Archive: November 2012
November 25, 2012
Article By William Dorsey.
Contact Us With Your Divorce Law Questions.
If you are a Florida resident and thinking about getting a divorce, there are several things you should keep in mind about Florida’s divorce laws. These items are important aspects to saving you time, sanity or both.
(1) Florida is a “no-fault” divorce state
This means that you do not have to allege that your spouse was abusive, adulterous, abandoned you, or was at fault in any way. In order to file, you need only claim that your marriage is “irretrievably broken.” If you and your spouse agree about the irretrievable breakdown of your marriage, and you have no children, the court will likely accept this allegation without requiring additional steps. If you have children, or your spouse denies that the marriage is hopelessly broken, the court may order counseling with religious minister or marriage counselor. Learn more about “no-fault” here.
(2) Florida has certain residency requirements
In order to seek a divorce decree from a Florida court, at least you or your spouse must be a Florida resident or a member of military stationed in Florida. In addition, you (or your spouse) must have lived in Florida, or been stationed in Florida, for six months immediately preceding your filing for divorce.
(3) Filing your divorce petition
You should file your divorce petition in the county where the Florida resident lives. If you and your spouse live in different counties within Florida, you may file in either county. After you file, the court will notify your spouse that you’ve filed, and give him/her time to respond. If both of you agree about property division, spousal support and child custody, the divorce may proceed without going to court. Otherwise, the court clerk will set a hearing date. If you have children, Florida requires each of you to attend a seminar discussing issues related to children and divorce.
(4) Options exist if you cannot locate your spouse
If you no longer know your spouse’s whereabouts, you may still seek a divorce. Florida requires you to first make a “good faith” search to locate where your spouse lives. This includes multiple steps, including contacting the Department of Motor Vehicles, quizzing family and friends, and publishing notices in a proper newspaper for a stated period of time. After that, you must file an additional motion with the court, followed by a hearing where you appear before the judge, and the court will decide whether or not to grant the divorce.
(5) Dividing property
The law allows each spouse to keep his or her “non-marital” property that he/she brought into the marriage and “non-marital” debts brought into the marriage. If you and your spouse do not agree on a division of assets and debts on your own, the court will craft an “equitable” distribution of the marital property. This generally means equally, although not always.
(6) Determining spousal support
A Florida court may award spousal support, or alimony, if it determines that the award is “well-founded.” Courts look at several factors to determine if a support award is appropriate. These factors include the length of the marriage, the age and health of each spouse, and the standard of living the couple enjoyed during the marriage.
(7) Determining child custody and child support
If you and your spouse have not worked out an agreement on custody, the court will determine what is in “the best interest of the child.” Generally, courts will assign the parents joint custody of the children, although the child may reside primarily with one parent. The law sets a guideline for child support. This calculation factors in the income of each parent, the number of children, daycare expenses borne by each parent and, insurance expenses (on the child) borne by each parent.
(8) Divorce mediation may be helpful
Mediation may be a viable alternative to litigation for couples that cannot agree upon all issues related to property division, support, or child custody. In mediation, a neutral third party helps the spouses work through their disagreements and discuss potential solutions and possible outcomes a court might order. Unlike certain types of arbitration, mediation is not binding, so you are not required to accept the conclusions reached through mediation; you may simply opt to litigate in court instead.
(9) A simplified divorce process exists for certain couples
In certain very specific circumstances, the law permits couples to seek a “Simplified Dissolution of Marriage.” To qualify, you (or your spouse) must meet the regular residency requirements (and have proof of residency available), both of you must agree that the marriage is irretrievably broken, you must have no minor children from the marriage (and the wife must not be pregnant), both of you must decline to seek alimony, and you must both agree on all aspects of property division. In these cases, you may be able to go from filing your petition to having a final hearing in less than a month (although the hearing date must be at least 21 days after the date of the petition.)
(10) The process may be very fast, or take a very long time
If you and your spouse file an uncontested divorce (where you agree on all aspects of property division, spousal support and child custody/support,) and your petition and response meet all the pleading requirements established by Florida law, your divorce may only take a few weeks. If, however, your case is contested and requires full litigation, and you file in a county with a crowded court docket, your divorce may take more than a year to finalize. Read more about how long a divorce may take Here
Contact Us With Your Divorce Law Questions.
November 22, 2012
As with many questions of law, the answer to whether a property owner is liable for using deadly force to defend their property is “it depends.” In this case, it depends on what other circumstances are occurring at the time the owner uses the deadly force.
As a general rule, a property owner cannot use deadly force to defend his/her property. As a matter of public policy, most jurisdictions, including Florida, place a higher value on the life and safety of people than on property, even if those people are trespassing onto the property of another person at the time of their injuries.
Florida does recognize certain exceptions to this rule, however, as spelled out in Fla. Stat. 776.012. One exists when a person not only intrudes onto the property of another, but also presents a risk of death or “great bodily harm” to the owner or other occupants of the property. Another exception exists in situations where the intruder is committing a forcible felony. Fla. Stat. 776.013 clarifies the first of these exceptions by explaining that the law presumes a person to be in imminent fear of death or great bodily harm when an intruder unlawfully and forcefully enters an occupied residence or automobile. Section 776.013, is sometimes called Florida’s “no retreat” law, and says that, when an intruder poses an imminent harm, the property owner has no duty to retreat from the intruder. Instead, they may use deadly force if the owner reasonably believes deadly force is necessary to prevent death or great bodily harm.
The law acknowledges four circumstances where the “stand your ground” right of Section 776.013 does not apply. These occur when: (1) the intruder was also a habitant of that residence (except in cases where an applicable restraining order exists), (2) the intruder entered the residence to remove someone over whom the intruder had legal custody, (3) the owner was engaging in an illegal activity inside the dwelling, or (4) the intruder was a law enforcement officer who had properly identified him/herself.
In practical terms, if someone forcibly enters your occupied property, you generally may assume that the intruder means to cause you serious harm or death, and use deadly force to defend yourself. This right, however, does not exist if the intruder is your roommate, or your neighbor who has entered to retrieve his daughter, or you’re running a methamphetamine lab in your basement, or the intruder is a police officer who yelled “Police! Open up!” before breaking down your door.
It is important to note that these rules regarding the use of deadly force apply in situation where the residence is occupied. A homeowner may not employ mechanisms that would deploy deadly force to defend unoccupied properties (such as deadly weapons activated by trip wire or remote.)
If you’ve been accused of a crime, or sued, in the course of defending yourself inside your home or vehicle, you should contact a Florida attorney about your case. Florida’s “stand your ground” rules are relatively broad and may create a valid defense for you.