Gainesville Personal Injury, Divorce and Alimony Attorney

Even in Divorce Words Mean Things – “A” Prenuptial Agreement

In divorce or dissolution of marriage cases, if there are any prenuptial or postnuptial agreements, the Court will have to decide the validity of the agreements but may also have to interpret the meaning. Prenuptial or postnuptial agreements are interpreted using contract law principles because they are contracts by another name. 

In any contract litigation, words mean things, but the meaning could be different to each side of the litigation. In a recent case, the tiniest word had a great impact. In an appeal from a declaratory action interpreting a prenuptial agreement, the word “a,” meant the difference of a million and a half dollars in alimony to the Wife.

The prenuptial agreement in that case created a schedule of alimony that was fixed upon the filing of “a” Petition for Dissolution of Marriage (Divorce in Florida). The Wife filed a Petition at seven years of marriage, but the Husband was not served. The Wife voluntarily dismissed the divorce. Then, the Wife filed for divorce again at year ten. At issue was whether the alimony would be fixed at the year seven or year ten amount. Both sides argued the agreement was perfectly clear and meant the interpretation they proposed.

While the trial court agreed with the Wife and chose year ten, that ruling was overturned on appeal. The Appeal Court held that the filing of the first petition was the fixing moment.  The Court used an interesting analogy.  A rule in golf that “when a thunderstorm approaches, you must end your golf game, would be universally understood to mean the first time a thunderstorm approaches. Certainly, more than one storm might come and go throughout the day, but the rule would make little sense if it were construed to mean whichever storm the golfer chooses, so long as the game is ended.”

Divorce and Family law can be stormy.  The lesson here is to read, read and re-read the agreements and then read them out loud with your lawyer and talk about potential discrepancies before the agreement is finalized and litigated. Once a prenuptial or postnuptial agreement is signed and put away for ten years, there are no more chances for the parties to clarify meanings and a judge may decide the fate of the agreement. For assistance drafting or litigating a prenuptial agreement or postnuptial agreement please click, call or fill out the form.

Gainesville (352) 371-9141

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DUI and the Ignition Interlock Device

In DUI defense a common question or problem involves the “ignition interlock device”. The law on the ignition interlock device states that the Department of Highway Safety and Motor Vehicles “shall require the placement of a department-approved ignition interlock device for any person convicted of committing an offense of driving under the influence as specified”. 

If specified, the Department of Highway Safety and Motor Vehicles is mandated to impose the condition on a driver even if the Court fails to make the ignition interlock a condition of probation. Even if not required, the Court can add an interlock requirement. Proof of installing the device is required before issuing a permanent or restricted driver license. An interlock device, must be placed on all vehicles that are individually or jointly leased or owned and routinely operated by the convicted person.

The time an ignition interlock device needs to be installed varies from six (6) months to five (5) years depending on how many DUI convictions the person has in their past. In some instances, an interlock is required for a first DUI. For purposes of counting prior DUI offenses, any similar alcohol-related or drug-related traffic offense is counted as a conviction of driving under the influence. This is also true for enhancing a DUI. Alcohol related offenses could be a lesser charge than DUI in another state.

If a case is resolved, then it may be too late to remove the interlock requirement. These issues need to be worked out prior to sentencing. To hire a lawyer to defend a DUI of any kind, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Divorce and Tax Treatment of Alimony

In divorce or dissolution of marriage cases, the tax treatment of alimony or spousal support changed radically at the end of 2018. These changes will affect all cases where alimony is agreed to, or ordered by the Family Court. Effective January 1, 2019, the changes to the tax treatment of alimony have turned upside down the historical tax treatment of alimony. 

Previously, alimony was a tax deduction, reducing taxable income for the payor. The receiving party was taxed on the alimony which was treated as income. Beginning in 2019, alimony payments are NOT a deduction for the payor and NOT taxable to the recipient. The change only applies into the future and does not affect the tax treatment of alimony for divorces that were final on or before December 31, 2018 or to individuals who have already been ordered to pay or receive alimony.

This of course means that payors will be liable for a lot more taxes. For example, if alimony payments are $1,000 per month or $12,000 per year, then at a highest marginal tax rate of 1/3 the payor will still owe $4,000 in taxes whereas if the divorce were final before December 31, 2018, the payor would have lowered taxable income by $12,000 and lowered the tax liability by $4,000. In this example, in 2019, the payor will be out of pocket $16,000 instead of less than $12,000 after any tax savings but, the government will have collected $4,000 instead of potentially nothing.

In general, paying alimony means that the court found an ability to pay (high income) and a corresponding need for alimony (low income). Payors usually pay a much higher rate of tax than recipients. This change will mean more money in the government coffers and less money in the pockets of families. This will probably have the effect of lowering alimony payments that parties are willing to agree to pay and that courts are willing to order.

Whether you are being asked to pay alimony or seeking alimony payments, you should have a lawyer to guide you through the process. Please click or call to hire a divorce lawyer. A consultation fee is charged in family matters.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Stand Your Ground, Justifiable Use of Force Requires Force

In criminal cases alleging the use of force a defendant may seek immunity from prosecution. Today, this is called Stand Your Ground, but it has always been true that self-defense is a viable defense to any use of force case. A person seeking immunity has the burden to put forth evidence that the use of force alleged was reasonable against another’s imminent use of unlawful force. 

Maybe lost in all of this is that the defendant has to use force in order to qualify for immunity. What force? How much force? A trial judge recently held that a Defendant, accused of battery, who claimed to have shielded himself by raising his right hand, with an open palm and raising his right leg to protect the baby he was carrying could not use a Stand Your Ground Defense because he did not use ‘force’.  (Sounded like some force to this writer)

Specifically, that judge wrote that the “Defendant did not testify that he struck, shoved, or otherwise took any forceful action against the alleged victim.” In other words, the open palm and leg raise that assuredly gave rise to the battery allegation were not enough force to argue that the conduct was justified. The Court found that merely denying the allegations is insufficient and that the statute contemplates that a defendant will seek to justify the use of some force as necessary to protect himself. Now, how much force is enough force is going to be ripe for litigation.  The problem seems to have been that the Defendant tried to deny using force. He may have simply overexplained himself out of having his case dismissed and snatched defeat from the jaws of victory.

Criminal cases and in particular Stand Your Ground cases are tricky as the opinion referred to here shows. Each case depends on its own set of facts. How those facts are delivered decides the case.  Please click or call to hire a lawyer to present your case.

Gainesville (352) 371-9141

Ocala (352) 694-4529

DUI Actual Physical Control Not Just Being the Intoxicated Owner

An element the State has to prove in a DUI is that the accused was either driving or in “actual physical control” of the vehicle. Actual physical control sounds simple enough but the question of what is actual physical control has generated some interesting case law. Of note is that if the accused was not driving or the car was not moving, then the State can still prosecute a person having actual physical control. 

Actual physical control typically means a defendant must be physically in or on the vehicle. In addition, the accused must have the capability to operate the vehicle, regardless of whether the vehicle is being operated. Some defendants have been found to be in actual physical control while sleeping if for example they are in the driver’s seat with the keys in the ignition. Keys nearby has also been found sufficient.

If a vehicle is jointly occupied or attended too, then there needs to be independent proof of the person that was driving. For example, in a recent case, two people were found leaning against a car that had been in a minor crash. The owner of the vehicle was leaning on the driver’s side and a second person on the passenger side of the vehicle and the keys were in the ignition when the cops arrived and began the DUI investigation.

Of course, the intoxicated owner was arrested. The Court reversed the driver’s conviction declining to find the owner in actual physical control. The Court found that that it would be an impermissible stretch to accept the State’s argument “that two persons can be standing outside of a vehicle and the vehicle’s intoxicated owner can be arrested and convicted of driving under the influence because he or she is intoxicated and the registered owner of the vehicle.” In the case there was no independent evidence of who was driving. Of note to this writer is the importance of the accident report privilege and the attorney’s probable use of it to exclude evidence from the hearing.

Criminal traffic and DUI defense can be technical areas of practice. Not knowing the entanglements of the law such as how and why the accident report privilege wins cases can ruin the case and the life it affects. Please click, call or fill out the form below to hire an experienced DUI attorney.

Gainesville (352) 371-9141

Ocala (352) 694-4529

316.193

Griffin v. State, 457 So. 2d 1070 (Fla. 2d DCA 1984) (defendant who was asleep was in actual physical control of the vehicle).

Howell v. State (11th Circuit March 5, 2019).

Traffic Ticket Defense in a Single Vehicle Crash

Traffic tickets are issued for single vehicle or car crashes. A person ticketed for careless driving, failing to maintain a lane, or any other traffic citation charge brought as a result of a crash involving only one vehicle should always chose to take the infraction to court. In that instance the person cited received the ticket because there was an accident and for no other reason. 

If a lawyer is hired, the lawyer can go to court instead of the driver even if the citation is marked appearance required. In single car accident careless driving or other citations, the driver is likely the only witness to the accident. The State has to prove an accused guilty, and most of the time the officer or trooper did not witness the accident.

What evidence can they present without the driver being in court? None. If the driver admitted or made statements to the officer to complete the crash report, the officer cannot use any statements of the driver due to the accident report privilege. If an accused goes to court on their own, they can be asked questions and there is no right to remain silent in traffic tickets. The accused may have to admit to driving.

Hiring a traffic ticket defense lawyer can save points, and fine and court costs associated with the traffic citation for careless driving because without evidence, the State cannot meet their burden of proof which is beyond a reasonable doubt. Please click, call or fill out the form to hire a traffic ticket lawyer to attend court instead of the driver or with the driver.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Risk Protection Orders – Florida’s Red Flag / Gun Violence Restraining Order/Injunction Law

Whatever the name, there is now a movement sweeping the country to create a procedure to confiscate firearms of suspected at risk individuals before they perpetuate gun violence. Some people refer to these as Red Flag Laws or Gun Violence Restraining Orders/Injunctions.

In Florida, the law defines it as a Risk Protection Order (RPO). It is a preemptive strike upon a risk of violence and is a mere injunction by another name. An injunction is simply an Order directing the Subject to do or not do something.  The act ordered is to surrender firearms and any license to carry a concealed weapon or firearm, but not other weapons. However, a Subject of the Order may elect to transfer the firearms to another person.

In Florida, only law enforcement can file a Petition for a Risk Protection Order. However, other states and proposed federal legislation (SB 7) allow for loosely defined family members, former dating partners etc. in addition to police of sheriffs. A Petition must be accompanied by an affidavit made under oath stating the specific statements, actions, or facts that give rise to a reasonable fear of significant dangerous acts and identify the number, type and locations of all firearms and ammunition.

Law enforcement must make efforts to notify family and those who may be at risk. The Court must schedule a hearing within fourteen (14) days of the receipt of a Petition. This is the trial.  However, a petitioning police officer or sheriff can request a temporary order without a hearing; any temporary ex parte orders expire on the date of the hearing. After the hearing, the order can only last up to a year. At the end of a year, law enforcement can seek an extension of up to a year. Only one motion to vacate the Order can be filed. the Subject has the burden to prove by clear and convincing evidence that they do not pose a danger once an Order is in place

At the hearing, the burden of proof is clear and convincing evidence that the Respondent poses a significant danger of causing personal injury to themselves or others by having a firearm. The Court can also order the Respondent or Subject of the Risk Protection Order to complete a mental health evaluation or chemical dependency evaluation.

Even though these orders seek to remove or impinge upon a fundamental constitutional right, the right to bear arms, there is no requirement that the State provide an attorney. In fact, there is written into the law that there is no requirement that either party to be represented by an attorney. Any time the government is accusing a person, that person should seriously consider hiring a lawyer but in these types of cases, the respondent must hire their own lawyer. Please click, call or fill out the form to hire a lawyer to fight a Risk Protection Order.

Gainesville (352) 371-9141

Ocala (352) 694-4529