Russell D. Knight | Family Lawyer https://divorceattorneynaplesfl.com Russell D. Knight - Family & Divorce Attorney Sat, 18 Jul 2020 12:39:39 +0000 en-US hourly 1 https://wordpress.org/?v=5.3.7 https://divorceattorneynaplesfl.com/wp-content/uploads/2019/05/cropped-cropped-Russell-D.-Knight-Icon-32x32.jpg Russell D. Knight | Family Lawyer https://divorceattorneynaplesfl.com 32 32 Law Office Of Russell Knight Welcomes New Associate Attorney, Dustin Sedor https://divorceattorneynaplesfl.com/law-office-of-russell-knight-welcomes-new-associate-attorney-dustin-sedor/ https://divorceattorneynaplesfl.com/law-office-of-russell-knight-welcomes-new-associate-attorney-dustin-sedor/#respond Sun, 24 May 2020 18:48:46 +0000 https://divorceattorneynaplesfl.com/?p=9002 After almost a year of clerking for the Law Office of Russell Knight, Dustin Sedor has joined our ranks as an associate attorney.  Here’s Dustin introducing himself: My name is Dustin Sedor, and I was born in Upstate New York, specifically, Auburn, New York. Auburn is a small, family-oriented city. My interest in the study […]

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After almost a year of clerking for the Law Office of Russell Knight, Dustin Sedor has joined our ranks as an associate attorney.  Here’s Dustin introducing himself:

My name is Dustin Sedor, and I was born in Upstate New York, specifically, Auburn, New York. Auburn is a small, family-oriented city.

My interest in the study of law began at an early age as my father is an attorney in Auburn, New York, and I volunteered in the local Youth Court to assist troubled youths in taking accountability for their actions and whilst giving them an opportunity to rehabilitate themselves.

For my undergraduate degree, I attended Syracuse University, and I graduated in 2010 with a Bachelor of Science in Biology.

After two years working as a Dental Assistant and attending Drexel University’s Graduate Program for Interdisciplinary Health Sciences, I decided that I wanted to focus my educational career toward the study of law.

I decided to move full time to Naples, Florida to be able to attend Ave Maria School of Law in the Fall of 2016.

While at Ave Maria School of Law, it was my pleasure to give back to the marvelous Naples community through numerous different volunteering events.

Ave Maria School of Law gave me the opportunity to assist the disadvantaged through the Ave Maria Tax Clinic and the Ave Maria Wills, Trusts, and Estates Clinic.

I was honored to be able to give back to the brave men and women who give their time and risk their lives through the Wills for Heroes Event associated with Legal Aid Service of Collier County.

Much like when I was a teenager with Youth Court, the Neighborhood Accountability Board gave me the opportunity to assist troubled youths in making amends with their communities whilst rehabilitating themselves.

The Immigration Clinic gave us the opportunity to help individuals in fear of being deported from this amazing country against their will.

Upon graduating from Ave Maria School of Law, I started working at the Law Office of Russell Knight as a Law Clerk.

While maintaining my clerking duties, I studied and sat for the February 2020 Florida Bar Examination. I passed the examination, and I was admitted to practice law by the Florida Bar as of April 16, 2020.

I have been involved exclusively with Family Law for about two years now. Family Law has been a worthwhile path. I think both my upbringing in a family centric town as well as my involvement with programs like Youth Court and the Neighborhood Accountability Board have helped both guide me and prepare me toward a career in family law. Being able to help families resolve their issues with favorable and amicable methods is truly rewarding.

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What Documents Do You Need to Give your Florida Divorce Lawyer to Prepare a Prenuptial Agreement in Florida? https://divorceattorneynaplesfl.com/what-documents-do-you-need-to-give-your-florida-divorce-lawyer-to-prepare-a-prenuptial-agreement-in-florida/ https://divorceattorneynaplesfl.com/what-documents-do-you-need-to-give-your-florida-divorce-lawyer-to-prepare-a-prenuptial-agreement-in-florida/#respond Wed, 25 Mar 2020 21:50:15 +0000 https://divorceattorneynaplesfl.com/?p=8959 You’ve just gotten engaged or you are thinking seriously about marriage and getting married. A prenuptial agreement in Florida may be the last thing on your mind right now but, if it is, you need to know what documents you’ll need to give a Florida lawyer for a Florida prenuptial agreement (also known as a […]

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You’ve just gotten engaged or you are thinking seriously about marriage and getting married. A prenuptial agreement in Florida may be the last thing on your mind right now but, if it is, you need to know what documents you’ll need to give a Florida lawyer for a Florida prenuptial agreement (also known as a “prenup”).

Maybe you or your family has some fears- if the unfortunate event of divorce occurs, will your children from previous partners be protected? Will you family business be decimated? A Florida family law and divorce attorney can help you create the best prenuptial agreement to fit your needs so you can have peace of mind about your upcoming marriage.

Technically, anyone can write a prenup, but the Florida courts won’t recognize and enforce just any prenuptial agreement. It has to meet certain criteria. The last thing you want after the difficult event of divorce is to then find out in that the Florida pre-nup drafted to protect your assets and family is unenforceable. 

In this article, experienced Naples, Florida divorce and family law attorney Russell Knight will tell you the requirements to create an enforceable prenuptial agreement in Florida.

Prenuptial Agreements in Florida State Law

Prenuptial agreements in Florida are governed by state law. Chapter 61 of Florida Statutes governs divorce proceedings, including how prenuptial agreements are enforced after divorce.    

Florida Statute Chapter 61.079(7)(a) specifically provides three conditions under which a prenuptial agreement will not be enforceable:

  1. The party did not execute the agreement voluntarily;
  2. The agreement was the product of fraud, duress, coercion, or overreaching; or
  3. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
    • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
    • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
    • Did not have, or reasonably could not have had, and adequate knowledge of the property or financial obligations of the other party.

Below, we will discuss each of these points in greater detail and how to ensure your Florida prenup will protect your property, assets, and family.

First Step: Identify Your Goals to Strengthen your Florida Prenuptial Agreement

  1. What are your goals for your Florida prenuptial agreement?

The first step to creating a Florida prenuptial agreement is determining your goals. Florida prenuptial agreements are drafted for many reasons- in contemplation of death, to protect interests in a family business in the unfortunate event of divorce, to govern behavior during the marriage, or to ensure children from previous marriages are adequately provided for.

We encourage you to discuss any proposed goals of the prenuptial agreement with your future spouse first and ensure that you are in full agreement. This ensures that your future spouse enters the agreement willingly and that they won’t be unpleasantly surprised by the terms. In documenting the reasons why both parties are entering into the agreement, it gives the judge insight and it gives you additional credibility if this agreement is ever challenged in court.

Timeline: The Earlier the Better

  1. When are you planning to get married?

The closer to the wedding date the prenuptial agreement is signed, the more likely a judge will say that it was signed under “duress.” Conversely, the more time between the execution of the agreement and marriage, the more likely it will be upheld by court. We recommend executing the prenuptial agreement at least one month before the wedding and at bare minimum, for two weeks. 

Inheritance and Heirs

  1. Provide the full names of any children from either party, their dates of birth, and whether they are dependent on a party.
  2. Provide any wills you have along with names of prospective heirs and beneficiaries and their relationship to you.
  3. Provide any potential future inheritances you may receive from family members.

To satisfy condition three of F.S. 61.079(7)(a) listed above and ensure “full disclosure of property and financial obligations”, you will need to provide all information concerning any assets, present and future, that you may receive as a beneficiary as well as any and all information about your designated beneficiaries and heirs.

What to do about Homestead Property

  1. Would you like to wave spousal rights on your homestead property upon divorce or death? If so, provide the address of your homestead property and an estimated value.

“Homestead property” simply means your main place of residence. This typically is the home that you and your future spouse will reside in together after marriage. In most divorce settlements the homestead property is split between both parties. However, in some cases, you may wish to retain the homestead property. For instance, if you purchased the homestead property with pre-marital funds, you may wish to retain sole residence of it in the case of divorce.

The Most Important Step: Full Financial Disclosure

  1. Fill out the full financial affidavit form attached to this correspondence. The other documents listed in question 8 will help you complete the form. You may fill out the form digitally at the following link: https://www.flcourts.org/content/download/403038/3456562/902c.pdf
  2. List all of your assets. 
    • Provide the most recent copy of all bank account statements held solely or jointly in your name.
    • Provide the most recent copy of any investment account statements.
    • Provide documentation regarding any business owned in whole or in part, including an estimated value if available and the basis for valuation.   
    • Provide a copy of deeds to all real property.
    • Provide the property appraiser’s appraisal and tax bills for both real and personal property.
    • Provide a copy of all motor vehicle, airplane, boat, or vessel bills of sale, titles, or registrations.
    • Provide a detailed and complete list of tangible personal property with particular emphasis on jewelry, antiques, collectables, weapons, and significant furnishings.
    • Provide a list of all pets.
  1. List all of your liabilities and debts.
    • Provide a copy of any notes and mortgages on real property and status of payments.
    • Provide a copy of any notes and lien documents on tangible personal property.
    • Provide a copy of any unsecured notes and loans.
    • Provide a copy of any car loans.
    • Provide a copy of any credit card statements.
    • Provide a copy of any medical bills.
    • Provide a copy of any tax bills, including income tax and property tax.
  1. Provide all your income information.
    • Provide one year of personal and business tax returns.
    • Provide your most recent pay stubs.
    • Provide the most recent retirement plan annual statements.
    • Provide any recent financial statement provided to a bank or lending institution for any reason.

You may be wondering, who will have access to all these sensitive and personal documents? Please know that any sensitive and personal information will not be included in or attached to the prenuptial agreement. They will only be shown to your intended spouse, their legal counsel, tax advisor, and/or investment advisor under the signature of a notary public. Once they have reviewed all the documents listed above, you will have definitely “provided a fair and reasonable disclosure of the property or financial obligations” and will make your prenuptial agreement easier to enforce in the future.

Attorney for your Intended Spouse

  1. Is your intended spouse planning to hire their own attorney to represent them in this matter?

As legal counsel, we are only allowed to represent one party, even under amicable circumstances.  We strongly recommend for your intended spouse to hire their own attorney to represent them in the execution of the prenuptial agreement. This is a crucial step that will make this prenuptial agreement much more enforceable in the future. Any future judge will see that your intended spouse had legal representation and therefore, the agreement was not “overreaching” or made under “coercion.” If your intended spouse cannot afford an attorney, we recommend you providing funds to your spouse for this purpose but it is important to let them contact an attorney on their own.

Reimbursing Attorneys’ Fees

  1. Would you like to add a stipulation in your prenuptial agreement that should the agreement ever be challenged in court, the prevailing (winning) party can reimburse their divorce attorneys’ fees from the other party?

This stipulation can protect you from accruing large amounts of attorneys’ fees in the future should the other party challenge the prenuptial agreement in court and lose. It may also deter the other party from going to court at all.

Alimony

  1. Would you like to waive all alimony/maintenance in your prenuptial agreement?

Upon divorce, a party is typically awarded alimony if they cannot maintain their lifestyle without financial support from the other party. However, in a prenuptial agreement, you may add a stipulation that in the case of divorce, neither party would be able to seek maintenance or alimony from the other party. This only applies to spousal alimony, not to child support, which you cannot waive in a prenuptial agreement.

If you’d like to learn more about how to whether your current prenuptial agreement will hold up in a Florida court or if you’d like help drafting a prenuptial agreement, contact Naples, Florida family law attorney Russell Knight to learn about all your options.

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I Was Served With Divorce Papers in Naples, Collier County, Florida. What Do I Do? https://divorceattorneynaplesfl.com/i-was-served-with-divorce-papers-in-naples-collier-county-florida/ https://divorceattorneynaplesfl.com/i-was-served-with-divorce-papers-in-naples-collier-county-florida/#respond Sun, 24 Nov 2019 17:34:13 +0000 https://divorceattorneynaplesfl.com/?p=8840 Getting served with divorce papers is a dramatic event.  A stranger comes to your home or work asks your name and then hands you divorce papers. Whether you knew you were going to get divorced or not, getting served divorce papers is not the most delicate of situations.  If you were served with divorce papers […]

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Getting served with divorce papers is a dramatic event.  A stranger comes to your home or work asks your name and then hands you divorce papers. Whether you knew you were going to get divorced or not, getting served divorce papers is not the most delicate of situations.  If you were served with divorce papers in Naples, Florida you’ll need to know a few things.

The Summons: Personal Service On An Individual

Part of the divorce papers that are served are actually called a “Summons.”  A summons is a document that starts every lawsuit and alerts the Defendant/Respondent that there is a case against them.

Attached to the summons should be the actual Petition for Dissolution of Marriage that outlines a summary of what the petitioner believes are the facts in the case and what the petitioner is asking the court to do based on those facts.

All Florida divorce cases use the same summons form. This form has a lot of seemingly harsh language.  That harsh language is there to get your attention so you should really pay attention because the dates on the form are very important.

The Florida Family Law Summons reads:

“A lawsuit has been filed against you.  You have 20 calendar days after this summons is served on you to file a written response to the attached complaint/petition with the clerk of this circuit court. A phone call will not protect you.” 

20 days is not a lot of time to do what the instructions say, that you must “file a written response.”

The instructions don’t tell you what should be in the written response because that all depends on what was in the Petition for Dissolution of Marriage which is attached to the summons.  The standard Florida summons does provide some instructions, though:

“Your written response, including the case number given above and the names of the parties, must be filed if you want the Court to hear your side of the case. If you do not file your written response on time, you may lose the case, and your wages, money, and property may be taken thereafter without further warning from the Court.  There are other legal requirements.  You may want to call an attorney right away.  If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book).”

The summons provides good advice.  “CALL AN ATTORNEY RIGHT AWAY.”  It even tells you what to do if you don’t know an attorney.  “YOU MAY CALL AN ATTORNEY REFERRAL SERVICE OR A LEGAL AID OFFICE (LISTED IN THE PHONE BOOK).”

Obviously, this form is a little dated as no one uses a phone book anymore and people usually just use a search engine like Google to find an attorney referral service.

The most useful local attorney referral service is the Collier County Bar Association’s Lawyer Referral program.  For $ 50, you can get a 30-minute consultation with an experienced local family law attorney.  This is a great deal as lawyers can charge up to $ 500 for a consultation in Naples, Florida.

Upon hiring an attorney, the attorney will then prepare a written answer to the Petition for Dissolution of Marriage and file their appearance in the matter so the opposing party and their attorney know to direct all future correspondence to the attorney.

You do not have to hire an attorney (despite the old adage that” the self-represented have a fool for a client”).  The summons provides instructions on what to do if you file your own written response.

“If you choose to file a written response yourself, at the same time you file your written response to the Court, you must also mail or take a copy of your written response to the “Plaintiff/ Plaintiff’s Attorney” named below.”

If you don’t file a written response, the opposing party can file a motion for default after 20 days asking that you be held by the court to be in “default” and that the court subsequently enter a final order entering all of the items requested for in the Petition For Dissolution of Marriage.

How To Avoid Service Of Divorce Papers

Avoiding service is almost never advisable.  Avoiding service just delays the inevitable.  Without service and a written answer on your behalf, your spouse can use the Collier County court system while you cannot.   This may mean frozen bank accounts or even ex-parte orders regarding custody of children.

If you know or suspect your spouse has filed for divorce in Collier County, Florida, but you don’t want to be embarrassed by a process server approaching you at your home or work, you have a few options:

  • Just look up your case at the Collier County Courthouse and file an appearance. An appearance lets the other side know that you are aware of the case and you will be granted 20 days from that appearance filing to file your formal written response.
  • A more roundabout way to avoid service is to request from your spouse or spouse’s attorney a “waiver of service.” They’ll gladly send you a form for you to sign and return that acknowledges service without the formality of actually being served.

What Can Happen After I’m Served?  

After service, you’re now under the power of the judge’s standing order.  The Collier County family law judges (as of the date of this writing) both use a standing order.

There is one standing order for litigants with children and one standing order for litigants without children.

For litigants with children the standing order states that “Within 60 days of the date of filing of the Petition for Dissolution of Marriage, the parties/Parents SHALL agree on a schedule for the child/children to spend time with each of them during the pendency of this Case.  The parties shall reduce this schedule to writing and each sign said agreement within this 60 day period. If the parties fail to do so, at the time that one or both of them determine that they will be able to so agree (not later than the expiration of the 60 day time perod), then they SHALL schedule a future hearing. If a hearing is so scheduled, the parties SHALL mediate this issue prior to this hearing (if they have not already), though the parties may obtain the hearing date prior to completing mediation.”

So, if your spouse has filed for divorce in Collier County, Florida, you have to make arrangements for the children’s schedule as soon as possible.  If you can’t agree you must go to a hearing or mediation within 60 days.

Child support is encouraged to be paid but not ordered by the standing order until the court makes a temporary order.

You absolutely cannot move with the children while a divorce case is pending.  The standing order states “Neither party will remove, cause to be removed, nor permit the removal of any minor children of the parties from their current county of residence for residential purposes without written agreement of both parties or Court order.  The intent of this restriction is not to prohibit temporary travel within the State of Florida.  The children shall not be taken outside of the State of Florida without the written agreement of both parties or a court order. Neither party shall apply for any passport or passport services on behalf of the children.  While it is not necessary for parents to know the location of their children every minute of the day when the children are in the physical custody of the other parent, both parents are entitled to know the location and phone number where the children are living and/or spending the night when they are in the custody of the other parent.”

For Collier County residents who are divorcing whether they have children or not, they must follow a series of rules to keep everything in the same status quo as of the date of filing until further order of court.

“Neither party will conceal, damage, or dispose of any asset, whether jointly or separately owned, nor will either party dissipate the value of any asset (for example, by adding a mortgage to real estate) except by written consent of the parties or Court Order.  The parties shall NOT cancel or cause to be canceled any utilities, including telephone, electric or water and sewer.  The parties may spend their income in the ordinary course of their personal and family affairs.  The parties shall NOT conceal, hoard, or waste jointly owned funds whether in the form of cash, bank accounts or other highly liquid assets, except said funds can be spent on the necessities of life but only if the parties’ regular incomes has been expended for such.  Any party who violates this order will be required to render an accounting and may be later sanctioned for wasting a marital asst.  The court may award fewer assets to a violator of this provision to compensate the other spouse.”

The standing order goes on to elaborate that retirement accounts and insurance policies must remain in place as well.

If you’ve been served with divorce papers in Naples, Collier County, Florida, call my family law firm to schedule a free consultation with an experienced divorce lawyer.

 

 

 

 

 

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Bigamy And Divorce In Florida https://divorceattorneynaplesfl.com/bigamy-and-divorce-in-florida/ https://divorceattorneynaplesfl.com/bigamy-and-divorce-in-florida/#respond Sat, 23 Nov 2019 14:27:48 +0000 https://divorceattorneynaplesfl.com/?p=8833 Bigamy and divorce in Florida. How does bigamy affect a divorce under Florida law?

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Bigamy is the act of going through a marriage ceremony while already married to another person. In Florida, bigamy is both a crime and a factor that can impact a divorce.

The Crime of Bigamy in Florida

The Florida statutes are very clear that bigamy is a crime.

“826.01 Bigamy; punishment.—Whoever, having a husband or wife living, marries another person shall, except in the cases mentioned in s. 826.02, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

So, if you’re already married and you marry someone else in addition to your first spouse, in Florida, you have committed a third degree felony which is punishable by a $5,000 fine and up to five years in prison.

Most “bigamists” are not actively marrying multiple people on purpose. They usually fall within the exceptions to the crime and are, therefore, not felons.

“826.02 Exceptions.—The provisions of s. 826.01 shall not extend to any person:(1) Who reasonably believes that the prior spouse is dead.(2) Whose prior spouse has voluntarily deserted him or her and remained absent for the space of 3 years continuously, the party marrying again not knowing the other to be living within that time.(3) Whose bonds of matrimony have been dissolved.(4) Who violates its provisions because a domestic or foreign court has entered an invalid judgment purporting to terminate or annul the prior marriage and the defendant does not know that judgment to be invalid.(5) Who reasonably believes that he or she is legally eligible to remarry.”

It is extremely common for people to have married someone years ago and presume that the spouse they haven’t heard of is either dead or has divorced them. This is especially true for people who were originally married in a foreign country. The key is that the belief in the death or divorce of your former spouse must be “reasonable.”

The person who marries the bigamist is not free from criminal charges…if they know their spouse is already married.

“826.03 Knowingly marrying husband or wife of another.—Whoever knowingly marries the husband or wife of another person, knowing him or her to be the spouse of another person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”

The same exceptions apply to the person who marries the bigamist so a reasonable belief that the previous marriage is now invalid will be sufficient to avoid criminal culpability.

Does Bigamy Get Prosecuted in Florida?

Yes, bigamy does get prosecuted in Florida. When a crime gets reported in Florida, the police will investigate and the state’s attorney will file charges. In the case of bigamy, an upset husband or wife is very likely to report the crime of bigamy.

As recently as 2017, a Florida man with two wives was charged with bigamy. Neither wife knew about the other and once they found out, they both pressed charges against their mutual husband. The case was eventually dropped (probably because the wives backed out)

Bigamy cases often get dropped in Florida because the States’ attorneys decide they don’t have jurisdiction if the bigamous marriage occurred outside of Florida. This is not a defense to bigamy, this appears to be purely a prosecutorial decision.

The Future of Bigamy In Florida

Numerous foreign countries and cultures allow for multiple spouses. There was even a show about bigamists on TLC called “Sister Wives.” The stars of the show were all prosecuted but a judge declared the law against bigamy to be unconstitutional.

Marriage is a fundamental right per the U.S. Supreme Court, so we can expect that right to eventually be extended to legitimate relationships that may include bigamy.

How Does Bigamy Affect A Divorce in Florida?

If you marry a bigamist in Florida…you’re not really married. Therefore, you can declare your marriage void. This means you have no rights or responsibilities under the Florida divorce laws because you never were married in the first place.

This might be great if you don’t want the responsibilities of a divorce but what if you unknowingly married a bigamist and now you want to divide marital property and ask for alimony?

The Florida Supreme Court will allow an unknowing spouse to collect alimony and divide marital property even when the marriage is void, “When a wife is an innocent victim of the husband’s wrong, then the court may allow permanent alimony and attorneys’ fees on equitable principles as well as under Section 65.08, Florida Statutes.” Burger v. Burger, 166 So.2d 433, 436 (Fla. 1964)

If you believe you are in a bigamous relationship and would like to know your rights, contact my Naples, Florida family law firm to schedule a free consultation with an experienced divorce lawyer.

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How Do You File An Emergency Motion In A Naples, Florida, Collier County Divorce or Family Law Matter? https://divorceattorneynaplesfl.com/how-do-you-file-an-emergency-motion-in-a-naples-florida-collier-county-divorce-or-family-law-matter/ https://divorceattorneynaplesfl.com/how-do-you-file-an-emergency-motion-in-a-naples-florida-collier-county-divorce-or-family-law-matter/#respond Sun, 06 Oct 2019 21:39:03 +0000 https://divorceattorneynaplesfl.com/?p=8827 In a divorce or family law matter, things come up all of a sudden that often require the courts immediate attention.  To get a Collier County, Florida court to address these sudden matters you must file an emergency motion in order to have the judge hear your case immediately.  Having an emergency motion heard immediately […]

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In a divorce or family law matter, things come up all of a sudden that often require the courts immediate attention.  To get a Collier County, Florida court to address these sudden matters you must file an emergency motion in order to have the judge hear your case immediately.  Having an emergency motion heard immediately is no small feat in Naples, Florida.  Many steps must be followed and those steps are outlined below.

The entire Anglo-American judicial system is based upon due process and the U.S. Constitution guarantees “due process.”  Due process means that you get a fair hearing on any matter where you’re given adequate time and resources to present and/or defend your case.

An emergency hearing in a family law court (or any court), is in direct contravention to the concept of due process. An emergency motion asks for an emergency hearing where the petitioner, the respondent and the court have little to no time to consider the matter properly.  Still yet, emergencies happen in real life and must be addressed…they just have to be addressed appropriately.

How an emergency motion works in a Naples, Florida family law court.

As of this writing, there are two judges who handle family law matters in Collier County, Florida: Judge McGowan and Judge Cupp.  Both judges share the exact same standing order regarding emergency motions which reads as follows:

EMERGENCY HEARINGS: All matters considered to be an emergency by a party or counsel must be stated in a written motion that is filed with the clerk and served on the opposing party or counsel, if any. A copy of the motion must be delivered to the judge’s office after the original has been filed and served. The judge will review the motion to determine if there is an emergency. If so, the judge will decide how to address the emergency with an order to show cause, expedited hearing time, or other appropriate relief. If there is no emergency, hearing time in the ordinary course will be given. All emergency motions must be sworn to and signed by the party. If emergency motion relates to a children’s issue, a UCCJEA affidavit must accompany the motion.”

So, you must prepare the emergency motion, sign the emergency motion, file the emergency motion and then drop off the emergency motion at the judge’s office. The judge will then read your emergency motion and decide if the situation is indeed an emergency.

The standard of what constitutes an emergency in a Florida family law matter is in the eye of the trial court judge.  Case law has outlined that an an emergency order requires an emergency situation such as where a child is threatened with physical harm or is about to be improperly removed from the state.” Smith v. Crider, 932 So. 2d 393 – Fla: Dist. Court of Appeals, 2nd Dist. 2006

Almost nothing financial, such as child support, shall be deemed an emergency matter.

If the matter described in the filed emergency motion is deemed to be an emergency, the judge will then schedule a hearing on the matter at a time convenient to the judge.  Presumably, you will be available at that time.  After all, it is your emergency.

If the matter is not deemed an emergency by the judge, the judge will issue an order declaring the matter NOT an emergency.  You may still file the motion as a regular motion and ask for a date via the regular motion calendaring system (which may be months away).

At the emergency hearing you will be given the opportunity to present evidence supporting the relief you’re requesting.  The opposing party will also have the opportunity to present their own evidence supporting their position.

What If I Can’t Give The Opposing Party Notice of My Emergency Motion?

You’ll notice the standing order requires that the emergency motion be “served on the opposing party or counsel, if any.”

In real emergencies, the opposing party is usually unavailable because they’ve done something so terrible it requires an emergency motion (they’ve hurt someone, disappeared, sequestered money or children).

When you request emergency relief without appropriately informing the other side that is called asking for an “Ex Parte” order.  It is more difficult to get an Ex Parte order than it is to get an order when both sides are informed or present.

The Collier County family court judges’ standing order addresses how they handle Ex Parte orders:

“EX PARTE ORDERS: An ex parte order is one that is entered without notice to the opposing party and without an opportunity for the opposing party to be heard before the order is entered. In most cases, an ex parte order may violate due process of law and orders that violate due process are void, unenforceable and a nullity. Nevertheless, the law does allow ex parte orders in some situations, e.g. , F.S. §741.30(5)(a), which allows an ex parte injunction to be entered for protection against domestic violence. Motions for an ex parte order must contain specific citations to the legal authority that gives the judge the authority to enter an ex parte order in the situation alleged in the motion. Without such legal citations, ex parte relief may be denied. Strict compliance with Rule 1.610, Rules of Civil Procedure, is required. “

So, if you are not able to inform the other side of your motion, you will have to specifically cite either the Florida statute or case law which allows the court to issue an ex parte order despite the fact that an ex parte order directly contravenes the concept of due process.  This is a high bar.

Temporary Injunctions in a Naples, Florida Family Law or Divorce Matter

Almost all emergency motions ask for some kind of temporary injunction. That is, a request that a person do or not do something on a temporary basis.

In a divorce or family law matter, these injunctions (when granted) will require a party to not touch money or an asset until the appropriate disposition of that asset can be ascertained. Alternatively, an injunction can require that a child be someplace or do something until it is properly determined what is in the best interests of that child.

Florida has a Family Law Rules of Civil Procedure which specifically outline what is required in a petition for temporary injunction.

“A temporary injunction may be granted without written or oral notice to the adverse party only if:

(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant or movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.” Family Law Rules of Civil Procedure Rule 12.605(a)(2)

Again, the Florida Family Law Rules of Civil Procedure require that you show in writing, why it is an emergency by requiring an “immediate and irreparable injury, loss or damage” that only an injunction can prevent.

Your petition for temporary injunction better be good because that’s the only thing the court will consider unless the opposing party shows up to the hearing.

“No evidence other than the affidavit or verified pleading may be used to support the application for a temporary injunction unless the adverse party appears at the hearing or has received reasonable notice of the hearing. Every temporary injunction granted without notice must be endorsed with the date and hour of entry and must be filed immediately in the clerk’s office and must define the injury, state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice if notice was not given. The temporary injunction shall remain in effect until the further order of the court.” Family Law Rules of Civil Procedure Rule 12.605(a)(3)

If your petition for temporary injunction is asks for something financial like “don’t spend marital money on a business venture” you may be required to post a bond in case your temporary injunction causes some kind of financial damage to the opposing party or other interested party.  This is very rare in family court and not required when the temporary injunction is about safety (which most are).

“(b) Bond. No temporary injunction may be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined. When any injunction is issued on the pleading of a municipality or the state or any officer, agency, or political subdivision of it, the court may require or dispense with a bond, with or without surety, and conditioned in the same manner, having due regard for the public interest. No bond shall be required for issuance of a temporary injunction issued solely to prevent physical injury or abuse of a natural person.” Family Law Rules of Civil Procedure Rule 12.605(b)

The final injunction as issued by the court has to be as specific as possible so that the parties (and anyone else) can follow it appropriately.  Typically, the petitioner’s attorney prepares the proposed injunction and tenders the proposed injunction to the court.

“(c) Form and Scope. Every injunction must specify the reasons for entry, must describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and must be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction.” Family Law Rules of Civil Procedure Rule 12.605(c)

Finally, temporary injunctions are really temporary.  The opposing party can file a motion to dissolve the injunction and they must be heard within 5 days of filing that motion to dissolve.

“(d) Motion to Dissolve. A party against whom a temporary injunction has been granted may move to dissolve or modify it at any time. If a party moves to dissolve or modify, the motion must be heard within 5 days after the movant applies for a hearing on the motion.” Family Law Rules of Civil Procedure Rule 12.605(d)

Emergency Verified Motion For Child Pick-Up Order

Perhaps the most common emergency motion filed in Collier County is the Emergency Verified Motion For Child Pick-Up Order.

This motion asks that the Collier County Sheriff or any other law enforcement agency help you retrieve your children from whoever is watching them pursuant to an existing order.

This means that you must have an existing order awarding you parenting time at that time in order to get a child pick-up order.

For example, if your children’s mother and father won’t release the children to you for your weekend, the police will instruct the parties to follow the order as written but the police aren’t likely to be so aggressive as to physically force the other parent to hand over your children.  But, if you have a child pick-up order, the police will do everything in their power to enforce your parenting time at that moment.

This is, obviously, a horrible way to arrange the pick-up your children and should be used sparingly but, unfortunately, you may have no choice.

The standardized form for an Emergency Verified Motion For Child Pick-Up Order can be found here.

If you need to file an emergency motion or your ex-partner has filed an emergency motion, do not hesitate to contact my Naples, Florida family law firm to speak with an experienced family law attorney.

 

 

 

 

 

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Parenting Alone In Naples # 33: Mini Golf https://divorceattorneynaplesfl.com/parenting-alone-naples-fl-mini-golf/ https://divorceattorneynaplesfl.com/parenting-alone-naples-fl-mini-golf/#respond Fri, 20 Sep 2019 23:24:37 +0000 https://divorceattorneynaplesfl.com/?p=8816 This is number 33 in my series of articles where I focus on kid-friendly activities in a not-so-kid-friendly town, Naples, Florida.  If you are divorced, separated or just have the kids for the day, I hope these articles can be a handy, informative list of things to do with kids in Southwest Florida. The weather […]

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This is number 33 in my series of articles where I focus on kid-friendly activities in a not-so-kid-friendly town, Naples, Florida.  If you are divorced, separated or just have the kids for the day, I hope these articles can be a handy, informative list of things to do with kids in Southwest Florida.

The weather in Southwest Florida is amazing so the temptation is always to do something outdoors.  But, an outdoor activity can mean kids and adults can become extremely sweaty and uncomfortable (especially in the hot Florida summers). So, a constrained outdoor activity might be the best choice.

Mini-golf makes for a great outdoor activity where you won’t sweat through your shirt, lose track of your children or embarrass yourself athletically.

In Naples, Florida proper there is only one location you can mini golf (this says a lot about real estate prices and kids in this town). Coral Cay Adventure Golf is located just off of the Tamiami trail southeast of downtown Naples at 2205 Tamiami Trail E, Naples, FL 34112

For a Naples, Florida kid’s activity, Coral Cay Adventure Golf is extremely affordable. Prices are below:

For 18 holes of mini golf

Children (4 & under) . . . $3.50
Juniors (5-11) . . . $9.00
Teens & Adults (12-61) . . . $10.00
Seniors (62 and up) . . . $9.00

But there are more than just 18 holes at Coral Cay Adventure Golf.  There are actually 36.  If you want to play all 36 holes (which is a lot) just add $ 4.00 to each of the prices above.

Coral Cay Adventure Golf is also one of the most affordable birthday party venues in Naples, Florida with a cost of just $ 10 per child including the cake, drinks, plates, cups, etc.

Coral Cay Adventure is open at 10 AM and closes at 11PM.  A quick 18 holes can be a great way to unwind from a lunch or to cap off a trip to the movies.

There is more mini-golf to the north of Naples.  Golf Safari is located off of Bonita Beach Road and has a jungle theme.  There are various kid-friendly pizza places nearby for a post-mini golf meal.

Golf Safari’s rates are:

Ages 13+ …$ 11.49

Ages 4-12…$10.49

Ages 3 and under…Free

Ages 55 plus….$ 10.49

Not to be outdone in the jungle-themed mini golf business is Congo River Golf further north on the Tamiami trail in Bonita Springs.  This place really has it all: an arcade, gator feedings, gem mining in waterfalls and scavenger hunts.

Congo River is a little more expensive than Coral Cay, though.

Ages 10+ . . . $13,99

Ages 9 and under . . . $ 12.49

One child 4 and under . . .  Free

Congo River’s birthday party package is also a little more pricey with the most affordable birthday package being $99.99 for the first six guests and $12.49 each additional guest.

Fort Myers has a few more mini golf locations within a short drive from Naples Florida that you can also check out.  Further up Florida’s west coast there are even more.

Mini-golf is just a great activity for those early evenings when you have to do something outside and active but you’re also still feeling a little tired.

Coral Cay Adventure Golf is just 7 miles from my Naples, Florida family law office.  Directions are below.

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Bonita Springs, Florida Divorce Lawyer https://divorceattorneynaplesfl.com/bonita-springs-florida-divorce-lawyer/ https://divorceattorneynaplesfl.com/bonita-springs-florida-divorce-lawyer/#respond Sun, 11 Aug 2019 20:42:50 +0000 https://divorceattorneynaplesfl.com/?p=8675 The post Bonita Springs, Florida Divorce Lawyer appeared first on Russell D. Knight | Family Lawyer.

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Southwest Florida is an area that is typically considered to encompass Collier, Lee and Charlotte Counties. If you live in one of these counties and you file for divorce, you must file your divorce in that particular county.  However, that does not mean you have to hire a divorce lawyer with an office in your county.  So, where do you find a Bonita Springs, Florida Divorce Lawyer?

Bonita Springs sits on the border of Lee and Collier Counties. A Bonita Springs resident may travel to Collier County to go to Trader Joe’s, their doctor, or a family law attorney.

The expertise of a divorce or family law lawyer does not stop at the county line.

I, personally, office out of North Naples, Florida so that I can have access to both Collier county and Lee county’s courts.  In my experience, a divorce in Lee County is largely the same as a divorce in Collier County.  A house in Bonita Springs gets divided as marital property in exactly the same way as it does in Naples Park.

Family law in Florida is very consistent throughout the state of Florida.  This is because 90% of the rules that impact family law in Florida are from the Florida State Statutes or the Family Law Rules of Civil Procedure.

Lee, Collier, and Charlotte county are all part of the same judicial circuit, the 20th judicial circuit.  This means that the entire Southwest Florida area shares the same batch of judges.  So, your traffic judge in Port Charlotte today may be your divorce judge in Naples tomorrow.

The only significant difference in family law rules between Lee County and Collier County are the individual standing orders of the judges who currently sit in the family law courts of each county.

Travel expenses may be a factor in a Bonita Springs divorce.  When a lawyer travels to court, he will often bill the client for that travel (for Lee and Collier county cases, I do not bill for travel).

The truth is, that there are very limited instances where going to court is actually necessary.  Typically, in a Bonita springs divorce case, it will only be necessary to go to court for evidentiary hearings and case management conferences.

Evidentiary hearings are what you see on television where the judge says, “Put on your first witness” and the divorce lawyer begins to put testimony and exhibits into evidence.

Case management conferences are essentially meetings where a judge asks what’s going on in the case and sets deadlines for the divorce lawyers to do certain things like exchange discovery, exchange witness lists, etc.

Additionally, many Bonita Springs, Florida, residents have assets and residency in states other than Florida.  A Bonita Springs, Florida, resident needs to consider the possibility that his or her divorce may happen or move to that other state if his or her Florida divorce lawyer does not secure jurisdiction for the divorce in Florida.

In conclusion, a Bonita Springs divorce doesn’t always need a Bonita Springs divorce lawyer, exactly.  A divorce lawyer’s law degree, experience and temperament are much more important than a divorce lawyer’s address.  So, drive 10 miles south to my family law office in North Naples, Florida.  It’s 20 miles closer to my than it is to the Ft. Myers courthouse where your divorce will take place. Directions below.

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Florida vs. Illinois Divorce Laws https://divorceattorneynaplesfl.com/florida-vs-illinois-divorce-laws/ https://divorceattorneynaplesfl.com/florida-vs-illinois-divorce-laws/#respond Fri, 09 Aug 2019 10:37:19 +0000 https://divorceattorneynaplesfl.com/?p=8649 Divorce is handled by state law. If you are under the jurisdiction of a state by that own state’s rules you CAN get divorced in that state.  That doesn’t mean you MUST get divorced in that state.  Theoretically, it’s possible to get divorced in one of many states depending on you and your spouse’s residency […]

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Divorce is handled by state law. If you are under the jurisdiction of a state by that own state’s rules you CAN get divorced in that state.  That doesn’t mean you MUST get divorced in that state.  Theoretically, it’s possible to get divorced in one of many states depending on you and your spouse’s residency and ties to those respective states.  But for this article, let’s just consider Florida vs. Illinois divorce laws.

I, personally, am licensed to practice law in Illinois and Florida and have focused my two practices (one in both Illinois and Florida) on the family law in particular.  If you’ve read either of my blogs, you’ll see that I’m kind of obsessed with family law.

Family law is often broad but not deep.  As a family lawyer, you learn how to divide a business and the next day you’re determining if a custody valuation is correct.   Divorce law doesn’t have the minute nitty-gritty like the lawyers who regulate nuclear power plants, for example, have to deal with…until you come to jurisdictional issues.

Jurisdiction of Divorce in Florida.

Florida has great weather, low taxes and tough jurisdiction laws.  To get divorced in Florida, either you or your spouse must be a resident of Florida.  To be a resident of Florida, you must reside in Florida for at least six months of the year.

If either spouse has spent 183 days of the current year or the past year in Florida, they are a Florida resident for the purposes of divorce.  If anyone contests those 183 days, you must prove via calendar that you were in Florida during that time. Honestly, your phone probably can prove exactly where you were if you’re inclined to ask it.

If you or your spouse were not in Florida for exactly 183 days then the courts look to the intent of the parties.  Do you have a Florida driver’s license? Did you file your taxes in Florida?  Do you own a home and car in Florida?  These can all be proven via testimony and filing exhibits with the court.  If you have a tax filing, home and/or car in another state that will weigh against your residency in Florida for the purposes of divorce.

Jurisdiction of Divorce in Illinois

Illinois has a bad reputation for not accommodating businesses…but they sure accommodate divorce.  You only have to be in Illinois for 90 days to get a divorce in Illinois. That’s not 90 days before filing, that’s 90 days before the actual divorce.

There used to a lawyer in Chicago who would only advertise in the Philippines (where it is illegal to get a divorce).  Filipinos would take a long vacation in Chicago and 90 days later they would be divorced. The Philippines would then have to recognize that Illinois divorce due to treaties between the Philippines and the United States. (For more colorful Chicago divorce stories, please ask me as I have a million)

I’ve been practicing family law in Illinois for 13 years.  Illinois never turns down a case unless it’s contested by another jurisdiction.

What Happens When Jurisdiction Is Contested between Illinois and Florida? 

When jurisdiction is contested between Illinois and Florida the two respective Illinois and Florida judges schedule a “judicial conference” which most people know better as a “phone call.”

The two judges then discuss the practicality of proceeding with the divorce in their respective jurisdictions.

If the kids have lived in a state for more than 6 months then the divorce will be happening in that state.  There’s a whole interstate treaty and body of law dedicated to this subject called the UCCJEA.

If all or most of the assets of a divorce case are in one state, then that state may handle the divorce for the sake of efficiency.

If the kids are in one state and the assets are in another, it is theoretically possible to conduct each part of the divorce in that respective state.  I have never seen this happen, however. (But I would love to do it)

So Which Is Better For Divorce?  Illinois or Florida?  

It really depends on the facts of your divorce and what your interests are. Let’s go through each of the main factors in divorce.

Division Of Assets In Florida vs. Illinois

Florida law requires marital assets to be divided 50/50.  If those assets are not divided equally, the court MUST explain why in written findings.  Explaining why you didn’t follow the default law in written findings is essentially asking to be appealed and overturned.

Illinois law says that assets must be distributed “equitably.”  What does “equitably” mean? In Illinois, equitably means whatever the judge wants it to mean.  An Illinois judge can say, “I award the wife 60% of the estate” and the judge doesn’t really have to explain him or herself. If there’s no court reporter recording the evidence entered, then it’s essentially impossible to appeal an equitable decision.

Alimony or Spousal Maintenance in Illinois vs. Florida.

In Illinois, there is no alimony.  Instead, people receive a large sum of money every month that is, instead, called spousal maintenance.  As Shakespeare said, “a rose by any other name would smell as sweet.”

Illinois has guidelines spousal maintenance.  That is, the large earner pays the small earner 33% of his or her income minus 25% of the small earner’s income.  This is all pre-tax money!

There is a cap, though.  You cannot receive maintenance (including your income) beyond 40% of the total income of the couple, together.

So, for the mathletes out there, if you make more than 150% of the income of your spouse, you will pay your soon-to-be ex-spouse some kind of spousal maintenance.

If an Illinois judge deviates from these guidelines, the Illinois judge has to issue written findings (and possibly be appealed because of them).

Illinois maintenance lasts a specified amount of time according a long, byzantine schedule that the Illinois legislature keeps amending. The longer the marriage, the longer the spousal maintenance until 20 years where maintenance becomes permanent.

In Florida, alimony is whatever a judge wants it to be.

There are two tests involved in Florida alimony. 1) What are the needs of the lower earning spouse.  2) What is the capacity of the higher earning spouse to pay for those needs.

Florida alimony’s duration is based on a loose system of how the alimony is categorized as rehabilitative, bridge-the-gap or permanent alimony.

Child Custody in Florida vs. Illinois

In both states, child custody is determined through the standard “the best interests of the child.”

How the courts arrive at the best interests of the child in both states is usually done with the help of an outsider.

In Florida a child custody evaluator is appointed to meet with both parents, the children and anyone else associated with the case.  The child custody evaluator is usually a therapist, child psychologist or some other professional whose professional expertise can be relied on by the court.

In Illinois, the child is appointed their own attorney called a Guardian Ad Litem or a Child Representative.  The child’s attorney then coordinates professionals such as therapists to make recommendations to the court regarding parenting time. Obviously, attorneys are more expensive than therapists so Illinois has a more expensive process.

Child Support in Florida vs. Illinois

Child Support in Florida is determined based on the parties’ incomes and the time that each party spends with the child.

If a parent spends more than 20% of the time with the child, that parent will get a reduction in any child support owed based on the percentage of nights the child is with the parent.

In Florida. Each parent who pays for health insurance or child care then gets a credit against or for the child support owed.

Florida’s child support calculator can be found here.

Child support in Illinois is also determined based on the parties’ income.

A parent in Illinois must have the child at least 146 nights (that’s almost 5 months of a 12 month year) before the child support will be reduced from the basic guidelines amount.

Illinois’ child support calculator can be found here.

Expenses like insurance and extracurricular activities in Illinois can be split proportional to income but are usually split 50/50.

So Where Should I File My Divorce? Illinois or Florida?

The law really isn’t dramatically different between the two states except for Alimony or Spousal Maintenance.

Illinois has a set formula to determine the amount and length of spousal maintenance.

Florida has no alimony formula for amount or time.  This means that in Florida, you are really relying on the quality of your attorney to set your alimony.

For most people, if you’re paying alimony, you want to file for divorce in Florida.  If you expect to receive spousal maintenance, you’ll want to file for divorce in Illinois.

The division of assets in Illinois is more flexible than it is in Florida.  So, if you think you have a good argument to get more than 50% of the marital estate, you’ll want to file for divorce in Illinois.  If you want to lock in a 50/50 split, you’ll want to file for divorce in Florida.

As far as child related issues go, you don’t really have a choice. You’ll be locked into whatever jurisdiction that your children have lived in for the last 6 months.

If you’d like to speak with an experienced family law attorney who is licensed in Florida and Illinois, do not hesitate to contact me.

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Family Law in Naples, Florida https://divorceattorneynaplesfl.com/family-law-in-naples-florida/ https://divorceattorneynaplesfl.com/family-law-in-naples-florida/#respond Mon, 29 Jul 2019 11:23:41 +0000 https://divorceattorneynaplesfl.com/?p=8642 The United States of America has 3007 counties which each govern and conduct family law in their own particular style. This myriad of laws and regulations mean that each local area needs local expertise to navigate a divorce, custody hearing, alimony determination or any other type of family law situation. So, how does family law […]

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The United States of America has 3007 counties which each govern and conduct family law in their own particular style. This myriad of laws and regulations mean that each local area needs local expertise to navigate a divorce, custody hearing, alimony determination or any other type of family law situation. So, how does family law operate in Naples, Florida, Collier County?

Family law in Naples, Florida is governed by a series of federal, state and local laws, rules and courts. In this article, I attempt review all of the sources of family law that affect a Naples, Florida domestic relations case. If you can read through it all, you’ll have a good “big picture view” of how family law works in Naples, Florida.

Federal Law

Federal law almost always trumps state or local laws. There are barely any federal laws that impact family law and divorce in particular but your lawyer should be familiar with the few that do such as:

  • Alimony for divorces after 2019 are taxable to the payor. Alimony for divorces before 2019 are taxable to the receiver.
  • Your 401k beneficiary will remain your ex-husband or wife no matter what your divorce says unless you actually change the beneficiary.

There are numerous other federal rules that trump state and local rules but they almost always involve pensions and retirement plans which are heavily federally regulated. The federal government’s more powerful impact is that the Supreme Court has declared marriage and parenting to be fundamental rights. The fundamental right of marriage that you can marry someone of a different race Loving v. Virginia, 388 U.S. 1 (1967) or the same sex, Obergefell v. Hodges 135 Supreme Ct. 2071. So, if you can get married via federal law, you can get divorced and enjoy any other rights states and localities give to married people. The fundamental right to parent your children was decided in Troxell v. Granville in the year 2000. This right prevents third parties from petitioning in courts for time with children over parents’ objections.

This means grandparents have no rights to their grandchildren because of the United States’ Supreme Court. This United States supreme court decision trumps Florida statutes that have been enacted after 2000 that allow grandparents to petition for time with their grandchildren. Naples, Florida family law must always first observe federal law and regulations before following any state law or local rule.

Florida State Statutes

The bedrock of family law in Naples, Florida are the Florida state statues which can be conveniently be found online here. There is one large title in the Florida Statutes, Title 744, that cover domestic relations. This title includes chapters for marriage, domestic violence, determination of parentage, guardianship, custody and supervised visitation. This title largely describes the “what” of family law. Specifically, Title 744 defines what exactly is a marriage, a parent, a guardian and custody in Florida. Outside of Title 744 in the Florida Statutes is Chapter 61 titled “Dissolution of Marriage; Support; Time-Sharing.”

Chapter 61 is found under Title 6: Civil Procedure. Chapter 61 describes the “how” of the law. Chapter 61 tells in detail how you get divorce, how you divide marital property, how is custody determined, etc. Almost all Florida family law issues are described in varying detail in Chapter 61.

Florida Family Law Rules Of Civil Procedure

The “how” as outlined by Chapter 61 is largely instructions for a judge on how to rule in a disputed case. There is a separate set of rules for how parents, couples and lawyers can present their cases to those judges. The set of rules governing family law court cases is called the “Florida Family Law Rules of Civil Procedure.” This document is 176 pages of how a disputed or agreed Florida family law case is supposed to proceed. While the Florida family law statutes are fairly straightforward to read, the Florida Family Law Rules of Civil Procedure are not for the layperson. The rules outline various options and motions that either party can perform to further their case or counteract the opposing side’s case. A quick perusal of the 176 pages of rules should let any person know that if they think they need to know these rules, they need an experienced Florida family law attorney to properly invoke the rules on their behalf.

Florida Evidence Code

If you’re using the Florida Family Law Rules of Civil Procedure, then you are in court because you have a dispute as to some issue in your Florida family law case. These disputes are resolved by the Florida courts in hearings and trials. A family law trial is a big organized meeting between the two sides and the judge where all of the facts are considered by the judge and the judge issues a divorce and other rulings related to the divorce.

A family law hearing is exactly the same except a divorce is not issued. A hearing resolves individual issues apart from the actual divorce. A hearing can happen before the divorce to resolve temporary issues or after the divorce to resolve issues that weren’t resolved by the final divorce documents. When a Florida family law case does not involve a marriage, such as a parentage case, everything in front of a judge is a hearing because there can be no divorce. So, in reality the terms “trial” and “hearing” are interchangeable in Florida family law. A hearing or trial has three phases.

  • Opening statements. During opening statements, the parties summarize what they will be presenting to the court.
  • The case in chief. The case in chief involves putting witnesses on the stand who then provide testimony and authenticate physical evidence.
  • Closing Statements. Closing statements are the summation of the evidence submitted and an argument for how the judge should interpret that evidence based on the law.

Anyone who has ever asked for anything can do an opening statement or a closing statement. Asking the judge for something is the easy part. The case in chief is where the action really is. The judge has to base his decisions based on the evidence…not based on what you asked for. You cannot just give the judge a stack of papers for the judge to read. Everything has to be submitted in a special way according to the Florida Evidence Code.

The Florida Evidence Code outlines what can be admitted into evidence (what the judge can actually consider when making his or her decision) and what the judge CANNOT consider. To keep evidence out, the opposing counsel must shout “Objection!” and then state the basis of their objection based on the Florida Evidence Code. This is really complicated…and you have to do it instantaneously. I’ve been practicing Family Law for 13 years and I still go to weeklong seminars to continue to learn how to submit evidence perfectly.

Florida Case Law

The Florida statutes are written so that the common person can read them. They are extremely brief and can’t possibly accommodate every possible scenario that can arise in a Naples, Florida family law case. When the statute doesn’t tell the judge exactly what to do or the statute contradicts itself, then the courts have to figure it out. This usually happens by someone filing an appeal. An appeal is where someone says the circuit court (the family law court where a case starts) got the law wrong. The appeals court then considers the record and publishes a public decision about whether the court interpreted the law correctly or incorrectly. This is the “case law.”

Case law is where the appellate courts fill in the blanks. Case law provides an example, explains the law and provides the reasoning behind that explanation. This is actually, the entire basis of the law and order system that Great Britain and America have enjoyed. It’s called the common law system. In addition to reading the statutes, you can put your issue into Google Scholar, specify “Florida Courts” and read about similar cases to yours. An appellate decision by an appeals court is now the new law for those situations where the facts fit between the statute.

Case law is not necessarily binding depending on your case’s location. Naples, Florida family law cases are in Florida’s 2nd Appellate district. Florida’s 2nd Appellate district is from Pasco County down to Naples, Florida’s Collier County. An appellate decision by Florida’s 2nd Appellate district is “binding” on a Naples, Florida family law case. An appellate decision by any other district in Florida is just “persuasive.”

The difference between a binding and a persuasive appellate decision is that a lower court must follow a binding decision while a lower court must merely consider a persuasive decision. Florida supreme court decisions are all binding on Naples, Florida family law cases.

For federal court decisions, the Supreme Court of the United States, the United States Court of Appeals for the 11th Circuit and The Federal Middle District of Florida’s decisions are binding on Naples, Florida family law cases. All other federal court decisions are merely persuasive.

20th Judicial Circuit

Finally, the last local set of rules governing a Naples, Florida family law case are the local rules of Florida’s 20th Judicial Circuit. The 20th Judicial Circuit is the court system used by Charlotte, Collier, Hendry, Lee and Glades Counties. All of which are in Southwest Florida. The 20th Judicial Circuit has adopted certain rules as a whole for administering the court system. It’s not important that you know these 20th judicial circuit rules. You will be assigned a judge and you’ll need to know that judge’s particular rules.

Collier County Judge’s Standing Orders

As of this writing, there are two judges who handle family law in Naples, Florida. Each of these Collier County family law judges have a standing order. A standing order is a general order instructing all of the people who appear before that judge as to how they should conduct themselves above and beyond all of the sources of law we have already discussed.

Judge Scott Cupps’s standing orders can be found here.

Judge John McGowan’s standing order can be found here.

These Collier County Judge’s standing orders are largely instructions on how to communicate with the judge’s staff, schedule hearings, and submit documents. Study your judge’s standing order and refer to it frequently. A standing order is largely a guide to the etiquette of how to deal with that judge and their staff. The judge and their staff have every right to be upset if you violate THEIR order. It’s important to note that you may not ever see your particular judge in person.

Many cases can be resolved by negotiations between the parties and the mediators. What’s more, the parties to a Collier County divorce are more likely to resolve their temporary issues in front of a Magistrate.

A magistrate is not an elected judge but, rather, a lawyer who sits as a judge on behalf of that judge and makes decisions following the law. For all intents and purposes, a magistrate is a judge except you have the right to not object to the magistrate hearing your case in favor of your judge hearing your case. The only downside in doing this is that the judge is busier and will schedule your hearing at a later date.

Hornbooks, Blogs, etc.

There are many sources out there to help you better understand how the Naples, Florida family law process works. Many family law lawyers have sat down and compiled and summarized the entire body of Florida Family law in what is called a “hornbook” or “legal treatise.” These summaries are often in excess of a thousand pages. I particularly enjoy Florida Family Law by West-Thompson Publishing.  It’s a very readable treatise even for the layman. A great “how to” treatise is “Drafting Marital Contracts in Florida.”

If you’re not up for a 1000 page read, you can simply google your issue. Many family law lawyers such as myself maintain blogs where we share our knowledge of family law as it relates to particular issues we have encountered or researched.

Make sure you are only getting advice from Florida family law lawyers. Generic legal advice or out-of-state legal advice does not apply to a Florida family law case. Advice from a non-lawyer is worse than useless. Non-lawyers do not write about the law to educate the public. Non-lawyer’s write to vent because something went wrong in their family law case (which de facto means they don’t know what they’re doing)

Do not merely read a family law lawyer’s blog and think that’s the end of the issue. Read the actual law and rules the family law lawyer is referring to. Your facts may not fit the scenario as described by the family law lawyer’s article. It is wonderful that you are educating yourself on Florida family law so that you can be fully engaged in your Naples, Florida family law case. But, you’ve now realized that this is not like watching a Youtube video that teaches you how to unclog a toilet. Once you’ve learned one thing about family law, you simply educate yourself as to how much you do not know.

If you’ve read this far, you are my kind of person: inquisitive and engaged. Contact my Naples, Florida family law firm to personally discuss your Naples, Florida family law situation.

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Common Law Marriage in Florida https://divorceattorneynaplesfl.com/common-law-marriage-in-florida/ https://divorceattorneynaplesfl.com/common-law-marriage-in-florida/#respond Fri, 26 Jul 2019 20:48:51 +0000 https://divorceattorneynaplesfl.com/?p=8639 Florida used to be a big, rural and empty state.  Folks would propose, have a little ceremony and just start living together.  Not everyone would go down to the court house to register their marriage.  These relationships were referred to as common law marriages in Florida.  Common law marriages are marriages that become legal after […]

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Florida used to be a big, rural and empty state.  Folks would propose, have a little ceremony and just start living together.  Not everyone would go down to the court house to register their marriage.  These relationships were referred to as common law marriages in Florida.  Common law marriages are marriages that become legal after the couple lives like husband and wife for a long enough period of time.  Common law marriages no longer exist in Florida the way they once did…but they’re not completely gone.

No More Future Common Law Marriage In Florida

In 2016, the Florida state legislature enacted the following law: Common-law marriages void.—No common-law marriage entered into after January 1, 1968, shall be valid, except that nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.” Florida Stat. Sec. 741.211

So, common law marriages from before 1968 (that’s means your common law marriage would be older than the moon landing) are still valid.  There are less of these common law marriages every day.

Anyone with their partner but not having a formal marriage certificate after 1968 cannot ask that the court or any other Florida governmental body recognize their marriage as valid.

What If My Florida Marriage License Was Defective?

Now that common law marriage is no longer allowed in Florida, this means that you better get the marriage certificate if you want to be married in the eyes of the state of Florida.

Florida marriage licenses can be tricky because there are actually a bunch of requirements to get a marriage license.  The statutory requirements for a Florida marriage license (Fla. Stat. Sec. 741.4) include:

  • That everyone be 18 (or 17 with parents’ permission but only if the older person is no more than 2 years older)
  • The parties have submitted their social security numbers to the clerk of court (unless you don’t have one)
  • The parties have taken a premarital course (unless they don’t want to)

So, with these weird rules can you one person just say, “We didn’t follow the rules, therefore we weren’t formally married and there’s no common law marriage in Florida so I don’t owe you any alimony or division of assets”?

No.  Because the statute outlawing common law marriage has contemplated this possibility “nothing contained in this section shall affect any marriage which, though otherwise defective, was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter.” Florida Stat. Sec. 741.211.

So, if your Florida marriage license got screwed up but you were more-or-less doing the right thing, common law marriage becomes valid again.

Some Common Law Marriages Are Still Valid In Florida

A common law marriage can be valid in Florida under the following circumstances.

  • People who have moved to Florida
  • That previously lived in a state that does recognizes common law marriages
  • And that common law marriage was formed pursuant to that state’s law,

If you meet all of these requirements, then Florida will consider your common law marriage valid.. “validly created in a jurisdiction recognizing such marriages.” Am. Airlines, Inc. v. Mejia, 766 So. 2d 305, 307 n. 5 (Fla. 4th Dist.Ct.App.2000).

For reference’s sake, the below are the states that allow common law marriages that could be transmuted to Florida as of 2019.

  • Colorado
  • Iowa
  • Kansas
  • Montana
  • New Hampshire
  • South Carolina
  • Texas
  • Utah
  • Washington, D.C. (not a state but they still have their own laws)

What Rights Do Unmarried Couples Have In Florida?

If you’ve read this far only to find out that you are not in a Florida common law marriage you need to know your rights as an unmarried person in a long term relationship.

You cannot get divorced if you are not married in Florida.

There is no alimony in Florida if you are not married.  While some states have an alimony for unmarried couples called “palimony,” Florida does not.

If an unmarried couple has a child who has lived in Florida for the last 6 months they have the exact same rights vis-à-vis that child as a married couple. The unmarried couple can and will enter into a parenting plan that will govern their relationship with the child just as a divorcing couple would. This document can include child support and other financial issues relating to the child.

When it comes to unmarried couples and property, it’s completely different. The unmarried couple is treated identically to two friends or business partners who had property either individually or together. That is, what is in either person’s name or possession will remain in that person’s name or possession.

To divide anything that an unmarried couple has in both parties’ names you cannot go to Florida’s domestic relations courts.  Dividing unmarried people’s property is called a “partition action” and must take place in chancery courts.

If you want to know if you have a common law marriage in Florida, contact my Naples, Florida family law firm and get a free consultation to learn more.

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