Articles & Answers

We know that the law can be confusing, so we’ve put together some answers to questions we get a lot. If you don’t see an answer to your question here, we encourage you to contact the firm. We’d be delighted to help in any way we can.

Articles

Answers

• Is a Cuban marriage recognized in the United States?

  • Q: Shortly after my American daughter married a Cuban national in Cuba, she learned he had a pregnant Cuban girlfriend. She returned to the States and has not seen him in several years. She would like to legally sever ties through a divorce, but cannot afford a lawyer. Is their marriage considered legal in the United States? If so, is there a simple, inexpensive way to have it annulled? – G.R. from Orange County, FLA: A marriage legally performed in a foreign state is considered valid in the United States unless the marriage would break a U.S. law. If your daughter’s marriage met all the legal requirements of Cuba, it’s likely the marriage is valid in the United States. In Florida, there are only very limited grounds for an annulment, and the basis for the annulment must exist at the time of the wedding. Your daughter should at least seek a consultation with an attorney to see if any of the grounds would apply in her circumstances. If your daughter is not eligible for an annulment and wants a divorce, she is not required to obtain an attorney. The approved legal forms for a divorce are available at your local courthouse.

• Do we need to make a new will when owning property in two states?

  • Q: We have a voting residence in Florida and live here for at least six months out of the year. We own residential property in both New Jersey and Florida. We had our will done in New Jersey by a New Jersey lawyer back when we were married almost two decades ago. Do we need to make a new will? – J.W. from Casselberry, FLA: You may not need a new will, but you definitely should consult a Florida attorney to see if yours needs to be updated. When the time comes to probate your will, a probate may be necessary in both New Jersey and in Florida.Generally, a will that is validly executed in another state is valid in Florida. However, there are specific exceptions. For example, if you subsequently had children and did not include them in your will, your children would have certain rights under Florida law. If you had children and then amended the will by adding a codicil, the children may be excluded from the estate entirely. Florida law also provides its own detailed guidelines for how homesteads are bequeathed.

• How Does a Birth Certificate Expire?

  • Q: I was born in Apopka 70 years ago at a private residence instead of a hospital. I still have my original birth certificate, which was registered with Florida’s Vital Statistics Records. When applying for a passport recently, I was told my birth certificate had expired and I had to order a new one from the state. There is no expiration date printed on my certificate. How (and why) does a birth certificate expire? – R.A. from Altamonte Springs, FLA: Florida birth certificates do not expire. However, the U.S. Passport Office requires that if you use a birth certificate as your primary proof of citizenship, it must be a certified birth certificate with a seal and signature. It also must have been originally filed with the state’s Office of Vital Statistics within one year of your birth.Because you were born at a private residence, there may have been a significant delay in filing your birth certificate. It is possible that is what the passport office meant by “expired.”

    In any event, you should visit http://travel.state.gov/passport. There, you can review a lengthy list of alternative hoops through which the U.S. State Department will require you to jump in lieu of presenting a qualifying passport.

• How Can Home Co-Owner Receive Full Exemption?

  • Q: When our granddaughter purchased her home about two years ago, we co-signed so she could get the loan, as she had no credit.It has come to our attention recently that, because our names are on the deed, she did not qualify for the $50,000 exemption on her real estate taxes. How can we get our names off the deed? – G.A. from Minneola, FLA: You may not have to remove your names from the deed for your granddaughter to qualify for the $50,000 exemption. Depending on the type of ownership, when multiple people own a property, but only one of the co-owners lives there, that person can claim a full homestead exemption.

    If you’re still interested in having your names removed, transferring title to property is a simple matter. It requires only the execution of a deed from all of the current owners of the property to the person you would like to be the new owner.

    The consequences of such a title transfer, however, are complex and not to be considered lightly. For example, most home loans require the entire balance to become immediately due and payable to the lender if the ownership of the property changes, unless prior approval is given by the lender. There may also be tax consequences to the title transfer.

• Would my wife be entitled to half of my real estate and disability if we divorced?

  • Q: I had $150,000 in cash when I married in 1995. I used most of that cash to buy two homes — their total worth is now $65,000 — and I have no cash left. Most of my income comes from a monthly government disability check.If I divorce, would my wife be entitled to one of the homes and half of my disability check, even though I paid for the homes and she’s not disabled? – J.C. from Deltona, FLA: In Florida, spouses generally are entitled to an equal division of “marital assets.” Property you own before you get married typically is not a marital asset, while anything you buy during the marriage usually is. However, determining a marital asset can be subjective and is heavily fact-dependent.

    Did your wife contribute to the routine care and maintenance of the home during the marriage? Did she contribute effort or money to home-improvement projects, home insurance or property taxes? Did she take care of your kids? Answers to these and many other questions could convince a court that houses bought with nonmarital money became marital assets over the course of the marriage.

    As to your disability check, it usually is not considered a marital asset. But because your marriage lasted longer than seven years, you could be required to pay alimony depending upon the relative financial situations of you and your wife.

• Can I keep what I find in a hotel safe if it’s not claimed?

  • Q: While staying at a luxury hotel, I looked into the in-room safe and found a valuable ring that had been left behind by a prior occupant.I turned the ring into the front desk to find the owner. If no one claims the ring, do I have a claim? If so, what should I do to enforce my claim? – D.M. from Clermont, FLA: Finders keepers, losers weepers? In your case, you may count yourself among the weepers, as turning the ring over to the hotel probably cuts off your ability to make a claim.

    Ordinarily, finders of lost property can make a claim to keep it if they are willing to jump through the proper procedural hoops. First, however, it is very important to understand that any lost property you find does not belong to you; if you simply keep it, you will have stolen it.

    You may make a claim to keep the lost property only if you turn it over to the police and pay a fee for transportation, storage and publication of a notice in the newspaper. If the rightful owners respond, they have to reimburse you those costs before the property will be returned to them. If no one shows up within 90 days, the lost property is yours to keep.

• What Can Be Done When HOA Banks Don’t Act?

  • Q: I’m a member of a builder-controlled homeowners’ association that is doing nothing to collect the HOA fees, either from owners who have abandoned their homes or the “deadbeat banks” that refuse to foreclose.
    As an affected homeowner, is there anything legally I can do about this? – A.K. from Casselberry, FLA: It is best to think of your relationship with your homeowners’ association as if you, the association and the other owners are all parties to a contract. The governing documents of your HOA constitute that contract, and it is irrelevant whether the HOA is builder-controlled or owner-controlled.Each party’s specific rights and responsibilities are mostly restricted to those specifically provided in the Declaration of Covenants and Restrictions that your HOA is required to file in the Official Records of the county in which you live.

    However, you always have the right to sue the HOA, the officers and directors of the HOA, or an individual homeowner for any failure to perform any duty imposed by the Declaration. You should examine the portions of your Declaration applicable to the collection of HOA fees to see what the responsibilities of the HOA are, what constitutes a violation, and what remedies are provided.

• What Can Happen if You Walk Away From Your Home?

  • Q: In late 2007 my 98-year-old sister became ill, and we had to leave our condo to move near friends who could help me take care of her.I notified the lender, listed the condo with a Realtor, and have continued to pay the mortgage, condo dues and maintenance costs on the unit.There have been no offers, and I’m in financial straits. What would happen legally if I decided to simply walk away? R.N. from Paisley, FL

    A: The condo that you and your sister co-own likely will be foreclosed, although the lender may first contact you to discuss alternatives to a foreclosure, such as a loan modification.

    If no agreement is worked out, the lender could declare the entire balance of the mortgage due and sue you and your sister to recover the owed amounts. And if there’s a foreclosure sale and the condo sells for less than what’s left of your mortgage, you could be liable for the difference.

    You also could face legal trouble from your condo association. It may place a lien on the condo for unpaid assessments and sue to collect that lien.

    These are just some of the potential repercussions to a foreclosure lawsuit, although there are strong legal defenses available. You should contact a Florida attorney to discuss your particular matter.