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01/10/2014
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New Divorce law on Payable on Death accounts

A new law in divorce or dissolution of marriage cases will impact the payments of transfer on death assets on many divorces moving forward. This new law which went effect on July 1, 2012 addresses what happens when an account or asset has a provision to pay a beneficiary upon the death of an individual. Usually we are talking about a bank account or retirement plan of some kind payable on death to the survivor.

Sometimes during the course of a marriage, a husband and wife will have accounts such as retirement accounts that are payable to the surviving spouse upon death. What could have happened under law prior to July 1, is if the beneficiary designation is not changed, then the surviving spouse could end up with the entire account. Imagine if you were ordered to pay half of the retirement but then died, it would all go to the survivor instead of just half.  Usually a divorced couple is more interested in providing for the children rather than the former spouse.

With this new law, the designation of a beneficiary providing for the payment or transfer at death of an interest in an asset is invalid under Florida law upon a divorce or dissolution of the marriage. Any designation made prior to the divorce or dissolution is void as of the time the decedent’s marriage was judicially dissolved. This law is meant to include life insurance, employee benefit accounts, individual retirement accounts or any payable-on-death account after divorce or dissolution. If your asset or instrument is governed by another State’s law, then of course Florida divorce law does not apply. This does not apply to jointly held assets with right of survivorship but only to payable on death accounts. Furthermore, the court or the parties can decide to limit the ability of the owner of an asset to dispose of it as part of the divorce decree. You must look at each asset separately when in a divorce to ensure proper distribution.

Now it is more important to have your agreements detailed and address every asset, making clear your intentions. Consultations in civil matters are free if you hire. To speak to an attorney about your assets in a divorce click, call or fill out the form today. We do charge a consultation fee in divorce cases.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Can an injunction be vacated, dismissed, dissolved, modified or removed once it is in place?

You can vacate, dismiss, dissolve, modify or change an order of protection against domestic violence, injunction or restraining order, sometimes also called a stay-away order. Once a domestic violence injunction is in place, the only way to remove it is through the court. Often people seek out a domestic violence divorce or family lawyer after it is too late and the court has already entered an injunction. If circumstances have changed, you can ask the court to change the order of protection against domestic violence.  To get relief from the injunction, a party must show that the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose.

To be entitled to a hearing to determine whether to dissolve an injunction, a person must show a change in the circumstances and file a motion to vacate, dissolve or modify the injunction or otherwise get rid of the injunction. This is true whether the injunction was sought in addition to a divorce or arrest for criminal offense of domestic battery. The injunction can only be removed, or changed by the Judge. If there is an open criminal case of domestic battery whether felony or misdemeanor, then a person may have to apply for a change of the conditions of pre-trial release as well.

Recently an Alachua County judge handling domestic violence injunctions summarily denied a motion without a hearing and was appealed. The respondent to the restraining order appealed the order summarily denying his motion to dissolve a domestic violence injunction in favor of his former wife. The motion alleged that circumstances between the parties have changed since the injunction was entered. Specifically, he alleged that the parties have interacted without violence for several years, that he now lives far away, and that the parties’ only interaction relates to time-sharing exchanges of their child.

The First District Court of Appeal held that in light of these allegations, the trial court erred in summarily denying the motion to dissolve the injunction. A domestic violence injunction may be modified based on changed circumstances and a showing that the scenario underlying the injunction no longer exists so that continuation of the injunction would serve no valid purpose. The appeals court reversed the order denying the motion and required the court to have an evidentiary hearing.

The result of this for people with injunctions in place against them is if a change in circumstances can be shown, the court must set a hearing wherein you will be allowed to present evidence to try and vacate or dismiss the injunction. Please click, call or fill out the form to learn more about how we can help.

Gainesville (352) 371-9141

Ocala (352) 694-4529