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Business Law

Once incorporators establish a new business, the named directors must ensure that it maintains its legal status. Depending on the business form, certain legal formalities must be followed for this purpose. Once incorporated, an ongoing business’s obligations include:

– Obtaining federal and state tax identification numbers for the business and filing needed tax returns annually;

– Issuing shares of stock as required by the articles of incorporation and federal securities law;

– Establishing and maintaining corporate books and records, including accounting ledgers, shareholder records, and all corporate minutes;

– Calling and conducting an initial meeting of the board of directors or the shareholders, as required in the articles of incorporation;

– Conforming all decisions and procedures as set forth by the articles of incorporation;

– Recording all actions and decisions of the board of directors in the corporate minutes; and

– Maintaining annual registration with the state government as required by law.

Additionally, some businesses must comply with licensing requirements or regulatory standards to preserve their status. These businesses may need to maintain further records or use special procedures or equipment based on rules for their specific industries.

Most concerning, a failure to abide by corporate obligations and formalities can result in personal liability for directors, officers, or shareholders for business obligations and debts. Because of these harsh consequences the specific legal requirements vary depending on the business 

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Business law and corporate law are broad legal fields which encompass the formation of business entities, their management and legal issues surrounding transactions between each other . Some of the more important areas of corporate law include sales, secured transactions, negotiable instruments, and debtor and creditor law. Business law overlaps, but also includes the formation and management of business entities. An attorney with experience in business and commercial law can help you with all of your questions.

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Sometimes, courts allow injured or aggrieved plaintiffs to receive compensation from corporate officers, directors, or shareholders for damages rather than limiting their recovery to corporate resources. This procedure avoids the usual corporate immunity for organizational wrongdoing, and may be imposed in a variety of situations. The specific criteria for piercing the corporate veil vary somewhat from state to state and may include the following:

– If a business is indistinguishable from its owners in practical terms, courts will not allow owners to benefit from limited liability.

– Example: Sam’s Trucking Company and Sam share the same banking account. Sam signs business contracts in his own name. Sam may be liable for breaching a business contract because he and his company are legally indistinct.

– If a corporation is formed for fraudulent purposes, courts will allow recourse to the owner’s assets

– If a business fails to follow corporate formalities in areas such as record-keeping and decision-making procedures, a court may impose liability on the individuals controlling the business.

The potential for personal liability encourages businesses to observe legal requirements and to avoid damage to third parties.

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Personal liability can devastate the accumulated wealth of a lifetime of work. This form of liability opens the individual to claims for a wide range of business obligations. Most people realize that personal liability may extend to business losses, but other obligations may also reach individuals, including:

– Damage awards in lawsuits;

– Tax deficiencies and penalties; and

– Back wages and benefit payments.

Example: Sam operates a trucking company as a sole proprietor. One of his drivers causes an accident that kills or severely injures several people. If the company’s insurance and assets are inadequate to cover the damages awarded in the wrongful death suit, the plaintiffs may try to enforce the judgment against Sam’s personal assets.

The limited liability offered by incorporation shelters business owners from personal liability. Certain types of insurance can also help cover business owners, directors, and officers. However, if an owner or director performs certain personal acts, behaves illegally, or fails to uphold statutory requirements for corporate status, he or she may face personal liability despite the corporate shelter.

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The Internal Revenue Code allows for two different levels of corporate tax treatment. Subchapter C corporations include most large, publicly-held businesses. These corporations face double taxation on their profits if they pay dividends: C corporations file their own tax returns and pay taxes on profits before paying dividends to shareholders, which are subsequently taxed on the shareholders’ individual returns.

Subchapter S corporations must meet certain requirements that allow the business to insulate shareholders from corporate debts but avoid the double taxation imposed by subchapter C. To receive subchapter S treatment, corporations:

– Must be domestic;

– Must not be affiliated with a larger corporate group;

– Must have no more than one hundred shareholders;

– Must have only one class of stock;

– Must not have any corporate or partnership shareholders; and

– Must not have any nonresident alien shareholders.

Additionally, after a business is incorporated, all shareholders must agree to subchapter S treatment prior to electing that option with the Internal Revenue Service. The limitations imposed by the subchapter may affect the transferability and marketability of corporate shares. It would be good to seek advice from an accountant who offers business advice as well as from a qualified attorney as to which entity is best for your situation.

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A business owner must be aware of the primary business organization forms, their characteristics, and the law that governs their management and formation.

A Sole Proprietorship is created when an owner simply begins business under his own name. It is simple and cheap to form and is usually chosen by one-person businesses. The owner owns all of the assets. The owner also has unlimited personal responsibility for business liabilities. The owner is taxed on all income from the business at applicable individual tax rates. The owner may need to register a ficticious name with the Florida Department of State

A General Partnership is formed when two or more persons carry on as co-owners of a business. Each partner participates in the management, owns the assets, and shares the profits and losses. Each partner is personally liable for business related obligations and are taxed on their individual tax returns.

A Limited Partnership differs from a general partnership in that there is at least one limited partner who contributes capital, but does not have substantial management control. The limited partner is allowed limitation of liability to the extent of their capital contribution to the partnership.

A Limited Liability Company combines elements of partnerships and corporations. LLCs must file articles with the state like a corporation. As in a limited partnership, the owners only risk losing money that has been invested into the LLC and only LLC assets are used to pay its debts. However, an LLC is not a separate taxable entity, and LLC owners report profits and losses in their individual tax returns.

A Corporation is a separate legal and taxable entity. One must comply with statutory formalities to set up a corporation. Barring certain exceptions, the owners of the corporation are protected from the corporation’s liabilities and they file their own tax returns.

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Divorce

During a divorce, multiple issues will need to be resolved. These include issues such as custody and visitation of minor children, division of marital property and marital debts, alimony/spousal support, and child support. At the end of the proceeding, the court will enter its “Final Judgment of Dissolution of Marriage.” This is a court order that will set forth the court’s resolution of all issues applicable to the dissolution of the couple’s marriage. An uncontested divorce is one where the spouses are able to reach an agreement on all of these issues, usually prior to filing the divorce proceedings. If the parties are able to reach agreement on these issues, their agreement should be reduced to writing in a Marital Property Settlement Agreement. (MPSA) The MPSA will then be presented to the family law court and will form the basis for the Final Judgment of Dissolution of Marriage. Because the Marital Property Settlement Agreement will govern so many important issues and will be binding on the parties, it should be prepared by an experienced family law attorney.

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The award of alimony, is determined in the court’s discretion taking into account certain specifically enumerated factors set forth in Chapter 61, Florida Statutes. Some of the listed factors include the living standard during the marriage, the duration of the marriage, the age and health condition of the parties, the financial resources available to each party, the contributions of each party to the marriage, the time necessary for either party to acquire sufficient education or training to enable the party find appropriate employment and all sources of income available to each party. Alimony may be either temporary (often called “rehabilitative alimony”) or permanent. Rehabilitative alimony is awarded for a temporary period of time to facilitate a spouse receiving necessary education or training in order to get back into the workforce. Permanent alimony continues throughout the working life of the party or until otherwise ordered by the court. Permanent alimony is usually awarded in circumstances where there has been a long-term marriage, often involving one spouse being out of the workforce for a significant period of time, such as a housewife.

Alimony is one area where a party’s adultery is relevant. In determining the alimony to be awarded, a family court may take into account the adultery of either party and the circumstances thereof. This is true even though Florida is a no-fault divorce state and adultery would not be an issue with regard to the court determining whether to grant a petition for a dissolution of marriage.

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In Florida, as in most states, if you are considering a divorce, you should first think about your safety and well-being as well as that of any minor children. If there is a history or threat of domestic violence or spousal abuse, you should take steps to protect yourself and your children. If necessary, you may wish to seek a domestic violence injunction from a court. This injunction is a court order directing your spouse to stay away from you and it gives law enforcement the right to take action if the injunction is violated. Next, you should focus on being prepared before initiating divorce proceedings. This includes gathering relevant documents and information to support your claim and familiarizing yourself with all marital assets and liabilities. This should be done before access to these records is difficult or they may even “disappear.” Preparation also involves having a support network in place to help you during the proceeding. Finally, preparation also involves having available the funds necessary to pay a divorce attorney’s retainer. You will also need funds to live on during the divorce. Finally, before taking steps toward a divorce, get legal advice from an experienced Florida family law or divorce attorney.

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These proceedings address different issues depending on the couple’s circumstances. These can involve division of marital assets and liabilities, alimony or spousal support, parental responsibility/custody, primary residence of the children, visitation, child support and attorney’s fees. All issues involving the spouses are sought to be resolved in the one proceeding.

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Florida is a “no-fault” divorce state. This means that either spouse may request a divorce by proving to the court that the marriage is “irretrievably broken.” As a result, in seeking a divorce you do not have to prove that your spouse has committed adultery, domestic violence, spousal abuse or otherwise acted in a way justifying dissolution of the marriage. Before a family law judge can dissolve a marriage, he or she must know that you or you and your spouse believe the marriage is irretrievably broken. The judge may ask why a divorce is sought or recommend counseling but the reason is not important in granting a dissolution so long as the requesting party genuinely believes it to be true.

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In Florida, child support is among the few areas of divorce law that is determined according to strict statutory guidelines. In calculating child support, the court looks at the total available income of both spouses and determines the percentage each spouse’s share bears to the total income of the parents. These percentages are then multiplied by the child support guideline amount found in the schedules listed in Chapter 61, Florida Statutes, thereby determining the amount for which each spouse is responsible. In addition to basic child support, the court will also determine responsibility for medical and dental care, day care and for special expenses applicable to the couples’ minor children

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Because family law courts in Florida are courts of equity, they can award visitation based on what the court determines is fair and is in the best interests of the minor children. Florida courts favor minor children spending as much time as possible with both parents. However, the court’s determination of how visitation will occur varies depending on the circumstances. Such as, if the minor child resides primarily with one parent, the nonresidential parent might have overnight visitation every other weekend and on one or two nights during the week. Provision may also be made for visitation on holidays, with major holidays usually alternated or at least divided. Each parent may also be given a continuous period of time during the summer. Visitation may vary significantly from this example if one parent lives at a location distant from the minor children.

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First of all, in Florida, applicable statutes use the terms “parental responsibility” and “primary and secondary residence” in describing what is commonly referred to as “custody.” Parental responsibility contemplates how major decisions involving minor children will be made. Typically, shared or joint parental responsibility is most commonly awarded to both parents. Under shared parental responsibility, major life decisions such as those education, medical care, religious upbringing, etc. for minor children are supposed to be made jointly by the parents. Florida courts will normally only award sole parental responsibility to one parent under extreme circumstances such as those involving abuse or extreme neglect of the children. In Florida, awarding one parent sole parental responsibility for minor children (or what some laymen would call “sole custody”) is the exception rather than the rule.

Primary residential responsibility describes the parent with which the minor children will primarily reside. The parent not awarded primary residential responsibility will have visitation with the children and the children will secondarily reside with that parent as ordered by the court. To determine primary residential responsibility, the court looks at what is in the “best interests of the children.” To make that determination, Chapter 61 Florida Statutes sets forth criteria which the court may consider. This criteria includes factors such as which parent is more likely to allow frequent and continuing contact with the nonresidential parent, the love and affection between the parents and the children, the capacity of the parents to provide for the children, the moral fitness of the parents, and the mental and physical health of the parents. Determination of residential responsibility will determine the the payment of child support. Most often, the nonresidential parent will pay child support to the parent awarded primary residential responsibility.

In some less frequent situations, a court will consider a shared parenting arrangement known as “rotating custody.” Under this arrangement, the parents usually share parental responsibility. Residential responsibility is then rotated between the parents as determined by the court.

Since 2008, there must be a “Parenting Plan” established in connection with every dissolution of marriage involving minor children. These plans will cover much of what has been discussed above and are specifically intended to assure the involvement of both parents in the decision-making on major issues in a child’s life.

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In a dissolution of marriage, family law courts are considered courts of “equity” that base its decisions on what it determines to be “fair.” During the divorce proceedings, the court will make what is called an “equitable distribution” of marital assets and marital liabilities. In determining equitable distribution of assets and liabilities, the court will look to statutory provisions in Chapter 61, Florida Statutes as well as to how this has been interpreted by Florida courts. The statutory provisions and cases demonstrate that the court must first determine which property and which liabilities are marital and which are non-marital. In simple terms, assets or property obtained during the marriage are usually considered marital assets regardless of how these assets are titled. Similarly, debts arising during the marriage are considered marital liabilities regardless of whose debt the name is in. There are some exceptions to this general rule, such as an inheritance which is not commingled with marital assets.  In that case that inheritance may be a non-marital asset and will not be subject to division by the divorce court. In addition, the determination of marital property and liabilities may be resolved differently if the parties have a Pre-Nuptial Agreement (also known as a Pre-Marital Agreement). Once the determination is made of whether property is marital or non-marital, Florida Statutes, Chapter 61 requires the court to start with the premise that the division should be equal. However, the court may make equitable adjusts to this premise based on considerations set forth in Chapter 61. Some of these considerations include the length of the marriage, the economic circumstances of the parties and the contributions to the marriage by each spouse. Notwithstanding these statutory guidelines for distribution of marital assets and liabilities, ultimately the court has significant discretion in how to make an equitable distribution. For this reason, in contested divorce proceedings involving significant property or liabilities, a spouse should retain an experienced family law or divorce attorney to protect his or her rights in obtaining an equitable distribution.

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There is no formal status in Florida called as a separation. You are either married or you are not. Once legally married, you remain married until a court with jurisdiction dissolves the marriage. This is done when the court enters a court order known as a “Final Judgment of Dissolution of Marriage.” While there is no legal status of separation in Florida, spouses may enter into a legally enforceable “separation agreement.” This can create a contract which will govern the details of the spouses’ relationship during the period leading up to divorce. The agreement may cover topics such as division of assets and liabilities, child custody, visitation, child support and alimony. Separation agreements are complicated legal contacts which should be prepared by an experienced Florida family law attorney.

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Employer Law

Generally, employers are under no obligation to determine whether or not an employee’s poor work performance may be caused by a disability. However, if the employer has received notice that the employee has a disability protected by the Americans with Disabilities Act (ADA), the employer may have an obligation to find a reasonable accommodation prior to taking disciplinary action against the employee or firing the employee for performance problems.

Many conditions that may affect an employee’s performance may not be visually obvious, but still may receive protection under the ADA as a disability. However, if the employee does not link the performance problem to his or her disability, then the employer is not required to assume that they are related.

Furthermore, if no reasonable accommodation exists or is effective in improving the employee’s performance, the employer is not required to lower the expectations for job performance to accommodate the employee and to avoid termination. Nor are they required to have other’s perform some of the employee’s job duties as an accommodation. If there is no reasonable accommodation and the work cannot be done by the employee, a termination may be permitted. However proper documentation will be needed at all phases of the investigation

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An employer who receives a complaint of harassment on the basis of sex, race, national origin, age, religion or disability has an obligation under federal and state law to take immediate steps to investigate the complaint and if needed, take prompt, appropriate remedial action. In most cases, this means the employer has a duty to begin investigating the complaint within 24-48 hours.

Even if the employer believes the complaint is unjustified, the employer should to conduct a reasonable investigation in order to minimize the possibility of legal liability. Likewise, the employer may not fire or take other adverse employment action against the person accused of the harassment without first conducting an investigation. Employers who do so may face claims of wrongful termination, retaliation, defamation and/or reverse discrimination.

During the investigation, the employer may need to take steps to separate the person who made the complaint from the person(s) alleged to have committed the harassment. The employer should be careful that any actions it takes not be considered retaliatory by either party. For example, the employer cannot forcibly transfer the individual making the complaint to another department.

f after conducting the investigation the employer determines that some or all of an employee’s complaint is grounded in fact, the employer must take action calculated to end the harassment. Such action could include disciplining the harasser and formally noting the discipline in his or her personnel file, requiring him or her to take training or firing the harasser. Allowing the employee to remain in the position after a positive investigation would certainly expose the employer to liability if the actions occur again.

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These proceedings address different issues depending on the couple’s circumstances. These can involve division of marital assets and liabilities, alimony or spousal support, parental responsibility/custody, primary residence of the children, visitation, child support and attorney’s fees. All issues involving the spouses are sought to be resolved in the one proceeding.

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Under the Family and Medical Leave Act (FMLA), a private employer with at least 50 employees must to give qualified employees 12 weeks of unpaid leave each year for certain medical and family reasons, such as the adoption or birth of a child or to care for a serious health condition of the employee or an immediate family member. In order for an employee to be eligible for FMLA leave, he or she must have worked for the employer for at least one year and worked for at least 1250 hours during that year.

There are situations, however, in which an employer may delay or deny such leave. For example, if the reason for the FMLA leave is known or foreseeable, the employee must provide the employer with at least 30 days’ notice prior to taking the leave. If the employee fails to do so, the employer may require the employee to delay his or her leave until the notice period has elapsed. However, otherwise, such as if there is a sudden injury or illness, then the employee is only required to give the employer as much notice as is possible under the circumstances.

Employers also may deny or delay leave if the employee fails to provide timely medical certification of the need for leave, whether the leave is for the employee’s medical condition or to care for a family member. Employers have a right to require employees to provide medical certification to prove that requested time-off is for a FMLA approved-purpose.

The FMLA also requires employers to reinstate employees to the same or similar position after returning from FMLA leave. However, in some situations, employers may decline to reinstate an employee. If the employee meets the definition of a “key employee,” the employer does not have to reinstate him or her to the position. A key employee is an employee in a highly-paid, salaried position with the employer. Employers may refuse to rehire key employees if doing so would cause “substantial and grievous economic injury” to the business operations to do so.

Employers also do not have to reinstate employees to their position if the position was eliminated during his or her leave and it can be shown the position would have been eliminated regardless of whether the employee took the leave. Likewise, if the employer notifies the employee at the time he or she begins a medically related leave that the employee will be required to provide certification of fitness for duty before he or she may return, the employer may refuse to reinstate the employee until he or she provides such medical certification. Finally, if the employee notifies the employer at some point during the leave that he or she does not intend to return, the employer’s obligation to reinstate the employee will of course end, even if the employee later changes his or her mind.

If you have questions on an issue related to your employees or your business, contact Thomas R. Thompson, Esq., of the law firm of Thompson, Crawford

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Employers are under no obligation to provide references for former employees. Providing employment references may leave former employers open to legal liability from the former employee and the prospective employer.

Employers also must take care not to reveal information about the employee that could give rise to an invasion of privacy claim. For example, employers may not disclose private family or medical information about an employee. A past employee may state a claim for invasion of privacy where another has disclosed private information that is not of general interest to the public, and where such disclosure would be offensive to the reasonable person.

Thus many employers now have policies to only provide basic employment verification information about an employee, such as the duration of employment, position title, salary and rehire eligibility.

Employers desiring to give more information about an employee’s performance and qualifications may limit their potential liability if they do so based on verifiable facts. For example, if the employee received a promotion or was part of a disciplinary proceeding, the employer may provide this verifiable information so long as they have evidence, such as personnel records.

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While all tax related issues are best answered by an accountant, there are legal issues to consider. An independent contractor is a worker who is self-employed and who performs work for an employer on a project or contractual basis. While an employer must pay for state or federally mandated benefits for its employees – such as Social Security, worker’s compensation and unemployment compensation – independent contractors are not entitled to such benefits. In addition, an employer is required to withhold payroll taxes from an employee’s pay, while an independent contractor must pay his or her own taxes. Thus, employers may save considerably by hiring independent contractors.

However, a job title or even the employer’s own designation does not legally categorize a person as an independent contractor or an employee. Likewise, the existence of a contract stating the employment relationship is that of an independent contractor alone is not sufficient to determine the nature of the relationship. Rather, whether a worker is an employee or an independent contractor is determined by the duties actually performed by the worker and the degree of supervision and control that the employer exercises over the worker.

An employer whose contractors are retroactively determined to be employees may be required to pay back employment taxes and penalties. In addition, if the employer sponsors certain employee benefit plans for its employees, such as health insurance or a pension program, the employer may be required to provide the misclassified employees with those benefits retroactively, depending on the terms of the individual benefit plans. Therefore, before converting employees to independent contractors, an employer should consult an attorney and accountant to make sure that the workers actually meet the qualifications for an independent contractor.

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Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to disabled employees who need them to complete their job duties. Reasonable means in essence available without undue hardship to the employer. An employee who needs a reasonable accommodation should notify the employer. The notification does not need to be in writing, and the employee can request a reasonable accommodation at any time during employment. Additionally, job applicants also may request reasonable accommodations in order to complete the interview process.

Once an employer receives a request for accommodation, the employer should meet with the employee to discuss the types of accommodations available. Employers may ask the employee about the nature of the disability and how it impairs his or her ability to complete the job. Employers may ask the employee to demonstrate how the disability limits his or her job performance and ask for suggestions about the type of accommodations sought.

It is best to ask for a medical opinion from an employee’s doctor or licensed professional stating the disabilities involved and the accommodations required. If the disability or the need for reasonable accommodations is not obvious, the employer may ask the employee to submit documentation that the employee has an ADA-protected disability and that the disability requires reasonable accommodation. The type of professional will depend on the type of disability the employee claims to have. Employers cannot request information from the employee that is unrelated to the specific disability. For example, employers may not request an employee’s entire medical file.

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Family Law

During a divorce, multiple issues will need to be resolved. These include issues such as custody and visitation of minor children, division of marital property and marital debts, alimony/spousal support, and child support. At the end of the proceeding, the court will enter its “Final Judgment of Dissolution of Marriage.” This is a court order that will set forth the court’s resolution of all issues applicable to the dissolution of the couple’s marriage. An uncontested divorce is one where the spouses are able to reach an agreement on all of these issues, usually prior to filing the divorce proceedings. If the parties are able to reach agreement on these issues, their agreement should be reduced to writing in a Marital Property Settlement Agreement. (MPSA) The MPSA will then be presented to the family law court and will form the basis for the Final Judgment of Dissolution of Marriage. Because the Marital Property Settlement Agreement will govern so many important issues and will be binding on the parties, it should be prepared by an experienced family law attorney.

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The award of alimony, is determined in the court’s discretion taking into account certain specifically enumerated factors set forth in Chapter 61, Florida Statutes. Some of the listed factors include the living standard during the marriage, the duration of the marriage, the age and health condition of the parties, the financial resources available to each party, the contributions of each party to the marriage, the time necessary for either party to acquire sufficient education or training to enable the party find appropriate employment and all sources of income available to each party. Alimony may be either temporary (often called “rehabilitative alimony”) or permanent. Rehabilitative alimony is awarded for a temporary period of time to facilitate a spouse receiving necessary education or training in order to get back into the workforce. Permanent alimony continues throughout the working life of the party or until otherwise ordered by the court. Permanent alimony is usually awarded in circumstances where there has been a long-term marriage, often involving one spouse being out of the workforce for a significant period of time, such as a housewife.

Alimony is one area where a party’s adultery is relevant. In determining the alimony to be awarded, a family court may take into account the adultery of either party and the circumstances thereof. This is true even though Florida is a no-fault divorce state and adultery would not be an issue with regard to the court determining whether to grant a petition for a dissolution of marriage.

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In Florida, as in most states, if you are considering a divorce, you should first think about your safety and well-being as well as that of any minor children. If there is a history or threat of domestic violence or spousal abuse, you should take steps to protect yourself and your children. If necessary, you may wish to seek a domestic violence injunction from a court. This injunction is a court order directing your spouse to stay away from you and it gives law enforcement the right to take action if the injunction is violated. Next, you should focus on being prepared before initiating divorce proceedings. This includes gathering relevant documents and information to support your claim and familiarizing yourself with all marital assets and liabilities. This should be done before access to these records is difficult or they may even “disappear.” Preparation also involves having a support network in place to help you during the proceeding. Finally, preparation also involves having available the funds necessary to pay a divorce attorney’s retainer. You will also need funds to live on during the divorce. Finally, before taking steps toward a divorce, get legal advice from an experienced Florida family law or divorce attorney.

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In Florida, child support is among the few areas of divorce law that is determined according to strict statutory guidelines. In calculating child support, the court looks at the total available income of both spouses and determines the percentage each spouse’s share bears to the total income of the parents. These percentages are then multiplied by the child support guideline amount found in the schedules listed in Chapter 61, Florida Statutes, thereby determining the amount for which each spouse is responsible. In addition to basic child support, the court will also determine responsibility for medical and dental care, day care and for special expenses applicable to the couples’ minor children.

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Because family law courts in Florida are courts of equity, they can award visitation based on what the court determines is fair and is in the best interests of the minor children. Florida courts favor minor children spending as much time as possible with both parents. However, the court’s determination of how visitation will occur varies depending on the circumstances. Such as, if the minor child resides primarily with one parent, the nonresidential parent might have overnight visitation every other weekend and on one or two nights during the week. Provision may also be made for visitation on holidays, with major holidays usually alternated or at least divided. Each parent may also be given a continuous period of time during the summer. Visitation may vary significantly from this example if one parent lives at a location distant from the minor children.

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First of all, in Florida, applicable statutes use the terms “parental responsibility” and “primary and secondary residence” in describing what is commonly referred to as “custody.” Parental responsibility contemplates how major decisions involving minor children will be made. Typically, shared or joint parental responsibility is most commonly awarded to both parents. Under shared parental responsibility, major life decisions such as those education, medical care, religious upbringing, etc. for minor children are supposed to be made jointly by the parents. Florida courts will normally only award sole parental responsibility to one parent under extreme circumstances such as those involving abuse or extreme neglect of the children. In Florida, awarding one parent sole parental responsibility for minor children (or what some laymen would call “sole custody”) is the exception rather than the rule.

Primary residential responsibility describes the parent with which the minor children will primarily reside. The parent not awarded primary residential responsibility will have visitation with the children and the children will secondarily reside with that parent as ordered by the court. To determine primary residential responsibility, the court looks at what is in the “best interests of the children.” To make that determination, Chapter 61 Florida Statutes sets forth criteria which the court may consider. This criteria includes factors such as which parent is more likely to allow frequent and continuing contact with the nonresidential parent, the love and affection between the parents and the children, the capacity of the parents to provide for the children, the moral fitness of the parents, and the mental and physical health of the parents. Determination of residential responsibility will determine the the payment of child support. Most often, the nonresidential parent will pay child support to the parent awarded primary residential responsibility.

In some less frequent situations, a court will consider a shared parenting arrangement known as “rotating custody.” Under this arrangement, the parents usually share parental responsibility. Residential responsibility is then rotated between the parents as determined by the court.

Since 2008, there must be a “Parenting Plan” established in connection with every dissolution of marriage involving minor children. These plans will cover much of what has been discussed above and are specifically intended to assure the involvement of both parents in the decision-making on major issues in a child’s life.

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In a dissolution of marriage, family law courts are considered courts of “equity” that base its decisions on what it determines to be “fair.” During the divorce proceedings, the court will make what is called an “equitable distribution” of marital assets and marital liabilities. In determining equitable distribution of assets and liabilities, the court will look to statutory provisions in Chapter 61, Florida Statutes as well as to how this has been interpreted by Florida courts. The statutory provisions and cases demonstrate that the court must first determine which property and which liabilities are marital and which are non-marital. In simple terms, assets or property obtained during the marriage are usually considered marital assets regardless of how these assets are titled. Similarly, debts arising during the marriage are considered marital liabilities regardless of whose debt the name is in. There are some exceptions to this general rule, such as an inheritance which is not commingled with marital assets.  In that case that inheritance may be a non-marital asset and will not be subject to division by the divorce court. In addition, the determination of marital property and liabilities may be resolved differently if the parties have a Pre-Nuptial Agreement (also known as a Pre-Marital Agreement). Once the determination is made of whether property is marital or non-marital, Florida Statutes, Chapter 61 requires the court to start with the premise that the division should be equal. However, the court may make equitable adjusts to this premise based on considerations set forth in Chapter 61. Some of these considerations include the length of the marriage, the economic circumstances of the parties and the contributions to the marriage by each spouse. Notwithstanding these statutory guidelines for distribution of marital assets and liabilities, ultimately the court has significant discretion in how to make an equitable distribution. For this reason, in contested divorce proceedings involving significant property or liabilities, a spouse should retain an experienced family law or divorce attorney to protect his or her rights in obtaining an equitable distribution.

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Florida is a “no-fault” divorce state. This means that either spouse may request a divorce by proving to the court that the marriage is “irretrievably broken.” As a result, in seeking a divorce you do not have to prove that your spouse has committed adultery, domestic violence, spousal abuse or otherwise acted in a way justifying dissolution of the marriage. Before a family law judge can dissolve a marriage, he or she must know that you or you and your spouse believe the marriage is irretrievably broken. The judge may ask why a divorce is sought or recommend counseling but the reason is not important in granting a dissolution so long as the requesting party genuinely believes it to be true.

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There is no formal status in Florida called as a separation. You are either married or you are not. Once legally married, you remain married until a court with jurisdiction dissolves the marriage. This is done when the court enters a court order known as a “Final Judgment of Dissolution of Marriage.” While there is no legal status of separation in Florida, spouses may enter into a legally enforceable “separation agreement.” This can create a contract which will govern the details of the spouses’ relationship during the period leading up to divorce. The agreement may cover topics such as division of assets and liabilities, child custody, visitation, child support and alimony. Separation agreements are complicated legal contacts which should be prepared by an experienced Florida family law attorney.

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Wills and Probate

Recording a Will alone will not change the title to land or other property. No one will know if the recorded will was valid or if it was the final will of the decedent. Second, there are situations in which the property cannot pass according to the Will due to the nature of the property, estate creditors, or other reasons.  So a court order needs to entered through the Probate process finding the Will valid, recognizing the beneficiaries  and conveying title to property. 

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Obviously there will not be any inheritance to the heirs or beneficiaries, who receive assets only if all debts are paid. Florida law has a stated priority of claims, in which some claims (such as funeral expenses and final medical bills) come ahead of others. Most important in this day of “living trusts,” Florida law allows the creditors to reach assets of the decedent which were placed in certain types of trusts, and requires those trustees to use trust assets if necessary for estate expenses and claims.

Regardless even in that situation, a lawyer should eb contacted to see if an estate may be of benefit to the family. 

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First, be sure there is no will. Just because you do not quickly find one does not mean there is not one in a safety deposit box or hidden away with other papers. If the decedent stated before death that he or she had no will, then you be fairly sure there was none. If there is no will, the government has a plan for his money.  Florida has a law which dictates that when there is no Will, certain persons will receive the estate assets. Florida law on this “intestate succession”  has recently changed but in essence the closest blood relatives will take the entire estate.  A Florida probate attorney will be able to direct you whether an estate is needed and how this law may apply.

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Yes, in almost all cases. Except for “disposition without administration” which is for very small estates, Florida law has many pitfalls and technical rules that can be very frustrating for the non-lawyer.  Also if something is done wrong, the whole case may need to be opened up again and the error resolved.

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Yes, If you are over the age of 18, provided that no grounds exist to set aside the will. Adult children can be disinherited in a will in Florida. Minor children may have certain rights to homestead property.

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No, jointly held assets between husband and wife almost always are “survivorship” assets, with the surviving spouse automatically owning those assets upon the decedent’s death. Insurance and other assets which have a “pay on death” designation pass “outside probate,” at least when going to the spouse, and the beneficiaries do not need a court order. They usually have to fill out a form, submit a certified death certificate or take other steps, but probate should not be needed. However it is worth your time to speak with a probate lawyer to ensure no probate is needed.

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If the account is small enough, your mother can get a court order through a self-help, no-attorney process called Disposition Without Administration. Call the probate clerk in the county where your father resided and see if you can go this route. Usually the probate clerks are helpful in this process and can provide your mother with the forms, and they will not tell you that you need an attorney for this Disposition Without Administration. If the account is too large to qualify, a summary administration may be required, and that is where we can help.

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This is a confusing situation in Florida. From the bank’s point of view, if your name was on the account you could have taken out money – even all the money – before your dad died. The bank is protected by Florida law regardless of who put the money into the account. However, the courts in Florida have held that such accounts could be a “convenience account,” which is really property of your dad, and now belongs to his estate. Unless you are the sole beneficiary, this has the potential to create some conflict between yourself and the estate, and legal counsel is needed.

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Unless there are complications or disputes, most estates take between six and ten months for formal administration and four to five weeks for a summary administration. Larger estates in which estate taxes are due cannot close for some time until the IRS signs off on the Estate Tax Return 706, which has to be filed within nine months after the date of death and often takes that long to prepare. Taxable estates are doing well to close in two years. For the IRS publication on estate tax, see http://www.irs.gov/publications/p950/index.html.

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No, very small estates without land may qualify for “disposition without administration” and some estates may qualify for summary administration, which is a faster and cheaper form of probate. Because Florida’s homestead definition allows unlimited value (but not unlimited acreage), some estates with very expensive homestead property (principal residence), but little else, can qualify for summary administration. Also, if the decedent has been dead more than two years, the estate can be handled in summary administration.

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