What Happens When Parents Shirk Their Florida Child Support Obligations?

Most people breathe a huge sigh of relief when a divorce proceeding is finally over. After all the heartache of the split and all the time arguing over financial arrangements and child custody, it feels good to finally be able to move on.

Unfortunately, this is often just a fleeting feeling. Even if their Florida divorce lawyers drafted iron-clad child support agreements, many custodial parents do not receive the full amount they are owed.

The most recent statistics from the U.S. Census Bureau show that only 46.8 percent of parents who are owed child support receive the full amount. Nearly 30 percent receive only partial payments and a staggering 23.7 percent receive no money at all.

Florida Child Support Enforcement Actions

So what are Florida parents to do when their ex-spouse refuses to pay child support?

Thankfully, Florida takes child support matters seriously and offers a number of options to help parents receive the money they are owed.

The Florida Department of Revenue’s Child Support Enforcement Program can take any of the following actions against non-custodial parents who do not meet their child support obligations:

  • Suspend the parent’s drivers license
  • Seize the parent’s tax refund or lottery winnings
  • Garnish the parent’s paycheck, or their unemployment or workers’ compensation benefits
  • Place a hold on or seize money from the parent’s bank account
  • Place liens on the parent’s personal property, including cars and boats
  • Report past due amounts to credit scoring agencies

The CESP, in conjunction with the state attorney general’s office, can also take the parent to court to demand payment.

If, despite these efforts, the non-custodial parent still refuses to pay child support, the CSEP can work with the court to have the parent arrested.

Some parents may also choose to hire a private attorney to pursue a child support enforcement action.

If your ex-spouse is not complying with the terms of your child support order, know that you have rights. Contact an experienced Florida family law attorney who can help you understand your options.

Keeping Your Car in Bankruptcy

For most people, having a car is essential. Anyone considering bankruptcy will naturally want to know what will happen to his or her car-or cars-as part of the bankruptcy process. The answer, like so many bankruptcy issues, is complex, and depends on the state in which the person files, and whether the he or she files under Chapter 7 or Chapter 13.

State Exemptions

Every state in the country allows an individual to keep certain items during bankruptcy. (These items are exempt from being used to pay creditors, and are thus called exemptions.) Each state has a list of exemptions for real estate, personal property, cars, et cetera. Florida offers a $1000 exemption for motor vehicles. If the car isn’t fully paid for, this value applies to the owner’s equity in the car. Therefore, if the car’s value (or the owner’s equity in the car) is less than $1,000, it is exempt from being sold to pay creditors.

Cars and Chapter 7

If someone still owes money on their car, he or she has three options: Redeem, reaffirm or surrender. Redemption is useful if the car is nearly paid off-the owner simply pays the balance due and owns the car free and clear. However, obviously, most people filing for bankruptcy do not have extra money lying around to do this.

The second option is to reaffirm the loan, in which the owner agrees to continue making payments on the car throughout the bankruptcy process. This is a great option if the owner is confident that he or she can continue to make the payments on time.

The third option is to surrender the car back to the creditor, who will then try to sell it. The owner’s existing debt is discharged, but the owner will now have to find a new way to get around town.

Cars and Chapter 13

Because Chapter 13 offers a plan for repayment of debt over time, its approach is different. If a car is newer than 910 days (roughly 2 and a half years), the owner must repay the full value of the car loan. However, if the car is older than that, the owner must pay only the car’s current market value. It’s a good idea to get more than one valuation of the car to ensure it is valued as inexpensively as possible.

An Attorney Can Help

If you are considering filing bankruptcy, deciding which form of bankruptcy is right for you can be a complex decision. It is well advised that you consult with an experienced bankruptcy attorney who can review your individual circumstances and recommend the best options for your situation.

Divorce Causes Financial Hardship for Baby Boomer Women

Research continues to speculate on the effect of divorce on children, but one thing is clear: if you choose to wait until your children are older to divorce, you may be making the worst financial decision of your life.
Divorce dramatically cuts assets and experts encourage couples to consider and properly plan for the financial consequences before finalizing divorce.

What Happens to Retirement Assets When Couples Divorce

The most common retirement assets to consider are the pension plan and individual retirement accounts (IRAs). A pension plan can be divided between spouses when the benefits are distributed. In order to ensure proper distribution, a qualified domestic relation order (QDRO) must be completed. This form allows payments to be made for the benefit of a former spouse.

This is allowed by the Department of Labor because pensions are often one of a couple’s most significant assets. As a result, the government states “whether and how to divide a participant’s interest” is an important consideration in divorce proceedings. Without a QDRO, a former spouse may lose these retirement benefits.

An IRA, as well as a 401k, does not require a QDRO to divide and can be reduced for estimated taxes. Whether the tax reduction is provided for initially or not, be sure to address it. If not, the holder of the IRA will be liable for any taxes automatically.

Why Women Face More Struggles

Woman face increased difficulties for many reasons, primarily because they are more likely to take time off to raise children. According to the Social Security Administration, the average woman takes almost 12 years off to take care of children. As a result, they have less invested in retirement accounts and have less earning potential.

Women also tend to live an average of five to seven years longer than men. As a result, a larger retirement plan is required to sustain the accustomed quality of life. If a woman is planning to retire at 65, she has to prepare financially for another 20 years of life expectancy.

These intricacies are difficult, and the wrong step during a divorce proceeding can have devastating effects on years to come. In order to ensure your rights are protected, it is important to seek the counsel of an experienced divorce lawyer.

Florida Fair Foreclosure Act Provides Relief to Foreclosure Delay

The foreclosure crisis is no stranger to Florida, where over one-fourth of the country’s foreclosures are located. Many homeowners are underwater in their mortgages and as a result, there many vacant and abandoned properties littered across the state. At issue is the length of time it takes lenders to initiate and complete foreclosure procedures, but that could all change with the passing of the Florida Fair Foreclosure Act.

The goal of the Florida Fair Foreclosure Act is to speed up the process of foreclosures for both the homeowners and the lenders themselves. A recent estimate shows that there are well over 300,000 foreclosure cases pending in Florida and that current foreclosure protocols may be part of the problem. The need for change in foreclosure procedures is evident by the numerous homes that stay vacant so long that they detract from the value of surrounding homes and encourage a criminal element.

One way in which the legislation proposes to change former foreclosure practice is by allowing any lien holder to initiate a foreclosure process, whereas previously only the lender could. Lenders are often slow to do so because many homes are worth less than their mortgage. The intent is to encourage lenders to conclude a foreclosure by the pressure of other parties.

In under the new law, lenders also must use a checklist to help determine when a home is truly vacant, in theory making a foreclosure easier. Yet another change will be a requirement to submit all necessary documents at the outset of a foreclosure as opposed to continually doing so during a proceeding, so the process is as efficient as possible.

The foreclosure system in Florida as it stands now is completely overwhelmed and this legislation aims to benefit all parties by providing relief and streamlining the process. There are several reasons why lenders and homeowners may take their time in completing the process, but the hope is that through change, the system itself will improve and home values will once again begin to rise as a result.

Consult an Attorney

If you are facing foreclosure, contact an experienced foreclosure defense attorney, even if you cannot make your mortgage payments. An attorney can advise you of the legal protections available to you and work to resolve the issue in your favor.

Can Tax Debt be Discharged in Bankruptcy?

Bankruptcy laws are designed to help people that are overwhelmed with debt and unable to pay off creditors. The ultimate goal is to provide the debtor with a fresh start. Many debts are dischargeable, but what happens when the creditor in question is the IRS?

Generally, the Internal Revenue Service is not treated as a typical creditor. As a result, taxes are often not dischargeable in bankruptcy. Some exceptions apply, and one example of potentially dischargeable debt is federal income tax debt. Whether it is dischargeable depends on how old it is, if the debtor filed the return and whether relief was granted under Chapter 7 or 13.

Essentially, a chapter 7 bankruptcy petition provides for a full discharge of allowable debts while a chapter 13 establishes a repayment plan. Under a Chapter 7 petition for relief, income taxes may be discharged. In order to apply, all the following criteria must be satisfied:

  • The debtor filed a legitimate tax return two years prior to filing for bankruptcy
  • The due date for filing the tax return must be at least three years old
  • The tax assessment is at least 240 days old
  • The debtor did not commit fraud
  • The debtor is not guilty of willful tax evasion

Under Chapter 13, debts fall into a repayment plan. However, according to the IRS if a debtor does not complete the repayment plan they may, in some cases, apply for discharge of income tax debt if they fulfill all the criteria listed above.

Other Options to Eliminate Tax Debt

If the tax debt in question does not qualify for relief through bankruptcy, other options may be available. Debtors can enter an agreement with the IRS to make installment payments, slowly paying off the tax debt in more manageable payments over a longer period of time. The debtor could also attempt to reach an agreement with the IRS by offering a compromise that will allow them to pay off a certain portion of the debt and have the IRS forgive the remaining balance.

Navigating through the rules on discharging tax debt is difficult. If you or a loved one is filing for bankruptcy, it is important to seek the counsel of an experienced bankruptcy lawyer to ensure all your legal rights are protected.

Florida Foreclosures Continue to Increase

In the last 12 months, home prices have increased in Miami, other Florida resort communities. Despite the improvement in house prices, Florida foreclosures continue to escalate at a rapid rate. Economists warn that the sudden upswing in home value is not a sign that Florida’s foreclosure crisis is over.

In fact, Florida’s distressed property inventory is estimated at 1.1 million. That number includes:

· 530,000 homes where the mortgages are 90 days delinquent and subject to foreclosure
· 200,000 Real Estate Owned (REO) properties that have been taken back by banks since 2007 and have not yet been sold
· 371,000 properties where the foreclosure proceedings are stalled due to the post-Robogate litigation currently before the Florida Supreme Court

Economists opine that the when the impending foreclosures and shorts sales occur, the housing prices will stop going up.

Supreme Court Litigation Has Not Stopped Banks from Foreclosing on Homes

The pending Florida Supreme Court litigation on foreclosure fraud has done little to slow down foreclosures. The case directly relates to the robo-signing scandal that revealed bank employees were engaging in improper practices by signing off on legal foreclosure documents without confirming the accuracy of the documents. A practice that is illegal. The Florida case, Roman Pino v. Bank of New York Mellon, is deciding whether or not banks that filed the fraudulent “robo-signed” documents can voluntarily dismiss those documents and restart the foreclosure process with new and accurate documents.

Despite the pending litigation, banks are still foreclosing on properties without the proper paperwork. Lenders are not waiting to see the outcome of the Supreme Court and are potentially fraudulently foreclosing on many Florida homeowners.

If you are facing foreclosure, talk to an experienced foreclosure defense attorney. An experienced attorney will be able to identify instances of lender violations in the foreclosure process. An attorney will also be able to explain bankruptcy options and whether or not filing for bankruptcy will stop the foreclosure.

Limited Liability Companies in Florida

Limited Liability Companies, or LLCs, can offer many benefits to an entrepreneur. The primary benefit for many business leaders is the protection offered by a LLC. A LLC is a form of business entity that acts as a type of shield, protecting the business owners from personal liability associated with the company.

Whether beginning a business or considering switching an existing partnership to a LLC, the following information can help you determine if a LLC is right for your company.

Some Pros and Cons of Forming an LLC

A LLC offers a balance of flexibility and limited personal liability that can serve well for many types of businesses. A LLC is not required to have annual meetings or a board of directors, requirements often present with corporations.

Business owners are also allowed to create flexibility within their operating agreements. If structured correctly, the LLC can offer this flexibility while still shielding owners and shareholders from personal liability.

An additional benefit to a LLC is the ability to choose which type of taxation works best for your particular business. Owners can choose between taxation as a sole proprietorship, partnership, S corporation or corporation.

Steps to Forming a LLC in Florida

When forming a LLC there are some basic steps to follow. The first step involves choosing a name. This may seem like an easy task, but in addition to the pressures of finding a creative and catchy title for the company, it is also important to make sure the name is not already in use by another business.

This can be done by checking a chosen name with a few sources, including:

  • Basic search engine search – simply type the chosen name into a favorite search engine and see what comes up
  • Basic search engine search – simply type the chosen name into a favorite search engine and see what comes up
  • State’s filing office
  • A search of the United States Patent and Trademark Office’s database

Taking the time to find a unique name will pay off in the long run. If a business name is chosen that is already in use, allegations of trademark infringement can negatively impact the business.

After deciding on a name, prepare and file articles of organization with Florida’s Department of State, Division of Corporations. These documents are fairly short but serve like a constitution for the business. Information within these documents often includes the company’s name, address, purpose, members, organizers and management structure.
Although not legally required by the state, it is recommended that a business next execute an operating agreement. This agreement can cover a broad range of content, including how meetings will be conducted, how the company will be managed and what capital contributions each member is required to make. As mentioned above, this document can play an integral role in the way a business functions.

Next, contact the county or city clerk’s office along with the local chamber of commerce to determine what, if any, local licenses are required to run the business. After this is completed, apply for an Employer Identification Number (EIN) from the IRS. This number is important for tax purposes, since businesses may be required to pay additional federal, state and local taxes.

Finally, it is a good idea to open a bank account for the business. This is an easy way to keep the business’s finances separated from personal accounts.

In addition, one year after the date of organization LLCs in Florida must file an annual report with the Division of Corporations. This report must be filed on an annual basis.

The Need for Professional Guidance

While forming a LLC can be as easy as downloading fill in the blank forms, taking this route can lead to headaches in the future. There are many federal and state legal requirements during the formation process that, if not done correctly, can lead to financial penalties or dissolution of the business. In order to avoid this and better ensure that the LLC is incorporated to meet the needs of the business, it is best to seek the counsel of an experienced corporate attorney.

The Florida Department of State can require dissolution of a LLC for various reasons. For example, Florida law requires that LLCs appoint and maintain an agent for service of process. This agent must file a written statement with the Florida Department of State. If this is not done promptly the Department of State may dissolve the business. The Department of State may also dissolve the business if it does not file the annual report on time.
In addition, because of the increased flexibility inherent to a LLC, it is important to carefully structure the operating agreement. If an operating agreement does not properly outline how the business will be governed, problems could arise in the future.

This is especially true if multiple members are involved. Each member is responsible to the LLC for any business decisions, but also has the right to control the business. This can lead to difficulties if all members are not clear about the goals and direction of the business.

It is also important to be aware of the significance tied to choosing the form of taxation best suited to the LLC. In some cases, if a LLC is incorporated improperly it can be required to pay federal taxes – something often avoided when structured properly.

Being aware of these and other requirements can help a business to avoid dissolution and penalties in the future. As a result, if considering forming a LLC it is wise to seek the counsel of an experienced Florida corporate attorney. This professional will not only help to ensure that the business complies with federal and state laws but also that your business interests are protected.

Your Protections Against Creditor Harassment—With or Without Bankruptcy

In these times of layoffs and slow economic growth, many people in Tampa and throughout Florida are having problems keeping up with their bills and financial obligations. Many Florida residents who get behind on their bills often have to face the unfortunate reality of dealing with debt collectors.

While some collection agencies follow the law when collecting debts, others can cross the line into harassment, making the experience needlessly unpleasant for those who owe money. Fortunately, there are legal protections against such behavior-both in and outside of bankruptcy.

The Automatic Stay of Bankruptcy

An individual who decides to file for bankruptcy immediately receives the protection of the automatic stay. The automatic stay protects creditors and debt collectors from continuing to collect the debts owed by the individual. This means that creditors and debt collectors are legally prohibited from calling (or otherwise contacting) the individual to collect any debts owed.

If a creditor or debt collector violates the stay and tries to collect the debt, they can face penalties. Under the bankruptcy code, an aggrieved individual can recover damages, including court costs and attorney’s fees for each violation of the stay. In extreme cases, the court may award punitive damages on top of all other damages.

Although the automatic stay offers powerful protections against creditor harassment, it does have some exceptions. For example, it does not prevent collection of certain debts that are not covered by bankruptcy such as child support or alimony payments.

Once the individual has completed bankruptcy and received a discharge of his or her debts, debt collectors cannot take any other action against the individual (i.e. phone calls or lawsuits) to recover the prior debts that were covered by the discharge.

Rights Outside of Bankruptcy

Individuals do not have to file bankruptcy to receive legal protection against creditor harassment. A federal law, the Fair Debt Collections Practices Act (FDCPA), gives individuals a powerful safeguard against harassment. This law sets the rules for communications between debt collectors and individuals and prohibits unfair, abusive or misleading debt collection tactics.

The FDCPA applies to the collection of personal and household debts, not business debts. The law offers protection against those who are “debt collectors,” which the law defines as anyone who regularly collects debts that are owed to others, such as lawyers, collection agencies or companies who buy old debts for collection.

The FDCPA prohibits debt collectors from engaging in the following practices:

  • Using obscene language or threats of violence when collecting a debt
  • Calling individuals an unreasonable number of times or during very early or late hours of the day
  • Threatening to imprison an individual if he or she does not pay the debt
  • Threatening a lawsuit or wage garnishment, unless they intend to do so
  • Making any other false statements to encourage repayment of the debt

The FDCPA allows wronged individuals to sue the debt collector for each violation of the act. Under the FDCPA, individuals may recover money damages that he or she suffered as a result of each violation plus the court costs and attorney’s fees incurred by bringing the lawsuit.

If an individual cannot prove that he or she suffered damages, recovery is still available. The FDCPA authorizes the judge to order the debt collector to pay the individual up to $1,000 for each violation.

An Attorney Can Help

If you are behind on your bills or are being harassed by creditors, you have several options. Contact an experienced consumer protection attorney who can advise you of your rights and debt relief options and recommend a sound strategy that will address your individual circumstances.