to investigate further, or decline to pursue the case. If they decline to intervene, you can still continue with the suit on your own. If the federal or state attorneys decide to intervene it will affect the amount of work and involvement for you and your attorney. Moreover, it will also affect the amount of compensation you will receive if the suit is successful and results in awards for the plaintiffs. The more work the federal and state attorneys do, the less you’ll receive as a whistleblower in the end.

“What do I do if I want to blow the whistle on someone?”

Qui tam claims have a very specific process and must be filed by an attorney within a certain timeframe. So, don’t wait if you feel that there is a whistle to be blown. A False Claim suit needs to show that the defendant “knowingly submitted a false claim to the federal government” such as “any written or electronically submitted request or demand…for money, property, or services” from a government agency. You may have a case if you have any direct and independent information about the actions. Whatever the situation, you should speak with an attorney who is experienced in helping you determine what steps to take.

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Should I File for Divorce or File for Bankruptcy First?

Posted on April 12, 2011 by admin
Nanette Cruz

Nanette Cruz, Divorce Attorney

Every couple is different, but there are some common problems that lead to marital troubles. Two people may decide to end their marriage because they have conflicting personalities, they disagree about their professional goals, or are unable to be faithful to each other. Finances are also a common source of frustration that could lead to divorce. If a couple’s financial state has led them to file for bankruptcy, it could affect them differently based on their marital status at the time of filing.

When two people decide to get married, they not only create an emotional bond, but a legal one as well. Their credit scores may affect each other, they may incur debt together, and they may be responsible for paying those debts together. If a couple becomes overwhelmed by their debt, they may decide to file for bankruptcy jointly. Depending on the nature of their debts and current income or assets, they may qualify for Chapter 7 bankruptcy, which liquidates their nonexempt assets and discharges certain debts, or Chapter 13 bankruptcy, which outlines a repayment plan for the couple’s reorganized debts.

But what about former spouses who start to experience financial trouble after the divorce is final? There are plenty of costs that come with divorce. These include, but are not limited to:

  • child support
  • alimony
  • attorney’s fees
  • mortgage payments on the marital home
  • automobile payments on the marital vehicles

If a spouse is required to pay these costs, they could be an added expense to their new single lifestyle. For example, if a woman is equally responsible for mortgage payments on the house her husband continues to live in, she’ll have to factor that amount into her budget even though she may be paying for her own residence. Not many people can afford to pay two mortgages or two rent payments, but this situation is not one that divorcing couples often anticipate. As you can see, it’s entirely possible that a divorce would lead to one or both spouses filing for bankruptcy.

But that’s where the bigger problem arises. If your marital assets and liabilities are split between you and your spouse during a divorce, they are legally binding and non-dischargeable if outlined in the marital settlement agreement. A recent article in the Florida Bar Journal states that the new standards for debt consideration after divorce can be tricky and “a certain trap for the unwary.”

According to the U.S. Bankruptcy Code §523(a)(5), filing for bankruptcy does not allow the debtor to discharge domestic support obligations in the course of the claim. On the surface, this just appears to mean that the debtor is responsible for alimony and child support. However, the Bankruptcy Abuse Prevention and Consumer Protection Act changed the laws to include obligations contained in the couple’s final divorce settlement. Without additional clauses in the divorce decree, a spouse may be on the hook for a financial responsibility they didn’t anticipate.

As summarized in the Bar’s Journal article, one case resulted in a divorced woman having a judgement of deficiency entered against her after her ex-husband failed to pay his portion of the mortgage on the house they owned as a married couple. The home went into foreclosure, but the sale price of the home did not satisfy the outstanding balance left on the mortgage. The woman was held as partially responsible for this balance, also called a deficiency, even though she no longer lived in the home.

The lesson from these cases and articles? First, consider filing for bankruptcy before you divorce your spouse. The debts–and proceedings in general–may be easier to work through if you are still married when you file. Secondly, hire a divorce attorney that understands these issues. Adding a clause to the marriage settlement agreement may be the difference between moving on with your financial life and having to pay for your ex-spouse’s mistakes.

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Florida Medicaid Reform Bill May Hurt Families of Disabled Children

Posted on March 31, 2011 by admin
Nanette Cruz

Nanette Cruz, Injury Attorney

Although my focus as an attorney is shifting towards family law and financial matters, I keep myself updated on national and state-level efforts to reform tort laws, which are at the heart of many personal injury claims. Recently, the Florida legislature has been debating a law that would reform Medicaid.

News media has focused on many aspects of the reform law, but one that caught my attention was the introduction of a cap on liability and benefit awards for people who were injured by medical malpractice. One side argues that there should be a lower cap because Medicaid is state-run and partially state-funded, so any lawsuit would drain an already cash-strapped system. The other side, myself included, sees the cap as a serious disadvantage to the poor, severely sick or injured children and families that Medicaid supports.

In general, Medicaid is a state-managed form of health insurance that helps pay for treatment of child, older individuals, and people living with disabilities. It is funded jointly by both state and national government. An individual or family may be accepted for Medicaid coverage if they pass a means test, meaning that their income and assets are not enough to cover their reasonable, daily expenses.

According to the Florida Department of Health Care Administration, the agency that oversees the program in the state, over half of the nearly 3 million people receiving Medicaid are children. Imagine that one of them gets sick, visits a doctor, and receives treatment. If the doctor’s tests, treatment, or other actions cause an injury or illness, the child’s family may have a medical malpractice claim. Medical malpractice claims are some of the most devastating claims for a family to deal with emotionally, but the financial toll is crushing as well. The family of an injured child may have a claim against the doctor or hospital for medical negligence, and they may be entitled to a large settlement for their medical costs, as well as pain and suffering.

But the new Florida Medicaid bill may prevent that family from collecting all they are entitled to. These injury suits can result in awards into the hundreds of thousands of dollars, depending on the jury’s assessment of liability and damages in the case. The new bill would cap the award for Medicaid recipients at $300,000 for “noneconomic damages,” according to the St. Petersburg Times.

Based on the current economic climate, it makes sense to try and preserve the funds our state has in the Medicaid program. However, preventing people injured by medical malpractice from collecting adequate awards is not the way to do it. Should these individuals be entitled to any less money just because they are on state-run health insurance plan? Wouldn’t the doctors they visit still have the same responsibility to provide them with due care? It shouldn’t matter how these sick or hurt people pay for their care because avoiding medical malpractice rests in the hands of the doctor or health care facility, not the insurance company.

As the debate rages on, democratic lawmakers mention the names of children on Medicaid who have been seriously injured at the hands of negligent doctors and hospital staff. Their conditions require lifelong treatment, and accordingly, their parents and attorneys seek large settlements. As a parent, I know that any medical harm to my child would be heartbreaking. But to know that my income and form of health insurance would limit my ability to care for their injuries is absolutely unthinkable. Hopefully, the Florida House and Senate will make the right decision for our state’s children and disabled individuals.

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Bankruptcy and Foreclosure: Should I Abandon my Home?

Posted on March 24, 2011 by admin
Nanette Cruz

Nanette Cruz, Bankruptcy Attorney

Many of the clients who call our office seeking relief from debt also have another claim to deal with: foreclosure. Unfortunately, the intersection of bankruptcy and foreclosure claims can be characterized by the phrase, “when it rains, it pours.” Debtors who have difficulty staying current on their mortgages probably also let their credit card debt, automobile loans, and other financial aspects of their life get out of control. This is when bankruptcy is an option. But when their mortgage falls into the “unmanageable debt” category, what should the debtor do?

You’ve probably heard about “strategic default,” or a homeowner’s conscious decision to stop making payments towards a loan that is higher than the home’s value. A home is considered “underwater” in this situation, and, in extreme cases with no end in sight, it seems frivolous to keep paying money towards the mortgage. But if you know your home is underwater, and you have other financial problems, strategic default might not be the best decision.

If the bank or mortgage lender forecloses on your home, they will most likely sell it at auction in an attempt to get part of their money back. Even though the debtor has already had to give up their home due to foreclosure, they may still owe money. In a bad economy, a home could sell for far less than the bank anticipated. A debtor may be responsible for paying the difference between what they owe to the bank and what the bank got from the sale of the foreclosed home.

This is probably best explained through an example. Let’s say that you took out a $250,000 mortgage for a new home in 2007. Four years later, you are unable to make your mortgage payments on the remaining $200,000 left on the mortgage, so the bank forecloses. They sell the home at auction, but they only got $175,000 from the sale. In order the recoup that remaining $25,000 left, they will try to get a deficiency judgment against the homeowner, forcing them to pay by court order.

$25,000 is not something that most people have sitting in their piggy bank. It is a lot of money. When considered with other debts, it could force the person to declare bankruptcy. In a chapter 13 bankruptcy, the debtor would have 3-5 years to repay this debt through a court-approved payment plan. Debtors filing for chapter 7 bankruptcy would have to liquidate their non-exempt assets before having outstanding debts, such as a deficiency judgement, discharged.

There is another, less obvious option in this situation: filing for bankruptcy before foreclosure. Chances are that financial problems don’t happen all at once, although there are a few cases in which a serious illness or maybe even a divorce leave a person dealing with a lot of debt. If a debtor knows that they owe a lot of money and will soon be in foreclosure, it may be wise to consider filing for bankruptcy beforehand.

According to United States Bankruptcy Code §362, debtors who file for bankruptcy are granted an automatic stay on foreclosure proceedings, which allows them to stay in their home at least until the bankruptcy is completed. Additionally, if the debtor is filing for chapter 7 bankruptcy, they may be able to claim their remaining mortgage balance as a debt and have it discharged after their non-exempt property is sold to pay what they can toward the total amount they owe.

The sooner you develop a strategy for your debt, the more you and your family will benefit. Talk to an attorney if you think that foreclosure is a few months away. We hear and see the news about the rising number of foreclosure cases, but we don’t seem to get much advice when it comes to other aspects of our finances. Consider bankruptcy before foreclosure to help you and your family buy more time when it feels like it may be running out.

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How Litigators Use Social Media

Posted on March 15, 2011 by admin
Nanette Cruz

Nanette Cruz, Family Law Attorney

Social media can be a powerful tool for staying in touch with friends and family. Facebook, although originally intended to college students, has grown to include more than 500 million active users. Half of those people log in every day, and some might not have the nicest things to say. As a Facebook user, I know that it can be tempting to use it as an outlet to vent to your friends. But as an attorney, I also know that those status updates and wall posts can come back to haunt you if you are ever involved in a legal struggle.

Recently, I attended a seminar put on by the Association of Certified E-Discovery Specialists that focused on social media and data storage by means of “the cloud.” The central theme was the availability of information and the debate surrounding social media updates and discovery during a lawsuit. If a user posts a tweet or updates their Facebook status, is that a public statement? What if their privacy settings restrict the update to a circle of friends? Some say that whatever is put online for multiple people to see is a form of mass communication and may be fair game during litigation and discovery.

The government protects certain elements of a person’s online privacy through the application of the Stored Communications Act. This law prevents Internet Service Providers (ISPs) from giving up the content of a user’s messages, including emails, without their consent. Lawyers are beginning to  realize that defendants in many cases, from car accidents to divorces, are posting Facebook and twitter updates about the incidents. Their thoughts on the subject, including the fact that they would even share this information with hundreds of people, can be significant in court. In order to drive home the point that social media can be damning to those involved in law suits, the speaker at the ACEDS seminar mentioned Courtney Love’s recent $430,000 settlement out of court for slander allegation arising from one of her rants on Twitter.

As a Facebook user, I appreciate the privacy that the SCA affords me. But as an attorney, it can be frustrating. With this law in place, the best way for attorneys to get this content to use in court is to draft a request to produce. The lawyer submits it directly to the opposing counsel and if their client objects, the request goes in front of a judge. If the lawyer’s request is found to be valid, then they can use photos, updates, posts, and other information to show a disparity between the person’s statements or actions in court and those online. In some cases, the defendant is asked to surrender their login information so they have no control over the process. Some technology companies are moving user data to “the cloud” so that is easily accessible from different devices. Facebook stores information this way, which allows the litigator to find things based on the date and time it was uploaded.

So what does this mean for Facebook users? It shows all of us that anything posted online should be considered public information. No matter how strict your privacy settings are, it can be used in court if you ever find yourself in legal trouble. Next time you find yourself in a bind, you might want to rethink that tweet or status update.

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