Senate Bill 718 and House Bill 0231 propose major changes in Florida’s alimony laws.

These bills revise the factors to be used to determine the amount and length of alimony awards. They place the burden on the recipient to show entitlement and eliminate the concept of permanent periodic alimony as it exists. Below is a summary of some of the major changes proposed in SB 718:

1. The standard of living the parties enjoyed during the marriage would no longer be a factor in determining the amount of alimony. It would be replaced by an analysis of the new standard of living the parties would have after the divorce and recognizes that each would have a lower standard of living than when they lived together.

2. Not all sources of income would be considered for an alimony award, only those that are marital or that were relied on during the marriage. This means that under the proposed legislation, if an obligor had an inheritance that was not used by the parties during the marriage, those funds could not be used to determine the obligor’s ability to pay.

3. A long term marriage is redefined from a marriage of at least 17 years to a marriage of at least 20 years. There is a rebuttable presumption in favor of alimony in a long term marriage, but the obligor has the opportunity to show by clear and convincing evidence that the obligee has no need for alimony. An alimony award as a result of a long term marriage is not to exceed 33% on the obligor’s net income.

4. A mid-term marriage is redefined from between 7 and 17 years to more than 10 but less than 20 years. There is no presumption in favor of alimony for a mid-term marriage. The obligee must prove by a preponderance of the evidence both need and the obligor’s ability to pay. If this burden is met, the award may not exceed 30% of the obligor’s net income and may not last more than half of the length of the marriage, unless there is clear and convincing evidence of exceptional circumstances.

5. A short term marriage is redefined from less than 7 years to 10 years or less. Under the proposed legislation, there would be a rebuttable presumption against alimony for a short term marriage and the alimony amount may not exceed 20% of the obligor’s net income.

6. The duration of alimony awards may be extended if the obligor can prove by clear and convincing evidence a continued need and the court determines the obligor has the continuing ability to pay.

7. The Court must find that other types of alimony, such as bridge the gap or rehabilitative are not appropriate before awarding durational alimony.

8. Alimony would automatically terminate or be reduced when the obligor reaches the normal retirement age for social security, unless the oblige can prove by clear and convincing evidence that the need for alimony at the established level continues to exist and the obligor’s ability to pay has not been diminished.

9. Alimony may not be awarded to a party who has a monthly net income equal to or greater than the other party. Except in long term marriages. the court would impute income to the recipient as follows:
90% of net prior income if unemployed for less than 1 year
80% of net prior income if unemployed for between 1 and 2 years
70% of net prior income if unemployed for between 2 and 3 years
60% of net prior income if unemployed for between 3 and 4 years
50% of net prior income if unemployed for between 4 and 5 years
40% of net prior income if unemployed for 5 years or the monthly net income of a minimum wage earner whichever is greater. Unless the recipient can show the actual inability to earn the imputed amount.

10. The termination or modification of child support would not be sufficient grounds to increase an alimony award.

11. An upward modification of alimony requires proof by clear and convincing evidence. :

12. Life insurance will be required to secure an alimony award only if court finds it is warranted by special circumstances.

13. The court may award attorneys fees if an oblige unnecessarily or unreasonably litigates a petition for modification of alimony.

14. The proceedings may not be bifurcated during the first 180 days after the petition for dissolution is filed, unless there are written findings of exceptional circumstances and that granting a final judgment of dissolution while reserving jurisdiction on other substantive issues will not cause irreparable harm to the parties or the children. The proceedings may be bifurcated after 180 days only if the court enters temporary orders to protect the parties and the children. After 365 days, the court will enter a final judgment of dissolution unless the parties can show it would cause irreparable harm to do so.

15. The proposed legislation would be retroactive and would apply to all modifiable awards and agreements if the agreement is 25% or more in duration or amount than provided for in the new legislation. Modification petitions would be allowed gradually as follows:

For alimony awards or modified awards entered prior to July 1, 2013:

If the obligor has been married 8 or ore years, the obligor can petition for modification under the proposed legislation after July 1, 2013
If the obligor has been married between 8 and 15 years he or she can petition for modification after July1, 2014
If the obligor agreed to pay alimony for less than 10 years, he or she may petition for modification after July 1, 2015

For agreements or modifications of agreements entered into before July 1, 2013:

If the obligor agreed to permanent alimony, he or she can petition for modification after July 1, 2013.
If the obligor agreed to durational alimony of 10 years or more, he or she can petition for modification after July 1, 2014.
If the obligor agreed to durational alimony of between 5 and 10 years, he or she can petition for modification after July 1, 2015

Thus, in the first year after the effective date of the proposed legislation, obligors would have the right to go back and challenge almost all awards of permanent alimony. This is one of the reasons the family law section of the Florida Bar has come out against this proposed legislation.

This is the second year in a row there has been legislation proposed to significantly reduce the circumstances where alimony is required to be paid. This is important legislation since it could impact all individuals who receive or pay alimony.

Effective July 1, 2012, you are not considered the beneficiary of your ex spouse’s life insurance policy even if you are named as the beneficiary, UNLESS your ex spouse reaffirms you as the beneficiary after the divorce decree has been entered.

This change in the law is extremely critical since it is to be applied retroactively. So, if you are divorced and your divorce decree provides that you are to be the beneficiary of a life insurance policy to secure child support or spousal support payments, you MUST get your ex spouse to reaffirm with the insurance carrier that you are to continue to be the beneficiary. Unless this happens, the life insurance company does not have to recognize you as the beneficiary. It doesn’t matter when you got divorced.

The new law also states that you have NO legal recourse against the life insurance company if it pays the wrong beneficiary. Therefore, even if your ex reaffirms you as the beneficiary and the life insurance company pays a different beneficiary instead of you, you will NOT win a lawsuit against the company for paying the wrong beneficiary.

This means that everyone who is the beneficiary of a life insurance policy to secure child support or alimony payments MUST get their ex spouse to reaffirm them as the beneficiary of that policy. It also means that if your ex dies, you should immediately make a demand for the proceeds of the life insurance policy and keep on top of the company to make sure it doesn’t wrongfully pay someone else.


Also, if you are currently going through a divorce and your spouse has agreed to take out a life insurance policy with you as the beneficiary, your divorce agreement should contain a provision requiring your spouse to reaffirm you as the beneficiary within a certain amount of time after entry of the final judgment of divorce.
Life insurance proceeds provide the source of support for many people after an ex spouse dies. And this law could affect many lives. If you are divorced and your ex spouse is supposed to maintain a life insurance policy for your benefit, BE SURE to require a reaffirmation be sent to the life insurance company, reaffirming you as the beneficiary. Failure to do so could result in a substantial loss of funds!

Sherri K. DeWitt
DeWitt law Firm, P.A.
March 2012

Distressed homeowners now have additional programs to help them deal with their mortgage or foreclosure problems. Below are some examples of the help available:


1. There is now additional governmental assistance for those homeowners who are unemployed and are having trouble making their mortgage payment.
The Obama administration has expanded assistance to unemployed homeowner by requiring that mortgage servicers for FHA insured loans allow some (qualified) unemployed homeowners to miss up to a year of mortgage payments while they search for a job. The current hiatus period is four months. This program extends that to a year since approximately 60% of the unemployed are still unemployed at the end of 3 months. Missed payments would either be tacked onto the end of the mortgage or in some instances forgiven altogether.

But this program only applies to government insured loans.

2. HAMP 2 may allow some homeowners to refinance up to 125% of their home value
Under modifications to this program it applies to FHA insured properties, includes rental properties and can be used for more than one property. Perfect credit is not required and in some instances great credit can be a hindrance to qualification. If you are current on your mortgage, owe less than 125% of the value of your home and want to lower your interest rate, check with a mortgage broker to see if you qualify for HAMP 2 refinancing.

3. You may be entitled to relief under the February 2012 Foreclosure Settlement
If you do NOT have a Fannie Mae or Freddie Mac mortgage and your lender is Wells Fargo, Bank of America, JP Morgan chase, Ally Financial or City Group, then you may be eligible for relief under the settlement reached Feb 2012 by the State Attorneys General of 49 states, including Florida. You may be eligible for a principle reduction if you are behind in your payments and are underwater, for an interest rate of 5.25% if you are current but underwater and for a cash payment of up to $2,000 if you lost you home to foreclosure between January 1, 2008 and December 31, 1012.

Sherri K. DeWitt
DeWitt Law Firm, P.A.
March 2012

Some of the Bills that Passed: (Must be signed into law by Governor Scott before they become law)

• Septic Tank Inspection: The legislature repealed a 2010 law requiring inspection of septic tanks every 5 yrs.
• Budget: The legislature passed a $70 billion budget with no new taxes, giving $1billion more for public schools, providing for 5000 fewer state jobs ( half in Dept. of Corrections) ; Reducing State Medicaid payments to Hospitals and nursing homes by $350 million, Cutting $300 million from state universities; Cutting county clerks budget by $31 million ( 7%).
• Personal Injury reform: HB 119 Effective October 1, 2012 Auto accident fraud , passes by a 21-19 senate vote
  Retains $10,000 minimum coverage, lost wages and funeral benefit
  Changes to No fault Motor Vehicle Insurance Law
  A. Bases coverage of severity of injury according to medical professional assessment in hospital emergency department or going to specified providers within 14 days. Does NOT cap attorneys fees in individual disputes
  B. 30 day delay in payment if fraud suspected
  C. Must submit to examination under oath or presumption of fraud
  D. Treatment by Chiropractors covered only upon referral
• Caylee’s Bill: Increases maximum punishment for lying to a police officer about a missing child from one year to five years in prison.
• School Prayer: Allows school boards to permit student led prayer in public schools
• Vouchers: Raises tax Credit cap, allows children from low income families to receive scholarships to private schools SB 962, HB 859
• Annual back to School tax Holiday
• Lakeland Polytechnic is 12th university in FL, split from USF (allocated $39 million from budget)
• Allows Universities to increase tuition SB 1752 HB 7129
• Timeshares: Increases penalties for fraud in timeshare sales
• Random drug Testing: Allows State agencies to randomly drug test up to 10% of workforce every 3 months SB 1358 HB 1205Flashing Lights; Allows motorists to flash headlights to oncoming drivers HB 1223
• Highway Safety: Shortens time from 30 to 14 days to provide proof of insurance after accident or other events SB 1122 HB 1223
• Human trafficking: increases penalties for human smugglers and those who traffic in minors and puts them on sexual predator’s list
• Anti-Shackling: SB 524 Prohibits restraints on pregnant prisoners during labor and after delivery except in rare cases
• Task force to investigate the effect of abuse on prescription drugs on newborns
• Transition emails: Requires Governor elect and 4 other top state officials to save emails during their transition to power
• Testing of Autonomous automobiles on state roads. (sought by Google which is developing driverless cars )
• Constitutional amendment to allow counties and cities to reduce property taxes for poor seniors
• Constitutional Amendment to eliminate property taxes for spouses of veterans of first responders killed in the line of duty ( Fallen Heros Bill)_ SJR 1056 HJR 93

Tax Relief Bills for Businesses:

• 1. Unemployment Compensation System renamed “Re employment Assistance”, $800 million in tax relief to businesses by lowering the unemployment tax rate businesses pay into the system SB 1416 HB 7027
• 2. Removes some continuing education requirements and decriminalizes violation of agency rues for barbers, auctioneers, and other state regulated professionals
• 3. $1.5 billion tax credit to insurance companies that provide financing for Hurricane Catastrophe Fund
• 4. Tax incentives for investment in renewable energy development
• 5. Exempts the first 50,000 dollars of a company’s profits from the state’s corporate income tax.

Some Bills that Failed to Pass this Session:

• Alimony changes
• Florida Fair Foreclosure Act SB 1890 HB 213
• On Line Notices of foreclosure instead of publication
• Employee tips: proposed reduction in minimum wage for tip earners
• E Verify: required every employer to use e verify to prove workers not illegal immigrants
• Driving and Texting; punishable as a secondary offense
• Destination Resort Casinos: Plan to bring 2 $3billion resort casinos to S. Florida
• Internet Cafés: slot machine look a likes. House passed to ban, Senate to regulate
• Public Meetings: Public reasonable opportunity to speak at public meetings
• Parent Trigger: Parents at low performing schools could demand change to charter (tie vote so bill failed)
• Abortion bill: 24 hr. waiting period, clinics owned only by Drs., ethic training for Drs.
• Super homestead: constitutional amendment for up to additional $600 million in property tax exemptions.
• Property insurance: shift thousands of customers from state Citizen’s to unregulated co
• Shrink FL’s insurance safety net fund that helps keep premiums down
• Prohibiting Judge’s from using foreign law in divorce and family law disputes

Sherri K. DeWitt
DeWitt law Firm, P.A.
March 10, 2012

I. The Florida Supreme Court Rejects Senate’s Redistricting Map, and Confirms House Map by 5-2 vote.

In a 234-page ruling written by Justice Pariente, the Florida Supreme Court ruled that the Senate Redistricting map was unconstitutional, but that the House map met the c0nstitutional requirements. (Justices Canady and Polston dissented as to the senate map)

A 2010 Constitutional Amendment requires that Apportionment or redistricting meet certain criteria. For examples, districts must not be drawn to intentionally favor incumbents, should be compact, and should not damage minority participation. These New Standards passed by 63% of the Voters in 2010, requiring the Legislature to redraw districts to comply with these requirements.

To determine whether the Senatorial district maps complied with these requirements, the Florida Supreme The Court reviewed voter registrations, elections, and incumbent addresses and found that the motive to protect minority voting rights did not justify such odd boundaries and that these odd boundaries were designed to protect incumbents.

The Court determined that the Senate had an improper intent to favor incumbents, finding that the Senate map was rife with indications of improper intent, which cumulatively indicate a pattern.

The Court found that over-populated districts were comparatively overrepresented in the way the districts were drawn and individuals in Republican performing districts were overrepresented in comparison to individuals in Democratic performing districts.

It also found that 16 senators who are eligible for 8 yrs.in office now would be eligible for 10yrs., 3 incumbents eligible for 9, would be eligible for 11, and that none would be limited to 8 yrs.

The individual Districts the Court evaluated and found to be unconstitutional included:

District 10: The Court found that District 10 was designed to favor Republican Senator Andy Gardiner of Orlando because: it is not compact; it has a bizarre shape which cannot be justified to insure minority voting strength; and has an appendage that reaches out to encompass the incumbent’s strong voting area. The Court also rejected Senate Districts 29, 30, 34 and others.

In total the Court ruled that 8 of the Senate’s 40 redrawn districts violated the new Fair Districts standards.

The Florida Supreme Court unanimously approved the 120 house districts

To address this situation, Governor Scott has called lawmakers into a 15-day “Extraordinary” Session, beginning this Wednesday, March 14, 2012.

II. Leon County Circuit Court Judge Finds Unconstitutional the 2011 Law requiring Members of the State Retirement System to Contribute 3% of their Salaries to the Pension Fund

The Leon County Circuit Judge found this requirement unconstitutional because it breaches the contract with the current employees; it is a taking of property without full compensation and abridges the employee’s collective bargaining rights. The court also found that lowering the cost of living adjustments retirees received is unconstitutional

This ruling only applies to government workers who were members of the Florida retirement fund before July 2011 such as employees of the State, school district, public universities, counties, and community colleges, This ruling potentially affects 5f60,000 people.

The Court ruled that the moneys must be paid back to those who made these unconstitutional contributions.

This decision is headed for appeal to the First District Court of Appeal and then probably to Florida Supreme Court

The State of Florida has already spent $500,000 in fees to defend this requirement and is looking at spending at least $300,000 more to appeal to this decision to the First District Court of Appeal in Tallahassee.

Sherri K. DeWitt
DeWitt Law Firm, P.A.
March 10, 2012

Some Florida lawmakers want to make it easier for banks to foreclose on homes. Orlando attorney Sherri DeWitt discusses a bill being pushed at the state capital and the possible impact it could have on Orlando citizens facing foreclosure.

1. An individual can no longer make a “springing” power of attorney. A springing power of attorney is a power of attorney that becomes effective in the event of disability or some future event such as incapacity. There is an exception for certain military powers of attorney that become effective upon active enrollment in the military. Springing powers of attorney have routinely been used in Florida, for examples between husbands and wives. In the event a husband or wife became incapacitated, then the power of attorney would “spring “ into effect to allow the other to act on his or her spouse’s behalf. These kinds of powers of attorney are no longer valid in Florida.

2. If more than one agent is named, then one agent can now act unilaterally, absent explicit written language otherwise. Under the old act, the presumption was that all of the agents who had the power of attorney needed to consent to an action before it could be taken.

3. Banks now can require a written opinion that a power of attorney is valid. The new act gives the bank four business days to review powers of attorney to see if they will accept them. This is troubling for snowbirds or for those just moving to Florida. If you fall into these categories, it is wise to let the Bank review the power of attorney BEFORE any anticipated use.

4. The grantor or giver of a power of attorney must now specifically sign or initial any provision that allows for “superpowers.” Superpowers are those powers that allow the person appointed in the power of attorney to make changes to the grantor’s estate planning documents, i.e. to revoke trust, change beneficiaries on retirement accounts or annuities or life insurance policies, or to waive spousal benefits.

Unless the power of attorney provides otherwise, any power of attorney is entitled to reimbursement for expenses reasonably incurred on behalf of the principal. Only qualified agents, however, are entitled to compensation. Compensation must be reasonable under the circumstances. Qualified agents include: the spouse or heir of the principal, a financial institution with trust powers and a place of business in Florida, an attorney or accountant licensed in Florida, or a natural person who is a Florida resident and has never been an agent for more than three principals at the same time.

The intent of these changes in Florida’s power of attorney act is to make Florida’s act more similar to the Uniform Power of Attorney Act, with certain modifications.

These changes to Florida’s Power of Attorney Act are not retroactive, so Florida powers of attorney drafted before October 1, 2011 are still valid if they comply with the Florida law that existed when they were executed, with certain exceptions.

Out-of-state powers of attorney are still valid if drafted and executed in accordance with the laws of the State where they were signed.

If you have any doubt whether your power of attorney is valid, give it to your bank for immediately review or contact your attorney. Even if it is valid, your life situation may have changed so that a revision to your power of attorney might be prudent.

Most child support payors are offended and embarrassed to learn that their wages will be garnished. Then insult is added to injury when they are required to pay fees to the state and possibly their employer for the garnishment. Likewise, the child support payee is often upset to learn that the money will not be paid directly. They are often counting on that first payment, and that money is now caught up in a process that is causing delay.

As genuine as those concerns are, the benefits of the Florida State Disbursement Unit make it a blessing. This system allows all child support payments to be tracked and accounted for. No longer does the payor have to worry that the payee will claim that they did not receive the money. Similarly, the payee does not have to worry about how they will show that they did not get money that the payor did not send. The state’s neutral accounting of these payments are recorded by the court’s clerk, and either party can get a reliable accounting. The small fees and short delay in the payment are small concerns in comparison to the lengthy, uncertain, and expensive legal battles that would occur if a reliable accounting of the payments did not exist.

If you are paying or receiving child support payments or alimony through the Florida State Disbursement Unit you should embrace the system that may save you from future litigation. The system has been refined and improved over the years, and now child support payments can even be made online at My County Florida. That same webpage can show you your payment history and detail your account. Plus the system now offers payment methods that are more convenient than direct payment.

Take it from someone who has seen payments made with the system and without the system, we are all better off with it in place.

Quiet title actions can be used in a number of different situations. For example, they are often used after a party purchases real property at a tax deed sale. The purpose here is to forever bar prior owners, mortgage and lien holders from asserting any interest in the real property. A successful quiet title action will allow a title insurance company to write a policy insuring title to the property purchased, provided that all parties are named in the action and that it is properly pursued.

Alternatively, if a purchaser at a tax deed sale holds an interest in the property purchased and pays taxes and maintains the property for four years, then it is possible to avoid having to file a quiet title action. However, it may be difficult to sell the property within four years without filing a quiet title action.

In certain instances, a quiet title action may not eliminate all liens. For example, in Florida there is currently a controversy as to whether unpaid condominium and HOA assessments survive a tax deed sale when no claim of lien has been filed. The Associations have argued that the current owner is jointly and severally liable with the prior owner. However, chapter 197, which governs tax deed sales, provides that only governmental liens survive a tax deed sale. If it was determined that a lien or encumbrance survived a tax deed sale, it would not be wiped out by filing a quiet title action.

Quiet title actions can also be used to resolve ownership disputes where there is a break in the “chain of title” or it is unclear who owns the property. This lack of clarity could result from errors made in recording or executing deeds or from what we call “wild” deeds which are deeds executed outside of the chain of title.

In short, quiet title actions help to clarify title issues involving real property. All parties who might claim an interest in the real property are notified of the lawsuit and given a chance to assert their interest in the real property. If nobody comes forward, then the court can issue a judgment quieting title in the Plaintiff’s favor. This is the ultimate goal of the quiet title action. However, if someone does come forward, then the court must determine the interests of the parties in the real property and enter a judgment accordingly.

When proceeding with a Quiet Title Action, it is important to remember that the title is not clear until:
• Superior liens are satisfied,
• The quiet title action is complete and the court has ruled in your favor, and
• The underwriter is satisfied that all parties were named in the quiet title action.