sell the home in a divorce

Generally, under Florida divorce law, you may not have to sell the home in a divorce. When a couple seeks to force the sale or division of the marital home, a civil action for partition is necessary. If the Florida family law court grants the application for partition, the home may be either divided amongst the parties or sold with the proceeds being divided amongst the couple. If you are seeking to partition a home or prevent the partition you should seek the advice of an experienced divorce attorney in Tampa. Knowing how to sell the home in a divorce or prevent a partition can be difficult without legal counsel.

How to Sell the Home in a Divorce if Owned Jointly

Under Florida Statute §689.115, when a married couple jointly purchases a home or other personal property it is presumed that the property will be held as a tenancy by the entireties. In a tenancy by the entireties, the property is owned by the marital union, rather than by the individual spouses. Each party to the marriage will have one half interest in the marital union, which in turn owns the property. The parties to the marriage will jointly be entitled to any profits, rents, or liability from the property held as a tenancy by the entireties. Further, neither spouse can transfer their interest in the property without the other spouse joining or consenting to the transfer. If the property is held as tenancy by the entireties it may require additional legal action to sell the home in a divorce.

When a couple divorces, property held as tenancy by the entireties automatically converts into a tenancy in common. See Florida Statute 689.15. When property is held as tenants in common each owner has the right to sell, lease, or mortgage their interest in the property. Therefore, a Florida family law court is able to order a partition of the property as a means to sell the home in a divorce. If the couple is not divorced, the property will remain a tenancy by the entireties and not subject to a partition by the court.

How to Sell the Home in a Divorce with Partition

Filing for partition can be a means to sell the home in a divorce case. However, filing for partition can be tricky, you must file a separate action or specifically raise the partition in the divorce proceedings, a court cannot simply partition the property as an incident to the divorce case. See Valentine v. Valentine and Bergh v. Bergh. Regardless, whether the demand for partition is raised in the divorce proceedings or subsequent to the divorce the petition must be filed in the county where the property is located. See Harvey v. Mattes. Additionally, the demand for partition must include the following:

  • Description of the property
  • Names and addresses of the owners and other parties with an interest in property. For example, if the property is rented, the current tenants would have to be included.
  • The share or interest each party has in the property

Tampa Divorce Law Firm

If you are contemplating filing for a divorce and are concerned about keeping your fair share of the assets call us today to speak with divorce lawyer in Tampa. Our divorce lawyers have years of experience helping people with their divorce and child custody disputes. Every divorce is different, and our vast experience allows us to cater our services to each client’s specific situation. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help.  We are available 24 hours a day, 7 days a week and offer a free initial consultation to prospective clients.

 

Under Florida DUI law, it is illegal to operate a motor vehicle with a blood alcohol level (BAL) of 0.08% or higher. The defendant will be convicted of DUI if the prosecutor can prove beyond a reasonable doubt that the defendant: (1) drove or was in actual physical control of a vehicle; (2) was under the influence of an alcoholic beverage, a chemical substance listed in Florida Statute 877.111, or a controlled substance listed in Chapter 893 of the Florida Statutes; and (3) was impaired or had a blood or breath alcohol level of .08 or higher. The circumstances of the arrest will determine whether or not the driver will be charged with a misdemeanor or felony DUI. Both felony and misdemeanor convictions can have serious repercussions for the driver. A driver facing DUI charges should always seek the counsel of a DUI defense lawyer in Tampa, regardless if he is facing a misdemeanor or felony DUI charge.

The penalties for drunk driving under Florida DUI law will vary based on the circumstances of the arrest. For example, if the driver had a blood alcohol level of .15 or higher he/ she will be facing an enhanced DUI with increased penalties. For instance, the fine will be no less than $1,000 but not more than $2,000 if it is a first DUI conviction. If it is a second conviction the fine will be no less than $2,000 but not more than $4,000. These fines are twice as much as the fines for DUI with a BAL between .08 and .15. Further, the potential prison sentence will also increase if the BAL is .15 or higher. The prison sentence can increase 3 months, resulting in 9 months imprisonment for a first DUI conviction with a BAL of .15 or higher. See Florida DUI Statute 316.193.

The first thing a DUI defense lawyer typically reviews when receiving a new DUI case is the citation issued by the arresting officer. The citation must contain the required information and be sufficient to inform the driver of the nature of the charges. If the charging document does not satisfy all of the prerequisites and adequately inform the defendant of the charges against him it will be a violation of the defendant’s due process rights. For instance, if a DUI citation alleges the driver had a blood alcohol level above .08 but does not specifically state the BAL was above .15 the driver cannot be subject to the increased penalties. See Reed v. State of Florida.

Each count of an indictment upon which a defendant is changed must allege the essential facts constituting the offense. The Prosecutor will not be able to rely on other counts included in the charging document to cure the defect. For instance, in Leone v. State of Florida, the court vacated a DUI sentence because the second count alleging property damage did not contain sufficient facts to support the allegation. The Prosecutor tried to rely on other counts within the indictment to cure the defect but was overturned by the court. In this case, the DUI defense lawyer properly asserted the defense that the indictment violated the defendant’s due process. Since the specific count alleging property damage did not plead the requisite facts, it did not sufficiently inform the defendant of the nature of the crime against him as required under the Florida Constitution.

If you have been arrested for drunk driving in Florida it is important that you seek the counsel of a DUI defense attorney. At Florida Law Advisers, our DUI attorneys sift through every detail of a case to find any errors by police, violation of constitutional rights, mishandling of evidence, or sloppy police work that we can use to help our clients. To find out if we can help you beat your DUI charges or for answers to your legal questions, contact us today by phone, email, or website form.

Chapter 13 payment plan

In a Chapter 13 bankruptcy, the debtor’s objective is to obtain court approval of a Chapter 13 payment plan that pays creditors as little as possible while still keeping all of their property. On the other hand, creditors will be seeking as much money as possible from the debtor under the Chapter 13 payment plan. Therefore, it is important to hire an experienced bankruptcy attorney in Tampa who knows the law and can advocate on your behalf. Creditors will likely have a team of attorneys on their side and it can be difficult to battle them without competent legal counsel.

Three Requirements of a Chapter 13 Payment Plan

Bankruptcy law will require the proposed Chapter 13 payment plan to satisfy many requirements before being approved. Below are three of the most common requirements imposed under Chapter 13 bankruptcy law. For information about the payment plan for a specific case you should contact a bankruptcy lawyer for assistance.

  • Identify the sources of funds or other property that will be used to pay the debts. This entails the debtor committing a specified portion of their income to make the payments prescribed in the plan. The payments to creditors can be stretched out for up to 5 years. See bankruptcy law 11 U.S.C. 1322.
  • The allocation of payments must be feasible for both the debtor and creditor. In terms of the debtor, it must be feasible that the borrower will be able to make the proposed payments based on the debtor’s current income. From a creditor’s standpoint, the payments must be feasible to satisfy the debt owed.
  • Detail how the funds will be distributed amongst the creditors. The Chapter 13 payment plan must provide for secured claims to be paid the present value of the property that it secures, unless the creditor agrees to accept a lower amount as full satisfaction of the debt or the debtor surrenders the property. On the other hand, unsecured claims only have to be paid as much as they would have received if the debtor filed for Chapter 7, instead of Chapter 13. The amount the creditors would receive in a Chapter 7 depend on a multitude of factors, for more information contact a bankruptcy law firm in Tampa.

Creditors’ Objections to the Chapter 13 Payment Plan

Creditors do have a right to object to the proposed payment plan. However, if the payment plan allocates the funds in accordance with bankruptcy law the judge must approve the plan, despite the creditor’s objections. Your bankruptcy lawyer should be well versed in overcoming creditors’ objections, as it is a common practice in Chapter 13 bankruptcy.

Approval of a Chapter 13 Payment Plan

If the debtor makes all the payments under the court approved payment plan and satisfies all the other Chapter 13 requirements the debtor will be entitled to a discharge. The discharge is a permanent court order releasing the borrower from the responsibility of having to pay the debt.. Further, the discharge prohibits a creditor from taking any collection action against the borrower. In most cases, obtaining a discharge will be the primary reason why a borrower files for bankruptcy. However, there are many nuances of bankruptcy law which can prevent a discharge of certain debts. Therefore, it is important to seek the advice and counsel of an experienced Chapter 13 bankruptcy law firm in Tampa when pursuing relief in bankruptcy.

Chapter 13 Bankruptcy Law Firm

If you are having a difficult time meeting your financial obligations, Florida Law Advisers, P.A. may be able to help. Our bankruptcy attorneys have years of experience helping people just like you to solve their financial problems. We understand these are very difficult times and we are here to help. In some cases, filing for bankruptcy may be a good solution, however, it is often not the only solution available. The right course of action will depend on the unique circumstances of your case. To see which options may be available to you, contact us to today to schedule a free, confidential consultation with a Tampa bankruptcy attorney at our firm.

divorce when you own a home

When a couple goes through a divorce the court will order an “equitable distribution” of the martial assets and liabilities. Generally, the court will divide the marital assets and liabilities 50/50 between the couple, unless there are factors that would make an equal split inequitable. See Florida Statute 61.075. Therefore, if you are filing for divorce when you own a home the property may be subject to equitable distribution.

The first step a Tampa divorce attorney typically does when preparing for a divorce case is to classify each asset and debt as either marital or separate property. For instance, if filing for divorce when you own a home, your divorce lawyer in Tampa should review the details to determine if the home is marital or separate property. Only marital property/ debt is subject to equitable distribution by a court; separate property will remain the property of the spouse who owns it. Marital property is typically all debts and property acquired jointly during the term of the marriage. However, there may be exceptions that apply, you should speak with a divorce lawyer in Tampa to see if any exceptions are applicable to your particular situation.

Divorce When You Own a Home as Tenancy by the Entireties

If filing for divorce when you own a home you should review the property’s deed to determine how ownership is recorded. Under Florida Statute §689.115, when a married couple jointly purchases a home or other personal property it is presumed that the property will be held as a tenancy by the entireties. In a tenancy by the entireties, the property is owned by the marital union, rather than by the individual spouses. Each party to the marriage will have a half interest in the marital union, which in turn owns the property.

The parties to the marriage will jointly be entitled to any profits, rents, or liability from the property held as a tenancy by the entireties. Further, neither spouse can transfer their interest in the property without the other spouse joining or consenting to the transfer. Additionally, a creditor of one spouse may not encumber property held as a tenancy by the entirety without both spouses being a party to the agreement.

Divorce When You Own a Home that is Homestead

Additional considerations should also be paid to property that is classified as homestead under the Florida Constitution. If filing for divorce when you own a home that is registered as homestead additional steps may be necessary to complete the process. Property that has been properly designated as homestead is exempt from levy by creditors and may also benefit from reduced taxes. The purpose of homestead is to promote stability and welfare by allowing homeowners to continue to reside in their home despite financial misfortune and the demands of creditors to levy the property. See Public Health Trust of Dade County v. Lopez.

Homestead property held by a married couple may not be sold or encumbered unless both spouses consent. For instance, a mortgage cannot be placed on the property unless both spouses agree to it. Further, a spouse cannot give the homestead property to a third party in a will unless the other spouse agrees to the devise.

Homestead can be claimed by any person, regardless if the person is single or married. However, two married persons may only claim a single homestead unless they otherwise qualify for homestead and can prove there are legitimate reasons for living in separate residences.  See Law v. Law. To qualify for homestead protection the resident must be the owner of the property and occupy the property with the intention to remain there. Additionally,

  • The homestead must be established before the levy of a judgment creditor
  • The person claiming homestead must be a resident of Florida
  • The protection is limited to ½ acre of contiguous land within a municipality. Property located outside a municipality is protected up to 160 acres of contiguous land.

Divorce Law Firm in Tampa

If you are contemplating filing for a divorce when you own a home and are concerned about keeping your fair share of the assets call us today to speak with Tampa divorce attorney. Our divorce lawyers in Tampa have years of experience helping people with their divorce and child custody disputes. Every divorce is different, and our vast experience allows us to cater our services to each client’s specific situation. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help.  We are available 24 hours a day, 7 days a week and offer a free initial consultation to prospective clients.

 

Under Florida DUI law, police officers must first have reasonable suspicion of drunk driving before they can investigate for DUI. If there was no reasonable suspicion, a DUI defense attorney can file a motion to suppress the evidence obtained from the investigation. If the motion to suppress is granted the evidence obtained from the investigation will be inadmissible in a court of law.

Once a vehicle is stopped for a traffic violation, the police may order the driver to exit the vehicle and detain the driver for investigation related to the stop. See Florida DHSMV v. Haskins. The detainment of the driver is permitted to last long enough to accomplish the legitimate purpose of the stop. In Florida DUI cases, the police may detain a driver to allow time for a member of the DUI task force or canine unit to arrive at the scene. The detainment may last long enough for the officer to diligently investigate to confirm or disprove the suspicion. See Zukor v. State. For instance, if the vehicle is stopped for an invalid tag, the detainment must cease once the officer determines the tag is valid. See Florida v. Borys.

In Bozeman v. State, the police continued to detain the driver for a DUI investigation even after the driver successfully completed the field sobriety tests. Lakeland police officers initially approached the defendant’s vehicle to check on the driver’s safety because he was hunched over the steering wheel while waiting in the drive-through lane of a local restaurant. When the officers woke up the driver he was mumbling and they asked him to perform a field sobriety test. The driver successfully completed the field sobriety tests and was free to leave, as the officer concluded he was fit to drive. However, as the driver was walking back to his car the police ordered him to stop and searched his pockets, revealing cocaine folded in a piece of paper. The Tampa Bay area DUI defense attorney filed a motion to suppress the cocaine. The court granted the motion to suppress, reasoning that once the defendant was found fit to drive by the officer the detainment should have ceased.

Often, reasonable suspicion of drunk driving will not occur until after the police stop a vehicle for some other reason, such as failure to stay in a single lane. If during the time of detainment, police develop reasonable suspicion of drunk driving they can investigate for DUI, even though that was unrelated to the initial stop. For instance, in Origi v. Florida, the vehicle was pulled over by a police officer for driving 90 miles per hour in a 65 mph zone. During the stop to write the driver a ticket for speeding the officer smelled alcohol on the driver’s breath and began to investigate for DUI. The DUI defense lawyer filed a motion to suppress the evidence based on lack of probable cause; however, that motion was denied. The court ruled that the initial stop and subsequent DUI investigation did not violate the driver’s constitutional rights against illegal search and seizures.

If you feel the police violated your rights against illegal searches and seizures contact Florida Law Advisers, P.A for help. Our Tampa DUI attorneys have years of experience in helping clients beat their DUI charges. We carefully scrutinize every detail of each case to identify any potential errors by police, violations of constitutional rights, mishandling of evidence, or sloppy police work that we can use to help our clients. Every DUI case is unique, so we carefully develop a comprehensive legal strategy that is individualized for each client. To find out if we can help you beat the DUI charges or for answers to your legal questions, contact us today by phone, email, or website form to schedule a free consultation with a Tampa DUI lawyer at our firm.