Experience, compassion, and patience in Family Law and Criminal Law matters

What are your rights after your arrest in Florida?

You have a right to know the crime or crimes with which you have been charged. You have a right to know the identity of the police officers who are dealing with you. This is your right by statute. You also have the right to communicate by telephone with your attorney, family, friends, or bondsperson as soon after you are brought into the police station as practicable. The police have a right to complete their booking procedures before you are allowed to use the telephone.

What rights do you have when questioned by Florida police?

You have the right to remain silent. If you choose to speak, anything you say can be used against you in court. If you decide to answer any questions, you may stop at any time and all questioning will cease. You have a right to consult with your attorney before answering any questions. You have the right to have your attorney present if you decide to answer any questions, and if you cannot afford an attorney, one will be provided for you or appointed for you by the court without cost to you before any further questions may be asked. The police must stop their questioning of you if you make a clear request for an attorney. Phrases such as "I think I want an attorney" will not be clear enough to legally make them stop questioning you. You must unequivocally state you want an attorney.

Constitutional rights may be waived or given up voluntarily. Before you say or sign anything that might result in waiver of a constitutional right, weigh your decision carefully and consult with an attorney. If you cannot afford a private lawyer, you should advise the judge of this fact at your first appearance or as soon after that as possible. The judge will ask you some questions to see if you are eligible for the services of an attorney at public expense. You will probably be asked to take an oath of indigency, which is a sworn statement as to your inability to afford a private attorney.

Should you make statements to law enforcement?

Generally no. If you are arrested in Florida, the decision whether to answer any questions is entirely your own. You should give this matter your careful consideration because oral statements, as well as written statements, will be received as evidence in court against you. If you are offered any inducement to sign a document or if you are threatened, coerced, or forced to sign anything, advise your attorney and the senior police official in charge immediately. If you do not have an attorney, you may ask to speak to one immediately. Any promise for leniency by the police during an interrogation may result in the statement being "thrown out " of court.

Can a Florida law enforcement officer detain you without arresting you?

Yes, with limitations. Under Florida law, based upon reasonable suspicion that you may be involved in criminal activity, a police officer may require you to identify yourself and explain your presence at a particular time, without arresting you. Under Florida law the officer may not remove you from the immediate vicinity without making an arrest, unless you voluntarily accompany the officer to some other location.

If the officer has reasonable grounds to believe that you are armed, he or she may conduct a limited pat-down of your outer garments for the purpose of detecting weapons. If this "frisk" results in reasonable belief on the part of the officer that you are carrying a weapon, the officer may remove the suspicious object for protection. The officers must return to you any object found unless they place you under arrest. Unless the officer places you under arrest, the frisk or search must be limited to suspected weapons.

Can an officer use force when making an arrest in Florida?

The officer may employ all reasonable and necessary force to overcome resistance in making a lawful arrest. Resisting arrest with violence is a felony under Florida law. Resisting arrest without violence or offering to do violence is a misdemeanor. You could be convicted of either of these crimes, even if you were found not guilty of the crime for which you were arrested. You cannot use violence to resist an illegal arrest.

Obstructing an officer with violence is also a felony under Florida law. Obstructing or interfering with an officer on duty without violence is a misdemeanor. If you believe that your rights are being violated, make it a point to remember exactly what the police officer did and then advise your attorney at the earliest possible time.

What happens to personal property when arrested in Florida?

If you should be booked into a jail, the police may take money and property from you for safekeeping. They will carefully inventory your money and property and give you a copy of the inventory. At the time of your release or at the conclusion of your case, such money or property that was not seized as evidence in the case may be returned to you, subject to your criminal status. You will be given an opportunity to sign the property list. You should make certain that the list includes all the items taken from you.

How are you released from jail?

Upon arrival at a Florida jail or shortly thereafter, you will be given an opportunity to contact your attorney. The attorney, in turn, may arrange for the posting of a bond and may appear with you in court and ask the court to lower the bail if it is believed to be excessive under the circumstances. You may be released upon personal recognizance (your promise to appear in court when directed), or you may be released on bail, which involves the posting of either cash money or a surety bond as security for your court appearance. Bail bonds from licensed sureties are usually available at a cost of 10 percent of the amount of the bail. If you are taken into custody and booked into the jail and remain there, you must be brought before a magistrate within 24 hours of your arrest. At that appearance, you may request that the magistrate lower your bail in consideration of your ties in the community, financial resources, employment record or any other factors, including your past criminal record and your past history of failure to appear in court when scheduled.

What is a Miranda warning?

A Miranda warning advises people of their constitutional right not to answer questions or to have an attorney present before answering any questions.

If I am not under arrest, do I have to answer a police officer's questions?

No. Unless you are placed under arrest you are free to leave at any time. However, if a police officer stops you while you are walking, and asks you for identification, it is probably in your best interest to provide such information. The courts have allowed police officers to detain people for extended periods of time in an effort to determine the identity of the individual.

Must a police officer always advise a person of their Miranda rights before asking a question?

No. The Miranda warning is only in effect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave. Also, the questions being asked, even if in custody, must be the type of questions that could elicit an incriminating response. In other words, even a person arrested does not have to read their Miranda warnings prior to the officer asking them their name, address and other biographical information.

Can I waive my Miranda rights?

Yes. If you have been arrested, and you have been given your Miranda warning, then anything that you say can and will be used against you in court. "But the police officer said that if I talked, he would help me out!" This is something police officers say sometimes. Police officers have no control over what happens to you after you have been arrested. The determination of what you will be charged with, and how you will be sentenced, is up to the prosecutor and the presiding judge respectively. It is only the prosecutor who can negotiate with your attorney on what sentence you ultimately receive and even then, it is up to the judge whether to approve the sentencing agreement (plea bargain).

If a police officer wants to stop me while I'm walking on the street and I know I've done nothing wrong, should I comply?

In Florida, a police officer may interfere with your freedom of movement only if he has observed unusual activity suggesting that criminal activity is afoot and that you are involved. In other words, if he has a reasonable suspicion that a crime has been committed and you may have been involved. Even if the officer is mistaken, however, you do not have the right to keep walking. As long as the officer has a good faith belief in your connection to criminal activity, he is allowed to detain you. Stopping you is one thing, however. It doesn't mean that you must answer all of his questions. See If I am not under arrest, do I have to answer a police officer's questions?

If I am legally stopped by a police officer on the street, can he search me?

Yes and no. A police officer is permitted to briefly frisk your outer clothing for weapons if the officer reasonably fears for his safety. An example might be if the officer sees a bulge in your jacket pocket that appears to be the outline of a gun or knife. If a frisk is later challenged in court as being unreasonable, a judge will usually uphold it.

A frisk is different than a search in that a search may be conducted for evidence of a crime or contraband (an illegal item), and may be much more intrusive than a frisk. An officer who frisks you may not search you unless he has good cause to believe that you committed a crime or that you're hiding an illegal item.

Can a frisk turn into a full-blown search?

When frisking a person for weapons, the police are attuned not only to the feel of possible weapons under clothing, but also to the feel of packaged drugs. Although a frisk may not turn up a weapon, it may turn up a suspicious package which the officer knows is commonly used to carry illegal drugs or some other illegal substance. This suspicion may turn into sufficient cause for a more intensive search of the person's clothing. The lesson here is that a frisk often leads to a legal search. And if a search produces an illegal substance, it may result in an arrest.

Do I have to let a Florida officer search me or my car if he merely asks my permission?

No. An individual has a right NOT to consent to a search if the officer merely asks them if he or she would allow the officer to search their person or their car. A large number of drug related arrests occur after someone has given voluntary permission to officers to search them or their vehicle.

If I am questioned by a police officer after being stopped on the street, do I have to respond to the questions?

The general rule is that you don't have to answer any questions that the police ask you. This rule comes from the Fifth Amendment to the U.S. Constitution, which protects you against self-incrimination. As with all rules, however, there is an exception. Many local and state governments have anti-loitering laws that require people to account for their presence if the police have a reasonable suspicion that they are loitering. Once the police have asked all of their questions about loitering, however, you don't have to answer any others — such as questions about a crime in the neighborhood.

Should I talk to the police?

It's often in your best interests to avoid making a statement or signing anything. If the police are investigating you, you may or may not be aware of it. At some point, they may ask you to come into the station and give a statement. Instead of talking to the police, hire a criminal defense attorney. An attorney can intercede on your behalf, talk to detectives, and get valuable information which may result in charges not being filed. Most importantly, hiring an attorney will keep you from giving a statement that the District Attorney may ultimately use against you at trial.

Can police arrest me without evidence of my guilt?

Only if they have probable cause to believe you've committed the crime. Once they have probable cause, they can arrest you in a number of ways:

  • They can make a lawful arrest. If you're arrested and are in custody, your arraignment generally must occur within 24 hours;
  • If they believe you're not a risk to flee the area, they may send you a letter in the mail asking you to appear for an arraignment; or they may ask you to voluntarily surrender yourself at the police station.

What happens at an arraignment?

Your initial arraignment will be your first appearance in court whether or not you're in custody. At the arraignment, your attorney will receive the complaint stating the charges that have been filed against you and any police reports on your case. If you're in custody, your attorney will have the opportunity to argue bail or set a bond hearing.

What is a pretrial conference?

Your next date in court will be the pretrial conference. At the pretrial conference, your lawyer will argue pretrial motions , such as motions to suppress or exclude evidence from trial and motions to dismiss the case for insufficient evidence.

Your attorney can also discuss a plea bargain with the State Attorney. A plea bargain may result in you pleading guilty to a lesser charge in order to obtain a lighter sentence or reducing a charge from a serious offense to a misdemeanor.

What happens at a Florida criminal trial?

If no disposition is reached on your case, it will be set for trial. The typical stages of a trial include selecting a jury, presenting evidence, cross-examining witnesses, and making closing statements. After all of this, the jury will deliberate and return a verdict.

What to Expect in a Florida Divorce?

Divorce is a painful and difficult experience. If you understand the functions and limitations of the Florida legal system, the process becomes more tolerable. This should provide you with a greater understanding of the process to help you get through your divorce with realistic ideas and goals.

Limitations

Florida’s divorce system is based on the principle of “no-fault,” meaning that a divorce will be granted if either party believes that the marriage is over. Generally, the causes of the failure of the marriage are not an issue in court. All that matters is that the marriage needs to be ended.

It is impossible for any court to heal the emotional wounds created by your divorce. You must understand that the legal system is not a tool for punishment of your spouse. The courtroom is no place for revenge. The court must decide your case on the basis of its unique facts. In most cases, the law does not permit the court to compensate either of you for the other’s misconduct.

Please do your best to keep emotions out of the case. Your feelings of anger, pain, and betrayal are understandable, but expressing them inappropriately in court may interfere with your ability to provide the court with the information the court needs.

Settlement

The best way to conclude your case is to settle it. Through compromise and cooperation, a settlement can lead to greater mutual satisfaction and lessened animosity between you and your spouse. In most cases, negotiations toward settlement can be more productive and far less expensive than a trial.

If negotiations fail and you must try your case, the court will make rulings that will permanently affect you and your children. The court’s rulings must be made exclusively upon the limited evidence that is presented in court, and nothing else. Because the court is restricted in what the court can and cannot do, a settlement can offer a wider range of options.

Variations

Every divorce is different. Your results may be very different from your neighbor’s, friend’s, or relative’s. You cannot rely upon what happened in their cases and assume that your results will be the same. Cases that seem similar may, in fact, be very different and will be treated differently under the law. For this reason, you should look to your lawyer for your legal advice and information. Your friends and relatives usually do not have a grasp of the law and your case, and accepting their advice may hinder you in the long run.

Finances

Unless you settle your case, the court must allocate the income and assets accumulated during the marriage. The law is that you and your spouse were financial partners during the marriage and are presumed entitled to share in both the assets and income the partnership made.

For most people, lifestyles change after a divorce. Since divorces do not create property or income, the court must divide the marital resources between two separate households. It costs more to run two households than one. If you or your spouse has not been employed during the marriage, it may be necessary to seek employment.

In considering a settlement, you should consider whether you can afford the attorney’s fees to fully litigate your case. Fees and costs in contested cases can be quite high. Usually, a settlement prior to trial reduces the expenses considerably, an important consideration if you come to the divorce with limited resources.

Issues

A divorce generally involves four major issues: child custody/visitation, child support [Leesburg FL Child Support & Child Custody Attorney Services], alimony, and a division of property/debts. The court may also be asked to enter an order (called an injunction) prohibiting or requiring certain actions. After the case is concluded, the court may later be asked to modify custody and/or support. You need to understand each of these aspects of your case.

Child Custody

Most parents will share parental responsibility for their children after the divorce. In doing so, you must communicate and confer with each other in making decisions that will affect your children.

Usually, the court will give one parent majority time-sharing (custody) of the children. Unless there is a good reason, the court will grant the other parent liberal and frequent time-sharing (visitation). Determining the majority time-sharing (custody), the court will give great weight to the issue of which of you is more likely to encourage the children to visit the other. In some cases, the court may award equal time-sharing (rotating custody) where the children spend an equal amount of time with both parents.

The court decides custody solely on what is best for the children. Often, one of the parties is hurt by the decision, especially if that party sees the decision in a “win/lose” light. In truth, there can be no loser if the children’s welfare is protected.

In virtually all custody contests, the court will direct both parties to participate mediation to resolve that issue. A mediator is an unbiased third party who can often assist the parties in reaching agreement upon what is best for the children. An agreement on custody will certainly make your case easier and help your children immeasurably in dealing with your divorce.

Child Support

Aside from continuing to love your children and seeing them often, you have no higher obligation as a parent than to continue supporting your children after the divorce. Child support is more important than any other debt or financial obligation. Both parents are required to support the children, but the minority time-sharer (non-residential/non-custodial parent) will be directed to pay his/her portion of the support to the other. This does not mean that the majority time-sharer (residential parent) is not contributing to the support. Florida has adopted guidelines for child support that the court is required to follow. Your friends and relatives may have been involved in divorces years ago or in other states and receive or pay lower support than our guidelines provide. The child support in your case will be based upon your income, your spouse’s income, the amount of overnight time-sharing (visitation) and the needs of your children under the guidelines established by the State. If equal time-sharing (rotating custody) is ordered, child support is significantly reduced.

Alimony

The court finds it necessary to award alimony, or spousal support, in many cases. As with child support, the court will consider two factors: one party’s need and the other’s ability to pay. Both of these factors must be proven in court by the requesting spouse. Alimony may be awarded to either a husband or wife and, depending on the length of the marriage and other factors, the alimony may be permanent or for only a short duration.

Property Division

Under Florida law, the court must try to make an “equitable distribution” of marital property and debts. “Equitable” does not always mean “equal,” although that is the starting point. Many factors, including child support, custody, and alimony awards, can cause the court to make an unequal (but still equitable) division of property. The court will not generally divide the property and debts that arise outside the marriage.

Injunctions

If needed, the court can order you or your spouse to do, or not do, certain things. The court may order a party not to telephone the other, not to come to the other’s place of business, not to interfere in the other’s activities, and the like.

Attorney's Fees

The court can order one party to pay some or all of the other’s attorney’s fees. The court does this to assure that both parties have equal access to competent counsel The court does not award fees in every case; the court must first find that one party has a greater ability to pay than the other. You cannot ever be certain that the court will award fees. For this reason, and because of the great drain that fees can be on marital assets, everyone (parties and attorneys alike) should make every effort to resolve a divorce case as economically as possible.

Do's and Don'ts

There are some rather clear cut rules that apply to every divorce. Pay heed to these rules and your divorce will be easier and less painful for all involved.

Have Reasonable Expectations. You will certainly be disappointed if you expect to “win” on every issue. Rarely is either party happy about every ruling in a case. Even the best rulingsleave both parties somewhat dissatisfied. Encourage your attorney to give you a realistic projection of the outcome of your case.

Keep Communication Open with Your Spouse/Ex-Spouse. As long as you have children, you and your (ex)spouse will have to work together. Your children will suffer to the degree that you and your former spouse cannot cooperate and communicate.

Get Professional Help to Deal with Your Emotions. If you have trouble with the hostility, anger, or depression that often occurs in divorces, don’t hesitate to get counseling to help you through it. Use professional help to deal with your hostility. Don’t use the court, your attorney, or the system to vent your anger; that would be counterproductive. A good counselor can help you, and your children, get through this difficult time.

Encourage and Support Visitation. If you are the custodial parent, you have a duty to encourage visitation. You must do more than just stay out of the way or leave the choice to the children. Encourage your children to see your former spouse frequently and to enjoy the contact. Never use support or visitation as a lever or bargaining chip in dealing with the other parent.

Give Your Children a Chance. The way you and your spouse handle your divorce will have an enormous impact upon your children. If you argue and fight, their problems and pain will be magnified. By acting civilly, you can help them through one of the most difficult events of their lives.

Do I have to pay alimony in a divorce?

Spousal support, as it is now commonly called in Florida, used to be known as "alimony." Spousal support is not mandatory in most states, but can be ordered by a judge under certain circumstances.

If a spouse will face hardships without financial support, spousal support should be considered. The deciding factor for spousal support is the need to maintain the spouse at his or her customary standard of living. In other words, the law recognizes a husband or wife should not be forced to live at a level below that enjoyed during the marriage.

However, other factors also need to be considered. For example, spousal support should most likely not be considered if:

  1. The marriage was for a short duration (less than two or three years), and
  2. Both spouses are employed and self-sufficient
  3. This does not mean the parties cannot agree on spousal support

There is no firm dollar figure used to calculate spousal support. The amount should be decided by both parties.

What is collaborative divorce?

Collaborative law is a relatively new way of handling divorces in the United States. Developed in the early 90's, collaborative divorce is a completely different way of approaching marriage dissolution. Each party retains his or her own attorney, but this system is done completely outside of the courtroom. The mindset of this type of divorce is totally toward cooperating and reaching an amicable agreement in all aspects of your divorce, including child support, alimony, child custody, property division and other issues.

How much should I expect to set aside for supporting my child?

The state of Florida uses a child support calculator based upon your monthly income and the number of children. That calculator is used often to find a general starting point and does not necessarily indicate the amount that you will have to pay. Depending on the circumstances, amount of time you spend with the child and other factors, the amount might be more or less. However, each situation is unique.

How do I spot behavioral changes in children during a divorce?

Even when both parents agree that dissolution of marriage is in everyone's best interests, a divorce can be an emotionally traumatic experience for minor children. But when either or both parents demonstrate animosity toward one another, it can damage a child's development in ways that may not even be apparent for years to come. As a divorce lawyer serving clients in central Florida, I advise our family law clients who have children to seek the counseling service of a reputable child psychologist or licensed family counselor—even in cases where the children have not demonstrated any overt emotional or behavioral changes.

Signs of Emotional Change in Children Who are Going Through Divorce

It's important for parents to recognize the fact that divorce affects the entire family. Just as the divorcing spouses may have concerns about lodgings, finances, and the general directions of their lives, children may experience feelings of instability, which could make them respond in a variety of ways. How a child will react to divorce depends on a number of factors, including age, whether the child has siblings, his or her ability to understand why the divorce is occurring, and individual personality traits. For instance, an eight-year old and a fifteen-year old of the same parents may both have the ability to understand their parents' reasons for divorcing, but the younger child may react angrily, while the older one slides into depression. The following are some of the reactions that children who are going through a divorce may experience:

  • Anger
  • Depression
  • Sadness
  • Physical ailments, such as headaches, stomach aches, et cetera
  • Loss of appetite
  • Inability to sleep
  • Falling grades
  • Violent outbursts

Even if your child doesn't specifically demonstrate one of the above listed signs, any notable change in a child's behavior, demeanor, or actions is noteworthy and should be considered a warning. As a professional family law attorney, I will recommend availing yourself of the services provided by any number of qualified family counseling providers in central Florida. If that is not possible, try to educate yourself on the topic of behavioral changes in children during a divorce as much as possible.

What are the rights of Parents in the State of Florida?

The family courts in places like Lake, Sumter, Hernando, Marion and Orange proceed from the judicial philosophy that a child's interests are best served when both parents are involved. It is rare that the court will decide to give sole custody to one parent without guaranteeing the other parent liberal visitation. Furthermore, regardless of the custody arrangement, both parents will normally be allowed to have a say in the child's upbringing with regard to schools, residence, religion, and medical decisions. In other words, both parties will be allowed to co-parent the child. It is important to note that parental rights are not extended automatically to both parties.

How is property divided in divorce?

In Florida, property is divided by the equitable distribution principle. This means that separate property is kept separate, while marital (jointly held) property is divided equitably. This can mean equal or unequal division of assets for both parties.

What is marital property and what is separate property?

Marital property is any property owned jointly by spouses. Separate property typically is property that a single spouse owned independently before marriage.

What factors does the judge consider when dividing assets?

In divorce cases that go to family law court, the judge will base their property division decision on a number of factors, including: the length of the marriage, what each party contributed to the marriage, total income and debts of both parties, and the physical/emotional health of both parties.

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