Sometimes you need to burn bridges to
stop yourself from crossing them again.
— UKNOWN —
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Florida Supreme Court Certified Mediators (I am one) are experienced professionals with knowledge of divorce who are specifically trained in facilitating fair mediated agreements. Mediators are trained to be neutral and impartial and do not represent either party; rather, mediators guide couples through the entire process to resolve all the issues related to a divorce.
My goal is for both parties to feel that their concerns are heard and addressed, making it easier to achieve a civilized conclusion and positive life after divorce. With a peaceful method for resolution, you can spend your energy focusing on a positive and productive future full of opportunities.
In mediation, we address issues such as:
- Division of property
- Marital assets and liabilities
- Child Support
- Financial disclosures of the parties
- Alimony / spousal support
We will go over all items relating to your children such as:
- Time sharing schedules
- Co-parenting plans
- Parental responsibilities
- Visitation arrangements
- Education costs
- Child support guideline forms
Additional topics may include, and are not limited to:
- Health Insurance
- Retirement Benefits
- Life Insurance
- Disability Insurance
- Qualified Domestic Retirement Orders
- Post-separation disputes
Time Sharing Disputes
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Typically, the best interests of the child include, but are not limited to:
- The amount of time the child has lived in a stable environment
- The location of the individual parent’s homes
- The parents’ morality and parenting structure
- The mental and physical health of both parents
- Each parent’s ability to provide a consistent routine
- The communication between the parents
- The attentiveness to the child’s everyday life
- Any substance abuse by either parent
- Any knowledge of domestic violence or abuse within the household
- Being able to meet the child’s needs during important developmental stages
If there is enough evidence proving that shared parental responsibility would endanger the child in any physical, emotional, or psychological level, then the court will grant sole parental responsibility to one parent over another. However, Florida courts do not have preference over the mother or the father taking parental responsibility of their child. If the court sees them both to be fitting parents, equal, shared parental responsibility will be granted.
Domestic Violence Defense / Family Violence Attorney
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Domestic violence cases can be a challenging matter. In order for a suit to be filed in Florida, an act or threat must be committed against a person with whom the abuser has a familial relationship. In family courts, a victim of domestic violence can petition the court for a document prohibiting the abuser from going near the victim.
Domestic violence includes acts of:
- Aggravated battery
- Aggravated assault
- Sexual battery
- Sexual assault
- Aggravated stalking
- False imprisonment
- Or any other criminal offense resulting in physical injury or death
A restraining order is a legal document that prohibits one party from going near another party by a specific distance. Victims of domestic violence, or those who fear they can be victims of domestic violence, have the right to petition the court for a restraining order against a defendant.
In family court, the judge must be fully convinced that a person has fallen victim to domestic violence, or is in imminent danger of becoming a victim before they can grant a restraining order. However, temporary restraining orders, which last 15 days, are easier to obtain than a court issued restraining order.
Adoptions (and Surrogacy Agreements)
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- Infant (Florida and Interstate)
- Other, non relative, Stepparent, Grandparent, Other Relative
- Adult adoption
In every adoption, our goals are: To insure that each child is adopted by a loving family that will provide the child with parents who are good role models and a permanent, stable, financially and emotionally secure home; and
To insure that each child will be taught to understand and appreciate that the birth parents chose the very unselfish and loving adoption option in order to act in the child’s best interests.
In adoption, you can make a miracle happen, and we can help, so contact us today.
Collaborative Divorce Process
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Collaborative family law is a legal process enabling couples who have decided to separate or end their marriage to work with their lawyers and, on occasion, other interdisciplinary professionals (mental health and financial advisors) in order to avoid the uncertain outcome of court and to achieve an amicable settlement amongst together. Courts recognize collaborative law agreements and, as recent of July 2017, the collaborative law statute was implemented into the Florida Statutes.
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In Florida, a paternity case is similar to a divorce case without property or alimony issues. Unmarried parents deal with the same child custody, visitation and child support issues as married parents who divorce. We represent both mothers who want child support payments, as well as fathers who want to have regular visits with their child. In situations such as these, it can be necessary to establish the paternity of a child through a legal process. We assist mothers and biological fathers with an interest in a child to secure the legal rights and obligations that accompany fatherhood.
The Rights and Obligations of Legal Paternity
Establishing paternity is important for asserting a number of legal rights and obligations in regard to children. Each of a child’s parents has a responsibility to support the child and a right to maintain a strong parent-child relationship. Moreover, the children have a right to a relationship with both of their parents.
When a married couple has a child, the law generally recognizes the husband as the father. When an unmarried woman has a child, a paternity action is often needed to establish parental rights. In that case, a DNA test will be used to show whether or not someone is the biological father. The results of the DNA test are then used by the court as evidence of parentage.
Once paternity is established, a father may seek a parenting plan or parenting time with his children. Alternatively, once paternity is established, a mother can file for child support for children the biological father refuses to acknowledge as his own. We represent clients interested in asserting visitation rights or seeking child support for children in their care. We prepare all necessary forms and documentation needed for requesting a paternity test through the court. Afterwards, we can assist you in filing for child support or establishing visitation rights
Paternity establishes a “bundle of rights” that carries with it a legal relationship with certain financial obligations and benefits. Whether medical coverage, access to benefits, or inheritance rights are at issue, establishing paternity provides the following benefits for children:
- Eligibility to receive child support
- Inheritance of certain assets
- Legal rights involving probate and the settlement of the father’s estate
- Coverage under father’s health insurance plan
- Access to father’s medical records for health purposes
- Eligibility to receive the father’s Social Security disability or death benefits
- Dependency claims for tax purposes when applying for student financial aid
Fathers have certain rights under Florida state law, especially in regard to a parenting plan and parenting time with their children after Paternity is judicially established. As a result, once paternity is established, fathers can assert their rights and pursue the following:
- Substantial parenting time of children
- The right to challenge an adoption
- Establishing a Parenting Plan that gives the father more time with the children
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To fix the amount of alimony in case of divorce
The expectations of the parties regarding their role in the marriage, and the resulting economic consequences should the marriage end, make fixing the terms of alimony in a marital agreement of paramount importance. Interestingly, because the Florida legislature attempted to remove some of the discretion previously given to trial courts regarding the length of marriage by the new short term / moderate term / and long term concept, we have heard of situations where a divorce petition is filed in the 6th year of marriage (to guarantee against having to pay permanent alimony), or in the 16th year of marriage (to eliminate the near certainty of having to pay permanent alimony).
Rather than relying on the Florida legislature’s views on alimony, a premarital agreement provides the flexibility necessary to take into account the needs, wants and individual expectations of the parties to the marriage/
To protect children from earlier marriages in the case of death or divorce. Marriages with children from earlier marriages can greatly benefit from a premarital agreement. Even without expensive college bills and a large estate, the economic consequence of a divorce may severely interfere with being able to carry out pre-existing plans for children from earlier marriages.
To protect a family owned business. If one party to the marriage works at and owns part of a family-owned business, the business itself, as well the income derived from the business, can be at risk in a divorce, as the result of equitable distribution and alimony. In a divorce proceeding without a prenuptial agreement in place, the other spouse would end up getting full access to the books and records of the business would be able to take the deposition of the key officers and employees of the business, and otherwise put the business under a microscope. In the end, the former spouse could end up owning part of the business
To limit the rights of surviving spouses at death. Florida law gives a large bundle of benefits to a surviving spouse, including a minimum of 30% of the value of the estate (in the form of the elective share). The elective share applies to assets acquired during the marriage, as well as assets owned before the marriage. The elective share also covers inherited assets. A prenuptial agreement can eliminate the elective share and other spousal entitlements, so that the spouse can receive a predetermined amount of assets at death. Florida law also gives a surviving spouse rights to an existing Florida homestead property, in the form of a life estate or a 50% tenant in common interest in the property. A valid prenuptial agreement can contemplate and modify these rights.
To determine how the marriage is going to operate. Open communication in a relationship, before and after marriage, can be critical to the success of the marriage. Because a prenuptial agreement requires that issues be properly dealt with, it requires discussion and agreement of issues. For example, if the economically stronger spouse is going to continue to support young adult children and have an estate plan mostly in their favor, this should be identified before marriage.
To ensure that both parties are getting married for the right reasons. There are some people who do get married for economic reasons. Eliminating the economic uncertainty involved in a marriage can ensure that the marriage is being entered into for valid non economic reasons.
To protect an inheritance in the event of death or divorce. For purposes of equitable distribution, inherited money is not really in play in terms of giving inherited assets to the non-inheriting spouse. But inherited assets can be considered in how to divide up the marital property, and inherited assets can also e considered in the award of alimony. By fixing the term and amount of alimony in a prenuptial agreement, entangling an inheritance with a divorce can be avoided. In case of death, inherited assets are treated just as any other asset. Therefore, in the absence of a prenuptial agreement, inherited assets are subject to spousal claims just like any other asset.
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When a person domiciled in Florida passes away with assets in their individual name and with no designated beneficiary, an estate needs to be open to manage the decedent’s affairs. This court process is called a probate administration. Probate involves identifying and marshaling the assets of the decedent, notifying the decedent’s beneficiaries and creditors of the decedent’s death, paying the decedent’s debts and expenses of administration, and ultimately distributing assets to the proper persons. Who inherits from the decedent depends on whether the decedent was survived by a spouse and/or minor child, and whether the decedent executed a valid last will and testament devising his assets. When the decedent does not have a last will and testament, they are said to have died intestate (meaning without a will) and their assets are distributed to the survivors as outlined in the Florida Statutes. It is a common misconception that the decedent’s assets will escheat (i.e., pass) to the state of Florida. However, the assets of a decedent will escheat to the state of Florida only when the decedent passes away with no last will and testament and no family members can inherit under Florida Statutes.
It is true that the probate administration process can be time-consuming and cumbersome, something that most people strive to avoid. However, the reality is that many people do not execute the proper lifetime estate planning documents necessary to avoid probate. So, for the decedents’ estates that are subject to probate, probate administration is an extremely important process that, except in very few and limited circumstances, must by law be managed by a qualified lawyer per Florida. Fla. Prob. R. 5.030 (a).
There are two “main” types of administration—formal administration and summary administration. The personal representative is a fiduciary who has duties and responsibilities to the beneficiaries as well as the creditors.
How long does the probate process take? In the best case scenario, estates not required to file a federal estate tax return close within five or six months, assuming that there is no litigation, such as a will contest, dispute between beneficiaries, or dispute with a creditor. For those estates required to file a federal estate tax return, the estate can typically not be closed until the closing letter is received from the IRS, which can be a lengthy process. When the decedent has passed away at least two years before the probate administration takes place, the process may be quicker. Furthermore, for more lengthy estates and depending on the facts, sometimes the Judge will authorize a partial distribution to beneficiaries while outstanding issues are being resolved.
So, why does it take so long? Although this is not an exhaustive list, here is a list of tasks that must be accomplished:
- Identification, valuation and safeguard of assets.
- Identification and notification of possible heirs and creditors.
- Assessment of the validity of claims against the estate of the deceased.
- Publication of all legally required notices.
- Management/investment of assets and real estate.
- Application to the court for authorization to liquidate and distribute assets to beneficiaries and creditors.
- Filing and payment of federal and state income, estate, and gift tax returns.
- Objection to the filing of improper claims.
- Defense of lawsuits brought by creditors, if filed.
- Payment of valid claims of creditors.
- Employment of advisors and professionals to assist in administration.
- Payment of administrative expenses.
- Preparation of an inventory of assets and a formal accounting.
- Distribution of statutory amounts (including exempt property) or assets to the surviving spouse or dependent family members.
- Distribution of assets to beneficiaries.
- Closure of probate administration.
All of the above steps are parts of a “formal” probate administration. Florida does provide some alternate procedures in certain limited situations (see below). “Summary” probate administration is generally available if the decedent died more than two (2) years ago or the assets of the decedent’s estate are less than $75,000.00, not including the decedent’s homestead property.
Our firm represents both personal representatives and beneficiaries of estates. As the personal representative, we ensure that you comply with the Florida Statutes and your fiduciary duties, as well as provide proper notice to the other interested parties. Although the fiduciary is obligated to retain counsel, all interested persons have a right to counsel. We represent beneficiaries of estates either when there is litigation or when a beneficiary just wants to ensure they understand the process and their rights. While the personal representative’s attorney has certain duties to beneficiaries, the attorney does not represent the beneficiaries and cannot be relied on for legal advice pertaining to the option(s) of the beneficiary.
Florida’s 3 three types of proceedings to transfer title of a decedent’s assets:
- No Probate: Disposition without Administration.
When Available: This procedure can only be used for very small estates – less than the funeral bill or maximum of $6,000 in some counties. This process allows someone who paid for the person’s final expenses – the funeral and expenses of the last illness – to be reimbursed from the assets of the estate. Fla. Stat. 735.301. It can be used only when the deceased person did not leave any real estate, and the only assets are either exempt from creditors’ claims or do not exceed the amount of final expenses.
- Ancillary Probate Administration.
What is Florida Ancillary Probate Administration?
This is a legal proceeding that is available for a decedent who resided in a state outside of Florida at time of death, but who has property in Florida – usually real estate. The Florida probate ancillary administration is the legal process required to transfer legal title for the Florida assets to the beneficiaries of the estate.
When Available: If the decedent has a will: When the decedent has a will that is being probated in another state, the Personal Representative for the Estate (also called Executor in many states) may petition the Florida probate court to admit the decedent’s foreign will in the county where the property is located.
Once the foreign will is admitted to record by order of a Florida court, the will shall be deemed as valid and effectual as if it were executed in Florida. With the approval of the Florida probate court, the Personal Representative can either sell the property or distribute it outright to the beneficiaries. See F.S. 734.104.
If the decedent does not have a will: In the situation where the decedent did not leave a will and there are probate proceedings in the state where the decedent died, the Personal Representative may petition the Florida court upon proof of certain pleadings from the domiciliary probate.
Time Frame: The time to open and close a Florida probate ancillary administration depends on the type of proceeding needed. The proceeding may be a Summary Administration for estates under $75,000 or where the decedent has been dead for more than two years. Otherwise, the proceeding will be a Formal Administration. For the time frame for each type of Administration see above.
- Summary Administration.
When Available: Summary administration may be used for either a resident or non-resident decedent’s estate if (a) the value of the decedent’s entire estate subject to administration in this state, exclusive of exempt property, does not exceed $75,000; or (b) the decedent has been dead for more than two years, regardless of the size of the estate. F.S. 735.201(2). In a summary administration, no personal representative is appointed, so there is no one with authority to sign documents on behalf of the estate. Therefore, if the decedent died, for example, with real property that is not the decedent’s homestead, there is no one to execute a deed from the estate to the proper beneficiaries. Additionally, in a summary administration where the decedent has not been dead for at least two years, the petitioner is required to make a diligent search for any known or reasonably ascertainable creditors and make provision in the petition for payment to the creditors. Anyone who receives assets pursuant to an order of summary administration may be liable to creditors of the decedent until two years after the decedent’s date of death.
Note: The “value” is the gross as opposed to the net value of the estate. The value of the homestead is not included in the gross value.
Time Frame: 3-6 months for simple, uncontested administrations in most counties. However, the time frame can vary according to the Florida County.
Attorney’s Fees: Summary Administrations are usually charged at the attorney’s hourly rate. After reviewing the will (if there is one), inventory, and death certificate, our Firm can give you a reasonable estimate of our fees.
- Formal Administration.
When Required: This administration must be used if the decedent’s estate does not qualify for summary administration because the decedent’s estate exceeds $75,000 or the decedent has been dead for less than two years. Strategically, if the decedent had all assets in a trust, formal administration may be advisable to clearly cut off creditor claims.
Time Frame: 6-9 months if simple and not contested for most counties. However, the time frame can vary according to the Florida County. More complex estates range from 9 months to 1 year or more. If a Federal estate tax return (Form 706) is required additional time may be needed to close out all issues with the IRS.
Attorney’s Fees: Florida law provides a presumptive statutory fee schedule based upon the value of probate assets. It is as follows:
- $100,000 – $1 million: 3%
- Above $1 million-$3 million: 2.5%;
- Above $3 million-$5 million: 2%.
- Above $5 million – $10 million: 1.5%
- Above $10 million: 1%
Additional fees may be charged at an hourly rate for extraordinary services, such as sale of real estate, preparation of a tax return, representing the estate if the will is contested, etc. See F.S. 733.6171.
Personal Representative’s Powers and Duties:
The Personal Representative (or “PR”) is a fiduciary and is responsible – and liable – to the estate beneficiaries. The PR is also the person responsible to the IRS for the decedent’s final income tax return, the Federal estate tax return if required, and any other tax returns required by the estate.
PR’s first duties are to make sure all properties and papers of the decedent are secure and to marshal all the assets. Of course, the PR must strictly follow Florida law. As noted above, as soon as possible after the decedent’s death, the PR must engage a Florida probate attorney unless the PR remains the sole interested person.
Personal Representative’s Fees: The fee rates for the PR are similar to, but not the same as, the attorney rates. See F.S. 733.617.
Six Critical Florida Probate Deadlines
- Deposit Will: 10 days after death to Clerk of Court in County of Decedent’s Residence.
- Filing Probate Inventory: 60 days after issuance of Letters of Administration.
- Creditor Deadline For Filing Claim Against Estate: On or before the later of the date of three months after the first date of publication or thirty days after service of Notice Of Creditors for known creditors. F.S. 733.702(1). If there is no publication or service of the Notice of Creditors, then the deadline is two years from the date of death. Note: Formal Administration requires publication of Notice of Creditors.
- Personal Representative (PR) Deadline for Objecting to a Claim: The PR may object to a claim at any time within the later of four months from first publication of the notice of creditors or 30 days from the timely filing of a claim or amendment of a claim. F.S. 733.705(2). If the PR fails to object within this time period, the claim is deemed allowed.
- Statute Of Limitations For Claims Against Either An Administered Or Unadministered Estate: Two years from date of death, except for any IRS claims.
- Surviving Spouse Homestead Election: 6 months from decedent’s death to opt out of life estate in homestead and take 50% interest.
- See discussion on homestead below.
First, identify if the decedent had a Florida homestead. If the decedent lived in Florida and had Florida real estate the possibility of homestead issues must be analyzed. If the decedent split time living in Florida and another state, you must first determine the state of domicile, as only a Florida resident can claim homestead. If the decedent is survived by a spouse or minor child (a minor is any child under 18), Florida homestead law will trump anything written in the decedent’s will or trust. The surviving spouse is given a life estate and the minor child a remainder interest. See F.S. §732.401.
Homestead is not considered part of the probate estate, but the personal representative may have the responsibility to preserve, insure and protect it. See F.S. 733.608(2). If there is any question regarding whether the property is homestead or if the decedent has creditors, the Homestead Petition should be filed, since homestead passes to qualified heirs free of claims against the estate.
Note: New legislative changes to F.S. §732.401 allow the surviving spouse to opt out of the life estate, and instead elect to take a 50% tenancy-in-common interest in the property.
Special Note: The information in this legal service section is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on information presented herein to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult Thomas-McDonald Law Firm. Your receipt of information from this website or blog does not create an attorney-client relationship and the legal privileges inherent therein.
Estate Planning (Wills and Trusts)
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Creating a last will and testament is an important step to make sure your assets, or estate—the real estate, cash, and personal property that you own—are properly distributed after your death. After any major life change, like a new addition to your family or the end of a marriage, it is imperative to review your estate plan.
Florida wills give the testator (the person writing the will) the opportunity to make sure their spouse, children, other loved ones, and pets are taken care of. You may also choose to leave property or make gifts to charitable organizations through your Florida will and testamentary trust (i.e., trusts created through a last will and testament) that provide a benefit for people, pets or charitable organizations).
In contrast to a last will and testament, a living will provides instructions about your health care should you become incapacitated and incapable of making decisions. A living will, called an “advance directive” under Florida law, would take effect during a person’s life, if necessary, while a last will and testament does not take effect until the person passes away.
It is important to note that before the terms of a Florida last will and testament can be considered, the will must be proved in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. If a Florida will is self-proving and valid, as described below, it can be immediately admitted to probate. In order for a Florida will to be self-proving, the testator and witnesses must sign an affidavit, which must also be notarized, proving each participant’s identity and attesting to the fact that each knew they were signing a will.
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What is an Appeal?
The divorce process is unique to everyone that experiences it. Sometimes, it is possible for both spouses to agree to the terms of a divorce. When this happens, a divorce is referred to as uncontested. However, when both spouses are unable to reach an agreement on the terms of the divorce, the divorce is referred to as contested. Contested divorces can take longer, especially when children are involved or if there are extensive assets that must be divided. When spouses cannot agree to the terms of a divorce, a Florida judge will determine the outcome of the divorce including
How do Florida Divorce Appeals Work?
Your Florida divorce starts when you file a form known as a Petition for Dissolution of Marriage in the circuit court of the county in which you are filing. Once the process has been completed and the judge has made a final determination about your divorce settlement, you can file an appeal of the divorce order. Depending on the type of appeal you pursue and the outcome of that, various processes are set in motion after initiating an appeal.
What Types of Florida Divorce Appeals are There?
There are several different types of appeals available depending on where your divorce was heard. Timing is critical in each of the different processes, so you must make sure to act as quickly as possible when you decide to appeal your divorce judgment. Your options for appealing a divorce include:
o (a) Notice of Exception to the Report and Recommendation of a General Magistrate: Some divorces are heard by a general magistrate. In Florida, a general magistrate is an attorney who has been appointed by a judge to take testimony and make recommendations on the matter before him or her. These recommendations are reviewed by a judge and are usually accepted unless they are contrary to law or fact.
o (b) Motion for Rehearing: If your divorce was heard by a circuit court judge, you can immediately make a motion for your case to be reheard. Often, these motions are approved or denied by the same judge that heard the original case. Making this motion will not automatically grant you the right to have your divorce reheard, but this serves as an initial step in the Florida divorce appeals process.
o (c) Traditional Appeal: This is the type of appeal most people are familiar with. A traditional appeal is heard by a Florida District Court of Appeals and must be requested within 30 days of the divorce ruling. There are five of these courts throughout the state, each of them hearing appeals from different counties. An appeal is a type of procedure in which you argue that the original court did not follow established law in making the divorce decree. It is important to remember that during an appeal, you will not be allowed to introduce any new evidence. Some people believe they have a “smoking gun” that they will be able to use to surprise their former spouse and potentially change the outcome of a case, but all evidence for a divorce must be introduced during the original trial. Appeals are difficult and require
o (d) Motion for Relief from Judgment: Sometimes also referred to as a motion to set aside a judgment, this is the only option available when 30 or more days have passed since the divorce order was finalized. It is difficult to be successful using this method, but not impossible. One of the most common reasons for a court to set aside a divorce judgment is because it becomes known that your former spouse was hiding assets during the divorce and those assets were not considered during the initial trial.
When can You Appeal a Divorce?
You have the right to appeal a divorce for pretty much any reason. However, the appeals process can be lengthy and costly. Working with a family law attorney that focuses his or her practice on divorce is an important step in considering whether or not to appeal a judgment. It is important to remember that you are not guaranteed a better ruling simply because you have appealed the original ruling. In order to be successful in your appeal, you need to have a valid reason for appealing the original ruling other than simply not liking the terms. You will need to present clear and convincing evidence that the trial court did not follow established Florida divorce law or
The Bottom Line on Divorce Appeals:
It is difficult to “put the toothpaste back in the tube. In other words, if you let your case get to the point where you need an appeal – it is already unlikely you can change the ruling. That is not to say it is impossible – it is just a lot harder. We do enjoy these types of cases because of the huge benefit a success can bring. The costs of appealing a ruling can be high and the results unsure. But sometimes a strong effort and good research can produce a successful appeal. Thomas McDonald Law Firm can provide you with an experienced attorney for your appeal, motion for rehearing, or notice of exception. Call us immediately if you believe a divorce appeal may be what you desire.
Helping one person might not change the whole world,
but it could change the world for one person.
— UNKNOWN —
Areas of Practice
Family • Trial and Appellate Practice • Divorce, Child Custody/Time-Sharing, Marital Agreements • Adoption and Surrogacy Law • Collaborative Divorce/Family Law • Probate Administration & Litigation • Wills and Trusts • Guardianship & Elder Law • Family Mediation • TROs (Temporary Restraining Orders) and Domestic Violence • Pre-suit or Court Ordered Mediation
301 W. Bay Street, Suite 14114
Jacksonville, FL 32202
Please call our office for more information.