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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.

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.

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.

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?

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.

 

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

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.

How do you and your spouse share the finances?

Most married couples have their finances mixed together. For instance, it is not unusual for a married couple to share credit cards, savings and checking accounts, real estate, and other property.  When parties go through a dissolution, these finances must be untangled.  The process of distributing assets to each party is known as equitable distribution.  The process of exchanging financial information with the opposing party is known as mandatory disclosure.  The Family Law Rule of Procedure, Rule 12.285 details what information must be disclosed as well as the time periods for disclosure.

What forms do you need to complete?

Florida Guardianship is a legal process used to protect individuals who are unable to care for their own wellbeing due to the fact that they are a minor, are incapacitated or developmentally disabled.  A Court will appoint a legal guardian to care for the individual, who needs special protection.  The individual is known as a Ward.  Legal guardians have the legal authority and fiduciary responsibility to make decisions for their Ward regarding personal and financial interests.

Florida is a state that regulates guardianships very strictly.  Regulations vary from state to state regarding guardianship law, but Florida has very stringent requirements of Guardians.  In fact, the basic premise in Florida regarding guardianships is that the Court is charged with making sure that the least restrictive means are utilized when dealing with an individual who is determined to be incapacitated or is developmentally disabled.  Florida has a large population of elderly people and the guardianship laws are purposely strict to protect those people who are most vulnerable such as elderly people, developmentally disabled persons and minors.

There are essentially four types of Florida guardianships, they are Plenary, Limited, Advocacy and Guardianship for Minors.  The Plenary guardianship is a guardianship over the person and their assets.  It is a two-step process that starts with the person being determined to be incompetent or incapacitated.  Once the person is determined to be incapacitated, the Court must then determine what specific rights must be removed and what rights will be retained.  The specific rights that the Court addresses and determines whether the alleged incapacitated person is capable of exercising are:  1) Right to marry; 2) Right to vote; 3) Right to contract; 4) Right to travel; 5) Right to sue and defend lawsuits; 6) Right to have a driver’s license; 7) Right to determine his/her residency; 8) Right to seek or retain employment; 9) Right to consent to medical treatment; 10) Right to personally apply for government benefits; 11) Right to manage property or to make any gift or disposition of property; and finally 12) Right to make decisions about his/her social environment or other social aspects of his/her life.  The guiding principle in determining what rights to take away from the incapacitated person is utilizing the least restrictive means necessary.  The Limited Guardianship limits the guardian’s authority to certain areas regarding the Ward’s life such as limiting the guardian to authority over the Ward’s finances.  The guardian advocacy is a guardianship that is established when a person is born developmentally disabled such as a person born with mental retardation, Autism or some other mental disease that prevents them from growing mentally.  The Guardianship of a Minor is generally established when the minor receives a money settlement or has lost both parents and needs someone to look out for their health, welfare, maintenance and assets.

For some, child support is an ongoing obligation that holds no light at the end of a long tunnel that can extend over 18 years.  Every situation is different and the answer as to when child support will end depends on your individual situation.  An experienced North Florida Family Law Attorney can review your circumstances and help you obtain the best result for you under the law.  

The answer to when child support ends is far from a black and white question in Florida.  Conceptually, child support is the right of each child.  Therefore, courts are reluctant to enter an order that does not provide for child support.  As a practicing Family Law Attorney, I have encountered many individuals that believe that parents can simply agree that child support will not be provided for in a final judgment of dissolution or paternity.  In Florida, a statutory guideline exists to determine what is presumptively reasonable for a parent to pay for child support.  The court can depart from the statutory amount by up to 5%, but there must be specific findings of fact enumerated in the order to justify any departure beyond the 5%, up or down.  

Under current law, when two or more children are provided for in a support order, that order must include provisions detailing when the support obligation terminates for each child.  There should be a modification of the income deduction order to reflect the changes.  There are circumstances that allow child support to continue past the age of 18.  If a child is still in high school at age 18 with a reasonable chance of graduating before age 19, child support may continue through graduation.  Where a child graduates high school prior to his or her 19th birthday, support ends at age 18.  If a child becoming an adult has a disability that would result in the child continuing to be a dependent, child support could continue indefinitely.  There are other less conventional reasons that child support might end, the death of a child, the emancipation of a child, or a situation where a child is earning enough money that no support is required (this would be a rare occasion, but there are numerous child stars that have earned more than their parents).  Under Florida Law, the only circumstance where one would be obligated to support a healthy adult child beyond the age of 19, would be where an Obligor agrees to such a duty in a contract (i.e. marital settlement agreement). 

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