Is this cheesy or romantic? Or just another commercially celebrated day? Not necessarily true to any of these factors. Let’s go back to where Valentines originated. February 14th is referred to as a “feast day” honoring two early saints Valentinus(Valentine’s Day).
It is stated on Wikipedia website that, “A written account of Saint Valentine of Rome’s imprisonment for performing weddings for soldiers who were forbidden to marry . . . “Another account and/or legend, Saint Valentine restored sight to the blind daughter of his judge, and he wrote her a letter signed ‘Your Valentine. (Valentine’s Day).
But it is not until the 14th century where Chaucer played the role of courtly love that it gained attention. The 18th century brought about the expression of love by buying flowers and sending greeting cards.
Cupid came into the picture around the 19th century, to spare someone’s love, any one’s love? Yet the most famous may be Apollo and Daphne the story from Greek mythology, that Apollo held an infatuation for Daphne, and to stop Apollo’s stalking of Daphne she turned into a tree. In the present day and age, stalking is sadly connected to unwanted love, but let us keep in mind that Valentine’s Days purpose is to express likeness and love to our friends and family members.
Buy the flowers, candies, and gifts to express your Cupidness to your loved ones and others. Remember though, the expression of love/likeness should not just be a one-day affair, but 356 days out of the year. Write a note, and tell someone how much they mean to you, or better yet, hold their hand and/or pick up the phone (not a text). Do we really need a celebrated day to remind ourselves how much someone means to us? We can do better than this, right? Let me know when you are done celebrating and the honeymoon is over, and dig deep into the effort of a relationship, that my friend shows real love.
Apollo and Daphne, https://en.wikipedia.org/wiki/Apollo_and_Daphne. Accessed 11 February 2020.
Valentine’s Day, https://en.wikipedia.org/wiki/Valentine%27s_Day Accessed 11 February 2020.
Often times, a community association relies on an attorney to assist with the modification of its governing documents, and to provide answers to questions that affect not only the rights of the community association but its members as well.
There are certain documents that must be completed by an attorney, based on the fact that they involve the interpretation of Florida Statutes while requiring a level of legal expertise and a familiarity with the Association’s Articles of Incorporation, Bylaws, Covenants, and Declarations. Further, based on the fact that the officers and directors of an association owe a fiduciary duty to its members, it is important to keep in mind that any document pertaining to their obligations, or the obligations of its members, be drafted properly.
What HOA activities require an attorney?
The following activities are considered the unlicensed practice of law if performed or completed, on behalf of the association, by anyone other than an attorney:
- Drafting a claim of lien;
- Drafting a satisfaction of claim of lien;
- Drafting a Notice of Commencement Form;
- Determining the timing, method, and form of giving notice of meetings;
- Determining the votes necessary for certain actions, which would entail interpretation of certain statutes and rules;
- Answering a community association’s question about the application of law to a matter being considered,
- advising a community association that an action or course of action may not be authorized by law or rule;
- Drafting any document that must comply with Florida law; and
- Drafting the documents required to exercise a community association’s right of approval or first refusal to a sale or lease.
Due to the fact that such actions may affect, impair, or enhance the rights of numerous homeowners and their property interests, an attorney should be the one to draft and advise on them. Allowing anyone other than an attorney to complete these tasks opens up the association to liability, as well as the possibility of Florida Statute violations.
What are some HOA activities that are not considered the unlicensed practice of law?
Based on a Florida Advisory Opinion issued in 1996 and 2015 by the Florida Supreme Court, there are certain documents that can be drafted without the assistance of an attorney. Although this opinion references the actions of a Community Association Manager, the corollary is that it remains applicable to our discussion on HOA board conduct and the conduct of its members. With regard to the actions of non-lawyers, some of the following tasks may be performed:
- A change of registered agent or office for corporation’s forms;
- Annual corporation reports;
- First and second notices of the date of the election;
- Ballots;
- Written notices of the annual meeting;
- Annual meeting or board meeting agendas;
- Affidavits of mailing; and
- Completing a BPR Form 33-032.
If the additions or amendments pertain specifically to clerical matters and do not involve the interpretation of statutes, documents, or providing legal advice, the above-stated actions may be performed by a non-lawyer.
What are some areas of HOA law that remain unclear?
The Courts have deemed the following areas “grey”, therefore depending on your individual circumstances, you may or may not need an attorney to assist with the following:
- Editing a limited proxy form IF the modification involves:
- Filling in the name of the community association,
- Filling in the name and address of the owner,
- Phrasing a yes or no voting question concerning either waiving reserves or waiving the compiled, reviewed or audited financial statements requirement;
- Phrasing a yes or no voting question concerning carryover of excess membership expenses; and
- Phrasing a yes or no voting question concerning the adoption of amendments to the Articles of Incorporation, Bylaws, or condominium docs.
In addition to the Florida Supreme Court Opinions, an Association’s Declaration and Bylaws typically delineate the powers that a board of directors and its officers possess specifically with regards to the amendment of any governing documents. If such language is not included within the Association’s governing documents, an attorney should be consulted in order to determine how they should be amended.
If you have any questions regarding the actions of your homeowners’ association, or if you need assistance with drafting any of the above-stated documents, do not hesitate to contact The Orlando Law Group at 407.512.4394 to schedule a consultation today.
Today we honor the life of Martin Luther King, Jr. MLK gave society an understanding of what it is like to be unheard and treated wrongly in an unfair world. Fifty-two years later, we as a country are still fighting the wars against racism and inhuman acts. In his “Letter from a Birmingham Jail” dated April 16, 1963, Martin Luther King Jr., notes, “Injustice anywhere is a threat to justice everywhere” (2). Do we not recognize injustice in society today, and if we do, why are these acts portrayed at times across our social media, as a show of contentment rather than a show of disgrace? We as individuals are what solidifies us as a nation. Our arms stretch long in unity, but our prides measure shortness. We still fail and fall short of standing up for what is just and at times sit down for what is unjust.
We live in a free society, but when outside individuals try to obtain that same freedom, we fail to provide what our Constitution prevails and as MLK stated, “Anyone who lives inside the United States can never be considered an outsider anywhere in this country” (2). However, not only are the outsiders treated morally wrong, but the insiders of this country as well.
At times laws can become ambiguous, and as individuals we cannot tell the difference between just and unjust laws:
There are just and there are unjust laws. I would agree with
Saint Augustine that ‘An unjust law is no law at all.’ Now
What is the difference between the two? How does one determine
When a law is just or unjust? A just law is a man-made code
That squares with the moral law or the law of God. An unjust
Law is a code that is out of harmony with the moral law. To put
It in the terms of Saint Thomas Aquinas, an unjust law is a
Human law that is not rooted in external and natural law. Any
Law that uplifts human personality is just. Any law that
Degrades human personality is unjust. All segregation statutes
Are unjust because segregation distorts the soul and damages
The personality. It gives the segregator a false sense of
superiority, and the segregated a false sense of inferiority.
(qtd. in Letter from a Birmingham Jail 7)
So, the question posed to you on this day, as we honor MLK is what do you stand for and/or what will you stand up for? Will you stand up against the child that is being bullied by his/her classmates, or the man, woman, and/or child, who is being crucified for their appearance, color, sexual preference, or religious views?
Being quite is never enough to obtain unity and peace for the future.
The Martin Luther King, Jr. Research and Education Institute. Stanford U, 9 Jan. 2020, www.kinginstitute.stanford.edu/king-papers/documents/letter-birmingham-jail. Accessed 9 January 2020.
We love providing you with valuable legal information through the articles in our blog. In 2019 we spent time focusing on the diverse array of legal practice areas we service.
This year, we explored topics ranging from long-standing fields like “personal injury” to relatively new focus areas like “student loan law.” We covered important issues like legalized marijuana, child custody, bullying, mortgages, Uber accidents, and more.
With every article, we keep an eye on readership. We want to know what posts resonate with our audience so we can always be improving.
Based on user engagement, we’d like to share with you the most popular posts from 2019.
What you can do if you think your judge is biased.
When you go to court, you can expect that the judge that is hearing your case is impartial and will fairly treat both sides. While having an unbiased judge is almost exclusively the case, there could be a time where you believe your judge is biased. Read more.
What you need to know about the Lady Bird Deed benefits
What is a Lady Bird Deed, and why is it beneficial? Florida is one of only a handful of states that recognize a Lady Bird Deed. A person who creates a Lady Bird Deed, also known as an Enhanced Life Estate Deed, transfers property to himself for his lifetime. Learn more.
Individualized Education Plan (IEP) and 504 Plan Eligibility in Florida
Depending upon your child’s needs, obtaining the initial Individualized Education Plan or sometimes known as an Individualized education program (IEP) may be a simple process or a little more challenging, depending on specific conditions. Read more.
How to Postpone or Reduce Student Loan Payments
The Student Debt Crisis in Numbers There are various reasons which prevent people from being able to make their student loan payments. As of 2019, Americans collectively owe over $1.56 Trillion in student loan debt. This is spread out by nearly 45 million individuals who are paying back their student loans. Read the full article.
The Effects of Bullying – What You Need to Know
An unfortunate condition in our society is that bullying happens. It happens every day, and the target of the bully are often people who would have never guessed they’d be bullied. The bullies are everywhere; they are children and adults, men, and women. It’s a pervasive aspect of the world in which we live. Read more.
Looking ahead
As we welcome 2020, we’d love to hear from you about topics you’d like us to cover in our blog. Drop us an email with your ideas, and we’ll explore how we can write meaningful and educational content.
Table of Contents
Overview
What is bullying?
Who is at risk of being bullied?
Who is at risk of becoming a bully?
What are the effects of bullying?
How can I stop a bully?
Can a lawyer help if your child is being bullied?
Overview
An unfortunate condition in our society is that bullying happens. It happens every day, and the target of the bully are often people who would have never guessed they’d be bullied. The bullies are everywhere; they are children and adults, men, and women. It’s a pervasive aspect of the world in which we live.
Bullying takes many forms, the types of bullying range from physical bullying to mental abuse to online bullying. Often it’s challenging to pinpoint bullying behavior. Sometimes it is visible, and other times it’s much more subtle.
Bullying happens in many places, including school, church, sport teams, on the internet, the workplace, and in public. Generally, wherever people gather, there’s an opportunity for someone to be bullied.
But what are the effects of bullying? Can it be stopped? What rights does someone who is being bullied have? And, can a lawyer help if you or your child is being bullied?
What is bullying?
There are quite a few definitions of the term. Still, the generally accepted meaning of bullying was created in 2014 by the Department of Health, Center for Disease Control and Department of Education. This definition is federally uniform and was drafted for research and surveillance. In the description, it is cited that bullying includes unwanted aggressive behavior, observed or perceived imbalance of power, and repetition of the behavior or high likelihood of recurrence.
In our common and current language, the definition describes two “modes” of bullying, direct and indirect bullying.
Direct implies that the acts of a bully occur in the presence of a targeted individual. This could be physical and in-person or directly targeted through online channels.
Indirect suggests that the bully is not directly communicating with the targeted individual. A clear example of this is when a bully spreads rumors about a targeted person or child.
Along with the two modes in the definition, there are also four types of bullying, these are categorized as verbal, physical, relational (when an effort is made to cause harm to the relationships or reputation of an individual), and damage to property.
An addition method of aggressive intimidation is called cyberbullying; this occurs when the bully attempts to cause physical, mental, or emotional harm to someone through the use of electronic methods. These attempts of aggression are usually either verbal, threatening through instant messenger, for example, or relational, like spreading rumors through social media. Cyberbullying can also cause damage to property if the outcome of the bullying modifies, deletes, or destroys a targeted individual’s private data that is stored in some electronic method. For example, if someone were to gain access to online image storage and deface or delete the target’s pictures, this would be considered damage to property.
With so many variations and interpretations of the definition, it’s easy to see why many people might be unsure of what is happening to them, or their child is considered bullying. The only sure way to find out would be to speak to someone knowledgeable in the legal implications of the threatening or intimidating acts.
Who is at risk of being bullied?
While people of all ages are bullied, we often hear about children who are bullied in school, sports, church, online, or in some social environment.
When it comes to children and their risk of being bullied, there are some characteristics that we find to be common. Now, as you read this, understand that just because a child might possess one or more of these characteristics, it does not mean that they will be bullied or that they have been bullied. It merely means that there is an increased likelihood that they could be the target of a bully.
Further, many of these characteristics can apply to adults who are maliciously targeted by a bully.
When cases of reported bullying are examined, some of the traits associated with the targets of bullies are:
- Someone who is considered unique or different from their typical peer group. This could be someone who thinks or acts differently or someone who displays physical differences such as being overweight or underweight, wears clothes that are considered “uncool,” wears glasses, or is a standout in some way, like the new kid at school.
- Children and adults who are considered weak or diminutive in some way. These are usually kids who are seen as unable to defend themselves.
- Children with low self-esteem, who are depressed, have mental health issues or display some form of anxiety.
- Children who do not have many or any friends. These are the “loners” in the school population.
- Often children who do not get along with others, have poor social skills, or are seen as irritating are the target of bullying.
While these guidelines suggest who is likely to be a target of a bully, it’s worth noting that there are cases where the subject to aggressive behavior has none of the above characteristics. They might be a popular kid in school who has a lot of friends and high self-esteem, and they are still the target of a bully.
Ultimately, we need guidelines to study a topic, and bullying is no different. But like many different areas of study, so much exists in the gray area that we need to be conscious and aware of the signs of bullying. We might encounter a targeted child who no one thought would be bullied. It’s essential to recognize all victims of bullying.
Now, there are two sides to the concept of bullying. We’ve covered those who are at risk of being bullied. To get a complete picture, we need to consider the risk factors that contribute to someone becoming a bully? Just who among us is more likely to bully others?
Who is at risk of becoming a bully?
Under no circumstances is it right or justified to be a bully. It is crucial, though, for those of us who work hard to stop the bullying to understand what traits are more likely to contribute to someone becoming a bully. By knowing, we have a decided advantage when we work to prevent bullying.
We will also mention here that while we are talking about children who could be bullies, these characteristics could also apply to adults.
We can generally classify children into two distinct groups when we examine the likelihood of them becoming a bully.
The first group is those who are isolated from their peers. Like the bullied, these children are anxious, depressed, have low self-esteem, are less involved in school and social activities, are subject to peer pressure, and cannot quickly identify or empathize with the feelings and emotions of others.
The second group of children is nearly the opposite. They are fashionable and have a large group of friends. They seem to span multiple groups of peers from the more athletic to the academic to the more socially connected. These children are increasingly concerned about their social stance or popularity and like it when they are in control of others, even those in their peer groups.
Some of the factors that indicate a child is more likely to be a bully include:
- They are aggressive among their peers and toward others, including those they might not know very well or others who are outside of their peer group.
- These children are easily frustrated and have a difficult time coping when things do now go exactly their way.
- They have domestic issues or problems at home, including limited or no parental involvement.
- They openly think negatively of others and express those feelings either through thoughts, verbalizations, or actions.
- These children view violence as a positive tactic in dealing with situations.
- They have difficulty following rules or often believe that rules do not apply to them.
It truly is worth repeating that just because a child displays one or more of these behaviors does not mean that they are a bully. No one would ever want to classify a child as a bully when they are, in fact, not one.
What are the effects of bullying?
Sadly, the effects of bullying extend well beyond the individual who is targeted with aggressive behavior. Bullying affects three groups of children and adults. It affects the bullied or the target individual, it affects the bully themselves, and it affects the bystanders, including family, friends, and acquaintances who might have witnessed the abusive acts.
The child being bullied has an increased risk of depression, anxiety, anti-social behavior, and loneliness. They are more likely to lose interest in activities outside of the home and might isolate themselves from their family and friends. In some cases, thoughts or indicators of suicide might exist.
Children being bullied might also experience physical health problems as a result of the stress of the bullying. Further, they may suffer from decreased academic performance.
The child who is bullying also suffers. These children are more likely to abuse alcohol and drugs, engage in promiscuous sexual activity, drop out of school, get in trouble with the law, and isolate themselves from their peers.
Moreover, the bully will often carry their behaviors into adulthood and become bullies in the workplace and at home. They are more likely to engage in abusive relationships with a significant other and their children.
The family, friends, and bystanders who witness the direct or indirect acts or see the after-effects are impacted as well. Children who witness bullying might experience feelings of guilt or regret if they did nothing to stop the aggressive actions. These children are more likely to miss school because they are looking to avoid being bullied or witnessing the bully’s acts again.
How can I stop a bully?
To stop the behavior of bullying, everyone involved needs to take an active role. This includes parents or custodial adults, teachers, school administrators, executives in the workplace, bystanders, and the bullied.
As is the case with so many issues, education and awareness are critical components of preventing and stopping bullying. Everyone involved should be aware of the indicators that someone is at risk of being targeted by a bully or at risk of becoming a bully. Through education, early intervention can happen, and many instances of bullying can be prevented.
Another tactic that can be very effective in preventing bullying is opening the lines of communication between parents, guardians, teachers, school administrators, and children. When people feel comfortable talking about a complicated topic, it eases the difficulty when it is most important to do so. By creating clear channels of accessible communication, instances of bullying that might typically go unreported can be handled quickly and effectively.
Despite these effective tactics, there may still be times when these methods do not stop bullying. It’s during these times that involving a legal professional who focuses on bullying should be a consideration.
Can a lawyer help if your child is being bullied?
Wondering if you can sue a private school for bullying? Give our article a read through, and if you have specific questions you need answered, book a consultation with one of our Personal Injury Lawyers.
When traditional tactics of reporting bullying and communications with school administration and teachers are ineffective in stopping a bully, speaking with an attorney who focuses on bullying is, undoubtedly, an option.
Attorneys who focus on cases that involve bullying are trained to help the bullied children and their families pursue legal action against the schools, churches, organizations, or other parents who are not making attempts to prevent the aggressive acts from happening.
If you believe your child’s school, church, or organization is not actively working to prevent another child from bullying; please contact us to learn what legal options you have.
What is Wholesaling Real Estate?
Investing in real estate is an efficient way to make money and to diversify your investment portfolio. There are many different types of investment strategies that are commonly used to make money in the real estate industry. When people are starting, the difficulty is often “How am I going to invest in real estate if I do not have thousands of dollars saved up?” Wholesaling may provide you with an opportunity to make some money while spending very little out of your pocket.
Wholesaling involves an investor entering into a contract with a homeowner for the purchase of their home, then he or she markets that property to other potential buyers. Once a new buyer is found, the investor will either double close on the property or assign their rights under the contract to the new back-end buyer. The Investor will then keep the profit of the sales (if double closed) or keep an assignment fee charged by the new buyer.
Wholesaling real estate in Florida is a great way to get your foot in the door of the world of real estate investment. Although you may need to have patience, focus on the task at hand and do a good deal of social networking, real estate wholesaling requires little initial financial investment, unlike most other forms of real estate investment. Of all the US states, Florida is a wonderful place to get your start in wholesaling real estate. Investment activity in the state is booming and continues to grow each and every day, meaning that demand for wholesaled properties is also at an all time high. Florida’s growing economy, great labor market, favorable tax policies, and urban areas such as Orlando, Tampa and Miami which have long been attractive investment destinations make Florida a great place to get your start.
The Contract
Once you have found the right property, the objective is to get the seller to agree to the terms of a contract, and to execute said contract. The contract’s contents vary drastically among investors, with each investor incorporating different terms. One fact is for sure, a solid contract is necessary to protect your interests. Using a typical FARBAR contract gives the parties warranties and responsibilities/liabilities that many investors do not want to be incorporated into their wholesale contracts. There is not a one-size-fits-all contract. Investors should be prepared to modify their contract as needed for each deal.
Determining the Price
Investors often have a difficult time trying to determine the price point where they need to be in the contract. If you have a bad price point for your wholesale deal, you will lock down the seller’s property for weeks or months and will be unable to complete the deal with a back–end buyer. The most common way to determine the price point needed for an effective wholesale deal is to use the “70% of ARV rule.” ARV stands for “After Repair Value,” and this value is what the house would be expected to sell for if sold to a retail buyer after all necessary repairs have been made. The general rule of thumb is that an investor who is flipping a house needs to be in a deal with an expected 30% return. This figure also provides a buffer for the investor in case repair costs or other fees run higher than were estimated. To calculate your offer based on the above formula, you take the ARV and multiply this number by 70%. From that result, subtract out the expected repair cost of the property. The remaining figure is the highest amount of money you should offer to the seller. As an example, we will use a house with an ARV of $100,000.00 and an expected repair cost of $20,000.00:
($100,000.00 x .70)= $70,000.00
$70,000 – $20,000.00= $50,000.00.
In order to fix and flip this house, the investor would ideally need to get this property under contract at $50,000.00. Cutting the margins any shorter may lead to a loss on the flip, although it can be done. For a wholesaler, in order for you to find a back-end buyer, you will need to offer them this property at or as close to the $50,000 figure. If the wholesaler can get the property under contract for $45,000, they can assign that contract to a flipper and easily make a $5,000 assignment fee. The shorter you cut the margins, the harder it will be to find a back-end buyer.
Assignment vs. Double Close
An assignment occurs when a wholesaler gets a property under contract, then finds a new buyer. The wholesaler and the new buyer execute an assignment agreement in which the back-end buyer replaces the wholesaler under the original contract. Accompanying this agreement, the back-end buyer tenders a non-refundable assignment fee to the wholesaler. A double closing is two closings. The wholesaler closes on the property with the seller, then immediately sells that property to the new buyer. Typically, the wholesaler will negotiate and contract with the back-end buyer to have as much of the closing costs as possible paid on their behalf. Whether to assign a deal or double close on a deal is typically dependent on the facts of the individual deal. An assignment is often preferred because the investor will have fewer overhead expenses since they do not have to close on the deal. Doing a double closing may also benefit the wholesaler if they are making a lot of money on the deal because the seller will not know how much money the wholesaler is making off of the back-end buyer.
Wholesaling Real Estate, Is It Right For You?
The idea behind wholesaling is that the wholesaler is the middleman between the seller and the back-end buyer. In most cases, the houses contracted for are off-market properties, so the wholesaler is actually finding the property and relieving the back-end buyer of this responsibility. For this service, the wholesaler charges a fee, typically as an assignment fee. Wholesaling has received a bad rap because many people will nickel and dime the sellers, who are often disadvantaged in some way or another, in an attempt to make the most profit possible. Wholesaling provides a great source of income, and it is a good way to keep properties cycling. The profits can also be dumped back into the marketing budget to drum up more properties. It is possible to wholesale ethically if you take the time to learn the process and reach an agreement with the seller that is beneficial to both of you.
This blog does not cover all of the intricacies involved in a real estate transaction, but it should serve a good starting point for your ventures. If you would like to know more about wholesaling, The Orlando Law Group, PL has knowledgeable real estate attorneys to help you navigate the process.
Real estate is an essential part of the Florida economy. Whether you are a large developer or simply buying a home, you need real estate counsel. The Orlando Law Group’s attorneys handle virtually all aspects of real estate. We represent individuals by reviewing their leases as well as contracts. We also represent developers, contractors, lenders, and owners of commercial properties.
The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.
At The Orlando Law Group, you can be sure that your attorney possesses both a sharp, experienced legal mind, and a friendly smile that will welcome and comfort you. What’s more, we are serious about preventative legal tactics, working to solve issues for our clients before they blow up into legal messes. Simply put, we are here for you, and we have your back at all times!
If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
The Fair Labor Standards Act (FLSA) establishes a minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and Federal, State, and local governments. Unless you fit into an exemption, the Fair Labor Standards Act (FLSA) requires virtually all employers to pay employees at least the federal minimum wage for each hour worked and to pay overtime for all hours worked more than 40 in a workweek. Non-exempt employees are entitled to overtime pay, while exempt employees are not.
Most employees covered by the FLSA are non-exempt. Whether employees are exempt or non-exempt depends on (a) how much they are paid, (b) how they are paid, and (c) what kind of work they do. With few exceptions, to be exempt, an employee must (a) be paid at least $23,600 per year ($455 per week), (b) be paid on a salary basis, and (c) perform exempt job duties. Most employees must meet all three “tests” to be exempt from the FLSA. This blog is only regarding the FLSA pending changes. Keep in mind that this discussion is limited to rights under the FLSA changes. Exempt employees may have rights under other laws or by way of employment policies or contracts that exist outside of the scope of the FLSA.
On September 24, 2019, the Department of Labor reached a final rule that will increase minimum salary requirements for the administrative, professional, and executive exemptions from $23,600 per year ($455 per week), to $35,568 annually ($684 per week). This rule is set to take effect on January 1, 2020. For currently exempt employees, if you are making less than $35,568.00 annually, under the new changes, you would be a non-exempt employee. This means that you are entitled to overtime hours, even if you are a salaried employee. Non-exempt employees are entitled under the FLSA to time and one-half their “regular rate” of pay for each hour they actually work over the threshold in the applicable work period (Usually 40 hours).
Under the new rule, employers can satisfy up to 10% the annual payment threshold through bonuses, incentive payments, and commissions for exempt employees, but the other 90% of the threshold must be paid at a regular rate equal to $615.60 per week. The FLSA changes allow for the employer to make a final catch up payment within one pay period of the end of the year if the employee’s compensation has not reached the required level. If the employer chooses and properly prepares for this option, they are only required to pay their employees 90% of the required salary level ($615.60) per week. At the end of the year, the employees paid-out salary plus bonuses, incentive payments, and commissions do not equal at least $35,568.00 annually; the employer would have to make up the difference within one pay period. After this one pay period, the employer would be in violation of the FLSA regarding exempt employees if they have not paid at least $35,568.00 annually.
If you are an employer, it would be wise to review the status of your employees to determine whether your exempt employees are properly classified under the new rules. If your previously exempt employees were making less than $35,568.00, they will no longer be exempt, and you will be required to pay overtime at time and a half for every hour worked over 40 hours. Reevaluating your employees would also help determine whether reclassifying an employee is a financially wise decision. If the employee does not meet the threshold for exempt status and rarely works overtime, it might be a better decision to reclassify that employee as non-exempt instead of raising their salary by more than $10,000.00. On the other hand, if an employee who works regular overtime is close to the exempt salary threshold, it may be wise to increase their salary to save money on the overtime.
The FLSA is a complex system of laws regulating most employer/employee relationships. If you are unfamiliar with the FLSA and what impacts it may have on your business, do not hesitate to contact a lawyer. The Orlando Law Group, PL is ready to help with all of your employment needs.
By Attorney Sophia Dean
The Student Debt Crisis in Numbers
There are various reasons which prevent people from being able to make their student loan payments. As of 2019, Americans collectively owe over $1.56 Trillion in student loan debt. This is spread out by nearly 45 million individuals who are paying back their student loans.
Out of this increasingly large group, there are, of course, individuals who will find themselves in circumstances which will prevent them from making their payments. These people are not alone. In fact, there are roughly 3.7 million student loans in deferment and 2.6 million in forbearance. The good news is that there are deferment and forbearance options which can alleviate some of this stress and allow you to get back on stable ground.
What to Know About Deferments and Forbearances
While there are several options for individuals who are experiencing difficulty paying back their student loans, like income-based repayment, we commonly see deferments and forbearances. On the surface, these options may seem similar, but they actually have several differences which can make them more or less suitable for certain situations. Both allow you to temporarily stop making federal student loan payments or temporarily reduce the amount you pay.
A key reason to look into these options is to help to avoid defaulting on your loans, which can cause significant consequences.
Based on the type of loan you took out, your interest may accrue during this time. Because this will add to the total cost of the loan, it is important to be clear about these details. It is also important to make sure that you have completed the steps necessary to attain an active deferment or forbearance so you don’t miss payments and negatively affect your credit score.
The important question is, Which choice is right for you?
What are the Differences Between Deferments and Forbearances?
The most important thing to know about deferments and forbearances is that they are not one and the same.
A Deferment can be an excellent solution for people experiencing certain circumstances. On particular loans, you may not be responsible for paying the interest that accrues during this period.
Your lender or loan servicer may offer different deferment options based on your particular situation. For example, federal loans have the following deferment options:
● Economic Hardship Deferment
● Graduate Fellowship Deferment
● In-School Deferment
● Military Service and Post-Active Duty Student Deferment
● Parent PLUS Borrower Deferment
● Rehabilitation Training Deferment
● Temporary Total Disability Deferment
● Unemployment Deferment
A Forbearance is a period during which your monthly loan payments are temporarily suspended or reduced. If your particular situation includes financial hardship that prevents you from making loan payments even though you are willing, your lender may grant you a forbearance. During this period of time, the principal payments are postponed. The one caveat is that interest continues to accrue.
You could potentially qualify for a forbearance if you are temporarily unable to make scheduled monthly payments for the reasons listed below:
● Financial difficulties
● Medical expenses
● Change in employment
● Other reasons acceptable to your loan servicer
Because the loans continue to accrue interest during the forbearance term, it is smart to continue paying at least the monthly interest. This method is helpful as it resolves any delinquency on the account.
There are also two different kinds of forbearance—General and Mandatory.
Also known as a “discretionary forbearance”, a general forbearance can be requested due to financial difficulties, medical expenses, change in employment, and/or other reasons acceptable to your loan servicer. It is at the discretion of the loan servicer whether to honor this request or not, hence the name. These can be granted for periods of no longer than 12 months but can be requested again when this time expires.
Mandatory forbearances MUST be honored by loan servicers as long as the individual meets the eligibility criteria. There are more options for eligibility for mandatory forbearances and each one has more specific qualifications and stipulations attached, but the major requirements are;
● If you are serving in a medical or dental internship or residency program
● If you are participating in a teaching service which would qualify you for teacher loan forgiveness
● If the amount owed on your student loan is equal to or greater than 20% of your total monthly income
● If you qualify for partial repayment of your loans under the Department of Defense Student Loan Forgiveness program
● If you are a recently activated member of the national guard but are not eligible for military deferment
As with discretionary forbearances, a mandatory forbearance is granted for a maximum of 12 months. However, this may be extended as long as you continue to meet the eligibility requirements.
Postpone or Reduce Student Loan Payments Next Steps–How to Seek Out a Deferment or Forbearance
Both deferments and forbearances are excellent options for people struggling to pay their student loans due to temporary financial hardships. However, if your financial woes are likely to continue for an extended period of time, it may be a better option to change to an income-driven repayment plan. These are based on your discretionary income, size of your family and multiple other factors. If your loan is not repaid after 20-25 years, you may also qualify for student loan forgiveness as well.
If your circumstances are likely to improve within a reasonable amount of time, it would be a good idea to consider a deferment or forbearance. It is important to remember that your loan servicer does not work for you. The best course of action is to use an outside source such as a well-versed attorney with expertise the variety of student loan options. They will assist you in deciding if a deferment or forbearance is the most applicable in your individual case. Having someone to trust can drastically help reduce the stress and worry associated with dealing with student loan debt.
For the past ten years, The Orlando Law Group has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located in Waterford Lakes, Altamonte, Lake Nona, and Winter Garden. For more information, visit www.TheOrlandoLawGroup.com.
The Orlando Law Group Welcomes Another Excellent Attorney
Orlando, FL (September 6, 2019) – The Orlando Law Group is proud to announce the addition of attorney M. Florence King to the firm. King brings a plethora of leadership, along with 15 years of experience working predominantly within the community association industry.
A graduate of Ave Maria School of Law in 2005, Ms. King spent the early years of her career working for Park Square Enterprises, gaining experience in title closings and land acquisition. After the Great Recession of 2008, she took an opportunity with Larsen & Associates, P.L., a small, local community association law firm in need of managing their unplanned growth in association collection matters. King, who’s unique background also includes accounting and computer programming, helped innovate and automate several processes, leading that firm towards becoming a top performing association law firm in Central Florida.
King was drawn to The Orlando Law Group’s dedication and commitment to the people and communities they serve. She believes these principles and values should serve as the backbone of doing community association law with a renewed dedication to the homeowners within those associations.
“Community association legal representation oftentimes brings an adversarial atmosphere to communities,” said King. “I think it can be done better. I think the real win is in fostering a mutual bond amongst the homeowners within the community where everyone properly understands the benefits of abiding by the rules and regulations, and how abiding by those rules and regulations helps create a powerful, common vision for the community where property values increase, community harmony is enhanced, and homeowners can obtain a genuine sense of pride for the place they call home.”
While King’s experience will enhance the firm’s community association representation, she is looking forward to diversifying her legal practice. “I’m passionate about serving people,” said King. “I’m thrilled to be given an opportunity to work with a firm that is founded on that same value, and I’m looking forward to utilizing my education and experience to enhance the lives of others through the practice of law.”
For the past ten years, The Orlando Law Group has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located in Waterford Lakes, Altamonte, Lake Nona, and Winter Garden. For more information, visit www.TheOrlandoLawGroup.com.
A reverse mortgage is a loan available to homeowners aged 62 years or older that allows a homeowner to borrow against the equity they have in their house in the form of a lump sum, fixed monthly payment, or line of credit.
Unlike a typical mortgage, with a reverse mortgage, the bank pays the owner of the house monthly mortgage payments, and when the owner of the house passes away or chooses to sell the home, the entire reverse mortgage balance becomes due and payable.
As long as the borrower is 62 years of age or older and lives in the home, he or she is not required to make any monthly payments towards the loan balance. The concept of the reverse mortgage originated as a way to help retirees with limited income use and benefit from the equity which they have built up for their house without having to sell the property.
With these types of mortgages, the owner of the property is ultimately responsible for the property taxes, homeowners’ insurance premium, utilities, fuel, maintenance, and other common household expenses. If only one spouse signed the loan paperwork, in certain situations, the other spouse may continue to live in the home even after their spouse passes away if he or she continues paying the above-noted bills and maintains the property. However, since the other spouse was not a part of the loan, all payments under the reverse mortgage will cease.
Most reverse mortgages have a “non-recourse” clause, which means that the value of the reverse mortgage cannot exceed the value of the home when the loan becomes due and payable. This can be beneficial upon the death of the homeowner because there will not be any bills related to the reverse mortgage outside of the equity in the house.
No other assets in the estate of the deceased homeowner are affected. There are three different types of reverse mortgages. As with any type of transaction, it is important to shop around for the best option for your home and fully understand the complexities of the transaction before locking yourself into a long-term loan.
Single-Purpose Reverse Mortgage
With this type of mortgage, homeowners can use single-purpose reverse mortgage proceeds only to pay for specific items that are approved by the lender. This single purpose may be for necessary repairs and maintenance, or payment of property taxes. The lender on this type of file is a state, local, or non-profit agencies. This type of mortgage considered the least expensive type of reverse mortgage. This option can be beneficial to many homeowners because it offers fewer expenses and fees than other types of reverse mortgages.
Home Equity Conversion Mortgage
This type of mortgage is likely to be more expensive and is the most widely used version of the reverse mortgage. This is because there are no income requirements, and the proceeds from the loan can be used for any purpose. This loan does not carry the same single-purpose limit detailed above.
The Home Equity Conversion Mortgage, or HECM, is insured by the Federal Housing Administration, or FHA, which means it has loan limits and some additional guidelines in place to protect borrowers. The HECM loan limit, or maximum claim amount, for 2022 is $970,800. That means the highest home value that can be used to calculate your reverse mortgage proceeds is $970,800.00.
Counseling is typically required before applying for this loan due to the higher expenses, interest rates, and payback requirements of this loan. Because this is a federally insured mortgage, there are usually high up-front or monthly ongoing insurance payments. These payments are usually taken out of the loan itself, and reduces the amount you are able to borrow.
Proprietary Reverse Mortgages
A proprietary reverse mortgage is not available to the average homeowner. As of 2022, in order to qualify for this type of reverse mortgage, your home must have a value of at least $970,800.00. This is not a federally insured mortgage and often has less stringent insurance requirements.
If you are considering this type of loan, you should also apply for the Home Equity Conversion Mortgage. This way, you can compare fees for both types of reverse mortgages to find out which loan fits better for your situation.
Wrapping It Up
Reverse mortgages do possess a poor reputation in the eyes of many due to several scams which look to target unsuspecting seniors and dishonest marketing to try to get homeowners to take out reverse mortgages. For instance, in late 2021, the Consumer Financial Protection Bureau filed a complaint and levied a $1.1 million fine against American Advisors Group for deceptive marketing regarding reverse mortgages.
Using a reverse mortgage can eat up the equity in your home, meaning there is less value to your estate that is left for your heirs. If your goal is to leave the house for your heirs to live in, a reverse mortgage may not be the right type of loan for you. On the other hand, using a reverse mortgage may allow older homeowners to better manage their expenses during retirement. You also would not have to pay taxes on the income you receive from a reverse mortgage, as it is not taxable because the IRS considers that income as “loan proceeds.”
Reverse mortgages have both pros and cons, and it is important that you understand the complexities of a reverse mortgage to know whether such a loan is right for you and your family. If you would like to discuss how a reverse mortgage may benefit your situation, please contact an attorney at The Orlando Law Group, P.L. via phone at 407-512-4394.
The attorneys at The Orlando Law Group represent individuals throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.
If you are dealing with a real estate or estate planning issue, are wondering if a reverse mortgage is right for you, or are looking to establish your own estate plan, please reach out to our office at 407-512-4394, or fill out our online contact form.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
In today’s age, people of all ages are very active online- whether it be connecting with family and friends, sharing what they are doing and where they are doing it, sharing photos and videos from their mobile device, or building online profiles which describe who they are. While the internet has made it easy to share this information, doing so comes with certain risks, especially for kids. Here we discuss those risks and how can you discuss them with your child(ren).
Talking To Your Kids About Staying Safe Online
The best way to protect your kids online is to talk to them about it. As soon as your child starts using a phone, mobile device, or computer, you should begin the conversation of online safety. As parents, you should initiate the conversation. You can use everyday opportunities to initiate the conversation. For example, news stories about cyberbullying or texting while driving can spark a conversation about their online experiences and your expectations.
When communicating your expectations, be specific about what’s off-limits, and what you consider to be unacceptable behavior. During these conversations, it is important to be patient and supportive. Resist the urge to rush through having the conversation; most children need to hear things more than once before it sinks in so you should have a short conversation about this more than once. Work to keep the lines of communication open. Listening and taking their feelings into account will help keep the conversations productive.
Parents or guardians should consider the unique ways to speak to kids and teens
There is no question that as children get older you have to communicate with them differently. Learning how to talk about online safety through the years is important to make an effective impact on your child’s online behavior and safety. For young kids, supervision and parental controls are the best ways to monitor their online activity. Some features available are filtering and blocking, browsers for kids, and disabling in-app purchases from your device.
As young kids get older and turn into tweens, they like to feel independent. They also may be at the age where they are tech-savvy enough to get around the parental controls that once worked. An alternative action you can take at this stage is setting time limits on use. When children turn into teens, they begin to form their own opinions and take on the value of their peers. The most valuable thing you can do is talk about credibility, manners, and expectations.
Addressing kids and social networking
Kids share a lot online from pictures, videos, whereabouts, thoughts, and plans with their friends, family, and sometimes strangers too. Some downfalls with online socializing are oversharing too much information, or posting pictures, videos, or words that can damage a reputation or hurt someone’s feelings. So, what can you do to keep your kids safe? Remind your kids that online actions have consequences. The things they share could be seen in the future by colleges and other people who can influence their future.
Cyberbullying is bullying or harassment that happens online. Help prevent cyberbullying by talking to your kids about bullying. Let them know that they can’t hide behind the words they type or images they post or send to others. Recognize the signs of cyberbullying – it often is in the form of mean-spirited comments, and if you do see this, make sure they know to say something.
Using Mobile Devices
It is each parent’s responsibility to decide when is the right age for their child(ren) to have a phone or mobile device. Whenever that time may come, it’s important to know the various ways that you can keep them safest with it. Most wireless companies have settings that allow parents to turn off features like web access, texting, or downloading/in-app purchases. Many smartphones today also have GPS location on them – this technology can be beneficial for you as a parent, but it also allows for their friends and possibly strangers to know their whereabouts.
If your child’s mobile device is a smartphone, there are hundreds of apps that are available to them. You should know that there is a chance that apps might collect and share personal information, let your kids spend real money (even if the app is free), and link to social media, all without you being aware. To avoid these possible negative effects of apps, you should read the description, content rating, and user reviews, and check what information the app collects before downloading. Most apps also allow you to restrict content, set passwords, and turn off Wi-Fi so it can’t connect to the internet.
When it comes to texting, encourage manners. Texting shorthand can lead to misunderstandings, so it’s important kids think about how someone else may interpret the message. You should also remind your kids to ignore texts from people they do not know and when it comes to sexting, do not do it! Aside from risking their reputation and friendships, they could be breaking the law if they create, forward, or even save this kind of message.
Making Computer and Internet Security A Habit
The security of your computer affects your user experience, and also that of your kids. Certain types of software can install viruses on your computer, send unwanted ads, and monitor your computer use. To avoid these problems, use security software and keep it updated, keep your operating system, web browser, and apps up to date, and allow the use of multi-factor authentication.
You should let your children also know that it is important to create strong passwords and keep them private, not to provide personal of financial information unless the website is secure, and watch out for “free” stuff. An important tip to teach your kids: If the URL does not start with “https,” don’t enter any secure information – the “s” means that your information is encrypted.
This month we celebrate the tenth anniversary of The Orlando Law Group.
On August 8, 2009, I took a leap of faith that the Central Florida region would benefit from a law firm that puts people first and cares deeply about the community. We knew our clients wanted a firm staffed with attorneys who precisely focus on all areas of law.
Back then, I had a small office with two lawyers and no support staff. When I started up, the firm was agile, focused on growth and service, and I knew that what we had to offer could dramatically change many of our clients’ lives for the better.
Now, a decade later, I’ve seen a lot of change and have learned quite a bit along the way. As I reflect, there are five things I have learned that stand out.
- The law is continually evolving. Like many industries, the legal world is subject to change and improvement over time. New laws are created, and we are responsible for understanding the fine details on how they affect our clients. Sometimes these laws are only small changes to existing laws and other times entirely new laws are put into place, like the current bill filed with the state of Florida to decriminalize marijuana. What makes us successful is our ability to learn these new laws and understand how they apply to current and future clients.
- Our clients’ needs have become more complex. The practice of law is exciting in that there are so many different legal areas. Over the past ten years, it’s become clear that it is impossible to draw definitive boundaries around each practice. So many times we have to take into account several areas of law when we work with a client. Family Law, for example, can stretch into business law and estate planning quite easily. As a firm, my team’s ability to be nimble and creative is a tremendous asset. We are able to look at the big picture for a client and provide them with a complete solution, even when their needs span multiple areas of law.
- A dedication to the community is critical. If any new business owner were to ask me for advice on how to be successful, I’d tell them that being an active member of the community is very important — the communities in which we serve benefit in countless ways when business get involved. As business owners, we have the experience to think critically about solving problems, we can assemble teams to accomplish great things, and we can inspire others to do the same. From the beginning, The Orlando Law Group has made community involvement and service a hallmark of how our firm operates.
- Surround yourself with positive, uplifting people. There’s a saying that suggests that you are influenced more by the people you surround yourself with than by any other source. I believe it. From the beginning, I’ve always found that when I work, socialize, and volunteer with people who have a positive and uplifting attitude, we accomplish more, and every outcome is rewarding. I encourage everyone to seek out the positive people in their lives and simply spend time with them. Their spirit is contagious and can affect you in profound ways.
- Set big goals and work tirelessly towards them. After a decade, my firm has grown to five offices with two dozen employees. My goals are substantial, and they get bigger all the time. When you set big goals and make a strategic plan to achieve those goals, amazing things happen. I truly love what I do. It’s my purpose in life, and that is why I work so hard to help as many people as possible. It’s not about how many offices we have or how many employees come to work every day. What matters most is that we have a positive impact on the lives of our clients.
I am fiercely proud to be celebrating our 10th anniversary today. In some ways, it feels like just a few moments have past and in others a lifetime. I do know this; we continue to be agile and aggressive. We continue to work with endless dedication to our clients. And while we celebrate ten years of serving our clients and our community, we are now focused on the next ten. 2029, here we come.
In Florida, courts adhere to Florida state statutes when shaping a timesharing schedule, and specifically look to Florida Statute 61.13. When deciding upon a timesharing schedule, the courts make their determination based on a multitude of factors; a total of about 20 factors, to be exact. These factors include, but are certainly not limited to: the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required; the demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent; the moral fitness of the parents; the mental and physical health of the parents; and the reasonable preference of the child. The bottom line is, when Florida courts determine a timesharing schedule, they make that important decision in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act.
Florida Statute 61.13 states that each minor child should have frequent and continuing contact with both parents during a separation and after a marriage is dissolved. The court adheres to the notion that parental responsibility is shared by both parents, unless the court finds that the continued sharing of parental responsibility by both parents would be detrimental to the child.
We are all aware that divorce or separation often results in a rollercoaster of emotions, even between the most logical and reasonable of parents, and situations may arise during and after a divorce or separation that lead to conflict between parents. If such distress leads one parent to begin restricting or altering the time-sharing of the other parent, Florida Statute 61.13(4)(c) states that the Court may take any of the following actions:
- Reimburse the denied-parent, as soon as possible, for the time-sharing missed. This is done at the convenience of the denied-parent and at the expense of the noncompliant parent; or
- Order the noncompliant parent to pay reasonable court costs and attorney’s fees to the denied parent for the expenses incurred from bringing an action to enforce the time-sharing schedule; or
- Order the noncompliant parent to attend a parenting course; or
- Order the noncompliant parent to perform community service; or
- Order the noncompliant parent to have the financial burden of promoting continuous contact, if the child resides more than 60 miles away from the compliant parent; or
- Modify the parenting plan if it is in the best interest of the child; or
- Impose any other reasonable sanction as a result of the parent’s noncompliance.
In addition to the possibilities listed above, if a parent refuses to honor the time-sharing schedule, they may be found in contempt of court and summarily punished in the form of paying reasonable court costs and attorney’s fees of the other party, or faced with another consequence that the is deemed appropriate. Other potential consequences could range from fines to sanctions or even incarceration. A contempt order may be criminal or civil. The determination of which type of contempt applies depends on the action of the party. Criminal contempt is often used to punish a party whose conduct rises to the level of embarrassing, hindering, or obstructing the administration of justice. Civil contempt is often used to persuade a party to comply with a court order after they have already failed to abide by it. To avoid being held in contempt, the parties must follow the time-sharing schedule set out by the court or properly modify it.
HOW DO YOU PROPERLY MODIFY A TIME-SHARING SCHEDULE?
Florida Statute 61.13 states that in order to modify a time-sharing schedule, a two-prong standard must be satisfied: (1) that there be a showing of substantial, material, and unanticipated change in circumstances; and (2) a determination that the modification is in “the best interests of the child.” In order to allow for a modification of the time-sharing schedule, the change in circumstances must be significant and involuntary. Additionally, as discussed in previous blogs regarding time-sharing, the “best interest of the child” is the primary standard that the court adheres to when constructing a time-sharing schedule for a minor child and his/her parents. There are numerous factors that must be considered when determining what is best for the child, some of which are:
- The ability of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent;
- The length of time the child has lived in a stable environment; and
- The moral fitness of the parents;
Therefore, if a party meets its burden of proving that there is a substantial change in circumstances and the modification is in the best interest of the child, the court may allow for the time-sharing schedule to be altered.
It is important to remember that the focus of both parents must remain on the well-being of the minor child/children, particularly in developing a safe and healthy environment for them. Additionally, if a time-sharing schedule is modified, then child-support payments may need to be adjusted as well. If you are planning on obtaining a divorce or modifying a time-sharing schedule, it is imperative that you understand the process, as well as the rules that the court must adhere to.
The attorneys at The Orlando Law Group represent families throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.
If you are dealing with a family law issue or looking for some preventative family law services, please reach out to our office at 407-512-4394, fill out our online contact form.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
Divorce can be an overwhelming process, especially if a parent does not understand the reasoning and methodology behind the court’s decisions. One decision that many parents must deal with for years to come is the courts’ decision on a child’s timesharing or custody arrangement.
When the amount of time you spend with your child is at issue, it often helps to understand the rules that the court must abide by when constructing a time-sharing schedule. In Florida, courts adhere to Florida Statute 61.13, which may be a little overwhelming to read at first glance. This is why the professionals who focus on family law with The Orlando Law Group are here to help.
Florida Statute 61.046(23) defines time-sharing as a timetable that must be included in the parenting plan that specifies the amount of time that a minor child will spend with each parent, which includes overnights and holidays. A time-sharing schedule can either be 1) developed and agreed upon by the parents, then approved by the court; or 2) established by the court, if the parents can’t agree or if the time-sharing schedule they have already developed is not approved.
61.13 (2)(c) further states that the court must make a decision regarding a minor child’s time-sharing based on the best interest of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act. This means that the court takes into account all factors that affect the welfare and interest of the minor child, as well as the circumstances of the family. For example, some of the factors that the court looks to when determining the best interest of the child are:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
In addition to the best interest of the child, the court makes its decision in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act, or otherwise known as the “UCCJEA”. The purpose of the UCCJEA is to avoid competition and conflict between courts of another state, where matters of custody may have been previously handled.
The UCCJEA Affidavit requires the parent to fill out the child’s name, place of birth, birth date, sex, present address, the period of residence, and places where the child has lived within the past 5 years. It also requires the name, present address, and the relationship to the child for each person with whom the child has lived during that 5-year period.
Statute 61.13 further states that it is the public policy of the state that each minor has frequent and continuing contact with both parents after the parents separate or after the marriage is officially dissolved. It encourages both parents to share the rights and responsibilities that come with raising their child. It also emphasizes that there is no presumption against the father or mother of the child regarding their time-sharing, which essentially means that there is no predetermination made by the court regarding which parent the child will spend more time with. After the court weighs all of the factors outlined above, it will make its determination based on whatever time-sharing schedule is best suited for the child’s individual needs.
If you are currently struggling with determining a suitable time-sharing schedule in a divorce child custody situation, finding an attorney who can effectively help you during its construction is vital. The attorneys at The Orlando Law Group are ready, willing, and able to assist you with such a process. We have countless hours of experience in family court helping our clients navigate divorce cases and understand the type of custody that has been arranged.
The attorneys at The Orlando Law Group represent families throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.
If you are dealing with a family law issue or looking for some preventative family law services, please reach out to our office at 407-512-4394, fill out our online contact form.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
Regarding the Florida Medical Marijuana Law, what defines “marijuana?”
“Marijuana” means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin, including low-THC cannabis which are dispensed from a medical marijuana treatment center for medical use by a qualified patient.” Florida Statute § 381.986
The vote for the use of medical cannabis in Florida.
In 2016 Florida citizens voted for a constitutional amendment permitting individuals to use cannabis for medicinal purposes. The bill passed with tremendous support garnering 72% of the votes, in the state known for its narrow margins and hotly contested elections.
While Medical Marijuana may have passed in Florida, Federal Law, as well as Florida law, does not prevent Florida employers from punishing employees for failing a drug test. Despite its landslide victory, the herbal medicine still faces controversy and must overcome ambiguity before it can be used freely by the constituents who voted for it.
Florida Statute §381.986, in great detail, covers the use and restrictions of Medical Marijuana in Florida. This statute reads, in part:
(1) (j) “Medical use” means the acquisition, possession, use, delivery, transfer, or administration of marijuana authorized by a physician certification. The term does not include use or administration of marijuana in the following locations:
a. On any form of public transportation, except for low-THC cannabis.
b. In any public place, except for low-THC cannabis.
c. In a qualified patient’s place of employment, except when permitted by his or her employer. d. In a state correctional institution, as defined in s. 944.02, or a correctional institution, as defined in s. 944.241.
e. On the grounds of a preschool, primary school, or secondary school, except as provided in s.1006.062.
f. In a school bus, a vehicle, an aircraft, or a motorboat, except for low-THC cannabis.
(15) APPLICABILITY.—This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy. This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana. This section does not create a cause of action against an employer for wrongful discharge or discrimination.
Florida employers are not required to accommodate.
The excerpt above sparked major controversy and was unbeknown to most voters until after the law went into effect. Although the usage of Medical Marijuana is legal for those people who qualify, the law is clear that an employer is not required to accommodate an employee’s medical use of marijuana. This differs from other laws such as the Americans with Disabilities Act or the Family Medical Leave Act, where the federal government has mandated that employers follow certain protocols when dealing with these classes of people.
Florida employers do not have to accommodate to the fact that you are legally allowed to use marijuana, nor are they required to allow you to use marijuana at their business location. An employer can terminate an employee for the use of legal medical marijuana, and this termination does not create a basis for legal action for wrongful termination.
Marijuana can stay in a person’s system for up to multiple weeks, ensuring that employees subjected to drug test must refrain from the substance for indefinite amounts of time. A person with a marijuana card, depending on the rules of their employer, would not even be able to administer the medicine (smoking medical marijuana, for example) outside of work because they would run the risk of failing a drug test.
Incentives for employers
Under the laws as they currently stand, Florida actually provides incentives for employers NOT TO allow the usage of medical marijuana in their workplaces. In 1990 the Florida Legislature enacted a State law titled “Florida Drug-Free Workplace” F.S 112.0455. This law provided specific requirements which an employer must comply with to be certified as a Florida Drug-Free Workplace. The law also provided incentives and benefits for employers who are certified as a Florida Drug-Free Workplace. The State of Florida, through this law, encourages employers to drug test employees and promotes a Drug-Free Workplace environment. In Florida, companies get reduced rates on various insurances if they implement drug-free workplace policies.
Could the Florida medical cannabis pave the way for recreational use of weed?
Florida is also slowly moving toward recreational marijuana, with at least one bill being proposed in 2019 before dying in committee. Proponents of recreational marijuana are citing states like Colorado who have generated billions since approving of recreational use. Florida is already a tourist destination and could easily capitalize on the recreational marijuana industry. With the passage of medical marijuana and the lag time in the laws of Florida to catch up with these medical innovations, it makes you wonder whether recreational marijuana will be vertically integrated and structured the same way. The “drug” may become legal for recreational use, but under Florida Law, you could still be terminated from your place of employment.
There have been no successful legal challenges in Florida regarding medicinal marijuana in the workplace. Of course, this amendment is relatively new and the possibility remains that the courts could decide in favor of employees – especially as the opioid epidemic worsens and more and more states are looking to medical marijuana as a better alternative to chronic pain relief. Until that time, the statute is clear that marijuana use, medical or otherwise, is not permitted under the Florida Drug-Free Workplace rules.
Texting and driving can be a dangerous combination. In a 2014 report, the US Department of Transportation National Highway Traffic Safety Administration studied data from 2012. The data revealed that distracted driving was associated with 3300 deaths and 421,000 injuries in collisions in the US; much of the evidence in these cases suggests that smartphone use continues to be a substantial contributor to these incidences.
Further, AAA recently conducted a study that revealed 78% of Americans suggest that texting while driving is a “significant danger.” The study also cited that 35% of the respondents admitted to texting while driving.
Starting July 1, 2019, texting while driving has been defined as a primary offense in the state of Florida. Many people don’t realize that texting and driving was illegal before the July change. The difference is that previously, a law enforcement officer had to witness you violating another law to be able to pull you over for texting while driving.
In early 2019, the Florida government voted to change that.
With the July 1 change and texting while driving becoming a primary offense, authorities can pull you over if they see you typing on your phone or other hand-held devices.
Here are some of the top questions we have been asked about the new law.
Someone told me that if I am stopped for texting while driving, a police officer can ask to see my phone to verify that I was texting. Is this true?
This is actually true; officers are allowed to ask to see the phone of the driver who was pulled over for texting while driving, with one caveat. While the responding officer can ask to see your phone, they must tell you that you have the right to decline the request.
The original law making texting and driving a secondary offense started in 2013. Since then, officers have received training to be able to identify drivers who are texting. If you are stopped, it is because an officer believes you were texting while driving based on your behaviors.
How do things change after July 1?
Florida statute 316.305 — which is known as the Florida Ban on Texting While Driving Law, officially changes the law against using a mobile phone or hand-held device from a secondary offense to a primary offense. Beginning on July 1, law enforcement officers can pull over drivers for using a wireless device while operating a vehicle.
And there’s more. There’s also a part of the law about school zones and construction sites with active workers. This part of the law states that starting October 1, 2019, phones or hand-held devices can only be used in a “hands-free” manner while in use in a school zone, school crossing area, or construction area with active workers.
What happens if I get pulled over for texting while driving after July 1, 2019?
The answer to this question is “it depends.” Depending on the law enforcement agency that has stopped you, the outcome might vary.
The Florida Highway Patrol has released a statement suggesting that they will be issuing warnings until January 1, 2020. They are considering the time between now and then to be an “educational period.” Meanwhile, in Volusia and Orange Counties, the Sheriff’s Offices have stated that will begin ticketing offenders immediately.
Our suggestion is to simply obey the law, regardless of where you happen to be driving.
Can I still text while stopped at a red light?
The law does not specifically state that you cannot check your phone while parked on the side of the road or at a red light; it is not advised. Ultimately, when you are behind the wheel of a motor vehicle, your attention should be on your surroundings and making sure you and those around you are safe.
Can I be exempt from the texting while driving law?
There are a few instances where you might be exempt from this law. These include if you are reporting an emergency or criminal activity to law enforcement, if you are operating an autonomous vehicle in autonomous mode, or if you are receiving messages that are related to the operation or navigation of the vehicle. You could also be exempt if you are using the device for system or navigation purposes.
These are certainly not “get out of jail free” cards, so be smart with how you use technology and put safety first always.
Under the new law, can I legally press a button on my phone to answer a call?
Outside of a school or work zone, according to the law, you are allowed to activate, deactivate, or initiate a feature or function on your phone, as long as it doesn’t require multiple key presses.
In a school or work zone, the law suggests that you can use only hands-free features to activate, deactivate, or initiate a feature or function on the phone. So, using Siri on an iPhone or “Ok Google” on an Andriod phone is permitted.
Focus on Driving Campaign
While there are groups who worked to prevent this law, it’s essential to consider that the spirit of the law is to keep people safe. These include the driver, the car’s occupants, other drivers, and pedestrians.
The State has created a “Put It Down” campaign to bring awareness to the new law. You can follow hashtags #PutItDown and #FocusOnDrivingFL for more information.
By Attorney Jarrod Etheridge
The Florida Real Estate Commission (FREC) has published the final version of Rule 61J2-10.026, which governs group or team advertising. This new FREC Team Advertising Rules impact office procedures and team advertising.
New FREC Team Advertising Rules go into effect July 1, 2019
Effective July 1, 2019, this rule is set to create some serious changes in the real estate industry. The reasoning behind the rule is that FREC was receiving complaints from the general public who were often being confused or misled as to who, or what they were dealing with during a real estate deal.
Group/Team names were often being mistaken to be the name of the real estate brokerage, and clients were often unable to determine whether they were dealing with an agent, a broker or brokerage. Under Florida law, only a broker is allowed to use a fictitious name. For example, Keller Williams, Coldwell Banker, Tavistock, etc. A sales or broker associate operating under a Florida entity is required to name the entity after themselves. By creating team names including certain words, FREC believes realtors are crossing this line.
What are some of the words no longer allowed in real estate team names?
Under the new rule, FREC has released an extensive non-exhaustive list of words that are no longer allowed to be included in team names. Whereas realtor teams are allowed to use the words “team” or “group,” almost every real estate team in existence uses one of the now prohibited words: (a) Agency (b) Associates (c) Brokerage (d) Brokers (e) Company (f) Corporation (g) Corp. (h) Inc. (i) LLC (j) LP, LLP or Partnership (k) Properties (l) Property (m) Real Estate (n) Realty (o) Or similar words suggesting the team or group is a separate real estate brokerage or company.
If your team name still meets the above, you are not out of the woods yet. The new rule also provides that on any advertisements containing the team name of any form, registered brokers must maintain a design where “the name of the team shall not appear in larger print than the name or logo of the registered brokerage.
All advertisements must be designed in a manner in which reasonable persons would know they are dealing with a team or group.” Check your business cards, website, mailers, etc., if your team or group advertising contains a name that is in a bigger font than the name OR logo of your brokerage, you are out of compliance with the new rules.
This is certainly a good time to be in the business of promotional items because almost every real estate agent in Orlando is going to be scrambling to get new business cards and other promotional items.
Do the new FREC Team Advertising Rules affect teams made up of agents from multiple brokerages?
For those very few teams whose names are still valid, the rule also adds a component requiring all real estate teams to be comprised of members of the same brokerage or under the supervision of the same broker. FREC is no longer going to allow agents from multiple brokerages to act under a single team.
What to do right now…
The Orlando Law Group is here to help if you need someone to review your current advertising schemes to make sure you are in compliance with the new rules. Judging by the drastic changes pushed forward with this rule, we do not recommend continuing to use any advertisements that are out of compliance starting July 1, 2019.
Immigration for Foreign Workers Coming to the US
Global marketing is no longer reserved for brands with deep pockets. Many Foreign businesses are expanding into international markets, and all of them eventually find themselves at the doorsteps of the United States, the world’s largest market. With this comes the relocation of employees, and the process of obtaining work permits suitable for those individuals to become employed in the United States.
This article will go into detail about the various visas and how to determine which are best suited for foreign employees who wish to emigrate from their home countries to work in the United States.
E-2 Visa
To obtain an E-2 visa for a temporary worker, a foreign national must be from an E-2 treaty country. However, one does not need to reside in an E-2 treaty country to qualify, many Brazilians fall under this exception. Brazil is not a treaty country; but many Brazilians retain Italian citizenship since Italy is a treaty country, they too become eligible for an E-2 visa. The foreign investor must also own at least 51% of the company for it to qualify as an E-2 entity.
If this criterion is met, the applicant may go ahead and submit their application to their nearest U.S. Embassy. The applicant will then go through a visa interview and screening process to obtain a visa valid for five years.
Each E-2 temporary work visa holders may stay for a maximum of two years from the date of entry, leaving before that expiration. The spouse and children of an E-2 Visa Holder can obtain work authorization while in the United States. It is important to note that E-2 Visa Holder’s children who are 21 years of age and younger can attend school but cannot work.
L-1A Visa
The L-1A visa is for managers, executives, or specialists of a foreign company who are being transferred to their company’s U.S. offices. The regulations for the L-1A visa states that applicants must within three years preceding the time of their application been employed continuously for more than a year by a qualifying entity.
The applicants must seek to enter the United States temporarily in order to render his or her services to a branch of the same employer parent affiliate or subsidiary of the qualifying entity.
If a company is established in both countries, the L-1 can be valid for three years. If a foreign entity is forming a new company in the U.S., the applicant can receive a one-year visa and renew in increments of three years, until the employee has reached the maximum of seven years.
The spouse of an L-1 Visa Holder can obtain employment authorization while in the United States. Children (21 years and younger) can attend school but cannot work. The main concern with L-1’s is that they do not readily apply to small businesses.
H-1B Visa for Employee with a Specialty Occupation
When applying for the H1-B visa, the job must be classified within a DOL (Department of Labor) code in order to know what general job duties will be as well as determine what the prevailing wage will be. An Example of a position would be an Agricultural and Food Scientist (19-1012.00). This is an appropriate example as it requires a minimum of a bachelor’s degree.
For employees requesting H-1B status for the first time, please keep in mind a few things. The effective date for the H-1B is October 1 of each year, which is the government’s fiscal year start date. The applicant cannot file a visa application until April 1st of each year. Preliminary work takes a minimum of one and a half months to complete, so it’s imperative that they give enough time before that filing date to do the required.
PERM / Green Card
There are three steps to undertake for permanent residence based on employment.
1. The first step is to file an application for labor certification under the PERM provisions.
2. The second step is to apply for the immigrant visa petition. Once this is approved, the process can move forward with the petition to classify the beneficiary as an immigrant worker professional.
3. The final step is an application for permanent residence or consular processing.
The employer is legally required to pay for all fees and costs associated with the PERM process during the initial step. The second and third steps can be paid by either by the employer, the employee, or both.
It is important to note that candidate eligible for an H-1B may not necessarily qualify for permanent residence. One does not have to be in H-1B or have an educational degree to qualify for the PERM process.
Unless the employer can demonstrate that it cannot find a suitable US worker qualified and willing to fill the position, the labor certification application will not be approved. If this occurs, the employer can begin to advertise the position and hope that the attempt will not bring forth any willing and qualified U.S. workers applying for the position.
Planning ahead for your employees and their families who might also want to come to the US and become citizens makes all the difference. If you require assistance when the time comes to apply for a visa consult a professional who specializes in citizenship and immigration services and can expedite the process and prepare you for any bumps in the road.
Depending upon your child’s needs, obtaining the initial Individualized Education Plan or sometimes known as an Individualized education program (IEP) may be a simple process or a little more challenging, depending on specific conditions. Regardless, the first step is to begin gathering medical records and samples of your child’s work, which may include tests, graded homework, and notes of your observations.
Once you have collected the records and samples, contact school personnel to request a formal evaluation from your child’s public school. The Individual with Disabilities Education Act, or IDEA, applies to educational institutions that received funding from federal sources which include most public schools.
Make sure your request is in writing and include all the relevant demographic information in addition to your concerns and corresponding documentation to support your concerns. If the school district agrees to evaluation and your child is found to have one or more of the 13 disabilities listed in IDEA and needs special education services or accommodations, (s)he will qualify for an IEP.
Within thirty calendar days after a child is determined eligible, a team of school professionals and the parents must participate in an IEP meeting to write an IEP for the child. The team members might meet in the school’s resource room or other appropriate location. The IEP might evaluate the levels of educational performance, set annual goals, and forecast transition services for the future of the child.
Parental consent for Individualized Education Plan implementation
Before the school system may provide special education and related services to the child for the first time, the parents must give consent. The child begins to receive services as soon as possible after the IEP is developed and this consent is given.
If the school district denies your request, they must send you a “prior written notice” containing action proposed or refused by the district, explanation of the decision, description of other options and resources for you to better understand your rights under IDEA. At any point, but especially at this juncture, you may have your child evaluated privately.
Most likely, you will have to pay for this private evaluation. The school district may also opt to continue targeted interventions through “response to intervention.” It is important to note that a child does have to have a particular diagnosis to be eligible for services, or in the alternative, more than one disability and/or diagnosis can be documented in a child’s IEP.
If the parents do not agree with the IEP, its goals, and placement, they may discuss their concerns with other members of the IEP team and try to work out an agreement. If the team still cannot come to an agreement, parents may request mediation, or the school may offer mediation.
Parents may file a state complaint with the state education agency or a due process complaint, which is the first step in requesting a due process hearing, at which time mediation must be available.
Not all students are eligible
Not all students will be eligible for exceptional student education (ESE) services under IDEA. Similar to the IEP eligibility process, parents and or school staff members may raise concerns about the child’s strengths and performance at school and the team will consider whether the child has a disability that requires accommodations via a Section 504 plan in the school setting.
Section 504 is part of a federal civil rights law known as the Rehabilitation Act of 1973 which specifically prohibits discrimination against students with disabilities and guarantees them a free and appropriate public education (FAPE).
As defined in Section 504, discrimination is the failure to provide students with disabilities the same opportunity to benefit from education programs, services, or activities as provided to their nondisabled peers. Therefore, schools cannot exclude students with disabilities from facilities, programs, benefits, activities, or services that are provided to students without disabilities. Schools must make sure that all students receive equal access to educational opportunities.
A Section 504 plan details the accommodations that the school should provide to support your child’s education. While Section 504 does not require a written plan, it does require documentation of evaluations and accommodations and you must ensure the team writes a plan to provide clarity and direction to the individuals delivering services or making accommodations.
Similar to the IEP process, annual reviews are highly recommended and Section 504 accommodation plans may be updated at any time to reflect changes and recommendations by the team.
Parents are the most important advocates for Individualized Education Plans
As the parent, you are one of the most important members of your child’s team at school and if you believe or know your child has special needs and is having problems in school, the team should be contacted to discuss these concerns. Building a strong parent/school relationship begins with effective communication and clearly set goals and objectives.
Document all communication with school staff, preferably via email and most importantly follow-up on all action plans to ensure accommodations listed in your child’s Individualized Education Plan or Section 504 plan are being effectively implemented.
Each year, on May 1, we celebrate Law Day. This is a national day that was established to celebrate the rule of law. On Law Day, we seek to better understand how our liberty is protected through the legal process and the practice of law. Also on Law Day, we explore how the American society works to achieve justice and builds the freedoms that every American shares.
Free Speech, Free Press, Free Society
Law Day is always accompanied by a theme. The theme for Law Day 2019 is Free Speech, Free Press, Free Society. This year we reflect on the many ways the laws established by our government protect our freedom and ensure these rights. The protection of free speech and free press work to guarantee our Constitutional freedom of “the blessings of liberty for ourselves and our posterity.”
The foundation of a free society anywhere in the world is based upon the freedom of speech and the press. In the practice of law, free speech and free press are common topics found in proceedings and litigation. It is unthinkable to conceive of a free society without the pillars of free speech and free press, but as a society witnessing the most rapid changes in the way we communicate, these liberties are often challenged and debated. The boundaries of free speech and free press are much less precise than just a decade ago because the technology of communication has reshaped how these individual liberties affect the daily lives of the people in our society.
The blurring of free speech
“Congress shall make no law respecting an establishment of religion, or prohibiting the
That passage is, for the most part, the entirety of the First Amendment of the Constitution. It is straightforward and, at the same time, comprehensive. It’s also commonly misunderstood.
Most people understand that there are cases where someone’s words could put others in danger, the often used “you cannot yell ‘fire’ in a crowded theater,” comes to mind. In the age of the internet, we are presented with new challenges.
What happens when your Facebook account is temporarily disabled because of something you posted. You’ve been put in “Facebook Jail,” but is this a violation of free speech or free press?
The short answer is, no. It’s not a violation. The First Amendment protects you from the government censoring or punishing you because of your speech. The First Amendment does not protect you from censorship by private organizations. So when you do find your social media account in Facebook Jail because of something you posted that you believed fell under free speech, there’s not a lot you can do but wait for your account to be freed up again.
Now that you understand that your protection from the Facebook censors does not exist, you’ll think twice before you post what might be considered “hate speech” in the comments of someone else’s post.
But what about a case where the online world and the real world intersect. Does the First Amendment’s protection of free speech cover you if you are fired from your job because of something you posted online? This is a complex question that could have a variety of answers. Put simply, if you work for a private company, it is unlikely that you will be protected. Now, this does not mean that a private company can do whatever they want. Depending on the situation and what was said online, the firing could violate laws prohibiting discrimination
For local, state, and federal government employees, social media posts should not interfere with the employee’s ability to do their job. This becomes a delicate balancing act for those charged with regulating social media activity of government employees.
Another hot topic since the rise of social media is on line reviews. Many businesses become victims of false reviews from competitors or people who just like leaving bad reviews without even being customers. Social media platforms are struggling with how to balance the free speech rights of users to make comments and businesses which are attempting to protect their reputations. More case law will be developed in this area over the coming years. On-line bullying on a personal level will also be discussed by the Courts as it is a growing concern especially with educators and parents.
The blurring of the freedom of the press
Some might argue that the press has less freedom today than at any time in history. Being a journalist, whether for a media outlet or on the internet, has become a dangerous profession. According to the Committee to Protect Journalists, between 2002 and 2012, five hundred and six journalists were killed globally. Now, this certainly goes beyond the freedom of the press protected by the US First Amendment, but it does highlight a form of censorship, namely fear of reporting, that evades the traditional protection of liberties that our Constitution provides.
Additionally, we hear more and more about “fake news” and its introduction into the American and global conversation. The term “fake news”, which gained popularity in 2017, is the creation of misleading information, hoaxes, or other untrue news stories that are specifically written to deceive the reader into believing they are true.
Fake news exists at all levels of journalism and has
At the highest levels of the press, fake news takes the shape of inaccuracies in reporting, intentional or not. These untruths can be subtle in their presentation but can have a dramatic impact on the perception of the news-consuming public. Sometimes, fake news is so convincing that national networks will pick up a story and report it as true.
Fake news can easily spread due to the availability and speed of communication and social channels.
The introduction of fake news into the contemporary dialog blurs the effectiveness of the protection of the free press. At a deeper level, it causes the news-consuming public to be less trustworthy of any media outlet.
Reflecting on Law Day 2019, are we still a free society?
As we participate in Law Day 2019 and spend time considering how the protection of
However, we live in a time of hyper-change. Day to day information is transmitted faster and with higher levels of convenience. It is natural that the protection of our liberties will need to evolve with these changes. It is up to everyone to help make sure that happens through public service and facilitating awareness. We can all play a part.
While you might not be planning a “Law Day Party,” everyone at the Orlando Law Group hopes that you’ll join us in considering how important the rule of law is in maintaining our freedom. Happy Law Day 2019!
By Jarrod Etheridge
When purchasing a piece of property, it is important to consider a variety of factors, including the animals, like the gopher tortoise, that inhabit the landscape. If any endangered or threatened species reside on that property, be prepared for a long and potentially expensive process. This includes the gopher tortoise, who are commonly known for digging burrows in their home range in Florida, Georgia, and other southern states.
What is a gopher tortoise?
The gopher tortoise is a large terrestrial reptile that has front legs perfectly suited for burrowing. The rear feet of the gopher tortoise are often referred to as “elephantine” because of their size and shape.
The front legs are protected from sharp rocks while burrowing by a layer of scales. the scales are usually dark brown, gray, or black in color. They also have a yellow lower shell. You can easily distinguish a male or female gopher tortoise. Male gopher tortoises having concave lower shells, while females’ lower shells are more are flat in appearance.
Gopher tortoise habitats
Gopher tortoises occupy various habitats throughout Florida. They use their front legs to dig burrows many feet deep for shelter and forage on low-growing plants. You may have seen them in a patch of woods or walking down the road.
Gopher tortoises share their burrows with more than 350 other species. They are referred to as a keystone species because of the Florida natural ecosystem’s reliance on the burrows.
A threatened wildlife species
In Florida, the gopher tortoise is listed as a Threatened Wildlife Species by the states fish and wildlife conservation commission. Both the tortoise and its burrow are protected by state law. Gopher tortoises must be relocated before any land clearing or development takes place within twenty-five feet of either a gopher tortoise or a gopher tortoise burrow. Property owners must obtain permits from the Florida Fish and Wildlife Commission (FWC) before capturing and relocating tortoises.
What is Gopher Tortoise Florida Law?
Developers, builders or landowners who develop within the protected area of a gopher tortoise or its burrow commit a crime under Florida law. It is a level four violation, as defined in §379.401(4)(b) is a felony of the third degree which if convicted could result in (1) a term of imprisonment not exceeding five years, (Florida Statute § 775.082) and/or (2) a fine of $5,000 (Florida Statute § 775.083).
If you buy a piece of property that has an existing gopher tortoise habitat or gopher tortoise burrows, you might have some work to do. The prohibitions related to gopher tortoise burrows will not be applied if you can demonstrate that those burrows are no longer used by gopher tortoises. To prove this, at your expense, a gopher tortoise survey will have to be conducted in accordance with the guidelines of the FWC.
Most activities associated with residential lawn and landscape maintenance do not require a permit provided the activities must not collapse gopher tortoise burrows, cause habitat loss, or harm gopher tortoises. Prescribed burning requirements vary from county to county and should be explored before burning near a gopher tortoise habitat.
Even if the collapse of the burrow’s sandy soils is accidental, the landowner could be held criminally or civilly liable for disrupting the tortoises. This is more likely if the person knew that their actions could harm the tortoises. It’s advisable to check with the fish and wildlife service professionals if you have any concerns.
Getting help developing land with gopher tortoises in Florida
P.A.W.S. (Peoples Alliance for Wildlife Survival) is a non-profit organization that helps landowners with the development of land containing Gopher Tortoise burrows. The organization’s primary concern is for the welfare of the animal during the stressful relocation process. According to its website, the organization can provide four options to help homeowners:
Option 1: Develop the property while staying at least twenty-five feet away from the Gopher Tortoises. This is advertised as the least expensive and most favorable open for both the landowner and the tortoise. The organization will help study mark the areas to avoid developing, and they suggest placing signs up that notify the public of the existence of the tortoises.
The cost for this service is around $100.00 through this non-profit organization. Using a private company could potentially cost hundreds or thousands of dollars. Many Florida builders have employees certified in detecting and protecting the Gopher Tortoise as they could be held criminally liable for disturbing them as well.
Option 2: Onsite Relocation. In some cases, you potentially have the option to relocate the tortoise to a different part of the subject property. “This process generally involves trapping or excavating the burrow, and once empty, completely collapsing it.
The tortoises are moved to the predetermined location elsewhere on the property. They are enclosed in a temporary pen and supported while starter burrows are created and they are eventually released.” P.A.W.S., https://www.pawsfloridachapter.com/Tortoiserelocationinfo.html. The cost for this service is $250-350.00 through this non-profit.
Option 3: Offsite Relocation. Offsite relocation is considered to be a more time consuming and costly alternative to the previously listed options. This route requires the highest levels of permits and oversight by government agencies such as the FWC. P.A.W.S. typically charges between $400.00 and $600.00 to oversee this service, which is compared to Private companies which can run up to $6,500.00 for comparable services.
Avoiding problems with gopher tortoise
A gopher tortoise problem can be easily avoided, but it can be a very costly and time-consuming problem if it is missed during the inspection period. Should you or your client have any issues relating to gopher tortoises, it is highly recommended that you address the problem as soon as possible.
Any attempt to relocate or otherwise remove the tortoises on your own could result in very significant fines and/or criminal penalties against you. Other types of wildlife have similar protections in Florida through an endangered species act and have their own experts to help landowners with mitigation.
Protected species include Bald Eagles, which are the most well-known. It’s also worth knowing about gopher frogs and burrowing owls. If you are in doubt if a species is protected, it is advised to ask a legal professional before you begin your project.
By Jarrod Etheridge
What is the PACE Program?
When a homeowner is looking to upgrade their home to solar energy, the first step is to determine exactly how the project will be paid for Since most people typically do not have thousands of dollars in their rainy day fund, many people will require a loan to finance the upgrades. The PACE program will provide the loan for the homeowner.
PACE, which stands for property assessed clean energy, is a new concept in financing home and commercial property improvements. PACE financing is an easy and effective way to finance a range of upgrades that save energy, conserve water, harness renewable energy, and protect against natural disasters such as hurricanes and earthquakes. While PACE programs are enabled by state legislation and approved by local governments, PACE financing is not a government discount or incentive program.
PACE financing is a loan that is available in areas where the local government has allocated funds to be used for financing improvements on residential and commercial properties. An authorized PACE lender provides the funds to the homeowner, and the property owner repays the financial institution through an assessment attached to their annual property tax bill. The specific amount of money you qualify for is dependent on the amount of equity in your house. Hundreds of home and commercial improvements qualify for PACE financing. Among the more common are solar photovoltaic (PV) systems, roofing, HVAC systems, impact-resistant windows and doors, drought-tolerant landscaping and many more.
The PACE program provides many benefits such as no money down with 100% financing and no payments for up to twelve months. A PACE loan is different than traditional loans because it attaches to the property, not the person. This means that the person who takes the loan can sell their house, and the loan is then paid by the new owner of the house.
A loan with zero upfront costs attaches to the property rather than the person, and provides upgrades such as Solar panels, almost sounds too good to be true. Are there any downsides to a PACE program loan? For many homeowners, there have been.
Are there problems with the PACE program?
Ygrene Energy Fund is one of the bigger PACE program lenders in Florida. A typical PACE loan financed through Ygrene Energy Fund Florida lasts about 20 years with an average interest rate of about 7 percent. The PACE program has a higher interest rate than other green mortgage alternatives such as FHA loans. Borrowers can expect to repay twice the project cost over the payback period. As with any other type of loan, failure to make payments to a PACE loan will end up in a lien, which eventually could result in foreclosure. A property assessment automatically becomes the first lien on any property, putting both the borrowers and the mortgage lenders at risk of losing their money. With the risk incurred by the mortgage company, many lenders will not finance a purchase of a property holding a PACE loan.
Many issues have arisen with contractors recommending a PACE loan to homeowners. It has been reported that some contractors charge more money for services that are financed through a PACE loan. There have also been reports of contractors stating that the price of payments on the loan would be offset by the amount of money the homeowner saves in utility bills, which for many homeowners was not accurate. In many instances, the homeowner relies on what the contractor has told them, regardless of whether this information is factually accurate.
Should I use the PACE program?
Many homeowners did not take the time to read the full contract for a PACE loan, nor did they do the appropriate research to determine if this program was the right program for their specific situations. Some homeowners have alleged that they did not even know that failure to repay the loan would result in a lien on their property. If the house is foreclosed upon, the homeowner will have to pay the PACE loan off in full. If there is any money left over, the lender of the mortgage (if there is one) will be entitled to the surplus. This would leave the homeowner with a very unlikely chance of receiving any money from the foreclosure sale of their home.
Is it worth getting a PACE loan for solar in Florida?
Yes, and No. The PACE program is not a one-size-fits-all program and should be scrutinized by each homeowner BEFORE they sign the contract. If you understand the PACE program, there are certainly ways to use it to your advantage. The real issues with the program seem to stem from homeowners jumping into a program without fully understanding the long-term contract. After the Solar panels are installed, the reality sets in that the PACE loan is a 20-30-year commitment that can potentially cost twice as much to repay, if the homeowner can make the payments at all. If you are the type of person who reads the terms of service on products you purchase, you should not have any problems with the PACE program, however, the PACE program is not a commitment in which you want to agree to the terms of service without first reading them.
By Jarrod Etheridge
A new House Bill, if passed, would allow for Online Notary Public services
If you have ever been involved in a lawsuit, filed for divorce, bought or sold a house, etc., you have probably had a few interactions with a Florida Notary. A Notary Public is an official appointed by the Governor of Florida, to serve the public as an impartial witness to the signing of important documents, as requiring the signor to appear in front of the Notary helps deter fraud. However, in 2019, the requirement of physically appearing before a Notary may become a thing of the past. House Bill 409, if passed, would allow for online Notarization of your important documents:
“An online notary public physically located in this state may perform an online notarization that meets the requirements of this part regardless of whether the principal or any witnesses are physically located in this state at the time of the online notarization.” See House Bill 409, Page 34, Lines 826-830. “An online notarial act performed in accordance with this chapter is deemed to have been performed within this state and is governed by the applicable laws of this state.” See House Bill 409, Page 34, Lines 835-838.
The Bill, proposed by Rep. Daniel Perez, will be considered in the next Judicial Committee, which is the final step before a House Vote. Since proposing the Bill, there have been outbursts of mixed feelings with many people applauding the use of modern technology in the Notary field, and others arguing that Fraud is already on the rise, and this Bill will make it that much easier to commit Fraud.
Benefits of an Online Notary Public
There are many benefits to this system, such as allowing people who are sick or bedridden to have important estate planning documents notarized without having to leave the house, or without having to have a mobile notary come into the home. The Bill would also allow someone on vacation to execute necessary documents without having to wait for days or weeks until they return home.
House Bill 409 lays out specific criteria, including on-camera identification of the signor, that an online Notary will have to comply with before they are allowed to issue their seal:
“In performing an online notarization, an online notary public shall confirm the identity of a principal and any witness appearing online, at the time that the signature is taken, by using audio-video communication technology and processes that meet the requirements of this part and of any rules adopted hereunder and record the two-way audio-video conference session between the notary public and the principal and any witnesses. A principal may not act in the capacity of a witness for his or her own signature in an online notarization.” See House Bill 409, Page 34, Lines 839-847.
Advances in Technology Change the Way A Notary Public Can Operate
Historically a Notary was required to physically, in person, view a form of identification of the person signing such as a driver’s license or other governmental identification. The Notary Public either makes a copy of the license or records the identifying numbers in their Notary books in case the Notarized document is ever involved in litigation. Due to the importance of the document(s) being Notarized, litigation may arise many years later, so preservation of the Notary record is vital. With modern technology allowing cloud storage, these recorded identifying conference sessions could be stored forever electronically. This would allow people to later judge whether the documents provided were, in fact, sufficient because the viewable record would be exactly the same as it was at the time the notary witnessed the signing. However, if you continue scrolling the Bill, paragraph (9) raises some concerns:
(9) Any failure to comply with the online notarization procedures set forth in this section does not impair the validity of the notarial act or the electronic record that was notarized, but may be introduced as evidence to establish violations of this chapter or as an indication of possible fraud, forgery, impersonation, duress, incapacity, undue influence, minority, illegality, unconscionability, or for other evidentiary purposes. See House Bill 409, Page 36, line 888.
This section states that if an online Notary fails to record the Identification conference (or any of the others procedures not discussed in this article), the Notarization is not per se invalid. The Notarization would first have to be discovered, challenged, and then successfully argued and proven to be forged, fraudulent, or otherwise invalid. This would allow for a situation where someone has a friend perform an online Notary without any verifying documents and without recording the conference. The Notarization is not invalid until it is ruled as such; however, the Notary did not record or preserve any of the documents they relied upon. How exactly is a person supposed to prove whether a Notarization is fraudulent if there is not any record? This section could potentially create many nightmares in areas such as Wills and Trusts where the signor may not even be alive, and the Notary did not preserve the record. Perhaps this should be reversed, in that the online notarization should be considered per se invalid unless there exists proper documentation or record to support the identity of the signor.
With the help of technology such as video conferencing, many areas of society are moving into electronic means. With the importance of Notarization, and how heavily our society leans on the verification of a signature, perhaps proposed House Bill 409 is a little less restrictive than it should be as the first round of Electronic Notarization in Florida. Whichever way the Florida legislature decides, it will be an interesting story to follow.
The Orlando Law Group’s focus on offering full-service law practice areas shown massive support with the opening of a new law office and a dedicated team of attorneys. The opening represents the Orlando law firm’s fourth office in Central Florida.
Winter Garden, Florida – April 2, 2019
The Orlando Law Group (OLG) announced the opening of a new office in Winter Garden, Florida. This new location strengthens OLG’s greater Orlando presence and offers a convenient location for clients to meet with dedicated attorneys from the full-service law firm. These professionals focus on family law, business law, HOA representation, litigation, personal injury law, probate law, estate planning, and an array of other practice areas.
To celebrate the opening of this new, strategically important office, OLG is holding a ‘Grand Opening Ribbon Cutting’ event on April 4th, 2019, from 5 to 7 PM. The ribbon cutting will take place at 5:30 PM.
“We are delighted to announce the opening of our new Winter Garden office,” said Jennifer Englert, Founding Partner of The Orlando Law Group. ”This new office is located in an area where we see more and more need for our practice areas. The location will give us space to accommodate our growing staff of attorneys and professionals, and our enhances ability to deliver services into this community. This new office will fuel the continued growth of our firm”, Englert added.
The OLG has a history of community involvement, and as Englert points out, the entire staff looks forward to continuing commitment.
“We are excited to become a part of the Winter Garden community,” Englert said, regarding the law firm’s dedication to serving the community in which they work. The professionals from the OLG are frequently found donating their time and money to local causes. Englert cited, “we look forward to carrying on that tradition.”
The official address for the new Winter Garden law office is:
The Orlando Law Group, PL
12200 West Colonial Drive
Suite #100
Winter Garden, FL 34787
Phone: (407) 512-4394
What is a Lady Bird Deed in Florida?
Florida is one of only a handful of states that recognize a Lady Bird Deed. A person who creates a Lady Bird Deed, also known as an Enhanced Life Estate Deed, transfers property to himself for his lifetime, creating a life estate in the original owner, and names one or more people, entities, trusts, or organizations to inherit the property.
The life estate retained by the original owner of the property is enhanced, meaning that the owner retains actual ownership of the property until death, and can change the deed, mortgage, or sell the property as desired during their lifetime without permission or involvement of the remainder beneficiaries. When the owner of the property dies, the property is automatically transferred to the new owner(s) listed on the ladybird deed. A house that transfers through a life estate deed completely avoids probate because it transfers at death, and therefore does not become a part of the Grantor’s estate.
Benefits of a Lady Bird Deed
- Ensures that the property passes to the person or people of the Grantor’s choosing by avoiding probate of the property.
- Grantor maintains the right to use and profit from the property for their lifetime
- Grantor maintains the right to sell, mortgage, or even execute a new lady bird deed to the property at any time, without having to obtain the permission or authorization of the grantee on the previously executed lady bird deed.
- Grantor avoids making a gift that might be subject to federal gift tax
- Does not risk the Grantor’s Medicaid eligibility because it is not considered a “transfer” until the Grantor passes away.
- Prevents the property from being sold upon your death to repay the Medicaid benefits conferred upon the Grantor, because the property passes to the Grantee(s) upon the death of the Grantor and does not become an asset in the estate of the Grantor.
- You keep your homestead real estate tax exemption, and the county will not reassess the property to raise taxes.
The Lady Bird Deed and Medicaid
Medicaid is a government program that provides Florida residents with long-term health care coverage. Medicaid benefits are intended for people who can’t otherwise pay for their medical care. To apply for Florida Medicaid, the state’s Institutional Care Program, an individual must provide the Department of Children and Families with a detailed list of all assets.
The purpose is to ensure that all available financial resources are used to pay for care before Medicaid funds are used. The value of all qualifying assets, called countable assets, is calculated and used as the basis for creating a Medicaid eligibility waiting period.
If a time should come when you require long-term care and you apply for Medicaid, the government will impose a five-year “look back” period on your eligibility. This means you cannot transfer ownership of property within five years of making the application. The extent of your eligibility depends on the value of assets you own at the time you apply.
Less is more, and many people erroneously believe they can simply give property away before applying, however, transfers are subject to this five-year period, and assets given away during this time can be pulled back into the value of your estate. Because an enhanced life estate deed allows you to retain control over the property during your lifetime, it doesn’t qualify as a transfer until the death of the Grantor.
If you receive Medicaid benefits during your life, then after your death the State will make a claim for repayment from any assets in your estate. The State will not be able to make a claim against any property with a valid lady bird deed because the property doesn’t become part of the decedent’s estate. The property automatically transfers into the ownership of the Grantee listed on the lady bird deed.
Tax Planning and Benefits with a Lady Bird Deed
There are a few tax benefits for a Lady Bird Deed in Florida, such as avoidance of the Federal gift tax. The Lady Bird transfer is an incomplete gift, meaning there is no requirement to file a gift tax return. There has not been an effective transfer during the owner’s lifetime. Moreover, the Florida Department of Revenue assesses minimum documentary stamp taxes on Lady Bird Deed property transfers as long as the grantor of the deed is the same person who retains the life interest. This means that your documentary stamp taxes would only be based upon a sum of $10.00 consideration, instead of the value, or sales price of the home. This can potentially save your heirs a few thousand dollars. If the deeded property is a homestead, there will be no loss of homestead tax exemption and the county will not reassess the property to raise taxes.
Estate Planning with a Lady Bird Deed
A lady bird deed, if done correctly, can be a very useful estate planning tool. There are many advantages of using a Lady Bird deed over other types of deeds. If you feel that this type of deed may be beneficial to you, would like more information or would like to discuss other possible options, please give The Orlando Law Group, PL a call at (407) 512-4394.
By Attorney Marsha Summersill
What is a narcissist?
A narcissist is someone characterized as having a narcissistic personality disorder. This disorder is defined by psychologists as a mental condition in which an individual has an inflated sense of self-importance, an insatiable need for outside attention has difficulty in relationships, and has a clearly defined lack of empathy for others.
One of the lesser-known defining elements of a narcissist is that despite the outward impression of self-confidence, they possess delicate self-esteem and are easily hurt by even small amounts of criticism.
Someone with a narcissistic personality disorder will often have problems in many areas of their life. Narcissists have difficult times in relationships, at work or school, and those difficulties can find their way into other important parts of their life.
Because of the narcissist’s need for constant outside admiration, they will often be disappointed in normal relationships and will find them unfulfilling. Because of this, the narcissist will typically seem unhappy, dissatisfied, and disappointed.
What does narcissistic mean?
To be narcissistic means to possess the characteristics of a narcissist. This means they have a constant and unrealistic need for affirmation and lack empathy for others, even those closest to them.
It can be difficult to identify someone’s personality as narcissistic. It’s important to understand that narcissism is a scientifically defined mental condition. While it might be easy or convenient to anecdotally classify someone as being a narcissist, for this article, we advise our clients to refrain from using that term unless there has been a clinical diagnosis.
Signs you are in a narcissistic relationship
While it is important to have someone diagnosed as a narcissist to best understand the situation, there are some signs you can look for if you believe you are in a narcissistic relationship. Here are some of the most common.
- Your partner or ex has to dominate the conversation. This is because the narcissist wants all of the focus and attention to be on them, with little regard for how others feel.
- Your partner or ex continually interrupts without consideration for your feelings. Remember, a narcissist lacks empathy and understanding of other’s feelings so they will barge in on the conversation without care.
- Your partner or ex feels that boundaries or rules don’t apply to them. A narcissist believes they live outside of the rules of appropriate behavior. This means that they will go beyond the boundaries of what is appropriate and feel that they are justified in breaking any rules that govern basic human-to-human relationships.
- The projection of a false, exaggerated appearance. The narcissist so badly wants to impress those around them that they will often exaggerate many things about their lives. What’s happening here is that they want to convey the message that they are better than everyone else.
- The narcissist is manipulative. They will use situations and other people to their advantage and strengthen their belief that they are better than those around them. Even under pretense, someone with narcissistic tendencies will “use” people and environments to elevate their position and draw out the attention and admiration of others.
- Your partner or ex is grandiose. The narcissist has a false sense of self-importance and will portray themselves in kind. Their behaviors will be exaggerated. They will imply that they are heroic and others simply could not survive without them.
- Your partner or ex isolates you from your friends and is highly controlling. Remember, to the narcissist, it is all about them, and they do not want you to share your attention or affection with others.
- Your partner or ex likes to spread negative emotions. One of the most potent ways to get attention is to spread negative emotions. These negative emotions could be caused by the smallest of circumstances, real or perceived. This behavior will often throw-off people around them and direct attention to the narcissist.
Can a narcissist change?
There is much debate between psychologists about whether a narcissist can change. The root of the argument is that narcissism is a personality disorder and typically these types of disorders have more permanence. They are increasingly resistant to change over time.
One position is that if a person is diagnosed with narcissistic personality disorder and desires to change strongly enough, they can change.
However, we are dealing with the complexities and variances of the human mind, and each person and situation is different. The short answer is that it is not clear if a narcissist can change.
How to deal with a narcissistic husband, wife, or ex.
Dealing with a narcissist is another complicated question. There are many experts who believe that, especially in the case of an ex, you should completely avoid dealing with a narcissist at all. Especially if you feel that you can change their behavior. The experts suggest keeping the narcissist at arms-length and deal with them as little as possible or as is necessary, in the case of co-parenting.
The key to dealing with a narcissistic husband, wife or ex is to understand what you are dealing with. Your partner or ex lives in a world that is all about them, and your feelings or existence have little meaning unless you are paying attention to them, giving them accolades, or giving them affection. If you are comfortable living in that condition, you can then deal with it accordingly.
How to handle a narcissist in court during a divorce
Dealing with a person with narcissistic issues or traits during the divorce process or in an adversarial setting is difficult but doable. The following suggestions are helpful methods as the divorce process alone is daunting, and adding the narcissist as an opposing party escalates the level of difficulty to extremely high.
- Be prepared to receive several motions and pleadings that will be inaccurate, inflammatory in nature, and in abundance. The first reaction is to respond in anger and try to counter the accusations with your own flurry of emotional responses; however, this type of response may be counterproductive to your goal for the divorce. The best method is to maintain a calm, cool, and collective stance. Meet with your attorney and formulate a game plan to tackle the motions and filings in a manner that places you in a better position when you do need to be in front of a judge.
- Make certain to choose an attorney with a good skill level to deal with a narcissist. Your lawyer that is drafting your responses, motions and pleadings must be knowledgeable on how to deal with an opposing party that has narcissistic traits. The narcissistic party believes they know more than a lawyer and will attempt to manipulate your attorney. Your lawyer should have the ability to identify the narcissist’s tactics and respond accordingly that will benefit you and get you closer to your desired outcome in the case.
- Keep your attorney INFORMED. This cannot be stressed enough. Do not doubt your knowledge of your partner or spouse.
- Because of the increased problems and high emotional stress involved in a divorce with the added issue of divorcing a narcissist, it is suggested that you participate in therapy with a licensed mental health professional that has advanced working knowledge on addressing the ramifications of dealing with a narcissistic partner or spouse. Really try to use the methods and strategies recommended by the therapist to help get through the process.
- Only use documented or written forms of communication. This is advised for all contentious divorces, but more so in a divorce with a narcissist. You will receive hostile, inaccurate, and harassing communications from the narcissistic party. Don’t respond while you are reeling in anger. WAIT! Consult your lawyer and keep that calm and collective stance that was previously suggested. Remember, every communication has a possibility of being used in court. Communicate in a manner where you think a judge or third-party decision maker is watching and listening.
- Gather your support together! Your support is your legal team, your mental/emotional support team, and your friends, family and other reliable and trustworthy sources or groups.
- Meet with your attorney before any hearings or trial. Review methods with your attorney on how to address any triggers that the narcissist may attempt to use to rattle you and impact your ability to get your testimony heard.
Co-parenting with a narcissist
Unfortunately, co-parenting with a narcissist will require ongoing diligence on your part to ensure the children are insulated as much as possible from the self-serving goals of the narcissist. You will need support. It is strongly suggested to have a mental health professional involved. The therapist or counselor also should be skilled in dealing with narcissistic tendencies or traits from the other parent.
Make certain to keep the therapist informed of the issues regarding the narcissistic parent. Ask for help on how to address the problems associated with the narcissistic parent.
You will receive information from the children on what the other parent is discussing with them or saying about you. The narcissist will most likely engage in a smear campaign against you and inappropriately share litigation information or adult topics or issues with the children. It is critically important not to respond in a “correction” mode or tell your children the real facts. I know it is hard, but do not involve your children in the parenting aspect of your case.
Document what the children are saying to you and discuss it with your therapist and your attorney. Remember, keep your lawyer informed. Encourage your children to be open, honest, and to share. Also, let them know that those conversations are adult problems and the children should not be involved at all. The therapist will have insight on how to address the parenting side of the problems the narcissist will create, and your lawyer will guide you on what to do legally. Use the resources of your support teams.
Moving on from a marriage with a narcissist
Moving on from a relationship with a narcissist can be difficult, even more so if you’ve spent years in the narcissistic environment. You might have feelings of low self-worth, you might doubt your ability to make others happy, you might unfairly judge yourself.
First, realize that it’s not your fault. You were in a situation that actively contributed to making you feel this way about yourself. You’ve gotten out. Now it’s time to move on.
You should take time for yourself. It’s time to reconnect with yourself and find the value that you bring to your own life and that of others. Engage in activities that help you regain balance in your life and help build your self-esteem. Sign up for a class that you’ve always wanted, increase physical activity, spend time with family and friends. Reintroduce yourself to the beautiful things life has to offer.
In some cases, you might want to consider getting help through therapy. Sometimes just having someone to speak with about the situation can help ease the process of moving on. A professional who can specifically address the situation can be a valuable resource.
No matter what, you must move on. You will find “yourself” again and realize that you are the beautiful, miraculous person you were meant to be.
When you go to court, you can expect that the judge that is hearing your case is impartial and will treat both sides in a fair manner. While having an unbiased judge is almost exclusively the case, there could be a time where you believe your judge is biased.
The bias could be towards you or your situation. The bias could also be towards your attorney. You might also believe that the judge displays a lack of impartiality that might favor the other lawyer or litigant.
In a situation where a judge is biased or prejudice, the result could be a decision that is not fair or impartial to one party in the case.
Often, a judge will identify their own inability to be fair, neutral, and impartial and will recuse themselves from the case. As it relates to the judge, the word “recuse” means that the judge will excuse themselves from the trial or case because of potential bias or conflict of interest and another judge will be appointed in his or her place.
When might a judge recuse themselves from a case?
An example of when a judge might recuse themselves from a case might be if the judge formerly held a position as a lawyer at the same law firm as one of the attorneys involved in the case. In this example, the professional relationship with one attorney could imply that the judge is biased. Having identified the relationship and potential bias, the judge will recuse or excuse themselves from the case.
Can you ask a judge to recuse themselves if you think your judge is biased?
The second use of the word “recuse” involves a condition where one party in a case believes the judge is biased and a motion is made to recuse the judge. For instance, if it is learned that a member of the judge’s immediate family could benefit economically from the outcome of a case, the judge might have conflicted loyalties that would make it difficult to be impartial in the case. In this scenario, an attorney could make a motion to disqualify the judge, which asks the judge to recuse himself or herself.
The Orlando Law Group obtains a Writ of Prohibition after a denied motion to disqualify a judge
The Orlando Law Group recently won an appeal in a case where a motion to disqualify the judge was denied. We filed a Petition for Writ of Prohibition asking the appellate court to remove the judge after the judge declined to recuse herself. The Fifth District Court of Appeals, found the appeal well-taken, finding that “the facts alleged in Petitioner’s motion would place a reasonably prudent person in fear of not receiving a fair and impartial hearing.”
The Court of Appeals went on to grant the Petition for Writ of Prohibition stating “we grant the petition, quash the order denying Petitioner’s motion to disqualify and remand the case with directions that the underlying case reassigned to a different judge.”
Steps you should take if you think your judge is biased
The right to a trial by a fair and impartial judge is a right to all citizens. While the vast majority of the time a litigant can expect a fair and impartial judge on occasion, a litigant and his or her attorney may have a reasonable fear that the judge is or may be biased. You and your attorney should be in agreement that the judge assigned to your case may not be impartial.
No matter what, it’s important to work with an attorney who knows the strict requirements and timelines in seeking the recusal of a judge believed to be biased, and the steps necessary if the judge fails to recuse himself or herself. Your right to a fair trial is paramount and we will protect that right.
