Legal Articles and News

26Jun 2015

Gay marriage in Florida – legal or not?

Gay law in Florida, Same-sex marriage

With the United States Supreme Court handing down its opinion in Obergefell v. Hodges,1 the citizens of Florida now have a firm answer to the question, “Is gay marriage legal?” The answer is “yes.” Same-sex couples “may exercise the fundamental right to marry in all States.”2 Further, “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”3 Thus, same-sex couples in Florida are guaranteed the right to marry and divorce by the United States Constitution. The provisions of Florida’s Statutes and Constitution, which have been previously discussed (link to prior entries), can no longer be used to prevent same-sex individuals from exercising this right.4 The United States Supreme Court has firmly established that all gay Floridians are entitled to the same benefits of marriage/divorce as heterosexual Floridians. All of Florida’s county clerks are now required to issue marriage licenses to same-sex couples and no Florida court may refuse to grant same-sex spouses a divorce on the basis that Florida law does not recognize same-sex marriages.

The decision in Obergefell v. Hodges is obviously one of great historical and legal importance. With this decision comes a major nationwide change in the status quo and resistance some to this change. While it is anticipated that gay Floridians will no longer have trouble obtaining a marriage license or dissolving their marriages, it is not far-fetched to expect that some government employees/officials unfamiliar with the new law of the land or otherwise personally opposed to same-sex marriage may still hinder same-sex couples from exercising their newly established rights. Additionally, bureaucratic problems may arise from this change in the law. Consequently, gay Floridians should understand that they may still face some unique “bumps in the road” when dealing with matrimonial issues and should consider contacting an attorney if they encounter resistance to the exercise of their rights.

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1. Obergefell v. Hodges, 14-556, 2015 WL 2473451 (U.S. 2015).
2. Id. at *23.
3. Id.
4. The laws which previously prevented same-sex couples from exercising the right to marry and divorce are Art. I, § 27, Fla. Const., § 741.212, Fla. Stat. (2014), and § 741.04(1), Fla. Stat. (2014).

04Jun 2015

Lesbian/ Gay divorce in Florida – update

Same-sex marriage

On May 29, 2015, the Second District Court of Appeal issued another opinion on the matter of same-sex divorce. In Shaw v. Shaw, the Court of Appeal again reversed the decision of trial court refusing to allow a same-sex couple to obtain a divorce.1 In doing so, the Court cited back to its previous opinion in Brandon-Thomas v. Brandon-Thomas, the case discussed in the previous entry on the subject of gay divorce.2 The very short opinion simply followed the Brandon-Thomas case as applied to a different same-sex couple. While Shaw v. Shaw does not set any new precedent, it does strengthen the principles set forth by Brandon-Thomas v. Brandon-Thomas and affirms the right of same-sex couples legally married out-of-state to dissolve their marriages in Florida.

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See Shaw v. Shaw, 2D14-2384, 2015 WL 3439230 (Fla. 2d DCA 2015)
See Brandon-Thomas v. Brandon-Thomas, 40 Fla. L. Weekly D971 (Fla. 2d DCA Apr. 24, 2015)

26May 2015

Do I need a Lawyer to create my Will?

Estate Planning
Do I need a Lawyer to create my Will?

This is a question many people ask before hiring an estate planning lawyer. The short answer to the question is: certainty. Having your will prepared by an experienced estate planning attorney means that you will be certain that your wishes will be carried out.

It is not advisable to prepare a will on your own, because if a will is not properly prepared, your assets will not pass to the people you would prefer. Without a will or with an improperly prepared will, your assets will pass to your “heirs at law.”

Consider the following example:

A 60 year old woman decides she would like to leave her home to her favorite grandson. Like many people, her home is her most valuable asset. However, her self-prepared will either wasn’t prepared properly, she lost the original, or never had a will prepared at all. So instead of the her home passing to her favorite grandson, the property will pass to her “heirs at law.” No big deal, right? Wrong!

In this example, the 60 year old woman had five children, three of whom died before she did. Those three children that predeceased her each had three children of their own. This means that because there was no will or the self-prepared will was inadequate, there are now 11 heirs at law who after a probate proceeding will all be co-owners of her home together. Those 11 people will have to agree to sign a deed to transfer her property to the grandson or to sell the property. If they don’t agree, there are other costly legal proceedings that are required before the property can be sold.

This is but one example of how a lack of estate planning can frustrate your attempts to provide for your loved ones upon your passing. An experienced estate planning lawyer can help you navigate this and other pitfalls that arise in estate planning.

Call or email us today to find out how we can help.

05May 2015

Divorce in Florida for Same-Sex Couples

Same-sex marriage

New Appellate Opinion Clears the Way for Same-Sex Divorce Across the State of Florida

The state of gay divorce in Florida has recently become significantly clearer. As the general public waits for an opinion to be issued by the United States Supreme Court in Obergefell v. Hodges,1 the case which is expected to definitively resolve same-sex marriage issues nationwide this year, the State of Florida now has ruling of statewide application on the narrower issue of whether same-sex couples married out of state are able to dissolve the marriage in Florida. On April 24, 2015, the Second District Court of Appeal of Florida held, in essence, that Florida courts cannot refuse to dissolve the marriage of a same-sex couple who entered into a marriage valid in another state.2 Consequently, most same-sex spouses seeking a divorce may do so in the State of Florida without necessarily pursuing a constitutional challenge.3

Section 741.212 of the Florida Statutes, as previously noted, prevented recognition of out-of-state same-sex marriages and had previously served as a roadblock to same-sex divorces across the state.4 Now, for those couples married out-of-state, this statute cannot serve to prevent them from dissolving their marriages, as applying it in such a manner runs afoul of the Full Faith and Credit Clause of the United States Constitution.5 That is, Florida is generally required to respect the laws and actions of other states and section 741.212 cannot be used to trump the laws of states where same-sex marriages are legal without a legitimate public policy purpose. The Second District Court of Appeal found no such purpose to exist in preventing same-sex divorce.6

Arguably, however, this case does not guarantee that same-sex couples married in the State of Florida will have their marriages recognized for divorce purposes. The Court of Appeal did not strike down section 741.212 in its opinion, but rather precluded its application to out-of-state legal same-sex marriages.7 Though such is likely not an immediate concern for most, considering that same-sex marriages have not occurred in Florida before this year, it leaves an issue that warrants further discussion at a later time.

With the preceding paragraph in mind, the bottom line is that, for now, most married gay Floridians are clear to pursue a divorce under the law. The impending decision by the United States Supreme Court in Obergefell v. Hodges and any future opinions issued by other Florida Courts of Appeal could change the situation (precisely how is a subject for another post), so those Floridians wishing to dissolve their same-sex marriage would do well to consult an experienced family law attorney sooner rather than later.

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1. The United States Supreme Court identifies the consolidated same-sex marriage cases of Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear as Obergefell v. Hodges.

2. The case is Brandon-Thomas v. Brandon-Thomas, 2D14-761, 2015 WL 1874457 (Fla. 2d DCA 2015).

3. Note that this decision is not yet technically final and is subject to revision or withdrawal at the moment. However, revision or withdrawal is a rare occurrence and it will almost certainly become officially binding law in a matter of weeks.

4. See § 741.212, Fla. Stat. (2014).

5. See Brandon-Thomas v. Brandon-Thomas, 2D14-761, 2015 WL 1874457 (Fla. 2d DCA 2015).

6. See id.

7. Floridians still await word from the United States Supreme Court or another Florida appellate court for a decision which entirely invalidates section 741.212 or affirmatively binds courts to entertain same-sex divorce petitions for in-state marriages.

15Apr 2015

How much will my Divorce cost?

Divorce

How much will divorce cost and how long will it take?

Without a doubt, these are the two questions most often asked from individuals curious about instituting a family related lawsuit. It’s completely understandable for these two questions to be at the forefront of one’s mind before undertaking to file for dissolution of marriage.

Unfortunately, the answer is “it depends.” If you’ve ever done a job for someone, you’ll understand. It’s impossible to know how much time and effort will go into a matter before sizing up the case and the client’s budget. However, we will do everything within our power will formulate a successful strategy within your budget.

With that said, a dissolution of marriage (divorce) that has to go to trial, that includes issues involving children, division of assets, and alimony can take as long as or longer than a year to complete. Again, it just depends.

However, we encourage clients to keep in mind the old maxim that you get what you pay for. After all, why hire a cheap lawyer if you won’t get what you want?

With all that said, every action we take is done to effectuate the goals of the client. The client’s goals are paramount to our strategy making and are constantly re-evaluated throughout the representation.

Call Knellinger & Associates today to find out more about how we can approach your problem.

05Jan 2015

Same-sex marriages begin in Florida; ceremonies end in Marion, Baker, Clay & Union Counties

Same-sex marriage

Considerations for Newlywed Same-Sex Couples in Florida

Same-sex couples across the State of Florida will be able to procure marriage licenses on January 6, 2015.  However, couples should understand that gay marriage in Florida is not yet a settled issue.  While this date will certainly be a milestone as well as a day of great joy and celebration for many Floridians, there are some legal considerations which should be given thought by same-sex couples looking to “tie the knot.”  This post will not go into the legal details surrounding the decision of Florida’s clerks to issue marriage licenses to same-sex couples, but will simply outline a few issues for couples to consider this week.

First, it has been announced that clerks in all of Florida’s counties will be issuing marriage licenses to same-sex couples, but several county courthouses are no longer performing ceremonies to solemnize any marriages. Thus, couples will be able to obtain marriage licenses wherever they wish, but some may need to find their own officiants to finalize their marriage rather than depend on their local courthouse to do so. There is no indication that courthouse wedding ceremonies will cease to be performed in Alachua County, but ceremonies have recently become unavailable in the surrounding counties of Baker, Clay, Marion, and Union. Couples who intend to be married at a courthouse should confirm whether their local courthouse is still conducting ceremonies.

Second, couples should be aware that the potential for Florida’s bans on same-sex marriages to be upheld still exists.  Several suits are working their way through both state and federal court systems.  Though the legal momentum certainly seems to be in favor of gay marriage in Florida, a higher Florida or federal court could still decide to uphold Florida’s prohibitions.  Further, certain groups are currently seeking to halt the issuance of licenses.  Consequently, decisions adverse to gay marriage may still be rendered.  Notwithstanding the merits of any position or the probability of success of any given action, same-sex couples wishing to marry in this state should keep such a possibility in mind and be prepared for it.

Finally, those who have already entered into a same-sex marriage in another state or newly wed couples who wish to obtain benefits granted to married couples should apply as any couple would, but keep in mind that there may be resistance to the granting of spousal benefits until higher court opinions on the validity of Florida’s same-sex marriage bans have been issued.  Competent counsel should be consulted by any couple denied marital benefits on the basis of Florida’s same-sex marriage bans.

The impending issuance of marriage licenses to same-sex couples in Florida doubtlessly puts the state’s prohibition of gay marriage on life support.  Additionally, existing gay marriages may be more difficult for any Florida court to refuse to recognize.  However, until final resolution comes from higher courts, same-sex spouses should be aware that the bans are not quite dead yet and understand that they may still have to wait for these issues to resolve through the courts or the legislature.

22Dec 2014

Judge grants first same-sex divorce in Florida

Same-sex marriage

While Florida news outlets are mainly reporting on the ability of gay Floridians to enter into a marriage, there is little discussion on the topic of dissolving one. Obviously, this lack of coverage is due to the issue of gay divorce being one that currently affects a relatively small number of people. However, the inability of Floridians who entered into a same-sex marriage in a state which recognizes the marriage to divorce in Florida is an incredibly frustrating problem for those who face it.

On December 17, 2014 in Broward County, the State of Florida saw its first same-sex divorce. Judge Dale Cohen of the Seventeenth Judicial Circuit of Florida ruled Florida’s ban on recognition of same-sex marriages to be unconstitutional and subsequently granted a petition for the dissolution of a gay marriage. The denizens of Gainesville and its surrounding areas may now be asking: Can any same-sex couple get a divorce in Florida? The answer is “possibly.”

The main roadblock for the dissolution of gay marriages is found within section 741.212(1) of the Florida Statutes. This statute flatly states, “Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.” The Third District Court of Appeal very recently issued an opinion making clear that this statute prevents same-sex couples from engaging in the divorce process when it upheld a lower court’s decision to dismiss the divorce petition of a same-sex couple1. In the words of the Court, “[O]ne cannot dissolve a marriage where there is not a marriage to dissolve.”2

Does this very recent opinion from the Third District settle the issue of whether same-sex couples across Florida can dissolve their marriage? The answer is “certainly not.” The Florida Statutes may presently stand in the way of gay divorce, but the question of whether section 741.212 passes constitutional muster remains unresolved. In this very same opinion, the Third District Court of Appeal notes, “This case is not about the constitutionality or merits of same-sex marriage.”3 Hence, while at the present time it is clear that the Florida Statutes prohibit gay divorce, the statutes doing so have been already been held unconstitutional by two circuit courts, including the aforementioned Broward court, and one federal district court in Florida.

The existing Florida judicial decisions concerning section 741.212 do not clearly allow for the dissolution of gay marriages in Alachua County or its surrounding counties. Until the validity of 741.212 is decided by a Florida Court of Appeal or the United States Supreme Court, such a question is yet to be answered definitively and a local Florida judge may decide to deny a petition for gay divorce based upon this statute. Conversely, a local judge may find the existing decisions on the issue of gay divorce to be very persuasive, follow what appears to be a strong trend towards the recognition of same-sex marriages, find 741.212 to be unconstitutional, and grant a same-sex divorce. Consequently, a married same-sex couple who wishes to divorce will likely need to find a good lawyer to petition the local court and argue the constitutional validity of the Florida Statutes.

The state of gay divorce in Florida may not be crystal clear at present, but gay Floridians should also consider the possibility of annulling the marriage if they want to end it without engaging in a constitutional challenge to Florida law. Those in a same-sex marriage may avoid being trapped in an unhappy marriage while higher courts take their time deliberating over existing cases. While a court will not decide issues of alimony and equitable distribution if a marriage is annulled, it is a possible option for those who simply “want out” of their same-sex marriage.

The bottom line is that while same-sex divorces seem to be a legal inevitability, they are not currently guaranteed to be granted by a local court. However, it appears to be a strong possibility that a court will grant a gay divorce. If you personally wish to dissolve or annul your same-sex marriage in Florida, a competent lawyer should assist you in the process. Considering the unique legal complexities dissolving a gay marriage may present, one would be wise to consult with counsel if he or she wishes to pursue such an undertaking.

1 Oliver v. Stufflebeam, 3D12-2159, 2014 WL 7331241 (Fla. 3d DCA 2014).
2 Id.
3 Id.

16Jun 2014

Connect with the Green Consumer

Starting a Business

With recent concern about issues such as global warming, energy efficiency and GMO’s, it seems the “green” industry has taken off. This new demand for organic and eco-friendly products and services creates a great opportunity for environmentally conscious entrepreneurs who want to start their own business.

Recent surveys have shown that over 70% of consumers purchase green products and services. Many already established businesses have started to market “all natural” or eco-friendly products to keep up with this increasing trend. Consumers have an environmentally friendly option in nearly every item and service they pay for including cosmetics, cleaners, food, pet products and services and even child care. The good news for business owners is that most consumers are also willing to pay more for these products.

Businesses are able to save money and help the environment by using eco-friendly production processes. DuPont Chemical Company reduced their greenhouse gas emissions and saved $2.2 billion in energy efficiency. Walmart announced that they will cut total carbon emissions by 20m metric tons by 2015 as a part of their plan to double revenue. Other companies including Toyota, Sainsbury’s, Tesco, Unilever, Marks & Spencer and General Electric are also making efforts to become more eco-friendly and are seeing profits as a result. There are many ways for businesses to contribute to the environment and save money on production and maintenance costs including switching to post-consumer waste, using compact-fluorescent or LED lights, and using alternative energy sources such as wind or solar power.

Successful green businesses use their eco-friendly techniques as a way to market their product and also to benefit the planet and encourage others to do the same. Whether you are passionate about the environment or just looking for a sustainable way to maintain and market your company in today’s industry, going green is a great option. If you are thinking of starting a business let the knowledgeable and experienced attorneys at the Knellinger & Associates help you through the process.

15Aug 2013

Technology Eliminates Ticket Lines

Business

Our days of waiting in line for tickets may soon be over. For several years now, airlines, movie theaters, and other industries have been successful in utilizing a ticketing system that includes online check-ins and at-home ticket printing, and theme parks may be the next to jump on board.
Installation of a no-line ticketing process for amusement parks has been attempted before by Cygnus, a company that possessed successful software, but poor management. Cygnus’ internal issues caused a decrease in customer satisfaction and financial strains that nearly caused the company to fail.

Despite Cygnus’ downfalls, Steve Brown took on the role of CEO for the company in 2007. Brown had previously acquired extensive experience in the theme park industry while serving as vice president of ticket strategy and sales for Six Flags and also working for Disney for 16 years. Seeing an opportunity in fine-tuning the no-line concept, Brown completely reorganized the company, renamed it “Accesso”, and turned the business around.

Along with internal alterations, Brown also changed the way in which the no-line concept would be implemented and utilized by his customers. Previously, Cygnus would sell a software program to the theme park that had to be installed on the park’s servers and overseen by their own staff. Alternatively, Accesso’s technology involves storage of its applications on a remotely hosted server, or “cloud”, that can be accessed through the internet.

This change in structure allows the client, the theme park that is supplying the easy-ticket service, to bear less of the burden that is associated with the software, and Accesso can now better satisfy its customers. A second upgrade that Brown has employed is the availability of Accesso’s services via iPhone and Android apps, which allows park visitors to simply purchase a ticket with their smartphone and scan the actual phone at the park entrance. This has eliminated the additional step of printing an online-bought ticket at home, and ticket purchasers will no longer have to worry about potentially forgetting to bring their ticket with them.

This modernized service is not only useful for large parks such as Disney or Sea World, but local zoos and other small venues can efficiently offer this ticketing system, as well.

Steve Brown used his knowledge of theme park ticketing trends and his innovative ideas to successfully turn around a business that was on the brink of failure. If you are interested in restructuring your business or starting a new one, our business attorneys at the Law Office of Knellinger & Associates can help you with everything from choosing the best corporate structure for your business to drafting contracts. Our office can also assist you with protecting your intellectual property if you have created a new product or have an idea for a new product. Call us today to schedule an appointment and let our Gainesville business lawyers help with your business.

30Jul 2013

Local Support for Start-Ups – Gainesville, Florida

Starting a Business

Gainesville’s rapid growth rates in both population and business ventures have led the city to indulge in support projects such as Start Up Downtown, a unique gathering that was recently hosted in the downtown area. The event was held on the evening of Thursday, July 19th, on the second floor of Union Street Station and it attracted nearly 300 Gainesville job-seekers. Over a dozen Gainesville start-ups that are currently hiring were featured at the event, which was sponsored by FloridaWorks, the Gainesville Area Chamber of Commerce, and Innovation Gainesville.

Gainesville’s start-up community is also growing, and this event showcased that. Many residents of Gainesville are not aware of how significant the local start-up industry is, and Start Up Gainesville allowed the participating companies not only to network and advertise their brand, but to expand their businesses by meeting potential new employees that could help foster new ideas.

Some of the start-ups that were on display included SwampMobile, Mobiquity, the well-known music-streaming service Grooveshark, and local karaoke service Stage 7. Also present was Gainesville HackerHouse resident, Eric Pheterson, who displayed his high-tech, custom pet feeder. HackerHouse is another Gainesville based program that allows young, innovative entrepreneurs to live under one roof, rent free, for an allotted period of time to work on developing their unique creations with the potential to achieve outstanding rewards for their work.

One common goal of programs that encourage the local start-up community is that they aim to, “Keep the talent here in Gainesville.” Many of the individuals who obtain their college education in Gainesville leave the city after graduation, taking their innovative ideas with them.

Starting a new company or brand can be an intimidating venture. The guidance of a knowledgeable business attorney can be invaluable to you during the process. From choosing the right corporate structure for your business, to drafting and negotiating contracts, our attorneys at the Knellinger & Associates can help. Call us today to schedule an appointment with one of our lawyers to find out more about how we can help you start your business.

The Law Office of Knellinger & 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