Legal Articles and News

29Jun 2017

Board Certified Family Law Attorney Gainesville, FLorida

The law firm of Knellinger, Jacobson & Associates is pleased to announce that Justin D. Jacobson, a shareholder of the firm who has been practicing with us since 2008, recently attained Board Certification in Marital and Family Law from the Florida Bar. Board Certification is the Florida Bar’s highest level of evaluation of the competency and experience of an attorney and there are 24 areas of law approved for such certification by the Supreme Court of Florida. There are only 277 attorneys in Florida who are Board Certified in Marital and Family Law and considered by the Florida Bar to be experts specializing in that area of practice.

19Nov 2016

Prenuptial Agreement Attorney Gainesville, Florida

Marriage

A marriage is one of the most memorable days in a person’s life. Couples generally plan for months in advance and invite their closest of friends and relatives to share this momentous day together.

As part of the planning process, couples should discuss the legal and financial effects of making this life-long commitment. Oftentimes, couples fail to plan in advance for some important aspects related to the legal consequences of marriage. This is likely due in large part to the fact that it may be tough to get past the butterflies and excitement to consider planning for the future financially, but it may be something that could be necessary and in one’s best interest.

Prenuptial Agreement

A prenuptial agreement is a contract between two people who intend to marry. It typically covers a variety of financially related topics and sets forth the right, if any, that each party has to the other’s property in the event of a divorce or death. It is very important that a party seeking a prenuptial agreement provides an attorney with all relevant information relating to financial assets and debts and with his or her goals for the development of the prenuptial agreement. A prenuptial agreement is effective upon marriage and any subsequent changes to the agreement can only be made when both parties agree in writing to a postnuptial agreement.

Over the years, there has been some uncertainty in Florida as to the effect of mistakenly omitting certain prenuptial clauses and whether broadly drafted prenuptial agreements would actually make such omissions immaterial.

The Florida Supreme Court’s Decision

In Hahamovitch v. Hahamovitch, 133 So. 3d 1008 (Fla. 4th DCA 2014), a husband and wife divorced after 22 years of marriage.1 Prior to their marriage, the couple signed a broadly drafted prenuptial agreement that protected the husband’s property prior to marriage and any property owned solely by one of the spouses during marriage.2 In a divorce proceeding, property purchased prior to and during the marriage is generally subject to 50-50 equitable distribution, unless subject to some agreement.

The Hahamovitch’s prenuptial agreement failed to address whether the increased value of assets solely owned by one spouse prior to the marriage should be considered marital property for the purposes of distribution.3 Prior to this case, there was conflict among different district courts about whether such an omission acted as a waiver of rights.4

In 2015, the Florida Supreme Court accepted review of the Hahamovitch case to resolve the conflicting decisions by district courts. The issue revolved around whether a broadly drafted prenuptial agreement that omitted certain provisions such as a spouse’s claim to the other spouse’s earnings, assets acquired with those earnings, and the enhanced value of the other spouse’s property resulting from marital labor or funds, would waive a spouse’s right to seek equitable distribution.5

The Court held that when a prenuptial agreement includes such broad provisions but does not specifically waive a spouse’s claims to marital property, the prenuptial agreement’s actual language that expressly includes all of the property solely owned by one spouse does waive the other spouse’s right to such property.6

In the Hahamovitch case, the well-drafted prenuptial agreement protected the husband from a windfall of benefits for his wife. This exemplifies the value of a seasoned family law attorney to draft a prenuptial agreement. It is very important that a family law attorney has experience in drafting complex prenuptial agreements and in determining the current and future needs of a client. An attorney without such experience may leave out important clauses that may detrimentally affect a client in the long run.

Contact Prenuptial Agreement Attorney

The experienced family law attorneys at The Law Office of Knellinger, Jacobson & Associates in Gainesville, Florida can assist you with preparing this agreement in the most efficient and beneficial way possible. We have over 40 years of experience dealing with family law matters.

1Hahamovitch v. Hahamovitch, 133 So. 3d 1008 (Fla. 4th DCA 2014).
1Id. at 1012.
1Id. at 1013.
1See Irwin v. Irwin, 857 So. 2d 247 (Fla. 2d DCA 2003); Valdes v. Valdes, 894 So. 2d 264 (Fla. 3d DCA 2004).
1Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015).
1Id. at 987.


Knellinger, Jacobson & Associates | 2815 NW 13th Street #305 | Gainesville, FL 32609 | (352) 373-3334

05Nov 2016
Attorney Richard Knellinger Gainesville FL

Attorney Richard Knellinger attending the United States Supreme Court reception

Mr. Knellinger attended the United States Supreme Court reception for the American Inns of Court in November 2016 on behalf of the Gerald T. Bennett Inn of Court in Gainesville, Florida associated with the Levin College of Law. The Inn has met the highest Platinum status for its performance for several years in a row.

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16Oct 2016

Florida Federal Court attorneys Gainesville, FL

What is jurisdiction?

Before you bring a lawsuit before any court, whether it be a Florida state court or a United States federal court, the court has to have jurisdiction over the issues of your case. Jurisdiction is the power of a court to make a decision concerning your case and to issue orders that the parties to the case must follow.

Florida state courts have general jurisdiction, and may hear a wide variety of cases from landlord-tenant disputes to family law cases. Florida state courts will have jurisdiction over cases where the actions that gave rise to the case occurred in Florida, the property that is the subject of the case is located in Florida, or one of the parties directed actions, such as a business venture, to occur in the state of Florida.

In addition to state courts, all states also have Federal District Courts where parties can brings cases over which the Federal court has jurisdiction. Cases brought in Federal District Courts can be appealed to the United States Circuit Courts, which may be then appealed to the United States Supreme Court.

What kinds of cases can come before Federal Courts?

There are different ways Federal Courts can have jurisdiction over a case based on the subject matter of the issues of the case. This is called “Federal Subject Matter Jurisdiction.” While state courts have subject matter jurisdiction to hear cases to probate a will, for example, Federal Courts have been provided jurisdiction over certain topics set forth in the Constitution of the United States.

Federal Courts have exclusive subject matter jurisdiction, as provided by the Constitution of the United States, over the following subjects:

  • Patent, trademark, and copyright infringement;
  • Admiralty and other cases regarding the law of the open seas;
  • Military lawsuits;
  • Cases involving immigration;
  • Criminal cases involving violations of Federal Laws; and
  • Bankruptcy.

There are additional ways to have your case heard by a Federal Court.

Federal Question Jurisdiction

If your case involves issues that touch on the Constitution or other federal laws, your case can be brought in Federal Court under Federal question jurisdiction. For example, a dispute between a landlord and a tenant would normally fall under state law; however, if the tenant alleges that she was being discriminated on the basis of race, it would be appropriate to bring those claims in a Federal Court for a violation of the Fair Housing Act, a Federal law. All cases alleging the violation of a person’s civil rights or other constitutional rights fall under “Federal Question Jurisdiction.”

Other federal laws that would trigger federal question jurisdiction are environmental laws such as the Clean Water Act, the Clean Air Act, and other acts regulating the transportation or pollution of hazardous materials.

Diversity Jurisdiction

Federal law also authorizes federal courts to hear cases where the opposing parties reside in two different states. This is called diversity jurisdiction, and it provides a fair forum for citizens of two different states to have their cases heard. Additionally, for a case to be brought under federal diversity jurisdiction, the amount in controversy must for $75,000 or more before the federal court can hear the case.

Supplemental Jurisdiction

A federal court can hear a claim that would normally come under the jurisdiction of a state court if it is related to claim already before the federal court. If the federal court has jurisdiction because of federal question jurisdiction or diversity jurisdiction, the court has the discretion to hear claims related to the same course of events for that case, even though those claims would not normally be heard by a federal court.

An attorney at The Law Office of Knellinger, Jacobson & Associates in Gainesville, Florida is licensed to represent you in federal courts, and can advise you on whether your case may be properly brought in the appropriate federal court, and is licensed to represent you in federal courts.


Knellinger, Jacobson & Associates | 2815 NW 13th Street #305 | Gainesville, FL 32609 | (352) 373-3334

28Sep 2016

Probate attorney in Gainesville, FL explains.

1. Look for an original Last Will and Testament, and if one is found, put it on deposit with the Clerk of Court in the county where the loved one was a resident;

2. Record a short form (no cause) death certificate in each county in Florida where your loved one owned real estate. If your loved one died in another state but owned real estate in Florida, then the same information applies; however, the out of state death certificate will likely include cause of death. That is okay, because the recording clerk in Florida will redact (block out) the cause of death when recording the death certificate. This puts the death certificate into the “chain of title” and alerts the property appraiser and any potential buyers someday that the property may be “heirs property” waiting to be taken through the probate process to be transferred to the heirs or may be owned by the surviving spouse or other joint owner whose name appears on a deed with the loved one.

3. Identify whether the loved one had “POD” or “payable on death” beneficiary designations on bank accounts or investment accounts, and if so, present a death certificate to the bank or broker to take ownership of the account without a court proceeding.

4. Identify whether there is life insurance or a retirement account with a beneficiary designation, and if you are the beneficiary, then request the claim forms for claiming the death benefit or to receive the retirement account. You should seek the advice of an attorney or certified public accountant if you have any questions about how to best plan for receipt of an inherited retirement account, as there are different options all with different income tax consequences.

5. Make an appointment with a probate attorney to review the assets (property) and liabilities (debts and mortgages) of the loved one to determine whether a probate proceeding will be required to notify creditors and transfer property to the heirs (if there is no will) or to the devisees or named beneficiaries (if there is a will). Probate is required any time there is property in a deceased person’s individual name and there is no death beneficiary. Essentially the real property or bank account or other account will be stuck or frozen until an estate is opened and court orders are entered by a judge to transfer the property to the heirs or devisees. There are several different types of probate depending on the size of the estate. Formal administration is for larger estates and involves appointment of a personal representative or executor. Summary administration is available for smaller estates and does not involve appointment of a personal representative.

The attorneys at Knellinger, Jacobson & Associates are available to talk with you about the death of your loved one and help determine if a probate estate is required. We can help you with any of the steps to take care of the loved one’s legal affairs whether a probate estate is required or not.


Knellinger, Jacobson & Associates | 2815 NW 13th Street #305 | Gainesville, FL 32609 | (352) 373-3334

23Aug 2016

Attorney Fees – Flat Fee vs. Hourly Rate

Question from potential client:

Dear Mr. Knellinger,

How much would it cost someone to setup a new LLC or Corporation, including drafting an operating agreement, buy/sell agreements or bylaws, etc.? Additionally, what is the charge for handling contract review, handling employment matters, including, without limitation, hiring, firing, FLSA (Fair Labor Standards Act), exempt v. non-exempt, overtime, and others.

Attorney Response:

Thank you for your inquiry. I have no flat fees for the tasks you mention because quoting them may be unfair to the potential client when complicating factors arise, as they frequently do. If a potential client is knowledgeable and experienced in business matters, they are able to explain to me the nuances of the situation which they know may impact the work that I do and the expense associated with it. I can usually provide a pretty close estimate of fees and costs in that situation. If a potential client is not familiar with the options available to her or the consequences of some “minor” fact which she may have omitted in our initial conversation, she might feel that the attorney should have anticipated that minor fact and feel that she has been taken advantage of when she is charged to address the omission. The easiest example is the most common. A flat fee is quoted for an LLC and then the attorney discovers that there are other members who thought they were lenders or vice versa. The operating agreement will be greatly complicated as a result of buy/sell, and other exit scenarios. Negotiating an operating agreement may be easy or very complicated depending on a variety of factors that the parties may not have even considered.

We offer our clients questionnaires which are designed to uncover undiscussed or undisclosed issues. Sometimes when those issues are openly discussed, the parties are not willing to go forward with the venture. For example, when I ask what each party expects of the other party in terms of money, time, and effort, frequently their expectations of each other do not match their own expectations for themselves. Another example is three persons join to form an LLC. One brings money, the other experience in the industry, and the third the labor for day to day operations. When do their interests vest? The money person wants immediate vesting when she puts in her money. The experienced person and the day-to-day person are going to be providing their experience and labor over time. Should they get equal shares immediately or should it vest as they provide the consideration they promised? Most frequently, they have come to the table expecting equal shares immediately. That discussion could change the result.

I hope that this helps you to understand why I feel that flat fees are misleading. Flat fees tend to result in the tendency and economic reality that an attorney will not ask the difficult questions because resolving them will require much more time than the flat fee will accommodate. For example, I noticed on a web site recently an attorney here in Gainesville advertising a flat fee for a prenuptial agreement for $175.00. If one understands the complicated and integrated issues that must be analyzed and addressed in such an agreement, such a flat fee is utterly ridiculous unless you consider your time worth a cent per hour. I am sure that the client could walk out with a document titled “Prenuptial Agreement”, but I am equally sure the client has been grossly short changed. If potential clients depend on the lowest common denominator in advertised legal fees, they can expect the lowest common denominator in the result as well.

I think the best course of action is to hire the attorney for a first conference at their hourly rate and exchange information, goals, and options and costs for achieving them. The client can then make an informed decision about how to go forward or whether to do so at all.

I have clients that I have continuously represented for decades even though there are attorneys that advertise much lower hourly rates. I trust that their good judgment and my fair services to them are the reason they remain. Best wishes to you in your endeavor.

Rick Knellinger
Attorney at Law


Knellinger, Jacobson & Associates | 2815 NW 13th Street #305 | Gainesville, FL 32609 | (352) 373-3334

17Jul 2016

Buying an Existing Business: Part 2
This article will address what a purchaser should consider before purchasing an existing business. Part 1 of this article addressed why a person should consider buying an existing business. Part 3 will address the legal impact of buying an existing business.

What to consider when purchasing an existing business?

Buying an existing business is a major commitment and investment. It is not something that an individual should take lightly, even if the existing business appears on its face to be profitable. Indeed, an individual must be cautious about purchasing an existing business and conduct extensive due diligence before buying the company, firm, or business. Below is a list of some questions, but not all, that a potential buyer should consider before any purchase occurs.

What is your skill set?

  • Many new business owners that purchase existing businesses may actually do it for the wrong reason. Although the existing business may be profitable at the time of purchase, it will still require strong leadership and organizational skills to keep the business afloat. The prior owner laid the foundation for success, but it will be the new owner’s task to remain profitable. You must realize certain businesses require a business owner to possess certain skills.
    • For instance, if you purchase a catering business, you must understand it will require some culinary skills and to work irregular and long hours in preparing the food for an event. A catering business owner also manages staff and works directly with its customers.
    • Another example is a person who buys a pool maintenance company. It will likely already have existing customers and therefore the business owner must possess the skill set to actually maintain and clean customer pools from day one. A business owner must understand what chemicals and equipment are necessary to complete these tasks.

    What are your interests?

  • A potential business owner should realize that becoming a business owner is a major responsibility. Some businesses require long and irregular hours and thus a potential buyer must think hard about what specific jobs would interest them on a day-to-day basis. Although a business may be profitable to start, a new owner must maintain the same level of customer satisfaction and standards set by the previous owner. If you are not passionate about the type of work, the business may falter as a result.
  • Why is the existing business on the market?

  • This may seem like an irrelevant question, but it is actually one of the most important inquiries one must make. This question too often gets overlooked after a potential purchaser reviews a business’s positive revenue and profit streams. A purchaser must step back from the purchasing process and realize the person selling the business may or may not be doing it for personal reasons, such as retirement. For example, the market may have become more competitive than in previous years and it may make sense for the owner to get out before the market becomes saturated. Whatever the owner’s reason may be, it is in your best interest to determine why the business is being sold. You must not take a seller’s reason at face value.
  • How do you determine the right price?

  • This process requires expertise. A potential purchaser must realize that the seller wants to get the highest price for the business. An experienced business law attorney can help you with the process of analyzing the purchase of an existing business, perhaps in concert with a qualified business appraiser and a certified public accountant. The CPA would inspect the financial records of the company and report to the appraiser figures on which the appraiser would rely in formulating the fair market value and, perhaps, the purchase price. Further, that lawyer can help you negotiate and contract for the best price for the business. There are numerous market factors that go into a proper purchase price and you want to make sure you get the best possible deal to start your ownership on the right foot. Further, an attorney can provide you with sound and independent counsel and will not hesitate to advise you that a deal is bad.
  • How are you going to finance the business?

  • An existing business unlike a new business may have a higher upfront purchase price. However, financing the purchase of an existing business is generally easier because of its track record of previous success. It is important to understand the legal consequences of your financing options. Unfortunately, many business owners enter unfavorable agreements because they are in a hurry to buy a business. It is important that you determine the best financing route for your personal situation. A competent business law attorney can provide you with guidance and information about your financial options.

In sum, a purchaser must do his or her due diligence before purchasing an existing business entity. A purchaser must also understand the legal ramifications of purchasing the business (see part 3). Throughout this process it is important that you consult an experienced business law attorney to help you each step of the way. The Office of Knellinger, Jacobson & Associates can help you with this process. We have been serving business owners in North Central Florida and the Gainesville community for over 40 years.


Knellinger, Jacobson & Associates | 2815 NW 13th Street #305 | Gainesville, FL 32609 | (352) 373-3334

21Jun 2016

Buying an Existing Business: Part 1
Part 1 of this article will address why a person should consider buying an existing business. Part 2 of this article will address what a purchaser should consider when buying an existing business and Part 3 will address the legal impact of buying an existing business.

Why consider buying an existing business?

Many people dream about owning their own business and becoming their own boss. Many people believe that their dream is only possible through a start-up business. While establishing a new business or company is an option, it may actually be more risky than purchasing an established business that is for sale. Why not purchase a business with a proven concept, existing sales, and an established customer base?

Many of the pitfalls entrepreneurs and new business owners are challenged with relate to the finances of their businesses. In fact, 50% of businesses fail within the first 5 years.1 Of course, a business owner that has a well-planned business can be very successful. Our community, Gainesville and North Central Florida, have many examples of successful small business ventures.

Moreover, you may have a great idea or concept, but the upfront costs of actually starting the business may be too prohibitive. For instance, you will want to protect your new business from liability and therefore you will need to hire a competent business law attorney to establish your business as a LLC or other business entity. Further, you may have the upfront expense of purchasing inventory or equipment for the business. Before you know it, the business is in debt before it even earns any revenue.

Sometimes purchasing an existing business may be the most sensible solution. It also may be less risky, but this is not always the case. Of course, the market dictates what, if any, opportunities actually exist. An established business may provide the following benefits:

Goodwill (loyal customers, quality product offering)
Established profit and revenue streams
Necessary equipment (prior owner has already purchased)
Known brand
Property (owned or favorable lease terms)
Location
Permits and licenses (i.e., liquor and/or food license)
Training (generally, the prior owner will provide on-site training)

A new owner of a business can still make major changes to the existing business. For example, you may buy a pizza restaurant that is centrally located, established, and has strong sales, but only offers pizza. You may decide to increase its offerings, to say, calzones and subs, in order to increase the business’s profitability and its customer base. Alternatively, you may update a tired logo by trademarking a new one.

Ultimately, a purchaser must still do his or her due diligence before purchasing any business (see Part 2). This includes determining why the business is for sale in the first place. Is a business owner selling his family-owned seafood restaurant because Red Lobster has moved in across the street or is the business owner retiring? Furthermore, an existing business likely has a more costly price tag. However, financing the purchase of an existing business is generally easier because of its track record of success. Whether you are considering buying an existing business or starting a new one, the Office of Knellinger, Jacobson & Associates can help you with this process.

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1. U.S. Small Business Administration, Small Business Facts Advocacy, available at https://www.sba.gov/sites/default/files/Business-Survival.pdf.

Knellinger, Jacobson & Associates | 2815 NW 13th Street #305 | Gainesville, FL 32609 | (352) 373-3334

20May 2016

Common Questions about Independent Contractors

Many businesses that contract with individuals or businesses for goods or services are unaware of the potential liability that may arise under the contract. Under certain circumstances, the individual or business rendering goods or services to a business may actually be classified under Florida law as an employee, not an independent contractor, which may lead to a windfall of liability for the business when something goes wrong. It is important for a business to work with a competent business law attorney to ensure that it limits its liability when hiring contractors to perform any task.

What does it mean to be an independent contractor?

An independent contractor is not an employee of a business although at times it may appear that way. Rather, an independent contractor is hired by a business to provide goods or services.1 The goods or services are provided according to the terms of the contractor’s agreement with a business.2

Is an independent contractor self-employed?

Yes, an independent contractor is self-employed.3 Generally, a business owner or contractor who provides services to other businesses are considered self-employed.4

What are the benefits of using an independent contractor?

Generally, an employer is liable for any action taken by an employee if such action occurs within the scope of that employee’s employment. By contrast, an employer is generally not liable for the actions of an independent contractor.

It is in a business’s best interest to consult with a business law attorney before hiring a contractor for any major task. Although the contract on its face may deem an individual or business an independent contractor, an employer can still take certain actions before and after hiring an independent contractor that can actually nullify the contract’s effect.

What does Florida law look for when determining the status of a contractor?

Florida courts apply numerous factors to determine whether the individual or business is an independent contractor or employee. Most of these factors revolve around whether the employer had some type of control over the contractor and whether the contractor exhibited a substantial degree of independence.

Why is it important to consult with a business law attorney?

No two cases are alike and courts will determine liability on a case by case basis. It is imperative that a business owner takes preventative measures in both the screening and hiring process. For example, certain steps must be taken to ensure that the contractor a business hires is duly qualified. Further, the contract between a business and a contractor must be fashioned in a way as to limit the business’s liability. Lastly, an employer must not take certain actions while an independent contractor is performing.

The Law Office of Knellinger, Jacobson & Associates understands the needs of business owners in North Central Florida. We have helped business owners for over 40 years protect their businesses from liability. We are knowledgeable about agreements with contractors and we are here to assist your business with this process.

____________________
1. Communications Workers of America, My Employer Says I am an Independent Contractor. What Does This Mean?, http://www.cwa-union.org/pages/my_employer_says_i_am_an_independent_contractor.what_does_this_mean (last visited Dec. 23, 2015).
2. Id.
3. Internal Revenue Service, Independent Contractor Defined, https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Defined (last updated Aug. 5, 2015).
4. Internal Revenue Service, Independent Contractor (Self-Employed) or Employee, https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee (last updated Aug. 5, 2015).





17Nov 2015
If you are going through a dissolution of marriage and you have a minor child from your marriage, you will be required to submit your proposed parenting plan to the court.

Parenting plans govern parental responsibility for your child, a time-sharing schedule, and other matters such as your child’s education, extracurricular activities, and communication with each parent.

The court will establish a parenting plan for you if you and your spouse are unable to reach an agreement or if you and your spouse’s agreement is not in the best interests of your minor child. This may lead to an unfavorable result for both you and your spouse. Thus, it is generally in the best interest of each party to have a competent family law attorney negotiate a parenting plan that is best for everyone.

More on this topic on our Time-sharing & Parenting Plans page

The Law Office of Knellinger, Jacobson & Associates provides legal advice and representation for individuals, entrepreneurs, and business owners in Gainesville, Florida, and communities throughout north central Florida, including cities such as Ocala, Starke, Palatka, Lake City, Middleburg, Trenton, Bronson, Lake Butler, Cross City, Williston, Chiefland, Alachua, Jasper, Live Oak, and Jacksonville, Florida.

Alachua County ● Putnam County ● Clay County ● Bradford County ● Union County ● Columbia County ● Gilchrist County ● Levy County ● Marion County ● Hamilton County ● St. Johns County ● Dixie County