divorce when you own a home

Under Florida divorce law, if you file for a divorce when you own a home the judge will require an “equitable distribution” of the martial assets and liabilities. 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. The first step in equitable distribution for a Florida divorce when you own a home is to classify each asset and debt as either 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. This is typically a straightforward process; however, when it comes to division of the home it can get a little tricky. Therefore, you should seek the advice of a Tampa divorce lawyer for information about how your home may be distributed in a divorce.

Florida Divorce When You Own a Home – is it Marital or Separate Property

Generally, most income, assets, and debts obtained during the marriage is marital property. Property that was individually acquired prior to the marriage will be treated as separate property and not subject to an equitable distribution. However, separate property may be classified as marital property under various circumstances, such as listing both parties as an owner, or commingling the separate property with marital assets. See Farrior v. Farrior. Comingling is an important consideration when filing for divorce when you own a home. Generally, when equal access to the separate property is granted to the spouse it may lose its separate identity and become marital property. See Amato v. Amato. Determining whether or not separate property has been commingled with marital property is based on the specific facts of each case. Therefore, it is best to seek the counsel of an experienced Tampa divorce attorney for information based on your specific circumstances.

How Real Estate is Treated in a Florida Divorce When You Own a Home

Divorce when you own a home can include property that is held as tenants by the entireties. If the title to the home is held as tenants by the entireties it will be presumed to be a marital asset. This will be true even for property that was acquired prior to the marriage. The party asserting a home held as tenancy by entireties is not marital property will have the burden of overcoming the presumption that it is marital property. On the other hand, real estate acquired prior the marriage that does not include the other spouse on the title will be presumed to be separate property, even if both spouses live in the property. See Abdnour v. Abdnour.  In circumstances such as this, the spouse will typically need to show the home was purchased with joint funds to overcome the presumption of separate property.

Real estate that is determined to be separate property may still be subject to a partial distribution in a Florida divorce when you own a home. For instance, if marital funds were used to pay down the mortgage balance, the equity gained in the home will be subject to an equitable distribution. See Mitchell v. Mitchell. Additionally, when marital funds or labor are used to improve the property, the increase in value due to such expenditures may be treated as marital property and subject to an equitable distribution.

What Happens to the Mortgage in a Florida Divorce When You Own the Home

Normally, in a divorce when you own a home and the property is not sold as part of the case, one spouse will be required to make the monthly mortgage payments. However, if the spouse required to make the payments fails to do so both parties may still be liable to the bank for the debt owed. If both parties signed the promissory note for the mortgage, the divorce settlement will not abolish a spouse’s obligation to pay the bank. The bank is not a party to the divorce case and did not consent to any such agreement. Instead, the spouse’s only option will be to seek indemnification from the party required to pay under the divorce settlement agreement.

When drafting divorce settlement agreements for a Florida divorce when you own a home, your divorce law firm should pay special attention to any clauses regarding a sale of the property or assumption of the mortgage debt. For instance, in McDonald v. McDonald, the former wife sought to force a sale of the property due to the ex-husband’s failure to pay the mortgage, as required by the settlement agreement. The court denied the ex-wife’s request for a forced sale because the conditions triggering the right to force the sale were not properly drafted in the settlement agreement.

Tampa Divorce Law Firm

If you are contemplating filing for  divorce and are concerned about keeping your fair share of the assets call us today to speak with divorce attorney 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 individual 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. Call us today at 800 990 7763 to speak with a divorce attorney in Tampa.

In order to be convicted of drunk driving Florida, the State will need to prove beyond a reasonable doubt that the defendant: (1) drove or was in 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. If the prosecutor fails to prove all three of the above elements beyond a reasonable doubt the defendant will be found not guilty. Typically, in Florida DUI trials the prosecutor will rely on chemical blood alcohol tests, field sobriety tests, police videotapes, and testimony of the arresting officer to prove their case. A skilled DUI defense lawyer can challenge the admissibility of these and other types of evidence the prosecutor intends to introduce at trial. Challenges to admissibility of evidence can include lack of authenticity, hearsay, and insufficient chain of custody. If the DUI defense lawyer’s challenges are successful the evidence will be inadmissible at trial and cannot be used help convict the defendant at a DUI trial in Florida.

Chain of Custody:
Chain of custody refers to the movement and location of physical evidence from the time it is obtained until the time it is presented in court. When the prosecutor in a Florida DUI trial intends to introduce evidence that is secured at the traffic stop or a laboratory, the prosecutor must establish that the evidence introduced at trial is in fact the same piece of physical evidence that was secured at the stop or laboratory. A DUI defense attorney in Tampa will typically try to raise doubts that the evidence at trial is in fact the same piece of evidence that was previously obtained. For instance, if the DUI defense lawyer can show there is a gap in the chain of custody the evidence may be deemed inadmissible in a court of law.

If the defense can show there is a gap in the chain of custody that may raise concerns that there was a probability the evidence was tampered with or is not the same piece of evidence that was previously obtained it may be thrown out of court. For example, if the prosecutor cannot properly identify where the laboratory blood tests where throughout the entire time it was obtained up till trial it may be susceptible to a chain of custody challenge. In order for a DUI defense attorney to prevail on a chain of custody objection the defendant must show that there was a probability the evidence was tampered with, a possibility of tampering is not enough. See Florida v. Jones.

Improper Authentication:
Before evidence can be introduced at a DUI trial in Florida the attorney offering the evidence must establish the necessary foundation to indicate the evidence is what it purports to be. For instance, before introducing a photograph of a crime scene the attorney must provide evidence that the photograph accurately depicts the crime scene. Typically, this can be established by having the photographer testify in court that they were at the crime scene, had a camera, took the picture, and the picture is in fact that of the crime scene.

Most police vehicles in Hillsborough and Pinellas County are equipped with video recorders that are used to show the interaction between the police and defendant during the traffic stop. In order to admit the video at a DUI trial, the prosecutor will need to provide evidence that it accurately depicts the scene of the arrest and any applicable sobriety tests performed before it can be used as evidence. In most cases, the prosecutor will rely on the arresting officer to authenticate the video. It will then be up to the DUI defense attorney to cross examine the officer and raise doubts as to the video’s authentication. Depending on the facts and circumstances of the arrest, a DUI defense lawyer may be able to challenge the video’s authentication and have it thrown out of court.

Hearsay:
Hearsay is an out-of-court statement used to prove the truth of the matter asserted. Hearsay statements is a broad term, it is not limited to just verbal statements, it also includes documents and reports prepared out-of-court. Hearsay statements are not admissible in a DUI trial unless the prosecutor proves it falls into one of the statutory exceptions to the hearsay rule. The most common type of hearsay docuemnt in a DUI trial is the laboratory result of the blood alcohol tests. Blood alcohol tests are conducted outside of the courtroom; therefore, before it can be admissible evidence the prosecutor must prove it falls into one of the statutory exceptions to the hearsay rule.

Prosecutors will typically try to admit the blood alcohol test results under the business record exception to hearsay. See Florida Statute 90.803(6). In order to classify as a business records exception to hearsay the prosecutor must prove: the records was made at or near the time by, or from information transmitted by, a person with knowledge, the records is kept in the ordinary course of a regularly conducted business activity, and it was the regular practice of that business to make such a report. However, even if the prosecutor satisfies the business records exception test the DUI defense lawyer can still have the laboratory results ruled inadmissible if the circumstances show a lack of trustworthiness. See Love v. Garcia.

Contact a DUI Defense Lawyer About Your Specific Case:
If you have been accused of a DUI in Florida call us to schedule a free case review with a Tampa DUI attorney. At Florida Law Advisers, we carefully scrutinize every detail of a DUI 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.

Garnishment occurs when a creditor takes legal action to seize a portion of your wages, bank account, or other assets. In wage garnishment cases, the creditor will contact your employer and have your employer deduct a specified amount of money from your check each week to be forwarded to the creditor. Wage garnishments can be particularly devastating to debtors (borrowers) because the writ of garnishment is continuing. Therefore, a single writ of garnishment can continue to garnish wages until the full amount of the debt is paid. Fortunately, debtors in Florida do have many legal options to prevent or stop a wage garnishment. If you are threatened with a wage garnishment or your wages are already being garnished, contact a Florida wage garnishment attorney in the Tampa Bay area for help.

Most creditors will not be permitted to seek a wage garnishment until they have first obtained a judgment (court order) allowing them to collect the debt. However, unpaid income taxes, court ordered child support, and student loans are the exception to this rule, they will not be required to obtain a judgment prior to seeking garnishment. Creditors will have up to 20 years to collect the funds owed under a judgment. See Florida Statute 55.081. The statute of limitations to collect on a judgment is substantially longer than most other debts. The statute of limitations on most other debts is typically only 5 years. See Florida Statute 95.11.

Head of Household Exemption in Florida:
Under Florida Statute 222.11, if you qualify as a head of household you may be legally entitled to stop a wage garnishment. The head of a household is someone who pays at least 50% of the living expenses for a dependent. The term “dependent” in head of household cases is broad and can include many different types of situations, children are not the only type of dependent that will qualify under the law. For instance, dependent may include an aunt, uncle, parent, or even a former spouse receiving alimony. See Killian v. Lawson.

If the debtor can prove they qualify as a head of household and their net income is less than $750 per week, the wage garnishment will not be permitted. If the debtor’s net income exceeds $750, the creditor may be permitted to attach the garnishment to the amount that exceeds $750 per week. The debtor seeking head of household protection will have the burden of proving they qualify for the exemption.

It is important to note, the head of household exemption does not protect tax refunds from garnishment. Tax refunds are not considered wages, thus are not protected under the head of household statute.

Other Exemptions That Can Stop Garnishments:
Head of household is not the only exemption that can be used to stop a garnishment. For instance, exemptions to garnishments may also include: social security benefits, welfare, workers’ compensation, veterans’ benefits, pensions, life insurance benefits, and disability income benefits.

Alternatively, the debtor may be able to file a lawsuit to vacate the judgment. If the judgment is vacated, the previous court order granting the judgment to the creditor will be null and void. Whether or not vacating a judgment will be a successful option depends on the facts and circumstances of each case. If you think you may have legal grounds to vacate a judgment contact a wage garnishment lawyer for assistance.

Federal Protection From Garnishment:
Under Federal law 15 U.S.C. 1673, garnishments may not exceed 25% of a debtor’s disposable income. This protection applies to all debtors, not just those you qualify as head of household. This limit applies to the total amount of garnishments; thus, even if a debtor is facing multiple garnishments, the total garnishment may not exceed 25%. However, the garnishment may exceed 25% of the debtor’s disposable income if the disposable income exceeds 30 times the federal minimum wages per week. In these cases, the garnishment will be limited to the lesser of either 25% of the debtor’s disposable income or 30 times the federal minimum wages per week.

Procedure to Stop Wage Garnishments in Florida:
When a creditor seeks a garnishment, the clerk of court must send notice to the debtor regarding the garnishment. The notice must inform the debtor of the garnishment and the right to file an exemption. The debtor must file any exemptions to the garnishment within 20 days of receiving the notice. See Florida Statute 77.041. Additionally, the creditor must send the debtor notice of the garnishment, by first class mail within 5 business days of the writ of garnishment being issued.

If the debtor timely files a claim of exemption and request for a hearing, the creditor will 14 business days from the date they are served a copy of the exemption by mail to file a sworn written statement that answers the debtor’s claim of exemption. If the claim of exemption and request for hearing is hand delivered the creditor will only have 8 business to respond. If the creditor fails to timely respond to the debtor’s claim of exemption the court will automatically cancel the garnishment, a hearing will not be necessary.

Contact a Florida Wage Garnishment Attorney:
If you are threatened with a wage garnishment or your wages are already being garnished contact Florida Law Advisers to schedule a consultation with a Florida Wage Garnishment Attorney. Our initial consultation is free and we offer flexible payment options. At Florida Law Advisers, we take an aggressive approach to stopping wage garnishments. We understand how devastating wage garnishments can be to a family, and we vigorously fight to defend our client’s rights. Call us today to speak with a wage garnishment lawyer, we are available to answer your calls 24/7.

How to Determine the Amount of Child Support in Florida

Child support is defined as a court-ordered obligation of the financial support for the care, maintenance, training, and education of a child. See Florida child support law 39.01. Child support is the responsibility of every parent, regardless of whether the two parents are married, divorced, or never married. If the two parents cannot agree on how to determine the amount of child support a Florida family law judge will step in and decide the outcome. Florida courts will defer to the Florida Child Support Guidelines when deciding how to determine the amount of child support that will be required from each parent. For information on how to determine the amount of child support under Florida’s Child Support Guidelines contact a family law attorney in Tampa.

How to Determine the amount of Child Support Under Florida’s Child Support Guidelines

The Guidelines outline how much child support will be required by each parent based on their net income and the amount of children involved. The amount and duration of the child support payments will vary based on the individual circumcises of each case. This article is a general description of how to determine the amount of child support in Florida, for information about your specific case seek the advice of a family law firm in Tampa.

The amount of the payments must be in accordance with Florida child support law and the Florida Child Support Guidelines. The main factors determining  the amount of support to be paid are the combined monthly incomes of both parents and the number children they share together. The amount of time each parent spends with the child may also have an impact on the amount of child support required to be paid. Additional factors such as the medical, dental, psychological, and educational needs of the child will also be considered.

How to Determine the amount of Child Support With Shared Custody

In child support cases involving joint custody (shared parental responsibility), the court will typically apply a four step analysis when deciding how to determine the amount of child support. The first step is to calculate the total amount of child support required by reviewing the Guidelines. Next, the court will determine each parent’s share under the Guidelines. Each parent’s share of the child support is determined by dividing the net monthly of each parent by the combined net monthly of both parents. Next, the court will determine the amount of time each parent has custody of the child in the form of a percentage. For instance, if the parents have 50/50 custody their individual responsibility will each be 50%.

The next step in how to determine the amount of child support will be to review the Child Support Guidelines to determine each parent’s share of the support. The court will proportion the total child support award based on the percentage of time each parent has custody of the child. See Jaworski v. Jaworski. Calculating the amount of child support in Florida can be difficult, you should consult a Tampa family law attorney for assistance.

If the combined monthly net income exceeds the $10,000 listed in the Guidelines additional calculations will be needed. The amount in excess of $10,000 will be calculated by the applicable percentage based on the number of children and amount of income in excess $10,000. See Florida child support law 61.30. For more information on child support obligations in cases where the net monthly income exceeds $10,000 speak with a family law attorney in Tampa.

How to Deviate from the Florida Child Support Guidelines

In most situations, a Florida family law court will follow the Florida Child Support Guidelines when deciding how to determine the amount of child support. However, the court does have discretion to deviate from the guidelines when deciding how to determine the amount of child support. Regardless, any award of child support will need to be reasonable and not require a parent to pay more than he or she can afford. See Marsh v. Marsh. When deciding whether or not to deviate from the Guidelines, the court will consider all relevant factors, including but not limited to: the needs of the child, standard of living, each parent’s age, and the financial status of each parent. See Finley v. Scott. If the Court deviates from the amount prescribed in the Child Support Guidelines by more than 5% a written explanation by the court will be required under Florida family law.

Under Florida child support law, parents are not able to waive child support obligations. Parents of a minor child have a legal and moral duty to support and maintain their child. See Martland v. Arabia. However, parents are allowed to stipulate and agree to the amount of child support, so long as the amount is in the best interests of the child.  Agreements on child support are subject to approval by a Florida family law court and will only be approved if the agreement provides for the proper care and maintenance of the child. See Wendel v. Wendel. Therefore, if you are interested in reaching an agreement as to the amount of child support you should consult with a child support lawyer before entering into any such agreement.

Tampa Family Law Firm

If you are contemplating filing for divorce or need assistance with child support contact Florida Law Advisers, P.A. to speak with a family law attorney in Tampa. The family law attorneys at Florida Law Advisers, P.A. have years of experience helping clients in the Tampa Bay area resolve their child support disputes. Our professional legal team is passionate about these matters and will work diligently to fight for what is fair. 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 can help. Contact us today by phone, email, or online inquiry to schedule a free initial consultation with a Florida family law attorney at our firm.

Driving under the influence of drugs or alcohol is a serious offense in Florida that can carry significant penalties. One such penalty, may be the requirement of probation. Probation for DUI convictions in Florida often require more than just periodic visits to the assigned probation officer. The court will commonly impose other requirements as a condition of the probation. If you have been arrested for a DUI it is important to hire a DUI attorney to help fight the charges against you. An experienced DUI defense lawyer can use legal grounds to attack the evidence against you and seek a dismissal of the charges. In most DUI cases, it is best to hire a DUI defense lawyer as soon as possible, delays in obtaining legal counsel can hinder the defense options available to defendants.

Under Florida DUI law, the court is authorized to impose mandatory conditions as part of the probation sentence. The conditions can include, but are not limited to: community service, DUI school, ignition interlock device installation, and vehicle impoundment. For more information on these and the other types of possible conditions for probation contact a DUI defense lawyer in the Tampa Bay area.

Community Service:
If convicted of a DUI in Hillsborough or Pinellas County, Florida the court will likely make it a condition of probation that the defendant perform 50 hours of community service. In some cases, the court will allow the defendant to buyout up to half of the community services hours. It will cost the defendant $10 to buyout each hour of community service. Many defendants prefer to pay the $10 per hour and reduce the community service to 25 hours. However, the court must approve the buyout. Typically, if the defendant can show the community service will hinder their employment the court will permit the buyout.

DUI School:
There are two types of substance abuse courses, the Level 1 and Level 2 course. The type of course that will be required depends on the circumstances of the arrest and whether or not the driver has previous DUI convictions. The Level 1 course requires a minimum 12 hours of instruction, and the Level 2 course requires a minimum of 21 hours of class time. Both of these courses are intended to educate drivers on the effects of drunk driving, rather than serving as a form punishment.

The defendant will be required to pay for the DUI course. The Level 1 course in Pinellas County will cost $276.50. The Level 2 course in Pinellas county will cost $421.50. In Hillsborough County, the Level 1 course will cost $263, the Level 2 course will cost $408.

DUI Ignition Interlock Device:
An ignition interlock device (IID) requires the driver to verify their blood alcohol level is below .08 each time they want to start the car. The IID is basically a breathalyzer test hooked up to your car’s engine. The court can require the IID to be installed on all vehicles that are individually or jointly leased or owned by the defendant as a condition of DUI probation. Additionally, the court can require installation of an ignition interlock device on all vehicles not owned or leased that are routinely operated by the defendant.

The defendant will be required to pay for the installation and maintenance of the IID, which can add up to a lot of money. The costs for each IID usually include: a $12 interlock fee, $75 installation fee, $72.50 monthly monitoring fee, and either a $100 refundable deposit or a $5 monthly insurance charge for the device.

Vehicle Impoundment:
If convicted of a DUI in the Tampa Bay area, the court can also order impoundment of the defendant’s vehicle as a condition of the probation. The length of the impoundment will depend on the facts and circumstances of the DUI arrest. Typically, a first time DUI conviction will result in impoundment for 10 days. If the defendant has previous DUI convictions the time of impoundment will increase substantially. For instance, if the defendant has a prior DUI conviction, the vehicle may be impounded for up to 30 days. However, if the family of the defendant has no other means of transportation the impoundment may be lifted by the court.

Contact a DUI Defense Law Firm in the Tampa Bay Area:
If you have been arrested for drunk driving in the Tampa Bay area contact Florida Law Advisers to speak with a DUI defense attorney. The DUI attorneys at our firm carefully scrutinize every detail of a case to identify any potential errors by police, violations of constitutional rights, mishandling of evidence, or sloppy police work we can use to help our clients. We know how much our clients have at stake in DUI cases and we work diligently to aggressively defend our clients. We are available 24/7 and our initial consultation is free. Call us today at 800 990 7763 to speak with a DUI defense attorney in Tampa.