Divorce as a Non-U.S. Citizen

Many non-U.S. citizens are hesitant to leave a spouse out of fear of the U.S. court system or concern for their residency status. You may be surprised to learn you don’t need to be a U.S. citizen to get divorced in the United States. Non-U.S. citizens are afforded the same resources and rights in divorce proceedings as U.S. citizens, including the ability to file for divorce and have an attorney represent them. However, a common question is how a divorce will affect their legal residency status.

Unless the marriage was fraudulent, or solely for the purposes of obtaining citizenship, the divorce will only have a small effect on the citizenship process. In most cases, the citizenship process may be delayed and additional proof may be required to show the marriage was legitimate. The proof required varies but factors include the length of the marriage and if any children were born of the marriage.

If you are considering divorce and are not sure how it will affect your residency status, contact an attorney at Mackey Law Group P.A. to help guide you through this process.

By: Jorge Martinez, Esq.

Translation Problems in the Law

Being able to communicate effectively with your attorney is central to the foundation of all attorney client relationships. Unfortunately, it may be difficult to obtain effective legal representation if you and your attorney don’t speak the same language. Many choose to rely on a third-party, such as a friend or relative to help translate.

The problem with this “solution” is two-fold. First, like the children’s game of telephone, key information gets lost and distorted along the way. In the legal arena where details matter, this can be fatal to one’s case. Second, involving a third-party may jeopardize the attorney client privilege, a crucial component of any case.

Here at Mackey Law Group P.A., we understand the importance of communicating directly with our clients. This is why we offer legal services in Spanish as well as English. If you are in need of an attorney who speaks Spanish I, Jorge Martinez, will assist you personally. No one should have to settle for an attorney they are unable to communicate with.

By: Jorge Martinez, Esq.

The Proof is in the Paperwork: How Trying to Evict a Tenant Without Proper Notice Can Damage a Landlord

If you are a landlord and a tenant has violated his lease; but, refuses to leave, you want them removed as quickly as possible to restart positive cash flow. This is an issue that unfortunately many landlords face, and unless the landlord is well-versed with the Landlord Tenant Act, it can be a bigger problem than anticipated.

Here is a typical scenario: A tenant who has failed to pay rent, has also moved-in a roommate and their 4 dogs. The infuriated landlord, decides to post a typical 3-day notice for non-payment of rent and files his own eviction action.  However, what the landlord fails to realize is that, although a 3-day notice is required for non-payment of rent, a 7-day notice to cure is required for the roommate and the 4 dogs.

On the eve of the final hearing, the slick tenant then pays the rent in cash, which the landlord puts in his pocket saying he’ll see his tenant in court because the landlord still wants the tenant removed due to the roommate and dogs. The result? The landlord’s eviction action will likely be dismissed for failure to post a 7-day notice, and for accepting the rental payment. This scenario requires the landlord to start over: post a 7-day notice, amend the eviction action, and attend a second hearing, thus elongating the entire process and costing more money.

Mackey Law Group is well versed in landlord-tenant actions and can effectively assist in either defending a wrongful eviction, or swiftly navigating the court system to evict a tenant the right way. If you are having an issue with a tenant or a landlord, consider calling Mackey Law Group today.

By: Drew Chesanek, Esq.

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.