QUESTIONS AND ANSWERS
DIVORCE
1. How long does one have to live in Florida to be eligible to file for divorce?
Florida law requires that at least one of the parties must have resided in the State for a period of six (6) months.
2. How long does it take to get a regular divorce?
It depends on the type of divorce. If it is an “uncontested divorce”, once the pleadings are prepared, signed and presented to the Court, you could probably get a hearing before the Court in two weeks or less. If it is a “contested divorce”, it could last several months and at times even over a year depending upon the issues involved.
3. What is the difference between uncontested and contested divorce?
The names are just what they mean. An “uncontested” divorce means that the parties are able to agree on all matters pertinent to the termination of their marriage. They are eliminating all disputes regarding custody, child and spousal support, if any, the property each party will receive, what debts each will undertake, what happens to the house, which party gets tax exemptions for the children, etc. The “contested” divorce means that you and your spouse are not able to agree o all of the issues and therefore they must be presented to the court for resolution.
4. Do all “contested” divorces end up going to trial?
No. Prior to contacting the Court for a trial date, the Court makes it mandatory that both parties attempt to resolve their differences through mediation. Generally a majority of all cases usually are successfully resolved in mediation. If the mediation fails, the mediator will inform the Court that the mediation ended in an impasse.
5. What is Mediation and what does it resolve?
The mediation process is a court-imposed requirement for the persons involved in a lawsuit to attempt to resolve the issues before trial. The mediator is not a judge, nor will the mediation conference be similar to a trial. It is the role of the mediator to determine the issues that are decided by the court, and attempt to settle these issues through discussions and negotiations with the persons involved. The mediator does not provide legal advice because this is the role of an attorney.
6. Does the law provide for support of a spouse and children if one of the spouses temporary separates from family with or without intent to seek a divorce?
Yes. Although some states refer to this as legal separation or separation agreements, Florida has provided a legal procedure referred to as Support Without Dissolution of Marriage.
CHRISTIAN DIVORCE
1. How does a Christian divorce differ from a regular divorce?
It is really not different. A Christian divorce is actually similar to an “uncontested” divorce. In both scenarios, the parties get together and amicably make an agreement regarding all issues pertaining to their eventual permanent separation. However, in the Christian divorce, the parties, based on their professed faith and religious commitment are held to a higher standard than the “non-Christians”. Therefore, more is expected by the way of negotiations. Their agreement contains additional things not mandatory by man’s law.
2. Why was there a need to create a Christian divorce?
The concepts of a Christian divorce are not really new. There are other programs, such as the “Collaborative” divorce which are similar and are designed to resolve marriages in an amicable civil way. However, in my previous years of practicing law in Ohio, and my 12 years practicing law in Florida, I have participated and represented numerous spouses, Christian and non- Christians, in divorces. I have been surprised at the number of husbands and wives in my church and other churches that were in Court getting divorces. It was astonishing that the same people who were “lifting holy hands” on Sunday, participating in Sunday school, praying before the congregation, were then waging “holy” hell in public at the Courthouse before the judge. See the pages on Christian Divorce. Due to the emotional stress of a divorce, two really good people ending up hating each other and fighting like cats and dogs. Not only did that diminish their Christians charity, but it had a far-reaching long term effect on their children and family.
3. If the negotiation or settlement talks fail, will you still be able to represent one of us if the matter turns out to be contested?
No. Generally to represent either of you after consulting with two of you would be a conflict of interest. This would be due to the fact that both of you would have shared sensitive information with me and relied upon legal advice and representations given to you. This information could be damaging to the other party and their subsequent litigation. In some cases, it could be permitted where as an example, the other party consented. However, the preferred position is to refer or suggest that you both seek new attorneys.
4. Why is there the requirement that both parties be Christian and affiliated with a church?
When both parties profess themselves openly as being Christian, it tends to allow the negotiations and settlement to resolve more smoothly. Since both parties intend on doing the right thing, they are more susceptible to listen to a third party to resolve disputed matters in a Godly way. It tends to eliminate animosity and the combative nature of revenge. It does not mean that they will not still disagree or totally be happy with the outcome, but they are still willing to compromise for the best interest of their children, their family and their religion. Although, the church affiliation is suggested, it need not be mandatory. If both parties have strong spiritual backgrounds, then the church affiliation may not be needed. However, since the Christian divorce also requires a spiritual orientation and consultation. It is desirous that the parties have the ability to discuss with their Pastors/Minister/Teachers what we teach for further confirmation and not rely on what we teach.
5. What makes the Christian divorce cheaper than the regular divorce?
There are several things that occur in the Christian divorce that makes it cheaper. First, there is only one attorney and therefore the parties save on legal fees. The parties each pay one-half of the fees. With two attorneys in a contested case, both fees could range anywhere from $5,000 to well over $15,000. Secondly, it eliminates the need for custody and vocational evaluations, mediation expenses, expert testimony, depositions and other fees associated with preparation for trial before the Judge.
6. What does the spiritual orientation/consultation consist of?
The spiritual orientation/consultation is to benefit the parties as they prepare to negotiate and settle their divorce. To ensure that all parties are on the same page, and are coming into the negotiation wit the right time frame of mind and spirit of love, compassion and compromise, the consultation is designed to over basic and fundamental spiritual concepts Christians presumptively adhere to. The sessions are divided into 4 parts and involve one for the men, one for the women, one joint session and the final session in which the actual settlement agreement is worked out.
7. Does the Court look disparaging upon the spouses who are not able to do the Christian divorce?
No. The Court does not favor or promote any particular method utilized for the resolution of a divorce. However, the Court does prefer “uncontested” or “consented” divorces because they eliminate the adversarial aspect and need for the Court to decide important aspects of the family relations, distribution of assets and debts.
PROBATE, WILLS, GUARDIANSHIP
1. What is Probate?
Probate is a legal procedure utilized by the Court to transfer property and pay creditors of a person after he/she dies. Originally probate was a court procedure by which a will was proved to be valid or invalid. However, in current usage this term has been expanded to generally include all matters and proceedings pertaining to administration of estates, guardianships, etc.
2. What does it mean when a person dies Testate or Intestate?
When a person dies “testate”, it means that he died leaving a Will. Conversely, “intestate” means that the individual died not having a Will.
3. If a person dies without a Will, does the family lose his assets or do they go the state?
When the individual dies without the benefit of a Will, all states have what is called Laws of Intestacy. In Florida, they are contained in Florida statutes, Chapter 733. These statutes determine not only who receives the property of the deceased, but also the order and priority of the distribution of the property.
4. Is a Will and Living Will the same thing?
No. These two legal documents are totally different. The name “Living Will” is somewhat deceptive as to its purpose. Although the term “Living Will” may indicate that it is a Will, in reality, it is more similar to a Power of Attorney than a Will. While regular Will only becomes effective upon the death of a person, a Living Will becomes effective while the person is still alive, although legally dead. Similar to a regular Will, a Living Will states the intention of the individual when they become legally dead: The purpose of a living will is to allow you to make decisions about life support and direct others to implement your desires in that regard. This kind of Will is basically an authorization for an appointed person to request a hospital to disconnect the individual from life support apparatus and machines when they are medically diagnosed as being in persistent and permanent vegetative state or brain dead and will never become functional.
The now infamous Terry Schiavo case comes to mind. In that case, the parents of the brain dead woman engaged in a long battle with her husband Michael Schiavo on whether to “pull the plug”. That legal battle lasted about seven years and cost over a million dollars in legal fees. For the “Seinfeld” enthusiast, you may remember that Kramer had a living Will and chose Elaine to be the representative since he thought she was cold-blooded and that neither Jerry nor George would have the nerve to pull the plug.
5. What is a Durable Power of Attorney?
A Durable Power of Attorney is a general authorization to do almost anything on behalf of another individual, such as handling their banking affairs, paying bills and other things for them. Durable Power of Attorneys are usually given by elderly or handicapped people to allow their children, relatives or close friends to handle their personal and business affairs for them.
In addition, there are also “Specific” or “Special” Pwer of Attorneys which also authorizes another person to act on your behalf. However, these are usually limited and created soley for the purpose of authorizing or empowering the person, called the Attorney-in- fact, to do one certain specified thing, such as sell your car or home, or to sign a document on your behalf.
6. Are there certain situations when the Durable Power of Attorney cannot be created?
Similar to a Will, the individual or grantor of the Durable Power of Attorney must be competent and of sound mind and memory.
7. What is a Health Care Surrogacy document?
In certain medical situations, Durable Power of Attorney are not acceptable. The designation Health Care Surrogate document authorizes a person to make certain types of medical decisions for a person who may be in a coma or under anesthesia as a result of a surgery or medical procedure. In this situation, the person is unable to consent certain procedures or make decisions regarding after care matters such as placement in nursing homes or insurance matters. These decisions will fall upon the Surrogate.
PERSONAL INJURY
1. What is the Florida Motor Vehicle No Fault Law?
The Florida Motor Vehicle No Fault Law does two things:
a. It establishes a limited exemption for liability for injury causes to others in an automobile accident; and
b. It establishes personal injury protection (PIP) benefits to pay for certain losses resulting from and accident.
2. What are the benefits that you receive from the No Fault law?
The minimum limit for No Fault Personal Injury Protection (PIP) benefits is $10,000.00 per person for loss sustained as a result of bodily injury, sickness, or disease ($5,000.00 death) arising out of the ownership, maintenance or use of a motor vehicle.
3. Does the PIP pay any medical expenses if I am involved in an accident?
Yes. PIP pays 80% of medical benefits for all reasonable expenses for medically necessary medical, surgical, X-ray, dental and rehabilitative services, including prosthetic devices, wheelchairs, crutches, slings, neck braces and splints. It also pays for medically necessary ambulances, housing and nursing services as well as other necessary remedial treatment and services.
4. If I am injured and unable to work, does the PIP provide me any type of wage benefits?
Yes. These are called disability benefits. Under the Motor Vehicle No Fault law, PIP pays 60% of disability benefits for any loss of gross income and loss of earning capacity from your inability to work because of the injuries sustained in the accident. Disability benefits also cover all expenses reasonably incurred for household services that, if not for the injury, the injured person would have performed. Benefits must be paid not less than every two weeks.
5. If I am involved in an accident, can I choose the repair shop to fix my car?
Yes. You always have the right to choose your own repair shop. In fact, it is advisable for you to seek at least two estimates. Sometimes when the adjusters from you insurance or the other insurance company come to inspect your vehicle, they will only look at the body or cosmetics or damage. When you take your car in for the estimate, also have them check the mechanical functions of your car to make sure those are not damaged also. However, you must remember, the cost of the repairs are not always dependant or based upon the estimate given. However, it can be used as a guide.
6. Can I make a decision as to whether or not my car should be repaired or replaced?
This all depends on several factors. Basically, the insurance company is the one that has the right to make the determination as to whether to pay to fix your car or to have it replaced. Usually that decision is based on what is less expensive for them. Therefore, many times, the insurance company will rend your car as being a “total loss” and in effect, but your car back from you for the market value. However, you will have the option to purchase the car back from them and they will deduct the salvage value from the settlement and you can keep your car. There may also be situations where they decide to fix the car rather than replace it. This may cause a problem if you feel that your car is not stable and the mechanical parts are badly damaged. This may be a matter that you may have to take to court and have a judge decide.
7. What is being up-side-down on a car loan mean?
Being up-side-down means that you owe more money on the loan for the car then the fair market value of the car. For example, if your vehicle is only worth $10,000 and you owe $12,000, you are up-side-down by $2,000. This becomes a problem if the insurance company renders your car a total loss. If so, they are only going to pay you the fair market value of the car (usually the book value), which is $10,000. This means that you will still owe the car dealership or finance company $2,000. This is why in many instances; people buy what is called “Gap Insurance”. This type of insurance will pay the remaining balance on any outstanding lien obligations.
8. What is UM insurance?
UM insurance is also called “Uninsured or Underinsured Motor Insurance”. This is insurance that all people should have for their own protection. This is coverage you purchase from your own insurance company which protects you in case the individual who hits you has no insurance or does not have enough insurance to cover all of your medical or other expenses. For example, if a person hits you and has no insurance, your insurance company, through UM coverage will pay up to the amount of the limits that you have purchased. Likewise, if you are it by an individual who has limited amount of insurance, say $10,000, and you injuries, damages and expenses over that , you will be able to get from your insurance company under the UM policy. Due to the fact that there are many drivers on the road today with no insurance, it is suggested that everyone always have some type of UM insurance coverage.
BANKRUPTCY
1. When should I file for bankruptcy?
While there is no hard and fast rule for deciding when to file for bankruptcy, it is an option to examine if you:
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Cannot budget yourself out of debts within five years.
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Have received foreclosure notices
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Can only pay the minimum amount of your bills
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Have had a severe financial setback, such as losing your job
2. What is Chapter 7 bankruptcy?
Chapter 7 bankruptcy is the most common form of bankruptcy in the United States. Corporations, partnerships, married couples, and individuals can file a Chapter 7 bankruptcy petition. A Chapter 7 bankruptcy is in actuality a “liquidation” of your assets and debts. After a petition is files, a court appointed trustee helps gather and sell non exempt property.
It is extremely important to plan Chapter 7 bankruptcy proceeding carefully. Before filing, you must take the means test- a test that examines your income and expenses- to determine whether or not you are eligible to file your petition. You attend a 341 hearing where a trustee questions you about your assets and debts under oath.
Those not eligible for a Chapter 7 bankruptcy often file petition for Chapter 13 bankruptcy.
3. What is Chapter 13 bankruptcy?
A Chapter 13 bankruptcy is a “consolidation” of your debts, which allows individuals and sole proprietors to pay off debts over the course of three to five years. Eligibility for Chapter 13 bankruptcy depends on whether or not you have a stable income with disposable funds.
After a Chapter 13 bankruptcy petition has been files, the courts examine your standard of living and expenses to determine how much money you should have available to set aside for paying debts. A trustee reviews a payment plan that addresses all priority claims, including taxes, and secondary claims, like credit card bills. If approved, you are allowed to keep your assets and pay the bankruptcy trustee a set amount of money each month. The trustee then distributes the funds to the creditors.
Filing the Chapter 13 bankruptcy is useful if you own items you do not to relinquish. Chapter 13 bankruptcy can assist you in saving your house if you are behind in your mortgage payments. It can also help save your car id you are past due on automobile payments. To protect your house or automobile, however, the bankruptcy petition must be files before your house is auctioned in a foreclosure sale or your automobile is repossessed by the lien holder.
4. Does filing for bankruptcy get rid of all my debts?
No. Federal law says you are still responsible for the following:
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Alimony
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Child Support
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Student Loans
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Fraudulent debts
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Certain back taxes
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Fines or penalties of government agencies
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Cash advance and certain credit card purchases made during recent months
However, the following debts are ones that can be discharged during your bankruptcy:
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Credit cards
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Consumer debt
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Medical expenses and costs
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Unpaid rent or utilities
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Repossessions
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Certain unsecured loans
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Past due collections
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Pay day loans
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Civil judgments
5. Can a bankruptcy stop my wages from being garnished or my bank accounts attached?
As soon as you file for bankruptcy, any wage garnishments or bank attachments should stop. If your wages continue to be garnished even after you have files for bankruptcy, it is important to contact an attorney as soon as possible, as this is a direct violation of the law.
6. How long dies a bankruptcy stay on my credit report?
A bankruptcy will appear on your credit report for anywhere from seven to ten years after your case has been discharged. However, even though a bankruptcy appears on your credit report it does not mean that you will not be able to obtain credit. There are many ways to build credit even after you have files for bankruptcy. Your attorney will discuss this with you