Frequently Asked Questions
Family Law FAQ
- What is a "No Fault" divorce?
- What is a "Fault" divorce?
- Do all states offer "Fault" divorce?
Estate Planning FAQ
-
 How
do I know if a Will is Valid?
-
What happens if a person dies without a
will?
-
Do I need an attorney to draft a will?
-
What if I only need a “Simple Will”?
-
Are there any advantages to having a trust
instead of a will?
-
What is a Heritage Trust?
-
What is a living Will?
-
What is a Durable Power of Attorney?
-
I heard you only need to draft one Power of
Attorney, how come you provide two?
Criminal Law FAQ
- What are my rights if I have been accused of a
crime?
- What should I do if I have been arrested?
- What should I do if I get a call that a loved one
has been arrested?
- How do I get out of jail after an arrest?
- Why should I hire a criminal defense attorney?
- What is the difference between a misdemeanor and a
felony?
- What types of punishments do I face if convicted of
a crime?
Family Law FAQ
1. What is a "No Fault"
divorce?
"No fault" divorce describes any divorce where the spouse
suing for divorce does not have to prove that the other
spouse did something wrong. All states allow divorces
regardless of who is at "fault."
To get a no fault divorce, one spouse must simply state a
reason recognized by the state. In most states, it's enough
to declare that the couple cannot get along (this reason
goes by such names as "incompatibility," "irreconcilable
differences," or "irremediable breakdown of the marriage").
In nearly a dozen states, however, the couple must live
apart for a period of months or even years in order to
obtain a no fault divorce.
2. What is a "Fault"
divorce?
A fault divorce may be granted when the proper grounds
for divorce are present and at least one spouse files for
it.
The traditional fault grounds are:
- cruelty (inflicting unnecessary emotional or
physical pain) -- this is the most frequently used
ground for divorce
- adultery
- desertion for a specified length of time
- confinement in prison for a set number of years, and
- physical inability to engage in sexual intercourse,
if it was not disclosed before marriage.
Some people don't want to wait out the period of
separation required by their state's law for a no fault
divorce. And in some states, a spouse who proves the other's
fault may receive a greater share of the marital property or
more alimony.
Husbands or wives in the mood for revenge probably could
come up with a multi-count complaint. Some spouses want the
emotional release of proving fault by their mates. But
courts are not a very good forum for such personal issues,
and the accuser is usually less satisfied than he or she
expected to be. The degree to which "fault" affects division
of property, support, and custody will be discussed in the
chapters on those subjects.
3. Do all states offer
"Fault" divorces?
No, 15 states offer no fault divorce only. This means
that a no fault divorce is the only option even when there
has been substantial wrongdoing.
The other states allow a spouse to select either a no
fault divorce or a fault divorce.
Estate Planning FAQ
1. How do I know if a Will
is Valid?
In Florida a valid will requires: 1) A written
instrument; 2) from an author (Testator) who is at least 18
years old; 2) with a sound mind at the time of signature; 3)
and notarized in front of two witnesses in accordance with
Florida Law.
2. What happens if a person
dies without a will?
If a person dies without a will, also known as dying
intestate, then property will be distributed in strict
accordance with Florida’s Probate code. As a result, no
exceptions will exist for those in need.
3. Do I need an attorney to
draft a will?
No. However, according to the Florida Bar's consumer
pamphlet entitled "Do you have a will?" "The drafting of a
will involves making decisions that require professional
judgment which can be obtained only by years of training,
experience, and study. Only the practicing lawyer can avoid
the innumerable pitfalls and advise the course best suited
for each individual situation."
4. What if I only need a
“Simple Will”?
According to the Florida Bar, "There is no such thing as
a simple will."
5. Are there any advantages
to having a trust instead of a will?
It depends. Some people call them advantages, while
others call them differences. A “living trust,” unlike a
will, allows the “Trustor” to distribute property during
their lifetime. Additionally, a living trust unlike a will
allows the “Trustor” to control the distribution. Further,
the “Trustor” can appoint a “trustee” to manage and
distribute property from the trust. The “Trustor” can even
appoint himself this task, and then someone else upon his
death. To learn more, contact the
Noble Law Firm.
6. What is a Heritage
Trust?
A Heritage Trust is designed to protect the family from
ex-spouses. This trust allows you to segregate your child’s
assets from the marital home. As a result, you can prevent
your property from your child’s ex-spouse, ex-spouse’s
children and creditors.
7. What is a living Will?
In the unlikely event, you suffer from a terminal,
end-stage condition, or persistent vegetative state, a
Living Will allows you to determine whether to continue
life-prolonging procedures. The document allows for you to
determine whether to continue with life-prolonging measure
when suffering from a terminal, end-stage condition, or
persistent vegetative state.
8.What is a Durable Power
of Attorney?
A durable power of Attorney allows for a person to
designate an individual, known as the attorney-in-fact to
make decisions on their behalf. By executing a Durable Power
of Attorney, the Attorney-in-fact is acting as if he were
literally that person. The Attorney-in-fact has a fiduciary
duty to this individual, and therefore subjects himself to
liability if acting improperly.
9. I heard you only need to
draft one Power of Attorney, how come you provide two?
Florida Law allows a person to execute one Durable Power
of Attorney for both Health Care and Property. However, some
people may not feel comfortable making health care
decisions. For this reason and to avoid confusion among
doctors and bankers, The Noble Law Firm prepares at no
additional cost, a Durable Power of Attorney for the Health
Care Surrogate and Durable Power of Attorney for property.
Criminal Law FAQ
1.
What are my rights if I have been accused of a crime?
Those accused of crimes have a number of rights guaranteed
by the US Constitution. These rights include: the right to
remain silent in order to avoid self-incrimination, the
right to competent legal representation, the right to
reasonable bail, right to a fair and public trial, right to
be informed of the charges against you, the right to be
confronted with the witnesses against you and to gather
witnesses of your own, and a number of other rights.
A criminal defendant is also presumed innocent until proven
guilty. This means the prosecutor has the burden of proving
(beyond a reasonable doubt) you committed the criminal
act(s) in question. This also means a defendant does not
have to do anything or say anything to prove s/he is
innocent.
There are also laws regarding search and seizure which
require law enforcement to obtain a search warrant before
they are allowed to search a specific place, at a specific
time, for specific persons, evidence, contraband, and/or
other items. It is important to keep in mind there are some
circumstance where police do not need a warrant to search
and/or arrest you.
2.
What should I do if I have been arrested?
If you have been arrested, answer all questions about your
identification-- such as name, address, and birth date--
truthfully. While you have the right to refrain from
answering self-incriminating questions, lying is never a
good idea. Giving officers a hard time during the arrest
process is also not very beneficial. It usually just makes
things tougher on you.
3.
What should I do if I get a call that a loved one has been
arrested?
Try to gather as much information as possible about the
arrest and write it down. The following questions may be
useful: What is the name, birth date, and social security
number of the arrested person? What has s/he been charged
with? What law enforcement agency made the arrest? Where is
the arrested person being held? Has bail been set and, if
so, what is the amount?
4.
How do I get out of jail after an arrest?
If bail has been set, the only way to get the person out of
jail is to pay the bond for his/her release. A bail bond is
like insurance; it means that the suspect agrees to appear
at all subsequent legal proceedings. Failure to do so can
result in forfeiture of the bond, the issuance of an arrest
warrant, and the loss of subsequent bail privileges. In
certain criminal cases bail may be denied. If the judge
believes there is a high risk, the defendant will flee, or
if s/he has been charged with a serious crime like murder,
bail may be denied.
5.
Why should I hire a criminal defense attorney?
The importance of competent legal representation is so great
that the Constitution guarantees every criminal defendant
the right to an attorney. A criminal attorney is your best
asset after being charged with a crime. This expert knows
the laws and court customs relevant to your case, and can
apply this knowledge to protect and maximize your legal
interests. No matter what your legal situation, a criminal
attorney will help you more than you could help yourself by
going it alone. In fact, most judges won't even consider a
plea bargain from a defendant without legal representation.
6.
What is the difference between a misdemeanor and a felony?
Most crimes are divided into two categories, based on the
severity of the crime: misdemeanor and
felony. State law governs which crimes are
considered more serious than others. Generally speaking, a
misdemeanor crime is one where the maximum penalty is one
year or less in state prison.
A felony crime is a more serious crime that can result in
jail or prison time for more than one year. Felony charges
also bring a number of other legal repercussions if the
defendant is convicted. In some states, under certain
circumstances, a crime can be considered a misdemeanor or a
felony, depending on the specifics of the case. Jake Noble
can maximize your chance that your crime is charged as a
lesser offense.
When a fine is the punishment for a legal violation, the
action is considered an infarction rather than a criminal
offense. For example, a parking ticket is an infarction
rather than a criminal charge. In some cases, however, a
crime may only receive a fine and it will still be counted
as a misdemeanor. For example, possessing a small amount of
marijuana for personal use in some states may be a
misdemeanor punishable by fine.
7.
What types of punishments do I face if convicted of a crime?
Sentencing can vary depending on the location of the case,
the crime, the judge (and sometimes jury), and other
specifics of the criminal case. In some cases a punishment
for a particular crime is governed by the federal sentencing
guidelines, and the judge does not have a big impact on
determining the punishment. In other cases, the sentence is
up to the judge's discretion, who will take a variety of
factors into account when determining a convicted offender's
punishment.
The most common punishments for a criminal conviction
include: incarceration (in jail, prison, or another
detention facility), punitive fines, restitution
(compensation to the victim), probation, and community
service. There are a variety of other penalties that may be
more specific to the criminal case. For example, if you are
convicted of a DUI or DWI you may be required to attend a
DUI school or a drug/alcohol treatment program, have a
Breathalyzer installed in your vehicle, face driving
sanctions, and more.
If you would like to ask a legal question or get legal
advice regarding criminal defense, contact Jake Noble today
for a free case evaluation.
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