There are free court forms online and affordable self-help packets from the local courthouse for those folks who do not, or cannot, hire an attorney for their Florida divorce: please continue reading…

If you are going to obtain a divorce, you must first consider what state is the right place to file for divorce (also called the divorce “petition”).  I have blogged previously on the circumstances where Florida, the state in which I am licensed, is the right state for a particular petitioner.

The next step is whether or not to hire an attorney.  There are many reasons why you may choose to go about getting a divorce by yourself (also called “pro se” representation).  You may be on friendly, clear terms with your soon-to-be ex-wife or husband and lawyers are not necessary, both sides are not hiring an attorney, or you may simply not be able to afford one.  Whatever the reasons, many, many folks go about divorcing without hiring a lawyer.  I generally do not recommend being unrepresented when the other side has hired a lawyer, and urge you to contact your local Legal Aid office to see if you qualify for free legal services if cost is the issue.  However, following are some very helpful links for the self-help pro se Floridian petitioner.

The Florida State Courts provide many free forms online here (keep scrolling down until you hit the forms section).  Please read the directions on how to download the forms, which are linked to the appropriate Florida Rules of Court and are provided in a variety of formats (including pdf).

Additional help and court-specific packets are available at your local court self-help center:

• Miami-Dade Self Help Center
• Broward County Self-Help Center
• Palm Beach County

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

By Elizabeth Lee Beck, Esq.  Ms. Beck obtained her law degree from Yale Law School, and is co-managing partner of Beck & Lee in Miami.  She can be reached at 305-789-0072 or elizabeth@beckandlee.com

Beck & Lee is a litigation law firm located in Miami, Florida.

The abolishment of the concept of “fault” in obtaining a Florida divorce

In 1971, the Florida Legislature enacted the Dissolution of Marriage law, and with it, Florida’s no-fault divorce law.  Under the concept of “no-fault,” if the marriage is “irretrievably broken,” the court must dissolve the marriage–the misconduct of a spouse does not matter.  All fifty states now have some version of no-fault divorce law.

If the marriage is “irretrievably broken,” the court must grant the divorce.  Florida Statutes section 61.052(2)(b).  It is not necessary that both spouses agree that the marriage is irretrievably broken.  However, when there are minor children involved or when one spouse denies the irretrievable breakdown of the marriage, the divorce process may take some additional time to complete.  For example, the court may order counseling, continue the divorce proceeding for a maximum of three months to enable the parties to reconcile, or take other actions in the best interest of the parties and children.  This is so to provide an opportunity for reconciliation in case the marriage is truly not broken.

What are the effects of fault or misconduct?

Fault can include such factors as adultery, spousal or child abuse, asset dissipation, marital misconduct, and fraud.  The court will consider fault in determining alimony payments, child custody, distributing the marital assets and liabilities, and in assessing attorneys’ fees.  Therefore, it is important to keep in mind that, although one can obtain a divorce regardless of fault, the court will consider fault in many other areas of the divorce proceedings.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

By Elizabeth Lee Beck, Esq.  Ms. Beck obtained her law degree from Yale Law School, and is co-managing partner of Beck & Lee in Miami.  She can be reached at 305-789-0072 or elizabeth@beckandlee.com

Beck & Lee is a litigation law firm located in Miami, Florida.
 

A homestead exemption is legal protection afforded to your primary place of residence from forced sale due to creditors.  Florida’s homestead exemption is enshrined in Article VII, Section 6 of the state Constitution, as well as Title XV of the Florida Statutes. 

Who May Claim Homestead Exemption?

• A resident of the state of Florida who intends to make Florida his or her permanent home may claim homestead protection.
• A person with multiple homes can still claim Florida homestead, as long as the Florida home is the “predominant and principal home.”  See Fla. Stat. s. 222.17
• “Greencard” holders who intend to permanently reside in Florida may claim homestead protection.
• Official recordation is not strictly necessary: homeowners who have never recorded a statement with the court describing the homestead property may still claim homestead protection from forced sale, although homeowners may also record such a statement to reap other benefits (such as homestead tax benefits).

Who Cannot Claim Homestead Exemption?

• Persons who are not permanent U.S. residents or otherwise able to form the intent to reside permanently in the U.S. 
• Pending applications for permanent U.S. residency do not permit homestead protection.

What is Protected as Homestead?

• Florida’s homestead exemption protects your home as long as it is no more than .5 acre within a municipality or 160 acres outside of a municipality. 
• It does not apply to commercial real estate, investment property that you are renting out, or second homes.

The Homestead Exemption DOES NOT Protect Against The Following:

• Florida’s state and local government trying to satisfy past due property taxes;
• Creditors of a mortgage on the home;  and
• Mechanics who have done repair or improvement work on the home and are owed money.

The IRS may attempt to foreclose on your home for past due federal taxes as well.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

By Elizabeth Lee Beck, Esq.  Ms. Beck has her law degree from Yale Law School, and is co-managing partner of Beck & Lee Business Trial Lawyers.  She can be reached at 305-789-0072 or elizabeth@beckandlee.com

Beck & Lee Business Trial Lawyers is a business litigation law firm located in Miami, Florida.

A common issue that arises when a Florida resident or a former Florida resident wishes to obtain a divorce from a spouse who resides in another state is whether they can file for divorce in Florida.  Although jurisdictional and venue battles to determine which court in which state should hear the divorce can become very complicated in contested divorces, for simple, uncontested divorces, the quick answer is yes: both parties do not have to reside in Florida in order to obtain a Florida divorce. 

To obtain a Florida divorce, one of the parties must have resided in Florida for six months prior to the filing of the petition.  Residency is proved by a valid Florida driver’s license, a Florida voter’s registration card, a valid Florida identification card, or the testimony or affidavit of a third party.  The resident party does not have to be the party filing for divorce.  In other words, a Florida resident may file for divorce against an out-of-state spouse, and vice versa.

A Florida court will not grant a divorce unless one of the following is true:

(1) The marriage is irretrievably broken; or

(2) One of the parties is mentally incapacitated, as provided by statute, for at least the preceding three years.

If there are no minor or dependent children involved, the wife is not pregnant, the parties have amicably divided any and all assets and debts, and the parties agree that the marriage is irretrievably broken, then Florida’s Simplified Dissolution of Marriage procedure is available to the spouses.  Under this abbreviated procedure, the Court will take in evidence to establish jurisdiction and the bases for the divorce during a hearing, where at least one spouse appears in person.  The Court may, in some instances and with advance preparation, even permit the spouse(s) to attend the hearing by telephone.  At the conclusion of the hearing, the Court will issue the judgment of dissolution of marriage.

If the other spouse contests the divorce or alleges that another state has jurisdiction to hear the divorce, that may prolong matters considerably.  For an example of the complications that may arise due to differing states’ divorce laws, read about Icahn v. Icahn.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

By Elizabeth Lee Beck, Esq.  Ms. Beck received her law degree from Yale Law School.  She can be reached at 305-789-0072 or elizabeth@beckandlee.com

Beck & Lee Business Trial Lawyers is a business litigation law firm located in Miami, Florida.

A businessman got sued in Miami, and hired me to defend his company.  I talked about litigation this, litigant that, deposition this, and summary judgment that, when I noticed him looking at me and not saying anything.  I stopped short suddenly and asked him curiously, “Do you know what a deposition is?”  He shook his head.  The fellow, in his decades-long business life, had never sued or been sued.  For folks like him, this post is for you.

Sometimes when you do something against the law (such as stabbing someone in a bar brawl, or crawling through your neighbor’s window to take their flat-screen TV), the cops come after you, you get arrested, and the government sues you.  The government’s lawyer is called a prosecutor.  You can get a lawyer too, to defend yourself against the government.  Sometimes your lawyer is free, and the government provides him or her too (to be fair).  Such lawyers are called public defenders.  This is CRIMINAL LAW.  This is not the subject of this post, but I wanted to start by distinguishing CRIMINAL from CIVIL.

Sometimes you break the law, and no one from the government comes after you.  For example, if you stop paying your monthly rent, or fail to deliver $1.5 million worth of computer equipment to an office supply chain store after both sides inked a deal, or char some woman’s hair on her wedding day, you probably won’t get arrested and thrown in jail.  However, in each case, there is a very angry person at the other end: the landlord, the chain store’s executive, and the bride with ugly hair.  What recourse do they have?  What recourse do YOU have if you feel that your actions are justified?

The CIVIL COURT SYSTEM.  In civil court, people are only held accountable if an aggrieved party sues them.

Step 1: the Letter.  There are many types of letters.  It can be a Demand Letter (“Return my money”) or the Cease-and-Desist (“Stop infringing on my trademark”).  You can write a letter yourself, but generally a letter from a lawyer has more clout, because it seriously threatens…

Step 2: The Complaint.  This is the document that you or your attorney writes up detailing your complaints—why you’ve been wronged, and why you deserve such and such a thing (such as money).  The side that wrote the Complaint (the side that’s suing) is called the Plaintiff.  The side that’s about to get sued is the Defendant.

Step 3: Service.  The lawyer can send a draft of the Complaint to the other side, in one last-ditch effort to get them to cave without a lawsuit.  But if that doesn’t work, your lawyer will take the Complaint, file it in the courthouse, and then serve the other side with it.  “Litigation” has now begun in earnest.

Step 4: Motion to Dismiss.  The other side may file a motion to dismiss, or alternatively, a demurrer in some jurisdictions.  This means that the Complaint is facially legally invalid.  The judge will either dismiss the Complaint and concurrently likely grant you “leave to amend” (a chance to fix the legal holes) or deny the motion to dismiss.  The Defendant must now file an…

Step 5: Answer.  The Defendant will either admit or deny each allegation in the Complaint.  The Defendant will also state any affirmative defenses.  Affirmative defenses limit the Defendant’s liability, even if everything the Plaintiff has claimed is true.  For example:

Plaintiff complains: I paid Defendant $12,000 for a tractor-trailer, and he never delivered it.  I want my tractor-trailer or my money back.
Defendant’s affirmative defense of statute of limitations: That’s true; I took the money and never did deliver the tractor-trailer.  But that was twenty years ago, and the law says you have to sue within four years for breach of contract.
Result: Plaintiff loses (probably at the summary judgment stage: see below) and gets nothing.

Step 6: discovery.  This is the process by which both sides forcefully extract information from each other.  Discovery is very invasive.  Some types of discovery are: interrogatories (written questions), requests for production (demands for documents), and the deposition (in-person interview by the lawyer for the other side).  Discovery is easily the most expensive step of the entire litigation process for large, paper-heavy commercial lawsuits.

Step 7: Summary Judgment.  Kind of like a motion to dismiss, except that you can use all the evidence you’ve unearthed during the discovery process to show that there is no point in going to trial (see below) and wasting everyone’s time because the evidence is so CLEAR and undisputed that if the judge applied the law at this point to the undisputed facts, it is OBVIOUS what the decision should be.  For example:

Plaintiff complains: I paid Defendant $12,000 for a tractor-trailer, and he never delivered it.
Plaintiff, during her deposition, admits that the $12,000 was a money gift to the Defendant, who promised her a gift of a tractor-trailer completely independent of the $12,000.  So there was no breach of contract; rather, Defendant failed to deliver a gift he promised.  Plaintiff has not been harmed in any other way.
Result: Defendant’s Motion for Summary Judgment granted.  Complaint dismissed.  Plaintiff gets nothing.

If the Plaintiff survives this stage, it’s the final showdown…

Step 8: Trial.  Generally is in front of a jury of your peers; sometimes before the judge only.

Step 9: Verdict.  The jury or the judge will render the verdict.  If you lose, you can always…

Step 10: Appeal.

That’s pretty much it.  The entire process can be anywhere from half a year (that’s pretty fast!) to a couple of years and beyond.  If you’re the Plaintiff, you generally want to hustle the case along because you want vindication and don’t want to lose steam.  If you’re a Defendant, it’s in your interest to slow it down to discourage the Plaintiff. 

Finally, one last thing: cost.  Lawyers in litigation almost always bill hourly.  This is because the amount of work a lawyer puts in is in direct correlation to how aggressive the other side chooses to become, and it is very difficult to give an exact pinpoint prediction of how expensive litigation will be for a particular case.  Lawyers will most likely give ranges or estimates of cost, based on similar cases, how document-intensive the case is, and the 411 of the other side and their lawyers.  Cost is an important factor in overall legal strategy, since winning in litigation also involves having the other side hemorrhage money in legal fees while you keep up your reserves.  It’s a pyrrhic victory if you win on paper and get some damages but spent multiples in legal fees compared to the other side.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

By Elizabeth Lee Beck, Esq.  Ms. Beck received her law degree from Yale Law School.  She can be reached at 305-789-0072 or elizabeth@beckandlee.com

Beck & Lee Business Trial Lawyers is a business litigation law firm located in Miami, Florida.

This post is for attorneys—specifically, attorneys with clients who have or will have matters pending in the state or federal courts of South Florida (Miami, Broward, the Palm Beaches, etc).  Having been in the somewhat aggravating position myself of looking for qualified local counsel in other jurisdictions for my own clients, a few things come to my mind that may be helpful for anyone looking for a good, careful, cheap and lighting-responsive local counsel in South Florida.

The State Courts

1.   The Florida bar rule governing foreign attorneys, pro hac vice admission, and mandatory local counsel retention is here–take a look to see its applicability to you.

2.   State court judges generally require that almost all motions (with some exceptions) that can be heard in about five minutes or less MUST be heard during their set “motion calendar” schedule.  You file, you notice the hearing, and both parties show up and argue.  This adds additional costs to your local counsel expense.  Some out-of-state attorneys wonder why more motions are not done “on the papers” but it does allow for the fast resolution of the issue, since the judge will almost always rule on the spot.

3.   Filing is state court is relatively simple.  There are no bluebacks or special punching required.  The state courts down here are not electronic (yet).  Filing is still done the old-fashioned way of sending multiple copies with a runner to the courthouse, and possibly following up with a courtesy copy delivered to the judge’s chambers.

4.   It costs $256 to file a lawsuit in Miami-Dade/Broward/Palm Beach’s circuit civil courts for claims arising from money damages in excess of $15,000.00.  Sheriffs’ or private process server fees are extra.

5.   Wish for more information on the various courts?  Check out the following listing:

• 11th Judicial Circuit (Miami-Dade County)
• 17th Judicial Circuit (Broward County, includes Fort Lauderdale)
• 15th Judicial Circuit (Palm Beach County): court website, and court clerk’s website

6.   The state courts also maintain electronic databases of pending civil matters’ dockets for public searching (there can be a delay, however, of up to several days’ worth of updating at times):

• Who got sued in Miami-Dade???
• Who got sued in Broward County???
• Who got sued in Palm Beach County???

7.   History tidbit: the Miami-Dade Courthouse was built in 1928 and remained the tallest building south of Baltimore for several decades.

The Federal Courts

1.   The Southern District of Florida has, as of late 2006, implemented the mandatory federal court electronic case filing system (also commonly known as “CM/ECF”) and has joined many other districts in going almost completely electronic.  CM/ECF is now MANDATORY for all attorneys admitted to practice before the Court.

2.   Attorneys admitted pro hac vice cannot become a CM/ECF user of the Southern District of Florida, but may view the electronic record through PACER.  Documents must be filed electronically through your local counsel. 

3.   The fee for pro hac vice admission is $75 per attorney, per case.

4.   For additional information on the Southern District of Florida, including links to their Local Rules, please check out their website: http://www.flsd.uscourts.gov/ 

5.   Building gossip: the David W. Dyer Building, which houses the Court, seems to have a serious mold problem.  Apparently things came to a head and an investigation was triggered by the mysterious death of U.S. Magistrate Judge Ted Klein from a respiratory illness. I have never felt particularly ill after a day in the Dyer federal courthouse, but the building is very old and warren-like.  Mold would not surprise me.

6.   A final note: you cannot bring a cellphone, laptop, camera, PDA or the like into the courthouse without special prior permission, so leave it at the office/hotel room in the summertime so it doesn’t fry in the car—the nearby parking lots are all open lot.

By Elizabeth Lee Beck, Esq.  Ms. Beck received her law degree from Yale Law School.  She can be reached at 305-789-0072 or elizabeth@beckandlee.com

Beck & Lee Business Trial Lawyers is a business litigation law firm located in downtown Miami, across the street from the state courthouse and three blocks south of the federal courthouse.

After almost three years of working at law firms servicing institutional clients, my law partner and I decided that we wished for more control over our work product and more direct customer service.  So we opened up our own law firm.  One would think that being a lawyer is the same-old, same-old, and it doesn’t matter much where you work, for whom, and what color the furniture is.  I mean,  work is work, right?

Nope.  My suspicion that there is a world of difference between having a 9-5 (or even a 9-9) working for a law firm and running your own operation was confirmed.  When you are not taking orders from anyone, but the client’s needs ultimately must be met by you, you realize a few things pretty quick:

1) It is your responsibility that the client is satisfied with the legal work, no matter who actually does the legal work;

2) If the client is not happy or wants something changed, there is no “Oh, I’m off now, call back tomorrow”–you’d better fix it PDQ; and

3) Doing a great job, making a client’s legal headache go away for a great price, and knowing that it was due to you feels pretty good.

 Some curious side-effects of all this are:

1) You naturally work more, but feel considerably less taxed;

2)  Feeling the direct, immediate impact between investment and return makes lab rats, day traders and lawyers alike put in more investment–in my case, working harder and longer; and

3) The legal work is ultimately better, since a businessperson (me) is producing it for another businessperson (the client).

Running your own business and diving into the push-and-pull of commerce can be very rewarding.  I happen to co-manage a business that provides critical services to other businesses and businesspeople, so I feel doubly rewarded.

By Elizabeth Lee Beck, Esq.  Ms. Beck received her law degree from Yale Law School.  She can be reached at 305-789-0072 or elizabeth@beckandlee.com

Consumer debt collection actions can be difficult to defend.  Sometimes, however, the debt collector’s lawyer makes it relatively simple, by filing in the wrong court.

The Fair Debt Collection Practices Act — a federal statute passed in 1978 with the intent of providing significant protections to consumer debtors from debt collection efforts — specifies quite clearly where a legal action on a consumer debt must be brought.  As 15 U.S.C. section 1692i(a) states,

(a) Venue
Any debt collector who brings any legal action on a debt against any consumer shall—
(1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or
(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity—
(A) in which such consumer signed the contract sued upon; or
(B) in which such consumer resides at the commencement of the action.

(emphasis added).  Therefore, if an action is filed anywhere other than where the debtor signed the contract, or where the debtor lives at the time the lawsuit is filed, then the action should be dismissed for failure to abide by the FDCPA’s venue provision — which applies to consumer collection lawsuits filed anywhere in the U.S.  Moreover, the debtor itself may be liable for improper debt collection practices under section 1692k of the FDCPA, although such liability requires a showing of intentionality on the part of the debt collector, which may be difficult to provide.

In any case, the FDCPA’s very explicit and narrow venue provision is a tool which can be used by debtors and their attorneys to achieve a relatively quick and painless dismissal of a consumer debt collection action.  As always, however, individuals faced with a collection lawsuit should consult with an experienced and qualified attorney to understand all of their options in order to best defend their rights under the law.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

By Elizabeth Lee Beck, Esq.  Ms. Beck received her law degree from Yale Law School.  She can be reached at 305-789-0072 or elizabeth@beckandlee.com