Articles Tagged with martin law firm

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One of the purposes of the probate process is to manage debts owed to creditors of the deceased andto see that creditors are paid – to the extent that is legally and financially possible. The legal procedurefor probate provides a process to manage and cut off claims against the deceased that are filed morethan three months after the publication of a Notice To Creditors in the newspaper, or more than thirtydays after service of the Notice on a creditor, if that is later. Most debts of the deceased are barred andunenforceable after two years from the date of death. Recently the Second District Court of Appeals inFlorida issued a ruling that emphasizes the need to properly follow the claim procedure if you are owedmoney by the deceased. Watch the dates as you read the following paragraph.
Edward Caulfield died on December 18, 2006. A probate administration was started and on November16, 2007, a Notice To Creditors was published. The court opinion dos not explain why so much timewent by before publication. Under Florida law the end of the creditor claim filing period was February16, 2008. A creditor, Mr. Lubee, filed a late claim on December 18, 2008, ten (10) months after theclose of the claim filing period. Note, this is the point after which the two year bar on collection of adecedent’s debts also takes effect. Then Mr. Lubee sued the estate on February 5, 2009, no doubtbecause payment had not been forthcoming. Judgment was entered in favor of the estate at the CircuitCourt level and affirmed on appeal. Why? Because Mr. Lubee didn’t file a claim within the three monthsand never asked the probate court for permission to file a late claim within two years of the death ofMr. Caulfield.

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On February 29, 2012 the Second District Court of Appeals issued an opinion involving the appointment of a Personal Representative (sometimes referred to as an executor or administrator) for the estate of a decedent who died without a Will. When a decedent has made a valid Will, this document will normally nominate a person or bank to be Personal Representative. What happens when there is no Will?

The Florida Probate Code specifies that there is a priority of preference that is to be followed in determining who will be Personal Representative. A surviving spouse comes first, followed by a person who is selected by a majority in interest of the heirs. A “majority in interest” means a person or combination of people who get at least 51% of the value of the assets of the estate. The third preference is an heir nearest in degree (meaning essentially the closest relative or someone from a group of people who all have the same relationship to the decedent).

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MARTIN LAW FIRM ATTORNEYS RECEIVE LEGAL ELITE RECOGNITION

The Martin Law Firm, P.L. of Cape Coral, Florida is proud to announce that Steven E. Martin, Eviana J. Martin, Jonathan Bierfeld, Dustin M. Butler, and Patricia Dills have all been named to Florida Trend’s Legal Elite Up and Comers.

Florida Trend recognizes a prestigious list of approximately 2% of the active members of the Florida Bar who practice in Florida. Active members of the Florida Bar were asked to name attorneys whom exemplify the standards of Legal Elite and would recommend to others. Top vote getters then had their disciplinary records reviewed and finally were reviewed by a panel of previous winners.

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To answer this question briefly, a biological father has no rights to a child born while the mother was married to another man, unless the mother’s husband relinquishes his parental rights through proper procedure. In Florida, the “legal father” of a child is defined as the man to whom the mother is married when the child was born and whose name appears on the birth certificate. In the case of Slowinski v. Sweeney 38 Fla. L. Weekly D1418a (Fla. 1St DCA 2013), it was undisputed that the child was born within wedlock while the mother was married to another man and that the mother’s husband was listed as the father in the child’s birth certificate. The child resided with the maternal grandmother since birth. Upon the mother’s death, the grandmother, with the legal father’s consent, filed a petition for temporary custody, pursuant to Florida Statute section 751.03, which allows an extended family member to seek temporary custody of a child.

The biological father filed a petition for determinatin of paternity in the same county as the grandmother’s action using evidenced by DNA testing to show that he is the father and that he should have custody of the child. The biological father’s paternity action was ultimately dismissed on appeal because the court considered it a “nonexistant cause of action.” The biological father next filed a motion to intervene in the grandmother’s temporary custody case. After an evidentiary hearing on his motion, the trial court allowed the biological father to intervene in the case, finding that he qualieifed as an “extended family member” because his status as a biological father made him a “relative of a minor child within the third degree by blood or marriage to the parent.”

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In order to prevent jurisdictional disputes with courts in other states on matters relating to child support and time sharing, Florida has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Pursuant to the UCCJEA, the exercise of jurisdiction in making an initial custody determination lies with the child’s home state. “Home state” is the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a proceeding involving a child.

Many jurisdictional disputes arise when one parent decides to remove the child from Florida and move to another state with the child. Then, either one or both parents will file a petition seeking establishment of timesharing and child support in their respective states. In this instance, the courts will have to decide whether Florida or the other state has jurisdiction to preside over the case.

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Pursuant to Florida statutes, alimony may be awarded when one spouse has a need for financial assistance and the other spouse has the ability to pay. If a court awards alimony, then the obligor may later seek to modify or terminate the alimony obligation if there is a substantial change in circumstances or if the obligee has entered into a supportive relationship. Pursuant to Florida statutes, the court has discretion to reduce or terminate an award of alimony if the court finds that since the granting of the divorce decree, a supportive relationship has existed between the obligee and a person with whom the obligee resides (“cohabitant”).

The burden is on the obligor to prove by a preponderance of the evidence that a supportive relationship exists. In a recent case, Gregory v. Gregory, 39 Fla. Weekly D1A (Fla. 5th DCA 2014), the 5th DCA held that once the court finds that a supportive relationship exists, the burden of proof shifts to the obligee to prove that he or she has a continued need for the financial support. In that case, the Husband sought to reduce or terminate his alimony obligation based on the wife’s supportive relationship. Ultimately, the court held that the wife was living in a supportive relationship and she failed to prove that she had the continued need for alimony.

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In a dissolution of marriage involving property, the trial court must determine what asset is marital versus non-marital, what is the value of each asset, and decide how to split the assets. The date of determining the existence of marital versus non-marital assets is the date of filing of the petition. Because cases can take several months or even years to conclude, an asset may exit at the date of filing but not exist, or its value may substantially decrease, by the date of trial. A perfect example is a bank account. In this situation, what is a court to do?

In a recent case in Ballard v. Ballard, 39 Fla. L. Weekly 1670c (Fla. 1st DCA, 2014), the parties owned a bank account that was significantly diminished by the Husband during the dependency of the case. At the date of filing, the bank account had $42,012; by the trial date, the account had no funds. The Husband testified that he used some of the money to pay his attorney’s fees. The trial court did not find any misconduct on the part of the Husband but nonetheless included the $42,012 in the equitable distribution scheme.

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