Who will get Custody of my Kids?

When facing divorce, many parents assume the mother will automatically be awarded custody of the children with the father getting limited visitation. Florida courts have done away with this presumption and will now divide time between parents in the child’s best interest. The courts no longer have a presumption as to which parent will automatically get the most time, but look at the facts of each case individually.

Without an attorney, it can be easy for a mother to incorrectly assume she will automatically get sole custody simply for being the mother. On the other side, a father may think it is useless to ask for more time since it is already a done deal that the mother will win custody of their children, not realizing that he could have fought for more.

Child time sharing is but one of the issues a divorce brings, and hiring an attorney to represent you through this process is the best thing you can do for you and your children. Mackey Law Group has represented many parents in divorce proceedings and we can help you through yours.

Jorge Martinez, Esq.

 

 

LAWYER LIVES MATTER: WHY YOU NEED A LAWYER FOR YOUR PERSONAL INJURY CASE

Everyone gets hurt.  It’s not an “if” but a “when”.  Serious injuries can result in enormous medical bills, lost time/wages from work, permanent pain and suffering, and even death.  If someone, something, or someplace is responsible for the injury, no one should just surrender to the financial impact the injury can and will have on their life. Whoever’s responsible or “liable” should take care of it.

Everyone has heard of the McDonald’s “hot coffee” case, but most don’t actually know the real story.  The truth is McDonalds intentionally super-heated their coffee to the point that the spill on the woman required skin grafts.  The woman originally only asked McDonalds pay her hospital bills; McDonald’s refused.  The woman did the smart thing next and hired legal counsel—the result: McDonalds paid hundreds of thousands of dollars.

Click this link to watch this great video explaining the case: https://www.facebook.com/CollegeHumor/videos/10154282893897807/

Mackey Law Group is ready to aggressively take on those responsible for your injuries.

Call us today so we can help.

Abandonment Myth: Moving Out of the Marital Home and Divorce

There is a common misconception that if one spouse moves out of the marital home prior to or during a divorce proceeding that they have “abandoned” the home and are no longer entitled to any of its value in the divorce.  In Florida family law courts this simply is not the case.

Regardless of whether one spouse leaves the home voluntarily or involuntarily, they are still Abandonmententitled to a portion of the equity (or debt) of that residence as part of the divorce.  Credits may be given to the remaining spouse or either spouse who continues to pay the mortgage when dividing the equity, but this still does not lend itself to any issue as to whether abandonment has occurred or whether one party is relinquishing a right to an interest in the property by moving out.

There are, however, many other issues to consider when one spouse leaves the home, and Mackey Law Group is willing and ready provide advice if you are contemplating a divorce.

By: B. Kyle Stalnaker, Esq.

Wills and Trusts: The Administration of an Estate

wills trusts

The death of a spouse is a difficult time in our lives. There are many things that must be done, including the administration of the decedent’s estate. This must be done regardless of whether the decedent had a will or not. Hiring an attorney to guide the probate process is essential. In fact, an attorney can handle most aspects of the probate process, allowing the personal representative (usually you), to focus on other important things.

There are different types of probate administration. This is the process by which a person’s estate is resolved. A qualified attorney will be able to determine which type is right for the decedent’s estate based on the estate’s value considering certain available exemptions. The exemptions include homestead property, exempt personal property up to a certain amount, and a statutory allowance for the surviving spouse (what the survivor automatically gets).

The standard probate administration is known as formal administration. Formal administration is the most lengthy probate process and is required for estates in excess of $75,000.00. This type of administration typically takes 5 or 6 months to complete. However, creditor claims (people the decedent owed money to) or will contests can lengthen this time period.

For estates worth less than $75,000.00, summary administration is available. Summary administration is a much quicker process and can typically be accomplished in 60 days or less. Many of the requirements of a formal administration are not required in a summary proceeding.

The administration of an estate can be tricky. There are requirements that must be followed throughout the process. Failure to follow the law could result in financial liability for the personal representative or the beneficiaries. However, a lawyer will be able to efficiently and effectively get the job done. Always contact an attorney for guidance in the probate process. What you will save in time and money will more than make it worthwhile to have an attorney’s assistance.

By: T.R. Smith, Esq.

Peter Mackey, Esq.

Board Certified Civil Trial Attorneys: Are They All Experts?

Board Certification is admirable; it is evidence of experience and likeability in one’s local Bar. But, don’t be fooled by window-dressing labels when selecting your trial attorney. I have found the vast majority of such “trial attorneys” are ineffective and unjustifiably arrogant. Recently, there has even been a court decision which allowed a non-certified trial attorney, who had certain qualifications, to call himself an expert. This was being opposed by; you guessed it, Board Certified attorneys.

When selecting a trial attorney, you should be hyper-critical. This is a do or die choice for you when faced with a financially high-stakes situation. Ask your potential trial lawyer: (i) How many civil jury and bench trials have you first-chaired (many ex-state attorneys and public defenders use their criminal trials to qualify for civil certification); (ii) What is his/her track record? Have they won the vast majority of their civil cases for their clients?; and (iii) Will they provide you with references? A successful civil trial attorney will have many satisfied clients all of whom should welcome the opportunity comment of their trial counsel. You want a winner.

Why do I write this blog? Am I just a disgruntled civil trial attorney who is not Board-Certified? Actually I was Board-Certified in Business Litigation by The Florida Bar.  I was in the very first class of such lawyers in Florida in 1996…..I was in my early 30’s. And there were less than 25 of us in the whole state. The standards back then were vastly more stringent than they are today….many more civil bench and jury trials were required. Now things are watered-down. Most “trial attorneys” now push clients to mediation and settle cases, never setting foot in the trial forum. The days of real trial attorneys seem to be waning. My Business Litigation certification was not renewed because some lawyer anonymously sent in a negative “peer review”; being liked by the other attorneys is actually one of the criteria for recertification. I was neither allowed to know who my accuser was nor was I able to question the review. I was never even allowed to know the content of the peer review. I was simply not re-certified because some lawyer, who I had probably beat in a case, said that I was not “nice and cordial”.

I hope that this illuminates one of the problems you will be faced with in selecting trial counsel: you will be bombarded with labels of Board Certified and those attorneys will try to convince you that only they are “experts”.  In my opinion, those certifications are nothing more than the result of a beauty contest. Do you really want your trial attorney to be the most popular attorney with his adversaries? Do you want your gladiator to be liked by the others for scratching the backs of opposing counsel?

As my old boss said, It’s fairly simple: Who did you “like” better as a kid, the one you could push around on the playground or the one who did the pushing? Now fast forward to being in a situation where you need skilled and aggressive representation: do you want the “liked” kid who is now an attorney and has a bunch of certifications or do you want the seasoned trial attorney, the expert who all the other lawyers have heard about, the one they fear?

Prosecuting or defending your rights in a civil lawsuit is a win and lose game; don’t let anyone tell you otherwise. I love to come up against Board Certified Civil Trial Attorneys; most of the time, they’re like lambs going into the lion’s den.

By: Peter J. Mackey, Esq.

Splitting-Up Property

People, even husbands, wives, and relatives, often own property with others; whether it is a home or a vehicle. And it is typical that one owner pays more of the expenses than the other or other disagreements arise between the owners. When two property owners cannot agree, this can create a stalemate where they no longer want to continue in co-ownership. If you find yourself in this situation, Florida law provides you withhow-a-property-can-be-partitioned-between-co-owners a way out: force the sale of the property and receive your portion of the sale proceeds. This is a legal remedy known as partition.

To commence a partition action, you must file a complaint, requesting a partition of the property. The lawsuit must be filed in the county where the property is located. Each person with an interest in the property must be included as a party to the lawsuit and the complaint must identify certain information about the parties and the property involved.

Each owner has an opportunity to make claims for expenses that he or she has incurred (contribution claims). Each co-owner is responsible for their portion of the property related expenses. For example, if two owners each own 50% of the property, then each party is responsible one-half of the expenses. Therefore, if one of the co-owners pays more than 50% of the expenses, he or she will receive a credit against the other co-owners portion of the sale proceeds. The reimbursable expenses include mortgage payments, insurance, taxes and necessary repairs.

Typically, the court will determine the rights of the parties and decide how it is best to divide up the property. If the property cannot be physically divided amongst the parties, the court will require that the property be sold and the proceeds divided between the parties. Keep in mind though that mortgages/liens and attorney’s fees and costs will be paid from the sale proceeds prior to distribution to the owners/sellers. This is a benefit to the petitioner because it essentially splits the attorney’s fees and costs between the former co-owners.

We have handled many partition cases in land and property ownership, business breakups and divorce proceedings. Call Mackey Law Group for this and all your real property needs.

By: Catherine Mackey, Esq.

T.R. Smith, Esq.

WHAT’S IN YOUR POLICY?

Auto Accident with an Uninsured Driver

A motor vehicle accident is always a stressful event. To make matters worse, even if the accident is someone else’s fault, that other driver may have little to no insurance to help you recover financially. If you planned right, your own insurance policy will be your saving grace; this portion of your auto policy known as Uninsured/Undersigned Motorist Coverage (“UM” Coverage) essentially details what your maximum recovery will be in such a situation.

Every Florida automobile insurance policy allows their insured to select UM Coverage, along with many options to decrease or increase the amount of the UM Coverage. You can also elect to “stack” your coverage with other vehicles on the same policy, further increasing the maximum payout to you for any injuries or loss.insurance policy

So, take the time to understand your auto insurance policy and consider electing UM Coverage if you have not already done so. In the unfortunate event you are involved in an auto or motorcycle accident with an uninsured or underinsured motorist, Mackey Law Group’s experienced personal injury attorneys will be able to navigate your insurance documents and determine the maximum monetary award you are entitled to receive.

 

By: Catherine Mackey, Esq.

B. Kyle Stalnaker, Esq.

YOU NEED TO HIRE A LAWYER IF YOU ARE BUYING OR SELLING REAL ESTATE

Whether you are Buying or Selling real estate in Florida, you should hire an attorney to represent you.  In the standard Florida real estate contract, the party paying for title insuranceHire a Lawyer at Closing services has the right to select the title agent and closing agent. Did you know hiring an attorney to issue title insurance and provide closing services normally costs no more than hiring a non-lawyer title company?  But, a title company, like a real estate agent, is prohibited from giving you legal advice and is not trained or skilled at even recognizing problematic legal issues.   If given the choice, why not hire an attorney who is working for you, to protect your interests?

If you’re really smart, you will also want an attorney involved in the negotiation stages of the deal before the contract is signed by you. Real estate contracts contain many complex provisions that can be negotiated and which may have a real impact on you. An experienced real estate attorney who is looking out for your interests can make sure the contract is drafted with terms most favorable to you. This is why we always recommend hiring an attorney before signing a contract or making an offer.  After that, it may be too late to affect the deal.

Although you may not think so, there are many legal issues which surface even during the simplest of closings. Just some of them are:

  • Have you protected yourself and your personal assets? If you are buying rental property, you should seriously consider forming a legal entity, like an LLC or a corporation, to make the purchase. Holding the property in a legal entity can limit your personal exposure, if done correctly.
  • Has the property been in foreclosure? This is especially common now in Florida and Manatee County and we have seen many title and other problems with properties having a foreclosure history. Having an experienced real estate attorney review the prior foreclosure will ensure that you are receiving good title.
  • Are there possible encroachments of a fence or driveway? If so, that could impact your ability to resell the property in the future or could cost you a lot of money to resolve.
  • Are there any hidden recorded exceptions that will affect how you use the property? As attorneys, we have are able to review the documents that affect your property and determine if there are any provisions that may be detrimental to you or your use of the property.
  • Does the seller or their tenant want to stay in the possession of the property after closing? If someone remains in the property after closing, they become your tenant and are protected by Florida’s tenant-friendly landlord/tenant laws. This is something that must be addressed in the purchase and sale contract before you sign it.

Mackey Law Group, P.A. has been representing Buyers and Sellers in Commercial and Residential closings from the simplest to the most complex transactions and from contract to closing.   We have been a title insurance agent with Attorneys’ Title Fund Services, Florida’s largest attorney agent title insurance company, for 25 years. Contact us when you are even thinking of Buying or Selling property and we’ll make sure your entire experience is a smooth one.

By: Catherine Mackey, Esq.

T.R. Smith, Esq.

THINKING OF DIVORCE? DON’T COMMINGLE YOUR ASSETS!

Don't Commingle AssetsIf you are thinking you will be involved in a divorce action soon, or if you are currently involved in a divorce, you want to carefully govern yourself so you’re not surprised by unwanted consequences. For instance you may want to avoid commingling your assets.

In Florida, the courts look at all of your assets like a snapshot the moment a petition for dissolution of marriage is filed. Although there are exceptions, the general rule is that everything that has been accumulated during the marriage is split evenly between the spouses. Normally, assets obtained before the marriage are not marital assets or funds subject to sharing. Likewise, assets obtained by either party after the petition for dissolution of marriage is filed may also not be subject to sharing.

Many people are surprised to find out that if they take their separate assets/funds and commingle them with marital assets or in joint accounts; they may no longer able to keep what is theirs. In essence, those assets lose their character as a non-marital asset. What you do with your separate property before and during the marriage and what you do after the petition is filed can impact how much of your separate assets you get to keep.

This is true even in short term marriages. In a recent Manatee County divorce case, a medical doctor was married for less than 90 days prior to filing for dissolution of marriage. The doctor brought a bank account with a substantial amount of money in it, into the marriage. After the petition was filed, he allowed his new wife to continue to deposit her small paychecks into that account and let her have a debit card for that account to pay household expenses. At the final hearing the court ruled that ALL of the money in the doctor’s account had become marital funds that had to be shared equally. In doing so, the court cited the rule that when one spouse deposits funds into a joint account, where they are commingled with other funds so as to become untraceable, a presumption is created that the spouse made a gift to the other spouse of an undivided one-half interest in the funds.

So beware and behave smartly if divorce is on your horizon. You should seek the counsel of an experienced marital and family law attorney if you believe you are heading for divorce. Mackey Law Group, P.A. has been representing people in divorces and many various family law matters successfully in Bradenton and Manatee and Sarasota counties for years. Give us a call if you’re wondering how you should plan. All consultations are confidential.

By:      Catherine Mackey

Drew Chesanek