“Is It Illegal…”

  By admin | December 23, 2011 - 5:02 pm | Uncategorized Comments Off

One of the questions lawyers get asked by acquaintances and potential clients is “Is it illegal to do…” That phrase is typically followed by a list of awful, terrible wrongs committed against the asker or a close friend.

Lawyers don’t use the word “illegal.” That word is so broad as to be meaningless, and the punishment for violating the law in question may not match up with what the asker’s perception of what the punishment for “illegal” actions should be. This post is intended to be a guide to various types of violations of law, and the remedies the victim can expect.

Crimes: Crimes occur when someone violates the criminal code. The offenses listed in those statutes are considered so bad that the state must prosecute them. Private parties may not prosecute a criminal action. Punishments vary depending on the crime, but may include probation, community service, fines, prison time, or the death penalty.

Torts: Torts are actions that may be prosecuted by a civil lawsuit. Frequently, torts overlap with crimes. The victim could be assaulted, the matter could be prosecuted criminally, and the victim could also sue for assault. The remedy here is usually money damages paid to the victim, but may also include injunctions or restraining orders requiring the party found liable to do or not do something.

Breach of contract: A breach of contract is generally considered not to be a tort unless the breaching party has done something in bad faith. Frequently, parties are unable to live up to their obligations due to factors not wholly under their control, and the law states that they should not be subject to punitive damages in such a situation. The remedy, therefore, is limited to the amount of damage suffered by the innocent party. That may include amount required to be paid by the contract, the expenses paid to fulfill the requirements of the contract, and sometimes lost profits. If the breaching party is found to have negotiated in bad faith, the judge may assign punitive damages. In rare cases, the breaching party may be ordered to fulfill the contract. This is known as “specific performance.”

Violations of administrative law: When a statute is passed, the executive branch has the power to enforce it. Frequently, statutes are very broad, and leave it to the executive’s discretion how to enforce the new rules. The executive branch then winds up making new rules determining how the statute will be enforced. These rules are administrative law. Violations of administrative law are typically punished by fines against the violators.

Violation of the Rules of Professional Conduct: Occupations determined to be “professional,” such as lawyers and doctors, are subject to licensing requirements. In order to maintain their licenses, professionals are required to abide by certain standards. Florida lawyers, for example, are required to abide by the Rules of Professional Conduct, which I have used above as a general name for all such rules governing professionals. Violations of these rules can be punished by removal of the license, suspension of the license, and a wide variety of lesser punishments.

Note that there are no damages given for violations of rules of professional conduct. If you are seeking damages, you should file a civil suit for malpractice. Be aware, though, that the standards for violations of the rules are different from the standards required to show malpractice.

Criminal contempt: Criminal contempt is given by a judge in a criminal case for disobedience to the court. It is designed as a punitive measure, and can lead to substantial jail time. Unlike civil contempt, the accused has a right to counsel. Criminal contempt may be punished by fines or jail time.

Civil contempt: Unlike criminal contempt, civil contempt is given in civil cases as a corrective measure. For example, someone who has not paid damages to the victim in a tort case may be held in jail until they pay. Because it is not considered a crime, the accused is generally not entitled to counsel.

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The Right to Counsel in Contempt Proceedings

  By admin | December 20, 2011 - 11:10 pm | Uncategorized Comments Off

In Gideon v. Wainwright, the Supreme Court of the United States stated that most criminal defendants who could not afford a lawyer were entitled to have one assigned to them. The exceptions were minor crimes and misdemeanors with limited money and jail time at stake.

Frequently in child support matters the paying party is subject to contempt motions for failure to pay. Although these are civil matters, the presiding judge may assign jail time for people found in civil contempt. In many cases, this jail time exceeds the level  required by Gideon that creates the right to counsel. So, do people in civil contempt proceedings have the right to counsel?

The answer in Florida is absolutely not. The case on point is Andrews v. Walton.

The Supreme Court has recently decided a case that was directly on point, although the answer they gave may not be practical or provide guidance to many parties. (The Court has long been known to decide cases in the least helpful matter possible). The case in question is Turner v. Rogers.

In Turner, the paying parent was the subject of a contempt motion by the child’s guardian. The paying parent alleged that he was unable to pay the required child support. He was sent to jail. On appeal, he claimed that he should be assigned a lawyer. The South Carolina Supreme Court disagreed, and the matter continued to the U.S. Supreme Court.

The U.S. Supreme Court stated that there was no right to counsel in civil contempt proceedings. However, if states did deny the paying party the right to counsel, they needed to provide other safeguards that protected the paying party’s rights. Such safeguards should include:

“(1) notice to the defendant that his “ability to pay” is a critical issue in the contempt proceeding; (2) the use of a form (or the equivalent) to elicit relevant financial information; (3) an opportunity at the hearing for the defendant to respond to statements and questions about his financial status, (e.g., those triggered by his responses on the form); and (4) an express finding by the court that the defendant has the ability to pay.”

The Supreme Court described the South Carolina clerk’s procedures as follows:

Each month the family court clerk reviews outstanding child support orders, identifies those in which the supporting parent has fallen more than five days behind, and sends
that parent an order to “show cause” why he should not be held in contempt. S. C. Rule Family Ct. 24 (2011). The “show cause” order and attached affidavit refer to the relevant child support order, identify the amount of the arrearage, and set a date for a court hearing.

Also, the judge had a form that had the following options:

“Defendant (was) (was not) gainfully employed and/or (had) (did not have) the ability to make these support payments when due.”

The judge did not fill out either of these options, thereby violating Rule 4 as set out by the Supreme Court above.

So, as we can see, the Supreme Court has not really solved the problem. Most states, in theory, already comply with the rules the Court has set forth. The problem is not the rules, but the failure of judges and clerks to comply with them. The court did eventually rule in favor of Turner, but there are many Turners out there who will not have pro bono appellate counsel capable of making a good argument in front of the Supreme Court.

As a glimmer of hope, the Court made no ruling on proceedings where the state was one of the parties. So, in Florida if the paying party is the subject of a contempt ruling by the Department of Revenue, they may have the right to counsel- if they are willing to litigate that issue all the way to the U.S. Supreme Court, since Andrews v. Walton prevents any Florida court prevents relief in the state. Since these matters tend not to exceed a few thousand dollars, it is unlikely that anyone will do that anytime soon.

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Grandparent visitation rights in Florida

  By admin | December 16, 2011 - 12:12 am | Uncategorized Leave a comment

The rules for grandparent visitation in Florida are covered under Florida Statute 752. Grandparents are entitled to visitation if:

(a) The marriage of the parents of the child has been dissolved;
(b) A parent of the child has deserted the child; or
(c) The minor child was born out of wedlock and not later determined to be a child born within wedlock as provided in s. 742.091.

Interestingly, grandparents of children who whose parents are not divorced, have not abandoned their child, or have not been born out of wedlock have no right to visitation. Additionally, for a court to rule in favor of grandparent visitation, the judge must find visitation to be in the best interest of the child. There is a long list of statutory factors that the court considers when contemplating the best interest of the child in Chapter 752, but it essentially comes down to the positive effects the grandparent will have on the child’s life.

Like most of family law, families involved in a grandparent visitation dispute are required to go through mediation, if possible, before going to court.

Adoption by a stepfather does not terminate the grandparents’ visitation rights unless a court decides that is in the best interest of the child. However, adoption by a biologically unrelated party may end the grandparents’ visitation rights.

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Social Media and Family Law Proceedings

  By admin | December 9, 2011 - 4:27 pm | Uncategorized Comments Off

Social media sites are a part of the Internet that the law is still struggling to adapt to in many respects. The law is generally conservative and slow-moving, and will change only when an action is brought in court or a legislature or regulator decides to change a rule.  Parties in family law, and for that matter any area of law, would be well advised to treat social media with caution.

Recently, a Connecticut judge ordered a divorcing couple to turn over passwords to Facebook and dating websites to the court and to each other. Both parties had made clear their intent to use the information posted on such sites against each other. If you have profiles on social media websites, and you are involved in a family law proceeding, here are some rules to follow.

1. Never post any private information on the site. Most people on Facebook have hundreds of friends. Most have their privacy settings at a level where their profiles can be viewed by anyone. There will probably not be a reasonable expectation of privacy for something that can be viewed by hundreds. Emails and texts may have a higher expectation of privacy, but are still discoverable. In general it is a bad idea to put negative information in writtten form.

2. Once a court proceeding is in progress, do not delete anything. In the article linked above, the wife asked her friend to delete messages that might have been troublesome. That was the reason for the extreme remedy imposed by the judge. Deleting information from an online profile can be considered destruction of evidence, which will almost certainly not go well you if you are caught. Everyone has faults and problems, and judges know that. Someone who is too perfect is as suspicious as someone who makes their faults plain.

3. Do not use an social media as a means to contact someone that has a restraining order on you, or vice versa. No contact means no contact- no Facebook, instant messaging, emails, texts, phone calls, letters, or smoke signals. If you need to send a message, have your attorney do it, go through the court, or use a means of contact expressly permitted in your order. If you have a restraining order against you, contacting the other party may land you in jail. If you are the protected party, contacting the other side may void the restraining order, and you open yourself to continued harassment.

4. Posting disparaging messages about your ex is always a bad idea, but especially so if you have children. Parents, even separated and divorced parents, have an obligation to promote their children’s love and affection for the other parent. This means allowing the child to communicate and visit with the other parent, but it also means not talking the other parent down in front of the children. Remember that these sorts of sites typically keep messages forever, so your children can discover what you really think of your ex even years later.

I don’t think people need to put their social media profiles into hibernation during legal proceedings, although it might not be a bad idea. But it is not good to think that social media can be an outlet for venting or getting back at your ex. That is something best saved for conversations with your friends and bartenders.

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New Alimony Legislation Could Benefit Payor Spouses

  By admin | November 23, 2011 - 6:35 pm | Uncategorized 1 Comment

In alimony, the former spouse who pays the alimony is known as the “payor” and the receiving party is the “payee.” Legislation has been introduced in both houses that would benefit the payor spouse.

As of right now, alimony is granted when the payee has need for it, and the payor has the ability to pay. The payee is considered to have need when they are unable to achieve the standard of living in the marriage on their own.

The new bill eliminates the standard of living as a consideration. The bill also proposes that alimony payments be limited to 20 percent of the payor’s monthly net income, averaged over the previous 3 years.

Adultery, which courts could previously consider, is eliminated as a consideration. Obviously, this could affect both spouses.

Alimony payments would be taxable for the payee and deductible for the payor. Both of these are changes from the previous status of the payments and non-taxable and non-deductible. This part of the bill presents some problems as it dictates policy to the IRS, a federal agency.

There would no longer be any permanent alimony. All alimony would be set at a certain time limit.

Alimony has also usually been ended when the payee has been found to be in another supportive relationship. The burden of proof for showing a supportive relationship would become much lighter. A supportive relationship is now assumed to occur when two people live together for more than three months.

The law would also be retroactive, at least as far as the time limits on alimony are concerned. Payors who were married for more than seven years and have alimony terms that exceed those dictated by the act may file to have their payments eliminatedtwo years after the effective date of the act. Payors who have reached the federal retirement age may file to have their payments eliminated one year after the effective date of the act.

It’s unclear at this point whether either of the bills filed will pass. However, it’s definitely worth keeping an eye on if you are involved on either end of alimony payments.

Obesity and Child Custody

  By admin | November 22, 2011 - 4:28 am | Uncategorized Comments Off

As you know if you read any news, the average human being in the U.S. is getting supersized. This isn’t quite as big an issue in Florida as it is in the rest of the Southeast, but it is undeniable that the average human is overweight to a degree that would have been considered absurd a few decades ago.

Childhood obesity has been increasingly impacting custody decisions for a few years now. In South Carolina, the agency for child welfare removed a 555-pound child from his parents’ home. The mother was apparently charged criminally and had her parental rights challenged. In divorce and custody cases, lawyers across the country are seeing child obesity coming up more and more, with each parent claiming that the child will be safer with them.

There is no case or statute in Florida that directly addresses this issue. The standard used by judges to determine parenting plans is “the best interests of the child.” There are a number of factors listed in the statute that further clarify this, and of course there is enough wiggle room that a lot of ink has been wasted on writing case law clarifying the subject. The judge has the option to consider all factors listed in the statute or only some. This is something that parties unrepresented by a lawyer should keep in mind- there is rarely anything in parenting issues that is a “smoking gun” automatic win.

The only case that comes close to addressing the issue is Bertram v. Bertram, 334 So.2d 70. The court held there that obesity counseling was enough of an issue that the father could be forced to pay for it under the parties’ divorce decree. However, the “best interest of the child” standard was not explicitly used. The court merely interpreted the divorce judgment as requiring the father to pay.

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New Forms from the Florida Supreme Court

  By admin | November 20, 2011 - 2:19 am | Uncategorized Comments Off

The Florida Supreme Court has added some new items to the list of suggested forms on the flcourts.org website. Of most interest is the form for constructive service.

Constructive service is used when the opposing party can not be contacted. Many spouses or parents tend to run off when they see trouble in their marriage or parenting arrangements, thinking that this will allow them to avoid court proceedings. However, if a diligent search is performed and there is still no contact information found, the unavailable party can be constructively served by mailing the form, along with whatever filing is submitted to the court, to the last known address.

First, however, you must submit an affidavit of diligent search to the court that is hearing your case. There are new forms for these affidavits as well. Note that you are not required to use all of the means listed in the affidavit form, and that you are not prevented from using additional means. The form is a guideline, not a set of requirements.

The new forms will be official on January 1st, 2012 and will be published at flcourts.org. You can preview them here.

Preparation for Divorce

  By admin | November 18, 2011 - 5:01 pm | Uncategorized 1 Comment

If you are considering getting a divorce, there are a lot of things that you can do that will make things easier and cheaper for you and your attorney. Here’s a short list.

Consider counseling. One of the requirements for divorce in Florida is that the marriage be “irretrievably broken.” Most judges will not make a big fuss about this, but some will insist that borderline couples attend counseling before allowing the case to proceed. If the couple has worked with a qualified counselor with no success, that eliminates any objection the judge may have on these grounds.

Get the finances together. In divorce, each party is required to disclose their financial situation to the other. All assets and liabilities need to be listed. Tax returns, deeds, and titles all come out. This is probably the biggest single item that most clients will need to do in their cases, and it can be done before speaking to an attorney, although your attorney may have some suggestions on how to handle assets in the future. To get a better idea of what is required, look at the standard Florida financial affidavit form and the mandatory disclosure rules. Financial affidavits are under 12.902 here and the mandatory disclosure rules are under 12.285 here.

Take the other side’s point of view. Think about what your spouse will say in the divorce to get what they want. Even if you expect them to lie, think about the arguments that they will make. This will allow you and your attorney to research and prepare appropriate responses. It will also keep you out of trouble by making you consider how your actions would appear in court.

After the Affair

  By admin | November 1, 2011 - 7:16 pm | Uncategorized 1 Comment

I posted yesterday about the impact of overly aggressive litigation. This comes up often in family law where one party has had an affair. The wronged party comes to the attorney full of outrage and how-dare-they, and demands that the attorney pursue every remedy in the book. Alimony. Increased child support. Compensation in the form of extra property. Civil suits for alienation of affection.

But what is realistic? Well, an increase in alimony is possible. It is within the court’s discretion to decide whether to alter alimony due to an affair. It is especially likely if the cheating spouse dissipated (wasted) marital assets on the affair.

Child support decisions are largely formulaic and controlled by statute. There is a proceeding to increase child support, but it is dependent on the needs of the child. Child support in Florida is the child’s property, with the receiving parent acting merely as a caretaker. Therefore, an affair would likely not be relevant.

As in alimony, a court may consider an affair when dividing marital property. “May” is the key word- the court has no obligation to consider it or not.

Florida no longer has an alienation of affection suit for extramarital affairs. Remedies are solely limited to divorce actions.

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Aggression

  By admin | November 1, 2011 - 2:27 am | Uncategorized 1 Comment

Invariably, clients seek out attorneys who will fight for them and advocate for their cause, as they should. I know of no one who seeks out a weak, spineless lawyer. I also know of no lawyers who advertise their services as such.

But problems occur when clients confuse aggression with stupidity and obsession. If you’re a criminal defendant, trying to call your prosecutor as a hostile witness is generally pretty stupid. If you’re a family law client, trying to fight over the tupperware is very stupid.

It’s stupid for a number of reasons. If you lose, you’re guaranteed to annoy your opposing counsel and opposing party. Kiss any dreams of a beneficial settlement or plea goodbye. You will have to struggle for months, spending potentially thousands of dollars and unknown but certainly extensive amounts of time on your case. Keep in mind that you may not get the desired outcome at the end regardless.

You will also annoy the judge. Judges generally hate having to deal with frivolous motions that have little chance of success. If you are in non-jury procedure, you just angered the one person who has the most power over your case. Don’t do this, and don’t force your lawyer to do this.

There’s also the question of billing. If you’re on an hourly billing schedule, you will be paying your attorney to waste his time and your money. He may be glad to do so, but that doesn’t mean it’s a good idea.

If you are in doubt as to whether to file a motion, either as a pro se party or represented, speak with an attorney and let their objective opinions guide you.

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