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David M. Caveda
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David Caveda’s Answers

7 total

  • I need a post nuptial document created. What should I expect for a retainer?

    My wife and I live in Florida and would like to have a post nuptial document created. What is a typical retainer fee for this? What is the average cost of this?

    David’s Answer

    Please note that your wife and you cannot have the same attorney represent you. So you will either each hire your own attorney, or one or both of you will be unrepresented.

    The "retainer fee" typically refers to the amount you pay the attorney to retain his or her services and does not necessarily correlate with what the total fees and costs will end up being.

    The total cost for a "Post-Nuptial Agreement" will depend on the amount of work (i.e time) that a lawyer has to spend working on your case. This may consist of an initial meeting in person or over the phone to discuss your situation, your goals and your budget., the drafting of the first draft of the agreement, assisting you with the preparation of the financial disclosure necessary to increase the chances of the agreement being binding at the time of divorce, going over the agreement with you before presenting it to your spouse or your spouse's attorney, making minor or major edits to the agreement based on feedback from your spouse or her counsel negotiating changes, concessions, etc. directly with your spouse or her counsel and perhaps holding a meeting to have both sides sign the agreement.

    On the other hand, the work may be limited to the initial consultation, the preparation of the financial disclosure and the agreement, which is then accepted and signed without further changes.

    Another factor that will significantly impact the cost is the complexity of the agreement itself. If multiple assets involving large sums of money are involved, more time will be required than if the financial issues are more "average" or "typical."

    Another thing to keep in mind is that certain things are not appropriate for inclusion in a post-nuptial agreement becuase they will not be binding upon a Judge at the time of dissolution, so make sure you ask your lawyer if there is any legal reason for the things you and your wife want to agree to not be followed and approved by a Judge.

    A simple agreement with "typical" or "average" issues would be handled by my office for around $1,000 to $2,000. A complex agreement would go up from there depending on the actual time spent.

    Best of luck to you.

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  • I need a Family Law Attorney for Hillsborough County, FL

    I have a 8-year-old son with my ex boyfriend. We were never married, and have been broke up since our son was 2. We have no court agreement at this time, and we've been doing a week on week of schedule with him. My ex was supposed to return our so...

    David’s Answer

    Call me on my cell to discuss details (813) 421-1016.

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  • Do i Have to file a non-military affidavit for my default divorce case in florida?

    I filed a default on my case... i wanted to know do i need to file a non-military default affidavit too

    David’s Answer

    If you are asking the Clerk of Court to enter a Default and thereafter a Judge to enter a Final Judgment After Default against your spouse due to their failure to file any pleadings in your divorce case, then you must file a sworn Affidavit of Military Service (get form here: http://www.flcourts.org/gen_public/family/forms_rules/912b.pdf) where you swear or affirm under oath that your spouse was not a member of the armed services of the United States during the preceding 30 days. The purpose is to comply with the Servicemembers Civil Relief Act, which protects servicemembers in the active service of our country against default judgments being entered against them while they are serving our country. If your spouse is in the active service, then certain procedures under the Servicemembers Civil Relief Act must be followed.

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  • Can i collect money from the military under my ex deceased military retirement pay that i did not know was due to me

    under a divorce decree i was entitled to half of my deceased ex husband retirement but i did not know about it can i file for the money that i did not claim since he has already passed he is survived by a wife who is a good friend of mine w...

    David’s Answer

    Your situation can be broken down into two separate questions:

    First Question: Do you have any legal recourse to seek payment from the estate of your deceased former husband for your court-ordered share of the military retirement benefits that were paid to him while he was alive, but that he did not pay to you?

    Second Question: Can you receive benefits under his Survivor Benefit Plan (SBP), notwithstanding the fact that his widow is receiving those benefits now and was presumably designated by your former husband as his SBP beneficiary prior to his death.

    Answer to First Question: If the court order required him to pay to you your share of his military retirement, then it is possible that you can make a claim upon his estate.

    Answer to Second Question: If the court order specifically awarded you the right to be named as the Former Spouse Beneficiary of his SBP benefits, you had the right to submit a "deemed-election letter" to DFAS within one year from the date of the court order. If you did not do that, your rights are in serious jeopardy. The only way to possibly redress this problem is to submit a claim to the appropriate Board for Correction of Military Records or similar panel.

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  • What if the petitioner/spouse is not going to appear for final hearing ?

    My husband/petitioner fled the country due to his status as an illegal. We signed an agreement and it was submitted to the judge but has not been approved yet. He will not be present or involved in the hearing we have in Janruary. I want to kno...

    David’s Answer

    Assuming the agreement you and your husband signed and filed addresses all issues between you and him, your husband's presence is not required at the final hearing if YOU were a Florida resident six months before the date he filed the petition for dissolution of marriage and you attend the final hearing.

    You should bring your Florida Driver License with you to the final hearing IF the issue date on it is prior to six months before the date of filing. Otherwise, you should have a friend of yours' that knows you were Florida Resident as of six months before the date of filing sign an affidavit called Certificate of Corroborating Witness where he/she attests to how long you've been a Florida resident. If you can't complete the affidavit, just bring your friend with you to the final hearing.

    You should prepare and mail to your Husband a Notice of Hearing regarding the date, time and place of the final hearing. Mail it to the last address he provided in the court file.

    Make sure your Financial Affidavit has been filed and, if not, complete one and bring it with you to the final hearing. If you have minor children, make sure you complete the parenting class and bring the Certificate of Completion with you.

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  • If my husband and I are separated, will I still be insured by his health insurance?

    I am trying to stay married as long as I can to be with my daughter until she goes to college. My husband is extremely controlling and emotionally abusive. He doesn't want me having anything to do with my daughter and is trying to take her away ...

    David’s Answer

    You have the same legal right to be insured under your spouse's health insurance policy while separated as you do prior to separation. It is only as of the date of entry of a Final Judgment of Dissolution of Marriage that your right to be insured under your spouse's health insurance policy ends. However, at that time you may be entitled to continued health insurance coverage under COBRA or mini-COBRA for up to 36 months. Call (866) 444-3272 for more information about COBRA.

    Spouses who are separated in Florida continue to enjoy the same legal rights to use and access their marital home as they did prior to separation, even if the title to the home is in the name of one spouse. This means that your husband does not have the right to kick you out of the house during separation.

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  • How do I go about requesting a re-hearing on my divorce and can I request a diferent judge preside over it

    In court today my attorney did not bring up several issues that I had asked her to and because of that I ended up after 7 years of marrage, 10 years of working and assisting in paying living expenses, with nothing except bills. There was a prenu...

    David’s Answer

    The request for a re-hearing is governed by Florida Rule of Civil Procedure 1.530, which states in relevant part that "A new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of matters heard without a jury the court may open the judgment, take additional testimony and enter a new judgment. The motion for rehearing must be served not later than 10 days after the date of filing of the judgment. You must then schedule a hearing on your motion for rehearing. Be forewarned: a judge has the authority to deny a motion for rehearing without holding a hearing on the motion for rehearing, and they often do.

    If you prevail at the hearing on the motion for rehearing by convincing the judge that a rehearing should take place regarding all or a part of the issues, then an order granting a new trial shall be entered which specifies the specific reasons why the request for a rehearing is being granted and the rehearing itself will be scheduled for a future date.

    There is no automatic right to request a different judge for the rehearing. However, there are specific rules which govern when and under what circumstances judges must recuse themselves from cases.

    The disqualification of trial court judges is governed by Rule 2.330 of the Florida Rules of Judicial Administration. When you seek to disqualify a judge, you must file a sworn motion which states that you fear you will not receive a fair trial because of a specifically described prejudice or bias of the judge or because the judge is connected to the case or related to the parties or the lawyers in the case or because the judge is a witness in the case.

    You must file the motion within 10 days after you learn of the reason(s) why the judge should be disqualified.

    The judge you are seeking to have disqualified is the judge that rules on your motion to disqualify. However, the judge cannot judge the truthfulness of the allegations in the motion, but must instead focus strictly on whether or not the motion sets out a legally sufficient basis on its face. If the answer is yes, then the judge must recuse himself or herself. Otherwise, the judge remains on the case.

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