Can I get Full Custody in the State of Florida?

By Attorney Alejandro R. Lopez

Many of my prospective clients sometimes come to their first interview in a divorce or custody case asking if he/she can obtain “full custody” of the child or children in the case. It seems that, on the street and regular day life, people talk to each other on the terms of: “I will take away the children from you and I will get full custody”; or “I will get full custody of the children and not you”; or “Go ahead and ask the Court to give you full custody”. The reality is quite a bit more complex.
The United States Supreme Court some years back interpreted the United States Constitution as giving both parents (the mother and the father) of a minor child or minor children a “fundamental right” to be parents. This usually means that the government can only interfere in issues dealing with minor children when their health, safety, and well being are in serious and immediate danger (Florida Department of Children and Family Services intervenes and takes the children away). In the meantime, the government entities back out and look at a possible bad relationship between both parents but do not interfere until there is plain evidence and proof that the children are in imminent and close danger. Of course, everyone has a different opinion as to what this imminent and close danger could be. Specially when both parents are fighting over the children’s custody (either parent has an opinion that the other is placing, or has placed, the child or children’s welfare and well being in imminent danger).
In Florida, the legislature eliminated the words “custody” and “visitation” some time back. The words “full custody” are and, to certain extent, were legally improper and not having any basis under Florida law. There was also a time when one of the parents was called the “primary residential parent” and the second parent the “secondary residential parent”. Not any longer. Now, in Florida, both parents are to “share” their “time” with their minor children. This “timesharing” could mean 50/50 with the mother and the father, or 80/20, or 60/40, or many other ratios of similar time. The time ratios depend on the Court’s consideration of several factors mentioned by the law under Florida Statute 61.13. It is highly unusual for a parent to have 100% of the time sharing and the other parent to have 0%. Usually Courts would do such a split of 100% to one parent and 0% to the other in certain cases (for instance, a father who has been extremely violent, or is incarcerated, or some other factor of weight). So, in very few cases there is a timesharing set that way.
In addition, there is a concept in Florida called “parental responsibility”. This parental responsibility means the rights and obligations of a parent to make major decisions related to his/her minor child or children (health, education, religion, etc.). The parental responsibility can be either “shared parental responsibility” or “sole parental responsibility”. Shared parental responsibility makes both parents talk to each other and enter into a dialogue and discussion with each other PRIOR to either parent making a major decision regarding the child or children (even if the child or children reside more time with one parent than with the other, for instance 80% of the time with the mother and 20% of the time with the father. In that instance, if there is shared parental responsibility the mother would not be able to make major decisions regarding the minor child without consulting the father prior to making such decisions and both parents be in agreement). When there is “sole parental responsibility” the parent having said sole parental responsibility has the absolute right to make any and all decisions regarding the minor child or children without consulting the other.
Again, it is difficult to obtain a Court order granting one parent “sole parental responsibility” because violence, abuse, sexual abuse, incarceration, abandonment by one parent (there are legal definitions for abandonment) or other similar factor, must be proven before a Court to be able to obtain sole parental responsibility for one parent.
Thus, for one parent to have what, on the streets, is called “full custody”, that parent must have (at least) a signed and entered Court order or judgment by a Judge of competent jurisdiction, granting that parent:
100% of the timesharing with the minor or minor children, or “no timesharing” for the other parent, AND
“sole parental responsibility” of the minor child or children.

Again, it is legally extremely difficult in most domestic relation cases for a lawyer to obtain both (100% timesharing for one parent but 0% to the other and sole parental responsibility for one parent) through a Court order, since, as we remember at the beginning of this article, parents have a “fundamental right to be parents” under the U.S. Constitution and those fundamental rights must be curtailed or limited only in certain specific cases where the minor child’s well being, welfare, and safety are in imminent danger.

How much is my accident case worth?

By: Attorney Alejandro R. Lopez

A few years ago I had a client who was involved in an automobile accident. He had already seen a few lawyers for his accident but, for some reason or another, no lawyer took his case. One of his first questions to me during the consultation (and through the case itself) was: How much is my accident case worth?. Actually, his actual words were: “Mr. Lopez, how much is my body worth after the accident?”.

It is understandable for many persons involved in any type of accident to wonder what is the value of their case, as my client did. Some clients have very difficult expectations to meet because, for instance, they see on the internet or on t.v. the lady who “won” five million dollars or so because she had hot coffee spilled on her, or their uncle’s case in New York which gave him $72,000.00. This is also worsened by many attorney and non-attorney commercials which we have also seen on television which make statements as: “You have $10,000.00 available for loss wages and medical bills”, “You can receive $25,000.00, $100,000.00, or more”. It is very unfair to the specific victim of an accident to hear and/or believe that these cases or statements would apply to him/her since they create many times an unreasonable hope and expectation that all cases are very similar in nature when that may not be their specific situation or case.

The answer to my client, and the analysis I proceed with each of my clients after an accident is as follows:

1. A thorough study of the accident, who was at fault, who was not at fault, evidence, photographs, medical records, wages records, and many other,

2. After fault for the accident is established, then

3. A thorough analysis of any and all insurance policies which provide and/or may provide funds and/or monies for the accident in question, and the ability of the person or entity which was at fault for the accident to pay for the damages created, and

4. Try as best as possible to provide numbers to each and every damage my client suffered as a result of the accident.

So, to value the worth of my client’s accident, several factors have to be analyzed:

a. What are the medical bills (ambulance, doctors, emergency room, anesthesiologist, chiropractor, pain medicine specialist, etc.) have accrued and are outstanding as a result of the accident? All the medical bills have to be gathered, analyzed in detail, and added,

b. What are the future medical bills the client will more likely than not incur in the future because of the accident? (the health care providers can give, at times, an estimate of future medical bills which could be incurred by the specific person in question, for instance, will the client require immediate surgery?),

c. What are the wages, salaries, monies and/or funds which the client has missed or lost since the date of the accident and as a result of the accident? (This requires looking at paystubs, I.R.S. returns, W-2’s, 1099’s, work schedules, dates and times missed, hourly rates, etc.),

d. What could be an estimate of future wages, salaries, monies and/or funds which the client will more likely than not miss in the future due to the accident?,

e. What out of pocket expenses the client has had due to the accident? (For instance, monies spent due to purchases of prescription medications, arm slings, etc.),

f. Was the person at fault drunk at the time of the accident? (Something under the law called “punitive damages” could apply),

g. Is my client married? (If so, there is a type of damage called “loss of consortium” which exists in the case and belongs to the client’s husband or wife, even if the husband and/or wife was not involved directly in the accident (For instance, the husband/or wife was not inside the car in an automobile accident when the accident took place)),

h. What has been the “loss of enjoyment of life” to the client as a result of the accident? (For instance, what physical activities the client cannot do (or can do but with much difficulty) which the client was able to complete before. Ex.: playing sports, going to the movie theaters, driving, etc. This is what folks usually call on the street, and used to be called, “pain and suffering”, and

i. What type of physical damage has the client sustained? (broken bones?, broken ligaments?, herniated cervical or thoracic disks in his/her vertebral column?, other?).

Some of those “damage items” I mention can be added up. For instance, I know if I receive a bill from the chiropractor, as a result of my car accident, for $1,000.00, and another bill from the hospital for $20,000.00, my past medical bills are $21,000.00.

However, some of those damages are very difficult to value. Those damages are called under the law “non-economic damages”. Among them are the loss of enjoyment of life or “pain and suffering”. How can you measure in dollars someone’s pain after an accident? or the anguish and nervousness the client feels if he/she has to be subjected to a surgery? or if there are complications from a surgery and there is more pain and suffering? or pain which may last for years to come? This factor creates much controversy and litigation in the Courts. I remember many years ago, when I was a young and naïve law school student, that one of my professors taught us to let our clients know to keep a diary and mark in it the times, dates, and amount of time, when they suffered pain and to give each minute of pain an equivalent of $2.00 per minute of pain. A bit crazy right?

Please make sure to speak, after your accident, with a lawyer of your choice (if possible, directly with the lawyer you see on television and not with a paralegal or case analyst) to have an adequate and realistic advise of your accident case’s worth, possibilities of winning or losing your case, pro’s and cons in your case, and much more. Do not be deceived by advertising which offers you thousands of dollars in your pocket after your accident. Remember what your parents and elders used to tell you: “not all that shines is gold”.

Should you have been the victim of an accident, I will be fully available to personally meet with you to analyze your case and provide you with a realistic and down-to-earth analysis of your case or claim and to process your case should you so choose. Call us at: (407) 649-1404 or contact us through: info@yourattorneyinorlando.com and/or through info@tuabogadoenorlando.com

New Waiver or Forgiveness Immigration Process Approved under Form I-601A

By: Attorney Alejandro R. Lopez

A new hope for certain relatives of United States citizens who are illegally in the United States.

On March 4th, 2013, a new process will come into effect through which certain relatives of U.S. citizens who are physically present inside the United States, but who are illegal, can ask for a waiver (forgiveness) to the United States government to eliminate their “inadmissibility” and minimize the so called “time penalties” which exist right now (from 5 to 10 years), which the U.S. government imposes, outside the United States before returning to the U.S.A. again.

Please notice that this is not an easy process and is highly complex. You can see its complexity by visiting the U.S. immigration site at: http://www.regulations.gov/#!documentDetail;D=USCIS-2012-0003-3739 where you can review all the terms of the new rule. We recommend you that, if you are interested in this new process to be able to process your husband or wife, son or daughter, father or mother, that you have a meeting with a lawyer of your choice before proceeding to register the form, since certain details in the new rule could place the status of your relative in the United States in great danger if the process is not carried out with detail, legality, and precision.

As always, our Firm is ready to process this type of case and we offer you legal consultation to advise you regarding your specific case and to determine if this waiver is a good option for your relative. Call us at (407)  649-1404 or contact us through our website of www.yourattorneyinorlando.com

 

New Automobile Accidents Law in Florida Affects All of Us

By Attorney Alejandro R. Lopez

Unfortunately, Florida’s legislature has placed in effect beginning on January 1st, 2013, a new law which affects all of us who drive a car in Florida.

As all of you know, in Florida all of us who drive are under the legal obligation of paying (and have in effect) an automobile insurance coverage called “Personal Injury Protection”. This insurance pays, in case of an automobile accident, for your:

1. 80% of medical bills which arise (without taking into consideration who is at fault for the accident), due to the automobile accident. The insurance company pays 80% of the medical bills up to an amount of $10,000,

2. 60% of wage loss which arise (again, without considering who is at fault for the automobile accident), and

3. Up to $10,000.00 in case of death as a result of the accident.

Beginning on January 1st, 2013, those benefits have been highly restricted in the following manner an according to law:

A. If you are in an automobile accident and do not seek medical treatment during the first fourteen (14) days of the accident, your car insurance (P.I.P.) could deny you the benefits mentioned above,

B. The “initial medical services” must be provided, supervised, ordered and/or assigned by an osteopath, dentist, or chiropractor, or must be provided in a hospital, or in a health care facility owned in part, or in whole, by a hospital,

C. Your “P.I.P.” will only pay for medical services which you incur as a result of a motor vehicle accident, only if you appeared to obtain medical treatment within the fourteen (14) days of the accident, AND if the following takes place:

1. The medical services are based on a doctor’s referral, chiropractic, or orthodpedic, AND

2. The medical services are consistent with the medical diagnosis which is issued to you on your initial medical visit.

Also:

If all of the above is accomplished, then your P.I.P. provides two types of payments:

Up to $10,000.00  if your condition is determined to be of “emergency” or up to only $2,500.00 of your $10,000.00 coverage if your medical condition afte the accident is determined not to be an “emergency”.

The law determines that an “emergency” condition is defined as those medical conditions which are manifested with acute symptoms of sufficient severity, which include severe pain in a way that the absence of medical attention will result in:

.Serious damage to the patient’s health,

.Serious incapacity to corporal functions, and/or

.Serious incapacity to any body organ or body part.

Additionally:

Massage therapies and/or acupuncture will not be paid by your “P.I.P.” insurance under the new law.

These changes seriously affect your benefits under insurance policies for which we all have been paying premiums for years. It is, therefore, very important, that you contact your lawyer directly in case of accident, and without the need to go through any attorney referral company, so that you can be immediately advised of your legal rights and obligations. Our Firm has processed hundreds of automobile accidents since 1999, and we will be at your immediate disposition to advise you and guide you after your accident. You can contact us through a simple electronic mail to: info@yourattorneyinorlando.com, or through our website: http://www.yourattorneyinorlando.com, or calling our Firm at: (407) 649-1404.

Drive carefully.

 

 

 

Has Immigration Reform Finally Arrived to the United States?

By Attorney Alejandro R. Lopez

The answer is still unknown, but this time there is a good possibility. Politicians have realized of the acquisitive power hispanics have gained through time in the United States and fear not to have that power on their side. The Republican party, as well as the Democratic party, appear to be in agreement to proceed with the reform of the immigration laws of the United States this very same year of 2013.

The basic proposals are as follows:

1. Increase the efforts to secure the U.S. borders, including the use of more government agents, drones (usually used in the Afghanistan war), and surveillance equipment,

2. Require the implementation of an entry and exit system to and out of the United States to be able to follow the steps of persons who come into and exit the United States with temporary visas, to determine if they have come out of the country when it is required,

3. Create a commission of legislators and community leaders who reside in the United States’ southwest border to make recommendations when the new security measures have been accomplished,

4. While the security measures are on their way, illegal immigrants in the United States could:

a. register with the U.S. government,

b. go through criminal background checks, and

c. pay penalties (to be still determined by law), as well as pay back federal taxes,

to be able to obtain a probationary immigration status,

5. Once the security measures are in place, those immigrants who are in the probationary status would be able to apply for U.S. permanent legal residence, but after other immigrants who are already in the system applying for permanent legal residence,

6. Persons who were brought to the United States as children, and agricultural farmers, would have a faster way to U.S. citizenship,

Also, to improve the immigration system, it is proposed that:

A. The delays in producing family and employment visas be eliminated,

B. U.S. residence be provided to immigrants who obtain high education degrees in science, technology, engineering, or mathematics, from U.S. colleges and universities,

C. Systems of legal employment verification be established in the United States,

D. Electronic systems be established, which could not be duplicated, to require that workers show their legal status and indentity,

E. Higher and more serious criminal penalties and fines be imposed to employers who, knowingly, hire illegal immigrants,

F. Allow employers to hire immigrants if they can show that they were not successful in hiring a U.S. citizen and that hiring an immigrant will not displace U.S. workers,

G. Create a program of agricultural workers to be able to satisfy agricultural industry’s need when U.S. citizen workers do not exist to satisfy that need,

H. Allow immigrants who have lower skills to enter the United States when the economy is based in creating jobs, and less of those immigrants when such type of economy does not exist, and

I. Allow workers who have been successful in the job market place, and who have contributed to their communities throughought the years, to gain permanent residency in the United States.

It is supposed that these immigration legal reform proposals take shape by the Spring or Summer of 2013, and that, if this reform is approved, that it will be a way for the eleven million (or more) illegal immigrants in the United States to obtain their permanent residence in the United States and, later on, their citizenship. It does not appear it will be an easy process.

Once the new laws are implemented, our Firm will be at your disposition to help you process your case. You can always call us at: (407) 649-1404, or contact us through our website of: http://www.yourattorneyinorlando.com .

New Process and Hope to Help Illegal Relatives of U.S. Citizens through Inmigration Waiver Form I-601A

By: Attorney Alejandro R. Lopez

New hope for certain relatives of  U.S. citizens who are presently illegal in the United States.

This 4th of March, 2013, a new process will come into effect through which certain relatives of U.S. citizens who are physically  and illegaly present in the United States could ask for a  Waiver from the United States government to eliminate their “inadmissibility” and minimize the so called “penalties” of time which currently exist (which could range from 5 to 10 years), and which the U.S. government imposes, outside the United States in order to return to the country once more.

Please note that this is not an easy process and is highly complex. You can review its complexity by reviewing the new rule at:   http://www.regulations.gov/#!documentDetail;D=USCIS-2012-0003-3739  where you can see all the terms of the new rule. We recommend that, should you be interested in this new process to be able to help your husband or wife, son or daughter, or father or mother, that you have a meeting or consultation with a lawyer of your choice before you proceed in registering the form, since there are certain details in the new rule which could place in great danger the stay of your relative in the United States if the process is not carried out with detail, legality, and precision.

As always, our Firm is ready to process this type of case and we offer you consultations to advise you regarding your specific case and to determine if this waiver is a viable way  and opportunity for your relative. Call us at (407) 649-1404 or contact us through our website.

People Inquire….Alejandro, Your Attorney in Orlando, Answers – Immigration

Can i apply for the deffered action plan with a expired passport?:   My passport hasn’t been renewed since i was 9 years old…so i was wondering if i can apply with this passport or do i need a new one?

A: Alejandro’s answer:    You just need I.D. to prove who you are, plus fulfill the requirements for deferred action. Although the passport has not been renewed, it is proof of your identity and could be used in your package.

Questions and Answers on Foreclosure

How long can you stay in your house before you get put out ,we are unable to pay our house payment . We are not renting ,we own:   We are one month behine on our house payments. and have no  way to pay right now ,How long do they give a person before they put you out for not paying your mortage. We are having money problems right now.

A: Alejandro’s answer:    You must take action right now to “buy” as much time as possible to either stay permanently in your home or to be able to move out. To do this, you should pick a lawyer of your choosing to explain to you the different government programs and legal strategies which will allow you to stay permanently and/or, should you decide to leave, to even leave the home without being sued afterwards by the bank and to have no personal liability for the mortgage loan. There are many ways to accomplish those goals. In my office I have some foreclosure cases (you must be sued for the foreclosure case to proceed) where I have been able to hold the bank from taking over my client’s real estate for even a period of two years. Each case is different, but you must seek help now to prevent future problems and to avoid having to leave the property sooner than later.

Last Will and Testaments, Powers of Attorney, Probate, and Guardianships in the State of Florida

By: Alejandro R. Lopez, Esq.

How is the distribution of properties of a person who has died in Florida take place?

In two ways:

1. The Florida Probate Code determines how to proceed. This Code is a series of statutes which show who are the heirs and how they inherit, or

2. Through a Last Will and Testament. A person can change the way in which Florida law disposes of his/her properties by writing and executing a Last Will and Testament.

If I do not have a Last Will and Testament and I die, do all my properties automatically pass to the State?

No. This is a fallacy which, unfortunately, people still believe for some reason. If a person dies without a Last Will and Testament the difference is that the State of Florida determines how the properties of the deceased are transferred and who are the heirs. If there are no living heirs whatsoever, it is the only time when the properties of the deceased pass to the State.

If I sign a letter, where I explain to whom I want my properties to go to in case I die, is that sufficient in the State of Florida?

No. A Last Will and Testament in Florida, to be valid, must be in writing (it cannot be oral), must be signed by the person who is making it (the Testator), and whenever possible, notarized, and VERY IMPORTANT, must have the signatures (and if possible the addresses and phone numbers) of  TWO witnesses who must be both present at the time the Testator (maker of the Last Will and Testament) signs it.

Must the Last Will and Testament be registered with the Court, or any other government agency?

No. The original Last Will and Testament must be conserved in a safe place, and the Testator must tell the person who is designated or called  the “Personal Representative” (sometimes called the Executor or Executrix) the location of the Last Will and Testament and, possibly, provide a copy of the Last Will and Testament to the Personal Representative. Now, when the Testator dies, the original Last Will and Testament must be registered and filed with the Circuit Court’s Probate Division Clerk of Court where the Testator had his/her domicile in Florida within 10 days from the date of death.

What are the reasons someone would want to have a Last Will and Testament?

To name a “Personal Representative” (instead of having the Court choose an unknown, or some other person the Testator did not want),

To disclose in which parts, and which portions, of the person’s properties would pass to whom and in what form (instead of allowing the State of Florida to dictate the terms instead of the Testator),

To specify how the Testator wishes his/her body to be disposed (burial, cremation, etc.)

Who is the “Personal Representative” in a Probate?

A Personal Representative is a person who administers the properties and issues and disposes of the properties of, and resolves the debts of, a person who has died. Once more, this is the person that in some places is called the “Executor” or “Executrix”.

What is Probate?

A Probate is a case which is opened in Court when someone dies, with or without a Last Will or Testament, to receive authority from the Court so that said person, in life, manage and administer the properties, debts, lawsuits, etc., of the deceased person, paying creditors, transferring properties to heirs and beneficiaries, suing in the name of the deceased person, etc.

Wouldn’t it be better just to have a Power of Attorney and, in that way, eliminate all the complexities of a Probate case?

The Power of Attorney is a document which, as it says, allows one person to give another (temporarily or permanently) certain powers. It must disclose the powers which are being provided or transferred in detail and must be signed by the grantor and two witnesses, BUT, the power of attorney is without effect once the grantor of the powers dies.  The Last Will and Testament survives the deceased and must be administered/managed.

What is a Guardianship?

A Florida Guardianship is when a case is opened in Court to assign to a person who is still alive a “Guardian” , who is an individual who will be in charge of, and will be responsible for, an incapacitated person and/or  his/her properties, or of a minor child  and/or of the properties of that minor child. Guardianships are complex cases. The Guardian must provide accountings and reports to the Court, in addition to medical reports of the person under Guardianship.

Which would be, then, some of the documents to protect the rights of a person, and to insure that the person’s wishes are fulfilled, in life and after death?

. A Last Will and Testament,

. A Power of Attorney,

.A Declaration Naming Preneed Guardian for a Minor,

.A Declaration Naming Preneed Guardian for a Declarant,

.A Designation of Health Care Surrogate, and

.A Living Will.

What is a Living Will?

It is a document signed by the person who wishes to have it, plus two witnesses. It specifies the wishes of the person, as well as whom that person designates and authorizes to make decisions for him/her if he or she has a terminal illness and/or falls in a vegetative state in the future or a coma (for instance, what to do with the person, what medical treatments to provide the person, etc.).

This is what caused problems some time back in Florida with the case of Mrs. Terri Schiavo. She suffered a massive stroke and fell in a vegetative state. Her husband wanted to disconnect her from life sustaining equipment which kept her alive under a comatose state. Her parents did not want to disconnect her. Therefore, her husband and her parents ended up in Court litigation between 1998 and 2005. Florida’s governor became involved in the case, as well as special interest groups, as well as the U.S. federal government, etc., etc., with a devastating and sad situation arising for the relatives. If Mrs. Schiavo would have had a valid Living Will , such litigation and agony between the relatives could have been avoided or, at least, minimized.

If you believe that you, a friend, or a relative, need a Last Will and Testament, Power of Attorney, Probate case in Court, or any of the other documents mentioned here, please contact our Firm for a consultation. It will be our pleasure to help.

 

The People Questions…and Alejandro, Your Attorney in Orlando, Answers:

My mother passed! Her Townhouse has me listed as Life Estate. What do I need to do to get the property in my name?:   I also currently live in the Townhome and have for the past 8 years.  Papers list me with my prior married name!  Need to change that too!

A: Alejandro’s answer:    According to what you say, it is in your name already! However, the “type” of property right you own is a “life estate”. That is, you cannot rent or sell the property. You must maintain it. You can live in the property until you die, as long as you upkeep it, maintain it, and pay the fees (homeowners’ association fees, property taxes, etc.) associated with it. If by your question you mean you want to change the “life estate” transfer to a “fee simple” transfer so you can sell the property or rent it, it may be too late at this point (depending on the language of your current deed), since the transfer must have been done during her lifetime to reflect “fee simple absolute” instead of a “life estate”.

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Can you file for divorce in FL if you are unemployed?  Been separated for about a year (shes in a diff state)  In that time the:   the kids have lived w/ me.  I have been living off of savings.  I am currently unemployed but I am employable.  Mainly I have been out of work due to the nature of our separation.  I never knew what the day would bring with her in my life.  Even being hundreds of miles away it was impossible for me to work and try to hold our marriage together.  We were supposed to be split for 2-3 months but it has been 12.  I have been living a pipe dream thinking she was going to come around and TRY to make this work.  Tons of promises that were always broken & literally hundreds of lies later I have finally had enough.  All I care about are my girls.  I would like to have majority of custody.  Do I need to wait until I have a job a certain length of time or am I screwed because I have been unemployed

A: Alejandro’s answer:    Your unemployment does not impact the divorce. You can file it with no problems. The unemployment could affect you if you are requesting custody and your future ex uses the factor to show a court you are unable to support the children.

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