Divorce and leaving the house - Is it abandonment?

I probably get asked this question more than any other, so I wanted to address it here.  Pop culture seems to have created a legal fiction that causes people to believe that the court think they have abandoned the house and kids if the move out of the marital home.

The quick and easy answer is that this is not true.


Factually, however, every case is different, and it is important to consider the particulars of your case before simply packing up and moving out.  Simply moving out of a marital residence, under Florida law, does not constitute abandonment.

There are many cases under Florida law that require an "intent" to abandon property by never returning to it and establishing a homestead somewhere else. In Bobo v. Vanguard Bank and Trust Co., Inc., 512 So.2d 246, Fla 1st DCA, 1987, that court held that abandonment of property requires showing of actual acts of relinquishment to show an intention to abandon.

The real question that I think needs to be considered, is what do you ultimately want to do with the house?  If you intend to move out with the hopes of a judge removing your partner so you can move back in, that might be a difficult proposition.

Additionally, if you move out of a home without an agreement as to how you and your partner are going to share time with the children, keep in mind that it might be weeks or months before you can get in front of a judge on such an issue.

In short, moving out of a marital home with a pending divorce is commonly done, however it is best done once a consideration of your particular divorce strategy is put into place.  We encourage you to sit down and speak with us personally if this is something that you or a loved one is considering doing.  

A host of new laws and changes effective today July 1, 2010

As of today there are an additional 141 ways to violate Florida law, as many of the items from the past legislative session go into effect today.

Among the most notable changes to the criminal laws:

*  In an effort to keep nonnative creatures from harming Florida's ecosystem, the personal ownership of Burmese pythons and six other reptiles is being outlawed.

*  Only stores that deal mostly in tobacco will be allowed to sell water pipes - more commonly used for the consumption of illicit drugs.

*  In an effort to cut down on the theft of horses, the Florida legislature is adding rules and some restrictions on the transportation, distribution and purchase of equine meat. What is interesting about this item is that almost every news outlet is reporting that it is now illegal to sell horse meat.  That isn't true at all, the unregulated sale is the only thing that has become illegal.

*  A lot of state are backing off gambling laws in the hopes of bringing or keeping gambling revenues into their respecitve states.   Florida is no different.  In 1997 low limit poker games ($10 a pot) became allowed per the statute.   In 2003, the $10 pot limit was removed, replaced by a $2 maximum bet per round with a limit of three raises per betting round.  In 2007 a maximum buy in of $100 was established.  As of today, poker games in the State of Florida have NO LIMIT.   

DUI and the Intoxilyzer 8000 / 9000 source code

It is my opinion that, in the Treasure Coast, expert testimony in a DUI case does not provide a great deal of benefit to a client in a trial.  Many of these experts have somewhat questionable credentials, have a clear profit motive in testifying, and usually provide scientific evidence that a intelligent, well informed jury panel will both be bored by and reject.  (In contrast, practicing in Gainesville, Florida produced jury pools that were younger, idealistic, and frankly a bit less intelligent, but I've theorized that the less intelligent the juror, the more apt that juror may be to simply side with the intelligent sounding expert).

The exception to this rule, seems to be described today in an opinion handed down by Florida 2nd District Court of Appeals.

CMI, the company who created the "source code" or computer language of the Intoxilyzer 8000 (the old machine used by Florida law enforcement) and the Intoxilyzer 9000  (aka the new / current machine) has gone to great lengths to avoid having its source codes fall into the hands of criminal defense lawyers.  While it is unclear whether CMI fights the disclosure based on a flaw in the code is still unclear, but Florida is an open discovery state, and if they expect to sell their machines here, it's clear that they should expect their machines to be scrutinized.

A jury may never hear from an expect regarding this source code, however the State is likely not to continue prosecuting cases when the source code is made an issue, if CMI continues to drag its feet on handng these codes over.

A copy of the opinion can be found here:

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2010/June/June%2018,%202010/2D09-5502.pdf 

The Right to Remain Silent - Calls from the jail to your lawyer

One of warnings we often have to give clients coming in for criminal consultations becomes not to talk to people about their case.  There is a natural tendency to want to speak with friends, family and neighbors either to explain what happened or simply to try and disprove that anything criminal happened.  Unfortunately, these statements can be used against you, and even a statement which is a complete denial but has any kind of detail can end up painting you into a logistical corner that you may not have intended. 

As lawyers, the general rule is that anything you tell us is confidential.  In March of this year, however, the Supreme Court of Florida ruled in the matter of  McWatters v. State, 35 FLW S 169.  This decision from the holds that if a lawyer has a phone conversation with a client and either of you knew or should  have known the call was being recorded, then the conversation is not privileged.   The theory behind this case that when an otherwise privileged communication is made in front of a third party, that the privilege goes away.  For instance, you can't confess out loud to a murder on a crowded bus and claim that you were only talking to the priest next to you when you said it.

This case really stands as a reminder that sometimes the most damning evidence are the words that an accused person says.  In this day and age, it's always better to assume that someone is listening.

For more info, contact us at http://www.verocriminallaw.com.

Sweeping changes to alimony laws in the State of Florida

On June 3, 2010, Governor Crist signed into law House Bill 907, which makes major changes to Florida's alimony and child support law.

First, I want to explain how the Court is to consider alimony in light of the new law.  In order to determine whether an alimony award is appropriate, the Court must first make a finding that one party actually needs alimony and that the other party has ability to pay alimony, and determine the type and amount of alimony that is appropriate.

The new changes in the law lay out time frames that help make the determination at to what type of alimony is appropriate. 

There is a new rebuttable presumption for the lengths of marriage:

*  less than 7 years is a short term marriage
*  more than 7 but less than 17 is a moderate term marriage, and
*  more than 17 is a long term marriage.

The length of the marriage is generally going to be measured from the date of marriage to the filing of the dissolution petition.

The types of alimony now officially available are:

1. Bridge-the-gap alimony, which is an alimony award to help transition a person from married life to single life.  This form of alimony was generally available in most of Florida before, but is now in the statute.  It is limited to a maximum of  two years and is not modifiable.
2. Rehabilitative alimony is now listed in thge statute.  This type of alimony will require that a spouse file a specific plan that will help get them back on their feet (i.e. by going back to school, having some sepcific job training that will eventually increase income).  This type of alimony may be modified.
3. Durational alimony is now added to Florida law and can be awarded when permanent alimony is not appropriate. It may be modified but the length of the award award cannot exceed the length of the marriage.
4. Permanent alimony is now codified and is awarded based on the needs and necessities during the marriage.  It can awarded in a long term marriage or in a moderate term marriage if there are appropriate factors and even in a short term marriage if there are exceptional factors present.

The changes in the alimony law cannot serve as the basis to modify the type or length of alimony orders entered before July 1, 2010.  For more information contact me by e-mail or by visiting us at http://www.verolaw.net or http://www.verocriminallaw.com

The text of the new statute can be found here:  http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=493857.docx&DocumentType=Amendments&BillNumber=0907&Session=2010