Family Law (16)
Attorney’s fees can be awarded in divorce, paternity, support, modification, and post-judgment matters.
A party can petition the Court to have attorney’s fees paid by the other party. Among the factors the Court will consider is the financial resources of both parties. In general, the greater the financial disparity amongst the parties, the more likely it is the Court will award to the less financially fortunate party attorney’s fees.
There are three options when parties divorce and a marital home is involved. (1) You can buy your spouse’s half of the home (2) Your spouse may buy your half of the home or (3)
The home can be sold and the proceeds split.
If nothing is filed within the 20 day timeframe then the Clerk may enter a Default Judgment. If a default judgment has already been entered against you in your dissolution of marriage proceeding you may file a motion asking the Judge to set aside the default judgment and make a decision based on the merits of your case.
Yes, after being served with a Petition for Dissolution of Marriage, there is a 20 day time frame in which you must file an Answer.
Whenever minor children are involved in a Dissolution of Marriage proceeding the parents must enter into a parenting plan and time-sharing schedule. Parents are expected to co-parent their children. The time sharing schedule determines the schedule of contact between the children and each parent. In determining the specific parenting plan and time sharing schedule the Court is required to determine the best interests of the child. Florida Statutes contains a list of factors the Court is to use to make that determination, and these are referred to as the “best interest factors.” Florida Statutes 61.13
It is hard to determine how long the divorce process will take. It depends on the individual parties and their unique circumstances such as children being involved and what assets and liabilities need to be divided. Also, how much the parties can agree on without needing to go to trial as well as the availability on the Judge’s calendar for motions, pretrial, and trial.
By statute, Florida is a “no-fault” divorce state. This means that either spouse may request a divorce by proving to the court that the marriage is “irretrievably broken.” As a result, in seeking a divorce you do not have to prove that your spouse has committed adultery, domestic violence, spousal abuse, or otherwise acted in a way justifying dissolution of the marriage.
In Florida the specific amount of child support that must be paid by a parent is governed by law. Child support is based on a mathematical formula. The information which is plugged into the formula includes the gross incomes of each party, the amount paid by each party for health care for themselves and the children, the day care expenses paid by each party, the amount of child support ordered and actually paid by either party for other children, and whether the parties are utilizing a time sharing schedule where both parties have substantial time with the children, or whether the children spend the majority of their time with one parent or the other. Substantial time sharing is where a parent has 40% or more of the overnights with a child.
Alimony or spousal support is based upon need and ability to pay. That is, the need of the spouse requesting alimony and the ability to pay of the spouse from whom alimony is sought. Need is determined by taking the net income the requesting spouse earns (or the amount the Court determines that spouse should be earning), and subtracting from that net income the cost of paying for the reasonable and necessary living expenses in the lifestyle to which the parties have become accustomed during the marriage. If the result is a negative number, that is the requesting spouses need. The ability to pay of the spouse from whom alimony is sought is similarly determined by taking the net income that spouse earns (or the amount the Court determines that spouse should be earning), and subtracting from that net income the cost of that spouses reasonable and necessary living expenses in the lifestyle to which the parties have become accustomed during the marriage. If the result is a positive number the court may determine there is the ability to pay.
Alimony may also be awarded on a temporary basis along with temporary child support, time-sharing, exclusive use and possession of the marital home, and attorney’s fees.
Florida creates specific instructions for parties attempting to relocate, including a procedure for obtaining the permission of the Court. This process must be followed even if your Final Judgment is silent on the issue. You will need to provide a detailed written notification to the other party, who will then have the right to object. If the other party objects, then an evidentiary hearing will take place on this issue. The burden of proof will be on the parent seeking to re-locate as to, among other things, why this move would be in the children’s best interests.
As a general rule, children never appear in or testify in court. In fact, you must seek permission of the court allowing a child to testify. However, pursuant to Florida Statute 61.13, one of the many factors the court can consider when ordering a parenting plan is the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
No. Time-sharing and child support are treated separate and apart from each other by the court except as it relates to calculating child support.
A parent who wants to change a child’s last name must file a petition with the court and serve the other parent with the petition by service of process. The other parent is given the opportunity to object. If the other parent objects there will be a court hearing. A court will grant a name change upon a showing that it is the best interest of the child.
Mediation is a process in which a neutral third party assists the parties in reaching an agreement on issues in dispute. All parties are required to mediate before the case can be scheduled for hearing.
In all cases involving minor or dependent children, both parties are required to attend a parenting class before the case can be scheduled for hearing.
Mandatory Disclosure Checklist:
- Financial Affidavit
- All personal (1040) federal and state income tax returns, gift tax returns, and intangible personal property tax returns for the preceding 3 years; IRS forms W-2, 1099, and K-1 for the past year because the income tax return for the past year has not been prepared.
- Pay stubs or other evidence of earned income for the 3 months before the service of the financial affidavit.
- A statement identifying the source and amount of all income for the 3 months before the service of the financial affidavit, if not reflected on the pay stubs produced.
- All loan applications and financial statements prepared for any purpose or used for any purpose within the 12 months preceding the service of the financial affidavit.
- All deeds to real estate in which you presently own or owned an interest within the past 3 years. All promissory notes in which you presently own or owned an interest within the last 12 months. All present leases in which you own an interest.
- All periodic statements for the last 3 months for all checking accounts and for the last year for all savings accounts, money market funds, certificates of deposit, etc.
- All brokerage account statements for the last 12 months.
- Most recent statement for any pension, profit sharing, deferred compensation, or retirement plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, etc.) and summary plan description for any such plan in which you are a participant or alternate payee.
- The declaration page, the last periodic statement, and the certificate for any group insurance for all life insurance policies insuring your life or the life of your spouse.
- All health and dental insurance cards covering either you or your spouse and/or your dependent child (ren).
- Corporate, partnership, and trust tax returns for the last 3 tax years, in which you have an ownership or interest greater than or equal to 30%.
- All credit card and charge account statements and other records showing your indebtedness as of the date of the filing of this action and for the prior 3 months. All promissory notes on which you presently owe or owned within the past year. All lease agreements you presently owe.
- All premarital and marital agreements between the parties to this case.
- If a modification proceeding, all written agreements entered into between the parties at any time since the order to be modified was entered.
- All documents and tangible evidence relating to claims for an unequal distribution of marital property, enhancement or appreciation in non-marital property, or non-marital status of an asset or debt.
- Any court order directing that you pay or receive spousal support (alimony) or child support.
Of course the goal in all criminal cases is to have the Court dismiss or the State nolle prosse (drop) the case. Andrew will explore these options and he will advocate for this resolution when appropriate. However, if the State will not drop the case, Andrew will try to convince the State to reduce the criminal DUI charge to a less serious charge of Reckless Driving. There are significant benefits to getting a DUI charge reduced to reckless driving including but not limited to lesser criminal punishments, no court ordered license suspensions, reduced court costs, and (possible) lower insurance ramifications.
Even if Andrew convinces the State to reduce the DUI charge to a lesser Reckless Driving charge, it does NOT mean you must accept the offer. Andrew will meet with you and carefully discuss your available options and what is in your best interests for both the short and long term. He will go over the State’s offer, the consequences of rejecting the offer, the likelihood of success at trial, as well as other alternatives. Ultimately, after hearing Andrew’s expert advice, YOU will make the decision on how to proceed with your case.
Did the officer have a valid legal reason to pull you over?
- An officer can pull you over if you have violated a traffic law (speeding, red light, failure to maintain a single lane, careless driving, etc.)
- An officer can make a traffic stop if the officer observing your driving pattern, has a well founded suspicion that the driver is either ill, injured, impaired, or the car is having mechanical problems. An officer must be able to articulate what factors were present that justified the stop.
- At times, an officer can make a traffic stop based on an anonymous tip from a citizen.
Did the officer have sufficient reasonable suspicion to continue to detain the DUI suspect and ask them to perform FSEs?
This is a very fact specific argument. Andrew will have an in depth discussion with you, other witnesses, and review all the evidence – including the DUI video in order to ascertain whether law enforcement had reasonable suspicion to detain you.
There are certain minimum mandatory punishments for ALL FIRST TIME offenders convicted of DUI.
ADJUDICATION OF GUILT: This is a conviction for a misdemeanor DUI charge and cannot be sealed or expunged off your record.
TWELVE (12) MONTHS PROBATION, INCLUDING –
- pay a $500 fine
- pay approximately $480 in court costs
- complete DUI School: 12 hour in-person DUI class followed by an evaluation for alcohol and substance abuse and completing any recommended treatment
- perform 50 hours of community service.
- six (6) month Court ordered driving revocation, and
- a 10 day immobilization of your vehicle
If you complete the terms of your probation, you may ask the Court to terminate your probation earlier than the 12 month term.
The MAXIMUM penalty if convicted of DUI is up to 180 days in jail for a first offender, and if a crash occurred, up to 364 days in jail. If you have prior DUI convictions, or if your breath sample was over 0.15, you will face enhanced punishments.
If you refuse to provide a breath sample, you limit the State’s evidence against you by not giving them a breath alcohol number to use against you in Court. However, if you refuse to provide a breath sample, the DHSMV will seek to suspend your driver’s license for up to one year for a first refusal or 18 months if you have previously refused.
The State of Florida presumes you are impaired if you blow over 0.08. However, even if you blow under this limit, you will NOT be un-arrested. You can be DUI even if you blow under the legal limit. Conversely, if you blow over the legal limit, you are not automatically guilty of DUI.
In prosecuting DUI cases, the State of Florida focuses on certain factors or clues to try and prove a person is DUI. There is no one factor that establishes a person is DUI, but rather law enforcement looks to observe and identify as many factors as possible when investigating a DUI. Some factors or clues are:
Driving: Did you swerve, drive erratically, cause an accident, fall asleep at the wheel, fail to stop at a stop sign, etc. The State will rely on driving indicators of impairment to try and build a DUI case against you.
Appearance and Behavior: Once stopped, the officer will examine how you looked, acted, and behaved. Do you have bloodshot and/or glassy eyes, slurred speech, and/or lethargic movements? Are you giving inappropriate answers? Do you look disheveled? An officer will note if the suspect can produce the necessary documents – driver’s license, proof of registration, and insurance in a timely and coordinated manner.
Statements: Nothing is more damaging to your defense than your own incriminating statements (i.e.admitting that you drank alcohol, the amount of alcohol you drank, and that you are impaired by the alcohol). YOU HAVE AN ABSOLUTE RIGHT TO REMAIN SILENT. You do not need to answer the officer’s questions. Although, your silence may make the officer angry, it will protect you by not giving the officer and the prosecutor additional evidence to use against you later in Court.
Field Sobriety Exercises (FSE): If the officer suspects you of being DUI, you will be asked to perform the FSEs to “dispel” the officer’s opinion that you may be impaired. However, it is virtually impossible to successfully complete all the FSEs. YOU HAVE THE RIGHT TO REFUSE TO PERFORM THE FSEs. Although the officer will say that your refusal will be held against you in court, if you perform poorly this will have a devastating impact on your case.
If you are Eligible, the following is the process to obtain an immediate hardship license:
Criminal Law (7)
For some misdemeanor offenses (petit theft, traffic offenses, and possession of marijuana), an officer may choose to give you a NOTICE TO APPEAR rather than arrest you and bring you to jail. If you are ARRESTED, you are handcuffed, taken to Orient Road Jail, booked into the jail, and given a bond. In order to get out of jail, you will need to post a bond in order to insure that you will appear at your future Court hearing(s). If you are given a NOTICE TO APPEAR by the officer, the paper will notify you of your future court date, you are not handcuffed and not booked into jail. You are free to go. But you must still appear at your Court hearing. If you fail to appear, a warrant will be issued for your arrest. YOU SHOULD ALWAYS ASK THE OFFICER FOR A NOTICE TO APPEAR RATHER THAN BE ARRESTED.
The bond is used to insure you will appear at each and every Court hearing until the case is fully resolved. Each crime usually has a standard bond amount that attaches once you are booked into jail. In order to be released from jail, you need to post that bond amount. The more serious the crime, the higher the bond amount. Some crimes (domestic violence battery, violent crimes, sex crimes, and certain drug trafficking crimes) have NO BOND and you must stay in jail until your case is heard by a Judge.
When you are booked in jail, you will be told your bond amount. If you want to get out of jail, you have two options:
Option 1: Have a friend or family member (“depositor”) come to Orient Road Jail with the full amount in cash. This is called a “cash bond”. You will be released from jail – although it may take many hours to be processed through the system. If you appear at all court hearings (unless your attorney appears on your behalf), the depositor will get the cash bond returned to them once the case is finished in Court. HOWEVER, if you are found guilty of the crime, the Court may order you to pay court costs out of the posted cash bond amount. If so, the remaining balance will be returned to the depositor.
Option 2: You, a friend or family member can hire a bondsman. Typically, the depositor will give the bondsman 10% of the total bond amount (called “the juice”). This “juice” will not be returned to the depositor but is considered the bondsman’s fee. In addition to the “juice”, the depositor will have to come up with collateral equal to the 90% remaining balance. The collateral may be a title to a car, house, jewelry, etc. Once your court case is finished, and you appear at all the court hearings, then the collateral is returned to the depositor. If you fail to appear at the Court hearing, then the collateral can be kept by the bondsman.
For felony offenses, the diversion program is called PRE-TRIAL INTERVENTION (PTI). This program is a tremendous opportunity for first time offenders because if you successfully complete the program, the criminal charges are DISMISSED against you.
- PTI is available at the sole discretion of the State Attorney’s Office and usually requires the victim to agree.
- The program requires you to appear at the PTI officer’s office once per month to show proof of compliance with the PTI requirements.
- These requirements may include: community service hourse, drug and alcohol evaluation and treatment, random urine screens, paying restitution to the victim, letter(s) of apology, etc. The requirements vary with the type of offense and tailored to meet the particular facts of your case.
- The program is 9-18 months long.
- After successfully completing the program, the charges against you are DISMISSED and you may be eligible to have the charges expunged from your record.
- HOWEVER, if you violate the terms of the PTI program or are arrested with a new criminal charge, you will be expelled from the program and the court case will restart against you from the beginning.
- To qualify for PTI, you cannot have any prior felony charges against you. You cannot have too many prior misdemeanor charges against you.
For misdemeanor charges, the diversion program is called MISDEMEANOR INTERVENTION PROGRAM (MIP). Like PTI, this program is a tremendous opportunity for first-time offenders because after you successfully complete the program, the criminal charges are DISMISSED against you.
- MIP is available at the sole discretion of the State Attorney’s Office and usually requires the victim to agree.
- The program requires you to appear at the MIP officer’s office once per month to show proof of compliance with the MIP requirements.
- These requirements may include: community service hourse, drug and alcohol evaluation and treatment, random urine screens, paying restitution to the victim, letter(s) of apology, etc. The requirements vary with the type of offense and can be tailored to fit the particular facts of your case.
- The program is typically 3-6 months long.
- After successfully completing the program, the charges against you are DISMISSED and you may be eligible to have the charges expunged from your record.
- HOWEVER, if you violate the terms of the MIP program or are arrested with a new criminal charge, you will be expelled from the program and the court case will restart against you from the beginning.
- To qualify for MIP, you cannot have any prior misdemeanor or felony charges against you.
Miranda Rights are: 1.) You have the right to remain silent. 2.) Anything you say can and will be used against you. 3.) You have the right to an attorney before and during any interrogation. 4.) If you cannot afford an attorney, you have the right to have an attorney appointed to you before and during any questioning.
- Miranda Rights apply only when a person is detained by the police or a person is not free to leave AND, the person is being asked questions by the police which may result in an incriminating response.
- A person who is accused of committing a crime by law enforcement must be read his/her Miranda Rights before he/she can be subjected to a custodial interrogation.
- You can be arrested and NEVER read your Miranda Rights.
- If you are detained and the officer wants to question you about the crime, the police officer must first read you your Miranda Rights.
- If you are detained and questioned without Miranda Rights, the criminal case usually will not be dismissed. But, the statements you made without the Miranda Rights may be suppressed and not allowed to be used against you.
There are three types of pleas:
- NOT GUILTY: means you formally deny committing the crime of which you are accused. If you plea Not Guilty, your case will proceed towards a trial where the State must prove you guilty of the crime. You can change this plea at any time during the course of the Court case.
- GUILTY: means you formally admit to committing the crime of which you are accused.
- NO-CONTEST: means you do not admit to committing the crime nor do you deny committing the crime. Rather, you admit that the STate can prove the case against you.
In Florida, a person who pleads guilty or no-contest to a criminal charge or who goes to trial and is found guilty of a criminal charge will be sentenced by a Judge. The Judge can sentence someone to an ADJUDICATION OF GUILT or the Judge can WITHHOLD ADJUDICATION OF GUILT.
If the Judge adjudicates you guilty, it means you have been formally found guilty of the crime and you are convicted of the crime. For both misdemeanor and felony convictions, this will be on your permanent record. For felony charges, you will be a convicted felon and face many restrictions of your liberties (i.e. unable to vote, possess firearms, denied certain employment, etc). You must be convicted in order to be sentenced to jail or prison time. Additionally:
If the Judge withholds adjudication of guilt, it means you have not been formally found guilty of the crime and there is no conviction. It is possible to plea guilty to a crime but still receive a withhold of adjudication and thus, not be convicted of the crime. However, for punishment, the Judge can still order you to probation or other sanctions.
There are 1 of 5 ways a criminal case is resolved in State Court.
- Nolle Prosse (State Attorney’s Office drops the criminal charge): Andrew will always evaluate a case and first determine whether this Nolle Prosse option is available. This means a careful review of the facts, the client’s background and history, and the strengths and weaknesses of the case. If it is a viable option, Andrew will work to convince the prosecutor that the case should be dropped against his client.
- Diversion Program: First time offenders may be eligible to enter a pretrial diversion program as a way to resolve their case. These programs are available at the discretion of the State Attorney’s Office and not the Judge. These programs are available for some felony, misdemeanor, juvenile and even some traffic offenses (NOT DUI). The beauty of these programs is that a client does NOT have to admit guilt in order to be allowed in the program. Once the client successfully completes the diversion program, the case is dismissed. Later, the client may be eligible to have the criminal record expunged.
- Motion Practice: While reviewing a client’s case, Andrew may determine that an appropriate motion can resolve the case in his client’s best interests. For example, a Motion to Suppress illegally obtained evidence may result in some or all of the evidence being inadmissible, thereby weakening the State’s case or resulting in the case being dropped. Similarly, a Motion to Dismiss may result in a full dismissal of the case. Andrew has successfully argued a wide variety of these motions before the Courts. It is critical to have an attorney like Andrew who is up to date with the constantly changing laws and court rulings in criminal trial law.
- Plea bargain: A plea bargain is the most common way a case is resolved. The job of a good defense attorney is to show the prosecutor the weaknesses of the State’s case in order to obtain a favorable plea offer for their client. Andrew will thoroughly dissect a case and present the weaknesses to the Prosecutor. A plea offer may include a reduced charge, probation instead of incarceration, or a greatly reduced period of incarceration. Andrew will work hard to obtain the best offer for his client. With the State’s offer in hand, Andrew will discuss the case, the offer, the consequences of accepting or rejecting the offer, and other options.
- Trial: A trial is when you assert your innocence and you demand your right to a public trial. At trial, 6 members of the public (jury) will hear the evidence and decide if you are innocent or guilty of the charges. Before you decide to proceed with a trial, Andrew will meet with you and have an in-depth discussion about all aspects of the case. Andrew will discuss the consequences such a trial may have on the client, the client’s family, job, and personal life. Andrew will give his expert opinion on the likelihood of success at trial and the possible consequences if you are found guilty.
Seal & Expunge (5)
IF MY CRIMINAL RECORDS ARE SEALED OR EXPUNGED, CAN I DENY BEING ARRESTED OR HAVING A CRIMINAL RECORD?
After a record is SEALED, the petitioner may lawfully deny the arrest and the court case for the offense. HOWEVER, he/she must still disclose the sealed record in specific situations listed in Florida Statutes 943.059.
Similarly, when a record is EXPUNGED, the petitioner may deny the arrest and the court case BUT must still disclose the expunged record in specific situations listed in Florida Statutes 943.0585.
EXPUNGMENT: A record expungment is when the criminal record is destroyed. If the Court grants an expungment of a record, the State Attorney’s file, the arresting agency’s reports and files, the Clerk of Court’s records, and the jail records are all destroyed. Under an expungment, a petitioner’s photograph is removed from the county jail’s website and all information is removed from the Clerk of Court’s website.
A person is eligible to apply for an expungement ONLY in the following circumstances:
- Applicant was arrested but never formally charged by the State Attorney’s Office.
- Applicant was arrested and formally charged, but the charge was later dismissed or “nolle prossed” (dropped) in Court.
- Applicant was arrested, charged, but entered into and successfully completed a pre-trial diversion program (i.e. PTI or MIP), which ultimately resulted in the case being dismissed by the Court.
In all of the above three scenarios, the applicant must have no prior Adjudications of Guilt.
SEAL: A record which is Sealed by the Court is not destroyed but placed in an envelope and sealed. The envelope cannot be legally opened without a Court order. If a record is sealed, a petitioner’s photograph is removed from the county jail’s website. The Clerk of Court’s file is also sealed and all information about the case is removed from the Clerk of Court’s website.
A person is eligible to apply for a sealing ONLY in the following circumstances:
- Petitioner was arrested, formally charged, pled guilty or no contest to the charge and was sentenced to a WITHHOLD OF ADJUDICATION OF GUILT by the Court.
- If the Petitioner receives a Withhold of Adjudication and is sentenced to probation by the Court – and successfully completes the probation, the petitioner may seek to have that record SEALED.
- However, there are certain offenses that are never allowed to be sealed, even if the applicant received a withhold of adjudication. Some of these offenses include sexual offenses, offenses against children, or other violent offenses.
Yes, the Court can deny a petition but it is very rare.
The FDLE (Florida Department of Law Enforcement) processes all Petitions for sealing or expunging records. Due to their time constraints, the current processing time is approximately four (4) to six (6) months.
A petitioner cannot have a prior ADJUDICATION OF GUILT on his/her criminal record. This includes the charge the petitioner is seeking to have sealed/expunged as well as any other prior criminal charge. If a petitioner has ever been adjudicated guilty of any offense – including many criminal traffic offenses (i.e. DUI, DWLS), then the petitioner is INELIGIBLE to ever apply to have a record sealed or expunged.!