From time to time, I get emails from people seeking answers to Florida legal questions. While responding to one, I suddenly thought that I should put together a couple of blog posts to highlight a few of the more common questions. Although the situation might be slightly different from individual to individual, I felt these Florida law questions pertained to most people in one way or another.

Florida Chapter 7 Bankruptcy Law Question

I’m a single person and make more than $43,000 yearly gross income. I have been told that I cannot file for Chapter 7 bankruptcy because I make too much money. Is this true?

This depends on your individual expenses. You are slightly over the Florida income level of $40,766 per year for one person to file for Chapter 7 bankruptcy. The good news is that there are certain monthly expenses which may be subtracted from your total income, and these deductions may bring you under the maximum state level in order to qualify for bankruptcy. It’s very important that you have an experienced bankruptcy attorney look over your income and expenses to accurately determine if and how you may file for bankruptcy.

Florida Estate Planning Law Question

In my will, I leave everything to my sister, but my brother is the beneficiary on my two bank CDs. Who would be entitled to the CD money?

Kevin, as you have named your brother as a beneficiary, it must be a “payable on death account.” This is a good vehicle to use to transfer assets and avoid probate. The beneficiary cannot touch the account until the death of the principal. This makes it very different from a joint account. Make sure the CD is not, in fact, held jointly as this would defeat the purpose of having your brother receive the entire balance upon your death. All your brother has to do is present a certificate of death to the bank, and he gets to withdraw the funds regardless of what your will says. Make sure you gave the bank his full legal name and social security number, so the bank will not hesitate in identifying him as the person you designated as the beneficiary.

Children conceived after the death of a genetic parent are becoming very common. Soldiers being sent to combat arenas oftentimes bank sperm or eggs in case they don't come back or are injured to the point of being unable to conceive. Chemotherapy patients can also do the same thing. There are a variety of reasons why a person would want to ensure that they are able to reproduce at a later date. In vitro fertilization technology has reached a point where the sperm and egg of persons who are long dead can be combined to produce children. In fact, it is no longer necessary for either parent to be alive for reproduction to occur. However, what happens if they die and the surviving spouse (or anybody else for that matter) wants to have children with that person? Are those children entitled to Social Security benefits from their deceased parents? This is a question that was being answered in conflicting ways by the lower federal courts dealing with the situation.

The question has now been answered in a case involving a Florida chemotherapy patient who banked his sperm. After his death, his wife used in vitro fertilization which was successful and led to the birth of twins. The mother applied for Social Security survivor benefits and was rejected. Unfortunately, because of the wording of the federal law regarding Social Security benefits for surviving children, the United States Supreme Court has indicated that because the child could not be demonstrated to be "dependent upon the deceased individual at the time of his or her death", the child was not eligible for Social Security survivor benefits. Because Florida law limits intestate succession to children who are born or at least conceived prior to the death of a parent, this opinion upheld the Social Security Administration's rejection of benefits. However, this opinion is limited to the facts and law as presented. It is entirely possible that other states laws could result in a totally different result.

What does this mean to Florida citizens? Under current Florida law, children conceived after a genetic parent has died may not be eligible to inherit from the deceased parent and are currently ineligible for Social Security benefits. Children conceived prior to the death of a genetic parent will have a different result. It is important that persons contemplating the banking of sperm or eggs for any reason have a solid understanding of the law of the state where they are living. That will likely be the law that will be used to apply for a variety of issues that can arise when the parent dies. The law is very unsettled in this arena, as fast as technology changes, the law often times takes years to catch up.

LaBovick Law Group has a Florida family law attorneys department devoted to such issues. The Director of this department, Attorney Joseph R. Fields, Jr., Esq. has advised many parents on these issues. Contact Mr. Fields today for a free consultation regarding your Florida family law matter.

Palm Beach County State Attorney Peter Antonacci has filed a voluminous legal motion asking Judge Barry Cohen to disqualify himself from all criminal cases. From my past experience, it is hard to believe attorney Antonacci’s claim has any merit. I have known Judge Cohen for my entire legal career of 25 years. I first met Mr. Cohen when I was a prosecutor working under David Bludworth. At that time Judge Cohen was a criminal defense attorney. Mr. Cohen presented as a competent, smart and ethical lawyer whose word was gold. Those of us in the legal community were excited and proud when Judge Cohen assumed the bench.

In his time as a Palm Beach County Court Judge, Mr. Cohen has proven to be the benchmark that judges should strive to achieve. He is hard-working, diligent, fair, polite and his knowledge of the law is extensive. Expressing displeasure with the current state of the criminal justice system is not an indication of his ability to be fair. If it were there would be no one left to try cases. I've tried cases as a prosecutor and a defense attorney in front of Judge Cohen, he is as steady a judge as any litigant could hope for. He delivers his sentences with well thought-out reasoning and compassion.

Continue reading "Palm Beach County State Attorney Asks Judge To Disqualify Himself" »

The process of separating or divorcing from a spouse is very stressful and emotional for most people. Many times, critical mistakes are made that can significantly affect a person's financial and emotional future. Here are a few suggestions on how to avoid causing yourself more harm.

Continue reading "Critical Mistakes to Avoid When Separating or Divorcing" »

A recent article in Reuters confirmed what many of us have been suspecting for the past several years. As women's incomes increase, so too does their obligation to support children and/or spouses under Florida's divorce code.

Alimony is now a two-way street and more women are paying men than ever before. The recent changes in Florida's child support statutes are now resulting in higher income mothers paying child support to fathers.

With the equitable distribution statute mandating a 50-50 split of assets/liabilities absent extenuating circumstances, many women are now getting the historic "bad news" that men have been receiving for years; not only are husbands receiving a 50% share of the assets/retirement accounts of their wives, they are also receiving child support and alimony. With the recent changes in Florida's child support statutes, it is not unusual for a father who has less than 50-50 time-sharing to receive child support.

For a free consultation on these new trends and changes to Florida's family law statutes, contact a florida family law attorney at the LaBovick Law Group to discuss your matter.

Florida Supreme Court Puzzled Over Power To Sanction Party After Voluntary Dismissal

Florida Supreme Court Reviews Monumental Foreclosure Fraud Case

The Florida Supreme Court held oral argument today on the foreclosure case of Pino v. Bank of New York/Mellon, a lawsuit that is getting national attention and could possibly rollback a plethora of foreclosures and make banks vulnerable to severe financial penalties in the state of Florida.

The Florida foreclosure case was voluntarily dismissed by the lender after the borrower established fraudulent documents had been used to establish standing to sue. The trial court and District Court of Appeal held that once a voluntary dismissal is filed, the court has no power to do anything further in the dismissed case, even in the case of fraudulent conduct. The Florida Supreme Court accepted jurisdiction to address this issue.

During oral arguments from the florida foreclosure attorney of each side in the case, the justices appeared to be in conflict over the necessity of even deciding this issue. After realizing the Supreme Court was going to allow the appeal to proceed, the parties reached a confidential settlement and requested the appeal be dismissed.

The Supreme Court declined to accept the dismissal, indicating the question was too important to pass up. However, after listening to the oral argument, there appears to be a great probability that the appeal will be dismissed as many of the judges did not see the necessity of resolving this issue and several indicated that the solution should be in changing the Rules of Civil Procedure to address the "can't fix fraud" issue.

My bet is that this appeal is going to be dropped, but we will eventually see changes in the Civil Rules of Procedure that will allow trial courts to sanction fraudulent litigation behavior even after a voluntary dismissal.

Florida has a statute dealing with parental relocation and what steps must be taken in order to seek approval when wanting to relocate with a child. Florida Statute 61.13001 defines relocation as at least 50 miles. But is it 50 road miles or 50 miles as the crow flies? The Florida 5th District Court of Appeal appears to have clarified that issue in a relocation dispute in which the parties’ settlement agreement uses the same 50 mile distance. But the kicker is that agreement does not indicate which method of measurement is to be used.

Tucker v. Liebknecht has now solved the problem! It is 50 miles as the crow flies. Given the analysis in this opinion, parents wishing to relocate within 50 miles (as the crow flies) from their residence, have an argument that they do not need to seek approval. In South Florida, such a distance can encompass multiple counties. Relocating such a distance definitely affects time-sharing abilities and affects quality time when traveling such distances.
For persons who have questions regarding their rights under Florida's relocation statute, you can schedule a free consultation with a florida family law attorney at LaBovick Law Group.

As John Goodman's lawyers ready themselves for another round of attacks on the jury verdict, I am left wondering whether or not rich people actually get a better shake at the courthouse than the average citizen. Mr. Goodman, with his vast wealth, has been able to assemble a top-notch criminal defense team with Roy Black and Mark Shapiro. Yet, with all of their expertise, open expense account and expert witnesses, the jury still convicted Mr. Goodman of all charges. While the verdict is being attacked for a variety of reasons, it seems clear to me that even if Mr. Goodman gets another trial he will be still convicted. He's facing 30 years in prison, and it seems likely that the judge will parcel out that sentence.

On the other hand, a young girl, also charged with DUI manslaughter, was recently sentenced to weekends in jail for the next five years followed by 15 years probation. This sentence seems uncharacteristically soft for the local state attorney. That defendant did not have an all-star criminal defense team and undoubtedly will end up better off than Mr. Goodman.

Many other rich people who have been charged with crimes spent a lot of money defending themselves only to end up in prison. O.J. Simpson and Phil Spector come to mind. Money cannot change the facts. Money cannot influence the dynamic of a jury once they retire to the jury room to deliberate the case. So while I am left to wonder whether or not rich people get a better shake at the courthouse, I do feel confident in saying that the system works for everyone.

Attorneys: Do you have clients who signed Power of Attorney (POA) documents after October 1, 2011? Did you make sure to include two witnesses?

Clients: Did you sign a POA within the last six months? Make sure to call your attorney right away to ensure you signed the new one, or yours may be invalid!

To meet new POA requirements, all of these documents must also be signed by 2 WITNESSES (the notary is considered a witness). Below are the two excerpts from the 2011 Statutes with regard to how the change affects POAs executed prior to October 1, 2011 and those executed after October 1, 2011.

709.2105 Qualifications of agent; execution of power of attorney.
(1) The agent must be a natural person who is 18 years of age or older or a financial institution that has trust powers, has a place of business in this state, and is authorized to conduct trust business in this state.
(2) A power of attorney must be signed by the principal and by two subscribing witnesses and be acknowledged by the principal before a notary public or as otherwise provided in s. 695.03.
History.—s. 7, ch. 2011-210.

709.2106 Validity of power of attorney.
(1) A power of attorney executed on or after October 1, 2011, is valid if its execution complies with s. 709.2105.
(2) A power of attorney executed before October 1, 2011, is valid if its execution complied with the law of this state at the time of execution

The United States Department of Justice (US DOJ) announced an extension of the deadline for hotels and other public accommodations to modify their existing pool access for American Disabilities Act (ADA) compliance. The recent revisions to the ADA required every hotel and public accommodation with a pool to make significant and costly access modifications to their pool areas.

One of the required access modifications is the installation of a wheelchair lift on all pre-existing pools. However, there are not enough companies that make these lifts for the demand to be met. As a result of these concerns, the DOJ is extending the deadline and has announced a free webinar that will provide information and technical assistance regarding these requirements. The webinar will be held on May 9, 2012 from 2:30 to 3:45 PM EDT.

LaBovick Law Group has a division devoted to representing businesses and property owners that maintain public accommodations that fall within the requirements of the ADA. Division Director Attorney Joseph R. Fields Jr. is the only Florida attorney who has been called upon to testify before Congress regarding abuse of the ADA by litigation groups and their attorneys. Persons or businesses with questions regarding their obligations under the ADA may set up a free telephone conference to address their needs.