Florida’s Homestead Law Protects Spouses and Minor Children

This is our second blog in a series of three discussing Florida’s homestead laws. Florida provides broad protection for homeowners of a primary residence in the state. The three general types of homestead protections are:

  • The homestead tax exemption;
  • Protection for spouses against the sale of the homestead without their joinder and protection for spouses and minor children against the devise of the homestead upon death in a will; and
  • Exemption from forced sale before and at death to meet the demands of creditors.

This post focuses on the protection provided to spouses and minor children and applies to homes resided in as primary residences in Florida. As to spouses, even if the homestead property is titled in only one spouse’s name, that spouse cannot sell the property without the other spouse signing, or “joining in” on, the deed. Any attempt by the spouse in title to sell homestead property without the consent, or “joinder”, of the non-owner spouse will be invalid. In addition, a spouse in title cannot borrow money and secure it by placing a mortgage or lien on the homestead property without the joinder of the other spouse.

Furthermore, if a spouse in title dies and is survived by a spouse and/or minor children, Florida’s homestead laws prevent the homestead property from being transferred to anyone but the spouse and minor children. This protects the surviving spouse and minor children from being left with nothing if the deceased spouse was the breadwinner.

This article presents only the most basic information concerning Florida’s homestead protection for spouses and minor children and is not meant to address all the nuances. There are many additional aspects and benefits concerning Florida’s homestead laws which a good Florida attorney can help you with.  For answers to your questions or help planning, contact Mackey Law Group.

By: T.R Smith, Esq.

Business Ownership and Divorce

Typically, in Florida divorce proceedings, the assets and liabilities owned by the Husband and Wife are subject to being either split via an agreement or by the Judge. However, what happens in a divorce when one of the parties owns a business to the exclusion of the other spouse, has an interest in a business, or the parties own a business together—does the business count as an asset? What about the debts of the business, who is responsible? What if the other spouse starts selling assets from the business quickly right as the divorce gets started? Can one spouse lock the other out of the business if they work together?

These are just a few of the questions that inevitably must be dealt with in a divorce proceeding where business ownership and interests are at issue. Some examples of the important steps that an experienced divorce lawyer should take to answer these questions involve: hiring an expert to value the business’s assets and debts, obtaining a court order to keep the business operating and earning money, and/or actually joining the business as a party to the divorce action, etc.

Mackey Law Group’s attorneys are not just blue-collar divorce attorneys—we are experienced business law litigators, with the skill and knowledge to navigate these complex waters and ensure you get what you deserve.

 

 

By: B. Kyle Stalnaker, Esq.

FLORIDA ALIMONY MODIFICATION VICTORY!

On May 5, 2017, Kyle Stalnaker of Mackey Law Group took on oral argument in front of the Florida Second District Court of Appeal concerning a firefighter’s appeal of the denial of his alimony modification request case. The subject of the appeal was requested downward alimony modification due to retirement.

In Florida a party requesting an alimony modification must show: (i) there has been a substantial change in circumstances; (ii) the change was not contemplated at the time of the final judgment of dissolution; and (iii) the change is sufficient, material, permanent, and involuntary.  Of particular importance to the appeal, was element (ii): whether the change (lower income due to retirement) being contemplated/not contemplated at the time of the final judgment of dissolution of marriage.

In the lower Court’s ruling, the retired firefighter had not been allowed to reduce his alimony payment. The change to the law obtained by Mackey Law Group, per a written opinion by the Florida Second District Court of Appeal, is that now that “the change in circumstances” cannot be contemplated at the time the marital settlement agreement is fully executed, as opposed to the “change” being contemplated at the time the final judgment is entered.

This opinion by our Florida Appellate Court is important because based on our crowded Court dockets, more and more cases have a lag period between the date of the settlement agreement and the date of the final judgment.  It was during this lag period that the firefighter’s change occurred, leading to his retirement (he failed the physical firefighter test due to a heart condition). The lower Court had ruled that because the change occurred before the Judgment was entered, the firefighter could not reduce his alimony payment.

The Second District stated in it’s opinion: “In cases involving an MSA (Marital Settlement Agreement), the effective date of the agreement establishes the date to which a trial Court should look in determining whether a substantial change in circumstances was contemplated by the parties.  This is especially so in cases like this one where there is an extended delay between execution of the MSA and the entry of the final judgment.  Were we to adopt (the other side’s) position, we would be effectively, and needlessly, foisting language upon the MSA that the contracting parties did not include, and which would change the terms of the parties’ agreement. We are loathe to do so.

The hiring of an experienced family law attorney is imperative. Only an experienced lawyer knows how to set up the necessary language and terms in a marital settlement agreement.  The terms of a divorce settlement agreement can make all the difference for years to come in a divorce.

-B. Kyle Stalnaker

Federal Court Jury Trial Victory!

On November 30, 2017, at the conclusion of three day jury trial, Pete Mackey and T.R. Smith procured a Federal Court jury verdict in favor of Mackey Law Group’s client. This ended over a year’s worth of nasty litigation concerning Mackey Law Group’s client, who is a minority shareholder in a defendant out-of-state corporation which contracts with the United States government.

Once again, Mackey Law Group’s lawyers defeated “the big boys”. The defendant corporation (which has revenues in excess of $14 million per year), was represented by two law firms: (i) a Washington D.C. 40+ year lawyer;  and (ii) a “Florida Legal Elite” lawyer from West Palm Beach who is a member of a large state-wide law firm. Mackey Law Group’s client initially sued in Bradenton, Florida State Court and the defendant corporation and its lawyers removed the case to Federal Court, obviously thinking that things would be tougher for Mackey Law Group’s lawyers in that forum. The defendant corporation also asserted four counter-claims which, not-surprisingly, were for amounts which exceeded what was being sought by Mackey Law Group’s minority-shareholder client.

The claim by Mackey Law Group’s client was for money owed for deferred officer salary under an oral contract. Of course, the defendant corporation was going to deny the existence of any such contract/agreement; so, Mackey Law Group’s lawyers also sued for what is called “unjust enrichment”. In Florida, one can sue on a contract claim and also, within the same lawsuit, sue for the same money due under a non-contract claim. Thus, if the court or jury finds there is no contract, the client can still prevail.

On the third day of trial, and before the case went to the jury for deliberations, Mackey Law Group’s lawyers also got all four of the defendant corporation’s counterclaims thrown-out, via the procurement of directed verdicts. Those rulings resulted in the only claims going to the jury being Mackey Law Group’s client’s claims for breach of contract and unjust enrichment. The jury awarded Mackey Law Group’s client $154,000 and now the firm’s client will also be able to get a judgment for his litigation costs as well.

Once again, this jury verdict goes to evidence that the little-guy can win in our legal system. Despite how big the opponent is or how many high-priced lawyers the opponent hires; if you have a good lawyer, you can prevail and attain justice. Mackey Law Group’s lawyers are courtroom veterans and successfully try cases in both State and Federal Court.

Is Your Neighbors New Landscaping Project Flooding Your House?

Did you know Florida is the flattest state in the U.S.? It is also one of the wettest states, receiving more rain than any other state during the wet summer months. Because of this, care must be taken when undertaking new construction to consider how new developments will impact the flow of water.

For example, if your neighbor decides to raise the elevation of his property, change the landscaping of his yard, or build an addition to his home, you may find yourself taking on more water than ever. This may lead to flooding, causing thousands of dollars in damage. What are your rights if you find yourself in this scenario?

Florida follows the “Reasonable Use Doctrine”. It states that a land owner may alter his land, even if it changes or increases the flow of surface water, so long as it is reasonable. Reasonableness is determined on a case by case basis, and the court may consider, the nature and importance of any improvements, whether or not the damage was reasonably foreseeable, the extent of damage compared to the value of any improvements. At this point, you may need to hire an attorney.

              Mackey Law Group has represented clients dealing with flooding caused by negligent neighbors, and are familiar with the law. Don’t let yourself get bullied accepting an unreasonable consequence from your neighbor’s construction.

By: Jorge Martinez, Esq.

Pre-Existing Injuries and Auto-Accidents

A pre-existing injury is defined as an injury that was incurred prior to an auto-accident or some other incident that causes a subsequent injury.  The result of the accident can either cause further damage to the pre-existing injury or create a new injury altogether.  So, what does this mean if you are in an automobile accident, get hurt, but have a pre-existing injury?

First, if the accident causes further injury to the pre-existing condition, you can recover damage for any exacerbation (increase in damage/pain) of the pre-existing condition.  Alternatively, if the accident causes a new injury that does not involve the pre-existing condition, then the pre-existing condition should not be relevant at all or to the amount of damage you are entitled to. Insurance companies thrive on attempting to limit the monetary damages an injured client can recover by claiming that the pre-existing condition/injuries existed before the accident.

An experienced personal injury attorney can make the difference in defeating the insurance company’s assertions that your injury is worthless because it was already there. Mackey Law Group knows how to get what a client is entitled to.

By: Kyle Stalnaker, Esq.

Cash, Gift, or Secret Loan?

Buying a home is for many, one of the most expensive purchases a family will ever make. Thankfully, many have friends and family who are willing to help finance this first purchase, usually for the down payment on the home. These types of funds are called “gift funds” and are not intended to be repaid. Gift funds allow young families the opportunity to purchase a home with the help of their family or in-laws.

Unfortunately, relationships can sour. What happens if those you once considered your friends and family demand their money back months or years down the line? What do you do now that your former friends or in-laws are suing you, claiming the money they gave was not a gift, but a loan meant to be paid back? You hire an attorney; don’t allow yourself to be threatened and bullied into paying back money you don’t owe.

Situations like this are all too familiar to us here at Mackey Law Group. They usually come up in divorce proceedings when one spouse’s in-laws want their “money back” from the son/daughter in-law. If you are being threatened by those you once trusted, hire a lawyer who will protect you and defend your rights.

By: Jorge Martinez, Esq

I’m the spouse who doesn’t work; how can I pay to get divorced?

Many clients (usually women who are raising/have raised the kids) do not have their own money and their spouse has excluded them from access to any marital funds/assets. So, the non-breadwinner spouse finds herself in a bad spot: How does she have the funds to get the divorce which she must have? How does she make sure that she has an equal chance?

Unless the non-breadwinner spouse has few thousand dollars, she will unfortunately not be able to start the divorce proceeding. But, if she has a credit card, some cash squirreled away, or she can borrow from a family member,   she can make the initial payment and get the divorce proceeding started. A good divorce lawyer will then not only get the case moving forward; but he/she will immediately make motions for temporary attorney’s fees and temporary spousal support. A good divorce lawyer will also get your motions immediately set for hearing so that you have access to the marital funds/assets and can afford represent herself. A side note: if the breadwinner spouse is transferring-out/hiding money and other marital assets, there are laws prohibiting such and good divorce lawyer can force the reversal of those transactions. In other words, there are many ways to stop the spouse with all the money from financially strangling the non-breadwinner spouse.

You do not have to feel trapped in a marriage. The court has the power to award temporary funds to the non-breadwinner spouse so that she is able to both support herself and pay for a good lawyer; she must be litigating on a level playing field.  The key is to hire a lawyer who not only knows the law; but, knows how to navigate your case quickly through the court’s docket and procure results. And don’t forget to ask: Do you actually try cases?

At Mackey Law Group, we have accomplished all of the above many times and we are experienced trial lawyers. Most importantly, once we get our clients on a level playing field with the opponent, we excel.  So, if you find yourself in such a “spot”, callus. We know how to level the playing field and how to handle bullies.

By: Drew Chesanek, Esq.

 

Florida’s Homestead Property Tax Exemption

Florida provides broad protection for homeowners via its homestead exemption laws.  There are three general types of homestead exemptions under Florida law:

  • Exemption from forced sale before and at death to meet the demands
  • of creditors;
  • Protection for spouses against the sale of the homestead without their joinder and protection for spouses and minor children against the devise of the homestead upon death in a will; and
  • The homestead tax exemption.

This post focuses on the basic tax exemption aspect of Florida’s homestead law.  If you have a permanent residence in Florida, you are likely entitled to the homestead property tax exemption. Your permanent residence is considered to be where you reside 6 months or more out of the year and you can only have ONE Homestead residence.

The real estate taxes that you pay annually are based on your county’s “assessed value” of your property and the homestead property tax exemption operates by reducing this assessed value. Currently eligible homeowners may receive a reduction of up to $50,000.00 off the assessed value of their homestead! Be cautious, however; you must take the necessary steps to classify your property as your homestead prior to March 1st of the year in which you will be taxed. You must also own the property on January 1st of that year. Do not assume your closing agent does this for you if you purchase a new residence.

Contact your local County Property Appraiser for more information on how to apply for homestead designation. Manatee County residents can follow this link for a 2018 homestead exemption packet:

http://www.manateepao.com/dnn/Portals/0/Forms/2018_HX_Packet.pdf

This article presents only the most basic information concerning the tax exemption, but there are many aspects and benefits concerning Florida’s homestead protection.  For more information, contact our office.

By: T.R. Smith, Esq.

Personal Injury: The Million Dollar Difference Could be Getting a Second Opinion

“Show me the money!” When a lawyer evaluates a personal injury case for an injured client a point of emphasis is always where the money will come from to compensate the injured party.  Often times, the source is an insurance policy.  However, what if the injury/accident, or even a death, occurred at work? In Florida, there is a limitation cap on the monetary amount that a person killed at work can obtain; it’s part of Florida’s worker’s compensation law.  An attorney may tell a client that this cap is all they can get for their loved ones death, or injury.  Or, you can get a second opinion from another lawyer…

That is exactly what a recent client of Mackey Law Group did when they came to us. The client’s family, whose mother died at a workplace accident, was told by numerous attorneys in the area that the most they (the survivors) could collect from their mother’s death was the worker’s compensation cap of $150,000.00.  Mackey Law Group was contacted for a “second opinion.”  Our lawyers found a way around that $150,000.00 limitation. Our second opinion made the difference for the grieving family, as Mackey Law Group procured a settlement in excess of $1.6 million dollars; far in excess of the $150,000 other attorneys had advised was all they could expect.

All attorneys are not created equal.  There are often times thinking outside of the box is required and your attorney should be considering all possible avenues to maximize recovery. Legal tools are available to get around certain limitations; another insurance policy that one attorney couldn’t find may be discovered; or other financial sources may exist to compensate an injured client or a family devastated from the loss of a parent, spouse, or child.

By: Kyle Stalnaker, Esq