Florida Law By Gerald Keane

Comprehensive Coverage

Fifth ed.

• Property law – landlord/tenant, wills, trusts • Family law – parent/child, marriage, divorce, guardianship, adoption • Business law – corporations/partnerships, promissory notes/mortgages, contracts, agency/employment, insurance • Special areas – torts, criminal law, small claims, consumer law

Florida Law

Florida Law A Layman’s Guide Fifth Edition • • • • • •

Are you buying or selling a home? Is it time to think about writing a will or setting up a trust? Are you incorporating a business or wondering about employee/contractor issues? Are you a renter or landlord unsure of your rights and obligations? Have you received unacceptable products or services but don’t know how to file a claim? Are you considering adoption?

We face situations such as these every day in our personal and professional lives. Having some general knowledge of the law can help avoid costly mistakes — and also contribute to peace of mind. This popular guide to Florida law for the layman — newly revised and updated — takes the mystery out of these and many other legal matters.

Gerald B. Keane received his legal training at the University of Florida and has practiced in Sarasota since 1973. Board-certified in marital and family law, he has been president of the Sarasota County Bar Association, chairman of the Florida Bar Grievance Committee, and author of child support and contact guidelines for the 12th Judicial Circuit. Additionally, he has led many community service organizations. He is the author of Florida Divorce Handbook, also published by Pineapple Press. $18.95

Pineapple Press, Inc. Sarasota, Florida Front cover photo courtesy of the Florida State Archives

Florida Law Fifth edition

Fifth edition

A Layman’s Guide

A Layman’s Guide

“Following the information contained in this text will give the reader most of the assistance needed before seeking an attorney, and I truly recommend it for all laymen.” — from the foreword by Vassar B. Carlton, Chief Justice, Retired, Florida Supreme Court

A practical, readable guide to your legal rights in Florida

Gerald B. Keane

The Old Capitol, Tallahassee, Florida

Gerald B. Keane Attorney at Law

Florida Law A Layman’s Guide Fifth Edition Gerald B. Keane Attorney at Law

Pineapple Press, Inc. Sarasota, Florida

Copyright © 2007 by Gerald Keane All rights reserved. No part of this book may be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher. Inquiries should be addressed to: Pineapple Press, Inc. P.O. Box 3889 Sarasota, Florida 34230 www.pineapplepress.com Library of Congress Cataloging-in-Publication Data Keane, Gerald B., 1945Florida law : a layman's guide / Gerald B. Keane. -- 5th ed. p. cm. Includes bibliographical references and index. ISBN 978-1-56164-395-0 (pbk. : alk. paper) 1. Law--Florida--Popular works. I. Title. KFF81.K4 2007 349.759--dc22

Fifth Edition 10 9 8 7 6 5 4 3 2 1 Design by Sandra Wright’s Designs Printed in the United States of America

2007000561

DEDICATION To T. J. Jones, the first who said; To Barbara B., the one I wed; To Mom and Dad who brought me up; To Jo LaLoge who typed it up. To Shane (my boy) and Dana B., The Grandest Kids, running free, For all the Joy they bring my life, Thank God, and them, and loving wife. To Kearney, Kornfeld, Brohawn, too; To worthy clients I advocate; And, last of all, to readers who Will, by my words, self-educate; To every one, to each of you. This humble work I dedicate.

FOREWORD

Florida Law: A Layman’s Guide by Gerald B. Keane, Attorney-At-Law, is a rather comprehensive guide that will make the reader aware of his rights and assist him in recognizing daily problems that sometimes create legal difficulties and cost unnecessary time and money in court. Some very complicated principles of law are simplified in a way that will aid the layperson to a better understanding of legal advice. He will also have a background in the rules governing our transactions with others. This guide will help avoid legal problems that could possibly result in a court case. The author has done an outstanding job of compiling some basic legal information in understandable language, and at the same time lets the reader know that an attorney’s advice should always be used in serious matters. The layperson should never try to represent himself in court. The guide is very informative and helpful in explaining a wide range of legal problems. Following the information contained in this text will give the reader most of the assistance needed before seeking an attorney, and I truly recommend it for all laymen. —Vassar B. Carlton, Chief Justice Retired Florida Supreme Court v

CONTENTS

Foreword v Introduction 3 1. Judges and Lawyers 7 2. Property 11 3. Real Property 25 4. Landlord/Tenant 41 5. Wills 53 6. Trusts 79 7. Guardianship 87 8. Parent/Child 93 9. Marriage 103 10. Dissolution of Marriage 113 11. Adoption 145 12. Corporations, Partnerships, and Sole Proprietorships 155 13. Promissory Notes and Mortgages 169 14. Contracts 183 15. Agency/Employment 195 16. Insurance 201 17. Torts 215 18. Criminal Law 233 19. Small Claims 257 20. Consumer Transactions 263 Appendix I Citizen Dispute Settlement Program 273 Appendix II Depositions 274 Appendix III Conduct in Court 276 Appendix IV Choosing and Dealing with Lawyers 277 Appendix V Shared Parental Responsibility Contact Guidelines 280 Appendix VI Child Support Guidelines 297 Appendix VII Child Support Worksheet 303 Index 305

FLORIDA LAW

INTRODUCTION

The law is essentially a formal means of assuring that each individual citizen is accorded rights and opportunities that serve to benefit society as a whole. To a large extent, according rights to one individual deprives all others of an opportunity or right that would otherwise be theirs. There’s only so much room within a society to move our elbows about. Since the balance of rights, opportunities, and freedoms is very subjective, those who are most aware of their rights and most assertive in seeking them will likely achieve a greater share than others less aware. In this sense, society is very much a case of “us against them,” with “us” having to assert our rights to a reasonable degree to get our appropriate share. The first step in such a process is knowledge. Since 3

4 / Florida Law 99.99% of all disputes about law and rights are settled without resorting to lawsuits, the surest way of achieving a fair balance of rights is for all of us to know what our rights are. There are far too many aspects of the law that can affect your life for any one book to cover, but some are so common that all of us will someday find information about them helpful. This book won’t make you an attorney. It won’t even make you a lawyer. A lawyer is made during three years of law school; an attorney is the result of many years of practice. My aim is to give you enough knowledge of Florida law to understand your rights and to avoid legal problems. If this book saves you from even one legal battle during your lifetime, your money and my time will have been well spent. In most cases, you will hire a lawyer to deal with legal problems. This book will help you find a good lawyer. It should also help you understand what he tells you. It could accurately be said that this book will tell you as much as your lawyer could tell you during a short conference if he did not have the facts of your case. But this book is no substitute for his professional judgment. It can only help you recognize a legal problem, find your lawyer, and then better understand his advice. To help you understand the scope of Florida law, consider that it takes more than 11,000 pages to print the Florida Statutes. That’s 11,000 big pages of very small print—and that’s just the headlines. The real law is found in the reports of the cases that interpret and apply those statutes. The cases take up more than 1,000 volumes, each with more than a thousand pages. I could not hope to even summarize those more than a million pages in this one volume. What I hope to do is make you a smarter, better protected citizen. The way you use this book will show whether I succeed. Let me give you some warnings to help you use this book to best advantage. First, every statement in this book needs a qualifier to make it accurate: the information is “generally,” “usually, “ or even “probably” true. The law applies to a kaleidoscope of ever-changing facts. Any little fact could make your case completely different from your neighbor’s. Your lawyer is sensitive to this and can give you advice that fits your situation. Be cautious. It is certainly true that he who represents himself has a fool for a client. Even lawyers don’t as a rule represent themselves for this very reason. You can undoubtedly handle many legal matters your-

Introduction / 5 self but, unfortunately, you may not be able to distinguish the ones you can handle from the ones you can’t. Over your lifetime, you’ll come out way ahead if you turn your legal matters over to a competent attorney. Please use this book to help you recognize when you have a legal problem. Then get professional help to deal with it.

1. JUDGES AND LAWYERS

Law is merely the formalization of the rules of society. Legislators make laws and judges apply them. We educate lawyers to present the law to the judges. We create courts to give judges a place to sit. Seems simple, doesn’t it? It isn’t. A court is not a place for judges to sit; that’s a courtroom. A court is an entity that has certain and specific authority. Judges are lawyers who give up their practices when appointed or elected to exercise the authority of a court. The Florida court system is simple. There are only four levels: county court, circuit court, district court of appeals, and supreme court. You can forget the supreme court right away. It no longer has much to do with the law for you and me since it deals mainly with death penalty cases and questions of the validity of a statute or a constitutional provision. 7

8 / Florida Law Just below the Florida Supreme Court, we have the district courts of appeal. There are only five of these appellate courts, and they hear virtually all appeals from the circuit courts. Circuit courts and county courts are trial courts. That means that they hear disputes between real people. Those real people never appear in appellate courts because appellate courts decide only questions of law, never the facts of a case. Appellate courts don’t decide who should win; that’s the job of the trial courts. Relatively few cases are appealed in Florida but, over the years, there have been enough of them to fill a million pages of cases in over 1,000 volumes. A layman almost never gets personally involved with a district court; it’s all technical stuff up there. Your case could, however, be appealed to a district court by your attorney. Attorneys file an appeal if they think the trial judge made a mistake that affected their client’s rights. The average appeal in Florida costs between $5,000 and $25,000 and takes about a year to be decided by the three-judge panel. Chances of success depend on the case, of course, but less than 20% of appeals are successful. County courts are the lowest courts in Florida. County court judges have power only within their own counties, with jurisdiction over such matters as traffic infractions and minor criminal charges. They also rule on civil suits involving relatively small amounts (up to $15,000). Small claims (up to $5,000) are heard in county courts. Jury trials can be held for many of the cases. You don’t always need a lawyer in county court. Circuit court is where the action is. A circuit is an arbitrary grouping of several counties. Circuit judges hold court in each county in their circuit, “travelling the circuit” as it used to be called. Any Florida case that seems substantial to a layman will probably be heard in a circuit court, including major criminal charges, divorce cases, bigmoney law suits, injunctions, eminent domain, and even the probate of wills. Jury trials are more frequent in circuit courts and you generally need a lawyer in order to be adequately heard there whether the case is to be decided by a judge or by a jury. Circuit courts also hear appeals from county courts but such appeals are relatively rare. All judges must be lawyers since the skills needed to understand the law and evaluate evidence are developed through experience in the courts. We wouldn’t want an airline pilot to fly our 747 without many

Judges and Lawyers / 9 hours of jet experience, and the judges are, in many ways, pilots for society. Their judgment and skills greatly affect many lives, often those of people who are not even involved in court cases. Not every lawyer would make a good judge; not even every good lawyer would make a good judge. But, it’s safe to say that every good judge was once a good lawyer. Florida judges reach the bench in one of two ways. They can be elected by voters or they can be appointed by the governor. Historically, appointments were more common than elections but two factors have changed that. First, the appointment process has become far more political than merit-based and the credibility of the appointment process has been greatly compromised. Secondly, and probably more importantly, a judge appointed to replace a retiring judge must face election in the next election period and, thus, every judge ends up eventually being elected. The governor, however, still appoints judges for newly-created judgeships that must be filled before an election. When a judge needs to be appointed, a local committee of laymen and lawyers screens applicants and nominates a small number of candidates, usually three. The list is sent to the governor, who must choose his appointee from that list. Until recently, croynism was prevented because the local nominating committee was predominantly independent of the governor (he only had one-third of the appointments to that committee). Now, however, fully two thirds of the committee members are appointed by the governor and it doesn’t take a cynic to believe that the nominees sent to the governor reflect his wishes rather than a truly independent consideration. Sitting judges must be reelected periodically (circuit judges every six years, county court judges every four years) but rarely is a judge who performs adequately challenged in an election. Lawyers are the ground troops of the system. Talking about lawyers is like talking about the people of an entire country; there’s too much diversity to say anything very helpful, but there are a few facts that may breed some understanding. First, all Florida lawyers must be college and law school graduates. Before you can practice law in the state of Florida, you must also pass both the state bar examination and a background investigation. Law school graduation gives you the title of lawyer; passing the exam and surviving the investigation entitles you to a license to practice law and to be called attorney, that is, one authorized to represent others in a court of law. The distinction between

10 / Florida Law lawyer and attorney isn’t often made anymore. A license to practice law doesn’t mean that a lawyer is competent in all fields. Probate lawyers rarely know anything about criminal law, and family lawyers will probably give you a blank look if you ask them about the law governing securities. Good lawyers are good within their fields. Keep that always in mind in choosing a lawyer. Nothing is more important than understanding your lawyer’s limitations. However, some legal matters involve such basic principles of law that any conscientious practitioner should be able to handle them adequately. These include such things as simple wills and straightforward real estate sales. A good rule is that if you find your lawyer to be frank, conscientious, and skilled in one area, take his word for whether he can handle another matter. Good lawyers are aware of their limitations and willing to admit them. (For practical advice on selecting an attorney, see Appendix IV.)

Florida Law by Gerald Keane

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