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The question as to whether or not an individual needs an attorney to divorce in Florida is simple if we review the question literally.  You can get a divorce in Florida without an attorney.  However, it may be unwise to attempt to be divorced without an attorney.

Why Should I Use an Attorney?

The author believes that an attorney is essential if you are attempting to obtain a divorce.  This may sound like a self serving statement, but the author thinks there are numerous reasons that one should use an attorney to guide them through the process.  The author feels that having an attorney keeps otherwise Pro Se (self represented) clients forging ahead and not getting side tracked by discovery issues and other procedural problems regularly encountered and routinely dealt with by attorneys.

The marital home is frequently the largest asset between the parties to be divided in a divorce. When and how the marital home was acquired will be a major factor in determining who gets the marital home temporarily and permanently.

What is Exclusive Use and Possession?

Exclusive use and possession refers to one party receiving permission to use the home for their own purposes. Conditions are frequently provided for, as well. A frequent condition to receiving exclusive use and possession of a home is typically connected with paying the mortgage or other household bills.  This sometimes occurs initially after holding a temporary needs hearing or a domestic violence injunction hearing.  The most expedient, but not necessarily recommended way that a spouse can obtain exclusive use and possession of a home is through a domestic violence case. Using a domestic violence case to obtain exclusive use and possession should only be pursued when it involves a Petitioner that has been the victim of domestic violence. In other words, a petition for injunction should only be filed when actually necessary to stop or prevent violence. Where domestic violence is not an issue, a temporary needs hearing would be the best vehicle to obtain a temporary order to decide who stays in the home temporarily. The author has seen a number of occasions where both parties shared the home while they waited for a final hearing because neither party had a good option to leave.  This is not recommended, as it is natural for hostility to build between two partis going through a divorce.

There are two common types of implied warranties.  One is referred to as an Implied Warranty of Merchantability.  The other is referred to as an Implied Warranty of Fitness.

Implied Warranty of Merchantability

An implied warranty of merchantability is an unwritten warranty to a Buyer that the goods purchased from a merchant conforms to the ordinary standards that one would expect from similar goods. The Uniform Commercial Code provides that a warranty of merchantability applies when: a Seller is the merchant of the goods sold, and the Buyer uses the good purchased for their ordinary purpose.  Therefore, a Buyer may sue for breach of implied warranty where the product does not perform as expected in its ordinary usage.  To have a valid claim for breach of an implied warranty of merchantability, a product must fail to perform as it is normally used.

Your domicile is the place upon which an individual has voluntarily decided to reside permanently.  In the ordinary sense, a persons domicile is the place where he lives and where he has his or her home.  However, the legal definition is more specific.  The plan in which a person has his or her permanent home and principal establishment upon which he intends to return whenever he is absent would fit the legal definition of domicile.

Why is it Important to Determine Domicile?

The domicile that one chooses has legal consequences. One’s domicile determines which state can probate a will.  It also determines which state can collect estate taxes when someone dies.  One’s domicile establishes where an individual may exercise certain legal rights and privileges.  Where one has the privilege to vote is determined by domicile.

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This month is National Make-A-Will Month.  Although most Americans realize the importance of estate planning, it is estimated that 50-60% do not have a will.  If you do not yet have an estate plan, now is the time to act!  Your Jacksonville family or estate lawyer can assist you with creating this plan.

Why is it important?

            The entertainer commonly known as Prince died unexpectedly at the age of 57 years old.  Since he had not established an estate plan before he passed, Prince was unable to designate how his fortune would be shared.  Prince’s estate is still tied up with legal battles some five years later!  Not having a will can lead to family disputes and, as was the case with Prince’s estate, costly litigation.  Having your final documents in order before it is too late is an expression of love and compassion for your family and friends.

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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 alleged in your complaint.  If that person complies and makes the 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.

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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?

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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.

 

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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

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Florida is an “at will” employment state. What that means is that an employee can quit at any time and an employer can fire an employee at any time for any reason as long as it is not an illegal reason. Some examples of illegal reasons would be discriminatory reasons (i.e., Race, sex, religion) other examples of illegal reasons are because an employee files a worker’s compensation claim, or because an employee reports illegal activity on the part of the employer. Employees who have contracts with their employers are governed under those contracts. There are also specific contracts known as Non-compete agreements that bind an employee during and after employment with an employer.

Florida has a Non-compete Statute which can be found at Florida Statute 542.335. This statute governs the enforceability of non-compete agreements. The basic premise of the statute is that the agreement must be reasonable. Reasonable as to time and reasonable as to geographic location. It also must be ”reasonably necessary to protect the legitimate business interest” of the employer. Florida courts have essentially decided these cases on a case-by-case basis look at each case and its specific facts to determine the reasonableness of a non-compete agreement. There is no “bright line” test as to what will be held to be a valid non-compete agreement. Your Jacksonville employment attorney can assist you in determining whether or not your non-compete agreement is valid or questionable. Case law has set some guidelines for the employee and employer to follow but the area of the law is still somewhat ambiguous. For example, case law has indicated that a two-year term following the employee’s termination from employment was a reasonable timeframe. In regard to geographic location, the courts have held in some cases that even a statewide provision was reasonable depending upon the whether the employer does business statewide and whether it has regional offices within the state. Most litigation regarding non-compete agreements hinge on what is a protectable legitimate business interest.

In a recent case, White vs Mederi Caretenders Visiting Servs. Of Southeast Florida LLC, 226 So.3d 774 (Fla. 2017), the Supreme Court of Florida held that a company’s referral source may be a protectable legitimate business interest. In making that ruling, the Court encouraged the active involvement of trial courts in assessing the enforceability of non-compete agreements. The Court emphasized that trial courts were best able to apply the statute to specific fact situations and that the Florida Non-compete Statute and the legislative intent behind the statute “grants trial courts fairly wide discretion to fashion the appropriate context-dependent remedy.” A Non-compete agreement can include an employee’s agreement not to work for the employer’s competitors, an agreement not to solicit the employer’s customers or other employees of the employer and a confidentiality clause. Florida’s Non-compete statute identifies five items that are considered legitimate business interests and they are: trade secrets; valuable confidential information; substantial relationships with customers, patients and clients; goodwill; and extraordinary or specialized training. If your employer is asking you to sign a non-compete agreement, you should take the agreement to a Jacksonville employment lawyer for review before signing it.

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