Gainesville Personal Injury, Divorce and Alimony Attorney

Family Law – Child Support Enforcement & Spendthrift Trusts

In family law, whether divorce or paternity, once there is an order of child support, the next problem for some is collecting said support payments. Enforcement of child support can be especially difficult when the obligor has no assets, hidden assets or protected assets. One way to protect assets from being depleted is by having a spendthrift trust that restricts the way that funds that are distributed can be used. 

A spendthrift trust usually provides the beneficiary with income while maintaining eligibility for public assistance; it restrains both voluntary and involuntary transfer of a beneficiary’s interest. Just enough money is distributed to allow the beneficiary to stay dependent on the government. What if the beneficiary of a spendthrift owes back child support?

Under Federal law, a beneficiary of a spendthrift trust is not disqualified or deemed ineligible for medical assistance to the extent that assets are transferred to the individual’s child. Furthermore, under Florida law, there is an explicit exception to a spendthrift provision. Therefore, even though a spendthrift trust may not be forced to make distributions, any discretionary distributions are subject to garnishment. Nothing prohibits a former spouse or a co-parent from obtaining a writ of garnishment against discretionary disbursements made by a trustee. However, garnishment of a spendthrift trust should only be used as a last resort when all other traditional remedies have been exhausted and are ineffective.

Whether the family needs assistance in prosecuting or defending a spendthrift trust or child support we can help. Please click, call or fill out the form to begin.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Traffic Ticket but Ain’t From Round Here – Out of State drivers ticketed in Florida

What if you received a traffic citation in Florida but you live in another state and cannot come back to fight the ticket in Court? There is a fundamental right to travel in the United States. However, when using the roads such as north Florida’s main arteries of I-75, US 301, US 441 a driver can be ticketed even if they ain’t from around here and are unfamiliar with the area. Some drivers call the office and feel that they may have even been targeted because they are from out of town or just visiting. We can defend the citation in court and maybe have it thrown out, dismissed or have a driver found not guilty, but we cannot change the circumstance that the driver stands accused. We defend against the accusation. 

Many out of state drivers cannot return to fight a ticket in court. Some drivers from other states or CDL drivers may require an amendment to the citation to avoid suspension, they cannot just pay it and they must elect to go to court. Some states do not honor an election of traffic school to remove points. However, all states are required by virtue of the United States Constitution’s Full Faith and Credit Clause to honor and respect a Florida Court’s Order. Therefore, if the Court withholds points, then the driver’s home state should as well. Many courts in north Florida will want the driver to provide their driving history or MVR.

In Florida, there is never a requirement that the driver personally appear in civil traffic court whatsoever. Even if the citation is marked that there is an appearance required, a person can still appear via the attorney instead of personally appearing. If the ticket is for a criminal traffic offense, an appearance is required, unless excused by the judge. A criminal traffic charge can be either a felony or a misdemeanor. A judge may excuse a Defendant from appearing but is not required to excuse anybody. Some judges will refuse to excuse defendants. Like everything else in the law, there is a proper procedure that many times requires an agreement with the State of Florida but is still always one hundred percent up to the judge.

Any person accused by the government should at least speak with a law firm instead of just paying a ticket. Sometimes, just paying a ticket, because it seems like the right thing, is the absolute wrong thing for the driver.  The court clerks cannot provide legal advice but will take the money. In civil traffic tickets, no lawyer will be appointed to a driver. To hire a traffic lawyer to go to court instead of an accused driver or with the accused, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

(Order out of state driving history/MVR from links to all states on the Resources page of the website)

DUI Conviction or Adjudication still required

In Florida, a person accused of DUI has faced mandatory adjudication, also known as conviction, for many decades. In cases where the Court is not restricted, it can also withhold adjudication which means that technically a person is not convicted. The difference can have far reaching consequences. For example, a DUI cannot be expunged because of the conviction and convictions stay on a driving history for up to seventy-five (75) years. Convictions also require higher surcharges and court costs. 

Recently, a bill was introduced that would have given back to judges the discretion to withhold adjudication in a DUI if accompanied by an ignition interlock device. In addition, there would have been assistance by subsidizing the costs of an ignition interlock device. Furthermore, there was retroactive application to allow people sentenced under the current law to petition the Court to enter a withhold of adjudication five (5) years after sentencing.

Unfortunately, the bill will not become a law and a DUI arrest means that the defendant is still facing mandatory conviction or adjudication. DUI law is technical and involves many aspects of law, procedure and science. To get the firm started on the case, please click, call or fill out the form.

Gainesville (352) 371-9141

Ocala (352) 694-4529

SB 612 (2019).

Reckless Driving, Standing Your Ground by Accident.

Reckless Driving, not to be confused with careless driving, is a criminal traffic offense in Florida. An accusation of Reckless Driving does not require a crash, but property damage does enhance the offense. In a recent case, an attempt at defending a charge of Reckless Driving was made via a motion for immunity under the Stand Your Ground law. 

The Defendant was the only person allowed to testify (the appeal court did not like that). The Defendant in the case claimed that the alleged victim shot at the Defendant as they were driving. The Defendant then followed the alleged victim, to obtain the license plate to give to 911 and he called 911. The Defendant claimed the alleged victim was shooting while the Defendant followed the alleged victim. Then the alleged victim stopped suddenly and swerved; the Defendant testified that he was unable to avoid the collision and it was an accident. Other than the fact a crash occurred there did not seem to be other evidence of recklessness, but that defense lawyer sought a dismissal based upon a lawful use of force.

The Court ruled that a person cannot claim immunity under the Stand Your Ground law when the force was used by accident or unintentionally. The law states that “a person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” The Court held that this defendant did not reasonably believe the force was necessary because the force was inflicted unintentionally. Furthermore, the Court pointed out that the following of the alleged victim by the Defendant to obtain the tag information, was not done to protect the Defendant and increased the risk to the Defendant.

While this attempt failed, each case involving either Reckless Driving or a self-defense immunity claim under Stand Your Ground depends on the specific facts of each case. As this example shows, opinions can always differ on whether conduct was appropriate. Do not face the government alone. Please fill out the form, click or call to hire a lawyer.

Gainesville (352) 371-9141

Ocala (352) 694-4529