Florida Collaborative Divorce – Alternatives to Costly Divorce Litigation

Posted on May 19, 2011 by Joshua W. Westcott

Divorce can be expensive, particular if child custody and support issues are involved. However, there are alternatives that can help to limit the legal expenses of divorce, and ultimately lead to a much more productive post divorce environment for the parties and the children involved.

When most people think of the traditional divorce, they tend to focus on battling the issues in court, leading to a decision by the judge regarding assets, custody, and support. What most fail to understand is how many divorce cases are settled in post filing mediation, and never reach trial before the court. What becomes most problematic post filing, is the triggering of procedural timelines regarding discovery, mediation, and other issues, that can dramatically increase the amount of legal work and preparation that must be done to properly prepare the case. Upon the filing and service of the divorce papers, it’s understood by many lawyers that divorce cases are likely to settle over time, but it does not change the fact that each case should still be prepared for trial in the event that settlements fail.

Aside from the increased legal cost in filing a traditional adversarial divorce is the emotional toll divorce has on the parties and children involved. Once papers have been served, communication breaks down in many instances, delaying negotiations, and damaging an already fragile family dynamic. Additionally, no matter the method used in finalizing a divorce, keeping an open mind and amicable attitude towards cooperation with the opposing spouse is a must if children are involved, or else the parties can look forward to future legal battles to come in the form of modification petitions. keeping all of this in mind, the use of a collaborative divorce can save time, money, and spare the spouses of the emotional toll of an extended litigation.

How a Collaborative Divorce Works

Instead of filing first and figuring on the settlement later, the idea of collaborative divorce is to put settlement first.  Before the first shots are fired by filing the pleading, the parties will sit down at the same table and discuss the issues of assets, debts, custody, support, etc.  This can be done with or without the help of legal counsel, but having lawyers to represent both sides in a collaborative divorce setting will help in two regards.

First, if both parties bring a lawyer to the table with them, they can be sure that they fully understand their legal rights and responsibilities.  Settlements can often break down when one side feels that it may be taken advantage of.  The use of counsel will help to equal the playing field.

Also, the use of lawyers can help to move the settlement along.  It will give the parties a chance to bring an objective participant to the table in negotiations, which can prove helpful in highly emotional situations.

The Money Issue

While collaborative divorce will not be cheap when lawyers are involved on both sides, it can certainly save you money in the long run.  While avoiding litigation in and of itself will yield a substantial cost savings in most cases, it is the long term effect of having a amicable agreement in place that will surly pay dividends.  By sitting down and spending some serious time in the beginning focusing on what will benefit both parties, it is more likely that you will avoid future litigation due to your agreement failing to work out long term.  Cooperation is truly the key to a “successful” divorce with children.

Before pulling the trigger on a traditional divorce, you should always give at least some consideration to going the collaborative route.  It’s true that there are certain cases were this technique simply won’t work, but for most it’s worth a look.

Joshua W. Westcott

Lakeland Divorce Attorney

 

Posted in Divorce, Family Law | Leave a comment

Foreclosure in Florida – Turning a Delinquent Debt Into a Profit

Posted on April 30, 2011 by Joshua W. Westcott

I was slightly amused today by the following article published in the Lakeland Ledger.  It appears that JP Morgan, Chase is the first bank to finally come to the realization of just how hopeless the foreclosure process is for the owner of the mortgage note.  While the primary concern of most clients in foreclosure is the possibility of not only losing their home, but having a deficiency judgment entered against them as well, it would appear that any lingering fear is soon to evaporate.

Since banks are in the business of cash liquidity, and not real estate holdings, they seem to finally be feeling the pain of the holding period required to move a home out of their portfolio.  Since most homes in foreclosure are underwater, with more owed than the resulting judgment, it is common that the mortgage holder acquires the home at auction instead of cold hard cash.  Problem is, there’s a transactional cost to holding real estate while waiting for a potential buyer.  And with stringent credit requirements and a downtrodden economy, buyers are at a premium.

Not only are these real estate assets essentially worthless to the bank as a matter of investment, but the banks are finding themselves stuck with the cost of maintenance, insurances, and taxes while waiting to sell.

So what’s the solution?  Offer the homeowners in default a boatload of cash to find a buyer in a short sell.

According to the article in the Ledger, JP Morgan is offering up to $35,000 in cash incentives to homeowners that successfully pursue the short sale option.  While I’m sure that the banks have crunched all the numbers to figure how much this maneuver will actually save them in carry and transaction cost, the concept comes off as something from another universe.

I can imaging many situations where not only did the home buyer overspend and lose a fortune in equity, but now will reap a profit without bearing any of the financial risk.

I’m curious to see how this plays out.  It seems like a good idea in theory to keep the bank uninvolved with the transaction and carry of the house to find a buyer.  But realistically, if the banks can’t find a buyer, what are the chances for the homeowner?

Joshua W. Westcott
Attorney

Joshua W. Westcott, P.A.

Posted in Civil Litigation, Foreclosure | Leave a comment

Guardianship in Florida – Issues in Guardianship of Incapacitated Persons

Posted on April 29, 2011 by Joshua W. Westcott

There are many situations where a person may suffer from some degree of incapacitation.  It is particularly prevalent in older people who begin to suffer from dementia and Alzheimer’s disease.  No matter the situation, when a person loses his capacity, he will likely need assistance in making medical decisions and managing assets.  If there has not been proper estate planning done prior to the individual’s incapacitation, the establishment of a guardianship may be necessary.

Florida Statutes, Chapter 744, deals with Guardianship in general, and contains the provisions relating to aplications for guardianship, the rights of the incopacitated ward, and the responsibilities of the guardian.

In Florida, any person residing in the state and over the age of 18, who is not otherwise disqualified by statute, may serve as the guardian of a person adjudged to be incompetent by the court.  Individuals that reside outside of Florida must meet certain additional requirements under the statute.

To start the process for guardianship, the person seeking to be appointed as the guardian will generally file a petition to determine if, and to what extent, the proposed ward is incapacitated.  Generally, a petition to be appointed as guardian will be filed simultaneously, and can be ruled upon by the court if the ward is established to be incapacitated.

To determine the extent of the ward’s incapacity, the court will appoint a series of experts to interview the ward, and report their findings back to the court.  These reports will detail, among other issues, the level of incapacitation of the ward, and whether the expert believes the ward has the ability to maintain control over any aspects of medical care, personal care, or financial management.  Based upon the reports, a proposed guardian may seek to be apointed to manage the ward’s medical and personal needs, the ward’s financial needs, or both.

In addition to the appointment of experts to interview and diagnose the ward, the court will appoint an advocate on the ward’s behalf.  This advocate is generally an attorney and is commonly referred to as an “elisor.”  The elisor is there to ensure the rights of the proposed ward are protected during guardianship proceedings.

Assuming the court determines the ward to be incapacitated, and appoints a guardian, the guardian will be issued letters of guardianship.  The letters of guardianship are a court order that declares the guardian to have legal authority to act on the wards behalf.  If plenary, or full guardianship is not granted, the letters will limit the scope of authority the guardian may exercise.  For example, the guardian’s authority may be limited to only the management of the ward’s property.

Once appointed as a guardian, there are a number of responsibilities that the guardian will have.  As a preliminary matter, a guardian of the ward’s property will need to file an inventory with the court detailing the assets in the possession of the ward at the time of the appointment of the guardian.  The guardian will further be responsible to file an annual accounting of how the ward’s property is being used, invested, and spent.  The time for filing an accounting will depend on whether the court has ordered a fiscal year accounting, or left the accounting time frame under the default statutory provision.

Additionally, a guardian will need to file an annual guardianship plan with the court if the guardian has been appointed to mange the ward’s personal and medical needs.  This plan will explain to the court what medical treatment the ward has received, the current condition of the ward, what the living situation is for the ward, and how these and other issues may change in the future.

It is important to comply with all of the applicable legal provisions once a guardianship is undertaken.  The responsibilities of the guardian will not end until the guardian is removed, or in the event the ward dies.  When in doubt, seek the advise of legal counsel in the issue of obtaining a guardianship, particularly if you are unfamiliar with the process and potential responsibilities.

Joshua W. Westcott
Attorney
Joshua W. Westcott, P.A.
Posted in Guardianship, Probate | Leave a comment

Divorce in Florida – A Road Map to Properly Financing Your Divorce

Posted on April 24, 2011 by Joshua W. Westcott

Getting a divorce in Florida can be expensive, especially if the parties choose to litigate the case to trial.  The time and expense of litigation in a divorce will depend on a number of circumstances, including the duration of marriage, the amount of assets involved, and the parties demeanor toward one another.

I tend to find that when most people set out to get a divorce, the chief concern becomes the cost of hiring an attorney.  However, the cost aspect of a divorce can include much more than attorney’s fees.  Before filing for divorce, you need to consider additional services that may be necessary to litigate the case.  Services can include the use of court reporter services, accountants, psychologist, and other experts.  In general, most litigants fail to come up with a financial plan to properly fund the divorce proceedings, and simply put the cost issue on the back burner until it becomes a problem.

The first thing that you should think about if you are filing, or become involved in a divorce, is to come up with a road map of the potential costs, and how you plan to pay.  Because the cost can be significant, many litigants seek help and advice from family and friends.  If family will be helping with the cost, you should have a discussion about what the expectations are, so that you know for sure that you have access to funding.  Additionally, if you will be financing the cost by use of a consumer loan or credit cards, you should sit down and make a plan to determine what line of credit is available, and what you are prepared to spend.

Get an estimate from you attorney of what the potential attorney’s fees will be for the case.  Many attorneys bill hourly for their time.  Make sure to get a worst case scenario, so you know what to expect.  You should also have a frank discussion with your attorney about the additional third party costs mentioned above.  First, establish what your budget is, and then have a discussion about the most effective what to use the resources available.

To demonstrate the importance of proper money management in divorce litigation I will use two examples.  First, dealing with a long term marriage with no minor children, and then a case involving child custody.

If, for example, there is a long term marriage where a number of assets have been accumulated, there may be intense dispute over what assets are to be split, and how the split will be done.  To complicate the situation, assume that the opposing spouse has a closely held business interest.  Aside from allegations supporting unequal distribution of assets, there may be additional allegations that money has been mishandled, or hidden, prior to the divorce.  In an attempt to discover the money trail, you may need more than just basic paperwork.  To put a financial picture together, your attorney may suggest the use of a forensic accountant.  Now in addition to the attorney’s fees and the retainer that you have already paid, you will now incur a second retainer to the accountant.

Additionally, depositions may become necessary to discover the relevant information that you need for the case.  You will need to pay the hourly fee to the court reporter, and pay a transcription fee for the transcripts that need to be produced.

If you fail to plan for the collateral costs of the case, your attorney may be left without the proper evidence that is needed to effectively litigate you case.

By far, child custody disputes tend to carry the greatest expense in litigation.  Aside from the fees that you pay to the attorney, there are a number of collateral expenses that you need to plan for.  Certainly depositions and filing fees are an issue, however, involving experts in the case may be necessary and a substantial expense.

It the mental condition of the opposing spouse, or the children are at issue, you may choose to seek psychological evaluations.  Generally, to begin the evaluation process, you will be looking at between $1,000 to $2,500 to begin the process depending on the expert.  In addition, a guardian ad litem can be appointed, with costs starting around $1,500.  You will also need to consider the fees that will be paid for in court testimony of the experts.  These hourly fees may be as much, if not more than the attorney’s hourly fee.

Once again, establishing your budget in advanced is the most important step in proper money management for litigation.  You may not be able to afford to invest in every type of collateral cost, so you will need to know how much you have to work with, and discuss with your attorney a way to prioritize a list of possible expenses.  This way you can spend your money on the most effect resources first.

The worst mistake that you can make it to adopt the attitude of pay to get started and figure the rest out as you go along.  If you have not secured access to proper funding at the inception of the divorce, then you maybe left empty handed when it comes time to deliver a cost retainer to you attorney to secure outside services.  While you may have invested a significant amount of money in legal representation up front, your case can become crippled if you cannot provide adequate resources to develop your case properly.

Finally, do not convince yourself that cheaper is better.  Inexpensive alternatives may be a good idea for simple and non-contested divorce matters, but for the majority of divorce litigants, there will be disputed issues.   Expecting to properly litigate a contentious divorce with children involved for pennies on the dollar is simply an unreasonable expectation.  So be realistic when establishing your budget.  You should plan to have access to $5,000 to $10,000 before considering getting involved in extensive litigation, and if the issue are particularly complex, you may need to plan for even greater amounts of funding.

Joshua W. Westcott
Attorney
Joshua W. Westcott, P.A.
Posted in Custody, Divorce, Family Law | Leave a comment

DUI – Lawyers’ Strategies For Defending Clients in Florida.

Posted on April 23, 2011 by Joshua W. Westcott

DUI, or driving under the influence, is a common charge that occurs in Florida.  Over the years, standardized penalties and fines have changed, as well as the the strategies for defending a client on a charge of DUI.  Presenting a defensive case for DUI can involve both the legal aspects of the case, such as challenges to unlawful stops, and factual aspects when the case is tried before a jury.  Pretrial motions may vary depending on the county that you have been charged in.  The current law on DUI and related penalties can be found at section 316.193 of the Florida Statutes.

Generally, an allegation of DUI will stem from a traffic stop.  The traffic stop itself may be directly related to suspicion of DUI, or there may have been another alleged traffic infraction that results in the basis for the vehicle stop.  While the reasoning for the stop may be challenged for purposes of suppressing evidence, it is important to note that the Courts are no longer concerned with the stop officer’s subjective motivation to stop the vehicle.  In other words, it is irrelevant if the officer was using an alleged infraction as a pretext to make the stop in order to determine if the driver was impaired.  Instead, the Court will determine if under the facts and circumstances as they existed a reasonably objective officer would have concluded that there was a lawful basis for the stop.  When minor traffic infractions are the alleged basis for the stop, it is imperative to review any video footage from the stop officers cruiser dash camera to see if the footage supports the officer’s report of the incident.  This also holds true in “lane swerving cases,” as the video will provide the best objective evidence.

If the stop is held to be valid, there will be a question as to detention for purposes of investigating the driver’s alleged impairment.  Did the driver show signs of impairment, such as slurred speech, emitting the odor of alcohol (impurities of alcohol), and lack of coordination?   If not, there may be an unlawful detention to proceed with a full DUI investigation.  Ultimately, that could lead to the suppression of the evidence discovered during the road side inquiries.

If a DUI investigation is conducted, the officer will generally have the driver submit to a series of field sobriety exercises (FSE’s).  Horizontal Gaze and Nystagmus, the walk and turn, and one leg stand exercises are common.  Additionaly, having the driver touch his nose with feet together and head tilted back, and use of the Romburg alphabet are popular examinations.  While the law does not require you to submit to FSE’s, your refusal to do so may be used against you in court in specific circumstances.

So how are the FSE’s used to determine impairment?  The officer administering the examination is looking for particular clues, in most instances, the lack of normal coordination.  The HGN is based upon scientific theory involving the Nystagmus, or fluttering (muscular convulsion) of the eye at particular degrees while sweeping the field of vision.  It is Horizontal because the officer will have you follow a stimulus (generally a light) from left to right and right to left with you eyes, while keeping your head still.  To get an idea of what the police are looking for, you can do a home demonstration using the principle of “post rotational Nystagmus.”  Take a friend and have him spin around to get dizzy.  Have him stop and look directly ahead.  For a few moments after the rotation, you will notice his eyes dart around erratically, instead of being able to smoothly track across the field of vision.

Note that the admission into court of results from the HGN exercise will very depending on the facts and the credentials of the officer administering the test.  If appropriate, a motion may be made to exclude these results form trial.

The remaining examinations are much more rudimentary in nature.  Most exercises will begin with you standing with your feet together and listening to instructions about the exercise to be preformed.  At this point, the officer will be noting if you have an orbital sway.  In other words, does it appear you are standing still, or are you swaying in a circular fashion.  The officer will also be noting if you are able to follow the instructions.  The idea is to examine your ability to multitask.  Thus, if the officer asks you to begin by placing your right foot on the line, and you lead with your left, it will be noted that you failed to follow the instruction.  Because of this tactic, the clarity in which the officer gave directions to the driver should be investigated, and challenged if appropriate.

In the walk and turn exercise, the officer will generally have you take nine steps down a predetermined line (usually a line of tape the officer puts down), make a specific style turn and walk nine more steps back.  Here the officer will see if you miss your steps heel to toe, if you do the turn incorrectly, and if you deviate from the line.

The surface level, texture, and lighting can all be factors in this exam, as well as the footwear of the driver.  Of significant importance is whether the driver has any medical conditions or other factors that could contribute to poor FSE performance.  The officer should run through a checklist to exclude these possibility, and if the officer fails to do this, there may be strong questions as to the reliability of the FSE’s.

In the one leg stand exercise, the officer will have the driver stand feet together and then raise one leg with the raised leg’s foot parallel to the ground.  The officer will have the driver count out loud to thirty.  The officer will look for the driver to place his foot back to the ground prior to the end of the exercise, and will see how close the driver is approximating thirty seconds during his counting.

The finger to nose exercise is, of course, to observe the coordination of the driver.  Similarly it will be used to gauge the drivers ability to follow instructions as the officer will announce which hand to use.  The sequence will generally be something like Left, Right, Left, Right, Right, Left.  It is when the officer calls out the same hand twice that an error will be accounted for as the inability to follow direction.

The Romberg alphabet may have a fancy name, but it’s as basic as it gets.  Rarely used, except in cases where the other FSE’s are unavailable due to a medical condition of the driver, or some other factor, this exam is simply the recitation of the English alphabet.

Assuming that the officer finds probable cause to believe you are driving under the influence, you can be placed under arrest, and transported to submit to a breath test to determine you blood alcohol level.  The machines used in Florida use infrared spectroscopy and a testing model based on the scientific Henry’s Law to extrapolate the blood alcohol content of an individual.  To be admissible in court, a number of standardized procedures must be followed regarding the testing and inspection of the machine, and the way the test itself is preformed.  Any error in the procedure that fails to be in sustainably conformity with the requirements may subject the test results to exclusion at trial.

Also of important note is that different counties in Florida have ruled inconsistently as to the admissibility of the results.  Based on discovery provisions in the Florida Rules of Criminal Procedure, there has been great dispute over the release and inspection of the source code data from the machines.  The argument is based on being able to test the reliability of the programing in extrapolating the blood alcohol content.  You should be sure to check with an attorney to see what local rulings may impact your case.

Under most circumstances the submission to a breath test after a DUI arrest is mandatory under the implied consent law, and refusal to consent could subject you to license suspension by the Department of highway Safety and Motor Vehicles (DHSMV).  Be aware that in addition to criminal proceedings,  a breath result of .08 or higher will subject you to administrative proceedings to suspend your driving privileges, and you have a very limited time to challenge the DHSMV sanctions by setting a hearing with the Department.  The same holds true in the case of an unlawful refusal to submit to a breath test.

Additionally, in some cases you can be subjected to urinalysis to determine if you have ingested prescription medications, or illegal narcotics.  And in some serious accident cases, a blood draw may occur.

A thorough inspection of the records and reports surrounding the collection of evidence is necessary in establishing a proper defense to the charge of DUI.  It is of particular importance to resolve this early for purposes of determining what pretrial motions can be filed.

Finally, if you should be pulled over for DUI, be careful what you say and how you act.  Exclaiming to the officer at the roadside that you could not even preform the FSE’s while sober is always a bad idea.  Keep quite, seek advice if you are arrested, and let your attorney handle the issues when all is said and done.  After all, I’ve yet to see a client talk their way out of a DUI.

Joshua W. Westcott
Attorney
Joshua W. Westcott, P.A.

 

Posted in Criminal Law, DUI, License Suspension | Leave a comment