Friday, June 24, 2016

Can I keep my driver's license if I fall behind in child support payments?


In Florida, child support is ordered in nearly every paternity or dissolution of marriage action involving minor children.  The State of Florida takes this obligation very seriously and provides a wide variety of means by which to enforce a person’s child support obligation. The most common form of enforcement is to suspend the non-paying party’s driver’s license.  Florida law allows for a notice to be sent to the Department of Highway Safety and Motor Vehicles informing them of the intent to suspend a non-paying party’s driver’s license just fifteen days after the party has become delinquent in their payments.  The party will then typically have just twenty days to either pay the amount in full or enter into a written repayment agreement.

However, often times a party may get behind due to no fault of their own.  The law does recognize that it would be improper to suspend a person’s driver’s license when they desire to, but are simply unable to, comply with their child support obligation.  For that reason, the law does provide certain instances where a person’s driver’s license will not be suspended even though they have become delinquent in their obligation.  These exceptions include:  when the delinquent party demonstrates that he or she receives reemployment assistance or unemployment compensation; demonstrates that he or she is disabled and incapable of self-support or that he or she receives benefits under the federal Supplemental Security Income program or Social Security Disability Insurance program; demonstrates that he or she receives temporary cash assistance; or demonstrates that he or she is making payments in accordance with a confirmed bankruptcy plan. 

If a person falls into one of the above exceptions, it is important that they immediately notify the proper personnel upon receiving a notice of intent to suspend their driver’s license.  Otherwise, the Department of Highway Safety and Motor Vehicles will proceed to suspend the person’s driver’s license. 



Written by: Attorney Barry Newton

Friday, April 1, 2016

BIG CHANGES!


HAVE YOU HEARD ABOUT THE PROPOSED CHANGES TO THE LAWS ON ALIMONY AND TIMESHARING WITH MINOR CHILDREN?
Written by: Attorney Dylan Hall

In a divorce proceeding, two of the most commonly fought-over issues are alimony payments and each parent’s timesharing with their children. While it is no surprise that such important issues are often highly contested, a major reason for the difficulty in resolving them is that many attorneys view the current Florida laws regarding alimony and timesharing as outdated and difficult to work with.

Alimony may be ordered by a Judge and requires the higher-earning spouse to contribute toward the difference in the couples’ incomes by giving the lower-earning spouse monthly payments after they are divorced. The duration of these alimony payments is usually determined by how long the couple was married. Current Florida law generally provides that when alimony is appropriate, the payments shouldn’t last longer than the total length of the marriage itself. However, if a couple is married for longer than 17 years, the higher-earning spouse may be ordered to make monthly alimony payments to the lower-earning spouse forever. On top of that, a Judge has the authority to order permanent alimony even for marriages that last significantly less than 17 years. The only way the permanent alimony payments can ever be stopped, is if the lower-earning spouse remarries or enters into a relationship with someone where they are financially supported the same as if they were married.

Many feel that permanent alimony, as currently allowed under Florida law, is too generalized and doesn’t take into account important factors particular to each marriage. Because of this, the Florida Senate just passed a bill (SB 668) that would do away with the current Florida law on alimony. Instead, this bill would require a Judge to use a standard formula based on length of marriage and the higher earning spouses’ incomes to determine an amount and duration of alimony payments. This scheme would largely end permanent alimony in the state of Florida and provide a much-needed predictable and reliable method for anticipating and determining likely alimony awards. If signed into law, this bill will take effect on October 1, 2016.

In addition, this proposed bill would also make a substantial change to Florida law regarding timesharing with minor children. As the law currently stands, there are no standard timesharing arrangements when a couple initially files for divorce or files a case to determine the paternity of a minor child. This can cause significant conflict regarding which parent gets to have and care for the child, both temporarily and permanently, which is of course very difficult on the parents and, most importantly, the children. To address this shortcoming, the proposed bill would make it standard practice for both parents to have equal timesharing in the best interest of the children, and therefore the parents will automatically be required to split their time with the children 50/50 unless and until an actual timesharing schedule can be agreed upon or established by a Judge. Furthermore, if one parent feels that the other parent should not have equal timesharing, that parent will need to convince the Judge as to why they should receive the majority of timesharing at the other parent’s expense.

As you can see, this proposed bill will create significant changes to the law regarding two major areas of contention in divorce and paternity cases, alimony and timesharing. Because of this, it is more important than ever to be represented by legal counsel that stays up to date on the newest laws and fully understands the repercussions of these changes. Should you have any questions regarding this proposed bill or any other legal questions whatsoever, please don’t hesitate to call our office and schedule a consultation with one of our attorneys.

Citations:



https://www.myfloridalaw.com/alimony/florida-alimony-reform/

Monday, October 5, 2015

Avoid Probate and protect your family with a Will


The passing of a family member is one of the most difficult times in anyone’s life. The grieving process can become considerably more trying when the distribution of the deceased’s assets is unclear or in dispute. This is why it is essential that you have an estate plan in place that provides a clear procedure for the distribution of your assets. It is also important to have a general understanding of the probate process that may be necessary to distribute your estate and the methods for avoiding unnecessary costs.

Whether or not you have a Will, there are a few ways to ensure that certain assets will be automatically distributed. For one, any real or personal property that is jointly held by yourself and another person with a right of survivorship or by the entireties goes straight to that surviving person. Examples include a homestead owned by a married couple, a joint checking account, and a vehicle titled as “John Doe or Jane Doe”. Next, any asset that has a designated beneficiary upon the holder’s passing - which includes life insurance proceeds and payable-on-death accounts - automatically go to that named beneficiary. Similarly, any asset placed in a living trust usually goes straight to the designated beneficiary upon your passing. The proper titling of assets can go a long way toward avoiding the emotional toll and considerable effort required to distribute assets that would otherwise be in dispute.

Having a well-drafted Will may be sufficient to avoid the probate process, however it is a common misconception that having a Will automatically eliminates the need for probate. For that reason, it is always recommended that when creating your Will you use an attorney whom you trust and that you provide full disclosure of your assets and desires, as this will allow your attorney to draft your Will with the maximum protections in place. Also, it should be noted that in Florida it is required that your Will be filed with the Clerk of Court within ten days of your passing in all situations.

The general idea behind probate is that your Personal Representative identifies the assets in your estate, uses these assets to pay off any creditor claims or taxes that are owed by the estate, and then distributes the remaining assets according to the terms of your Will or the Florida Statutes should you not have a Will. The probate process can be very complicated and is highly specific to each particular estate and the family members involved.

Probate can be an extremely emotional and trying time for your family members who are in the process of grieving their recent loss. One of the greatest gifts you can give your family is to minimize the financial impact of your passing by jointly titling your assets and designating beneficiaries wherever possible, and working closely and openly with a trusted attorney in drafting your Will.

Written by: Attorney Dylan Hall

Friday, July 3, 2015

Thinking of renting your home? Make sure you know what to expect.

Renting your home can be a great investment, but there are some things that you need to know before you commence such an undertaking. Prior to renting, be aware of the following:

1.     Are you renting a mobile home, a condo or a house?

Why is this important?  The Florida Statutes have specific requirements for each type of housing. Familiarize yourself and understand what obligations you are mandated to do under Florida Law.  The statute defines important information as to what a Landlord is required to provide a tenant, information regarding the security deposit, inspections of property and the eviction process, if necessary.
·       Attached Mobile Homes - Florida Statute 723
·       Recreational Vehicle Parks (non-attached mobile homes) - Florida Statute 513
·       Apartments, townhouses or houses - Florida Statute 83

2.     Are you planning to write a lease and how long do you want a lease to run?

 It is always recommended that all lease agreements should be in writing.  All parties benefit from a written lease             agreement, which sets out lease terms regarding pets, landscaping, fees, utilities, early termination, etc. When drafting a lease, it is important to get your lawyer involved.  Its best to have your lawyer review the lease agreement in the beginning so they can make sure that your home and rights are protected and safeguarded from potential litigation.  You also want to make sure the terms are legal and current under Florida law. Invest in the beginning, so you can avoid high legal fees in the end.

3.     Thinking of hiring a property manager?

Property managers are a great asset when renting out property. They are the main contact with the tenant(s) and handle most of the tenant issues and questions. However, you need to read the contract carefully when entering an agreement with a property manager.  Make sure you read and understand the terms of the agreement. What are the property manager’s duties? When can they act on your behalf? When do they need your consent? What are their fees? How do I terminate the relationship if needed? What are their duties and expectations if there is ever an eviction? Etc., Etc.  REMEMBER, a property manager is your agent when handling the rental property, meaning that anything they do or don’t do will always remain your responsibility/liability.  For example, some bad eggs have been known to rent the property, “hold the security deposit” and vanish without a trace.  Even if this happens, the Landlord is still obligated to comply with Florida law in regard to the security deposit. Simply stating that you don’t have the money to give back the Tenant’s security deposit is not going to be much of a defense in court.Make sure to get recommendations. 

4.     What are your expectations with a rental property?
       
Renting property is typically left to investors, so you need to be realistic.  When renting your home, you will have to realize it is no longer “your home” and is now a rental business.  Research the terms “normal wear and tear” because your definition is likely very different than the court’s definition and case law.  Do not expect renters to maintain the home in immaculate condition. If you’re lucky, you’ll get a great renter, however there are more bad than good.  Create a financial cushion for repairs and cleaning in-between each rental agreement.  When a renter is behaving badly, make sure you provide them with written notice and give them an opportunity to cure.  If they fail to do so, this will only help you should you ever need to go to court.

This article is not intended to discourage rental properties. The decision to rent can be a good one, but far too often individuals are overly excited to become landlords or desperate to rent out their properties due to a variety of financial circumstances. Please do not let excitement or desperation cause you to make mistakes that lead to more problems. Be smart, do your research and consult with an attorney that is familiar with Landlord Tenant Laws. If you would like to consult with an attorney from the Law Office of Pamela J. Helton, please call the office today at (352) 243-9991.    


Written by: Attorney Jennifer Sinker

Monday, April 20, 2015

Prenuptial Agreements: Read before you sign, ignorance is NOT always bliss

In fairy tales, there are typically two main characters who fall into a whirlwind romantic affair that quickly leads to “happily ever after” walking down the aisle.  It’s magical, wonderful and happy like any wedding should be, but wait, no one mentions the uncomfortable conversation Cinderella had when Prince Charming presented her with a prenuptial agreement.  The dreaded prenuptial agreement can send shivers down your spine.  The first reactions include anger, anxiety and disappointment.  How can anyone marry if they don’t think it will last forever?  But I’m here to tell you that a prenuptial agreement isn’t scary and isn’t the awful scenario you may believe it to be. If written and negotiated correctly, the agreement protects both parties. 

Take this into consideration: According to the 2010 U.S. Census, the median age of those entering into their first marriage was 28.5 for men and 26.7 for women. Typically, by this age a career path is established, children may exist from previous relationship(s), and assets are accumulated such as property, investments and/or retirement. These assets need to be protected. In previous generations, it was common for couples to marry young before they had established any assets and then build assets together. What people tend to forget is that if you never get divorced, you’ll never use the prenuptial agreement, but if on the unfortunate chance divorce cannot be avoided why not ensure some type of protection, a sort of insurance policy on the marriage.  Prenuptial agreements can assist in making sure the material items you’ve accrued prior to the marriage are safeguarded for your children, parents or siblings should the marriage not work out. In the event of a failed marriage, would you like your retirement to be safeguarded for your children or your ex?

Further clarification can be provided with an understanding of prenuptial agreement (a.k.a. premarital agreement) and how they work. According to the Uniform Premarital Agreement Act, Civ. Pro. 61.079 Premarital agreements, a premarital agreement is a written agreement between two parties, signed by both and enforceable without consideration other than the marriage itself.  One can contract obligations of: property, disposition of property upon separation, death or on any other event, establish, waive or eliminate spousal support (except pendent lite, which is a Latin term meaning “pending litigation” if this is required the Judge will order it), disposition of the death benefit of a life insurance policy, governing law and any other matter that does not violate public policy (i.e. Child support can NEVER be waived).  The agreement becomes effective as soon as you get married.  After the marriage, the agreement can be changed, revoked or abandoned.  It also does not safeguard any assets that you accrue together or during the marriage, only what was yours before the marriage.

Unfortunately, having a prenuptial or premarital agreement does not mean that one can avoid the courtroom.  Donald Trump detailed in his book, Trump: How to Get Rich, how his ex-wife Ivana challenged their prenuptial agreement. Trump stated: “[w]e needed a bus to get Ivana’s lawyers to court. It was a disaster, but I had a solid prenup, and it held up.”¹ Prenuptial agreements can be contested (challenged in court) if a party can establish that the agreement wasn’t entered into voluntary, the agreement was entered into by fraud, duress or coercion, unconscionable, or the party did not have fair and reasonable disclosure of the financial obligation of the other party.  This is key! Our firm always requires a full financial disclosure to be provided by both parties when entering a prenuptial agreement.  You cannot contest a prenup by simply saying I didn’t understand or felt it was unfair. If you sign it, it’s official. According to the courts, a prenuptial agreement shall be construed and interpreted as any other contract. ² Although a trial court may be motivated to do what it considers to be fair and equitable, it retains no jurisdiction to rewrite the terms of the agreement. ³ According to Barakat v. Broward County House. Auth., 771 So. 2d 1193 (Fla. 4th DCA 2000), “[i]t is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.”  If presented with a prenuptial agreement or if you’re considering having one drafted, take the time to read it, understand it, ask questions and seek out a lawyer to help make sure you’ve safeguarded your family and your future. 

 ¹ Donald J. Trump, Trump: How to Get Rich (2004).

² Ledea-Genaro v. Genaro, 963 So.2d 749, 752 (Fla. 4th DCA 2007)

³ Rocha v. Mendonca, 35 So. 3d 973 (Fla. 3d DCA 2010)


Written by: Attorney Jennifer Sinker

Tuesday, March 31, 2015

WHAT I NEED TO KNOW ABOUT MODIFICATIONS?


A settlement agreement delegates all the final details for the children such as custody arrangements (what days they are with mom/dad), financial responsibilities (who pays medical bills, health insurance, schools lunches/supplies, etc.), sets limitations for locations (child can’t be taken overseas, out of state, or to live outside of county, etc.), and a whole lot of other parenting details. In a Paternity action or Dissolution of Marriage with minor children, the parties frequently view their settlement agreement as the END of disputes and believe they are now finished dealing with their ex forever. Disappointment rushes in when parents later discover it’s not uncommon for problems to come up years later that require going back to court to seek a modification for the original parenting agreement.

The Florida Statutes and case law have established a set of criteria including a two factor test to help determine if it’s necessary to go back to court and/or retain an attorney for a modification: (1) a substantial, material, and unanticipated change of circumstances, and (2) that the modification is in the best interests of the minor children involved. Previously, strong evidence had to be shown to justify a modification, but it’s going to get even harder to obtain a modification. The Florida Bar Family Law Section held its annual conference in January of this year, and one of the topics discussed was the increasing congestion of the Judge’s dockets (schedule) partly due to an overwhelming number of pending modification actions. In an attempt to fix this docket congestion, I have seen a general policy shift where modifications granted upon the most extraordinary showings of a substantial, material, and unanticipated change of circumstances affecting the best interests of the minor children involved. In short, it is becoming more difficult to modify a settlement agreement.

What does this mean for you? If you separate from someone that you share a child or children with, it is now more important than ever to fight for an agreement that is as favorable and as forward-thinking as possible. In the past, it was often suggested to compromise on certain things that you could live with for now understanding that if it caused problems in the future, you could go back and make changes at a later time. A practical example would be: Katie and Bill (my fake couple for the purpose of this article) have a nine month old and they decide that it’s in the best interest of the child for both mom and dad to remain close by (live in the same county), so that baby learns and bonds equally with both parents at an early age. That means neither mom nor dad can relocate the child out of the area and they make it a part of the agreement. Ten years pass, baby is now older and Katie gets a dream job offer in Georgia. Since it was a part of the original agreement, Katie would have to choose between child and job, but making changes to agreement is no longer an option. From now on, it is absolutely essential that a settlement agreement to a Paternity action or Dissolution of Marriage with minor children, only agrees to terms that they can permanently live with. Think it through and seek the advice of an attorney before you sign a settlement agreement. For more information, call (352) 243-9991 and schedule a consultation today!  

Written by: Attorney Dylan Hall

Monday, August 4, 2014

Private Adoptions


 According to the Center for Disease Control and Prevention, in the U.S. alone an estimated 6.7 million women suffer from infertility and complications with carrying a baby full-term(http://www.cdc.gov/nchs/fastats/fertile.htm), which is a staggering number. For some, infertility treatments are enough to produce the children they desire. For others, adoption is the only option for ever building a family. I frequently find myself meeting with wonderful women/couples who are desperate to adopt a newborn or older children. Many of these people know that having biological children is unlikely to ever occur. Adoptive families have typically undergone a home study, background checks, health exams, retained an adoption attorney, etc., yet they wait... childless. Other than sending these individuals to yet another overpriced adoption agency, I have little assistance to offer. This blog is written to you personally in response to these clients, friends, relatives, and community members: If you know of someone  looking to adopt or are considering placing a child (children) for adoption, please contact my office for more information at (352) 243-9991. 

A note to birth mothers: I understand that your decision to place a child from an unplanned pregnancy (or older children) for adoption is a difficult one. Circumstances surrounding unplanned pregnancies are often complicated. I also respect and honor your selfless decision to give your child the best life possible in a loving and supportive family. I want to help you find adoptive parents that you feel comfortable with and then assist you as you get your life back on track. For more information, please contact my office at (352) 243-9991 and schedule a free consultation.

A note to adoptive parents: If your heart desires to adopt, keep seeking and I believe the door will be opened to you. Get the word out regarding your desire to adopt with everyone you know and schedule a free consultation with me regarding your options. 

To everyone else: Please join me in helping to create loving and supportive families in our community. Every child deserves to grow up in a good home with loving parents. Lets get the word out and help those in our community who are facing an unplanned pregnancy and as many of those 6.7 million women suffering from infertility as possible. The adoptions I have assisted with are almost always through word of mouth.  Thank you for your consideration.

Wednesday, March 12, 2014

Our 10 Best Tips for Surviving a Divorce


OUR 10 BEST TIPS FOR SURVIVING A DIVORCE

1. Find a counselor, professional coach or support group. Often local churches provide free support groups. Develop a network of encouraging people to surround yourself with- friends, family, church members, coworkers, etc. Listen to positive music and inspirational speakers.

2. Take time to create an individual identity. You are no longer Mrs. ______ or ______ husband. It's important to take time and create an individual identity. One of the best ways to do this is by taking up a new hobby or reclaim an old one. Revisit old friends and/or take a long awaited vacation. Women might also consider getting a new haircut as this tends to signify a change in their life. 

3. Take time for yourself to de-stress and disconnect from the divorce process. Read a good book (no divorce plots), schedule quiet bubble bath time, enjoy quiet time on a porch with coffee or wine, etc.

4. Exercise regularly and keep yourself healthy. I know everyone hates this one, but focus on finding an exercise you enjoy, not just for weight loss. Most divorce clients lose an average of 30 lbs. Remember to eat, take vitamins and keep your regular schedule.  

5. Don't sit by the phone or computer expecting constant communication from your attorney. You'll drive yourself crazy. You hired an attorney to handle the process of your divorce. They'll contact you when they have something new or need information.

6. Spend time with your kids, family members and/or friends making new memories. Keep it positive. Encourage them and don't involve them in the dirty details of the divorce. Do something nice for someone else as well.

7. Allow yourself to grieve. Psychologists claim the grieving process for a divorce and the death of a loved one are similar in pain/stress level. Give yourself some extra room and don't beat yourself up for a few public/private crying sessions.

8. Don't beat yourself up over the failed marriage. Instead, seek how to forgive yourself and others through books, research and spiritual guidance.

9. Try to avoid the "Guilty by Association."  While in the process of a divorce, it's easy to resent the people you see hanging out with your ex. Keep in mind that they are probably in a sticky situation and would prefer not to take sides. Even if they do, their opinion of you is obviously going to be one-sided. They are just a byproduct of the storm, not the storm itself.

10. Disregard your ex's hype regarding the divorce. It's common for ex's to try and intimidate you into believing you won't get anything, you're going to spend the rest of your life alone, you'll lose the kids, etc. etc. Most of the time, they are just blowing smoke. Run it by your attorney and learn to not be overtaken with fear/anxiety. The courts make the decisions, not your ex and believe it or not... ex's LIE.

Wednesday, February 12, 2014

Squatters in Lake County?

I suspect we'll be hearing more and more about these "Squatters" over the next few years, that is unless lawmakers get busy and come up with a solution. Squatters are groups or individuals (Often very organized groups) that are on the lookout for unoccupied homes to claim as their own. Unoccupied homes  are now a little more common as a result of foreclosures. Other homes could be unoccupied as a result of a couple who both temporarily leave a home after/during a divorce, a snow bird while they're away or just simply a family on vacation. All these unoccupied homes are at risk of attracting squatters.

Historically, squatters have been around for a long time. They exist internationally in large and small quantities depending on the country and the area's economic status. In America, squatters have historically occupied abandoned buildings and vacant land. In recent news, you may have heard about a few extreme cases of them occupying abandoned mansions in this economic downfall we're facing. In my practice, I've seen them moving closer and closer to this area. I've handled a few of these types of cases in Orange County, but now I'm actually getting them right here in Lake County.
Squatters (individuals, couples, groups, families, etc.) enter unoccupied residences and literally move right in and call it home. Some bring their own furniture and household furnishing, while others just take ownership of your belongings, sleeping in your bed and wearing your fuzzy bedroom slippers. They are frequently able to set up utilities online, create fake leases, and even change the lock on the front door. Easily installed outside cameras can give them the advantage of preparing for your visit/discovery as well. Despite the urge for property owners to kick in the door and forcefully retake possession of the property, that is not a recommended approach, as it will most likely land you in jail or worse. Squatters can potentially claim (at least try) to fall under the protection of tenant laws until you as the property owner prove otherwise. These tenant laws, which were originally created with the good intention of protecting legitimate tenants from being mistreated by dishonest landlords, have now been exploited by squatters.

Removal of these squatters is complicated as police don't want to get involved in what they see as a civil matter. Remember police deal with criminal matters. Tenants, whether invited or not, are seen as a civil matter, which is handled through the Courts first. You as the owner of the property have to prove in a court that the squatter has no legal right to occupy the property (prove it's yours, no lease/rental agreement, not a visitor, etc.) You can expect that a squatter will lie, claiming they have a lease, utilities in their name, etc. The process of taking them to civil court and/or filing an eviction can prove even more difficult as the name/identity of the squatter is necessary  to file an eviction against them. These criminals are smart and their identities are often unknown. They will move in and out of the house at night and leave vehicles inside the garage (if they have a car) making it difficult to identify a vehicle tag number. The squatters do not have mail delivered to the home, so you can't snoop in the mailbox (also illegal). Property owners are at a real disadvantage. Once the squatter's identity is discovered (which usually requires an investigator or some really helpful neighbors) a civil case can be filed. Property owners, if they do the right things, are generally successful at removing the squatters and regaining possession of the property, but it is not without it's share of headaches and legal fees.

To avoid problems with squatters, please do not leave your home/property unoccupied. If you leave on vacation, just need a break or leave seasonally as a lucky snow bird, get a house sitter or someone to come over regularly and check on the home/property. Have your property watcher move things around outside, turn on different lights (inside and outside) and leave them on for a day, collect mail, put trash out/collect garbage cans afterwards, consider getting a home security alarm, cameras installed outside, etc. Think of ways to keep your home/property looking occupied while you're away. Also, consider watching the homes around you and become very proactive on this issue in your neighborhood. If you find your property occupied by a squatter, get started right away by hiring an attorney. It will be a process, but play by the rules and you'll likely get your property back. You do not want to wait to take action.
If your home is in the process of foreclosure, do not leave it empty. Live there as long as possible, keep the utilities on and pay the HOA (Home Owners Association) fees. If you must leave the home before it is foreclosed upon properly, then consider renting it out and put the money into an account to pay the upcoming IRS tax liability, which will be the topic of future blogs. You might also get a family member to live there or call a local church to place a family there temporarily.