Jacksonville Divorce Attorney Blog

July 12, 2021

FLORIDA’S CIVIL THEFT STATUTE

Have you been taken advantage of by someone in a purchase or contract? This happens often when someone purchases something over the internet. Florida has a very large population of elderly individuals. Because many elderly persons are vulnerable and subject to exploitation some of Florida’s laws are more stringent than in other states. While elderly persons are the most preyed upon, anyone can be taken advantage of in a given situation and their money taken. If this has happened to you, you may have remedies under Florida’s Civil Theft Statute. Contact your local Jacksonville elder law attorney to find out if you have a case.

Florida’s Civil Theft statute can be found at §772.11 titled Civil remedy for theft or exploitation. This statute provides that any person who can prove by clear and convincing evidence that he/she has been injured in any fashion by reason of any violation of Florida’s criminal statutes §812.012-812.037 or §825.103(1) has a cause of action for threefold (or 3 times) the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. The criminal statute that covers theft is §812.014 and that generally is the statute you look at to determine if you have a civil theft case.

There are procedures that must be followed before making a civil theft claim. You must send a demand letter to the potential defendant and give them 30 days to make payment on the treble damages you will be alleging in your complaint. If that person complies and makes payment, a written release from civil liability for the specific act of theft or exploitation must be given to the defendant. You should consult your Jacksonville family law attorney for assistance if you believe you are the victim of civil theft.

June 24, 2021

WHAT HAPPENS IF ONE SPOUSE DOES NOT WANT A DIVORCE?

by B. Elaine Jones

It is not uncommon in a divorce case for one of the spouse’s not to want to end the marriage. One partner may think that there is a chance of working things out and resolving their differences, or they may not want to legally dissolve the marriage for other reasons. If your spouse has started divorce proceedings, and you really don’t want a divorce, your options may be limited but there is something you can do. Florida is one of seventeen states that follow No-Fault laws in divorce cases. The Petitioner only has to allege that the marriage is irretrievably broken. If you really do not want a divorce you should answer the Petition for Dissolution by alleging you do not believe the marriage is irretrievably broken. Florida Statute §61.052(2)(b)1 allows you to request the Court to Order you and your spouse to marriage counseling. It is rarely done and there are specific requirements that must be met. Your Jacksonville Family Lawyer can assist you in understanding this law and representing you in Court.

In order for a spouse to utilize this statute, the parties must have a child together. If the Court grants the request for marriage counseling, psychiatrist, priest, minister, rabbi, or any other professional the divorce will be placed on hold for approximately three months to allow the counseling to take place. Florida Statute §61.052(2)(b)2 allows the Court to continue the proceedings for a reasonable length of time not to exceed 3 months, to enable the parties themselves to effect a reconciliation. During any period of continuance, the Court has jurisdiction to make appropriate orders for the support and alimony of the parties; a parenting plan, support, maintenance, and education of any minor children of the marriage; attorney’s fees; and the preservation of the property of the parties. Consult your Jacksonville Family Lawyer for assistance with your case.

As previously stated, the above statute is rarely used. This is because if one person wants to end the marriage, counseling is usually not effective. By the time a person has made the decision to start the divorce process, they have usually given it a lot of thought and intend to go through with it.

June 21, 2021

Do I Need a Domestic Violence Injunction

by Neil Weinreb

What is Domestic Violence?

Under the Florida Statutes, Domestic Violence is defines as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offenses resulting in physical injury or death of one family or household member by another family or household member.” F.S. 741.28.

Is Domestic Violence Criminal?

June 11, 2021

Unlawful Detainer – No lease, No rent payments, How Do I Get Them Out of My House?

by B. Elaine Jones

In this day in age, many people are being forced to allow family members to live with them for what is supposed to be a temporary stay until they get on their feet again. They allow them to reside in their home without a lease out of the goodness of their hearts and then the good Samaritan gets taken advantage of by the temporary resident. What was meant to be a temporary stay turns into a longer period of time and when the Good Samaritan property owner asks the person to leave the home they refuse to do so. What can a person do under those circumstances when there is no lease in place? Eviction is not an option if there is not a lease. When there is no lease in place and the person refuses to leave you will have to file an Unlawful Detainer action or Ejection using Florida Statute. Your Jacksonville family law attorney can assist you with this type of case.

Unlawful Detainer cases are entitled to what is called summary procedure under Florida Statute §51.011. Under Summary procedure the defendant must file an answer with five (5) days after service of process. Normally, most complaints the defendant has 20 days to file an answer or respond. Under Florida’s unlawful detainer statute §82.03(4) the Court shall advance the cause on the calendar. This means that the Court is required to move it up on the docket and deal with it immediately. If the Defendant fails to answer after 5 days from being served, the Plaintiff (Homeowner) can file a Motion for Default Judgment. If the defendant answers the complaint the Court must conduct a hearing immediately to determine the legitimacy of the defendant remaining on the property. If the Court enters a default, the Plaintiff then receives a Final Judgment and requests the Judge enter a Writ of Possession. The sheriff then serves the Writ of Possession on the defendant and requires them to leave the premises. If the Court holds a hearing and finds that the defendant has no legitimate right to remain at the property, it will enter a Final Judgment of Possession on behalf of the Plaintiff. At that point, the Plaintiff submits a Writ of Possession to the Court which is entered and served on the Defendant by the Sheriff and if necessary, the Sheriff will remove the defendant from the premises and charge them with Trespass.

Since the pandemic hit, foreclosures and evictions have been stalled due to the Governor enacting a stay on foreclosure and eviction procedures based on the recommendation of the CDC. Unlawful detainers are not affected by the Order of the Governor stalling foreclosures and evictions. If you have family or friends that you have been gracious enough to allow them to stay in your home and they are refusing to leave and they do not have a lease or rental agreement with you, consider filing an Unlawful Detainer action. Your Jacksonville Family law attorney can assist you in taking back your property legally.

June 3, 2021

FLORIDA’S RELOCATION STATUTE, DO I REALLY HAVE TO GET PERMISSION TO MOVE MORE THAN 50 MILES?

by B. Elaine Jones

This is a question that is often asked by custodial parents. If you live in Florida the answer is yes. Florida has a relocation statute, and it is found at §61.13001 in the Florida Statutes. If you have a minor child and you are divorced or no longer in a relationship with the other parent, you cannot move more than 50 miles from the current residence without obtaining permission from the other parent or consent from the Court. This condition applies to both the custodial parent and the non-custodial parent. Your Jacksonville family attorney can assist you in determining how you can comply with the relocation statute to enable you to move.

The statute requires that unless there is an agreement between the parties, a parent or other person with time-sharing rights seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child. The pleadings must meet the following requirements:

a) The petition to relocate must be signed under oath or affirmation under penalty of perjury and include:

May 17, 2021

Do I Need to File for Support Not Connected with Dissolution of Marriage?

by Neil Weinreb

What is Support without Dissolution?

Section 61.09 allows a married individual to file for support (child support and alimony) where a person does not seek a dissolution. This statute allows a party to seek alimony or child support. However, that party may or may not request the entry of a parenting plan. A final judgment of support does not include distribution of marital assets. This type of action is sometimes referred to as separate maintenance.

“If a person having the ability to contribute to the maintenance of his or her spouse and support of his or her minor child fails to do so, the spouse who is not receiving support may apply to the court for alimony and for support for the child without seeking dissolution of marriage, and the court shall enter an order as it deems just and proper.” F.S. 61.09.

April 23, 2021

Shared Parental Responsibility vs Sole Parental Responsibility in Jacksonville, Florida

by B. Elaine Jones

This Jacksonville family law attorney’s office represents parents seeking shared parental responsibility and sole parental responsibility. In all child custody matters, the parties or the Court must determine what type of parental responsibility the parties will have. The two types of parental responsibility are Shared Parental Responsibility and Sole Parental Responsibility. It’s important that all parents understand the difference between the two types. Shared Parental Responsibility means that the parties will confer with each other regarding all matters concerning the minor child that they share. This includes such things as educational decisions, residence decisions, religious decisions, and medical decisions. If sole parental responsibility is granted to one parent, that parent does not have to confer with the other parent about anything. Check with your Jacksonville family law attorney about this issue before making a decision.

Most family law Courts believe that the parents should share these types of decisions and they order shared parental responsibility unless there is some good reason not to have the parents share in the decision making. Florida statute 61.13(2)(e)(2) allows the Court to grant sole parental responsibility if the “court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for time-sharing as specified in the parenting plan as will best protect the child or abused spouse from further harm”. An example of a good reason not to order shared parental responsibility in a case would be if one of the parents has exhibited poor decision making regarding the child in the past. Some examples of poor decision-making would-be things like 1) failing to register your child for school or home schooling, 2) failure to provide appropriate caregivers for when you are not present and able to care for the child yourself, or 3) failure to get medical treatment for a child when it needs medical care. Some more serious reasons for ordering sole parental responsibility are if there is a history of domestic violence, or a parent is incarcerated. In those instances, there is a rebuttable presumption of unfitness that will arise that shifts the burden of proof to the defending party to show they are not unfit. There may be other practical reasons to give one parent decision making powers over the other parent in certain areas. An example would be if one of the parents is not educated and is unable to assist the child with their education, the Court might give one parent ultimate decision making in the educational area. Contact your Jacksonville family law attorney to advocate on your behalf what is in the best interest of your child.

When reaching an agreement regarding parental responsibility, the parent should be careful not to relinquish their rights regarding this issue as it is very difficult to change the parental responsibility division once it is agreed upon or ordered by the Court. To change anything regarding the minor children once it is established by the Court, you must show that there has been a substantial change in circumstances that makes it detrimental to the welfare of the child not to change the parental responsibility. This is a very high burden of proof that lies somewhere between the preponderance of the evidence (or more than 50%) and beyond a reasonable doubt (or 99%). As always, before attempting to maneuver through the legal system alone, it is advisable to consult with a family law attorney first. Your Jacksonville family law attorney is here to advise you, guide you and advocate for you.

April 19, 2021

What Can I Do if My License is Suspended for Failure to Meet Child Support Obligations?

by Neil Weinreb

If Your License is suspended for Child Support Obligations, What Can You Do?

Florida law allows one’s driver’s license to be suspended when they fail to meet their support obligation. If your license is suspended as a result of child support obligations that are not satisfied, you should understand the law. If one truly cannot pay their obligation because they simply do not have the financial resources to do so, your license cannot be suspended, but you must act promptly.

Your License Can Be Suspended for Child Support Failures

April 6, 2021

BEWARE OF QUITCLAIM DEEDS

by B. Elaine Jones

“I signed a Quitclaim deed so I’m not responsible for the mortgage anymore”. That statement is one of the most common mistakes that people make when it comes to Real Estate transactions. Quitclaim deeds are used most often between family members such as an owner of property adding their spouse to property after marriage or transferring property in a dissolution of marriage. Many people think that signing a quitclaim deed relinquishes them from any obligation regarding the property that is the subject of the quitclaim deed. A quitclaim deed can quickly remove you from a property’s title and terminate your ownership interests. A quitclaim does not however, remove you from the mortgage or the responsibility to make payments. Your Jacksonville Family law attorney can assist you with understanding and preparing the correct deed.

Another common mistake is that the Grantee of a quitclaim deed gets a right to the property when they really do not have any guarantee that he/she actually has an interest in anything. A person that transfers property by quitclaim deed makes no promises that he or she owns or has clear title to the property. So the drawback, quite simply, is that quitclaim deeds offer the grantee/recipient no protection or guarantees whatsoever about the property or their ownership of it. Maybe the grantor did not own the property at all, or maybe they only had partial ownership. A quitclaim deed transfers title but makes no promises at all about the owner’s title. It essentially says that I am transferring whatever interest I have in the property described to whoever is the Grantee. A person who signs a quitclaim deed to transfer property they do not own, results in no title at all being transferred since there is no actual ownership interest. The quitclaim deed only transfers the type of title you own. A property search can be done to determine what ownership interest the grantor of a Quitclaim deed actually has in the property. Your Jacksonville Family law attorney can assist you with the research regarding the property and drafting the appropriate deed.

Quitclaim deeds are also utilized as an estate planning tool instead of leaving property to family members through a Will or other estate document. Instead, the property owner simply signs a Quitclaim deed, which must be notarized and recorded with the county recorder. Quitclaim deeds are not taxable when they transfer ownership to a spouse or a qualifying charity. Other transactions may be liable to property and gift taxes. Once the quitclaim deed is signed and notarized, it is a valid legal document. The Grantee must also have the quitclaim deed recorded in the county recorder’s office or with the county clerk in order for the document to take full legal effect and notify the public of the transfer of interest in the property. If you want to make sure that you have the appropriate deed and it is filed correctly, call your Jacksonville Family law attorney to assist you.

March 23, 2021

What Do You Need to Know About Timesharing in Florida?

by Neil Weinreb

Why Timesharing is Important?

A dissolution can be a very emotional experience for some. This is especially true when a divorce involves children. The current rules require that when parties have children, a parenting plan must be developed. The parenting plan details parental responsibility, timesharing (formally referred to as visitation), and child support. It may also include additional details unique to a particular child or children, or it may address a unique family situation. Although the Court system attempts to equalize timesharing between parents, this is not always possible. Parents may work or live so far apart that a 50% timesharing schedule would be impractical.

What Are the Different Types of Timesharing?