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As with most financial accounts, retirement accounts afford the participant (person contributing to the account/account holder) the opportunity to place beneficiaries on the account in the event the participant becomes deceased prior to extinguishing the funds in the account. A common question often in the mind of the participant is, “What will happen to my retirement account if I get divorced?” In Florida, the income of the husband and wife is considered to be marital property, as well as the benefits received therefrom. Funding a retirement account using funds from your income (paycheck or individual deposit) could designate all, or at least a portion of your retirement account as marital property. The problem with dividing up a retirement account as part of a divorce proceeding is that both the Employee Retirement Income Security Act (ERISA) and the IRS prohibit retirement plan participants from assigning their interests in their plan to anyone absent a Qualified Domestic Relations Order (QDRO).
QDRO is a court order that creates a right in the “alternate payee” (former spouse) to receive a portion of the benefits that would be payable to the participant (other former spouse) in accordance with that specific retirement plan’s rules. In reality the way this works is either by agreement between the parties or by order of the court, the alternate payee will be designated a portion of the other spouse’s retirement plan expressed either as a specific dollar amount or as a percentage of the marital portion of the account balance as of a valuation date. If the participant began contributing to the plan after the parties were married, the valuation date is usually the date of the filing of the petition for dissolution of marriage or any other date as agreed to by the parties or ordered by the court. If the participant was contributing to the plan before the parties were married then the valuation of the account is usually determined as the value of the plan on the valuation date minus the value of the plan on the date of marriage. After the dollar amount or percentage is determined and final judgment has been entered by the court a proposed QDRO will need to be drafted. The first step in drafting a QDRO is for the attorney or draftsperson to contact the Plan Administrator (PA) for a sample QDRO specific to your plan. Depending on the response time from the PA your order could be draft in a little as a day or two or in as much as two to three weeks. After the proposed QDRO has been drafted the attorney will then send the proposed QDRO to the PA for review. This process usually takes about 30 days. Upon receipt from the PA that the proposed QDRO complies with the plan rules it is sent to a Judge for signature to become a valid and binding court order. The attorney will send the signed QDRO back to the PA who will then begin administering the plan according to the order.
QDRO’s are very specific in nature to each retirement plan and may vary greatly depending on the outcome of each individual divorce. If you think you may be involved in a divorce and would like some more in depth information about how your retirement account could be affected please contact one of our outstanding attorneys here at The Orlando Law Group PL at 407-512-4394. Offices Waterford Lakes, Lake Nona and Dr. Phillips.
Your Business Plan: What is a Business Plan and Why Is It Important?
A business plan has two main purposes—to outline your business goals and to define the strategy for achieving them. Business plans are traditionally used when companies seek investors or commercial lenders. The business planning process will help your online business define a strategic blueprint for the operation and success of your company. A solid business plan will create your own unique identity and it will give you the confidence and documentation needed to get out there and pitch your idea, product or services to anyone. Basically if you have an idea for a product or service and hope to get potential investors, lenders, donors or business partners on board, a business plan is a requirement.
Declare the Controlling State Law
If you don’t declare the controlling state law, then anyone who sues you can determine the state law that applies. It is important to include somewhere in your online contracts or your website the controlling state of your business. If a plaintiff can show good reason for suing you from a particular state undeclared, that state’s laws will apply. This means that you could be ordered to court on the other side of the country. Chances are it could also mean that you will be more likely to lose based on the standards of the other state’s court. You may need legal help to create Online Terms and Conditions to declare the governing state.
Best Practices Suggest You Set Up a Separate Business Checking Account
In most states, including Florida, all business transactions are required to be made through a separate business account. This is extremely advisable and a benefit to your company if you want to receive the greatest number of business deduction possibilities, as well as maintain corporate protection. Remember, always keep your business finances and your personal finances separate. You don’t want to face expensive fees and penalties.
Privacy Policy and the Legal Disclaimers You May Need on Your Website
Many online businesses collect information in some way. If your intent is to grow your business by collecting information from your site’s visitors, you will need to protect yourself legally by establishing a Privacy Policy. This special policy sets forth what you will or will not do with information that you collect. Once you publish your exclusive Privacy Policy online, the requirement you will need to maintain is to “follow it”. Also and just as important, if you change your privacy policy you will need to notify the users. This protects you and will allow the users to accept the changes. Seeking legal advice is highly recommended in drafting your special Privacy Terms. There are Rules and regulations for conducting e-commerce that apply mainly to online retailers and other businesses who perform consumer transactions by collecting customer data. Important to remember, even if you do not sell anything online, laws covering digital rights and online advertising may still apply to you. The Federal Trade Commission (FTC) is the federal agency regulating e-commerce activities, including use of commercial emails, online advertising and consumer privacy.
Other Protections You May Need
There are many other topics you may need to explore in securing a safe Online Business Experience. At The Orlando Law Group, our diverse team of attorneys have a wide breadth of experience with roots that run deep in the community where we live, work and play. Our approach to serving clients is twofold. We believe in preventative action and proactive engagement to provide exceptional legal representation.
- Identity Theft – And as Business Owner Your Responsibilities
- Privacy Rules for Financial Companies
- Children’s Online Privacy
- Computer and Information Security
- Selling Internationally/Exporting
- Using Consumer Credit Reports
- Digital Rights and Copyright Laws
If an investigator finds that an employer is performing work that is outside the classification codes for which their policy covers, they can report it to the State. The Department of Financial Services has the power at that moment to issue a stop work order. In order to release the stop work order, the employer will have to pay at least $1000.00. At that point, the Department of Financial Services will require the employer to submit payroll records and they generally require records for the preceding two year period.
The Department of Financial Services calculates the premium that should have been paid based upon what they believe were the classifications that were not covered on the policy. The penalty can be two times the premium that should have been paid within the preceding two year period or $1000 whichever is greater. Once the Department assesses their penalty, you have only 21 days within which to appeal it.
So, the Department could investigate an employer by looking at their website. If the website lists services that are not being covered under the policy, then they can send an investigator to confirm the employer’s activities. Your website and Facebook page could also show pictures of events or activities performed by employees and may provide evidence of misrepresenting employee duties. Often times, employers hire marketing companies to manage their website and Facebook page. These companies may use stock photos or captions that could incorrectly indicate the employer is engaged in services or activities that they are not.
If your business is issued a stop order, it is best to contact an attorney immediately. An attorney is able to gather all the required payroll records and make sure only those that truly represent payroll are submitted to the Department. The time deadlines are strict and failure to meet them can cause the business to pay penalties in excess of what they actually owe. In addition, an attorney has the knowledge of the classifications codes and whether the codes being applied by the Department are accurate.
Unfortunately, most workers are not eligible to receive unemployment benefits while they are getting temporary disability benefits under workers’ compensation. Florida workers’ compensation law doesn’t allow injured workers to collect unemployment compensation while simultaneously collecting temporary disability or permanent total disability benefits.
The exception occurs when workers who have been injured and then released by their doctors to perform light duty work. These types of workers may also receive unemployment in addition to workers’ comp benefits. Although in this situation both types of compensation can be collected, the disability benefits will be subtracted from the amount due under workers’ compensation. As a result, it’s not much of a “win” because one’s benefits will be reduced for any period of time that unemployment is also being collected.
If a work injury has left an employee with a permanent injury or disability, that worker will need to file for Social Security Disability since he or she will not be able to work again. Workers who need time off work to rest and recoup from an injury may be able to collect unemployment and Temporary Partial Disability benefits.
In order to understand these benefits, it is important to define what these different types of benefits really are.. Workers’ Comp benefits are available to injured workers when their employer carries workers’ compensation coverage. Unemployment benefits provide workers with some money once they lose their job. Additionally, unemployment benefits can be collected if an injured worker tries to return to his job but his employer no longer has work available. In order to receive unemployment benefits in this situation, the worker needs to be physically able and available to work.
Because trying to collect both types of benefits can be complex and each of them has their own rules and guidelines, you might want to speak with an attorney to help you navigate the complexities of benefits’ laws.
Unfortunately, most workers are not eligible to receive unemployment benefits while they are getting temporary disability benefits under workers’ compensation. Florida workers’ compensation law doesn’t allow injured workers to collect unemployment compensation while simultaneously collecting temporary disability or permanent total disability benefits.
The exception occurs when workers who have been injured and then released by their doctors to perform light duty work. These types of workers may also receive unemployment in addition to workers’ comp benefits. Although in this situation both types of compensation can be collected, the disability benefits will be subtracted from the amount due under workers’ compensation. As a result, it’s not much of a “win” because one’s benefits will be reduced for any period of time that unemployment is also being collected.
If a work injury has left an employee with a permanent injury or disability, that worker will need to file for Social Security Disability since he or she will not be able to work again. Workers who need time off work to rest and recoup from an injury may be able to collect unemployment and Temporary Partial Disability benefits.
In order to understand these benefits, it is important to define what these different types of benefits really are.. Workers’ Comp benefits are available to injured workers when their employer carries workers’ compensation coverage. Unemployment benefits provide workers with some money once they lose their job. Additionally, unemployment benefits can be collected if an injured worker tries to return to his job but his employer no longer has work available. In order to receive unemployment benefits in this situation, the worker needs to be physically able and available to work.
Because trying to collect both types of benefits can be complex and each of them has their own rules and guidelines, you might want to speak with an attorney to help you navigate the complexities of benefits’ laws.
So, these cases sat pending for 540 days and 735 days respectively since oral argument. These two decisions have now turned back the clock on major provisions of the workers compensation law. In Castellanos, the Supreme Court declared the attorney provision of the statute unconstitutional. The statute had been changed in in 2003 such that an attorney representing an injured employee was strictly restrained to a formula fee based upon the value of the benefits secured. Prior to 2003, the statute allowed for a reasonable fee which would further allow for an attorney to receive their fee based upon the reasonable hours to secure the benefits. In coming to this ruling, the Court explained that the attorney’s fees in Florida Workers’ Compensation serve a dual purpose. First, the fees enable the injured worker who has not received benefits to obtain competent legal assistance. Secondly, the fees serve as a penalty to employers that are wrongfully denying benefits. As a result of the Castellanos decision, the attorney for the injured worker has the ability to show that a statutory or formula fee will result in an unreasonable fee and thereby assert a fee based upon the hourly basis.
The Court in Westphal declared the provision of the statute, 440.15 (2), as unconstitutional. This section limited the injured worker to 104 weeks of temporary total disability. The Court stated that this limitation deprived the injured worker of disability benefits under these circumstances for an indefinite amount of time which created a system of redress that no longer functioned as a reasonable alternative to tort litigation. Workers Compensation Insurance provides the Employer with immunity against a civil action. As such, the injured worker gives up the right to sue them in tort for exchange of workers compensation benefits. The Court found that the limitation to 104 weeks was no longer a reasonable exchange for giving up the rights.
To provide some history, Westphal involved a firefighter who had exhausted his 104 weeks of temporary benefits and sought Permanent Total Disability benefits. However, he still required additional surgeries and did not meet the pre-requisite for Permanent Disability Benefits because he had not reached Maximum Medical Improvement. Thus, he fell into a gap period between exhausting the temporary benefits and being able to pursue permanent benefits. The Supreme Court found this gap period violated access to courts and cut off their benefits at a critical time with no redress. In declaring it unconstitutional, the Court revived the 260 week limit on temporary total benefits that existed in the pre-1994 version of the statute.
WHAT EFFECT WILL THESE DECISIONS HAVE ON EMPLOYERS
As a result of the Castellanos decision, we have seen an immediate spike in attorney representation for injured worker’s claims and the filing of claims. Moreover, there were awards of attorney’s fee to claimant’s attorneys going back several years which had just been sitting out there. There was no way to push the fee issue and the claimant’s attorneys were waiting until this decision in order to pursue an hourly based fee. We are seeing the filing of Verified Petitions for Fees to resolve those old fee awards on an hourly basis. While the starting point still remains the formula fee, there is no doubt that we will see more litigation as claimant’s attorneys will have an incentive to take more depositions and engage in more litigation in order to provide evidence that the statutory fee would produce an unreasonable result. We will see their willingness to litigate smaller issues as there is an incentive to do so.
With Westphal, there is still some ambiguity as to the extent the limitation of 104 weeks applies. The Court’s decision rendered the statute unconstitutional only “as applied to Westphal and others similarly situated”. Thus, the ability to secure the additional weeks may be dependent upon how similar the injured worker is to Wesphal. In the pre-1994 statute, it provided 260 weeks for temporary total benefits and a separate 260 weeks for temporary partial benefits. As such, this decision could mean the injured worker is entitled to up to 260 weeks of temporary total and that includes the 104 weeks of temporary partial. Alternatively, the decision could mean the injured worker is entitled to up to 520 weeks of combined temporary total and temporary partial. Nonetheless, we can expect that there will be a push for injured workers to remain on a no work status for as long as a period of time as possible.
Because of Castellanos and Westphal, the exposure for claims has increased which means an increase in attorney representation and filing of claims. NCCI originally filed for a rate increase of 17.1% for workers compensation policies. However, they just filed on July 1, 2016 an amended rate and proposed 19.6% with an effective date of October 1, 2016. So it will now cost the employer more for policies and they will be faced with increased claim exposure.
WHAT CAN BE DONE TO MINIMIZE THE IMPACT
It is critical for Employers and their Insurance Carriers to thoroughly and accurately evaluate their claims at every stage in order to provide the appropriate benefits and negate those areas for potential fee entitlement. The medical experts selected to provide treatment will be critical to reigning in the claimant’s desire to remain out of work as long as possible. It will be necessary to make sure that the medical provider is applying objective criteria in determining work status and the placing of the worker at MMI. A knowledgeable attorney will be able to address issues and design an appropriate strategy to help Employers and their Insurance carriers through the process.
By Attorney Heather McLeod
