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.

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Many pet owners treat their pets as if they are their own children, whether it be a dog, cat, turtle, or gerbil.  For these owners, the pet is an integral part of the family.  Unfortunately, in a Florida divorce, pets are not considered part of the family.  Rather, they are considered property.  That means that when the divorce process is complete, only one spouse will own the pet and the other will not be able to see the animal.  Divorcing couples can choose to agree to another arrangement, but the Court will only award pets to one spouse in a divorce.  Your Jacksonville family attorney can assist you with this emotional issue of pet custody.

How Florida’s Equitable Distribution Laws Apply to Pets

Florida follows equitable distribution laws when it comes to property division, which means the property is divided fairly, although not necessarily equally.  When the case is taken to Court, the outcome will depend heavily on the facts of your case.  While the best interests of the pet are not taken into consideration in the same way as when child custody decisions are being made.  The Court will consider several factors when deciding on which party can keep the pets.  These factors include:  1)  If one spouse owned the pet before the marriage, the pet will typically remain with that spouse when the marriage is dissolved; 2) Which party spent the most time and effort caring for the pet?; 3) Which party took the pet to vet appointments and otherwise tended to its needs?;  4) Which party is financially capable of caring for the pet?;  5) Which party is in the best health to care for the pet?; 6)    What is the value of the pet?; 7) If a couple has children, the pets will go where the children go to prevent any further loss, pain, or heartache; 8) Finally, if there is a prenuptial agreement, and it addresses the issue of who gets the pet in the event of a divorce, then there is no argument as to who the pet is going home with.

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Mediation is an alternative dispute resolution that is mandatory in a Florida divorce, paternity, or modification case, but many people do not see the process as the benefit it is.  During mediation, the two parties will meet with a mediator who is an unbiased and uninterested person in the case.  The mediator will try and help the parties resolve all disputes related to the family law case.  If an agreement is reached, it is drafted and submitted to the Court for approval so the case can be closed.  While the process is straightforward, there are still many myths related to the process.  Your Jacksonville family attorney can assist you in understanding the mediation process.  Below are the biggest myths about family law mediation in Florida, and the truth behind them.

The Mediator Will Make All the Decisions

This is simply untrue.  Mediators do not make any of the decisions when they meet with parties going through a divorce, paternity, or modification case.  They cannot force either party to do, or not do, anything.  Instead, they are only there to help you and facilitate you and your spouse, ex-spouse, or co-parent to reach an agreement.  If you cannot reach an agreement and your case requires litigation, it is the Judge that will make all the decisions.  Your Jacksonville family attorney is here to assist you in mediation and to represent you in any litigation should you not reach agreement.

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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It is no secret that going through a divorce is expensive.  Although there is very little that you can do about certain costs of your divorce, such as what you may or may not lose during property division hearings, there is one area of expenses you can control.  That is your legal fees and costs.  All divorce attorneys in Jacksonville will charge something to legally represent you during the process, and the advice and counsel they bring to your case are invaluable.  Still, there are some ways that you can keep the legal costs down, so you do not face unexpected charges in the future.  Your Jacksonville divorce lawyer can explain to you in your initial consultation how to keep your legal costs down but here are some basic tips.

Call and Email Only When You Have To

            Most divorce lawyers in Jacksonville will charge you for every time they devote to answering your phone calls and emails.  However, you likely want them to spend this time preparing for your trial, mediation, or other aspects of your case.  You will have many questions during the divorce process, and you deserve to have them answered.  Instead of incurring fees every time you have a question, prepare a list of questions, and ask them all at once.  Your Jacksonville divorce lawyer will still charge you, but you will likely incur fewer legal fees.

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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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Do You Know Your Rights in Child Support Court?

In a child support case, one cannot be incarcerated if they do not have the present ability to pay.  Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985).  Although this case is binding on Florida courts, the author believes that self represented individuals do not get the benefit of legal protections against incarceration or cancellation of a driver’s license or professional license.  The author believes that one reason for this is because laymen tend to believe that an administrative agency must take a neutral position (similar to a judge).  This is not the case when it comes to collection of child support by the Florida Department of Revenue.  The author, in the next paragraph is going to summarize the case of Bowen v. Bowen to give readers a clearer understanding of child support issues when the Florida Department of Revenue is involved.

The Case of Bowen v. Bowen.

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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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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.

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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