Areas of Practice

At the Law Offices of Richard E. Gitlen, we handle the following areas of law:

•     Adoption
•     Civil/Commercial Litigation
•     Contracts
•     Criminal Law
•     Family Law
•     Landlord and Tenant
•     Personal Injury

Adoption

My husband and I want to adopt a child. What's the first thing we need to do?

For domestic adoptions other than by step-parent, grandparent, aunt or uncle, the first step is a completion of a home study by a licensed clinical social worker or a licensed private adoption agency. For adoption of a special needs child, contact your local county Department of Children and Family Services Licensing Unit (MAPP Unit). Also, you may want to contact the Florida Adoption Information Center toll free at 800-96-ADOPT or visit www.adoptflorida.org.

I am a foster parent. How can I adopt the child(ren) I foster?

Contact your local adoption unit of the Department of Children and Family Services. However, no adoption of a foster child may occur until a termination of all parental rights of the biological parent(s) has occurred.

Should I adopt or just be a legal guardian?

An adoption means that a termination of biological parental rights have occurred, and you are now the legal parent of the child(ren). With this, you acquire all rights, duties, and responsibilities of a natural parent, including the responsibility to financially support and care for the adopted child(ren). Guardians are appointed by the court, and most often only for a special needs child. Another alternative is temporary custody by an extended family member or the Department of Children and Family Services relative caregiver program.

Do I have to get consent from both biological parents in order to adopt? What if I don't know where one of the parents resides?

Yes, you must get consent from both biological parents in order to adopt. If the whereabouts of one or both parents is unknown, you must demonstrate that a diligent search has been done, unless the child(ren) have been abandoned. It is recommended that you consult with an attorney prior to adoption since this is a highly specialized area of law.

I want to locate my biological parents. How do I and where do I begin?

You may contact the Interstate Compact Office at the State of Florida's Adoption Reunion Registry in Tallahassee (850) 487-2760, or contact the State of Florida Adoption Information Center (800) 96-ADOPT. However, it is critical to understand that adoption records are sealed, as required by law, and gaining access to records of an adoption with an agency that does not participate in the Interstate Compact program is extremely difficult, and will probably require the filing of a motion with the court, although this will not guarantee that permission to unseal the records will be granted.

Can I adopt an adult?

Yes. However, the consent of the adult, and the spouse of that adult (if alive and if the adult and spouse are still married) are required. The parents of the adult to be adopted must also be provided with written notice of the final hearing or served with process. You may find forms and instructions for filing a petition to adopt an adult at www.flcourts.org. Follow the prompts to "Self-Help Center" and then, "Family Law Forms".

I want to adopt a child from another country. Can I do this and how do I begin?

Both the Internet and the local Yellow Pages list an assortment of adoption agencies that work in conjunction with national agencies coordinating international adoption. The process begins with an application submission, home study, and completion of forms required by the United States Immigration and Naturalization Service. The international adoption process takes approximately twelve to eighteen months, although many countries expedite applications when a prospective parent(s) are willing to adopt either older and/or special needs children. You can expect to travel to the country where the adoptive child(ren) resides. Total approximate costs are $15,000-$20,000. It is recommended that you consult with an attorney to support you in the process.

Civil / Commercial Litigation

I want to sue someone. How do I proceed?

There are forms available at most courthouses that you can fill out to file a Small Claims Court action. For all other cases, it is suggested that you consider hiring an attorney to represent you. The Rules of Civil Procedure are very complicated and the Courts do not usually give lenience to people representing themselves outside the Small Claims Court.

I have been served with a lawsuit, what should I do?

If you are served with a lawsuit, you must file a response with the Court within twenty (20) days of the date you are served with the lawsuit, except in some foreclosure proceedings that allow thirty (30) days and some evictions that only allow five (5) days. The amount of days you have to respond are specified on a sheet of paper attached to the lawsuit called a Summons.

What are the different types of Courts?

State matters of a dollar value not exceeding $5,000.00 are heard in a Small Claims Court. Cases valued between $5,001.00 and $15,000.00 are heard in a County Court. Cases valued in excess of $15,000.00 are heard in a Circuit Court. Federal matters and cases that are from different states may be filed in a Federal Court.

I have received a Subpoena for a Deposition and/or request to Produce documents. What does this mean?

Discovery is a broad legal term encompassing several rules of the Civil Procedure and is generally described as the means by which the respective party(ies) can obtain additional information about both their case and the other side's position that is relative to the case.

Discovery consists of several parts. In most matters, they are:

• Production of Documents: This allows the respective party(ies) to learn in advance of trial what documents the other side has that may support or controvert their case.

• Interrogatories: These are questions requiring a sworn written answer that the respective parties can ask each other to learn what the other side is likely to testify to in court.

• Admissions: A Request for Admissions is a procedure used by parties to identify certain facts which may or may not be in dispute.

• Depositions: Depositions are a device whereby the respective parties can ask questions of the opposite party and/or any witness(es) to the case concerning the knowledge they have relative to the case. Please note: Questions regarding financial worth are not allowed in depositions or other discovery procedures until after a judgment has been obtained.

Can I defend myself in Court or should I hire an attorney?

A person may defend him/herself ("Pro Se") in any court. The Small Claims Court is specially designed for individuals who represent themselves, should they so choose. The Rules of Procedures are relaxed in the Small Claims Court. In any other Court other than Small Claims, it is generally difficult to represent oneself because the Rules of Procedure are strictly enforced.

A corporation may represent itself only in Small Claims Court; otherwise, an attorney is required. The failure of a corporation to file a response through an attorney will result in the entry of a default, and subsequently a judgment, against the corporation.

Do I have to go to trial or should I settle out of Court?

Once a person has been served with a lawsuit, a response is required within twenty (20) or thirty (30) days as explained above. A response will usually consist of either a Motion to Dismiss if the attorney does not feel that the other side has properly stated its case, or an Answer.

An Answer is a legal response to a Complaint and may contain Affirmative Defenses, which are legal reasons why the Plaintiff should not obtain the relief sought in the Complaint. After the pleadings are completed, discovery follows.

Discovery usually consists of the elements described in Question 4. After the discovery is completed, one or more parties may move for what is called Summary Judgment.

Summary Judgment is generally defined as a motion whereby a party seeks to have the court end the case based on the premise that, taking all the facts of the case in the light most favorable to the non-moving party, the court must, as a matter of law, find for the party filing the motion. This is a technical legal motion that is frequently filed, but less frequently granted. The reason a Motion for Summary Judgment is often not granted is because there exists an issue of what is called "material fact" which requires resolution at trial. After Summary Judgment, the next step is trial.

A trial can be before either a judge or jury (the parties choose at the beginning of the case). After a trial, if one or more parties are dissatisfied with the result, an appeal can be filed challenging that result.

Contracts

I want to enter into a contract. Are there certain elements it must have?

In order for a contact to be enforceable, it must contain certain elements. Generally, each side to the contract must agree to do something, such as a service, or make a payment. Further, there must be a value, called consideration, to each side's performance of the contract. If someone enters into a contract to do something they are already obligated to do, then they are not giving anything of benefit and therefore there is no contract.

I entered a verbal contract. Is it enforceable?

Yes, with certain exceptions. Unless a verbal contract is witnessed by someone other than the parties making the contract, it is often diffcult to prove the existence of the contract in a lawsuit in court because it is one person's word against the other. Generally, you will be better protected if you put your contract in writing.

Additionally, the following types of agreements (contracts), in order to be enforceable, must be either in writing or be able to be performed within 1 year:

• A specail promise to pay for the debt of another person;

• An agreement made on consideration of marriage;

• A contract for the sale of lands;

• A guaranty, warranty or assurance of any health care provider as to the results of a medical, surgical, or diagnostic procedure performed by a licensed healthcare provider;

• No person is liable to pay for any newspaper or periodical unless the person subscribes or orders same in writing.

I have an employment contract with a Non-Compete Agreement. Can I break the Non-Compete Agreement without getting in trouble?

Generally, you cannot. Non-Compete Agreements are contracts just like any other contract. The exception is that there is a statute in Florida that places limits on the length and geographic coverage of Non-Compete Agreements. If the Non-Compete Agreement violates the Florida law, you may be entitled to either break or have the Agreement modified. You should contact an attorney for further information regarding Non-Compete Agreements.

I have a written contract, and the other party did not hold up to its part. What can I do?

You can write a letter to the other party requesting that he/she honor the contract. If that fails, you can file a lawsuit to enforce the contract. Please see the "Civil/Commercial Litigation" section as to how to file a lawsuit.

My employer wants me to sign a contract. Can someone review it for me?

Yes. Further, it is a very good idea to have an employment contract, or any contract, reviewed by an attorney prior to you signing the agreement.

Criminal Law

I have been arrested. What should I do?

Say nothing. Ask for an attorney to be present for any questioning. Speak to a family member to arrange bond so that you can get out of jail, if necessary. Do not speak to anyone about the case except for your attorney.

There is a warrant for my arrest. Should I turn myself in?

Yes. However, first call a bondsman and make arrangements to get out of jail. Also hire an attorney to represent you. It is almost always easier to hire an attorney and arrange for bond while you are still out of jail.

I got arrested for a DUI. Can I get out of it?

If you are arrested for a DUI, you should always contact an attoney. Even if you think you are guilty, sometimes an attorney can find ways to have the charges reduced or altogether dismissed. In Florida, a first offence for a DUI requires a mandatory conviction. This means it will always be on your record. Therefore, it is important to ask an attorney about your chances to win a DUI case before you go to Court.

I want to press charges against someone. How do I do this?

By calling the police or the state attorney's office. The laws governing whether you need to speak to the police or the state attorney's office are complicated. Try calling one or the other and they will tell you if they can help you or to call the other. We recommend that you consult with an attorney before pressing charges.

How can I get my criminal records sealed/expunged?

In Florida, sealing of criminal history records is court ordered. The person seeking to seal a criminal history record must apply for and receive a certificate of eligibility for sealing pursuant to Florida Statute 943.059. There are certain violations and conditions where eligibility will be denied, which are also outlined in Florida Statute 943.059. The application for sealing/expungement is available at your local county Florida Department of Law Enforcement office, or by contacting the Florida Department of Law Enforcement in Tallahassee at (850) 410-7645. There is an application fee and it can take as long as one year to be processed and approved.

How do I receive a pardon?

A "pardon" in Florida is the remission of any fine or forfeiture or the commutation of any punishment, or for the pardon or restoration of civil rights. Again, this is achieved through an application for executive clemency through the Governor's office. Procedure regulations and conditions on the application are governed by Florida Statute 940.03. You must seek an application through the State of Florida Parole Commission in Tallahassee. The direct line to the application department is (850) 488-2952. You can also contact the Parole Commission at (850) 922-0000. If you have questions regarding the application process, you can contact the Clemency Department at (850) 487-1175. There is an application fee, and you can expect the application process to take from six (6) months to one (1) year from the date your completed application is submitted.

Family Law

I want to get a divorce. Can I handle it myself?
If so, how do I proceed?

Florida is a no-fault divorce state, meaning that the only ground necessary for the dissolution of marriage is that the marriage be irretrievably broken.

In Florida, if there are no minor/dependent children, you may file a Petition for Simple Dissolution of Marriage. If you have minor/dependent children and/or property as a result of the marriage, and you and your spouse are in complete agreement as to all the dissolution-related matters, you may file a Petition for Uncontested Dissolution of Marriage. Divorce kits for both Simple and Uncontested dissolutions may be obtained for a nominal fee from your local circuit court family clerk.

If there are any contested issues, including but not limited to child support, spousal support, custody, and/or equitable distribution of your marital assets and liabilities, you must file a Contested Petition for Dissolution of Marriage. Regardless of which type of dissolution you file, it is recommended that you consult with an attorney prior to filing.

You should contact the court clerk to find out what the fees for a Dissolution of Marriage case are prior to filing. You are required to file the completed paperwork and fee at the same time, and if minor children are involved, you may be required to attend and complete a parenting class prior to the divorce finalization.

Once a Petition for Dissolution of Marriage has been filed, and all issues deemed resolved by the court, a final judgment will be entered. While some parties attach a marital settlement agreement reached either through formal mediation or simple mutual agreement to their petition, which is then incorporated into the final judgment, other parties must go to a trial on contested issues, and in those cases, the court will determine the outcome.

I have been served with divorce papers. What should I do now?

You have twenty (20) days after you have been served to file a response to the papers. If you need additional time in which to retain an attorney or to respond to the papers, you can request an extension of time from the court by filing a request with the court and sending a copy to the other party or his/her attorney.

You should also keep a copy of anything you file in court for yourself. However, it is recommended that you consult an attorney on these matters.

My spouse and I do not want to get a divorce, we just want a legal separation. How do we go about doing this?

Technically, there is no such thing as a legal separation in the State of Florida. You and your spouse can enter into what is called a post-nuptial or a marital settlement agreement in order to divide your property and debts, as well as address issues involving your children. Such an agreement may later be submitted to the court in the event you do file for Dissolution of Marriage.

In the absence of a final judgment of the Dissolution of Marriage, however, and agreement is enforceable in the same manner as any other contract. To be valid, a post-nuptial or marital settlement agreement can be entered into only after full and honest financial disclosure between you and your spouse.

I have been served by the Department of Revenue with a child support action. What should I do?

If you have been served with a petition of any kind, you have twenty (20) days to respond in the same manner as set forth in the answer to Question 2 above. Child support is calculated according to the Florida child support guidelines, section 61.30, Florida Statutes. You should consider consulting an attorney in order to find out the amount of child support you may be expected to pay, but the attorney will need complete information regarding the parties' incomes and deductions from income. The health insurance and day care expenses for the child(ren), and the number of over-nights the child(ren) spend with each parent. A child support guidelines worksheet can be also found in the Family Law forms at www.flcourts.org.

My child’s other parent is not paying child support. What can I do?

If you do not already have a court order for child support, you must petition the court to establish the child support obligation. If an order already exists, you may file a motion for contempt with the court. If you cannot afford an attorney, you should make an appointment with the local office for the Child Support Enforcement Division of the Florida Department of Revenue.

I want to change my/my child’s/my family’s name. Can I do this and how do I proceed?

In order to change one’s name, a petition for change of name must be filed with the court. Any prior court orders granting a name change for the petitioning individual(s) must be attached. There is a filing fee for name changes. Once the name change is finalized, it is recommended you ask the court for copies of the certified final judgment and submit them to the Social Security Administration, Department of Motor Vehicles, and Bureau of Vital Statistics, as well as your banks, insurance carriers, and any other institutions where your name is officially registered. Additionally, you should re-record any deed to real property held in your former name, as well as change any official documents that bear your former name to reflect your new one.

My spouse and I were married in another state. Can we get a divorce in Florida?

Yes, so long as Florida’s residency requirements are met.

I am paying too much for child support. Can I get the amount reduced?

Child support is calculated according to the Florida child support guidelines, section 61.30, Florida Statutes. If the amount is court-ordered, any request to modify that amount must be through a petition to the court requesting modification of the child support amount. Generally, the legal standard for modification is proof of a substantial change in circumstances from the date of the last child support determination, and the modification will either be granted or denied by the court.

I want to obtain custody of my children. How can I do this?

It depends on the circumstances. The procedures, for example, may be very different in a case involving just the other parent, compared to a case where the Department of Children and Families has become involved because of allegations of abandonment, abuse or neglect. Because the children’s interests are so strongly affected by a determination of custody, the court is as demanding as possible in custody cases. For this reason, you are advised to retain an attorney in these matters.

Landlord & Tenant

How can I evict a tenant who has a lease?

A tenant and/or landlord may terminate a lease by giving written notice to the other as follows:

• At least sixty (60) days notice by the terminating party prior to the end lease date for a year-to-year lease,

• at least thirty (30) days notice by the terminating party prior to the quarter’s end on a quarter-to-quarter lease,

• at least fifteen (15) days notice by the terminating party prior to the month’s end on a month-to-month lease,

• and at least seven (7) days notice by the terminating party to the other on a week-to-week tenancy.

If a landlord wants to evict a tenant with a lease, there must be cause, such as the lease restrictions have been breached. However, eviction may be dependent upon the severity of the breach, The tenant must be given seven (7) days written notice to cure the breach if the breach can be cured.

How can I evict a tenant for non-payment of rent?

You must serve the tenant with a Three-Day Notice for Nonpayment of Rent. You may pick up an eviction package, which includes all forms and instructions, from any local courthouse for free or for a nominal fee.

I evicted my tenant and put up a 3-Day Notice, but he/she won’t leave. What should I do now?

You must file an eviction complaint with the county court that has jurisdiction over the location of the premises. Again, you may pick up a complete eviction package from your local courthouse. However, you will need to attach a copy of the Three-Day Notice and lease agreement (if any) to your eviction complaint.

My landlord has evicted me. Do I have to leave?

If you have been served with a writ of possession, you only have to actually leave if the sheriff shows up. While the landlord can notice you of his/her intention to evict you, only the court can issue an order to a sheriff to physically evict you. You should consult an attorney if you are served with eviction notice and you want to contest it, but even if you contest the eviction, you must still deposit your rent payments with the court depository or file a motion to determine rent, and you must continue to pay such rent into the court registry until the matter is decided by the court.

Does my landlord have to give me back my security deposit when I leave the apartment/house?

If the landlord does not intend to impose a claim on the security deposit, the landlord has 15 days to return the security deposit together with interest, if otherwise required. If the landlord does intend to impose a claim, he has 30 days to give the tenant written notice by certified mail to the tenant's last known mailing address that he intends to impose a claim on the deposit and the reason for imposing the claim. If the landlord fails to give the required notice within the 30-day period, he forfeits the right to impose a claim upon the security deposit.

If you fail to object to the imposition of the landlord's claim or the amount thereof within 15 days after receipt of the landlord's notice of intention to impose a claim, the landlord may then deduct the amount of his or her claim and shall remit the balance of the deposit to you within 30 days after the date of the notice of intention to impose a claim for damages.

My landlord will not fix problems in my apartment/house. Can I withhold rent?

The landlord has an obligation to comply with the requirements of applicable building, housing and health codes. If the landlord fails to comply with these laws or with material provisions of the rental agreement within seven (7) days after delivery of written notice by you specifying the noncompliance and indicating your intention to terminate the rental agreement by reason thereof, you may terminate the rental agreement. If the failure to maintain is due to causes beyond the landlord’s control and the landlord has made and continues to make every reasonable effort to correct the failure to comply, the rental agreement may be terminated or altered by the parties or the Court may hold that the landlord’s failure to comply renders the dwelling unit uninhabitable and permits you to vacate. You are not liable for rent during the period the dwelling unit remains uninhabitable.

My landlord raised the rent without telling me. Is this legal?

It depends. If you have a lease with a fixed amount of rent, the rent may not be raised during that tenancy period. However, if you have no lease, the landlord may raise the rent, but must provide you with the amount of notice required for that particular type of tenancy. See Question 1 listed above.

Personal Injury

I had an auto accident. What should I do?

If you are involved in an accident, make sure you remain at the scene until the police arrive. Try to get the names of any person who saw what happened. If you have access to a camera, you should take pictures of the cars and the surrounding area.

I was injured in an accident. Who will pay for the medical treatment?

If you are injured, you should immediately obtain medical treatment. If you are in pain, bleeding or believe you are in danger of any further injury, you should allow the rescue service to take you to the hospital to obtain immediate treatment.

Further, the hospital will ask you whether you have insurance. If you are in an automobile accident, you should give the hospital your automobile/health insurance information.

If you were injured in a property accident, for instance a “slip and fall”, you should give the hospital your health insurance information.

I was involved in an auto accident and the other party was injured, but it was not my fault. Can the other side sue me?

Yes. A court will decide who is at fault. Therefore, even though you believe that the other side was at fault, he/she can still file a lawsuit seeking damages from you and/or your insurance company.

I was injured in an auto accident and my own insurance company paid the bills. Why?

The State of Florida is a no-fault insurance state. This means that your own automobile insurance company pays your medical bills in an auto accident. Your premiums should not go up if you were not at fault for the accident and used the medical payments and/or no fault provisions in your automobile insurance policy.

I fell in a store/in a building. Can I sue someone?

If you fell in a store or a building, you can file suit to recover damages that will reasonably compensate you for your injuries. Please contact an attorney for further details.

How much can you get for me? What is my case worth?

Every case is different. Factors which determine how much money you may receive in a legal matter include the severity of your injuries and your past medical history, as well as the amount of insurance coverage that the other person or company has. If you are injured as a result of an accident, you should always consult with an attorney.