Gainesville Personal Injury, Divorce and Alimony Attorney

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01/10/2014
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GET OUT! Asked to exit vehicle after a traffic stop

In criminal and traffic cases a common concern is that the officer requested the driver or other person to exit the vehicle. There is a line of thought that being removed from the vehicle requires a safety concern or other good reason. Some may question what issue(s) exist getting out of the car, others do not like the feeling of being seized, however in the context of criminal cases, exiting from a vehicle often discloses damaging evidence.

Presuming a valid traffic stop for speeding, failure to maintain a lane or other traffic infraction, law enforcement can request those inside the vehicle to exit and there is no need for a specific valid safety concern. The United States Supreme Court has said that once a vehicle has been lawfully stopped, police officers may have the driver get out as a matter of course without violating the Fourth Amendment (searches and seizures). In other words, the officers do not have to be able to articulate anything in specific.

This matters in a criminal case because upon opening the door, the driver or passenger could reveal drugs or firearms that are in the possession of a felon or were concealed without a license. In addition, other criminal cases like violation of injunction or violation of pre-trial release and the obvious criminal traffic violations such as suspended or no valid license can all start when the overhead lights are activated on the patrol car.

All this means is that analyzing the traffic stop can mean a great deal. Please call, click or fill out the form to hire a criminal and traffic defense lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Adultery-How does it affect my divorce?

Two common questions I get as a divorce attorney are, “My spouse is cheating on me, how will that affect the divorce?”, and conversely, “I have been seeing someone, will that hurt my case?” There are some common misconceptions on how adultery or dating while still married can affect a divorce. The simple answer? It probably will not. These misconceptions may stem from a misunderstanding about what someone needs to show for a divorce in Florida. Florida is a “no fault” state, which means that a divorce can be asked for and granted regardless of the reasons behind a divorce. All that needs to be stated is that the marriage is “irretrievably broken”. Therefore, even if the reason for the divorce is something more specific such as adultery, it will not matter in terms of what a court will look for to grant a divorce.  This is a decision that has been made by the Florida legislature and judiciary, and nothing in this article reflects the opinions of my law firm or myself.

Another concern often voiced is: will a court punish the spouse who committed adultery, or started dating before the end of the divorce, by awarding the “innocent” spouse more assets, more time-sharing with the children, or more alimony? The answer again is probably not. There are only very limited legal basis to do so.  Therefore, a future divorcee can rest assured that getting back on the market before the divorce is final will probably not hurt them assuming you avoid a few exceptions we will examine in more detail below. A court is neither looking to prevent people from dating when they are splitting from their current spouse, nor are they going to punish someone financially or with less time-sharing with their kids because they cheated on their spouse.

Yet, there are a few exceptions to how either adultery or dating can affect the divorce proceedings. First, if, prior to the filing of the petition for dissolution, the adulterous spouse were to spend substantial amounts of marital money on their paramour, or support their paramour while not supporting their current family, a court can take this into consideration and possibly reward the “innocent” spouse by awarding them a greater share of the marital property during its distribution. Another way this can affect the result of a divorce is if, in a case where children are involved, the paramour’s involvement is somehow damaging to the children or their relationship with either parent.  For example, if the paramour is either a dangerous or unfit person to be around children. If the adulterous spouse was now staying with that paramour, a court may grant more time-sharing to the “innocent” spouse or require supervised timesharing with the adulterous spouse.  A court considers the child’s best interests when determining time-sharing, and would not want the children to be around a dangerous or unsafe person. Finally, even if a person is not adulterous and just wants to start dating before a divorce is final, a court may find that they are in a supportive relationship and are in less need for alimony, or even child support. Alimony is based on the need of one spouse and the ability to pay by the other, and child support is effected by the incomes of both parents. If a spouse is being supported by someone, for example they live with their new partner so they do not pay rent, or their new partner pays some of their bills, then that spouse would have less of a need for alimony. Additionally, a court may find that the new partner’s support is a form of income for the spouse, which would affect child support.

These exceptions may cause concerns for a married individual who was unfaithful or started dating during the divorce proceedings, however it is very uncommon for these exceptions to come into play. As long as one does not spend copious amounts of money on a new partner, that new partner is fit to be around children, and it is not a financially supportive relationship, divorcees can be worry-free in pursuing life after love.  However, every situation is unique and the best approach is to seek the assistance and counsel of an attorney experienced with the law and the judges in your county before being involved in any relationship.

Seal or Expunge – Florida Criminal History or Records

In Florida, a criminal record or arrest can be sealed or expunged but only once in a lifetime and only if the charge(s) qualifies. Not all charges can be sealed or expunged. The Petition to Expunge or Seal must be filed in the county where the case originated. In Florida, expunging a case or sealing an arrest or case are different things.

To expunge means that the records are destroyed by the court and arresting agencies. Sealing means that the records remain available to the courts but are not available without a court order to most others. In some circumstances a criminal record must be sealed before it can be expunged. If the records must be sealed prior to expunging, then under current law, a person must wait ten (10) years after sealing the record before the case can be expunged.

A person that is adjudicated or convicted, does not qualify and cannot apply to expunge or seal the arrest record or court case. Most sex offenses, any DUI or any Domestic Battery do NOT qualify to be sealed or expunged. Civil traffic tickets are not criminal and cannot be expunged but may be modified close in time to the sentence or judgment of the Court. Criminal cases that were dropped or dismissed either by a deferred prosecution agreement, pre-trial intervention contract, a nolle prosequi or no information are eligible to be expunged immediately. Otherwise, cases can be sealed and then expunged later if the court entered a withhold of adjudication meaning that there was no conviction.

The public defender’s office will not usually assist in expunging or sealing an arrest or court record. A person wanting guidance through the process will have to hire their own lawyer. Please call, click or fill out the form to begin the process with a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529