Christian Denmon: Dealing with family law cases, including divorce, can be emotionally stressful for both husband and wife. As an attorney, it can be difficult to find yourself in the middle of divorce proceedings. Do clients usually remain professional in front of you, or do you find yourself occasionally caught in the middle of awkward situations?

Rustin Duncan: A divorce situation is extremely stressful on its own and adding the legal aspect to it.  To get to a divorce the marital relationship has gone south and probably has been on that path for some time.  This usually involves anger. Once you add the stress of the court system to it sometimes that anger explodes.  I have seen parties in a divorce get into heated arguments in the hallway outside the courtroom and even yell at each other from their respective counsel tables in the courtroom.  This is not a good idea, especially if the judge sees it.

Christian Denmon: An uncontested divorce means both parties agree to be divorced, and they agree on the details of the divorce. What percentage of divorce cases that your firm handles are contested, vs. uncontested?

Rustin Duncan: It should be noted that an actual divorce only means that the parties legally are no longer married.  There are legal aspects that go along with divorce, such as alimony, child custody and support, and property division.  Technically, for it to be truly uncontested all of these issues must be agreed upon by the parties and not included in the actual divorce.  I would say that about 30% of our firms divorce cases are truly uncontested where there are no other issues other than the divorce.  I would guess around half of our cases that start off contested end up settling prior to trial.

 Christian Denmon: Why must uncontested divorces still go before a judge?

 Rustin Duncan: A divorce, whether contested or not, is a court order and must be signed by a judge to be valid.  The good part about an uncontested divorce is that in most situations only the attorney has to go to court to have the judge sign it, in North Carolina anyway.

Christian Denmon: Are there instances where it is advisable for a couple to handle the divorce paperwork themselves if they both agree to the terms of divorce?

Rustin Duncan:  Obviously, there is no requirement to hire an attorney to handle a divorce.  However, without an attorney you run the risk of making a mistake that could carry significant unintended financial and legal consequences down the road.  It’s really not worth the risk, especially with our firm’s attorney rate of $250 for uncontested divorces.

Christian Denmon: If a husband or wife does not want a divorce, is the other spouse ‘stuck’ in the marriage?

Rustin Duncan: No, but one person may have to leave first (or be ordered by the court to leave)  in order to get the divorce.  The only way to get divorced in North Carolina is to be separated for one calendar year.  If the parties are separated for that year and one party asks the court to grant a divorce, the court must grant the divorce regardless of the objections of the other party.  In South Carolina the one year separation rule applies but you can also get divorced sooner if you are separated and one party has committed adultery or one party has committed physical cruelty against the other party or one party is habitually drunk or abuses drugs.

 Christian Denmon: Before a contested divorce can go to trial, the court asks both parties to try to negotiate on agreeable terms. Who mediates these negotiations? How long does this process take?

Rustin Duncan: It depends.  In all counties in North Carolina, and most South Carolina counties, a formal mediation is ordered by the court.  Mediation is where both parties with their attorneys are in the same place but different rooms and an independent and trained mediator goes between the two rooms to help the parties reach some middle ground.  The mediator fee is shared equally by the parties.  The mediation requirement is waived in certain situations or if the parties can reach an agreement prior to mediation.

Christian Denmon: Are spouses required to live separately, or sign a separation agreement, before divorcing? Must they find an attorney for a separation agreement?

Rustin Duncan: A separation agreement is sometimes useful but is not required in either state.  An attorney is not required for a separation agreement but it is advisable because they are binding legal contracts.  Before a court can order a divorce in either North Carolina or South Carolina the parties must live separate and apart prior to divorce (see above).

Christian Demon: Is an annulment in North Carolina or South Carolina a viable alternative to a divorce?

Rustin Duncan: Annulment means the marriage never legally occurred where a divorce means the marriage is just legally dissolved.  In an annulment the court cannot divide property or award alimony.  The legal grounds for an annulment are restrictive and not many qualify for an annulment.  To get an annulment one of the following must have occurred: 1) The parties did not consummate the marriage by cohabitation; 2) One party was under duress at the time of the marriage; 3) One party misrepresented something material to induce the other party to marry them; 4) The parties are closely related by blood; or 5) One party was still legally married at the time of the current marriage.

Christian Denmon:  If a divorcing couple currently resides in two different states, say Florida and and South Carolina, which state has jurisdiction over the divorce? Can a spouse file in their current resident state?

Rustin Duncan: Each state has a set period of time a person must be a resident of a state (usually 6 months) before they can seek a divorce in that state.  If they meet that time period they can ask the courts of their state for a divorce even if the other party lives in another state.  Usually the state where the divorce originates has jurisdiction.  There are special rules for jurisdiction of child custody that may be different.

Christian Denmon: Many stay at home parents believe they will not be able to afford a divorce attorney if they have no income. What advice would you give to a spouse who wants a divorce but believes they cannot afford one?

Rustin Duncan: The law allows a party to ask the court for temporary spousal support and attorney fees for parties who cannot afford to live and pay their attorney during the divorce process.  The spouse without means usually has to hire an attorney first and have their attorney petition the court for the support and attorney fees. While nothing is guaranteed, judges tend to allow these expenses if one party makes a lot more money than the other and  have no other access to money.

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A shocking new alimony law has been passed by the Florida legislature and appears poised to become new law July 1st 2003. The law favors the “payor” and disfavors the “payee” in alimony cases.
Below our divorce lawyers discuss the six parts of the law that you must know.
1. The law prioritizes short term “Bridge the Gap” alimony over more traditional longer types
Under current law, the Court has the power to award any form of alimony.
Under the new law, the lawmakers are telling the Judges that Bridge the Gap Alimony, and then Rehabilitative alimony, will take precedence over any other forms of alimony.
Bridge the Gap is a form of alimony meant to “assist a party with legitimate identifiable short term needs. Think moving expenses, buying new furniture, covering the gap between unemployed and employed.
The law limits the length of alimony at 2 years.
Rehabilitative alimony is similar in that it is meant to aid the payee spouse in becoming self-supporting. Think redevelopment of skills, acquisition of education, training, or other skills
What It Means:
In theoretical terms, the lawmakers are narrowing the scope and purpose of alimony as being to serve a specific purpose, that of aiding the needy spouse into the transition into single life.
In practical terms, the lawmakers are severely restricting the length of alimony to be award. They further do this by restricting the length of durational alimony.
2. Durational Alimony is Limited to Half of the Years of the Marriage
Durational alimony is simply a set term (or duration) of alimony payments at a set monetary amount. Under current law, a Court may order durational alimony for up to the length of the marriage.
The law slashes the maximum length of time allowed for durational alimony in half. A maximum length of time now becomes the length of the marriage.
What It Means:
Negotiating leverage in alimony is greatly reduced for the needy spouse. The “risk” of having to pay durational alimony for the number of years the marriage lasted is gone.
3. Permanent Alimony Is Deleted
Previously, permanent alimony was presumed in marriages lasting longer than 17 years.
Now, the lawmakers are deleting permanent alimony. What was once presumed will no longer exist.
What It Means:
Again, without the risk of getting hit with a permanent alimony, a payor spouse will have substantially less incentive to resolve cases favorably to the needy spouse.

4. Presumption of no alimony in a marriage of less than ten years

Now, there is a presumption that alimony is inappropriate in a short term marriage, or a marriage of less than ten years. Marriage between ten and twenty years has no presumption for or against alimony, and a marriage in excess of 20 years presumes alimony is appropriate.
How It Changes:
Previously, a short term marriage was defined as a marriage less than seven years, and a long term marriage was greater than 17 years.
Consider a person married for nine years. Under old law, the needy spouse could request up to nine years of durational alimony without a presumption of appropriateness. Under new law, the needy spouse will have to overcome a presumption of no alimony.
In the case of a rehabilitative or bridge the gap, the burden of proof on the needy party is a preponderance of the evidence.
In the case of durational alimony, it is clear and convincing evidence.
What It Means:
Practically speaking, the exposure on many payor spouses will be limited severely in marriages of less than ten years. We may see an increase in divorce filings in these “short term” marriages because the chances of paying alimony are reduced.
5. Alimony awards are capped at a percentage of payors gross income
Previously the Judge had great discretion in how much alimony to award.
Now, the Judge has a definite max.
It is:
• 25% of payors gross income in a short term marriage (less than ten years)
• 35% in a medium length marriage (10-20 years), and
• 38 % of payors gross income in long term marriages.
• 40% of payors gross income if rehabilitative alimony is awarded along with any other form of alimony.
The Court has discretion to award more alimony, but it must make specific findings of fact to do so.
6. Law assumes Standard of Living will be less For Both parties after the divorce, and focuses on needs and necessities during the marriage.
With the new law, there is a rebuttable presumption that the standard of living enjoyed by the parties after a divorce will be less than the standard of living during the marriage.
Previously, a great deal of emphasis could be placed by the needy spouse on the need to have her “standard of living” maintained after the divorce. That means vacations, hair stylist appointments, and other luxury items.
The new law, clearly shifts the focus from standard of living during the marriage to a “needs and necessities” analysis afterwards. Presumably, vacations and other luxury established during the marriage will carry less weight with the new law.
7. You can go back and change Prior Awards
Most shockingly, the new law appears to open the flood gates for alimony payors to re address alimony with the new law. This is especially true if the alimony in the divorce was “ordered” by the Judge, as opposed to being agreed to by the parties.
It is likely that this ability to reopen cases months or years after the settlement based only on the new law being changed will create a surge in cases in the family courts.

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The Following is a guest post from David Cantor, J.D.: 

Gastroesophageal Reflux Disease (GERD), acid reflux, and heartburn can all cause you to fail a DUI test. If any of these medical conditions are active before or during a breathalyzer, the instrument may report a falsely high BAC. At times, the instrument has been known to produce results up to twice your actual BAC.

Even if you do not suffer from chronic GERD, there are several factors that could cause temporary acid reflux that and falsely influence the breath test. For instance, eating Mexican food, a really large meal, or greasy meal can cause temporary acid reflux, which can lead to innocent people being arrested for a crime that they did not commit.

The breathalyzer works on a simple premise. It measures the amount of alcohol that is found in your deep lung tissue. Scientists believe that there is a correlation between the amount of alcohol that is present in your deep lung tissue and the amount of alcohol that is in your blood. However, although the amount of alcohol that is in your deep lung tissue is a semi-reliable factor used to ascertain BAC, the system itself is flawed.

A breathalyzer can’t discriminate between what type of alcohol it’s reading, and whether it comes from lung tissue or from your mouth or throat, it measures all alcohol content. When a person has acid reflux, undigested stomach acids that contain alcohol travel back up from the stomach into the throat or mouth. Since mouth alcohol is present in much higher levels than deep lung tissue alcohol, a person taking a breathalyzer around the time they are experiencing acid reflux, the testing device will almost always give a false positive test result.

Regurgitation Can Cause a False High Reading on DUI Breath Testing Instruments

In some states, officers of the law are required to observe an individual for at least 15 minutes before administering a breathalyzer. The reason why is because common activities like eating, smoking and regurgitation can ruin the test results. Although this allowance is made to ensure accurate results, the system is not infallible. Since regurgitation isn’t always apparent to the observer, there is still a loophole to defend against this argument in court.

Using GERD, Acid Reflux, or Heartburn to Defend Your DUI Case

It is possible for your doctor to test you to see whether or not you suffer from one or more of these conditions. This information can then be used as a defense in your DUI case. Even if you don’t have a chronic reflux condition, acid reflux still occurs occasionally to a large segment of the population, and if this can be proved to be true in your case, you have a viable defense against a DUI charge.

Article provided by Arizona DUI Attorney David Cantor. To get more information about DUI laws and defenses, please review their website: http://cantorduilawyers.com

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According to Corrections Secretary Mike Crews, the number of re-offenders among Florida inmates released from prison has reduced over the past years.

The statement was released Monday along with statistics which informed that the percentage of inmates who commit another crime within three years of release dropped to 27.6 percent in 2008 from 33 percent recorded in 2003.

This drop in the number of re-offenders has lead to a decrease in the number of inmates admitted to Florida jails in the last fiscal years.

DOC has also put in a lot of effort on correcting some of the conditions which resulted in an overwhelming number of inmates behind bars. This included proper training and education including vocational training, mental health and/or substance abuse treatment. By taking these conditions into account, the agency helped prevent released felons to commit crimes again.

Crew said that the efforts taken by the agency are helping keep Florida safe.

“If you live in Florida when these inmates are released, they’re standing in the grocery store line next to you. Eighty-seven percent of our current inmate population right now will be released, and they’re going to be released back into our communities,” he said.

He also stated that the ‘Transition from Prison to Community Initiative’ taken by the agency emphasizes on rehabilitation and is a “significant cultural change” for DOC. The way things were handled previously was different which resulted in released inmates committing crimes at exploding rates.

With this increased rate of inmates going back to jail, the Florida Department of Corrections was spending too much money on criminal justice, costing taxpayers nearly $2.4 billion annually. With more money being spent on corrections now, taxpayers are seeing an increase in savings. According to DOC data, a one percent reduction in recidivism equates to a savings of nearly $19 million over five years and by reducing the recidivism rate, taxpayers have realized a savings of $44 million.

According to Scott, a portion of the savings is being reinvested by providing bonuses to hardworking corrections employees for their service in making the community safer.

He also recommended that the Gadsden Re-Entry Center at the Florida Public Safety Institute be opened by earmarking $5.4 million. The re-entry program already has four locations statewide and prepares inmates for release so they can start their work and family life successfully after release.

Author Bio:

Steven Taxman is a criminal lawyer in Santa Rosa, CA and specializes in a number of practice areas, including DUI defense, traffic violations, robbery and theft, domestic violence and sex crimes along with others.

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The horrifying news out of Clearwater that a Mother drowned her children upon learning her husband wanted a divorce  is the most recent example of filicide in the Tampa Bay Area.  And while these terrible stories don’t directly affect your Florida child custody matter, rest assured the Judges presiding over your child custody case are well aware of these stories.After all, divorces and child related matters are emotionally charged times, and no Judge wants this happening on his watch.

As a result, you might find that Judges, whether consciously or subconsciously, our more apt to grant emergency motions or at least order expedited hearings. Normally, an emergency motion or expedited motion should be granted in exceptional circumstances, such as if a child faces immediately physical harm See Crider v. Crider 31 FLW D 1018.  In Florida, Courts are reluctant to grant emergency motions without a hearing , as doing so violates due process for the other party.

Yet recently,(albeit this is unscientific), child custody attorneys in tampa and elsewhere feel like an exceptional amount of emergency motions are either being granted or, in the alternative, expedited hhearings are being scheduled.

Certainly, these tragic stories of fratricide, like the one out of Clearwater, are causing the Judges to take notice.  Whether it truly causes the Judges to listen more closely remains to be see.  but, at the very least, it appears to be the case.

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The 4th DCA recently addressed the following question: Do grounds for a judges disqualification exist when a criminal defendant alleges the Judge is facebook friends with a prosecutor.

The answer is yes.

On September 5, 2012, the 4th DCA issued an opinion on Domville v. Florida (No. 4D12-556).

At trial the Defendant moved to disqualify the Judge because the Judge was
facebook friends” with the Prosecutor. The Jude denied the request.  The Defendant filed a writ to the 4th DCA to have the issue heard.

The Court decided that the Judicial Rules of Administration  require a Judge to grant a disqualification when a motion to disqualify is legally sufficient. A motion is legally sufficient hen the facts alleged, if taken as true, would grant a reasonably prudent person to fear that he could not get a fair and impartial trial.

The Court concluded that when a judge lists a lawyer who appears before him as a “friend” on a social networking page this reaosnably conveys to others the impression that these lawyers are in a special position to influence the judge.

The 4th DCA granted the writ, and remanded back to the circuit court for further findings consistent with the opinion.

This clearly will not be the last time this issue is heard.  Consider the Judges who have used social media in their campaign efforts and are now on the bench.  It is reasonable to conclude even if the Judges “un-like” their facebook “friends” that a disqualification would still be justified.

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Up until recently, A Putative Father who consented to Paternity but then subsequently discovered that he was not a child’s biological father did not recourse in Florida Courts.

That changed with the Disestablishment of Paternity Statute. Section 742.18 provides a Man who discovers that a child is not his unknown to a mechanism to Petition the Court to disestablish the Paternity.

The Second District Court of Appeals recently analyzed the Statute in JCJ v. Florida DOR, Case No 2D10-4029.  This was a child custody / paternity case out of Tampa, Florida.

In JCJ, the Petitioner originally signed a consent of paternity at the hospital the day after the child’s birth.  The Consent was subsequently filed with the Clerk of the Court, effectively establishing paternity.

Later, the Petitioner had a DNA test done, which conclusively showed the Petitioner was not the Father.  The Petitioner did not act as Dad from that point forward.

Years later, the Mother filed a child custody action against the petitioner.  the Petitioner countered with a Petition to Disestablish paternity.  At a final hearing, the Judge denied the petition to disestablish even though the Petitioner had a DNA test done that showed there was a zero percent chance that the Petitioner was the Father.

The Father appealed.  On appeal, the District court said the petitioner must include a DNA test within the Petition starting the Case that was taken within 90 days of the filing of the petition, unless the Petitioner swears under oath that he did not have access to the minor child.

In the Petitioner’s case, the trial court denied his petition because the Petitioner was not able to get a DNA test done until after filing the petition.  But according to the DCA, this was not fatal to the Father’s case because he did not have access to the child before filing the Petition.

The DCA overturned the Trial Court’s denial of the Petitioner’s request to disestablish paternity.  The child custody ruling was reversed.

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A potential new DUI Law has been introduced in the Senate that would radically increase the number of DUI convictions and even require a jury convict people for a Drug DUI even when not under the influence of the Drug.
Senate Bill 1810 was introduced by Senator Wise on January 7, 2012, and was quickly referred to the Transportation committee. The Bill was set to be heard on January 26, but so far no other action has been taken. There is no companion bill in the House at this time. While it may not be a threat to pass today, it is worth looking at because it may become law tomorrow.

“Weaken or Diminish”

Here is the language from the Bill:

The first obvious change would be to define the word impairment in such a way as to denote a lower level than what is currently considered impairment. Currently, “impairment” is not defined in the Jury instructions. Prosecutors routinely argue that the smallest difference in your ability to perform any normal faculties is impairment. Criminal Defense Attorneys object, arguing it must be something “material”.
In Stave v. Shaw 783 So.2d 1097 (5th DCA 2001), the Appellate Court had this to say:

This is good language for the Defense. We always try to get a Jury instruction in based on this language. Rarely works, but at least you get the State in the position that what constitutes impairment is “for the jury”, so that the State is less likely to argue the issue of defining impairment at all.

“Balancing”

Also of note is the inclusion of the language of “balance, coordination, reflexes…” when defining what constitutes a person’s “mental or physical abilities”. Why? Well, currently normal faculties are defined as:
Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives. From Florida Standard Jury Instruction on DUI

But as we all know, the arresting DUI officer is not interested in how our client normally performs his walk, judge distances, or acts in emergencies. Rather, he wants to see how he does abnormal things like walking a tight rope.

The language of balancing and coordination certainly seems to play more into the field sobriety exercises that the DUI officer will dutifully request and testify about. I would prefer to have that language if I was the prosecuting attorney.

“Controlled Substances Found in the Urine”

This one is the most troubling. Frankly, there is no way this would ever pass muster the way it is written. Anyway, the language is as follows:

WHAT?? Most Drug DUI cases in Florida are Urine Cases. In other words, the arresting officer suspects that a controlled substance is causing the DUI (or, the breath result is lower than a .08, so the arresting officer needs to find a different way to try to prove impairment), and requests that the suspect give his Urine. Compulsory blood cases are limited in availability via statute, and not cost effective enough to request to ask for a consent draw, so most of these cases tend to be Urine.
The problem with Urine results? They don’t measure what is influencing the individual. Urine results show what was once affecting the individual, and what is being eliminated currently.
The real problem with Urine results is that, depending on the substance, a marker can be found in the urine days or weeks after ingestion. For example, marijuana influences an individual for 4-6 hours after ingestion. But markers of the marijuana can be found in an individual weeks after ingesting the substance.
Consider the very real, very absurd result if an individual smokes marijuana on January 1st and then decides to drive again days or weeks later. If a metabolite or marker of the past marijuana use is found in his urine weeks later, he would be committing the crime of driving while impaired.

That is ridiculous.

While we will likely be spared of this poorly written bill this time around, it is no secret that DUI laws have become tougher and tougher through the years. That trend will continue. This law might very well be a reflection of the future state of Florida’s DUI law.

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Operation 3D, the Hillsborough County Sheriff’s Office’s DUI enforcement program, will continue to be in full force and effect throughout the coming month.

Operation 3d is a selective, aggressive traffic enforcement program.  The members of the “team” utilize aggressive traffic enforcement to pull over and investigate possible DUI drivers.  An Operation 3D deputy will ride around on patrol at night and look for anyone on the roads that might be under the influence.  They will follow the driver until they witness a traffic infraction, or until they witness sufficient weaving or other driving patterns that might make the deputy “concern for the safety of the individual”.  They will then make a stop, and if needed, continue on with a DUI investigation.

The deputies in Operation 3d also make themselves available to regular traffic control deputies who might make a stop for an unrelated traffic violation and become suspicious that the drive may be impaired.  In those circumstances, they call in a DUI guy from Operation 3d who makes nothing but DUI arrests all day long.  Interestingly for a criminal defense lawyer, these guys get awards from MADD and other agencies based on the volume of arrests made in a given time period.

The Sheriff has posted on his website a list the “itinerary” for Operation 3d for the month of November.  Included in the itenerary are two checkpoints and multiple “high saturation” days.

To see the schedule, along with the dates of the checkpoints, click here .

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Deb Lafave, originally ordered to serve ten years of probation, had her probation terminated after just seven years in a Hillsborough Court on September 22, 2011. A Tampa Criminal Lawyer brought the motion before Judge Timmerman a Hillsborough County Circuit Judge.  The State Attorney objected to the termination of probation, and even asked the Judge to stay his ruling while the State appealed the decision. The Judge denied the request, and Ms.  Lafave is unsupervised for the first time in seven years.

State Attorney is Appealing ?

The prosecutor, Mike Sincacore of the Hillsborough County State Attorney’s Office, argued that the Judge did not have the authority to terminate the probation early because Ms. Lafave agreed to “no early termination of probation” as a condition of her original plea deal. Ms. Lafave did not go to trial; her tampa criminal attorney brokered a deal between Ms. Lafave and the State Atttorneys office to resolve the matter for a lengthy probationary sentence. The prosecutor is correct that the court’s analyze issues with a plea deal as if it was a contract. So, for example, if you work out a plea bargain but then want to get out of the plea bargain later, then you will need to show that you either entered into the agreement involuntarily, or just did not know what you were doing because of drugs or mental illness. So the prosecutors positions is simple: She entered into a contract, and she cannot, and the Judge cannot, alter the terms of the contract later.

The Judges view: The Law says I Can do it regardless

Judge Timmerman had a different take on the situation, and one that is support by case law and statute. The Judge invoked Florida Statute that states: “a trial judge is not empowered to prevent the circuit court in the future from exercising its authority to discharge a probationer. § 948.05, Fla. Stat. (1991). That would mean that a probationary term that was ordered by a trial Judge would be illegal and thus, impermissable, if it later attempted to deprive another Judge from discharging a probationer later.Judge Timmerma’s position also seems to be support by case law from the Second District court of Appeals (the same District that the prosecutor will be appealing to). In Jones v. State, 666 So.2d 191 (2 DCA), the court ruled:

Although the intention of this condition may have been to proscribe termination before completion of a sex offender program, it appears calculated to divest the Department of Corrections of its authority to recommend early termination of probation. § 948.04(3), Fla. Stat. (1993). This is impermissible.  id.

Now,  one can’t tell by reading the case whether the condition was ordered by a trial judge at sentencing or if it was brokered via plea agreement.  But then again, it may not really matter;  any plea agreement entered between the defendant and the State must still be accepted by the Judge and still be a legal sentence.  Thats because the Judge orders the sentence, not the State Attorney or the Defendant.  And that sentence ordered must still be a legal sentence, and abide by the rules of the State. And looking at the law, it would seem to be clear:  The Judge has the authority to discharge a probationer if he so chooses, regardless of the original plea agreement entered into by a defendant, his or her tampa criminal lawyer, and the State Attorney.

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