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Common Questions & Answers

Breach of Contract Questions Back To Top

Is a Contract required to be in writing?

To be enforceable, Contracts do not have to be in writing.  However, a written contract that defines the terms and that sets forth the obligations of each party is highly recommended.  Because if there is not a written contract, the case becomes a “he said she said” type of case.  The court will look at parol evidence to determine whether a contract exists and whether one party, or both materially breached it. Pursuant to the Statute of Frauds, there are certain contracts that are required to be in writing, otherwise, they are not enforceable.  Such contracts include:

  • The contract to marry (or a marriage license)
  • contracts that will take longer than a year to fulfill,
  • contracts involving the transfer of an interest in land,
  • a contract to be an executor of an estate,
  • a contract wherein you agree to be a guarantor for someone else (personal guarantee) and
  • a contract involving the sale of goods for more than $500.00.
  If your contract involves any of these matters, then it must be in writing for the Court to enforce it.

When Does A Breach Of Contract Occur

A breach of contract occurs when one party to the contract materially breaches the contract by failing to perform. Often when a party has breached, the non-breaching party suffers damages.

How do I prove breach of contract?

There are three elements which must in order to prevail on a breach of contract cause of action:

  • there must be a valid contract
  • there must be a breach of the contract and
  • the non-breaching party must have suffered damages.

Is every breach of contract grounds to file suit?

No.  There are two types of breach for contracts, material breach and non-material breach.

  • A material breach is the most serious of the two. When someone materially breached a contract, they essentially destroy or frustrate the purpose of the contract.  This is the types of breach necessary in order to prevail in a breach of contract case.
  • A non-material breach means the non-breaching party suffers some damages but the contract terms can still be achieved or fulfilled.  If the contract is fulfilled, there are not grounds to proceed with a breach of contract lawsuit.
Most of the time when one party feels that they have suffered from the breach of another party, an attorney will send a demand letter to the breaching party giving the breaching party an opportunity to remedy the situation without litigation.  If the breaching party does not resolve the dispute, a breach of contract lawsuit will likely follow.

What can I recover from a breach of contract lawsuit?

Under Florida law, the non-breaching party must take reasonable steps to lessen or mitigate their damages.   That being said, the non-breaching party has numerous ways to recover for the breach of contract, such as:

  • Recission. This occurs when a contract is rendered null and void by a court.  So that is no longer recognized as legally binding. The courts can free non-breaching parties from their obligations under the contract.  Moreover, it will effectively restore them to the position they were in before the contract was executed.
  • Compensatory Damages. There are two categories of compensatory damages.  General damages cover direct losses, meaning, what the plaintiff actually lost.  The injured party in a breach of contract action is entitled to recover monetary damages that will put it in the same position it would have been had the other party not breached the contract.” Manor House, LLC v. Citizens Property Insurance Corporation, 277 So. 3d 658 (Fla. 5th DCA 2019).   Special damages are those which occur as a result of the breach.   They are not direct losses.  But they are losses because of the breach of contract.  “Special damages” are those that do not necessarily result from the wrong or breach of contract complained of, or which the law does not imply as a result of that injury, even though they might naturally and proximately result from the injury.” Land Title of Cent. Florida, LLC v. Jimenez, 946 So.2d 90 (Fla. 5th DCA 2006). “Special damages must be particularly specified in a complaint to apprise the opposing party of the nature of the special damages claimed; if special damages are not specifically pled, then evidence of them is inadmissible.” Id
  • Attorney Fees.  Attorney fees are not recoverable in breach of contract cases unless there is a provision within the contract that allows for the recovery of fees.  
  • Punitive Damages. These are damages intended to punish the breaching party and they are usually not recoverable in breach of contract actions. “The legal standard for establishing entitlement to punitive damages, that is, that the plaintiff must prove by clear and convincing evidence that the conduct causing the damage was either intentional or grossly negligent, does not vary depending on the underlying legal theory.” Soffer v. R.J. Reynolds Tobacco Co., 187 So. 3d 1219 (Fla. 2016). 

How long do I have to file a breach of contract case?

In Florida, the statute of limitations varies for breach of contract is 5 years. (Florida Statute § 95.11).  

Child Support Questions Back To Top

Can a parent waive child support?

No. “Child support is a right which belongs to the child. It is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.” -Armour v. Allen, 377 So. 2d 798, 800 (Fla. 1st DCA 1979) citing State ex rel. Airston v. Bollinger, 88 Fla. 123, 101 So. 282, 283 (1924).

How is child support calculated?

Child support is calculated by the statutory guidelines delineated in Fla. Stat. §61.30. Income is determined on a monthly basis for each parent based on their gross income. ( Fla. Stat. §61.30(2)(a)). Net income is then determined by subtracting deductions from gross income, including but not limited to, income taxes, mandatory retirement payments, court-ordered support for other children, spousal support from a previous marriage, mandatory union dues, and federal insurance contributions. Provide a link to Fla. Stat. §61.30(3). The parents net income is then added, and the total amount of child support due is then picked from a large chart created by the legislature which has pre-determined amounts based on income and number of children. Provide a link to Fla. Stat. §61.30(5)-(6). For example, parents whose combined monthly net income is $4900 and who have four children, must pay $2157 in combined child support. Each parent's percentage share of the child support need shall be determined by dividing each parent's net monthly income by the combined net monthly income. Fla. Stat. §61.30(9). The court may deviate from the standard amounts under certain circumstances, including but not limited to: (a) extraordinary medical, psychological, educational, or dental expenses; (b) independent income of the child; (c) seasonal variations in one or both parents' incomes or expenses; (d) special needs; or (e) any other adjustment that is needed to achieve an equitable result.

What is included in “Income” when calculating child support?

Gross income includes but is not limited to: 1. Salary or wages. 2. Bonuses, commissions, allowances, overtime, tips, and other similar payments. 3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income. 4. Disability benefits. 5. All workers' compensation benefits and settlements. 6. Reemployment assistance or unemployment compensation. 7. Pension, retirement, or annuity payments. 8. Social security benefits. 9. Spousal support received from a previous marriage or court ordered in the marriage before the court. 10. Interest and dividends. 11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income. 12. Income from royalties, trusts, or estates. 13. Reimbursed expenses or in kind payments to the extent that they reduce living expenses. 14. Gains derived from dealings in property, unless the gain is nonrecurring. - Fla. Stat. §61.30(2)(a).

If I lose my job, do I still have to pay child support?

Yes. Monthly income may be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent's part. - Fla. Stat. §61.30(2)(b). In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. Id. In addition, as previously stated, unemployment compensation is considered income for purposes of child support.

What do I do if my ex-spouse is not paying child support pursuant to a child support order?

You can file a Chapter 61 proceeding to enforce child support payments. Fla. Stat. §61.13. You can also seek to have the non-paying parent found in contempt of court and be sanctioned and ordered to pay attorney fees. The court can also compel the parent to pay, have the child support deducted directly from his wages or have him incarcerated until he or she “purges” the support obligation.

Can I collect back owed child support?

Yes. Child support payments that remain unpaid are a vested right of the child, and they cannot be cancelled or reduced retrospectively absent extraordinary or compelling circumstances. Provide a link to Dep't of Revenue ex rel. King v. Blocker, 806 So. 2d 607, 610 (Fla. 4th DCA 2002).

Can I enforce a child support order if my child is over the age of 18?

Generally a parent cannot unless there are extraordinary circumstances but the adult child can enforce the child support order when they attain the age of majority. Child support terminates when the child turns 18, unless the court determines that a child is dependent within the meaning of - Section 743.07(2), which includes a child with a mental or physical incapacity, or one who is between the ages of 18 and 19 and still in high school and performing in good faith. If there are no extraordinary circumstances that exist for a parent to remove child support upon the child attaining the age of majority – the adult child can sue the non-paying parent to recover the back owed child support.

Can I be arrested if I do not pay my child support obligation?

Yes. Generally speaking, a court may hold you in civil contempt and issue a writ for bodily attachment for failure to comply with a court order, and this includes child support orders. The parent seeking enforcement must file a motion for civil contempt/enforcement and a hearing will be held on the matter. Provide a link to Fla. Fam. L. R. P. 12.615(b)-(c). After the court hears from both parties, the court is to enter an order granting or denying the motion for contempt. See Fla. Fam. L. R. P. 12.615(d). If the order grants the motion, it must contain findings that the contemnor had the present ability to pay support and willfully failed to do so, and it must contain a recital of the facts on which the findings are based. Fla. Fam. L. R. P. 12.615(d)(1). The court may order a sanction designed to compel compliance with the earlier support orders, including incarceration, attorneys' fees, suit money and costs, compensatory or coercive fines, and any other coercive sanction or relief permitted by law. Fla. Fam. L. R. P. 12.615(d)(2). However, any such coercive sanction must be accompanied by a provision that gives the contemnor the opportunity to “purge ... the contempt,” meaning to nullify or avoid it. Provide a link to Fla. Fam. L. R. P. 12.615(e). The court must make a finding that the contemnor has the present ability to comply with the purge provision and state the factual basis for that finding and the specify the amount of time to comply. Provide a link to Fla. Fam. L. R. P. 12.615(e).

How do I change my child support obligation?

You can file a Chapter 61 proceeding to modify child support payments. - Fla. Fam. L. R. P. 12.615(e). Fla. Stat. §61.14. A fundamental prerequisite to modification of a parent's child support obligation is the showing of a “substantial change in circumstances” from the time of the last order and that said modification is in the best interest of the child. - Fla. Fam. L. R. P. 12.615(e). - Fla. Fam. L. R. P. 12.615(e). Jane v. Fero, 678 So. 2d 496, 497 (Fla. 5th DCA 1996) (citation omitted). This change in circumstances must be significant, material, involuntary, and permanent in nature, and the burden of establishing this change in circumstances is on the party seeking modification. If you don’t meet your burden of proof, the petition will be dismissed.

Debt Enforcement Questions Back To Top

What is a money judgment?

A money judgment is a court order that awards the winning party in a lawsuit a sum of money. There is a myriad of reasons a court awards money, such as unpaid rent or goods, medicals bills, to compensate for poorly done or incomplete services, attorney’s fees, equitable distribution of assets, and so on.

What is a judgment debtor?

A judgment debtor is the losing party in a lawsuit who is ordered to pay money to the winning party.

What is a judgment creditor?

A judgment creditor is the winning party that is awarded a monetary amount by the court.

For how long is a money judgment enforceable?

20 years. Fla. Stat. §95.11(1).

When is the best time to enforce a money judgment?

Immediately. If you wait, enforcement becomes a practical problem as the judgment debtor can move or skip town, making it difficult to find them and enforce the judgment.  If you have a judgment and you are seeking to enforce it, contact the Horton Law Group, P.A. to schedule a free 30-minute consultation with a qualified member of our team.

How do I enforce/collect a money judgment?

Collecting a money judgment is highly dependent on your knowledge of the judgment debtor’s assets. Depending on what you know, you can try to place a lien on the judgment debtor’s personal or real property and have it sold (execution),or  obtain a writ of garnishment, or engage in other legal proceedings. Fla. R. Civ. P. Rule 1.570(a); Fla. Stat. §77.01.

How do I place a lien on the judgment debtor’s real property?

You must record a certified copy of the final judgment in the courthouse of the county in which the judgment debtor owns property. Fla. Stat. §55.10. You can buy a certified copy of the final judgment from the courthouse where your case was heard at the appropriate clerk’s office. Recording the final judgment requires another fee. The recorded certified copy is a lien for 10 years on real property. In order to renew your lien, you must record another certified copy in the six months before the lien expires. If the judgment debtor later tries to sell this property, he or she will not be able to give good title to a buyer unless the recorded judgment is satisfied or paid in full.

How do I place a lien on the judgment debtor’s personal property?

You must fill out a Judgment Lien Certificate and record it with the Florida Department of State by mailing the document with payment or filing online. This is also how your priority is determined (where you stand in line compared to other creditors). If someone else filed their judgment before you filed yours, they must be paid from any sale of property before you. The lien lapses after 5 years. In order to renew your lien, you must record another certified copy in the six months before the lien expires.

What is levy and execution?

Levy is the process of seizing a judgment debtor’s property to pay the judgment debt. In Florida, the sheriff’s department levies the property. The sheriff’s department sells the levied property in order to pay the creditor. The process of selling the seized property and paying the creditor is called execution.

What types of property can and cannot be levied by the sheriff?

The sheriff’s department can seize:

  1. Personal property: movable things (e.g., cars, horses, boats, furniture, jewelry) owned by the debtor.
  2. Real property: land and buildings owned by the debtor. Fla. Stat. §56.061.
The sheriff’s department cannot seize:
  1. An individual’s home or homestead.
  2. Any property that is leased or rented by the judgment debtor.
Exemptions: An individual may choose to exempt one motor vehicle worth $1,000 or less; and one additional personal property item worth $1,000 or less. Corporations and partnerships do not have any exemptions. Fla. Stat. §222.25.

How do I get the sheriff to levy personal property?

First you must locate property—in Florida. The sheriff’s department will not locate the property for you. Once you have located the property the sheriff can seize, you take your judgment to the Clerk of Court that originally issued your judgment and ask for a document called a “Writ of Execution.” Fla.R.Civ.P. Form 1.914(a). This tells the sheriff to seize property of the judgment debtor to satisfy your judgment. You must also draft written instructions for the sheriff, called “Instructions for Levy”, describing the property and where it is located.   Next, you deliver the Writ, Instructions for Levy, and a deposit to cover fees and costs to the sheriff’s department in the county where the debtor’s property is located. You will get your deposit back if the execution is successful.

What happens once the personal property is levied?

The sheriff’s department will sell the property at a public auction. The property will be sold to the highest bidder for cash in hand. Flagship State Bank of Jacksonville v. Carantzas, 352 So. 2d 1259, 1262 (Fla. 1st DCA 1977). You may bid on the property.

What are the procedural requirements to have levied personal property sold?

Before the property can be sold, you have to check the Department of State’s internet website at www.sunbiz.org to see if there are any judgment liens filed under the name of the Judgment Debtor. You must also check for creditors who have filed UCC security interests in the name of the Judgment Debtor at www.floridaucc.com. You must notify all of these people of the date, time, and place of the sale. You then give the sheriff’s department a signed affidavit containing all the information you found of any judgment lien certificates filed against the Judgment Debtor. Once the notices have been sent, the sale must be properly advertised in a local newspaper.  Fla. Stat. §56.21. Fla. Stat. §56.27(4).

If the levied personal property is sold, how is the money distributed?

The sheriff’s department will distribute the money in the following order:

  1. The sheriff’s department will deduct their costs.
    • If the property sale covers those costs, you will get your deposit back.
  2. The sheriff pays you $500 for your costs, regardless of the amount you actually spent.
  3. The sheriff’s office pays all of the creditors in the order their judgment liens were filed.
    • If the sheriff’s department disburses all of the money before getting to you, you will not receive any payment.
    • If there are no other judgment liens against the debtor, you will be paid first.
    • Remaining funds will be returned to the debtor.  Fla. Stat. §56.27.

How do I satisfy my money judgment from a debtor’s wages or funds in a bank account?

You must obtain a Writ of Garnishment. The Writ of Garnishment enables the judgment creditor to intercept money being paid to the judgment debtor by third parties. The garnishee is the person, company, or bank that owes the judgment debtor money. In the case where the judgment was issued, file a Motion stating the amount of the judgment, describing the property sought to satisfy the judgment, and requesting that a Writ of Garnishment be issued. Fla. Stat. §77.03. The Motion must be accompanied by an affidavit that avers that the money or other thing held by the garnishee subject to commands of writ is not due for personal labor or services of head of family residing in state. Virginia Mirror Co. v. Hall, App. 2 Dist., 181 So.2d 6 (1965). The Writ itself must require the garnishee to serve an answer on the plaintiff within 20 days after service of the writ stating describing the garnishee’s indebtedness to the debtor, among other things. Fla. Stat. §77.04; Fla.R.Civ.P. Form 1.907(a). The language in a Continuing Writ of Garnishment against Salary or Wages differs and requires the garnishee to serve an answer stating whether the garnishee is the employer of the debtor and specify the periods of payment, among other things. Fla. Stat. §77.0305; Fla.R.Civ.P. Form 1.907(b).  Take the completed Writ of Garnishment to the Clerk’s office and request that they issue the Writ. There is a fee and a deposit required. The Writ must be served on the garnishee. Service of the writ creates a lien in or upon any such debts or property at the time of service or at the time such debts or property come into the garnishee's possession or control. Fla. Stat. §77.06.  The amount of litigation that follows to get a Garnishment Judgment depends on whether the garnishee and debtor dispute the writ. A Writ of Garnishment can be issued prior to obtaining a judgment as well. Fla. Stat. §77.031. Certain income is exempt from garnishment, including: Head of family wages, Social Security benefits, Supplemental Security Income benefits, Public assistance (welfare), Workers' Compensation, Reemployment assistance or unemployment compensation, Veterans' benefits, Retirement or profit-sharing benefits or pension money, Life insurance benefits or cash surrender value of a life insurance policy or proceeds of annuity contract, Disability income benefits, and Prepaid College Trust Fund or Medical Savings Account. Fla. Stat. §77.041. Fla. Stat. §222.11.

How can I find a judgment debtor’s assets?

This is fairly straightforward while a case is still open. A judgment creditor may obtain discovery from any person, including the judgment debtor, in the manner provided by the Florida Rules of Civil Procedure, which includes depositions, interrogatories, and production of documents. Fla. R. Civ. P. Rule 1.560(a). In addition to other discovery methods, the court, at the request of the judgment creditor, can order the judgment debtor to complete a form providing detailed demographic and financial information. Failure to obey the order may be considered contempt of court. Fla. R. Civ. P. 1.560(b). After a case is closed, finding a judgment debtor’s assets is still feasible as long as you know where the judgment debtor lives (or can be found). That is because it requires initiating supplementary proceedings that require service on the judgment debtor. Fla. Stat. §56.30. The judgment creditor may file a motion and an affidavit about the unsatisfied judgment, the court then issues a Notice to Appear, and that Notice to appear must be served on the judgment debtor. Id. The judgment creditor then has the opportunity to engage in discovery again. Fla. Stat. §56.30. If it’s been many years since you got the money judgment and you have no idea where the judgment debtor is, before you can enforce your money judgment, you face the unfortunate practical obstacle of locating the debtor.

Estate Planning Questions Back To Top

Who will the court appoint to make my medical and health care decisions for me, if don’t have estate plans in place?

If you are determined to lack capacity, Florida courts recognize certain relationships and give them priority when appointing a guardian.   Florida Statute 44.312(2) gives preference to:

  1. Individuals who are related to you by blood or marriage
  2. Individuals who have educational, professional or business experience
  3. Individuals who can manage financial resources, or
  4. Individuals who can meet the requirements of the law and the particular needs of your case
The following may NOT serve as your guardian:
  • Individuals convicted of a felony
  • Individuals who are incapacitated
  • Your creditors

How do I nominate a Guardian for my Minor Children?

Florida Statute 744.3046 governs the requirements of guardianship nominations for minor children.  If you and the other parent of the minor child(ren) die or becomes incapacitated, a guardian will be appointed for your minor children.  If you do not tell the court who it should appoint, it will decide for you. You can also appoint or nominate a guardian for your minor children in your Last Will and testament. This is something that NO ONE wants to think about, but unexpected tragedies happen and you should be prepared.

Does the Trust pay the Trustee’s Attorney Fees or Trustee Fees?

There are many other duties imposed on a Trustee.  A Breach of these duties can have significant financial cost to the Trustee.   One of the biggest areas of Trust litigation involving breaches of duties by a trustee deals with excessive fees and commingling.   Generally speaking, trust administrative fees are paid out of the Trust.  When a Trustee retains legal counsel, the attorney fees and costs, are usually paid out of the trust.   Trustees are also entitled to reasonable compensation for their time and labor while serving as a trustee.

Family Law Questions Back To Top

Can a parent waive child support?

No. “Child support is a right which belongs to the child. It is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.” -Armour v. Allen, 377 So. 2d 798, 800 (Fla. 1st DCA 1979) citing State ex rel. Airston v. Bollinger, 88 Fla. 123, 101 So. 282, 283 (1924).

Where are the laws related to dependency found?

Dependency is governed by Chapter 39 of the Florida Statutes.

What does a no fault divorce mean?

No-fault simply means that Florida law does not require a reason to get divorced.  You only need to prove that the marriage is irretrievably broken.   Irreconcilable differences are exactly what they sound like. It means one party believes there are marital disagreements that cannot be resolved through counseling or the like, regardless of who was at fault. This is important because the burden to start proceedings is relatively easy to satisfy, unlike in other states.

What if I want to get divorced, but already worked the terms out with my soon-to-be-ex-spouse?

If the terms are agreed upon, including how the affairs regarding the children, if there are any, then you have what is known as an uncontested divorce. Since most of the work that otherwise would be litigated is already agreed upon, uncontested divorces are much more affordable than contested divorces.   If done correctly, you can be divorced within just a few months and very little cost. 

How long does a contested divorce take?

If your spouse is difficult, hiding assets and/or just refusing to cooperate – litigation can take years and cost tens of thousands of dollars.   If your spouse engages in bad faith or frivolous litigation, the court may make your spouse pay some or all of your attorney fees as a sanction.  We, at the Horton Law Group. P.A. try to avoid years of litigation.  The general process is this:

  • One spouse files suit
  • The other spouse is served and has 20 days to file a responsive pleading
  • Both parties have 45 days to comply with mandatory disclosure.  See Family Law Rule 12.285.
  • Parties can engage in discovery, deposition, issuance of subpoenas, motion practice, temporary relief, etc…
  • The parties are required to attend mediation before trial
  • If the case cannot be settled at mediation – the parties are required to attend trial and the judge decides who gets what and how to timeshare the children.

What is Temporary Relief

When one party is in a lesser position than the other party financially, that party can file a motion for temporary relief seeking temporary child support, temporary attorney fees and temporary alimony during the pendency of the proceedings.  The standard is based on the need of one spouse vs. the ability of the other spouse to pay. In addition, you can also seek temporary timesharing and exclusive use of the marital home.   If one party is not happy with the timesharing arrangement involving the children or if the other parent is not allowing you to see your children – you can file a motion for temporary timesharing seeking a timesharing sharing during the pendency of the case.

How much does it Cost to get divorced?

The number one question we get is how much is this going to cost me?   Our answer varies greatly based upon the following factors:

  • Who is the attorney representing the other spouse? Is that attorney reasonable or is that attorney going to file motion after motion just to increase the costs of fees?
  • Is the other spouse reasonable?  Can we resolve all issues or some issues informally or through mediation?  The more issues we resolve outside of court – the better it is for your wallet.
  • What is your annual income and what is the annual income of your spouse.  Attorney fees can be awarded on a need v. ability standard, substantial disparity of income standard or as a sanction to punish the other party or opposing counsel for vexatious and bad faith litigation.
There is no way to predict how much a contested litigation case will cost.  We will review the court file and provide you with an initial case analysis and a litigation budget so you will have a better idea of what your case will look like through trial and what it will most likely cost, if settlement is not an option.

What is the difference between DCF and the State Attorney’s Office in Dependency cases?

DCF does not punish people. Fla. Stat. §39.501. DCF does not put people in jail or fine them. DCF deals exclusively with finding permanency (a permanent and safe residence) for the children who fall victim to abuse. Fla. Stat. §39.501. The State Attorney’s Office determines whether to file criminal charges against the parent or parents for child abuse, neglect or abandonment.

When can the State take my children from me?

Pursuant to Fla. Stat. §39.402, there are three grounds for taking children into custody:

  1. That the child has been abused, neglected, or abandoned, or is suffering from or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment;
  2. That the parent or legal custodian of the child has materially violated a condition of placement imposed by the court; or
  3. That the child has no parent, legal custodian, or responsible adult relative immediately known and available to provide supervision and care.

How is child abuse investigated?

Usually, someone calls the child abuse hotline (1-800-962-2873) to report child abuse. Fla. Stat. §39.201. All calls to the hotline are received by specially trained people in Tallahassee who then filter the calls. Id. Cases which do not meet the criteria for sheltering a child are screened out. Id. Case which does, are then forwarded to the appropriate local agency to investigate. Id. Many of the local agencies operate out of the county sheriff’s office to contact the parents and begin an investigation.  Based on the urgency of the case, investigations can begin within 24 hours. Upon the initiation of a child abuse investigation, the case will be assigned to a Child Protective Investigator (CPI) who will ideally see the case through from inception to closure. Fla. Stat. §39.301. A CPI has 60 days to complete an investigation. Id. This may include interviewing the children, parents, family members, polices officers, neighbors, doctors, nurses, teachers, and anyone else who may have information on the suspected abuse. Id. CPIs will also do walk-throughs of a family’s home, Id., and take the children for medical examinations, if necessary, Fla. Stat. §39.303. It is strongly advised that you retain counsel immediately upon the commencement of the investigation and that you cooperate with all parties and comply with all recommendations of CPI, law enforcement or DCF.  Failure to do so will negatively impact your case.

What happens at the end of a child abuse investigation?

Most often, a CPI will determine if there are grounds to shelter a child (take the child from the parent and put them somewhere else). Shelter petitions can be field based upon any of the following grounds:

  • substance-exposed newborns (meaning the mother used drugs during pregnancy),
  • sexual abuse,
  • physical abuse resulting in bodily injury,
  • unexplained physical injuries,
  • children who are left alone for extended periods of time
  • hazardous living conditions,
  • severe neglect,
  • malnourished children
  • alcohol or drug addition of the parents
  • committing violent crimes in the presence of the children
  • failure to enroll children in school or provide them with necessary medical treatment children who are exposed to domestic violence (either by being abused or being present while other are abused). See Fla. Stat. §39.01.
There are many other grounds that may trigger a shelter petition.  However, the above referenced scenarios are the most common.   In such types of cases, children will be immediately removed from the parents’ custody and placed in someone else’s custody, or “sheltered.” Fla. Stat. §39.01. In addition to agents of the Department, police officers also have the authority to take children into custody if they have “probable cause” to support grounds for shelter. Fla. Stat. §39.401. Where the abuse is not immediately apparent, or where the parents cooperate with DCF and the children are not in immediate danger, a CPI may instead implement a “Safety Plan.” Fla. Stat. §39.301. A safety plan is a voluntary agreement with the parents, in that, the parents agree to abide by certain terms that will ensure the safety of the children until a determination is made, or during which time the parents will engage in voluntary services offered by the CPI that will resolve the causes for concern. Id.

Landlord & Tenant Questions Back To Top

What are My Rights as a Tenant?

Tenants’ rights are governed by Chapter 83 of the Florida Landlord Tenant Act, and they are also governed by the terms negotiated in your lease agreement.   So be careful to what you agree to and/or what you waive under the terms of the lease.  In a nutshell, tenants are entitled to: Private Possession of The Property, A Habitable Dwelling, and a property free from unreasonable interference from the landlord.  You have many rights, but you can waive these rights if you sign a lease, and you do not understand it. Not reading the lease is not a defense to the lease.

How long does the eviction process take?

 In a perfect world, 2 weeks.  Realistically, it can take anywhere from 2 weeks to several months, depending on various factors.  

If something is broken and I ask the landlord to fix it, can they terminate the lease?

No. A landlord may not retaliate against tenants for requesting repairs or exercising any right to a safe rental dwelling. Fla. Stat. §83.67. Retaliatory conduct includes:

  • Interrupting any utility service that the tenant is entitled to, such as water, electricity, or gas.
  • Preventing a tenant’s reasonable access to the property.
  • Recovering possessions from the property, such as appliances.
  • Increasing Rent.
Landlords who are found to have engaged in any acts of retaliation against a Tenant can be held liable for actual damages. Fla. Stat. §83.67. Plus, they may be liable to pay your attorney fees.

As a landlord, what rights do I have?

  • Timely Payment of Rent. A landlord is entitled to the timely payment of rent. If a tenant offers the full amount of outstanding rent, the landlord must accept it. However, if the tenant offers less than the outstanding amount, the landlord does not have to accept the amount offered by the tenant.  The landlord can sue for past rent, eviction and attorney fees.  If the tenant damaged the property, the landlord can sue for damages also. 
  • Compliance with the Lease. A landlord may evict a tenant for failing to abide by the lease terms. Some reasons may include excessive noise, property damage, having pets when the lease does not permit doing so, or not following parking protocols. Fla. Stat. § 83.20.
  • The right to choose to whom you rent your property to (as long as you do not engage in discrimination).
  • The right to remove a tenant if they breach the lease. This is self-explanatory.

What happens if the tenant will not leave after a landlord evicts him/her?

A sheriff will forcibly remove the party from the premises and at that point, the landlord can remove all of the tenants personal property from the premises and change the locks.  Fla. Stat. § 83.62.

How much do eviction and unlawful detainer actions costs?

The short answer is that the cost varies from case to case.  A simple and uncontested litigation case may cost a few thousand dollars in court costs, process serving costs and attorney fees.  Contested and/or complicated litigation cases can cost thousands of dollars.  Mistakes and Ambiguities in the lease agreement can tack on thousands of dollars to litigation – thus, it pays to do it right, in the beginning – have an experienced attorney help draft and negotiate your terms of your lease.  If litigation arises thereafter, quality counsel will already be familiar with your case and in your corner ready to fight for you.   The good news is that the prevailing party in a landlord tenant action, per statute, is entitled to fees – thus, you better make sure you have an aggressive attorney fighting for you.

What do I do when my lease is over, and my landlord does not give me back my security deposit?

The landlord has 15 days after you vacate to return your security deposit to you, with interest if applicable. Fla. Stat. §83.49(3)(a). If the landlord does intend to impose a claim against you for damage to the property, the landlord, instead, has 30 days after you vacate to send you a letter advising that they are withholding all or part of your security deposit.   If the landlord fails to send notice of intent to impose a claim within 30 days, you can sue the landlord for breach of lease for failure to return the security deposit and you can recover actual damages and your attorney’s fees for having to file suit. Fla. Stat. §83.49(3)(c).

Paternity Questions Back To Top

How Do I Establish Paternity?

  • To establish paternity, one must file a Petition to Establish Paternity with the court.
  • To have standing to file a paternity action, you must be a resident of Florida for at least 6 months.
  • Paternity can be established through DNA testing or a stipulation between the parties, of which will result in an order establishing paternity.
  • You must allege specific facts within your petition to establish paternity.  Failure to do so may result in your action being dismissed.
  • In the Petition, you should also as the court to establish child support and a timesharing schedule.

Can the court order child support?

  • The answer is YES.  The court is required to implement child support guidelines.
  • The mother can ever request prior child support going back 24 months from the date the petition was filed.
  • Child support is determined by the Child Support Guidelines of Florida under Fla. Stat. 61.30. For example if there is a net income to determine minimum child support of $800.00 income then one child’s support would be $190 per month. Each parent’s support will be different depending on their monthly net income.

What type of timesharing am I entitled to?

It depends on the facts of your case.  Barring any extraordinary circumstance, Florida law makes clear that both parents should have frequent and continuous contact with the children.  There are many different parenting plans.

Can someone adopt my child, without my consent, if paternity is not established?

The answer is YES.   It is critical that you register with the Florida Putative Father Registry with the Office of Vital Statistics, so they know you may be the father of a child in Florida and you should file an action to establish paternity.

If I Find Out That My Child Is Not My Child, Can I Disestablish My Paternity?

Yes – but the process is complex.  In Florida, to disestablish paternity, you must file a Petition to Disestablish Paternity with the court.  The disestablish petition must strictly comply Florida Statute 742.18Otherwise, it will be denied.

What if I have a baby with a woman who is married to someone else?

The “marital presumption” provides that any child born to an intact marriage shall be deemed the child of that father. That way, no man could ever deny a child was his. The marital presumption still holds strong in Florida and it is very difficult to overcome. A man can swear up and down he hasn’t seen his wife in years. It doesn’t matter. That child is presumed his until proven otherwise. These types of cases present various complex issues.  You should contact the Horton Law Group, P.A. to schedule your free consultation.

How long does a paternity action take?

Paternity actions follow the same procedure as dissolution of marriage proceedings with the exception that there is no alimony or equitable division of martial assets.  The process is more of less:

  • File the petition and various other required documentation
  • Have the respondent served with process
  • The respondent then has 20 days to file a responsive pleading
  • Both parties have to comply with Mandatory Disclosure within 45 days
  • Both parties can engage in discovery, depositions and issue subpoenas.
  • Both parties can retain experts
  • Both parties are required to attend mediation.
  • If the case cannot resolve itself at mediation, a trial date will be set and a court will render rulings on all issues in your case.
Paternity actions can take between 12 – 24 months, if they are contested. If they are not contested, they usually take about 6 months.

How much does a paternity action cost?

The cost of the case depends on whether paternity is contested.  Paternity actions can be expensive. Especially, if there are allegations of child abuse.  If there are such allegations and experts are required, the cost will increase.  If one party is hiding their income or assets in an effort to avoid paying child support, the cost will increase as a forensic accountant may be required to determine the true financials of the parties. Regardless if experts are involved, you need to keep in mind that this is your child and we are firm believers that it will benefit you and your family to retain quality counsel to represent you from the beginning to ensure your rights and the rights of your child or children are protected.

Probate Questions Back To Top

When do I file a Petition for Formal Administration of Intestate Estate?

  • The Petition for Formal Administration of Intestate Estate is used when an individual(s) died without an estate plan verifying their final wishes. In these circumstances, the court (probate) must determine who should receive the assets of the deceased individual. Meanwhile, Florida has a specific process to make this determination.
  • For this to occur, there are separate forms for both Formal and Summary Administration of "Intestate" estate. The Petition for Formal Administration of Intestate Estate is only used for estates valued at $75,000 or more.

When is a Petition for Summary Administration of Intestate Estate?

The Petition for Summary Administration of Intestate Estate is used when a person passes away without a will and the value of their estate is less than $75,000. Normally in these cases, the deceased person(s) estate is eligible for Summary Administration through the court (probate) but still has to enter a process to determine who should inherit the property.

What is a Petition for Formal Administration of Testate Estate?

A Petition for Formal Administration of Testate Estate is performed when the resident passes away with a will. It is started by filing a petition for administration which identifies the descendant, states the approximate nature and value of the estate assets, names the beneficiaries, requests appointment of a personal representative, and, in a testate estate, identifies the will and requests that it be admitted to probate.

What is a Petition for Summary Administration of Testate Estate?

A Petition for Summary Administration of Testate Estate is used when the Petitioner is a beneficiary or a person nominated as personal representative in the decedent's will offered for probate. The petition includes a statement that the decedent's will does not direct administration as required by chapter 733, Florida Statutes.

What is a Petition for Formal Ancillary Administration?

A Petition for Formal Ancillary Administration is for non-residents of Florida who own property(s) within the State of Florida. For example, if someone in New York own a vacation home in Florida and passes away (while residing in New York), their property will ultimately need to go through Ancillary Probate in order to determine who will received the property of the deceased.

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