Frequently Asked Questions
Below are some frequently asked questions about family law, wills and estates, and bankruptcy. The information is excerpted from pamphlets provided by The Florida Bar.
Family Law - Divorce
The official term for divorce in Florida is dissolution of marriage.
Where do I get legal help?
A good place to begin is with your own lawyer, if you have one. Your lawyer can give you a quick review of your legal rights and advise you how to proceed. If your lawyer does not handle divorce cases, you will be referred to an attorney who does.
If your family lawyer has been retained by your spouse, then this lawyer cannot represent you, too. In fact, if the lawyer has been your family lawyer there may be a conflict of interest and the lawyer cannot represent either of you. Do not attempt to consult with your spouse's attorney to receive legal advice. It is unethical for an attorney to represent both sides in a divorce and to give legal advice to both husband and wife.
How do I select a lawyer?
If you do not have a lawyer, a lawyer referral service, usually operated by a local bar association, can put you in touch with a lawyer who handles such cases. The lawyers associated with the lawyer referral service have agreed to charge a small fee for the first conference. For just a few dollars, you can discuss your rights and obligations and determine if you are proceeding in the right direction.
Many areas in Florida have lawyer referral services listed under "Attorney" or "Information and Referral Services" in the yellow pages of the telephone book. If you do not have a lawyer referral service in your city, The Florida Bar's Statewide Lawyer Referral Service can locate a lawyer for you. You can call the statewide service, toll-free, at 1.800.342.8011 or you can view the Find a Lawyer section on the Florida Bar Family Law Section homepage.
In Florida, lawyers who specialize in family law can earn board certification if they meet certain criteria and pass a comprehensive test in this practice area. To maintain certification, a lawyer must take continuing legal education courses regularly.
If you are looking for an attorney to represent you in a divorce—or any other legal matter—the Florida Bar has developed another helpful consumer brochure, How To Find A Lawyer in Florida, which may be helpful. See the back of this booklet for instructions on ordering it and other consumer brochures.
What about attorney fees and costs?
Divorce does not have to be expensive. The more complex your affairs and the more contested the issues, the more the dissolution will cost. At an initial meeting, your attorney should provide an estimate of the total cost of a dissolution based on the information you provide. To a large extent the cost will depend on how contested the matter becomes.
One lawyer cannot represent both parties. Your lawyer will expect you to pay a fee and the costs of litigation in accordance with the agreement you make. Sometimes the court will order your spouse to pay part or all your fees and costs, but such awards are unpredictable and cannot be relied upon. You are primarily responsible for the payment of your legal fees.
In a divorce, it is illegal for an attorney to work on a contingency fee basis; that is, where the lawyer's fee is based upon a percentage of the amount awarded to the client.
How is child support calculated?
Wills & Estates
What is a will?
A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Florida
- You, the maker of the will (called the testator), must be at least 18 years old
- You must be of sound mind at the time you sign your will
- Your will must be written
- Your will must be witnessed and notarized in the special manner provided by law for wills
- It is necessary to follow exactly the formalities required for the execution of a will
- To be effective, your will must be proved in, and allowed by, the probate court
No will becomes final until the death of the testator. It may be changed or added to by the testator by drawing a new will or by a codicil, which is simply an addition or amendment executed with the same formalities as a will. A will's terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part or all of the will.
What is a revocable trust?
This brochure is intended to give you a basic understanding of revocable trusts, but it cannot substitute for a thorough review with your estate planning attorney. A revocable trust must be implemented as part of an overall estate plan. Ownership of assets must be coordinated between the individual and the trust.
Decisions must be made as to what assets are appropriate to fund the trust, the transfers must then occur, and the asset allocation should be periodically reviewed. Tax considerations must be discussed with qualified professionals. The trust agreement should reflect your family, economic and tax goals. A revocable trust can help you accomplish these goals when properly prepared and implemented.
Is there an alternative to filing for bankruptcy?
Bankruptcy is not the only method of dealing with too much debt. In some situations another way might be more advantageous to the debtor than filing bankruptcy. Such alternatives may include
- Out-of-court settlement with creditors
- Reduction of payments to creditors
- Attaining help from a consumer credit counseling service
- Payment of debts by sale of assets or borrowing on assets
However, these methods require cooperation from creditors, and the chances of success are greater if the debtor attempts these alternatives soon after financial difficulties begin.
How do I file a bankruptcy petition?
A bankruptcy case is started by filing a petition with the bankruptcy court in the federal judicial district and division where the debtor resides. If the debtor is filing a chapter 7 or 13, the debtor must first obtain a certification that he or she received credit counseling to be eligible to file a bankruptcy petition.
The petition contains a request for relief under one of the chapters of the bankruptcy code. A debtor must file a statement regarding various financial matters and disclose all creditors and assets. A debtor is required to appear at a meeting conducted by either a trustee or the United States Trustee, during which creditors may ask questions regarding the debtor's finances, assets, and liabilities.
Depending on the bankruptcy chapter filed and the complexity of the case, the debtor may also be required to appear at hearings before a bankruptcy judge. If the debtor’s debt is primarily consumer debt, a means test calculation must be done. (Official Form B22C).
Do I need a lawyer?
As in any court, individuals have a right to represent themselves before the bankruptcy court. However, bankruptcy is a complex area and involves many considerations, including:
- Whether to file
- Election of the appropriate chapter
- Use of exemptions
- Understanding protections the bankruptcy code offers
- Using protections to the debtor's advantage
The right decision for you depends on an evaluation of your family status, your assets, your obligations, and other factors. It is a very serious step that could affect you for the rest of your life. It is possible in a bankruptcy for a debtor to lose all assets and still owe all the original debts. A lawyer can explain to you how the process works and can help you reach an intelligent decision.
Some debtors use non-lawyer bankruptcy petition preparers or filing services to complete the schedules and documents which must be filed with the bankruptcy petition. While this may cost less initially than consulting an attorney, these non-lawyer services cannot, by law, give legal advice before or after the filing, and cannot represent the debtor in bankruptcy court.
If you are contemplating a chapter 11 or a chapter 13 case, then the need to be represented by an attorney is even greater. Certain complexities in the law make it extremely difficult for a debtor to successfully conclude a chapter 11 or 13 case without the assistance of an attorney.
A corporation cannot represent itself in a bankruptcy case and must be represented by an attorney.