Legal Questions Fort Myers Law Firm

General

I need an aggressive attorney who will stand up for my rights and take charge. I read on your website that you are caring, etc.. Can you be aggressive?

Many people request an “aggressive” attorney. While we can be and certainly are (when necessary) “aggressive”, we will always represent your legal interests diligently, always aware of the costs and emotional levels involved. An opposing attorney can set various motions and hearings on a regular basis, many of which could be unnecessary, all while acting within the law. This will ultimately cause much more acrimony and chaos during the divorce process and add to the legal expenses. Each time an attorney prepares or responds to a document, attends a hearing, etc., they are billing hourly. HOWEVER, having said that, when the opposition is behaving badly or improperly, this firm will do everything within its power to cause that behavior to immediately stop, including but not limited to seeking the appropriate remedies through the courts, including extra attorney’s fees to be paid by the opposing party.

Family Law

I need to get a divorce and want to divide our property which includes our home. Currently, the mortgage balance is greater than the equity. Neither of us can afford to move out. How do we handle this financially and our future living arrangements?

Unfortunately, with today’s real estate market being so depressed, this upside down equity situation is a common occurrence. The financial burden put on families during these times only makes a bad situation worse. In many cases it can be the culprit that helps lead to divorce. There are no “simple” answers to this complex problem. Numerous issues need to be analyzed. You need to be advised by a family attorney as to the potential options. An experienced family attorney deals with these types of matters on a daily basis.

My spouse and I were recently married in Las Vegas. We live in Massachusetts and came to Florida on a vacation a few weeks ago. Unfortunately, our marriage is not working out. I like Florida and want to get divorced here. Can I?

No, under these circumstances you cannot get a divorce in Florida. You must be a legal resident of the State of Florida to obtain a divorce here. That means you and your spouse must reside together, as husband and wife, for six (6) months preceding the filing for divorce. In this specific scenario, you would have to obtain a divorce in your home State of Massachusetts.

My spouse and I have lived in Florida for ten (10) years. I want to get a divorce (or I am already divorced) and move out of the state (relocate) and take my children with me. Can I?

You can certainly get a divorce, as Florida would have jurisdiction under these circumstances. However, moving out of the state with your children without court approval is another issue.

Relocation requests can be made and presented to the court. Without consent of the other party, the court will follow statutory and case law and evaluate many factors as to whether or not you may relocate. The burden is on the requesting party to show that it is in the best interest of the child(ren) to relocate. The court cannot stop you from relocating, but it may stop the child(ren) from relocating. The reason for this is obvious; the other parent will not be able to attend school events, extra-curricular activities and the like – in other words, their relationship with the child(ren) will be much different. If you relocate without permission, the court can force you to return the children to Florida, even if you have purchased property in another State.

My spouse has been cheating on me. I want a divorce and want custody. Additionally, I do not want my children to spend time with my spouse. Is this possible?

The State of Florida no longer utilizes the term “custody”. The court will always consider the best interests of the children. Your spouse, absent of any danger to the children, will have rights and obligations as to the children as you do. A parenting plan, as to time sharing will be ultimately entered by the court.

I have heard about the collaborative divorce process. What are some of the advantages of this process?

The stress level is significantly less in the collaborative process. There is no court involvement (except for the final hearing) or “battleground” scenarios, found in traditional divorce. Everyone focuses on solving problems rather than attacking each other.

Welcome to Neaher Law. We are located in Fort Myers, Florida and we provide legal representation to Lee, Collier and Charlotte counties.

Bankruptcy

Who can file bankruptcy?

Any person residing, domiciled, or having property or a place of business in the United States may file Chapter 7. A business may also file a Chapter 7. The new bankruptcy law includes a “means test” which applies an income vs. expense test in order to file Chapter 7 bankruptcy. There are currently no minimum or maximum income limits or other income requirements or limitations for people whose unsecured debts are primarily non-consumer debts such as investment liability, business losses, taxes, or student loans.

What is a Chapter 7 bankruptcy?

Chapter 7 bankruptcy is the most common type of bankruptcy and is often referred to as a “liquidation bankruptcy.” In Chapter 7, all of the debtor’s assets, other than those types of assets specifically exempt from liquidation by statute, are turned over to a bankruptcy trustee for sale. Sale proceeds, if any, are distributed among the creditors. Most Florida Chapter 7 debtors have little non-exempt personal property because of Florida’s liberal exemption laws. Chapter 7 bankruptcy is used to eliminate, or discharge, primarily unsecured debts such as credit cards or medical bills. Chapter 7 does not eliminate secured debts, such as vehicles (unless the secured item is surrendered). Chapter 7 will not save a house from foreclosure nor a car from repossession if you are delinquent in payments. Under the new bankruptcy law, only people who pass the “means test” may file a Chapter 7 bankruptcy. People who fail the means test have to file Chapter 13 bankruptcy. The means test is a complicated mathematical formula. Our office runs a means test using bankruptcy software after collecting the necessary information from you.

What is a Chapter 13 bankruptcy?

Chapter 13 bankruptcy results in a plan to repay all or part of your debt, but it is not designed to discharge or eliminate most debts. Chapter 13 is used most often to save a house from a foreclosure sale. Chapter 13 is also useful to eliminate some IRS debt and to establish an affordable plan to pay IRS debt that cannot be eliminated. Chapter 13 bankruptcy is available to debtors with regular income. A business cannot file Chapter 13. In addition, there are upper limits on the amount of the individual’s secured and unsecured debts in Chapter 13 cases.

When should I file for bankruptcy?

The decision to file for bankruptcy is often one of the hardest choices that a person has to make in his or her lifetime. Poor planning can often make the process even harder. It goes without saying that filing for bankruptcy should be a last resort, and should only be done when all other methods of satisfying one’s financial obligations have been exhausted. However, if your situation has become so severe that you are in danger of foreclosure, garnished wages or repossessions or are facing debts that you are in no position to pay, putting off the inevitable can have devastating consequences. Procrastination can cost you your car, your wages, and even your home. Filing your case in a timely fashion can spare you these losses.

Will all of my debts be forgiven if I file bankruptcy?

Many people mistakenly believe that filing bankruptcy will “wipe the slate clean” and absolve them of all their financial obligations, but that is not necessarily true all of the time. Even if you file for bankruptcy, you will still need to pay your child support, back taxes, federal student loans or debts incurred as a result of fraud or theft (writing bad checks, for example). At the initial client consultation, we can discuss which debts are dischargeable and which debts are not.

Probate

What is Probate?

A Florida Probate Administration is the process in which a decedent’s assets are distributed to their heirs or beneficiaries. Probate is a court-supervised process for identifying and gathering the decedent’s assets; paying taxes, claims, and expenses of administration; and distributing assets to the beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statute.

What is a Will?

A will is a written instrument, signed by the decedent and at least two witnesses in each others presence, that fulfill the requirements of Florida law. A will names the beneficiaries for the testator’s probate assets. The testator can also designate guardians for minor children and a personal representative to administer the estate. If a will was validly executed in another state, Florida courts will recognize the document as a will except in the case of a holographic will. Holographic wills are wills written entirely in the testators own handwriting and in most states they do not require a witness, Florida requires that holographic wills be witnessed and signed in the same manner as a Florida will.

To speak to an attorney about your legal matter, please contact Neaher Law today.

Attorney at Law offering Estate Planning, Probate, Family Law, Bankruptcy, HOA/Condo Law  and Legal Services in Fort Myers, Cape Coral, Bonita Springs, Lee County, Collier County, Port Charlotte County and all of Southwest Florida.

 

 

 

 

 

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Amy Meghan Neaher, Esq.
Neaher Law, PLLC
8260 College Parkway
Suite 102
Fort Myers, FL 33919
Phone: 239-785-3800
Fax: 239-785-3811

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