Injunctions

January 24, 2022

POWER OF ATTORNEY VERSUS GUARDIANSHIP

What is Incapacity?

Incapacity is when a person is either under the age of 18 or is unable to provide food, clothing, shelter, or unable to manage their business and financial affairs. Guardianships are frequently created when difficulties present themselves in an individual’s life and his or her ability to deal with life’s affairs is hampered or non-existent. A family member, or in some cases, a qualified individual can petition the court system to appoint someone to manage the incapacitated individual’s matters.

What is a Durable Power of Attorney?

November 5, 2021

Who Gets the Home in a Florida Divorce?

by Neil Weinreb

The marital home is frequently the largest asset between the parties to be divided in a divorce. When and how the marital home was acquired will be a major factor in determining who gets the marital home temporarily and permanently.

What is Exclusive Use and Possession?

Exclusive use and possession refers to one party receiving permission to use the home for their own purposes. Conditions are frequently provided for, as well. A frequent condition to receiving exclusive use and possession of a home is typically connected with paying the mortgage or other household bills. This sometimes occurs initially after holding a temporary needs hearing or a domestic violence injunction hearing. The most expedient, but not necessarily recommended way that a spouse can obtain exclusive use and possession of a home is through a domestic violence case. Using a domestic violence case to obtain exclusive use and possession should only be pursued when it involves a Petitioner that has been the victim of domestic violence. In other words, a petition for injunction should only be filed when actually necessary to stop or prevent violence. Where domestic violence is not an issue, a temporary needs hearing would be the best vehicle to obtain a temporary order to decide who stays in the home temporarily. The author has seen a number of occasions where both parties shared the home while they waited for a final hearing because neither party had a good option to leave. This is not recommended, as it is natural for hostility to build between two partis going through a divorce.

October 11, 2021

In Florida, Does a Child Support Obligation Have a Statute of Limitations?

by Neil Weinreb

What is a Statute of Limitations?

The term “Statute of Limitations” refers to a law that limits the period for which one may file a lawsuit. This time period will typically vary by state and the type of suit that is being filed. For instance, the period of time for filing suit for a wrongful death claim may be different from the period of time one has to file for a trespass suit. Federal law normally controls Statute of Limitations Periods for cases decided based upon federal law.

How Far Back Can One Be Assessed in Determining Child Support?

June 21, 2021

Do I Need a Domestic Violence Injunction

by Neil Weinreb

What is Domestic Violence?

Under the Florida Statutes, Domestic Violence is defines as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offenses resulting in physical injury or death of one family or household member by another family or household member.” F.S. 741.28.

Is Domestic Violence Criminal?

June 30, 2020

Do You Need A Prenuptial Agreement?

by Neil Weinreb

There may be some negative stereotypes that are associated with Prenuptial Agreements. Typically, neither party wants to detract from the blissful atmosphere typical prior to a wedding. However, a Prenuptial Agreement can also help preserve a marriage. This is because there is certainty as to how things will terminate should the marriage not last.

The thought alone of creating a prenuptial agreement can cast a negative light upon a wedding. To some, the contemplation of a prenuptial places a negative light upon wedding preparations and the future of the relationship. Having to plan for divorce is an admission that a relationship is not permanent. That said, it is far better to deal with the details of how a relationship is going to end (should it end) while a couple is reasonable and loving compared with being negatively affected by the hostilities and uncertainties of divorce.

In Florida, there are several types of alimony that courts may consider. There are factors that affect the amount of alimony that can be provided for such as, length of a marriage, the equality of earning ability between the spouses, and the assets that a court must divide. Florida law creates a rebuttable presumption against permanent alimony when a marriage is 7 years or less, which under the Florida Statutes is defined as a short term marriage. However, there is a rebuttable presumption for permanent alimony awards in marriages that are long term (greater than 17 years). Moderate term marriages are defined as between 7 and 17 years and no presumption exists.

June 22, 2020

Litigation After Divorce. Do You Know Your Rights?

by Neil Weinreb

It is important to know your rights following a divorce. The final judgment of dissolution and the parenting plan determine the legal playing field for the future. However, most issues are dynamic. Children get older and their schools change and sometimes their relationship with parents change. Incomes change, which can directly impact child support and people sometimes desire to relocate where child custody can be an issue. There are a myriad of circumstances that should be re-evaluated following divorce.

In Florida, the standard used to file an action to modify a final judgment is that a substantial change in circumstances occurred that was not anticipated at the time of entry of the final judgment. It does not always make practical sense to file an action to modify a final judgment just because a party can do so. The relationship that a party has with a former spouse is important, especially where children are involved. Every time a party considers filing a supplemental petition (this is the instrument filed requesting modification of a final judgment), one should consider how such will impact their relationship with their former spouse and other legal consequences. I frequently have parties coming to me that wish to file for a modification. I typically find that they have only evaluated a part of the effect of seeking a modification. For this reason, it is imperative that one review the ramifications of an action for modification with an experienced family law attorney.

Although a divorce is designed to deal with all of the legal issues concerning dissolution, the reality is that there are sometimes issues that are left unresolved. On occasion there are assets that neither party put on their financial affidavits that require addressing post dissolution. One example of such an issue involved a divorce of a long time married couple in which neither party included the child’s prepaid college fund account on their financial affidavit. The fund was cashed out by the Father/Former Husband after the divorce without permission from the court or the Mother/Former Wife. Since the asset was not listed on either party’s financial affidavit, the judge considered the asset marital property and ordered the Former Husband to pay back one half of the funds post dissolution.

May 16, 2016

Injunction to Protect Child

by David M. Goldman

An injunction (or protective order) can be a good way for there to be an immediate response when children need to be protected from any person, including a parent. Many times, injunctions will come after the police and the Department of Children and Families are involved. The injunction process is typically the quickest way for there to be court intervention, especially if the incident that necessitates the need of a protective doesn’t not lead to an arrest of anyone. There could be many reasons to seek an injunction for protection on behalf of a minor child. This article will focus on abuse allegations.

Whenever a child is subjected to intentional infliction of physical or emotional harm, child abuse has occurred, as defined by Florida Statute 827.03. This issue comes up sometimes after divorces or in paternity cases where children go between mom’s house and dad’s house. Of course, physical discipline is allowed, but going too far becomes a crime, and can also be the basis for having an injunction put into place. Florida Statute 741.30 allows for injunctions in domestic violence situations; child abuse qualifies as domestic violence.

If one parent files for an injunction to get protection for their children, if granted, the injunction can control time-sharing and visitation until a family court can hear the case and determine what is best for the children. An injunction court may limit the visits to supervised visits, or the court may stop visitation all together.

February 24, 2015

Social Media Stalking: Filing An Injunction Against Someone That Doesn’t Live In Florida

by David M. Goldman

Social media has become an everyday part of life for many people, including Florida residents. Oftentimes, conflicts between people begin on social media platforms. Other times, issues begin in the “real world”, but are carried out in forums like Facebook and Twitter. Recently, I encountered a situation that falls into the latter category. Most Jacksonville injunction and family lawyers are all too familiar with the story of the old spouse and the new spouse having issues with each other. Petitions for injunctions or restraining orders end up being filed in many cases. Physical violence is not always what prompts the petitions being filed. When the feud manages to stay verbal, rather than become physical, the next best way to elevate the conflict for many is often to turn to social media. Mean and nasty things are said, sometimes even threatening things, with a very large social media audience watching and weighing in themselves.

So what happens when one person harasses, stalks, threatens, or cyberstalks the other on Facebook, Twitter, Instagram, etc…? If both parties live in Florida, the answer is simple: an injunction petition or a petition for a restraining order may be filed. Florida laws allows for the petition for protection against stalking to be filed in the Florida county where the defendant lives or in the county where the action accrues , meaning the place where the acts are committed. Florida Statute 784.0485 creates a cause of action that specifically allows an individual, or an adult on behalf of a child, to file a petition for protection against stalking. The petitioner, through the petition for a protective order, will ask the court to order the violator to have no contact with and stay away from the petitioner. The court will weigh the evidence and make a decision whether to grant the request for an injunction. However, when the conduct that is complained about takes place entirely on social media, like Facebook or Twitter, the court may have more of an issue when determining whether the injunction should or can be issued if the violator is a resident of another state.

November 13, 2013

More Things to Never Say to Your Divorce Attorney

by David M. Goldman

1. “I brought my ‘friend’ with me to the interview.”

You and I have an attorney client privilege. But once you bring in a third party, whether it’s a friend, a lover or whoever, the benefit of the attorney client privilege is gone. Unless that third party is named in the case or otherwise officially associated with the case, there is no attorney client privilege.. If a friend or a lover is in a meeting with attorney and the case goes sour, in the event of a trial or deposition, there is no privilege and all those secrets can spill out in a deposition or in court.

2. “I am so depressed over this.”

February 4, 2013

What Is an Order To Show Cause?

by David M. Goldman

An order to show cause is a type of court order that requires one or more parties in a court proceeding to come to court to justify, explain, or prove something to the court. Typically it means the Judge in a case needs more information before he or she decides to do something. For example, in a divorce, at the request of one parent a judge might issue an order directing the other parent to appear in court on a particular date and time to show cause why the first parent should not be given sole physical custody of the children.

Other examples of an order to show cause in a family law context would be when one parent has not been paying court ordered temporary child support while a case is pending. One party may petition the court to find the other party in contempt. The court may issue an order to show cause to find out if the allegation is true and ascertain why the party is not paying support. Perhaps the party is was in the hospital and was not able to work. The judge can then make an informed decision regarding the order and issue an appropriate sanction or no sanction at all.

If you are on the receiving end of a notice for an order to show cause, it is not something to set aside or ignore. You may wish to contact a family law attorney to assist you in protecting your rights. If you have such an order in hand, or have any questions regarding any other legal issue, give Law Office of David M. Goldman a call at 904-685-1200.