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Is your Small Claims case any good? Advice from a Small claims attorney.
by St. Petersburg/Florida Family Law Attorney on 05/28/16Pro se litigants may be told that because you are in small claims court, you don't need to have any legal knowledge or understanding about how legal claims work. You may be led to believe that all you will need to be able to do is:
- briefly state the nature of your dispute
- organize any evidence and witnesses you think will help back up your version of events
- come to court on time
- be polite, and
- let the judge decide if your case is any good.
At a very basic level, this is decent advice--you expend little effort or thought and rely on the judge to do the heavy lifting. However, the problem with this approach is that the judge will not decide your case based on what seems morally "right" (although it never hurts to seize the high moral ground) or on whose presentation and witnesses are move convincing. Instead, the judge must apply exactly the same legal rules to your case as would be followed if your dispute was heard in a formal court.
Remember, "unfair: doesn't automatically mean "illegal." Unfortunately, the mere fact that you have suffered a trauma at the hands of another person does not automatically entitle you to a legal judgment. The law must support your contention that you were harmed by the illegal actions of another.
Here are some things you should keep in mind:
- If you don't understand the legal rules the judge will apply to decide your case, you may waste time and energy pursuing an obvious loser
- If you don't understand the legal realities that underlie your case, you may prepare irrelevant arguments. In a worst-case scenario, you may not even understand--and therefore fail to fulfill--the key legal requirements necessary to have a judgment entered in your favor.
- If you win and especially if you lose, you won't know why.
If none of this sounds good to you, perhaps you are open to considering a more informed approach. This consists of taking the time to understand the basic legal, as well as moral issues that underlie your case. Or put another way, it means looking at your case in the same way a judge will ultimately view it.
Note, that defendants need the same legal knowledge as plaintiffs. To defend a case well, a defendant needs to understand the essential legal elements of the case the plaintiff is attempting to prove. Once armed with this information, the defendant will be in good shape to try to convince a judge that at least one essential legal requirement is missing.
Many small claims courts limit the types of cases they will decide in addition to restricting the dollar amount of damages you can claim. Florida's limit is $5,000 or less. If you are uncertain, as your small claims court clerk or review your small claims court's rules to make sure your type of case can be heard. In the next blog, we will go over the most common legal theories and what you need to prove to establish each one. As an attorney in St. Petersburg, FL, I have been successful in defending small claims matters. Please feel free to contact me for a free consultation if you are looking to recover monetary damages, or looking to defend a lawsuit.
Advice from a St. Petersburg Family Law Attorney
by St. Petersburg/Florida Family Law Attorney on 05/17/16
Good Outcomes for Children After Dissolution of Their Parents' Marriage
As a St. Petersburg Family Law attorney, it is imperative that you help foster a relationship between both parents/litigants. Research conducted at the California Center for the Family in Transition shows three factors associated with good outcomes for the child after dissolution of their parents' marriage:
- A close, sensitive working relationship with a psychologically intact conscientious primary residential parent.
- The diminution of conflict and reasonable cooperation between the parents.
- Whether the child came to the dissolution with pre-existing psychological difficulties.
Furthermore, your family law lawyer should:
- Educate you as the parent as to the purpose of the legal system and Florida law as it relates to parental responsibility and child issues.
- Improve the psychological health of the parent.
- Promote early completion of the emotional stages of dissolution of marriage which interfere with the ability to conscientiously parent.
- Improve the communication between the parents through use of communication plans.
- Eliminate or minimize conflict.
- Promote a parenting plan which focuses on the future cooperation between the parents.
- Focus the parents on the best interests of the child, to deal with the child's needs and difficulties.
As your St. Petersburg Family law attorney, I promise you that I will advise you of all of your options. It is commonplace that parents tend to fight and argue over their child(ren), often forgetting that the child's best interest is what is most important. Please feel free to contact your St. Petersburg Family Law lawyer for a free, no-obligation consultation to see if I can help. Oftentimes, a good Family Law attorney can be the difference between a bad outcome in your case and a good outcome.
Florida Landlord shoots tenant in South Florida over $550. Why you should hire an eviction attorney.
by St. Petersburg/Florida Family Law Attorney on 05/02/16
Why you should hire an eviction attorney
As an attorney that practices Landlord/Tenant law, as well as eviction law, this story is upsetting, not only because someone lost their life, but because this problem could have been rectified by using the resources of their local court. To sum up as quickly as possible, police stated that late Saturday (April 16th), there was an argument between the tenant and landlord regarding $550 the landlord was to collect for back rent. After the two men argued, the tenant closed and locked his sliding glass door to prevent the landlord from entering. The landlord then proceeded to walk over to his abode, obtain his weapon and discharge it towards the tenant's residency, essentially shattering the glass. Once the landlord entered the tenant's occupancy, an argument ensued and the tenant was then fatally shot in the head. The landlord was charged with first degree murder.A simple 3 day notice to pay, followed by an eviction would have sufficed in this situation. Please, do not take the law into your own hands. If you are a landlord who is owed money, as a result of your tenant not paying on time, hire an attorney to begin the eviction process. It is not worth it to potentially put yourself in harms way, when there are laws in place to assist landlords in these types of situations. An eviction attorney may have saved this tenant's life. As your eviction attorney, we typically charge less than the statewide average for uncontested evictions.
Landlord's Claim on Security Deposit
by St. Petersburg/Florida Family Law Attorney on 05/01/16As an attorney in the State of Florida that practices in the area of Landlord-Tenant Law, one concern that comes up very often from a tenants' perspective, is a landlord's claim on their security deposit. Below, I will explain the law surrounding the return of a tenant's security deposit by their landlord.
Once the premises are vacated upon termination of a lease, if the landlord does not intend to make any claim on the security deposit, the landlord has 15 days to return the deposit (with interest, if required) (F.S. 83.49(3)). If the landlord does intend to make a claim on the security deposit, the landlord has 30 days to give the tenant written notice of the landlord's intent and reason for imposing the claim. The notice must be given by certified mail to the tenant's last known address and must be substantially in the following form:
This is a notice of my intention to impose a claim for damages in the amount of upon your security deposit, due to ____________ . It is sent to you as required by s. 83.49(3), Florida Statutes. You are hereby notified that you must object in writing to this deduction from your security deposit within 15 days from the time you receive this notice or I will be authorized to deduct my claim from your security deposit. Your objection must be sent to (landlord’s address) .
VERY IMPORTANT: If the landlord fails to give the required notice within the 30 day period, the landlord forfeits any right to impose a claim on the security deposit.
Unless the tenant objects to the imposition of the landlord's claim on the security deposit within 15 days after receipt of the landlord's notice, the landlord may then deduct the amount of the claim and remit the balance of the deposit to the tenant within 30 days after the date of the notice of intention to impose a claim.
If it is necessary for either the landlord or tenant to file a lawsuit to determine their right to the security deposit, the winning party is entitled to receive court costs, plus reasonable attorney's fees.
As a landlord-tenant attorney in St. Petersburg, Florida, I can help you if you are a tenant looking to collect your security deposit, or a landlord looking to make a claim on a tenant's security deposit. We offer free consultations, in-office, over the phone or in person. Please feel free to contact us to see if we can help!
UPDATE!!!! RE: BILL SB 668 Family Law Legislature
by St. Petersburg/Florida Family Law Attorney on 04/18/16Family Law Update!!!
Last Friday, Governor Rick Scott had vetoed what was known to be one of the most contentious bill from the 2016 Legislature. Essentially, SB 668 to recap, would eliminate permanent alimony, whereby a formula would be utilized to determine how much the receiving party is awarded. Additionally, and according to multiple resources, another important provision, of the proposed revision, would require judges to begin divorce proceedings with a premise that both mother and father, husband and wife are entitled to approximately equal time with their children. Rick Scott's main gripe was that he felt that with the revised law, it would put the wants of a parent before the child's best interest by creating a premise of equal time-sharing. This Family Law bill had no problem receiving support in the Legislature, as it passed the House by a 74-38 margin and the Senate by a 24-14 vote in March.
As a Family Law attorney, it is important that you are aware of changes in legislature, albeit proposed changes. We are up on the law on a consistent basis, and as such, we are able to render the most competent advice, despite the legal issue(s) that arise. If you feel that you may be in need of legal assistance, regarding your divorce, or any Family Law matter, please do not hesitate to reach out to us to see if we can help.
What to look for in a Family Law attorney?
by St. Petersburg/Florida Family Law Attorney on 04/08/16Whether you're dealing with a divorce, paternity issue, modification of child support issue, etc., it can be a pretty stressful experience. Moreover, unfortunately, more often than not, it is a time-period where people act irrationally, totally ignoring who is being hurt or affected. While this post will vary from many of the other ones that I write, it will nevertheless address one of the most important issues I believe that presents itself in the family law arena: Choosing an attorney to represent you.
There is a very sad and unfortunate misconception, that in order to obtain exactly what you are looking for, you need to hire the loudest, rudest, aggressive, most obnoxious attorney. I can't tell you how many times clients become dissatisfied when they do not obtain the results they were looking for. Moreover, they have spent thousands (in some cases, tens of thousands) of dollars and realize that both parties could've had their issues amicably resolved, without spending a ton of money. Be very careful when choosing an attorney to represent you in your Family Law matter. You want someone who is compassionate, aggressive (when necessary), and will obtain the best outcome that is reasonable despite the circumstances. You do not want to be in a situation where you've spent almost $20,000 and all you have to show, is tons of pleadings from both your side and opposing counsel with absolutely no resolution in sight......
Alimony/time-sharing reform in the state of Florida (SB 668). Is the second time a charm?
by St. Petersburg/Florida Family Law Attorney on 04/06/16As an attorney in St. Petersburg, FL, who practices primarily in the area of Family Law, this is one of the biggest topics currently being discussed in the family law arena. For the second time in 3 years, lawmakers in the state of Florida are looking to completely overhaul the original alimony statute, which means major changes are coming in the area of divorce law.
Specifically, the proposal will set out a formula for judges to use when deciding alimony payments. Moreover, it will lack a retro-activity provision (which allegedly was what lead Gov. Rick Scott to his veto in 2013). It has been argued by many, that this alimony provision will hurt stay at home parents, who may have a hard time finding jobs later in life. Under the proposal, the duration of alimony payments would be based on a few things: 1) The number of years of marriage; and 2) The couple's gross income (the higher earner's salary subtracted from the earnings of the spouse seeking alimony).
In the bill, there is also a time-sharing component that states that "judges would begin with the premise that a minor child should spend approximately equal amounts of time with each parent" before considering a myriad of other factors. However, the language seems very similar to the current law, that states there is no presumption in favor of either parent, but the judges must decide what is in the child's best interest. The time-sharing provision would only apply to cases filed after October 1st.
If you are looking to file for a divorce, it is very important you retain an attorney that is knowledgeable in the area of family law. This bill can mean major changes as to how divorces are handled and might determine your strategy if you indeed find yourself in this type of situation. Please feel free to contact our law firm for a low cost in-office or over the phone consultation, if you find yourself in need of a divorce attorney.
Concurrent Estates and Dissolution of Marriages
by St. Petersburg/Florida Family Law Attorney on 03/25/16A concurrent estate is a term used frequently in property law. It describes the various ways in which property is owned by more than one person at a time. The different types of concurrent estates are the following: Tenancy by the Entirety, Joint Tenancy with Right of Survivor-ship and Tenancy in Common. For the purposes of this post, we will talk about the different aspects of Tenancy by Entirety.
As a Family Law/Divorce attorney in St. Petersburg, Florida, when rendering advice about how to prepare for a divorce, it is imperative that as a client you are well informed about this legal theory. Essentially, the term Tenancy by Entirety ("TBE"), is reserved for situations where personal/real property are owned as husband and wife. The four unities necessary to create a joint tenancy must exist, in addition to being married. With this concept, essentially, both parties own the property as a whole, not 50/50. This rule usually applies in instances such as home ownership, cars, bank accounts, etc.
A TBE can only be broken in one of four ways: Death of one spouse, Divorce, Joint Creditor, or Mutual agreement. If any of these four occur, your TBE is transformed/converted into a Tenancy in Common. An individual who owns property as "TBE" cannot convey their interest via will, due to the fact that the other spouse owns the property as a "whole." Now, let's say that one spouse decides to add their 24 year old daughter to the deed (that has both the husband and wife's name on it as they acquired it as Husband and Wife). That one spouse would need the other spouse's consent to put their 24 year old daughter on the deed. If this occurs, then breaking the "TBE" usually results in all parties owning a 1/3 as tenancy in common (this theory will be discussed in a future post). Furthermore, both husband and wife, along with their child have the option to own the property as "Joint Tenants w/ Right of Survivor-ship." Please note though, that this must be explicitly stated in the deed, or whatever documents it must be listed on. Why is this so important? Well, if we're dealing with a Joint Tenancy with a Right of Survivorship, then none of the three parties can will their part of the property. They all own 100%, and as a result, the surviving owner will receive 100% interest. However, if the parties own the property as Tenancy in Common, they are free to pass on their 1/3 of the property any way they would like and the law of intestate succession would apply if no will was found.
We welcome you to contact us for a free over the phone consultation, or a low-cost in office consultation in our St. Petersburg office. As a Family Law/Divorce attorney, I will apprise you of your legal rights and fight for you until the very end.
Emotional abuse in your relationship? It may have an effect on time-sharing with your child....
by St. Petersburg/Florida Family Law Attorney on 03/21/16As a divorce attorney in St. Petersburg, my practice focuses primarily in Family Law. As a result of this, it is often brought to my attention that there are matters that one parent may feel needs to brought to a judge's attention. One issue that comes up fairly often in a contested paternity or divorce matter with children is emotion abuse.
In comparison to other forms of abuse, the effects of emotional abuse are receiving attention only recently. This is due to lack of consistent definitions, difficulty in detection, assessment, and substantiation.
The characteristics of emotional abuse include, but are not limited to, rejection, degradation, terrorization, isolation, exploitation, and deprivation of emotional responsiveness. Emotional abuse may occur on its own or accompany other forms of abuse. it is usually repetitive, and without treatment, gets worse.
The adult may exhibit depression, withdrawal, low self-esteem, anxiety and fear, crying, self-blame, social isolation, avoidance of eye contact, discomfort or nervousness around relatives or friends, delay or refusal of medical treatment. Other forms of abuse may be present or suspected. There are certain vulnerability factors: family history, lack of social and familial support, instability in other areas of life. The adult may suffer problems with attention and concentration, many physical complaints without adequate medical explanation, fearful of persons or situations where no danger exists.
Child emotional abuse is usually at the hand of the parent. Abuse tends to continue over a period of time and the child has to cope with being in a dependent relationship with an abusive parent. The developmental stages of the child will alter: how they understand the trauma and how they respond behaviorally and emotionally.
Young children may be angry, uncooperative, and attached to their primary care-giver, even if that care-giver is the abuser. The children who experience rejection are more likely to exhibit aggressive or hostile behavior, be overly dependent, or have negative opinions of themselves and the world around them. Children who see or hear a parent being abused are themselves victims of abuse. Note, that if a parent is reluctant to release the child to the other parent, or seems to constantly supervise when the other parent is around and only has vague complaints about the quality of the other parent's care. This is a huge red flag. Parties in the emotional process of dissolution of marriage are already in the throes of emotional trauma. He or she may know his or her behavior is questionable, but cannot control the behavior. Some are reluctant to overcome abusive behavior. Recognizing one's own behavior is important and individual counseling and anger management training may be necessary.
If you believe you and/or your child have been exposed to emotional abuse, then it is almost mandatory that a professional evaluation take place. Furthermore, it is imperative that if you believe an issue like this has arisen, you hire a Family Law attorney well versed in child custody/time-sharing. We offer free over the phone consultations and low cost in office consultations as well.
Are you being evicted from your rental property, through no fault of your own?
by St. Petersburg/Florida Family Law Attorney on 03/15/16A while ago, I had an individual residing in the St. Petersburg area contact me regarding a notice he received from the homeowner/lender's mortgage company. Essentially, he was told that he had to vacate the residence within a 15 day period, or else legal action would be taken. Well, thanks to Gov. Rick Scott, HB 779 protects renters in foreclosed homes from swift evictions. Under the bill, unanimously approved in both chambers, tenants that are renting a foreclosed home that is sold to a new owner must be given at least 30 days notice to vacate the residence. So, if you are told to leave your home within a certain amount of time, make sure you are given at least 30 days notice. If you are not given at the very least, 30 days, you may have legal recourse.
Why should I choose to sue in Small Claims court?
by St. Petersburg/Florida Family Law Attorney on 03/07/16As an attorney in the St. Petersburg/Clearwater area that practices in the area of Small claims, one question that often comes up is "how much can I sue for, and why should I choose this avenue?" To begin, let's delve into the types of claims involved in small claims lawsuits.
In the state of Florida, small claims courts are designed to help resolve relatively small monetary disputes. The maximum that you can sue for in small claims in the state of Florida is $5,000 (this doesn't include miscellaneous costs, i.e. Attorneys' fees, filing fees, etc.). Certain types of disputes may involve a failure to repay a loan, repair a car or appliance properly, return a security deposit, etc. In addition, you are allowed to file almost under any legal theory, such as negligence, breach of contract, personal injury, intentional harm, breach of warranty, etc. For example, let's say you and party entered into an enforceable contract, and one party breached it, you would be able to sue him/her in small claims court, as long as the damages assessed were no more than $5,000. Please note however, that there are certain claims that are not allowed in small claims court. Claims such as a dissolution of marriage, guardianship, name change, bankruptcy, etc. are not allowed to be filed in small claims court.
The next question, is "why should I go this route?" Right off the bat, the immediate advantage of filing a small claims lawsuit is the fact that you most likely will not need an attorney. Small claims matter are often simplified in such a way, that is a lot easier for a pro se litigant to navigate their way through. However, please note that having an attorney either representing you or giving you guidance throughout can be extremely valuable. In addition, filing a small claims matter can have your claim resolved a lot quicker, than filing a traditional lawsuit (county court or civil court case) that may take years to be completed as a result of discovery and never ending motions filed by both parties. There are also plenty of resources to help you if you are a pro se litigant, and you need assistance with filing a lawsuit in small claims, or defending yourself. If you determine that you have no choice, but to sue someone, and your damages are less than $5,000, please do not hesitate to call us to see if we can help. On the other hand, if you are a defendant and find yourself served and looking for guidance or representation, we can help you too! We offer free over the phone consultations and low flat fee costs.
What are the requirements for a divorce?
by St. Petersburg/Florida Family Law Attorney on 02/28/16Here, I will provide a very brief overview of the divorce process in Florida. As a family law attorney in St. Petersburg, Florida, I assist individuals with divorce along with other family law issues in Pinellas County and the surrounding counties.
Is Fault an issue?
Contrary to popular belief, Florida is a no-fault state. This essentially means that you don't need a reason as to why you're getting a divorce. In most instances, one spouse will declare that the marriage is "irretrievably broken," or irreconcilable differences."
Please understand however, that spousal misconduct may still have an impact on a divorce and issues such as alimony, child custody, and distribution of marital property.
Jurisdictional Requirements for a Florida Divorce
There are two kinds of jurisdictional issues that arise in divorce proceedings. They are personal jurisdiction and subject-matter jurisdiction (please see earlier posts regarding these terms). With subject matter jurisdiction, only of the two spouses must be a resident of Florida for Florida to assert subject matter jurisdiction and grant the divorce. As for personal jurisdiction, Florida does not need personal jurisdiction over the non-filing spouse in order to grant a divorce or adjudicate issues related to child custody. However, it's very important to note that Florida does need personal jurisdiction over the non-filing spouse in order to adjudicate issues of property, spousal support, and child support. If the non-filing spouse resides in Florida, then the court will have personal jurisdiction over that individual (spouse). However, if the non-filing spouse does not reside in Florida, then the court must look to Florida's long arm-statute to assert persona jurisdiction. Personal jurisdiction will be asserted if the parties maintained a marital domicile in Florida, or if the other spouse resided in Florida prior to the action.
To quickly sum up, to obtain a divorce in the Florida, one of the spouses must have been a Florida resident for at least 6 months prior to filing for divorce.
Hopefully, this article helped you gain a rudimentary understanding of the divorce requirements in Florida. If I can be of any assistance to you in regards to your family law matter, please do not hesitate to get in touch with me. We offer free over the phone consultation along with low-cost in office consultations.
Is a Contempt order that operates prospectively, by ordering automatic commitment in the event of future noncompliance without requiring additional hearing a violation of due process?
by St. Petersburg/Florida Family Law Attorney on 02/14/16This was a question that was presented to the Florida Second District Court of Appeal not too long ago. The appellant appealed a civil contempt order entered by the circuit court following his failure to abide by the terms of the marital settlement agreement between former husband and wife. The civil contempt order, was imposed as a sanction in a prospective fashion. The Appellate Court reversed.
To summarize what transpired in the lower levels without going into too much detail, the appellant and appellee were married for almost 30 years. The parties entered into a marital settlement agreement, in which the crux of the agreement stated the wife was to transfer her half of the parties' business to husband, and in return, husband would pay wife $210,000. In addition, husband was to pay wife $125,000 per year in alimony in addition to maintaining a life insurance policy providing a $1,000,000 benefit payable to wife. The husband did make the payments for equitable distribution, however by September 13, 2013, husband fell behind $310,000 in alimony payments and $45,000 on premium payments for life insurance. On October of 2013, the parties did stipulate to the entry of a judgment for arrearages, which judgment was entered in October of 2013. When the husband was unable to pay this judgment, the wife sought a civil contempt order to compel him to pay the judgment.
A hearing was held on the wife's civil contempt motion and at that hearing, the court found that the husband was willfully refusing to pay his obligation. However, the order stated that "On or before the 16th of each and every month beginning on January 16, 2014, Former Husband may purge himself of said contempt, and if incarcerated at that time shall be released from the Pinellas County Jail without further order, upon payment of the sum of $11,416.67 per calendar month..." Furthermore, "If Former Husband has not purged himself of said contempt within the time frame specified in this paragraph, he shall report to the Pinellas County Jail on the 16th day of each and every month beginning January 16, 2014, at 5:00 p.m, then and there to commence serving said sentence."
In Bowen v. Bowen, the supreme court set out the proper procedures for imposing contempt and held that "incarceration for civil contempt cannot be imposed absent finding by the trial court that the contemnor has the present ability to purge himself of the contempt. Incarceration cannot be imposed as a sanction for civil contempt in such a prospective fashion." "Moreover, due process requires that the contemnor be apprised of the nature of his contempt and that he be afforded an opportunity to be heard and defend the allegations against him." Cokonougher v. Cokonougher, 543 So. 2d 460. As a result, a contempt order that operates prospectively, by ordering the automatic issuance of a commital order in the event of future non-compliance without requiring an additional hearing, violated due process and is improper.
So to basically sum up, the lower courts order re: the contempt order, was reversed (only the portion addressing imposing incarceration based on prospective contempt orders). The court cannot issue prospective contempt orders as it would be a direct violation of due process. In this present scenario, let's say on month 2, appellant is unable to make the payment by the 16th of the month. Then according to the order, he would be in contempt of court without a hearing to determine if he has the ability to pay, proper notice, and an opportunity to be heard. If you have any questions, please do not hesitate to contact us for a free over the phone consultation, or a low cost in-office consultation in our St. Petersburg office. It is very important to make sure you have a competent St. Petersburg Family Law lawyer or attorney by your side, as incompetent counsel can cost lots of money and headaches down the road.
WAS A "WRIT OF POSSESSION" ENTERED AGAINST YOU? You may have some hope...
by St. Petersburg/Florida Family Law Attorney on 02/12/16An eviction is not one of the easiest things to deal with. If you have kids, it's even worse. You may need some time to find a place to live and relocate. If a writ of possession has been filed with the Court, the clock now begins. It's only a matter of time before the sheriff comes to "kick you out" of your place. As a St. Petersburg Tenant attorney, I have heard these situations happen all too often. However, there may be one last option available to you if you fall into this predicament. As a St. Petersburg Tenant attorney for 3+ years, I can give you a few pointers in how to deal with this precarious situation.
If you want to buy yourself a little more time, you may want to look into filing what's called a "Motion to Stay a Writ of Possession." If you have the means, you may want to hire a St. Petersburg Tenant Attorney. Let's look at the following scenario. You are a tenant, fall behind on your rent and the process begins. You are unable to pay in response to the 3 day notice and the landlord decides to file a complaint for an eviction. You are served and file an answer within 5 days. Times are tough and you are unable to deposit any money in the depository. As a result of not contesting the amount owed, a default is entered against you. The judge signs the default in addition to the Final judgment on Count 1 for possession. Next comes the Writ of Possession. It's only a matter of time before the sheriff comes knocking on your door asking you to take your property and leave within 24 hours. No place to move to, your kids are screaming and you are scared. By filing your Motion to Stay a Writ of Possession, this has the result of "staying" or "stopping" an eviction after a final judgment for the landlord has already been entered. Once your motion is filed with the court, it is sent to the judge immediate and an emergency hold is put on the case. The judge then reviews the Motion and the reasons why the tenant feels they are entitled to having the Writ of Possession "stopped," or "stayed." This Motion is taken very seriously by the court and the judge will review the Motion immediately. If upon reading the Motion, the judge believes that there is some legal reasoning or basis as to why the eviction should be "stayed," the judge will grant the Motion without a hearing and set it for a later hearing. Or, the judge will set an emergency hearing to have the landlord and the tenant present evidence as to why the Writ of Possession should or shouldn't be "stayed." If however, the judge upon reading the Motion decides there's no legal merit, the judge will enter an Order denying the motion and the eviction goes on.
If the judge grants the Motion to Stay the Writ of Possession, the judge will enter an Order Staying the Writ of Possession, he/she will set a hearing which will give the tenant a chance to present evidence as if the case were contested. Usually, if a tenant has failed to post rent money in the court registry, it is highly doubtful the tenant will prevail, but if the tenant can provide that they paid the rent and it was mis-placed or they "overpaid," they may have a chance to prevail.
If the judge denies the Motion to Stay the Writ of Possession, the case will proceed without delay as if nothing happened. As a result, the judicial assistant or judge will notify the sheriff's department to execute the Writ of Possession.
While this process sounds confusing, as most landlords think they have prevailed prior to this motion being filed, it's not that bad. Your case unfortunately, will most likely be delayed. However, often the judge will grant a hearing to the tenant in a few days. In most cases when the tenant files a Motion to Stay the Writ of Possession, the judge reads it and denies it on the spot and no time is lost. The absolute worst case scenario, is the judge grants the Motion to Stay the Writ of Possession, a hearing will be set and the judge will feel your case is defective or there is is a good legal basis why the tenant should not be evicted.
If you are a tenant that feels that they may need some extra time to move out, I may be able to help as an St. Petersburg Tenant attorney. Please contact us to see if we can help you! A competent St. Petersburg Tenant attorney can not only save you on the financial end, but can also give you peace of mind knowing you have someone fighting for you against unscrupulous landlords.
St. Petersburg Florida Family Law (Marital Agreements)
by St. Petersburg/Florida Family Law Attorney on 02/10/16As a St. Petersburg Family law attorney, practicing in the area of Family Law, I have come to learn there are a plethora of areas one must be knowledgeable about in order to provide competent services to your client. Whether it be alimony, child support, divorce, paternity or any other family law matter, it is important to choose someone who is up on current law, as it changes often. In this post, I will focus on marital agreements (Pre-marital) specifically. Looking for a St. Petersburg divorce attorney or St. Petersburg divorce lawyer when seeking assistance with drafting these documents is key to have it done correctly.
Pre-marital agreements [Fla. Stat. 61.079] between prospective spouses, other than contracts to marry, are generally valid. The parties to a premarital agreement may contract with respect to spousal support, as well as matters relating to property. However, if a provision of a premarital agreement modifies or eliminates spousal support and this causes one party to be eligible for public assistance program at the time of separation or marital dissolution, a court may require the other party to provide support to the extent necessary to avoid that eligibility. In addition, a premarital agreement may not adversely affect the right of a child to support or authoritatively determine custody.
Statute of Frauds: Premarital agreements fall within the Statute of Frauds and must be in writing and signed by both parties.
Marriage is consideration: Premarital agreements, like all contracts, require consideration to be valid. Entry into the marriage is sufficient consideration to support a premarital agreement. A premarital agreement becomes effective upon marriage of the parties.
Amendment, Revocation or Abandonment: After marriage, the agreement may be amended, revoked, or abandoned only by a written agreement signed by the parties. The amended agreement, revocation, or abandonment is enforceable without consideration.
Attorneys' Fees to Prevailing Party: Premarital agreement provisions awarding attorneys' fees and costs to the prevailing party in litigation regarding the validity and enforceability of a premarital agreement are enforceable. The purpose of a "prevailing party clause" is to indemnify the party who relied on the agreement and constitute a disincentive to one who may frivolously challenge it. Such clauses do not implicate the state's interest in ensuring that each spouse supports the other during the marriage.
As a St. Petersburg divorce lawyer, whose primary practice involves family law, I can help you draft an agreement like this. Hiring competent counsel is essential to avoid any costly mistakes. Please feel free to give us a call, for your free, no-obligation consultation regarding a pre-marital agreement, or any family law issue you may have. As your Family law attorney, I promise I will not only give you competent advice, but I will be honest with you in my assessment of your legal situation.
St. Petersburg/Clearwater Document preparation services
by St. Petersburg/Florida Family Law Attorney on 02/08/16We are absolutely delighted at the number of people who have inquired about our $199 document preparation services. As an attorney in St. Petersburg, FL, I know first-hand the struggle a lot of potential litigants have when it comes to finding affordable legal services. I have assisted in the preparation of legal documents at Community Law Program in St. Petersburg, Gulfcoast Legal in Clearwater, and Bay Area legal services in Tampa, FL. Whether you are looking to file a divorce on your own, or looking to have a simple will drafted, we can certainly help. We focus on providing affordable, low cost document preparation services in the St. Petersburg/Clearwater area. We also provide services remotely throughout the state of Florida, so if you are inquiring about us drafting documents from Tallahassee down to Fort Lauderdale, we can help! Our pricing starts at a very low $199 for most legal documents, and lower for some. We are excited to provide an alternative for those who want to take care of their legal issues themselves, but are just looking for a little guidance. What we do suggest, is that you DO NOT hire a document preparation company to prepare your documents. They are not licensed to render legal advice and I can't tell you how many times I have had to fix a host of problems a potential client has brought to me, as a result of consulting with a document preparation company or having them draft their documents. Please feel free to give us a call, or e-mail to see if we can help and maybe we can save you a little bit of money. We also provide free notary services for our clients that are in the surrounding St. Petersburg, FL area.
What is considered Marital property in the state of Florida?
by St. Petersburg/Florida Family Law Attorney on 02/06/16
The general rule in a Florida divorce is that the court considers and divides up the "marital property" of the ex-spouses and that the non-marital property of each party remains with the spouse that owns that particular property. When dividing up the marital property, the court is expected to be guided by principles of equity, making sure that the marital property division treats both spouses in a fair (but not necessarily in an exactly similar) manner. The judge, depending on the circumstances might not necessarily divide marital property 50/50, instead he/she might divide it 70/30 or 60/40, etc. Let's see how the court determines what can be classified as marital property?
Florida Statute 61.075 eloquently lays out what constitutes marital property in the State of Florida. It includes:
Assets acquired during the marriage: If a particular property or asset was purchased during the marriage, or acquired during the marriage, it most cases it is considered marital property. It is not relevant if the property or asset was acquired by one or both spouses. Let's say for example, a husband purchases a classic car during the course of his marriage to his wife, that classic car will be construed as marital property, even if the husband paid for the car with money from his own paycheck and only his name appears on the title. The car is still likely to be treated as marital property.
Enhancement in value and appreciation of non-marital assets: If a non-marital asset becomes more valuable because one of the work of one or both spouses spent marital funds or assets on improving it, the enhancement can be considered marital property. This situation frequently arises when one spouse owns a business from before the marriage. After the marriage, the other spouse becomes an employee of the business. By the efforts of both parties, the business expands and increases in value. That increase in value would be considered marital property, even if the business existed before the marriage. another example would be with real property owned prior to the marriage by one spouse. Let's say that the wife owned a house in her name prior to the marriage. Her name appears on the mortgage and title. After she marries her husband, both of them spend a considerable amount of money improving and adding on to the house. As a result of their efforts, the house appreciates in value. That appreciation would be considered marital property.
Real and personal property held as tenants by the entireties: If the parties hold property as tenants by the entireties, then that property is presumed to be a marital asset. Tenants by the entireties is a special form of ownership available only to married couples. In order to be held as tenants by the entireties:
Both spouses must have an identical interest in the property;
The parties must have been marries at the time they acquired the property;
The spouses' interest must have been granted by the same instrument; and
The spouses' interest must have began at the same time.
Certain retirement benefits: The statutes also includes "vested and nonvested" benefits, rights, and funds that accumulated during the marriage in any sort or retirement or insurance plan will be considered marital property. Suppose Bob works for an employer who provides a 401K. Before the marriage, Bob had accumulated $20,000 in that 401K plan. After marrying Gina, he accumulated an additional $40,000 in his retirement plan before Gina and Bob divorced. While the $20,000 was acquired before the marriage (and will most likely be treated as non-marital property), the $40,000 would be considered marital property.
Are you and your spouse looking to enter into a "Marital Settlement Agreement?" It's not so easy to have it amended.
by St. Petersburg/Florida Family Law Attorney on 02/04/16Lets look at the following question that a potential client in St. Petersburg, FL asked pertaining to a drafted "Marital Settlement Agreement."
Question: I am looking to get divorced and recently signed a marital settlement agreement with my spouse. After it was signed by me, I wondered whether it was the right decision. I determined I was not happy with what I signed and the terms I agreed to. Is it possible that I can change the agreement?
Answer: As an attorney in St. Petersburg, FL, I often run into scenarios such as the one described above when rendering legal advice. To begin, we must note that a marital settlement agreement is a contract. Any challenge or effort to change these types of agreements are usually in most instances subject to contact law. As a result of your marital settlement agreement being a contract, it is subject to contract law. The contract can usually be changed by agreement of the parties. However, if there is no agreement, it can be difficult to change.
Due to the fact that a marital settlement agreement is a contract, it must be challenged as a contract. Grounds which might allow a successful challenge include mutual mistake. That means the parties agree to one thing, however, the written document does not accurately reflect what they agreed to. A unilateral mistake in most instances would not suffice as having a marital settlement agreement rendered void.
On the other hand, if the agreement was the product of fraud or coercion, it might be successfully challenged. That can be the case where one party is represented by an attorney and the other is not. It can also be the case where one party conceals assets and/or bullies the other party into signing the agreement.
Within the marital settlement agreement, there are areas in which the court can most easily modify marital settlement agreements. These areas are child support and alimony. Section 61.14 Fla. Stat. provides the courts with authority to modify these issues, even when the parties have agreed beforehand. One recent case that illustrates this example is the recent case of deLabry v. Sales.
In the Sales case, the parties had agreed to a child support amount which was to be paid by the former husband (per a marital settlement agreement). The agreement was incorporated into the divorce judgment. Approximately four years after the divorce, the former husband petitioned the court for a child support reduction on a basis of "change in circumstances." Per the Florida statute, they provide for a modification of child support if there is a substantial change in circumstances of the parties. The substantial change that the husband alleged, was that the wife had transformed from a stay at home parent, to a full-time employed lawyer. While on the other hand, the former husband's income had dropped substantially. The trial court ruled in favor of the former husband and the former wife then appealed. The appellate court denied the appeal in a 2 to 1 decision. The appellate court notes that child support obligations under a marital settlement agreement are modifiable as a matter of law. Child support is a right of the child and cannot be contracted away by the parents. The courts have inherent authority to enter and modify support orders. The court noted that following 3 prong test had to be met and established:
(a) a substantial change in circumstances;
(b) a change that was not contemplated at the time of the final judgment; and
(c) was sufficient, material, involuntary and permanent.
The court also agreed that the modification should be made retroactive to the date circumstances changed, not merely to the date the petition was filed.
Please remember that most aspects of a marital settlement agreement are almost impossible to change. That's why it's very important that you retain an attorney in St. Petersburg, FL that is competent in the area of Family Law. Child support and alimony are exceptions to the rule. If an issue like this arises for you, please do not hesitate to reach out to us for a free consultation over the phone, or a low cost in-office consultation in our St. Petersburg office and let's see if we can help!
Looking to file a "Petition to Modify your time-sharing/parenting plan" agreement/Final Judgment? You may want to think again...
by St. Petersburg/Florida Family Law Attorney on 01/27/16More often than not, you will have parties who were divorced or had a paternity issue resolved in the court, look to modify their time-sharing agreement in the state of Florida (St. Petersburg, FL or any other city in this state). In order to do this, you must file what is known as a "Supplemental Petition to Modify Time-sharing/Parenting Plan." From a legal standpoint, in order to have the appropriate legal grounds to prevail in this type of action, you must prove that there has been a "substantial change in circumstances since the execution of the agreement setting time-sharing in the final dissolution judgment." Let's look at one case that clearly demonstrates the courts' opinion on what they do not deem a "legitimate change in circumstances."
In Reed v. Reed (No. 4D14-4012), the former wife/mother in a divorce case appealed an order that granted the former husband's supplemental petition for modification of time-sharing. The trial court determined that there had been a substantial chance in circumstances since the execution of the agreement setting time-sharing in the final dissolution judgment, as the father had "stabilized his life and wanted more time with his child."According to the appellate court, this was insufficient to constitute a substantial change in circumstances. The appellate court determined that not only was there no change in circumstances, but that it was not in the child's best interest to modify the final judgment.
To quickly sum up what transpired on the trial court level regarding the supplemental petition to modify parenting plan/time-sharing agreement, the Magistrate's ruling in granting the father's petition was that the father had "stabilized his life," and that it was in the child's best interest to have overnight time-sharing with the father. "Demonstrating to the court that there has been a sufficient substantial change in circumstances places an "extraordinary burden" on the party seeking to modify the custody order." Chamberlain v. Eisinger, 159 So. 3d 185, 189 (Fla. 4th DCA 2015) (quoting Sanchez, 45 So. 3d at 61-62). The appellate court determined that the trial court erred by finding that the mere stabilization of the father's life constituted a substantial change in circumstances, as both the father's allegations and his proof were insufficient. Furthermore, they noted that just because the father now has a relatively stable home environment is, in and of itself, inadequate to constitute a substantial change in circumstances. See Bartolotta v Bartolotta, 687 So. 2d 1385, 1387 (Fla. 4th DCA 1997); see generally Miller v. Miller, 671 So. 2d 849, 852 (Fla. 5th DCA 1996).
What should you surmise out of all of this? You do not have legal grounds to change your parenting plans, if you have "improved your lifestyle" since entry of the final judgment. Please do not get me wrong, as that is great. However, be wary of any attorney (in Florida and/or in the St. Petersburg area) that you approach with this reasoning as to why you should have your time-sharing agreement changed that agrees with you and takes your money. It will be a losing battle, and an expensive one at that. If you are looking to modify your time-sharing/parenting plan (Final Judgment), please do not hesitate to reach out to us at our St. Petersburg, FL office. We will give you our honest assessment of whether you have a legitimate chance or not of having your time-sharing schedule amended. As your St. Petersburg, FL attorney, my job is to stay up on current law to give you the best chance of succeeding in your case. We offer free over the phone consultations and low cost in-office consultations, in our St. Petersburg office.
Do you have a right to "withhold" your rent as a tenant?
by St. Petersburg/Florida Family Law Attorney on 01/19/16As an attorney in St. Petersburg, I often receive calls from tenants in regards to their legal rights and remedies pertaining to specific situations. Unfortunately, there isn't too much case law that directly discusses many issues revolving around Landlord-Tenant law. However, there are statutes that do explain what rights tenants have in precarious situations involving an unreasonable landlord, who is not following the law.
Let's say you have a landlord that does not follow the law and fails to make needed repairs or provide the things you are entitled to. You have the legal right to stop paying rent! However, there are procedures you have to follow in order to enforce your legal rights. First, by law you must give your landlord a seven day written notice, which should either be delivered to the landlord in person with a witness present, or sent by certified mail (Fl Stat. 83.56). This notice cannot be given to your landlord when you are late on paying rent, on your rental property. Rental property management, or their lawyer will sniff this out immediately and your seven day notice will most likely be void. Note that your notice should be delivered 7 days before rent is due. If you are mailing however, you must add 5 days for mailing, meaning you must mail it 12 days before the rent is due. One usually wouldn't think that they would have to contact their city or county housing code enforcement office when dealing with property rentals, however with Florida apartments, it's an occurrence that happens often. There is no charge associated with the inspection requested. Once completed, the inspector will issue a written report detailing any housing code violations. Please attach this to your seven day notice.
So as a result of you not paying rent and calling code enforcement, your landlord has decided that he/she will take appropriate action to evict you. We all know tenant evictions are not fun to deal with. To begin, make sure you have copies of everything, including your rental lease, seven day notice and the inspection report. Please, please do not spend your rent money! You must have it ready to pay to the landlord once the repairs are substantially completed, or if the landlord decides to evict you for not paying rent. The court will ask for the money to be held in a registry until a final decision is rendered. If you follow the rules stated above and the landlord makes an attempt to evict you, the written notice you gave to your landlord will be your defense in court. The court will then decide whether you keep the rent money or whether the landlord gets the money. If you experience this problem, we suggest you hire an attorney well versed in Landlord-tenant law.
