Frequently Asked Questions

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Everyone’s legal situation is different, but some questions have answers that apply to us all.  We’ve compiled some commonly asked legal questions so that you can have a better understanding of the law in general.  Whether your particular matter involves personal injury, real estate, business law, a car accident, bankruptcy, criminal defense, or family law, click below or scroll down to find answers.

Remember, this FAQ provides quick answers on an array of legal topics, not legal advice.  If you need legal help, call our attorneys today and schedule your consultation.

Auto/Car Accident
Bankruptcy
Business Law
Criminal Defense
Disability, Insurance & Pension
Employment & Labor
Family Law
General Questions
Immigration
Intellectual Property
Litigation | Legal Dispute
Medical | Professional Malpractice
Personal Injury
Real Estate
Wills, Trusts & Probate
Wrongful Death

Auto/Car Accident

What should I do if I am involved in a car, truck, motorcycle, golf cart, pedestrian, bicycle, boat, or other type of motor vehicle accident? What steps should I take?

Step 1. Stop and move out of the way of traffic.  If possible, move your vehicle to the side of the road to allow for oncoming traffic.  Make sure not to leave the scene, and take pictures of the scene and the vehicles involved.

Step 2. Under Florida law, you are only required to report an accident if property damage exceeds $500.00 or if there is an injury.  However, reporting the accident so that it can be properly documented can be in your best interest if the damage is more extensive than initially thought, or if injuries only make themselves apparent days after the accident.  When reporting an accident, make sure to call the police and your insurance company.  In certain situations, insurance companies may deny coverage if the accident is not reported within a specific amount of time.

Step 3. Make sure to get the personal information and insurance information from all other drivers involved in the accident.  If possible, make a diagram of the accident scene so it can be confirmed with the official accident report made by the authorities.  Take as many photos as possible.  This includes photos of the vehicles involved and any injuries you may have received, no matter how minor they may seem.

Step 4. Do not give any statements to an insurance adjuster!  Even if the adjuster is working for your insurance company, you do not want to give a statement before consulting a personal injury attorney.  Any statement you make can be used against you later.

Step 5.  See a doctor!  Some injuries take days to appear following an accident.  Shock and adrenaline can mask the pain.  If medical experts arrive at the scene, allow them to examine you.  If not, visit your doctor or go to the local ER as soon as you can.  Make sure to give your doctor as much information as possible so you will have a detailed record of any injuries.

Step 6. Contact a Personal Injury attorney.  Before giving any statements to an insurance company or signing any kind of form, call a personal injury attorney and get help with your claim.  They can make sure you meet any deadlines and will help you with any paperwork or statements involved, as well as help you recover any damages you may be due.

Do I have to give a recorded statement to an insurance adjuster?

The short answer is “maybe.”  It is possible that you purchased an insurance policy that would require you to give a recorded statement.  It is unlikely that you should give a statement to the at-fault party insurance company prior to a lawsuit.  You need to know that any statement you make to the insurance adjuster can be used against you, even if the adjuster is working for your insurance company.  Make sure to demand a transcript of your statement from the adjuster if you make any statement.  Whether the insurance adjuster works for you or another party involved in your personal injury claim, it is strongly recommended that you do not make a statement without professional legal representation by your side.

I was in an accident a few days ago and just now started feeling pain, what should I do?

Visit the ER, Urgent Care or your doctor as soon as possible.  Quite often injuries suffered in motor vehicle accidents do not become apparent until the day after or even several days later.  Sometimes adrenaline and shock covers the pain until some time has passed.  Even if you got checked immediately after the accident, you should see a doctor for these new pains.  They might give the doctor reason to examine you more extensively than previously expected.  Just because it may have taken a couple days to feel any pain, that does not mean you are any less entitled to compensation for your injuries.  If you have yet to do so, contact a personal injury attorney and they can help you review your case.

I was in a serious automobile accident, had to miss months of work, and will have lifelong injuries. My medical bills are very expensive and I need more procedures. The person responsible only had $100,000 of liability insurance. Can I make him pay the rest out-of-pocket?

The party responsible is liable for all the damage or cause they harm, not just the amount covered by their insurance.  Insurance is used as a buffer to keep the out of pocket costs at a minimum.  However, if the expenses exceed the amount covered by the insurance, the liable party is responsible for paying the difference.  The problem then arises of making the liable party actually pay.  They need to have assets and/or income.  If the burden of paying becomes too great, the liable party may file bankruptcy, discharging the remaining obligation (with limited exceptions).

I was injured in an automobile accident and the other party died from their injuries. The other party is the one at fault. Can I still sue them?

In a sense, yes.  Who you would be suing in this case is the “personal representative” of that person’s estate.  In Florida, you would not sue the deceased person’s estate directly.  If there is no estate opened for the person, and therefore no personal representative, you can pay a fee to file a petition in the county where the deceased person died in order to open up a Florida probate.  You are filing to have an estate opened.  The person’s insurance company is still obligated to defend the case and to pay you any money for which you are entitled for the accident.  This does not change because the person died.

I own my own business and have to miss a lot of work due to injuries I suffered in an automobile accident where the other party was at fault. Can I recover damages for the impact the accident had on my business as a whole?

Proving loss of income for people who are self-employed is not easy.  One of the best ways to show a loss of income is by keeping detailed records of earnings, expenses, tax returns, and receipts for comparison of earnings after the accident.  Make sure to keep detailed records of your injuries and treatments to show that they were serious enough to force you to take time off work and have a negative effect on the business.

Bankruptcy

Do I need a lawyer to file bankruptcy?

No, but it is strongly recommended. A bankruptcy attorney can be an invaluable asset throughout the entire process. Bankruptcy laws have gone through recent changes that may make them even more difficult for individuals to handle on their own. One mistake can mean the difference between a successful bankruptcy and losing assets such as a home or vehicle.

How often can I file for bankruptcy?

This is a little tricky. There is no waiting period for a person to file bankruptcy after their initial filing, but if the person just received a discharge, they will be unable to immediately receive another. This might sound confusing, but basically a person can file as often as they like under the premise that if the initial filing was not approved, they would not have to wait to try again. Once a person’s debts are discharged, they are ineligible to receive another discharge for a pre-determined amount of time. Put simply, a person can file for bankruptcy as often as they want, but it will only be worth the time and effort until they are granted a discharge. Now that those hairs have been split, here is how often a person may receive a discharge. Once a person receives a Chapter 7 discharge, they cannot receive another Chapter 7 discharge within 8 years of the date of the original bankruptcy’s filing. If a person received a Chapter 13 discharge, they cannot receive another discharge within 2 years of the filing date of the original bankruptcy. Things get complicated again if a person wants to follow up their Chapter 7 bankruptcy with a Chapter 13 bankruptcy, or vice versa. Consulting an experienced bankruptcy attorney can help clear up the finer details.

What are the different types of bankruptcy?

Chapter 7: This is known as “liquidation” or a “straight” bankruptcy.  It is used to eliminate debts such as medical bills and credit card debt (which are unsecured), and certain taxes.  Some personal property may be protected from creditors by filing Chapter 7, and can be filed by either individuals or businesses.
Chapter 11: This type of bankruptcy is known as “reorganization.”  All debts (including loans, taxes, rent, and equipment payments) are discharged by Chapter 11.  It can be filed by individuals or businesses, with the benefit of the business being able to remain operational while the reorganization is in progress.
Chapter 12: Specially tailored for family farmers and fishermen, this type of bankruptcy is a personal or corporate repayment plan.  Chapter 12 allows the business to remain operational while the debt is paid off over time, and attempts to keep the operation from having to liquidate assets.
Chapter 13: Also known as “debt adjustment,” Chapter 13 bankruptcy is a repayment plan for individuals and sole proprietorships with regular income.  It allows for debts to be paid off over time while helping avoid foreclosure or repossession of vehicles or property.  Even debts such as child support, mortgages, and money owed to the IRS are included in this method of repayment.

Despite common belief, there are certain instances when student loans are dischargeable in bankruptcy.  For more information, contact a bankruptcy attorney today.

What if I don't know who I owe, or how much I owe?

It is more important to know who is owed money than the exact amounts owed. Without knowing who debts are owed to, there is no way they can be discharged. A good step in the right direction is obtaining a credit report, which can usually be done online at no charge.

What is bankruptcy?

Bankruptcy is the process through which a party can legally eliminate or at least drastically reduce their amount of debt. There are different types of bankruptcy for different situations, but Chapters 7 and 13 are the most commonly filed.

What should I bring with me to my first consultation with a bankruptcy lawyer?

Upon meeting with a bankruptcy attorney for the first time, it is important to bring along documents so that the attorney can get a clearer picture of the situation.  Everyone’s bankruptcy is different, but these papers will help the attorney determine the best way to handle the case:

  • A list of creditors, with the amounts owed to each.  This does not have to be an official credit report, but the more thorough the list, the better.
  • A list of assets including retirement accounts, financial accounts, trusts, real estate, vehicles, and any other asset that may become involved in the bankruptcy proceeding.  The list should be as thorough as possible.  Assets should not be hidden.
  • The most recent available paystub showing year-to-date earnings, gross income, and net income.  People who are self-employed should bring an estimate of their earnings for the past 6 months, including month-to-month profits and losses.
  • Copies of any currently pending liens, lawsuits, and judgments.
  • Copies of spouse’s most recent paystub with gross and net income (if married but filing separately).

Will creditors stop harassing me once I file bankruptcy?

After the requisite paperwork is filed, the bankruptcy court will issue what is called an automatic stay. An automatic stay stops creditors from making any more attempts to make contact or collect debts.

Will I actually have to go to court after filing for bankruptcy?

Anyone filing for bankruptcy will likely have to attend a meeting of their creditors about a month after filing the petition papers. This is called a 341 meeting. A court-appointed trustee will interview the debtor to make sure the information submitted in the petitions and schedules was accurate. If the debtor is filing Chapter 7 bankruptcy, the trustee will be determining if asset liquidation will be appropriate. If the debtor is filing Chapter 13 bankruptcy, the trustee will be tasked with making sure the debtors reorganization plan complies with the bankruptcy code.

Will I be completely debt-free after filing bankruptcy, no matter what types of debt I have?

Unfortunately, no. This misconception is all too common. Only certain types of unsecured debts are allowed to be discharged through bankruptcy, such as medical bills, credit card debts, and unsecured loans. Among the types of debt that cannot be discharged by bankruptcy are alimony, child support, most student loans, and taxes such as trust fund recovery taxes.

Won't declaring bankruptcy damage my credit?

Bankruptcy does impact a person’s credit score, but the effects do not last forever. Chapter 7 bankruptcies will normally remain on a persons credit history for 10 years, and a Chapter 13 bankruptcy will remain for 7 years. There is no reason for a person to think they can’t have strong credit after a bankruptcy. It is entirely possible for a person to end up having better credit than they did before filing bankruptcy. It should be noted that their interest rates may be higher, though.

Business Law

Do I have to hire a lawyer if I want to start a business?

It can’t be recommended enough. While it is legal to start a business without one, an attorney experienced in Business Law and Commercial Litigation can be an incredibly valuable asset. An attorney can help determine which type of business entity is the most suitable, help draft contracts and articles of incorporation, help obtain necessary permits and licenses, and more. Just the benefit of having someone there to respond when questions or issues come up out of the blue cannot be understated. An experienced attorney is one of the best investments a business owner can make.

I want to start my own business and keep it simple. Is a sole proprietorship a good idea?

It depends. A sole proprietorship is the simplest form of business, that much is clear. Sole proprietorships are, by name and definition, owned by only one individual. Unlike a corporation, a sole proprietorship is not a legal entity. Therefore, it is not a taxable entity. Legally, the business owner is the sole proprietorship. The owner reports the business’s profits and losses on their own annual tax return. The biggest advantage to a sole proprietorship is that all profits go directly to the owner. Conversely, the biggest disadvantage is that all debts are the responsibility of the owner.

Im thinking of starting my own business. What are some of the issues I should be considering before making any big decisions?

Before anything else, consider what type of business entity is right for the business type. There are sole proprietorships, partnerships, corporations, and limited liability corporations (LLCs). The size and type of business being conducted will likely help determining which type of business entity will be the best fit. There are different advantages and disadvantages to each type of business entity. Allocation of profits and losses among the owners is another concern if the business is going to have more than one owner. Then there is also the matter of determining how much employees are to be paid and drafting any types of employment agreements employees are to sign upon accepting employment with the company. All of these decisions can have effects that last throughout the life of the business, so it is important to make the right ones from the start. Contact an attorney experienced in Business Law today for assistance in determining the right business entity, drafting necessary documents, and answering difficult questions.

Ive heard of Joint Ventures. How are these different from partnerships?

While partnerships and joint ventures share similarities, their goals are different. Where a partnership is a business entity that has two or more owners, a joint venture occurs when two (or more) business entities come together for a limited time for a specific goal.

What is a corporation?

Corporations are business entities that protect their shareholders by allowing limited liability so that the assets they invest in the business tend to be the only assets placed at stake, leaving personal assets of the shareholders safe from any losses the corporation may incur. Corporations are composed of three different types of people, with different levels of involvement. There are the shareholders, who vote on major corporate changes and elect directors. Directors are responsible for managing the business overall, and hire the CEO and other corporate officers. The CEO and the corporate officers are in charge of the business’s everyday operations.

What is a Limited Liability Corporation (LLC)?

A limited liability corporation (or LLC) is sort of a hybrid-type business structure, bearing the advantages and disadvantages of several different business types. Like a standard corporation, LLCs limit the personal liability of the members, meaning that the personal assets of the members are protected against recovery by debtors for any losses, business credit, or debt belonging to the company.  At the same time, the company may remain eligible for pass-through taxation like sole proprietorships and partnerships.
Despite the advantages, an LLC is not always the right choice for every business.  It helps to contact an attorney experienced in Business Law so they can discuss which types of business formations may be the most suitable for different situations.

What is a non-profit corporation?

Non-profit corporations are organizations created to carry out scientific, educational, literary, religious, or charitable purposes. Non-profit corporations are exempt from paying state and federal income taxes on profits derived from the works it performs to meet its goals. These corporations are sometimes called 501(c)(3) corporations, named for the section of the Internal Revenue Code dealing with the tax exemption for non-profits.

What is Business Law?

Business Law (also known as Commercial Law) encompasses many different smaller areas of law, all concerning the formation, operation, and sale or closing of a business.   Business law utilizes a wide array of legal areas, including (but not limited to):

  • Real Estate Law
  • Intellectual Property Law
  • Contract Law
  • Tax Law
  • Bankruptcy Law
  • Employment & Labor Law
  • Estate Planning & Wills

While Estate Planning & Wills might look out of place on the above list, businesses (especially those that are family-owned & operated) often need to make provisions for a clear and relatively smooth transition in ownership from one owner to another upon the death of the current owner.

What is the difference between a C corporation and an S corporation?

In short, taxes. The majority of large, publicly held corporations are C corporations. Some corporations are able to eligible to file an election (Form 2553) that will let the corporation be taxed under rules that are more like that of an LLC. Corporations that use this type of taxation are S corporations. Only certain corporations meet the tax requirements to become S corporations. If C corporations pay their shareholders dividends, the corporation will face double taxation. A C corporation will pay taxes on its profits before paying out its dividends to the shareholders, and the shareholders will then have to pay taxes when filing their individual tax returns. S corporations are not subject to double taxation as long as the requirements are met, and the shareholders are protected from corporate debts.

Whats the difference between a merger and an acquisition?

An acquisition occurs when one company buys (or otherwise acquires) another company’s assets or stock. A merger occurs when two companies come together to form a new company.

Criminal Defense

Criminal Misdemeanor & Felony

Can a law enforcement officer detain you without arresting you?

A police officer can detain you for a reasonable time if you are suspected to have been involved in criminal activity. The police officer may perform a pat-down if there is any reason to suspect that you may be carrying a weapon. If you are carrying a weapon (regardless of any involvement in the activity for which you are being detained), the officer may remove the weapon for the purposes of safety. It is likely the officer will ask you questions, but you are within your rights to refuse to answer. Remember – when speaking with any law enforcement officer regarding suspected criminal activity, you always have the constitutional right to remain silent and the right to have an attorney present with you for all questioning. Never speak with any law enforcement officer about your involvement in suspected criminal activity without first consulting with an experienced attorney!

I have already been arrested and charged with a minor crime. Do I really need a lawyer if I just want to plead guilty and get it over with?

Even if you are being charged with a minor offense to which you believe you are guilty, you should always have an attorney review your case before entering a plea. Even if you are being charged for possession of alcohol, the penalties for a first offense range from hundreds of dollars in fines to 60 days in jail. Any type of conviction for drug charges will come up whenever a prospective employer runs a background check, and will also make you ineligible to receive federal financial aid for college. An attorney may help you find defenses you did not even know were available. If all else fails, your attorney may be able to negotiate for leniency or a reduced charge.

I have been accused of a crime I didn't commit. Won't the prosecution view my retaining a criminal defense lawyer as an admission of guilt?

Not at all. If you are charged with a crime, it is your Constitutional right to have professional legal representation present. Regardless of your involvement (or lack thereof), the right to an attorney is one of the most important rights you have as an American.

Is there a way to find out if there is a warrant for my arrest?

Yes, there is. Contact a professional bail bondsman. Simply ask if there are any warrants out for your arrest and they will be able to tell you. Additionally, some counties report outstanding warrants to the centralized, statewide Florida Department of Law Enforcement (F.D.L.E.) database, which is searchable online here. Some county sheriffs and Clerks of Court also provide their own online searches for outstanding warrants in their specific county. For example, The Marion County Sheriff’s Office provides an online searchable database of outstanding warrants issued in Marion County, which is searchable online here. Having an open warrant against you is very serious, so call an attorney as soon as possible. Make sure the attorney is in the same jurisdiction as the warrant.

Should I be concerned about having a felony conviction on my record?

Absolutely. Having a felony conviction on your record can impact your life in ways you might not expect. Your rights to gun ownership, to vote, or to obtain a green card will be restricted for the rest of your life. Even certain employers will disregard your application once it is discovered you have a felony conviction. A felony conviction can never be sealed or expunged from your criminal record, and will remain on your criminal record for the duration of your natural life. If you are facing a felony charge, contact an attorney so they can help you review your case.

The police are investigating me and have asked me to come in and give a statement. Should I go in and just tell them my side of the story?

Always make sure to consult an attorney before giving any type of statement to the police.  Since you already know that the police are investigating you, they will be building a case against you with the hopes of obtaining enough evidence needed to make an arrest.  Any statement you give police can be used against you, and the detectives interviewing you are professionally trained to get people talking.  Furthermore, the detectives are under no obligation to tell the truth while questioning you, and may use deceptive tactics to convince you that they will “put in a word” with the District Attorney if you tell them everything.  This is a baseless promise and would most likely not make a difference even if the detective did talk to the DA.  Don’t leave yourself unprotected from false promises. Contact an attorney as soon as possible.

What is the difference between a misdemeanor and a felony?

The difference between misdemeanors and felonies is best described by their corresponding punishments.  While misdemeanors may sometimes be off-handedly considered “minor” crimes, they can actually be punishable by up to one year in jail and fines up to $1,000.00.  The punishments for felonies (including crimes such as kidnapping and homicide) start where misdemeanor punishments leave off.  Maximum sentences for felonies range from 5 years in prison up to a life sentence or even the death penalty.  In both misdemeanors and felonies, the severity of the crime will determine the extent of the sentence.

General Questions

Should I get my own lawyer verses a court appointed lawyer?

If you are accused of a criminal offense, it is your Constitutional right to have legal representation even if you are unable to pay for it. Other situations in which you may be appointed legal representation include a termination of your parental rights, a mental health commitment, or a Child in Need of Assistance action (or CINA). Individuals who are incarcerated are also appointed an attorney when they file civil rights lawsuits. Attorneys appointed by the court are just as diligent, hard-working, and competent as a private practice attorney. However, an attorney in private practice may be able to dedicate more time to you and your case. Choosing your attorney is an important decision and should not be taken lightly.

When should I seek legal advice?

You should seek legal advice whenever you are unsure of your legal rights. If you have been served any form of court order, complaint, or summons, it is important to contact an attorney as soon as possible. Don’t rely solely on the advice from friends and family members. An experienced attorney can make sure your rights are protected.

Disability, Insurance & Pension

Are mental illnesses eligible for disability benefits?

Mental illnesses are indeed eligible for receiving disability benefits through Social Security.

Can I lose disability benefits after I am approved for them?

Disability benefits can be terminated if the person collecting them meets certain criteria. Benefits can be discontinued if a person collecting disability goes back to work and earns enough to exceed the amount known as the Substantial Gainful Activity for at least 9 months (considered a Trial Work Period, or TWP). Additionally, each case is subject to a periodic review known as a Continuing Disability Review, or CDR. If the Social Security Administration determines a persons condition has improved based on the results of the CDR, their disability benefits will be terminated.

Do I have to hire a lawyer to represent me in my Social Security disability claim?

No, claimants are allowed to represent themselves throughout the entire process of applying for Social Security disability. There are benefits to hiring an attorney, though. A disability attorney will evaluate the strengths and weaknesses of the case, collect all the available evidence in order to present the case in front of the SSA, and will fight for the claimants cause.

Do I have to wait a certain amount of time before I file for Social Security disability benefits?

If a person believes they will be out of work for at least one year, they can apply for Social Security disability benefits on the very same day they become disabled. There may even be social workers at the hospital who can assist the disabled person and their family with getting in touch with the Social Security Administration.

How do Social Security Disability Attorneys get paid?

Disability attorneys get paid on a contingency basis.  This means that they get paid a percentage of the applicant’s back pay only if the case is won.  Currently, disability attorneys are entitled to receive up to 25% of the applicant’s back pay, with a cap of $6,000.  Fees for both disability attorneys and non-attorney disability representatives are regulated by both the Social Security Administration and by Congress, making this maximum amount non-negotiable.  It is important to remember that this is a cap based on percentage.  If an applicant is only awarded $1,000, the attorney can only receive a maximum of $250 for representation fees, plus incidental fees.
If the applicant is turned down for benefits, the attorney will not receive a portion of the back pay, but will still be due expenses for incidentals.  These incidentals are covered in the fee agreement, which the applicant must sign before the attorney will agree to take the case.  Common incidentals include obtaining medical records, making copies, and travel expenses.  It is important to read the fee agreement carefully before signing it.

How is Social Security Disability different from Supplemental Security Income (SSI)?

Both types of benefits are for people who suffer from a disability and are no longer able to work. The difference is determined by whether a person has worked long enough to pay into the Social Security system in order to qualify for Social Security Disability Insurance Benefits (known as DIB for short). If the person has worked long enough to pay a minimum amount in taxes based on the Federal Insurance Contributions Act (FICA), they will be eligible to qualify for DIB. An important note here is that even if a person qualifies for eligibility, their claim may still be denied by the government. For people who have not paid the sufficient amount into the Social Security system for them to qualify for eligibility, there is the option of Supplemental Security Income (SSI). In this case, a persons income status and other resources available to them will be reviewed by the government to determine if the person is qualified to receive SSI benefits.

If I expect to get better and go back to work, can I still get Social Security disability benefits?

It depends.  A person has to have either been disabled for at least one year, or expects to be.  If a person expects to be disabled for at least a year, they can file for Social Security disability benefits as soon as they become disabled.  This is known as a “Closed Period of Disability.”  Without proper medical documentation from the treating physician, Closed Periods of Disability are rarely approved.

Is applying for Social Security disability benefits difficult?

The Social Security Administration Office has 3 ways to apply for Social Security disability benefits, in an attempt to make it as easy as possible. Each method will have advantages and disadvantages based on an individuals unique situation. The most direct method is to visit a local Social Security Administration building and file in person. The second method is to call Social Security toll-free at 1 (800) 772-1213 and use an automated system to set an appointment for a phone interview. After completing the phone interview, during which basic information is collected, the necessary paperwork is sent to the applicant. Finally, applications can be filled out on the official Social Security website.

What can I do if I have already been denied Social Security disability benefits?

The most important thing is not to get discouraged.  It is very common to get denied the first time applying for Social Security disability benefits.  If an attorney has not already been obtained for the initial application process, it is strongly recommended that one at least be consulted at this point.  An attorney will assist the applicant in filing a “Request for Reconsideration.”  This request must be filed within 60 days date of the original denial letter.  Not filing within that time period will likely result in the applicant having to start over from the beginning, and could result in lost benefits (not to mention lost time and effort).  Because time is a factor, it is important to request reconsideration right away.
The second most important thing is to still not get discouraged if you are denied a second time.  Less than one-third of people who are denied disability the first time apply for reconsideration.  Roughly one-fourth of the people who apply a second time are actually approved.  It is not uncommon for applicants to have to continue the appeals process to the 8th Circuit Appellate Courts or Federal Court.  While going through appeals, applicants should still remain in contact with their doctors and follow medical instructions as not to damage their case.

Who is eligible for disability benefits from Social Security?

Under the current rules of Social Security, a person must have an injury or a medical condition that is expected to keep them from working for a minimum of 12 months in order to be considered disabled (and therefore eligible to receive benefits). Physical conditions, mental conditions, and a combination of the two can be disabilities.

Will I receive Medicaid or Medicare or both?

It depends.  While Medicaid is funded by the federal government, it is administered by the state, creating different eligibility requirements.  In Florida (and Georgia), people who receive Supplemental Security Income are automatically eligible for Medicaid.
If a person receives Social Security Disability Insurance, they must wait two years from the date they became entitled to benefits for Medicare coverage to begin.  In certain situations a person may be awarded retroactive benefits for up to 12 months prior to the date the person filed their initial application for disability.  Exceptions to the two-year rule include people who have endured permanent kidney failure or have amyotrophic lateral sclerosis (ALS).  People with these conditions are automatically eligible for Medicare coverage.

Employment & Labor

Can my boss really fire me for literally no reason?

Doesn’t seem fair, does it? Except for employees who are hired under contract, employment in the U.S. is generally “at-will.” In the state of Florida, this means employers are under no legal obligation to continue an employee’s employment for any amount of time, with or without notice, and with or without reason. Many companies have a “probationary period” for new employees, during which the employee understands they may be terminated without cause, but from that point on it may be assumed on the part of the employee that the employer will have to give a reason for the employee’s termination. This is simply not true. Any company that enters into this arrangement with its employees is extending a courtesy. Just because an employer may be allowed to fire an employee for no reason does not mean they can fire someone for any reason. If there is reason to believe termination was due to discrimination or any other illegal labor practices, contact an attorney experienced in Labor & Employment Law right away.

Do I have to verify the citizenship of my employees if I am a small business owner?

Yes. Employers in the U.S. must verify both the identity and the employment eligibility of each of their employees. They must also verify whether or not their employees are U.S. citizens. These regulations were enacted by the Immigration Reform and Control Act. An employer would file an I-9 (Employment Eligibility Verification Form) and look over the employees submitted documentation alleging eligibility. By law, the employer must keep the I-9 forms for all employees until 3 years after the date of hiring, or until 1 year after termination (whichever comes last).

Does a potential employer have to tell me why I didn't get the job?

No, they do not. Employers may even be instructed by their legal teams not to give any reason when delivering the bad news.

How can I make sure my employer accommodates my disability?

It is up to the employee to make sure the employer knows of the disability and to let the employer know that an accommodation is required.  It is not the employer’s responsibility to recognize that the employee has a need first.  Once a request is made, the employee and the employer need to work together to find if accommodations are actually necessary, and if so, what they will be.  Both parties have a responsibility to be cooperative.  An employer cannot propose only one unhelpful option and then refuse to offer further options, and employees cannot refuse to explain which duties are being impeded by their disability or refuse to give medical evidence of their disability.  If the employee refuses to give relevant medical evidence or explain why the accommodation is required, the employer cannot be held accountable for not making the accommodation.
Even if a person is filling out a job application, an employer may be required to make accommodations to assist the applicant in filling it out.  However, like an employee, the applicant is responsible for letting the employer know that an accommodation is required.  Then it is up to the employer to work with the applicant to complete the application process.

How does the Fair Labor Standards Act (FLSA) work?

Part of the Civil Rights Act of 1964, Title VII protects individuals from discrimination in aspects of employment, including (but not limited to) pay, classification, termination, hiring, employment training, referral, promotion, and benefits based on (among other things) the individuals color, nation of origin, race, gender, or status as a veteran.

How does the Family and Medical Leave Act (FMLA) impact employers?

Under the Family and Medical Leave Act (FMLA), eligible private employers are required to provide leave for selected military, family, and medical reasons. Note that the required leave under this law is unpaid.

What is at-will employment? How do I know if I'm an at-will employee?

At-will employment means that an applicant is agreeing to an arrangement with the employer that employment can be terminated at any time, without notice, and without reason. Because at-will employment is a national standard (although not a law), an employee implies consent simply by entering into employment. So unless a statement to the contrary is in the employees hiring papers or contract, they are automatically an at-will employee. However, if an employee has reason to believe they were fired due to discrimination or other illegal practices, they should contact an attorney experienced in Employment & Labor Law right away.

What is the Occupational Safety and Health Act (OSHA)? Isn't OSHA a government agency?

The Occupational Safety and Health Act (OSHA) set safety and health standards for employers and employees in the workplace. It is the piece of legislation that established the formation of the Occupational Safety and Health Administration, which is the organization that enforces the regulations.

What is the purpose of the Americans with Disabilities Act (ADA)?

The Americans with Disabilities Act (ADA) protects disabled people from discrimination in public accommodation, employment, governmental activities, communications, and transportation.

What is Title VII and how might it help me?

Part of the Civil Rights Act of 1964, Title VII protects individuals from discrimination in aspects of employment, including (but not limited to) pay, classification, termination, hiring, employment training, referral, promotion, and benefits based on the individuals color, nation of origin, race, sex, or religion.

Family Law

Can I divorce my spouse if they live out of state?

Yes. As long as at least one of the partners meets the minimum residency requirement of 6 months, a married couple can get a divorce while one lives out of state.

Can I get a divorce if my spouse left and I cant find them?

If a person wants to file for divorce against someone whom they cannot find, they must first perform a diligent good faith search. This means contacting the Department of Motor Vehicles, speaking to friends, family, and acquaintances of the spouse, and publishing a notice in an appropriate newspaper for a brief period of time in an effort to find them. Until the spouse can be found and the divorce papers served, the courts will be unable to order any alimony or divide any property between the parties.

Do I have to hire a lawyer to handle my divorce case?

No, a person may legally represent themselves during a divorce proceeding. However, hiring an experienced divorce attorney is strongly recommended. The paperwork alone can get overwhelming, and the more factors involved in the divorce (property, children, alimony, etc.), the more difficult the process becomes. An experienced attorney will help answer complicated questions and guide the divorce through to its resolution.

How long does it take to get a divorce?

It depends. If a divorce is uncontested, it may only take a couple months for all the paperwork to be completed and filed. If the divorce is contested, it may take over a year. Everyone’s situation is different, and the more issues that there are to contest (child support, alimony, etc.), the longer it can be expected to take.

How much does it cost to get a divorce?

While there are some standard fees for filing the Petition for Dissolution of Marriage and other associated paperwork, there is no set answer to that question. Even in its simplest form, divorce is still a legal process with many variables and expenses.

I changed my name when I got married. Can I get my former name back?

Yes! Within the petition for divorce, a request to have former names restored can be included. So long as the request is not in an attempt to commit fraud or hide from debts, it will likely be approved.

I don't want my kids to have to testify in court. Will the judge make them testify?

Under most circumstances, children will never have to appear in the courtroom, let alone testify. A parent would have to seek special permission from the court in order to have their child appear, and very often the court will refuse such a request.

I need to get a divorce. What do I do first?

As long as there are legal grounds and the residency requirement is met, a person first has to file a Petition for Dissolution of Marriage. This petition outlines the party’s claim to alimony, child support, division of property, time with minor children, and more. After this is filed, a process server must officially present it to the other party. From there, both parties must meet the requirements of the court in order to complete the process. If the couple has minor children, both parties must attend a seminar on divorce and children. However, the parties do not have to attend the seminar together.

What are grounds for divorce in Florida?

There are two grounds for divorce in the state of Florida:

  1. The marriage is irretrievably broken (completely beyond repair)
  2. One of the parties has a mental incapacity that was legally declared a minimum of 3 years before the filing for divorce

There are numerous reasons for a marriage to be deemed Irretrievably broken, and they do not require fault to be proven against one party or the other. The claim is rarely contested by the court.

What happens if my spouse does not want to get a divorce?

Florida actually has a statute that allows the court to hold off divorce proceedings and order the married couple to attend 90 days of marriage counseling. However, courts rarely decide on this option since it is unlikely to help if one party already considers the marriage irretrievably broken.

General Questions

How long should I wait before contacting an attorney?

You should contact a lawyer as soon as possible. It is critical to protect your interests as quickly as possible. A consultation with an attorney is free – use it! Additionally, you only have a limited time to file a lawsuit (if a lawsuit is necessary), and an experienced legal professional will make sure you meet all the deadlines and help you gather evidence. The longer you wait to gather evidence, the harder it can be to obtain. If you are in an automobile accident and find yourself having to speak with an insurance adjuster, it is strongly recommended that you have legal representation helping you answer their questions. The statements you make to the adjuster can be held against you later.

What do Pro Bono and Pro Se mean?

When an attorney chooses for one reason or another not to charge the client for their representation, the attorney is taking the case “pro bono.”  If someone chooses to act as their own representation and forego hiring an attorney or allowing one be assigned to their case, that is known as “pro se.”  While you may have an option to represent yourself, it is highly recommended to hire an attorney for representation.  Hiring a professional attorney will provide you with full access to expert legal advice, invaluable experience, best practices, proper procedures, and your highest chance for successful results.

What is a retainer?

When an attorney requires you to give a down payment before handling your case, that payment is called a retainer. The cost of the retainer may be a set fee, and therefore is not an indication of how much the case will cost once it is completed. Money left over from the retainer upon completion of the case (if any) will be returned to you.

Immigration

General Questions

What is Asylum?

If a foreign individual is already in the United States and unwilling or unable to return to their home country for fear of their own personal safety and of facing persecution, the U.S may grant the individual asylum status. The individual must prove that the persecution they face in their home country is based on their race, political opinion, nationality, religion, or membership in a certain social group. Asylum status grants the individual the right to live and work in the United States indefinitely. After 1 year of living as an asylee, the individual can apply for permanent resident status.

Who is eligible to apply for asylum?

All individuals who have already arrived or are arriving in the United States are eligible to apply for asylum, regardless of their immigration status, whether they are in the United States legally or illegally. Individuals must go to a Service Center complete an Application for Asylum and for Withholding of Removal (Form I-589) and file it within one year of entering the United States.

Who is protected under the Immigration and Nationality Act?

United States citizens, permanent residents, temporary residents, individuals granted asylum, and US nationals are all protected under the Immigration and Nationality Act.

Green Card

How can an immigrant who wants to obtain legal status avoid being taken advantage of by an immigration service provider?

Unless they are a licensed attorney, anyone wishing to provide legal advice regarding immigration forms, explain immigration options, or communicate with the USCIS about your case must be accredited by the Department of Justice’s Board of Immigration Appeals (BIA). Check the BIA website for a list of accredited providers.
Individuals seeking immigration advice should keep in mind that in other countries, the word “notario” means that the individual is an attorney. This is not true in the United States.  “Notarios”, or notary publics, immigration consultants, and businesses cannot give you immigration advice unless they are accredited by the BIA.

Will I be able to enter the United States after receiving my visa?

A visa does not guarantee entry into the United States. Rather, visas allow foreign citizens to visit travel to U.S. ports of entry and request permission from a Department of Homeland Security Customs and Border Protection inspector to enter the United States.

Petition & Forms

I am a permanent resident of the United States may I help a relative become a lawful permanent resident?

Yes! Permanent residents of the US can help a relative become a lawful permanent citizen by becoming their sponsor. Sponsors must prove that they earn enough income or have assets to support their relative. Permanent Residents may begin this process by filing Form I-130, a Petition for Alien Relative. Permanent residents are able to file petitions for their spouses and for any unmarried children they may have, regardless of the children’s ages.

If I am an H-1B alien, is permanent immigration to the U.S. possible?

In order to visit the United States, each applicant must fill out their own application for a visitor visa. Each applicant must complete and sign the application, show evidence that they intend to return to their home country, and clear standard security procedures.

What is an Affidavit of Support?

In addition to filing an I-130 form, a sponsor for a relative’s immigration must file an Affidavit of Support. This form (Form I- 864) asks for the sponsors employment and income information as proof of the sponsors ability to provide for their relative should they be allowed permanent resident status into the United States. This form is intended to prove that new immigrants will have adequate means of financial support and will not be reliant on public benefits. If the new immigrant does receive certain public benefits, it will be the sponsor who is held responsible for repayment of those funds to that agency.

What is an H-1B classification?

An H-1B visa is a nonimmigrant visa that allows U.S. employers to employ foreign workers temporarily in specialized fields that normally require a bachelor’s degree or higher.

Intellectual Property

Copyright

How long does a copyright last?

If the work is copyrighted after 1977, the copyright will last for 70 years after the death of the author (here the term author is used to mean the person who creates the work, whether it be a book, poem, painting, etc.). Exceptions to this rule include works-for-hire, works published under a pseudonym, or works published anonymously. Depending on when these are published, they will have a copyright lasting from 95 to 120 years. The older a work is, the more the rules regarding copyrights change. Any works published before 1978 and after 1922 have copyright protection for 95 years, starting on the date of their publication. Any work published within the United States before 1923 is not protected by copyright law, and is considered in the public domain and free for use by anyone.

What is a copyright?

Copyrights are used to legally protect the rights of authorship. Creative works such as books, poems, music, computer programming and artwork can be protected by copyright. The ideas expressed by the creative work cannot be protected, just the means by which the ideas are expressed. For example, a poet can write a poem expressing their joy and sadness and copyright the poem itself, but they cannot copyright the ideas of joy and/or sadness.

General Questions

What types of penalties could I incur if I infringe on someone else's intellectual property rights?

Infringing on someone’s intellectual property rights is a serious matter. A court may grant an injunction against the infringing party until the matter can be resolved. If the defendant is found guilty, a court may award the plaintiff restitution in addition to monetary (and possibly punitive) damages. The losing defendant may also have their intellectual property rights revoked and be made responsible for paying court costs and fees. An individual who infringed another’s intellectual property rights may also be charged criminally and be subject to restitution and criminal penalties, including incarceration.

Patent

Does a patent last forever?

In most cases a utility patent issued on or after June 8, 1995 will be enforceable for 20 years (from the date the patent is granted to 20 years after date the application was originally filed). There are occasional fees that must be paid in order to keep the patent from lapsing during these time periods. Design patents are normally good for 14 years, and have no maintenance fees.

What is a patent?

A patent is a license granted by the government to an inventor giving the inventor the exclusive right to produce, utilize, and sell their invention. The invention must be considered innovative and useful.

Trademark

Can I trademark the name of my business?

Actually, no.  Here’s why:  A trademark (or service mark) legally stops other companies or individuals from using a company’s logo, symbol, or words and names used to differentiate itself from other businesses, not the name of the actual business.  So while a person may own Oakley sunglasses or have their house cleaned by Molly Maid cleaning services, the trademark is not being issued to the name of the business, but rather in how the product or service is described.
The name of a business is known as a trade name, and is not eligible for a trademark or service mark.  In the state of Florida, a business does not have to file for a trade name, but it is strongly recommended as Florida gives the right of usage to the first company that can prove usage of the business name.  However, this does not stop a business based in another state from naming itself the same name as a business in Florida (consider the number of businesses called “AAA Lawn Care”).

How long does a trademark registration last?

The short answer is 10 years. This one is a bit tricky, though. The user must file a Section 8 Affidavit (Affidavit of Use) between the 5th and 6th year of the marks original registration and again between the 9th and 10th years. After this, a Section 8 Affidavit must be filed between every subsequent 9th and 10th year. In addition to this, a Section 9 Application (Application of Renewal) must be filed between every 9th and 10th year of registration. Each of these deadlines has a six-month grace period, but those grace periods come with additional fees.

If I can use a TM or SM to save myself time and money, why should I go through the trouble of getting my trademark registered with the United States Patent and Trademark Office (USPTO)?

One of the best advantages of getting a trademark federally registered with the United States Patent and Trademark Office (USPTO) is that the trademark receives nationwide priority.  This means that if the trademark is only used in its home state, federal registration will give it priority in the other 49 states over another trademark.  This gives a fledgling business a chance to grow at a natural pace with its product and not have to worry about being shut out of other states by someone with a competing trademark.  Common-law trademarks only protect the mark within the states it is being used for business purposes.
Additionally, a registered trademark used for a continuous five years can apply for incontestability.  If a trademark is found eligible for incontestability, it cannot be challenged under most circumstances.
Finally, registering a trademark allows the trademark owner to be awarded statutory damages by a court.
Having a trademark federally registered automatically includes it in the United States Patent and Trademark Office database.  So anyone who may be trying to register a mark similar to one that is already registered will likely modify their mark so as not to infringe on the previously registered mark.  If a mark submitted for registration is too similar to one that is already registered, the USPTO will not approve the submission.

What do ®, TM, and SM mean?

TM stands for “trademark” and SM stands for “service mark.” A business can use TM or SM without having a federal or state registration. Businesses can claim common-law rights to these marks. Trademarks and service marks bearing the “®” symbol (which stands for registered) have been submitted and approved for registration by the United States Patent and Trademark Office (or USPTO).

What is a trademark? And just what are service marks?

Trademarks and service marks are the legal protection afforded to a logo, symbol (including sounds and even smells), name, and/or words used to associate them with a business and to differentiate them from others.  The difference between the two is determined by the business type.  Trademarks are used for goods (such as Ray-Ban for sunglasses) and service marks are used for services (such as Roto-Rooter for plumbing).  It should be noted that in the previous examples, it is the name of the product and the service itself that gets the trademark, not the name of the business providing them.  Another example of how a trademark can be used is as a tagline. Wendy’s classic “Where’s the beef?” is an example of a trademarked tagline.  Even colors or shapes of packaging may be given service mark or trademark protection, respectively.
Trademarks and service marks can only be used for real products and services.  For example, a person cannot get a trademark for a fictional product called “Cow-In-A-Can” if they are not actually selling a product by that name.  However, federal law accounts for up-and-coming businesses by providing an “intent to use” application that can be filed before the business begins operation.

What is the difference between mediation, arbitration and litigation?

Litigation is when one party brings a lawsuit against another in a court of law. The ultimate end of the road is trial. Think of mediation as both parties meeting with a negotiator. The mediator (negotiator) will hear what both sides have to say, go over the facts, and attempt to find a solution that satisfies both parties. The mediator does not make a decision in favor of one party over another. If no mutually satisfactory agreement can be met, the parties can then continue on in litigation or commence litigation if it hasn’t already started. Arbitration occurs when both parties meet with a neutral party (the arbiter) who hears the facts and makes a ruling in favor of one side or the other. It is up to the parties to decide before-hand if the arbitration will be binding or non-binding. If it is binding, the parties will accept the arbiters decision. If it is non-binding, the parties can still continue in litigation or proceed to file suit if either side is unwilling to abide by the arbiters decision.

What is commercial litigation?

Commercial litigation is the area of law concerning matters between businesses and/or individuals including (but not limited to):

  • Antitrust, commodities, stocks, and trades
  • Breach of fiduciary duty
  • Business creation and dissolution
  • Business Torts
  • Buy / Sell agreement
  • Civil RICO (Racketeer Influenced and Corrupt Organization) actions
  • Consumer protection and fraud
  • Contract interference
  • Contract litigation
  • Corporate management disputes
  • Creditor / Debtor disputes
  • Debt collection actions
  • Employee-employer relationship disputes
  • Franchise creations and disputes
  • Libel, slander, and defamation of character
  • Merger & acquisition litigation
  • Misinterpretation or breach of contract
  • Non-Compete Agreements
  • Partnership disputes
  • Secure transactions
  • Trade Secrets
  • Uniform Commercial Code (UCC) disputes

Because commercial litigation covers a wide array of legal matters, it can be difficult to list them all here. Do not hesitate to contact an attorney experienced in Business Law and Commercial Litigation with any questions.

Medical | Professional Malpractice

What is the difference between medical malpractice and wrongful death?

Medical malpractice is an act of negligence. Wrongful death, on the other hand, is a type of damage. They are very different, and often act independently of one another. A medical malpractice suit may not involve wrongful death (or the death of anyone at all), and a wrongful death suit may not involve medical malpractice (or the medical field in any way).

Personal Injury

Do I still have a case if I have fully recovered from all my injuries?

Of course! If you have suffered injuries due to another party’s negligence, you are entitled to compensation regardless of the stage of your recovery. The compensation may be limited to economic damages only depending on the nature of the case.

Have I waived my rights if I signed a consent form for a medical procedure or a general waiver of rights?

The average medical consent form is an acknowledgement of the risks that may be associated with the procedure.  It is not intended to deny you of your rights.  Even if you sign a medical consent form, the doctors and staff are still required to follow standard procedures and provide you with professional medical care.  You may be able to file a lawsuit if there is any deviation from these standards or if there is failure to follow medical safety guidelines.

General waivers of rights are much different from medical consent forms, as they are intended to free the other party from a certain amount of liability or to protect their right to enforce their policies.  You may buy a ticket to a sporting event that has a waiver printed on the ticket.  This is intended to protect against lawsuits by patrons who suffer event-related injuries at the sporting event.  This does not, however, ban law suits related to unsafe conditions or other types of negligence at the sporting event.

Whether you have signed a consent form or a waiver of rights, contact an attorney so they can discuss your situation.

How do Personal Injury attorneys get paid?

Many personal injury attorneys are paid on what is called a contingency fee basis. Essentially, the attorney only gets paid if a recovery is made in the case. If a recovery is made, the attorney is paid a percentage of the recovery to cover fees and expenses. The attorney begins the case without receiving any payment and even puts forth money to cover expenses necessary to see the case through. For anyone worried about the entirety of their recovery going to cover the attorneys fees, fear not. The Florida Bar sets a limit to the amount personal injury attorneys can charge for their contingency fees. If there is no lawsuit filed, then the fee is limited to 33.3% of the recovery if the case is valued under $1,000,000. If the defendant responds to the plaintiffs complaint by filing an answer, the cap is raised to 40%, with the possibility of another 5% if the case ends up going to appeal. Of course, these general rules can change based on the specifics of each individual case.

Is an owner of a dog liable if it bites someone?

Florida dog-bite laws are strict, and dictate that pet owners have the responsibility to control their pet whether on their own property or on public property.   It is a misconception that if a dog bites a guest on the owner’s property, the owner cannot be held liable.  However, if a person is bitten by a dog while unlawfully trespassing on private property, then the dog’s owner cannot be held accountable.  The owner of a dog who has already been declared dangerous can be found guilty of a misdemeanor in the first degree if the dog bites another person or animal.

If the victim of the attack contributed to the situation through some form of negligence (including taunting the dog), there would be a reduction in the liability to the pet owner, thus reducing the compensation the victim can receive.  The amount would be reduced by calculating the percentage of the victim’s negligence and subtracting it from the original amount of compensation.  Many things, including past aggressive behavior on the part of the dog (or even its owner), may be considered when determining the outcome of a dog-bite case.

What should I do if I am involved in a slip & fall injury?

Notify the owner or a person in charge of the premises right away. Even if the homeowner or business owner has premises liability insurance that protects them in such situations, it is their responsibility to provide you with a safe environment, and inform you of any dangers that may exist. If a business owner or homeowner is found negligent in this regard, you may be eligible to recover damages for your injuries, including lost wages, pain and suffering, and medical expenses.

What should I do if I am bitten by someones dog?

Most importantly, seek medical attention.  Injuries from an animal can lead to serious injection and disease if left untreated, even if it is someone’s pet.  Because some issues may take time to become apparent, make sure to follow-up with a doctor after the initial treatment.
Keep records of the event, including reports from the police and animal control, photographs, medical records, and witness statements (if applicable).
If you are seeking compensation, make sure to contact a legal professional in order to determine an equitable amount for your injuries and any other pain and suffering you may have incurred.

What is the statute of limitations for my case?

Many times there will be a deadline in which you have to file a lawsuit. This is known as the statute of limitations. For example, filing a lawsuit for wrongful death has a two-year statute of limitations in the state of Florida. Once those two years expire, you can no longer file your claim. Some statutes have special exceptions or extensions. In Florida, most general negligence claims have a statute of limitations extending to 4 years from the date of the accident. An attorney can help you to avoid missing these and other important deadlines.

What is personal injury?

What is personal injury?
Any injury (either physical or mental) resulting from negligent act or omission of another person or entity is considered a personal injury.  Personal injury is considered a civil law matter.  There are many types of personal injury, including but certainly not limited to the following common items:

  • Automobile Accidents (including Motorcycle, Truck, Boat, Bicycle, Pedestrian and other vehicles)
  • Wrongful Death
  • Premises Liability (commonly known as Slip & Falls)
  • Dog Bites (and other animal bites & injuries)
  • On-The-Job Injuries (including Construction Site injuries)
  • Exposure to Toxic Substances (including Mold)
  • Negligent Supervision
  • Professional Negligence

What is commonly viewed as Pain and Suffering?

“Pain and Suffering” is a collective term that includes your injuries along with any form of mental anguish, emotional distress, or physical harm you may have endured.  Many situations can cause pain and suffering, but the most common examples include becoming disabled, suffering post-traumatic stress or the loss of a loved one, or losing the ability to do regular physical tasks and activities up to and including the ability to perform your job.  It can also include the inability to do prior activities as well due the other party’s negligence.

Is there a set amount or a limit to the amount of compensation I can recover from my personal injury claim?

Generally the answer is no. Each personal injury case is normally evaluated on its own merit, but there are circumstances that can affect this. Compensation can be economic (past last wages, future lost wages, medical bills, etc.) or non-economic/subjective (pain and suffering, anxiety, disfigurement, etc.). As for punitive damages, the state of Florida imposes a cap of three times the awarded compensatory damages, or $500,000 (whichever amount is greater). Common exceptions are workers compensation and medical malpractice claims. These have legal limits to the amounts recoverable.

Real Estate

Landlord /Tenant

Do I need to have a written rental agreement, or is an oral agreement enforceable by law?

It depends.  First of all, it is strongly recommended that any rental agreement be written in clear, simple language, as oral contracts are more open to misinterpretation and, honestly, lapses of memory.  Under normal circumstances, oral rental agreements are enforceable as tenancies at will as long as it is for one year or less.  If the rental agreement states that the tenancy is for longer than one year at a time, then the rental agreement must be in writing to be enforceable.  So a rental agreement that states the renter is to pay rent every month may span well past one year without having to be in writing because the term in only one month at a time, but a rental agreement stating that rent is to be paid every 18 months or every 2 years (as examples) must be in writing to be enforceable.

What are my responsibilities and rights as a landlord?

First of all, landlords have the right to collect rent for the use of their rental property.  Secondly they have the right to have their rental property returned to them undamaged at the end of the rental agreement, save for everyday wear and tear.  Landlords also have the right to protect the property via inspection, but must give at least 12 hours of reasonable notice.  This last part means that a landlord cannot show up at 2:30am to inform the tenants that there will be an inspection at 2:30pm.  Note that in the case of an emergency, the inspection notice may be shortened or waived entirely.

Several of the most basic duties of the landlord are as follows:

• Provide a safe home that meets the requirements of the local health, safety, and building codes, making reasonable repairs as necessary

• Respect the rights of the tenant

• Respect the tenant’s right to peaceful possession, which prohibits the landlord from entering the property at odd hours, frequently, and/or without notice

• Follow state and local laws regarding the condition and use of the property

Again, these are only a few of the most basic rights and duties one has as a landlord.  Additionally, a landlord must also abide by any conditions set down in the rental agreement.  While the rights and duties of a landlord are enforceable even if there is no written rental agreement, it is strongly recommended to have a written rental agreement to avoid future confusion or dispute.  For a full description of residential landlord rights, see Florida Statutes Part II, Chapter 83: Florida Residential Landlord Tenant Act.  Consult an attorney experienced in Tenant/Landlord Law for any questions regarding the rights of landlords and for assistance in drafting a rental agreement.

What are my responsibilities and rights as a tenant?

Florida law grants tenants certain rights, regardless of whether the landlord is an individual or a corporation, and whether or not there is a written rental agreement.  If there is a written rental agreement, Florida law will be applied to resolve any conflict in terms between the rental agreement and Florida Statutes.  The tenant has the right to live peacefully and have privacy once they rent the property.  If there is ever a court proceeding involving the landlord and the tenant, the tenant has the absolute right to be present, argue their case, and have an attorney represent them.

The most obvious responsibility of the tenant is to pay their rent in full at the agreed-upon time.  The tenant must keep the property clean and in an undamaged condition, save for normal wear and tear, and to maintain the plumbing. It is the responsibility of the tenant to comply with all local housing, health, and building codes.  The tenant may not disturb the peace or violate any laws, nor allow any guests to violate laws or disturb the peace while in the property.

If the tenant moves out and the landlord decides to keep all or a portion of the security deposit, the tenant has the right to object to the landlord’s claim on the security deposit, in writing, within 15 days of receiving the landlord’s written notice that not all of the security deposit will be returned.  If it is found that the tenant should have their security deposit returned in full, they may be eligible to collect interest in addition to the full amount of their security deposit.  The tenant has the responsibility to provide the landlord with an address where the landlord can send the tenant’s security deposit.  If the tenant fails to provide this, they could lose their right to object if the landlord keeps the security deposit due to an inability to return it.

Chapter 83 of the Florida Statutes permits tenants to withhold rent under certain circumstances. The Florida Bar, has noted this right “under certain very aggravated circumstances by the landlord’s neglect,” the right to withhold rent.  The landlord must fail to comply with an important responsibility, and the tenant must have given seven days written notice to the landlord regarding the problem.  Even if the landlord does not get the problem fixed within those seven days, it is important that the tenant save the rent money and get permission from the court to spend the money toward fixing the problem.  If the tenant spends the money to fix the problem without first being granted permission by the court, they could be evicted by their landlord for nonpayment.

Another obvious right of the tenant is the right to move out.  There may be specifications as to when and how much notice needs to be given so review an agreement carefully to ensure compliance.

There are many more rights and responsibilities one has as a tenant.  For a full description of residential tenant rights, see Florida Statutes Part II, Chapter 83: Florida Residential Landlord Tenant Act. In addition, if a tenant lives in rental housing that is federally subsidized, the tenant has certain rights under federal law as well that govern that particular lease.

I came home from the store to find the locks changed and all my belongings out by the street. I was never served any type of eviction notice and my rent is up-to-date. Can my landlord legally do this?

No.  A landlord must go through the proper legal channels and lawfully evict a tenant before these actions can be taken.  Contact an experienced attorney right away, as the landlord may be liable for damages.

Is my landlord allowed to shut off my utilities if I owe rent or in an attempt to get me to move out?

Absolutely not.  Even if your landlord is the one who pays for certain utilities, they are not permitted by law to shut off or interrupt those services as a means of punishment for past-due rent.  In fact, the tenant may be able to sue for damages if the landlord shuts off utilities without permission from you.  Contact an experienced attorney with any questions.

What is a tenancy of duration?

A tenancy of duration means that in a rental agreement, there is an agreed-upon termination date to the renter’s tenancy.  A simple example would be an agreement to rent a house with a one-year lease, and agreeing to pay rent on a month-to-month basis.  Once the year has concluded, the lease would expire, at such time it would be up to the property owner to decide whether to renew or extend the lease.  Because there is a time-limit on the lease, the renters are agreeing to a tenancy by duration.

What is a tenancy at will?

A tenancy at will is a rental agreement in which the agreement continues from one rent cycle to the next, until either party decides to end the agreement.  Examples would include a family renting a house from month-to-month, or an apartment from week-to-week.  So long as both parties wish to continue the agreement, the tenancy will continue accordingly.

How long does my landlord have to give to let me know they don’t want to renew our rental agreement? How long in advance do I have to let my landlord know I don’t want to renew our rental agreement?

In cases of tenancy at will, both the landlord and the renter are responsible for giving the same amount of notice to the other party when one decides to end the rental agreement.

  • When tenancy is year to year, no less than 3 months’ notice before the end of the tenancy cycle must be given
  • When tenancy is quarter to quarter, no less than 45 days’ notice before the end of the tenancy cycle must be given
  • When tenancy is month to month, no less than 15 days’ notice before the end of the tenancy cycle must be given
  • When tenancy is week to week, no less than 7 days’ notice before the end of the tenancy cycle must be given

If there is a written agreement, signed by the landlord and tenant, then that agreement could govern the amount of time required to give notice of non-renewal. Remember, it is important to review any written agreement thoroughly to determine if there are notice provisions, and follow those provisions set out in the agreement.

I’m in the military and want to rent a house. I’m concerned about entering into a rental agreement in case I am forced to move without a lot of notice. Would I be held liable if I have to break my rental agreement?

Thankfully, Florida understands that service members may not be able to uphold rental agreements so it is important to include a military clause in your lease.  While there are restrictions, Florida Statutes have made some provisions that allow service members to terminate rental agreements prematurely.  Contact an attorney experienced in these matters to discuss the situation.

How does a Three Day Notice work? When is it used?

A Three Day Notice is a notice from the landlord to the tenant issued when the tenant has not been paying their rent.  It states that the tenant has 3 days to pay all the rent that is due (as of the date on the notice) or vacate the premises.  Only rent that is already due may be requested in a Three Day Notice.  No other amounts, including the tenant’s next rent payment, may be included.  It is important that the wording used is correct, or it may not be valid in the state of Florida.

Commercial/Residential Closing

In terms of real estate, what is “Closing?”

In a real estate transaction, the closing is the final meeting among all the parties involved.  Typically, the buyer and the seller meet with attorneys representing the buyer, seller, and the bank to sign the final papers and transfer title over to the buyer.  The title insurance company will have a representative in attendance to facilitate the transfer of title and record the new deed.

General Questions

What are the differences between a cooperative (“co-op”) and a condominium (“condo”)?

When tenants live in a co-op, they do not own their individual apartments.  Instead, they own stock in the corporation that owns the entire building and the apartments therein.  Tenants lease their apartments from the corporation that owns the building.  The management of the building is overseen by a Board of Directors.  The corporation uses a formula to determine the price of the lease based on the size of the apartment.  Since the tenants are shareholders in the corporation, they are given a say in who is elected to the Board of Directors.

When someone buys a condo, they are buying the individual unit within a multi-unit structure of a building.  A tenant will normally have a right to use communal areas such as swimming pools, gyms, hallways, stairs, and other such areas within the structure.   The communal areas are maintained by an “association,” to which the owners pay a monthly fee for the up-keep.  The condo association helps protect the rights of the individual owners by having a complaint process in place, and gives them a way to resolve disputes from within.

What are some common types of property ownership, and how are they different?

Some different types of property ownership can seem very similar to others, so it is important to pay attention to the details in order to find the right one.  Here is a quick synopsis of the most common types:

• Sole Ownership:  The simplest one to define.  This is property completely owned by only one person.  Language used in the deed to establish title as a sole ownership may read (for example), “Michelle Robinson, a single woman.”

• Tenants in Common: This is a type of co-ownership in which property is owned by at least two people at the same time.  There need not be equal proportionate interests or right to possess the property among the tenants.  Upon the death of a tenant, the interest of the decedent will pass to their heirs.  The heirs will then become the new tenants in common among the surviving original tenants in common.  Language used in the deed to establish a tenancy in common may read (for example), “Moses Robinson, Lawrence Robinson, and Jerome Robinson as tenants in common.”

• Joint Tenancy: This type of co-ownership is for when at least two people own the same property, at the same time, with equal shares.  Each joint owner has a proportionate right of equal ownership interest, and an undivided right to possess the whole property.  Upon the death of a joint tenant, their interest will only pass to surviving joint tenants if it is clear that there is a right of survivorship. While this type of property ownership is not available in all states, language used in the deed to establish joint ownership may read (for example), “Julie Robinson and Leonard Robinson, as joint tenants with right of survivorship.”

• Tenancy by the Entirety: This is a type of property ownership reserved specially for married couples, with each person owning 50% of the property.  If one spouse wants to sell the property, the other must give their consent.  This is another type of property ownership that is not available in all states.  In Florida, it is available.  Language used in the deed to establish a tenancy by the entirety may read (for example), “Ralph Robinson and Alice Robinson, husband and wife, as tenants by the entirety.”  If the words “tenants by the entirety” are not in the deed, but “husband and wife” is, a tenancy by the entirety will be assumed.

How does a quitclaim deed work?

If the grantor has present interest in the property, a quitclaim deed will “release” (transfer) that interest to the person receiving the property.  It should be noted that a quitclaim deed does not carry any implied or express guarantees or covenants like a warranty deed.  This means that if there is no interest in the property controlled by the grantor, nothing will be conveyed by the quitclaim deed.

Why should I care about recording the deed to my new property?

The deed to real property is the written legal document that transfers the ownership of the property from the seller to the buyer.  In exchange for the purchase price, the deed gives the buyer formal title.  However, the interest in the real property is not completely transferred until the deed is delivered to the buyer and accepted by the buyer.  Once the deed is accepted, it should be recorded as soon as possible.  The deed needs to be recorded with the county clerk in the same county as the property is located as soon as possible.

Recording the deed gives notice to all potential buyers in the future that the buyer has an ownership interest in that piece of real property, and tracks ownership by giving the names of all the buyers and sellers in chronological order.  A search must be performed at the county clerk’s office in order to make sure that a seller has legal ownership of the real property they are attempting to buy.  This search should be done prior to the sale of any real property.  Usually a title insurance agent will conduct the search to find if there has been anything defective in past transfers and conveyances.  Any defects that are found can be excluded from the title insurance coverage, which makes it important for the buyer to review the title insurance.

Wills, Trusts & Probate

Can I draw up my own trust and/or will?

It is legal for a person to draw up their own will or trust, but if there are any mistakes in the document or if it is not created in accordance to local laws, it may be declared invalid and very expensive problems may result. As with any legal document, it is strongly suggested to consult an attorney for its drafting and continued maintenance.

How are living trusts and wills different?

Where a will is a tool for handling assets after a persons death, a living trust is more useful to a person while they are still alive. It allows them to manage their property and assets while alive, and to name a trustee to handle the assets and the care of the original trustee should the original trustee become incapable of handling their own affairs through death or disability.

If someone dies intestate, what does that mean?

The term intestate is used to describe a person who has died without leaving a will.

What are living trusts, revocable trusts, and revocable living trusts?

To minimize confusion, all of these terms mean the same thing and can be used interchangeably.  For the sake of simplicity, the term “living trust” will be used here.  Living trusts are created during a person’s lifetime for the purposes of handling financial matters such as ownership of property and control of assets.  A person can create a trust and transfer all ownership of assets to the trust itself, naming themselves as the “trustee.”  This still gives the person full access and decision-making abilities in regard to all assets now owned by the trust.  The person can name a “successor” trustee, so that in the event of their death or disability, access to all assets owned by the trust will be granted to the successor trustee.  Married couples can also name themselves “co-trustees” so that they can share access to the assets within the trust.

What does a will do?

Wills are important because (among other things) they will give instructions regarding distribution of property and designate a guardian for minor children. An equally important question is, What will a will *not* do?

What is a living will?

A living will is a legal written document expressing the author’s wishes in particular medical situations, such as a critical injury and/or terminal illness.  Living wills may be used to instruct medical professionals with regard to the usage of various life-support methods.  These methods are meant to sustain (or possibly extend) the life of the person, but will not improve the health of the person on their own.  A living will lets a person clearly state their wishes in regard to being kept alive by machines such as ventilators and heart-lung machines, and to make the decision if they want intravenous devices used to feed them (“tube feeding”).
Living wills only apply in situations where using such treatments as life-support machinery may keep a person alive for a short while, and not using the treatments would result in the person’s death.  A living will would not impact treatment in medical situations not involving life-threatening conditions (such as a routine medical procedure).  The decision as to whether a person is in a situation where they would need life-support methods is made by the medical professionals in charge of the person’s care.

What is a guardianship?

If a person becomes incapacitated and can no longer manage their affairs, the court may hold a supervised process known as a guardianship to name an individual or individuals to handle affairs for them.  The incapacitated person is designated as a “Ward,” the individual assigned to handle the Ward’s financial affairs is designated as the “guardian of the property,” and the individual assigned to handle the Ward’s personal affairs is designated as the “guardian of the person.”

What is probate?

Probate is the administration process performed by the court when handling an estate on behalf of a deceased party. The state looks at the assets left by the deceased and creates an inventory which will be used for tax purposes and distribution to any beneficiaries. The state of Florida has two types of probate administration: Formal and Summary.

What is the difference between a revocable trust and an irrevocable trust?

An important benefit of a revocable trust is the ability to remove assets and terminate the trust at any time without any penalties. With an irrevocable trust, even if a person names themselves the trustee with access to the assets, they will not have the ability to regain ownership of the assets. All assets will be owned by the trust.

Why is it important to have a will?

While a will may not be a document people are eager to draft, wills provide an individual with the ability to control what happens to their assets after death. Wills are quite beneficial to both the individual and their beneficiaries, as wills clearly define the final wishes and distribution of assets in a written, legal manner. It is strongly recommended that everyone have a will, regardless of the size of the estate.

Wrongful Death

What is the statute of limitations for my case?

Many times there will be a deadline in which you have to file a lawsuit. This is known as the statute of limitations. For example, filing a lawsuit for wrongful death has a two-year statute of limitations in the state of Florida. Once those two years expire, you can no longer file your claim. Some statutes have special exceptions or extensions. In Florida, most general negligence claims have a statute of limitations extending to 4 years from the date of the accident. An attorney can help you to avoid missing these and other important deadlines.

What is the difference between medical malpractice and wrongful death?

Medical malpractice is an act of negligence. Wrongful death, on the other hand, is a type of damage. They are very different, and often act independently of one another. A medical malpractice suit may not involve wrongful death (or the death of anyone at all), and a wrongful death suit may not involve medical malpractice (or the medical field in any way).

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