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Partition, The Division of Property Between Co-Owners

November 6, 2018 by  
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You own a property with someone you planned your future with, bought it together as an investment, or obtained title together, but there comes a time when you decide you need to separate your interest in the property but the other owner won’t agree.  What do you do?  You pursue a partition action.

When a property is owned jointly with another person, and you want to separate your ownership interest and sell the property but the other owner won’t cooperate you can ask the court to partition the property.  In a partition case the court can order the public or private sale of a property.   Once sold the court can determine how the proceeds of the sale should be distributed between the owners based on their ownership interests, give set-offs and credits for things like; upkeep of the property, the payment of the property’s expenses, the cost of mutually approved improvements to the property, and to the extent to which one owner is out of possession of the property they may be entitled to a portion of the fair rental value of the property from the owner in possession.

Where the joint owners are married partition is often alleged as part of a divorce case so as to give the court options beyond what equitable distribution may provide for.  Technically the partition can only happen after the parties are divorced.

If you need to separate your interests in a property from a co-owner or need to discuss partition as part of a divorce case contact us to arrange a consultation.

Uncontested Divorce In Florida

November 1, 2018 by  
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An “uncontested divorce” is as the name suggests a divorce without a contest, an unopposed divorce or a divorce based upon an agreement.  If a Husband and Wife can reach an agreement concerning the issues in their divorce case, and the agreement is consistent with the requirements of the law,  they can pursue an uncontested divorce using a divorce agreement or through the Respondent filing an Answer and Waiver to the Petition.  This is not the same things as a “simplified divorce” which has its own set of additional requirements such as both the Husband and Wife having to attend the final hearing.

If the parties go the uncontested divorce route, they can usually avoid the extra expense and extra stress commonly associated with a contested divorce and can usually get divorced from one another much more quickly than in a contested divorce case.  In an uncontested divorce the parties can also benefit from being able to agree to terms that fit their lives best and their best interests rather than having terms that may not fit their lives so well imposed upon them by the Court.

If you are able to agree with your spouse on the issues in your divorce case such as: the distribution of marital assets and debts, alimony or the lack of it, children’s’ issues like time-sharing, parental responsibility, and child support calculated pursuant to the guidelines, you may be good candidates for an uncontested divorce.

If you would like more information on the uncontested divorce process and to find out if it may be right for you please contact us to arrange a consultation.

Alimony Will No Longer Be Tax Deductible to the Payer in 2019

July 20, 2018 by  
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According to the Tax Cuts and Jobs Act, in divorces entered or modified after Dec. 31, 2018, alimony will no longer be deductible for the payer, and taxes won’t need to be paid on it by the recipient. This is a change from the long standing position that the payer would not pay taxes on the alimony they paid and the recipient would have to pay the taxes on the alimony they received.

Wrongful Detainer, When a Person Who is Not an Owner or a Tenant Will Not Leave Your Home

March 30, 2018 by  
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It came as a complete surprise to me how frequently people try to stay in other peoples homes without a legal right to be there, and how the police may not to be very helpful in resolving the situation and may even assist the person without ownership or tenancy in the home to gain access to it or remain there.  It seems horrific that someone who forced their way into your home or whom you invited in may refuse to leave, and that the police might not assist you in having them removed and may even tell them they have some right to be there. For instance, a friend who stays at  your residence, overstays their welcome, and then refuses to leave.

If you are faced with such a situation you need to consult with an attorney to evaluate your options, determine if you are able to complete an affidavit based upon which an illegal occupant can be removed by the police, or if you do not qualify for the affidavit and need to file a wrongful detainer action to get the illegal occupant out.

A wrongful detainer action is for when you are trying to remove someone from your home; when you are the owner or legal tenant; the person you are trying to remove is not a tenant or legal owner; and there is no agreement for rent.  Wrongful detainer is a distinct and separate cause of action from eviction and ejectment.  It is important to file the correct cause of action to prevent unnecessary delay in getting the person illegally occupying your home out.  If you have a person illegally occupying your home who is neither an owner or a tenant without an agreement for rent you scan contact us for a consultation about getting your home back.

 

Interpretation of a Marital Settlement Agreement

February 28, 2018 by  
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It is a well known fact that most cases resolve without the need to go to trial.  Often times cases resolve at mediation.  But that does not necessarily mean that there will not be litigation as to the interpretation or enforcement of a settlement agreement or mediation agreement later on.

For instance, in Rose v. Rose the parties entered into a mediated agreement where the wife could have exclusive use and possession of the former marital home until the parties daughter finished her four year college degree.  The agreement also stated that on sale of the home the proceeds would be slit evenly between the parties.  That sounds simple enough doesn’t it?

Well not quite.  The former wife took the position after the parties daughter had finished her four year college degree that the agreement did not specifically say that the home then had to be sold at that time or any other time.  It took a trial court’s and then an appellate court’s rulings to determine that the timing of the sale though not specifically stated was sufficiently stated to be enforceable as the home should be sold once the parties daughter had finished her four year college degree.

Even after the appellate Court made this ruling the case was sent back to the trial court to determine if the former husband had repudiated the mediated agreement by failing to make payments due under it.

So if you are entering into a settlement agreement keep in mind issues as to the agreement’s meaning and interpretation may come up later so you need to spell out as accurately and in as much detail as you can what is being agreed to.  It is best not to cut corners, spend the time, and have your attorney review it.

 

What is Shared Parental Responsibility?

November 17, 2017 by  
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“Shared parental responsibility” is where both parents retain full rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined together.  If the parties can not agree they can ask the court to decide the issue or change parental responsibility.
“Sole parental responsibility” means a court-ordered relationship in which one parent makes decisions regarding the minor child.
Where warranted by specific facts a court can order ultimate decision making authority or sole parental responsibility be given to one party. To award sole parental responsibility the court must make a determination that shared parental responsibility would cause detriment or harm to the child.  Sole parental responsibility is not usual and is only given where warranted by the specific facts of the case.

If you have questions about shared or sole parental responsibility in your case please call our office for a consultation.

Alimony Terminated Retroactively

August 10, 2017 by  
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Sometimes a change in circumstances warrants the reduction or termination of alimony.  In the case of Holli Poe Dennis v. Michael Dennis, the First District Court of Appeals for the State of Florida reversed a trial court decision that did not make the termination of alimony retroactive to the date that the Former Wife started receiving a portion of the Former Husband’s military retirement benefits.  The Court reasoned that alimony can be modified retroactively to the date of the filing of a petition for modification, and that where alimony is to be modified there is in fact a presumption that the modification should go to the date of the filing of the supplemental petition.   On the facts before it, the Court held that modification was warranted  retroactive to the date that the Wife started receiving the retirement payments.

If you need to talk to an attorney to discuss if alimony could be modified in your case based upon a substantial change in circumstances contact us for a consultation so we can evaluate your specific situation.

What Is Mandatory Disclosure?

July 6, 2017 by  
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Mandatory disclosure is a Florida family law term referring to the production of a financial affidavit and  financial documents required pursuant to Florida Family Law Rule 12.285 .  The rule applies to most initial and supplemental family law actions like divorce, paternity, and modification actions.  Mandatory disclosure is not required in adoption actions, simplified dissolution cases, contempt cases, domestic violence cases, and cases where a divorce is by publication.  The parties or court may modify these requirements, except a financial affidavit must always be filed in cases as to which the rule applies, and a child support worksheet must always be filed in cases involving children and child support.

A party must gather and provide to the other party each of the types of documents required by the mandatory disclosure rule and provide a certificate of compliance with mandatory disclosure. Required documents include things like pay stubs, tax returns, deeds, bank statements, account statements, and promissory notes.  In an initial or supplemental proceeding the rule requires that mandatory disclosure be completed within 45 days of service of the initial pleading unless there is an objection to the disclosure, agreement or motion for extension of time to do so.

The requirements of mandatory disclosure vary where temporary financial relief is being sought within 45 days of the filing of a petition.

The parties have a duty to update their financial affidavit and documents  whenever there is a material change in their financial circumstances.

If you have questions about your family case or the requirements of mandatory disclosure contact us and we can schedule a consult to help you.

Relocation Judgment That Separated Siblings Reversed

July 6, 2017 by  
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In a relocation case brought pursuant to Florida Statute Section 61.13001, siblings should not be separated from one another unless there is a compelling reason to do so.

In Sickels v Sickels, the Fifth District Court of Appeals for the State of Florida reversed a post divorce relocation judgment that separated two 15 year old twins from their 9 year old sibling by allowing the Father to relocate with the twins to Virginia but providing for the 9 year old to stay  with the Mother in Florida.  The trial court did not make a finding that there was a compelling reason for the 9 year old not to relocate with the other siblings, or that there would be some detriment to the minor child if he relocated with the Father and twins to Virginia. The Appellate Court ruled that absent such findings a judgment separating the siblings could not stand and reversed the judgment sending it back to the trial court for it to either make findings of a compelling reason and detriment to the 9 year old child or not separate the siblings from one another.

If you have minor children and wish to relocate with them it is important that you talk with a lawyer with experience in relocation cases.  If you want to talk to one of our lawyers about your situation please contct our office to schedule a consultation.

If a Change in Circumstances Supports a Change in Child Support You Need to Act Sooner Than Later

June 27, 2017 by  
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Where there has been a substantial change in circumstances like a significant change in income or a change in time-sharing that would justify a change in a child support obligation the Court can only modify the obligation back to the date of the filing of the petition for modification and not before it.  Accordingly, a party seeking a modification will want to file a petition for modification to preserve the date the Court can go back to when modifying child support.  You can not be reimbursed for child support payments made before a supplemental petition for modification was filed regardless of how unfair it may seem in some cases.

If you need to seek modification of your child support obligation or time-sharing schedule you should consult with a lawyer as soon as possible so as to make sure the Court can go back as close as possible to the date of the change in circumstances.  If you need advice in relation to the modification of child support contact us to discuss your situation.

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Disclaimer: The Law Offices of Robert Hanreck, P.A. is based in Miami , Florida and serves clients throughout the State including Miami-Dade and Broward counties. We are licensed to practice law in the State of Florida. This website is intended for informational purposes only and is not meant to constitute legal advice, or solicit clients outside of the State of Florida.