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Pursuant to Florida statutes, alimony may be awarded when one spouse has a need for financial assistance and the other spouse has the ability to pay. If a court awards alimony, then the obligor may later seek to modify or terminate the alimony obligation if there is a substantial change in circumstances or if the obligee has entered into a supportive relationship. Pursuant to Florida statutes, the court has discretion to reduce or terminate an award of alimony if the court finds that since the granting of the divorce decree, a supportive relationship has existed between the obligee and a person with whom the obligee resides (“cohabitant”).

The burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists. In a recent case, Gregory v. Gregory, 39 Fla. Weekly D1A (Fla. 5th DCA 2014), the 5th DCA held that once the court finds that a supportive relationship exists, the burden of proof shifts to the obligee to prove that he or she has a continued need for the financial support. In that case, the Husband sought to reduce or terminate his alimony obligation based on the wife’s supportive relationship. Ultimately, the court held that the wife was living in a supportive relationship and she failed to prove that she had the continued need for alimony.

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As has been previously discussed on this website, 11 U.S.C. § 523 specifically exempts student loan debt from being discharged in bankruptcy unless the debtor can show that the student loan “would impose an undue hardship on the debtor and the debtor’s dependents”. Courts have interpreted this language as creating a very difficult burden for a Debtor to prove, and Bankruptcy Judges and courts are very reluctant to allow student loans to be discharged in bankruptcy.

Student loan debt in the U.S. is approximately $1.2 trillion, and 71 percent of college seniors had debt in 2012, with an average outstanding balance of $29,400 for those who borrowed to get a bachelor’s degree. It is estimated that 40 Million Americans have outstanding student loan debt.

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When an individual files for bankruptcy his or her assets become part of the Bankruptcy Estate. Section 522 of the Bankruptcy Code, however, allows Debtors to exempt certain types of real and personal property from their Bankruptcy filing. Both Florida and Federal exemptions specifically allow for debtors to exempt most types of retirement accounts such as 401(k)s and IRAs. Recently, however, some Chapter 7 trustees have begun to challenge this exemption when it applies to Inherited IRAs. An Inherited IRA is a traditional or Roth IRA that has been inherited after its owner’s death. If the heir is the owner’s spouse, as is often the case, the spouse has a choice: He or she may “roll over” the IRA funds into his or her own IRA, or he or she may keep the IRA as an Inherited IRA. When anyone other than the owner’s spouse inherits the IRA, he or she may not roll over the funds; the only option is to hold the IRA as an inherited account.

Bankruptcy courts and Judges had been split as to whether or not Inherited IRA’s are exempt under Federal Bankruptcy Exemptions. Recently, however, the United States Supreme Court ruled that Inherited IRAs are not exempt pursuant to the Bankruptcy Code’s exemption for IRA accounts. In a unanimous decision, the Supreme Court held that the bankruptcy law is intended to exempt money that the debtor deferred from his own earnings to pay for future retirement. The court reasoned that an inherited IRA, although called an “IRA”, is more of a windfall inheritance from a third party’s labors and savings, and this money should be made available to pay the debtor’s creditors. The case is Clark v. Rameker, 134 S.Ct. 2242 (2014).

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In a dissolution of marriage involving property, the trial court must determine what asset is marital versus non-marital, what is the value of each asset, and decide how to split the assets. The date of determining the existence of marital versus non-marital assets is the date of filing of the petition. Because cases can take several months or even years to conclude, an asset may exit at the date of filing but not exist, or its value may substantially decrease, by the date of trial. A perfect example is a bank account. In this situation, what is a court to do?

In a recent case in Ballard v. Ballard, 39 Fla. L. Weekly 1670c (Fla. 1st DCA, 2014), the parties owned a bank account that was significantly diminished by the Husband during the dependency of the case. At the date of filing, the bank account had $42,012; by the trial date, the account had no funds. The Husband testified that he used some of the money to pay his attorney’s fees. The trial court did not find any misconduct on the part of the Husband but nonetheless included the $42,012 in the equitable distribution scheme.

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The vast majority of family law matters, whether a dissolution of marriage (divorce) or child related (paternity), cases resolve in a settlement. This means that the parties can avoid going to Court and having a Judge determine their fates. Sometimes the parties cannot amicably resolve their case and must go before a Judge. It is your right to have your case decided by the Judge.

The Judicial system must balance crowded dockets with the citizen’s right to have “access to the courts,” that is to say your right to have your case decided by the Judge. Often Judges will put time pressures on cases to clear up their docket. In one recent case from Miami, the Judge did not provide the Wife with adequate time to present her case. Specifically, telling her counsel that he needed to wrap up her testimony in fifteen (15) minutes. The appellate court found this to be a violation of the Wife’s right to due process and remanded the case to the trial court.

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The Florida Right to Medical Marijuana Initiative, Amendment 2 is on the November 4, 2014 ballot in Florida as an initiated constitutional amendment. The measure, if approved, would legalize medical marijuana in the State of Florida in certain circumstances. More specifically it would provide that the medical use of marijuana by a qualifying patient would not be subject to criminal or civil penalties under state law. The measure needs 60% of the votes to pass.

Since 1996, twenty states along with Washington D.C. have passed laws allowing smoked marijuana to be used for a variety of medical conditions. Two States, Colorado and Washington, have passed laws legalizing the recreational use of marijuana. It is important to recognize that state marijuana laws do not change the fact that marijuana use continues to be an offense under Federal law. The filing of a Bankruptcy petition is governed by Federal Law.

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On Monday, January 5, 2015, Miami Dade became the first county in the state of Florida to recognize same-sex marriage, start issuing marriage licenses to same-sex couples, and officiate same-sex marriages. The decision came from Miami Dade Circuit Judge Sarah Zabel. Judge Zabel lifted a stay of her previous ruling from July of 2014 which found Florida’s ban on same-sex marriage unconstitutional. The ban was a result of the 2008 Constitutional Amendment which defined marriage as a union between one man and one woman.

On January 6, 2015, a similar ruling was set to apply to the rest of the Sunshine State. The American Civil Liberties Union of Florida filed a federal lawsuit on behalf of multiple individuals challenging the 2008 Constitutional Amendment as unconstitutional. On August 21, 2014, the presiding U.S. District Judge Robert L. Hinkle entered his initial ruling declaring the ban as unconstitutional. In his opinion, Judge Hinkle writes

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CAPE CORAL, Fla. (Nov. 6, 2014) Caroline Zapiec has joined the attorneys at Martin Law Firm announced firm principal, Steven E. Martin.

Caroline’s practice focuses on personal injury litigation. She earned her Juris Doctorate degree with Cum Laude honors at the University of Florida Levin College of Law. During law school, she gained practical experience through an internship at the Intimate Partner Violence Assistance Clinic at Levin College of Law where she helped obtain injunctions for victims of domestic violence. She also interned at the Office of Technology Licensing for the University. Caroline’s experience includes private law practice in the criminal sector. During her last year of law school, she worked at a private criminal defense law firm in Gainesville.

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Shortly after her murder acquittal, Casey Anthony filed for Chapter 7 bankruptcy protection in the Middle District of Florida in January of 2013. According to her bankruptcy schedules, Anthony’s total amount of debt was close to $800,000; most of which were attorney fees. She listed that she was unemployed, and claimed about $1,000 of total assets.

In a normal Chapter 7 bankruptcy case, a trustee is appointed to administer the bankruptcy estate. Pursuant to section 541 of the Bankruptcy Code, the bankruptcy estate consists of all legal and equitable interests of the debtor in property at the time of the bankruptcy filing. State law then allows a debtor to exempt, or keep, a certain amount of property from the bankruptcy estate. In Chapter 7 bankruptcy the Debtor would then have a choice to either surrender his or her non-exempt assets, or to buy them back from the bankruptcy estate. Since Casey Anthony had very few assets, most of her property would have been exempt. She would eventually receive her discharge of her debt, while paying very little back to the bankruptcy trustee.

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