Category: Florida Law Blog

Passive Appreciation of Marital Property in Florida

Passive Appreciation of Marital Property in Florida, Active Appreciation of Marital Property in Florida

A major issue in dissolution of marriage cases in Florida is whether a property will be categorized by the court as “marital.” If the property was purchased by one spouse before the marriage, using his/her own money, what can happen during the marriage to cause the passive appreciation of marital property in Florida to subject the property to equitable distribution in divorce? What can happen to cause the active appreciation of marital property in Florida that would make it subject to equitable distribution? Let’s look to Florida statutory and case law to find out the answer.

Definitions and Examples of Passive Appreciation of Marital Property in Florida, and Active Appreciation of Marital Property in Florida

Let’s define passive appreciation in practical terms to make it understandable. Passive appreciation of marital property in Florida occurs during the marriage. Passive means that there are no significant improvements or contributions made to the appreciation (increase in its value) of the property by the non-owning spouse, and any value enhancement is due exclusively to market factors, timing, or other independent events/trends. Timing is critical in real estate. In this article, we will also contrast passive appreciation with active appreciation of marital property in Florida.

Active appreciation of marital property in Florida occurs when the spouse who did not own the property before marriage, makes labor and/or financial contributions that cause the increase in the value of the property.

Let’s use a hypothetical example for this to make sense. Here is an example of passive appreciation of marital property in Florida:

  • Party A buys a condo in downtown Orlando in 2011. Party A meets Party B in 2012, and in 2013 after a lovely courtship, they get married.
  • The spouses separate in December 2018 as their marriage is irretrievably broken.
  • During their marriage, the value of Party A’s condo increased because the housing market has been on fire.
  • No major improvements were made to the property, and Party A simply sat back and collected rent from the property prior to the date of their marital separation.

Is this condo subject to being categorized as “marital property due” to the passive appreciation of marital property in Florida? Case law and Statutory law provide that “passive appreciation on nonmarital assets as a result of market forces, such as inflation, is not subject to division.” We can add other facts, such as the commingling of the proceeds in a joint marital bank account, but for our basic example, there is likely no creation of marital property here.

Active appreciation of marital property in Florida, as discussed above, occurs when the spouse that does not own the nonmarital property, actively takes steps to increase the value of the property. Here is another hypothetical that can help clarify how active appreciation works.

  • Party A buys a condo in downtown Orlando, and it has a great view of the City.
  • Party A meets Party B one year later, and they get married.
  • Market factors cause the value of the property to increase substantially.
  • During their marriage, monies from a joint bank account in the name of both parties, were used to pay down the mortgage on the Condo.
  • Party A and Party B split in January 2019, and file for dissolution of marriage.

Florida Statute §61.075(6)(a)1(b), states that marital assets include the: “enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets or both.” Contributions by either spouse to the increased value of the other spouse’s nonmarital property may create a legal right to the equitable distribution of the property in divorce. But wait, there is a catch! The Florida Supreme Court said this: “Improvements or expenditures of marital funds to a nonmarital asset does not transform the entire asset into a marital asset; rather, it is only the enhancement in value and appreciation which becomes a marital asset. F.S. § 61.075(5)(a)(2).” Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010).

Therefore, in the example above, it is likely there has been some active appreciation of marital property in Florida, but the Court will need to make a finding as to how much the property appreciated in value, and how much the non-owning spouse may be entitled to. “Appreciation caused by the expenditure of marital funds or labor during the marriage, including the parties’ management, oversight, or contribution to principal, is a marital asset subject to equitable distribution.” Here are some cases that predate Kaaa v. Kaaa, but provide a great deal of insight and guidance: Young v. Young, 606 So. 2d 1267 (Fla. 1st DCA 1992); Massis v. Massis, 551 So. 2d 587 (Fla. 1st DCA 1989); Straley v. Frank, 612 So. 2d 610 (Fla. 2d DCA 1992); Jahnke v. Jahnke, 804 So. 2d 513 (Fla. 3d DCA 2001); and Hanks v. Hanks, 553 So. 2d 340 (Fla. 4th DCA 1989). Dyson v. Dyson, 597 So. 2d 320, 324 (Fla. 1st DCA 1992); Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003); Adkins v. Adkins, 650 So. 2d 61, 67 (Fla. 3d DCA 1994); and Cole v. Roberts, 661 So. 2d 370, 372 (Fla. 4th DCA 1995).

Case Law on Passive Appreciation of Marital Property in Florida, Active Appreciation of Marital Property in Florida

Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010). The title itself may create for good humor, but the ruling is quite serious for divorce litigants despite the negative treatment the case has received by many District Courts of Appeal. The Florida Supreme Court held in Kaaa that the Wife would be entitled to include the value of the passive appreciation of the house in the calculations for equitable distribution in order to avoid the Husband enjoying an unjust enrichment of the Wife’s contributions to the marital residence. This decision means that a non-owner spouse may recover from the equity of a home in equitable distribution. While the non-owning spouse would not be able to include the entire value of the marital residence as marital property, the Kaaa decision (as mentioned above) allows the non-owning spouse to recover a portion of their contributions to the increase in valuation of the real property during the marriage.

Jonathan Jacobs, Esq., is managing partner at the Jacobs Law Firm, PLLC. He is a divorce attorney in Orlando Florida, a divorce attorney in Clermont Florida, and a relocation attorney in Orlando. Call (407) 310-5636 with questions about your divorce case.

Florida Residency Requirements For Divorce

Florida Residency Requirements For Divorce

The Florida residency requirements for divorce is/are that a party must prove that one of the litigants (petitioner or respondent) has resided in the State of Florida for a minimum of at least six months before filing for dissolution. Florida Statute § 61.021, “Residence requirements,” provides that: “To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.” This residency requirement establishes jurisdiction in a Florida family law court. You may also be asked by the Court to produce an affidavit of corroborating witness.

Establishing jurisdiction in a Florida court enables the judge to preside over the parties’ dissolution of marriage case. If there is found to be no residency, the court will not have subject matter jurisdiction over the case. Foundationally, the courts have routinely upheld this requirement, “It is not enough for the parties to merely submit a petition requesting a dissolution of marriage, the party must establish the court’s jurisdiction over the parties. Wise v. Wise, 310 So.2d 431, 432 (Fla. 1st DCA 1975). An affidavit of corroborating witness is a document sworn to under oath by someone that has known the petitioner or the respondent for more than 6 months and can testify under oath that the litigant has lived in Florida for greater than six months.

Affidavit of Corroborating Witness

In a recently decided case, McNeil v. Jenkins-McNeil, the Fifth District Court of Appeals Court discussed the Florida residency requirement for divorce and implications of a party failing to meet the residency requirement. 252 So.3d 354 (Fla. 5th DCA 2018). In McNeil, the Wife filled a petition for dissolution of marriage, however, she did not allege that she was a resident of Florida. It is unclear whether she produced an affidavit of corroborating witness for the court. At trial, the Husband failed to appear, causing the trial court to grant the Wife’s divorce. The Husband appealed this decision. The Husband alleged that the Court failed to establish jurisdiction over him because the Wife failed to meet her burden of proving her or her husband’s residency in Florida. Establishing residency may sound procedural or trivial to someone that has lived in Florida for years, but it is mandatory and must be proven.

How To Prove Florida Residency Requirements For Divorce

According to Florida Statute § 61.052(2), the minimum Florida residency requirements for divorce can be corroborated by a “valid Florida driver license, a Florida voter’s registration card, a valid Florida identification card…or [by] the testimony or affidavit of a third party [affidavit of corroborating witness].” In the case above, the Wife failed to allege that she personally had fulfilled the Florida residency requirement, leading the Wife to shoulder the burden of proving, at trial, that her husband was a lawful resident of Florida for at least 6 months prior to her filing a petition for dissolution of marriage. However, “[t]he residency requirement may not be established by the uncorroborated testimony of one party.” McNeil (citing Lemon v. Lemon, 413 So.3d 623, 623-24 (Fla. 2d DCA 1975)).

The parties may not waive by admission in the “pleadings that the residency requirement has been met.” McNeil, (citing Grey v. Grey, 995 So.2d 623, 624 (Fla. 2d DCA 2008)). Additionally, “residence can never be assumed, nor can it be established by agreement.” McNeil, (citing Fazio v. Fazio, 66 So.2d 297, 299 (Fla. 1953). The Court in this case granted the Husband’s petition for reversal of the final decree of dissolution because the Petitioner failed to satisfy the statutory requirement for proving residency in the State of Florida. The Florida residency requirements for divorce cannot be waived or discounted by the court.

Affidavit of Corroborating Witness

While the right to enter into marriage is a fundamental right, as is the right to obtain a divorce in Florida, that does not excuse a court from establishing the Florida residency requirements for divorce by taking jurisdiction over a party before allowing a petition for dissolution to be granted. The courts must follow the requirements set forth under Florida Statute § 61.021, and the party filing the petition for dissolution must prove that either himself/herself or the other party has satisfied the residency requirement for divorce in Florida. The Florida residency requirement also applies in relocation with minor children cases. If you need an affidavit of corroborating witness, call the Jacobs Law Firm for help.

Jonathan Jacobs is an experienced divorce attorney in Orlando and a divorce attorney in Clermont Florida that is available to answer your questions about the Florida Residency Requirements for Divorce, and/or about divorce in Florida. We also practice in same sex divorce.

Long Distance Parenting Plan Florida

Long Distance Parenting Plan Florida, Relocation Parenting Plan Florida

Are you looking to relocate with your minor child during or after a divorce or a family law/paternity lawsuit? If your answer is yes, you will need to draft a long distance parenting plan Florida, also known as a relocation parenting plan Florida. Attorney Jonathan Jacobs specializes in Relocation cases. Let’s go back one step to make sure you need this type of a parenting plan. Do you know what relocation with a minor child is? A long distance parenting plan for infant or toddler (with a young child) may or may not be right for you. Read the Statute below.

According to Florida Statute 61.13001, Relocation means “a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.” In the words of my brother David, “say what?” Well, the Relocation Statute is quite clear, but only if you have legal experience litigating relocation cases. If you or your former spouse or partner are moving more than 50 miles (“straight as the crow flies”) from your principal house/apartment for a period of MORE than 60 days with no intent to return there, you must obtain a court order, or mutual agreement between BOTH parents. In both instances, you will need to draft a long distance parenting plan Florida, also known as a relocation parenting plan Florida, for court approval. Simply filing a parenting plan is generally not enough. You should seek to obtain a Judge’s approval of your long distance parenting plan for infant.

Relocation Parenting Plan Florida

Tips on Long Distance Parenting Plan For Infant

Here are four tips I recommend to both clients and opposing counsel when creating a long distance parenting plan for infant (s) in Florida:

  • Be SPECIFIC. Do not leave any portion ambiguous. The parties are a long distance away and communication is vital.
  • Specify your travel arrangements and who is going to pay.
  • Make sure you specify a time when and how you will contact your child.
  • Ensure that your vacation timesharing offers both families time with the child. Be fair and reasonable.
Long Distance Parenting Plan for Infant

Relocation Parenting Plan Florida

Ultimately, when you are relocating with a minor child, a lot of changes need to be made. Adjusting to a new career and new city can be tough on a parent. Taking care of a minor child while going through so many changes is not easy. This should encourage the relocating parent to allow for timesharing with the non-relocating parent (provided the non-relocating parent wants to see the child). Children benefit from spending time with both parents, and the parents benefit just as much in so many ways.

Jonathan Jacobs is a Relocation Attorney Orlando who can help his clients create a Long Distance Parenting Plan Florida, or a Relocation Parenting Plan Florida.). When you are considering relocation with a minor child, call the Jacobs Law Firm for help.

FLORIDA ONLINE DIVORCE ATTORNEY

Florida Online Divorce Attorney

Florida online divorce attorney Jonathan Jacobs of the Jacobs Law Firm, offers divorce, paternity, and family law representation to clients across the Central Florida area. Often, clients choose a Florida online divorce lawyer to save on cost. Let’s face it, divorce and paternity lawsuits can be expensive, and that often prevents people who need to hire a lawyer from being able to retain an attorney. Locally, many couples choose to obtain an uncontested divorce in Orlando. Choosing to get an online divorce in Florida implies that both parties are in agreement on all issues from child support to timesharing to alimony to the division of your property. This means your divorce is uncontested (does not require litigation).

Online Divorce in Florida

An online divorce in Florida is not available for clients in every jurisdiction. It depends on whether a specific judge allows for the litigants to provide the Court with their divorce paperwork through an attorney. When a judge in Central Florida does offer an online divorce in Florida, Attorney Jacobs can assist you in getting divorced within 3 weeks after submitting your documents to the court/judge. It takes 1-5 days for the clerk of court to verify and process your paperwork, and then there is a mandatory (Florida Family Law Rules of Procedure) waiting period after filing your paperwork, for the court/judge to be able to grant your final judgment of dissolution of marriage.

Does a Florida Online Divorce Require a Hearing?

If your uncontested divorce necessitates a hearing, Florida online divorce attorney Jacobs will attend the final hearing with you. The final hearing itself lasts for only a few minutes, and it is more of a formality than a substantive hearing. Even so, Attorney Jacobs may need to wait for an hour or two with you while the court/judge entertains emergency matters from other cases, before calling us before the court for our proceeding. During this time, Florida online divorce attorney Jacobs will again explain as much about Florida divorce law as possible to help you understand your rights and responsibilities after the divorce is granted.

How Does a Florida Online Divorce Work?

Our first step in an is for you to fill out the required client questionnaire. This information will be kept strictly confidential except for purposes of providing the court with your information in mandatory court documents. Our client questionnaire is designed to get from you ALL of the information we may need to write your divorce documents and submit them to the court/judge.

Step two is for Florida online divorce lawyer Jacobs to review your answers and information, after which he will draft your paperwork, ask you any questions that may help your case, and then speak with you in depth about your expectations and requirements.

Step three is for us to do a final review of your documents to ensure they are accurate and truthful. The court requires honesty and transparency in dissolution of marriage proceedings.

online divorce in florida
Advantages of Hiring a Florida Online Divorce Attorney

Here are five advantages of hiring a Florida online divorce attorney:

  1. You may talk to your attorney by instant messenger, videoconference, by phone, or text.
  2. You are hiring an expert online divorce attorney.
  3. Your dissolution will likely go more smoothly and will be done properly.
  4. Your attorney will handle most of the process on your behalf.
  5. You can spend your time worrying about your life after divorce rather than about your divorce itself.

Jonathan Jacobs, Esq. is a Florida Online Divorce Attorney representing clients in all of Central Florida.

Simplified Dissolution Of Marriage Orange County Florida

Simplified Dissolution Of Marriage Orange County Florida

Remember when getting a divorce was “easy” to do? Of course you have no recollection of an easy divorce. Divorce is rarely, if ever easy. Technically speaking, the easiest way to get a divorce in Orange County Florida is by simplified dissolution of marriage. The reason a simplified dissolution is “easy” is because the rules and requirements are clearly defined. Married couples generally cannot obtain a simplified dissolution of marriage in Orange County Florida unless they meet specific requirements.

 

Requirements Of Simplified Dissolution Of Marriage Orange County Florida

The jurisdictional and technical requirements of simplified dissolution of marriage Orange County Florida are as follows (paraphrased and interpreted for you):

  1. One or both spouses must have lived in Florida (established residency) for at least six (6) months prior to filing the Petition for Simplified Dissolution of Marriage.
  2. Both spouses must agree that the marriage cannot be saved, i.e. it is irretrievably broken.
  3. The spouses CANNOT have any minor or dependent children together, the wife cannot have had any minor or dependent children born during the marriage (even to another partner), and the wife must presently not be pregnant. Essentially, if there are children of the marriage, even over 18, this type of divorce is probably not right for you.
  4. Both spouses must agree completely on the division of their marital assets and liabilities, and must complete a marital settlement agreement to that effect that has been signed and notarized.
  5. Neither party may seek alimony in a simplified dissolution of marriage. Alimony is a major issue that complicates a divorce.
  6. Both parties must be willing to sign and execute all documents required by the Court and must be willing (if asked or unless waived) to attend a final hearing for dissolution.

Simplified Dissolution Of Marriage Orange County Florida How do I Do it?

Requirements of Simplified Dissolution Of Marriage Orange County Florida: The first step you must undergo is checking to see if you meet all of the requirements above. Frankly, you may need to consult with an Orlando Divorce Attorney for verification. The second step is for both parties (since getting a Simplified Dissolution Of Marriage implicitly indicates agreement and cooperation) to sign paperwork and exchange information as required. Two minds are better than one, and the greater the degree of cooperation and understanding, likelier, the easier the process will be. Third, you may wish to contact the Orange County Clerk of Court for verification that you are filing your documents properly and that the Court has accepted your documents.

 

Requirements of Simplified Dissolution Of Marriage Orange County Florida

Ultimately, when you seek to obtain a Simplified Dissolution Of Marriage Orange County Florida, you are welcome to call the Jacobs Law Firm, PLLC offices Winter Park, and Clermont Florida for more information and guidance. We specialize in divorce and family law.

 

The jurisdictional and technical requirements of simplified dissolution of marriage Orange County Florida are as follows (paraphrased and interpreted for you):

  1. One or both spouses must have lived in Florida (established residency) for at least six (6) months prior to filing the Petition for Simplified Dissolution of Marriage.
  2. Both spouses must agree that the marriage cannot be saved, i.e. it is irretrievably broken.
  3. The spouses CANNOT have any minor or dependent children together, the wife cannot have had any minor or dependent children born during the marriage (even to another partner), and the wife must presently not be pregnant. Essentially, if there are children of the marriage, even over 18, this type of divorce is probably not right for you.
  4. Both spouses must agree completely on the division of their marital assets and liabilities, and must complete a marital settlement agreement to that effect that has been signed and notarized.
  5. Neither party may seek alimony in a simplified dissolution of marriage. Alimony is a major issue that complicates a divorce.
  6. Both parties must be willing to sign and execute all documents required by the Court and must be willing (if asked or unless waived) to attend a final hearing for dissolution.


Simplified Dissolution Of Marriage Orange County Florida How do I Do it?

Requirements of Simplified Dissolution Of Marriage Orange County Florida: The first step you must undergo is checking to see if you meet all of the requirements above. Frankly, you may need to consult with an Orlando Divorce Attorney for verification. The second step is for both parties (since getting a Simplified Dissolution Of Marriage implicitly indicates agreement and cooperation) to sign paperwork and exchange information as required. Two minds are better than one, and the greater the degree of cooperation and understanding, likelier, the easier the process will be. Third, you may wish to contact the Orange County Clerk of Court for verification that you are filing your documents properly and that the Court has accepted your documents.

 

Requirements of Simplified Dissolution Of Marriage Orange County Florida

Ultimately, when you seek to obtain a Simplified Dissolution Of Marriage Orange County Florida, you are welcome to call the Jacobs Law Firm, PLLC offices Winter Park, and Clermont Florida for more information and guidance. We specialize in divorce and family law.

 

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LAke County parenting class

Lake County Parenting Class

Attending a Lake County parenting class is a requirement in all family and divorce law cases here in Lake County. A Lake County parenting class is a relatively short course that educates experienced and inexperienced parents on how to handle their conduct during and after parents separate.

The reason behind the Florida Courts requiring the parties to participate in a Florida parenting class is for the best interests of their children. Divorce and separation can be tremendously difficult on people, both emotionally and physically. The Court feels it is best to compel parents to have some guidance, a helping-hand if you will. 

Rather than defaulting to being irate over mom or dad’s behavior, a Lake County parenting class may guide the parties to take a step back and choose their actions and words carefully. Parenting is challenging when couples stay together. Being separated, no matter what the age of the kids, is truly difficult. Many of the parenting classes are called family stabilization courses. Generally, the parenting class providers must be approved by the Department of Children and Family Services (DCF).

Lake County Florida Parenting Classes Online

Are Lake County Parenting Classes Online?

Florida parenting classes may be found online and are brought to you by a variety of providers that meet the requirements of the courts and DCF. Some of the course providers offer an instant certificate option to avoid delays when you are in a hurry to comply with the Court’s requirements.

After you have finished taking your Lake County Parenting Classes online or otherwise, consider filing your certificate of completion as quick as is practicable. Do not forget to file the certificate, or you may risk avoidable delays in your case. Remember, Court requirements must be met or the Court will not grant your final judgment.

Jonathan Jacobs is a Clermont Divorce Attorney and an Orlando Florida Divorce Attorney who loves helping his clients every step of the way.

Florida Parenting Plan and Custody Example

Florida Parenting Plan and Custody Example: Holiday Time Sharing Schedule Florida

Florida Parenting Plan and Custody Example: Holiday Time Sharing Schedule Florida

When divorce and paternity litigants are negotiating a Florida parenting plan and custody schedule, one of the most time consuming decisions is the holiday time sharing schedule Florida. Holiday time sharing Florida is uniquely painful for many parents. For example, if Person A is religious and celebrates Christmas, Chanukah or Kwanzaa, Person A will want to be with their children during the holiday every year. However, in our Florida parenting plan and custody example, the holiday time sharing schedule Florida offers both parents shared holiday time. Within our Florida parenting plan and custody example, the hypothetical holiday time sharing schedule Florida is spelled out in clear language for one holiday and one school break:

  1. Winter Break:

Person A shall have holiday time sharing with the children from the end of school until Christmas morning on odd years.

Person B shall have holiday time sharing with the children from Christmas morning until New Year’s Eve on odd years.

The schedule will be reversed on even years with Person B having holiday time sharing with the children from the end of school until Christmas morning and Person A having time sharing with the children from Christmas morning until New Year’s Eve on odd years.

2. Spring Break:

During odd years, Person A shall have time sharing with the minor children from the end of school on Friday until the following Wednesday.

Person B shall have time sharing with the minor children from Wednesday at dinner time until Sunday night before school resumes for the following week. The schedule shall be reversed on even years.

Holiday Time Sharing Schedule Florida

Do you see how in our Florida parenting plan and custody example, the holiday time sharing schedule Florida works by allowing both parents holiday time sharing on an equal basis? This really is upsetting to a lot of people. Nobody wants to be without their family during the holidays, but shared parenting plans allow for each parent and their respective family(ies) to have equal time with their children on special occasions.

Can the Petitioner and/or the Respondent work out a schedule that better respects their family and religious wishes? Of course, the parties may design a parenting plan that best suits their mutually exclusive needs and wishes. Our Florida parenting plan and custody example is one of hundreds or even thousands of hypothetical holiday time sharing schedules that can be made in Florida.

In offering a hypothetical Florida parenting plan and custody example our goal is to shine the spotlight on three primary issues you may face in a divorce or paternity suit: 1. Sharing the kids for the holidays or missing your loved ones for the whole special time is difficult. 2. A holiday time sharing schedule Florida is not a one-size-fits-all proposition. 3. Parents are encouraged to think both about their needs and the best interest of their children, particularly when the holidays and families are involved.

Holiday Time Sharing Schedule Florida
Demand Letter Attorney Orlando

Demand Letter Attorney Orlando

Demand Letter Attorney Orlando 

As a demand letter attorney Orlando Florida, I often recommend that clients begin their case by sending a pre-lawsuit demand letter to the potential defendant. A demand letter can accomplish a great deal more than you expect. Here are five reasons from the mind of Jonathan Jacobs, a demand letter attorney Orlando, why sending a pre-lawsuit demand letter can help resolve your case without the need for litigation or better prepare you to litigate:

  1. A demand letter helps your demand letter attorney put the facts of your case in chronological order. When you work closely with your attorney to figure out the details and facts of your case before filing a lawsuit, it can better prepare you in case you need to file against the defendant.
  2. A demand letter from a demand letter attorney Orlando lets the defendant(s) know that you have hired an attorney and are willing to take your legal matter to court if necessary. Sometimes people bluff and never intend to hire a legal professional to litigate a case. If you have hired an attorney, it often causes the defendant to consider settling the case before incurring legal fees and costs.
  3. A demand letter is a great way to explore the strength of your case and to collect all of your evidence before filing a lawsuit. As you provide your demand letter attorney Orlando with your documents, he may notice that your evidence is lacking or missing some crucial component, and you may find your case is better or less strong than you had thought. This could change your mindset on litigation and/or negotiating with the other side.
  4. A demand letter could save you money if it helps you settle before filing a lawsuit. Saving money helps many clients obtain a larger recovery by avoiding attorney’s fees, filing fees, and other relate court costs.
  5. As a demand letter attorney Orlando, it has been my experience that some financial relationships can be repaired with open and honest communication. As your demand letter attorney, I can be the negotiator and liaison between you and the other side when communications have broken down. This can allow the parties to come back together for their mutual benefit.

A demand letter attorney Orlando Florida can save you money by resolving your case before a lawsuit is filed. While this strategy does not always work, if you do not communicate with the other side or attempt to resolve your differences, you may end up in a protracted and expensive lawsuit that may have been avoidable.

Jonathan Jacobs of the Jacobs Law Firm is a demand letter attorney Orlando Florida. Call today for a consultation and pricing.

same sex divorce laws in florida

Same Sex Divorce Laws in Florida

Florida law recognizes same sex marriage and same sex divorce. This fascinating legal development requires same sex divorce attorneys to analyze and examine same sex divorce laws in Florida and how they are evolving. In the landmark case Brenner v. Scott, the Court held Florida’s ban on same sex marriage unconstitutional,and decided the ban on gay marriage violated both the United States Constitution’s Fourteenth Amendments’ Due Process and Equal Protection Clause(s). 999F. Supp 2d. 1278 (N.D. Fla. 2014). The United States Supreme Court has tested the legality of gay marriage on numerous occasions, and ultimately ruled that the right to marry is a central part of our liberty that is protected by the Due Process Clause. Brassner v. Lade, No. 13-012058(37), 2014 WL 7399690, at *3 (Fla. Cir.Ct. Dec. 08, 2014). There is also a constitutionally protected privacy interest in being a same sex biological parent.

 

Same Sex Divorce Laws in Florida and Same Sex Alimony in Florida

In deciding on same sex divorce laws in Florida, both the Florida Courts and the United States Supreme Court have consistently recognized an individual’s right to have the freedom of personal choice in matters of marriage and family life. (“Under the Equal Protection Clause, persons who are similarly situated may not be classified and treated differently because the Constitution neither knows nor tolerates classes among citizens.” Brandon-Thomas v. Brandon-Thomas, 163 So. 3d 644 (Fla. 2d DCA 2015)). This landmark shift in the legality of same sex marriage has brought forth additional issues such as same sex alimony and same sex child support and timesharing/custodial rights.

As of January 6, 2015, the State of Florida recognized both same-sex marriages and divorces. Homosexual couples gained many of the same rights and protections as heterosexual couples. However, with their victory there arose several other important issues such as how same sex alimony will be calculated? Let’s delve into Florida divorce statutes for further awareness and guidance on same sex divorce laws in Florida.

 

Gay Divorce Alimony

Gay divorce alimony is awarded based on the statutory factors listed in Florida Statute § 61.08, also known as Florida’s Alimony Statute. Courts look to the Statute for guidance on how alimony should be awarded when applied to a specific divorce with unique circumstances. Now that the courts recognize gay marriage and divorce, same sex divorce laws in Florida allow courts to apply the Statute in same sex divorce cases. The Statute directs courts to factor in the length of a same sex marriage when determining an award of alimony. Subsection 4 of the Statute states that a short-term marriage is less than 7 years, a moderate-term marriage is more than 7 years but less than 17 years, and a long-term marriage is over 17 years. Under the same sex divorce laws in Florida, this raises an issue of critical importance in the struggle associated with same sex alimony. What happens when a same sex couple, who has only been legally recognized as having married since 2015, petitions the court for alimony greater than a short term award?

Currently, there are no standard guidelines in same sex divorce laws in Florida that directly decide this gay divorce alimony issue. Subsection 4 of the Alimony Statute clearly defines the length of marriage as “the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.” Arguments are being made that since same sex marriage was not recognized in Florida prior to 2015, any same sex couple that litigates a divorce will only be able to claim a short-term marriage for purposes of alimony regardless of the length of time the couple has been married.

One of the implications of the Florida courts recently recognizing same sex divorce is its impact on a party petitioning the court for an award of permanent alimony. Permanent alimony is based on the needs and necessity of the spouse and is based on the life they experienced during marriage. If the length of a gay marriage is decided in a case to have started only in 2015, in order for a short-term marriage to be awarded permanent alimony, the party must show exceptional circumstances as to why they should be awarded a permanent award of alimony. A court rarely finds exceptional circumstances when there is a short-term marriage.

If the divorcing parties are unable to prove those exceptional circumstances needed for permanent same sex alimony, the court may consider durational alimony. Durational alimony is awarded to provide a party with economic assistance for those in a short to moderate term marriage. The award must not, however, exceed the length of the marriage.

If you are the party seeking alimony in your gay divorce case, your same sex divorce lawyer is likely to argue for the maximum amount of alimony, or alternatively, if you are defending against a claim for alimony, your lawyer will argue for an award of the minimum amount.

 

same sex divorce laws in orlando

Same Sex Divorce Laws in Florida

If you would like to learn more about same sex divorce laws in Florida, please call the Jacobs Law Firm to speak with a same sex divorce attorney in the Orlando Florida and same sex divorce attorney in the Taveras Florida area.

 

 

Motion for Minor Child to Testify in Florida

Motion for Minor Child to Testify in Florida

Motion for Minor Child to Testify in Florida

Does your paternity or divorce case involve minor children? Are you seeking to have a minor child testify in your case? If so, you may decide to file a motion for minor child to testify in Florida. This motion may be officially captioned as “Motion for Testimony and Attendance of Minor Children.” The corresponding rule within the Florida Family Law Rules of Procedure is Rule 12.407. Fla. Fam. L. R. P. 12.407 provides in part that: “No minor child shall be deposed or brought to a deposition, brought to court to appear as a witness or to attend a hearing, or subpoenaed to appear at a hearing without prior order of the court based on good cause shown unless in an emergency situation.” This Rule accounts for hearings, depositions, and other court proceedings.

According to Florida Family Law Rule 12.407, which involves a motion for minor child to testify in Florida, neither the Petitioner, nor the Respondent, may depose a minor child, cause him/her to be a witness in court, bring them to a hearing, or subpoena them unless they have first obtained a court order authorizing this to occur. This is the Rule for good reason. Florida family law courts are hesitant to allow minor children to be subjected to their parent’s legal battles. In general, children should not be forced to choose between their parents. The stresses and emotional pitfalls involved are often too overwhelming.

Florida Case Law Regarding a Motion for Minor Child to Testify in Florida

According to Florida case law, “The [Florida] law recognizes a child’s preference, if the child is of sufficient maturity, as a factor in the determination of custody.” Greene v. Kelly, 712 So. 2d 1201 (Fla. 5th DCA 1998). Simply stated, a child’s preference is taken into account when a court decides with which the child will reside a majority of the time. Careful though, read that sentence again. First, the child must be of sufficient maturity. Second, the child’s preference is but one factor, not an outcome determinative element. What determines whether a child is mature enough to appear before a judge or an attorney?

When considering whether you really want to file a motion for minor child to testify in Florida consider how old is old enough for the court (or you as a parent) to allow child testimony to influence its decision regarding custody? As general guideline, “one would NOT expect a ten-year-old to possess character traits necessary to make intelligent decision regarding primary residence.” Holmes v. Greene, 649 So. 2d 302 (Fla. 1st DCA 1995). Read carefully again. This decision does not create a blanket rule, it is merely used as guidance. How mature is the 10-year-old minor child? What is the life experience of the child? A court will consider a motion for minor child to testify in Florida even for a young child, but arguing to a judge that a 6 year old child is mature enough to know where he/she wants to live and with whom may be a difficult proposition, though not impossible.

Should Minor Children Testify in Divorce Case in Florida?

Courts are protective of minor children and their safety. This makes filing a motion for minor child to testify in Florida a decision you must make carefully. So much so, that the Florida Legislature has created Florida Statute 92.55 entitled “Judicial or other proceedings involving victim or witness under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness; special protections; use of therapy animals or facility dogs.” This primarily applies to family and divorce law cases where abuse or other indiscretions have occurred, or where children have intellectual disabilities, but it can help us understand the general position of family law judges as pertains to child testimony.

If you are involved in a child custody dispute and need to hire a family law attorney in Orlando or a divorce attorney in Orlando, call the Jacobs Law Firm to have a consultation regarding child testimony. Filing a motion for minor child to testify in Florida is a decision best made with a great deal of caution and guidance.