What is a Default and What Does it Mean in the Family Law Context?
In Florida, as in most states, before a Court can take action on a legal case, the Judge must ensure the other party has, at a minimum, received notice of the lawsuit. Once a lawsuit is filed, the Clerk of Court will issue a summons that directs the party filing the lawsuit to service notice of the lawsuit on the opposing party. That document will specify to the party being sued that they must respond to the lawsuit by filing a written Answer within twenty days of being served. In most cases, the person being sued will respond to the lawsuit by filing a written answer that contests the allegations raised in the lawsuit and the relief being sought. But what happens if the party being sued does nothing and does not file any written answer?
In most cases, if the other party receives notice, and proof of this notice is filed with the Court, usually by way of an affidavit of service provided by a licensed process server, then the Clerk of Court, or the Judge, can enter a Default again that party. Once a default has been entered, all well-plead allegations contained with the petition are deemed true and the Court may proceed to enter a Final Judgment in the case. At that final hearing, the Court can take testimony on the uncontested allegations in the petition and enter a Final Judgment. In family cases specifically, where children are involved, the Court must make factual findings related to the best interests of the children before entering a Final Judgment.
In many cases, after a default, or even a Final Judgment, is entered, the other party may try to enter the case and contest the validity of the Default or Judgment. In that situation, the question becomes, can that party still be heard on the merits of the lawsuit?
In short, the answer, many times, is yes, particularly in family law cases. Upon the filing of a sufficient motion, the Florida Rules of Civil Procedure state that the Court may set aside a default or judgment upon the showing of the one of following: (1) Excusable neglect; (2) Newly discovered evidence; (3) Fraud, misrepresentation, or other misconduct of an adverse party; (4) That the judgment or decree is void; or (5) That the judgment or decree has been satisfied, released, or discharged, or a prior judgment which it is based has been reversed or otherwise vacated, or it is no longer equitable. While the burden to prove these elements is on the party seeking to set aside the default or judgment, the leading case law on these issues say that defaults should be set aside liberally. This follows the general policy that lawsuits should be determined on their merits and not on legal technicalities. If you have any questions about how a default can affect your case, it is important to consult with an experienced attorney right away, as the passage of time can be a factor in the setting aside of a default.
Attorney Russell J. Frank is a partner at CPLS, P.A., and a Florida Supreme Court Certified Family Mediation who focuses his practice areas on family and marital law. Contact Attorney Frank today at rfrank@cplspa.com to discuss any family or marital legal issues you may be experiencing.
Crime & Immigration
Do I have options?
Part I
What happens if a person is inadmissible or deportable because of the commission of crime? Is the person out of luck? It depends. Sometimes the person will be out of luck and unable to enter or remain in the US. But other times, the person might have a relief available that will allow them to enter or remain in the US. This week we will discuss two relief options available for someone that has committed a crime and is inadmissible or deportable from the US. Next week, we will discuss 2 other relief options.
Relief Option: Adjustment of Status
- Adjustment of status is the process in which someone becomes a lawful permanent resident while in the US.
- If the crime is a ground of deportability, the adjustment of status may act as a waiver of this ground.
- If the crime is a ground of inadmissibility, the adjustment of status will not act as a waiver pf this ground and the person will not be able to adjust status
- All negative information, arrest records, and other criminal activity, must have been revealed to the immigration officer for their consideration at the time the person applied for adjustment of status
- The officer in their discretion may decide that the person is able to adjust status to that of a lawful permanent resident.
Relief Option: Waivers under INA §212(h)
Waivers under INA §212(h) are used to “forgive” grounds of inadmissibility for crimes involving moral turpitude, prostitution, crimes that were not prosecuted because of immunity, and single offenses for simple possession of 30 grams or less of marijuana.
There are three different scenarios in which the waiver may apply:
1. The 15-year waiver is available to waive inadmissibility due to prostitution type offenses or crimes involving moral turpitude that occurred more than 15 years before the application for a visa, admission, or adjustment of status. The individual must show that they are not a danger to the community and have been rehabilitated.
2. The extreme hardship waiver requires a qualifying relative who is the US citizen or lawful permanent resident spouse, parent, son, or daughter of the applicant. The person will need to show that the qualifying relative will suffer extreme hardship if the application is not granted and the person is removed.
3. The battered spouse or child waiver requires that the spouse causing the damage be a US citizen or lawful permanent resident. this waiver does not require a qualifying relative or the showing of extreme hardship.
The granting of these waivers is discretionary and the person may meet all the requirements in paper but still be denied by the immigration officer as an exercise of their discretion.
Any person that has been convicted of, admitted to, or is known to have committed a crime that could make them inadmissible or deportable, should meet with an attorney to determine if there is any relief available to the person.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Plagues, pandemics, Magna Carta and 2020 . . .
The Magna Carta created jury trials, grand juries, and abolished “trial by ordeal” in 1215. A century later, the Black Plague swept all of Europe. Thus “A Jury of Our Peers” has been the hallmark of justice for more than 4 centuries before the founding of these United States. Today, a new worldwide pandemic is challenging our notion of liberty.
A client asked recently whether we were seeing a recession due to the COVID-19 pandemic. Truthfully, many lawyers are busier than ever, though not necessarily with new work. Each court in each different county or circuit has set up specific procedures for handling cases. Some courts, immediately set up video conferencing for hearings; others took a bit more time to explore options. Orange County is in the Ninth Circuit while Seminole County is in the 18th Circuit. Each has a different procedure and both vary in how they handle hearings.
Criminal courts in all areas had largely instituted video conferencing for first appearance years ago, but with a pandemic the larger problem is how to provide safe and secure access for those arrested to meet privately with their attorney. All courts in Florida, the Supreme Court, District Courts of Appeal, Circuit and County Courts have been wrestling with how to assure the safety of the public, how to prevent exposure from those infected, how to protect the rights of those accused of crimes and how to protect the due process to assure fair and just hearings. Jury trials are being scheduled but may not occur until 2021 or later. This places our entire judicial system in peril.
Family attorneys began using Collaborative methods is not always easy, but using a team concept and keeping decisions about your family within your control makes collaboration effective in Central Florida. Using Zoom meetings, for coaches, clients and professionals to work out all the details before even filing can allow a much more controllable process and keep the outcome well within your needs.
Divorcing spouses often have difficulty trusting one another, and unfortunately our courts’ adversarial proceedings in litigation tend to further erode openness and trust by encouraging spouses to fight not only for their own interests but also against the interests of their spouse. When Collaboration occurs, the family’s needs are addressed by professionals and the spouses do not have to “trust” the litigation. They only have to trust the professional who are the guardians of the process. The Collaborative Process works, even in pandemic times and 2020.
Pandemics lead to change. How much change occurs depends on your choices and may be impacted by the choices of those around you. Wash your hands; wear a mask; take care of yourself and others. Peace.
Attorney Aubrey Ducker is a partner at CPLS, P.A., and a member of the Firm’s Family and Elder Law Practice Groups. Contact Attorney Ducker today at aducker@cplspa.com to discuss any family or marital legal issues you may be experiencing.
Crime & Immigration
Other Crimes: Deportable
In addition to convictions for the commission of crimes involving moral turpitude or aggravated felonies, convictions for the commission of any of the following crimes can make someone deportable from the US:
1. High speed flight from an immigration checkpoint
2. Failing to register as a sex offender
3. Violating any controlled substance law, except for simple possession for one’s own use of 30 grams or less of marijuana
4. Firearms violation
5. Domestic violence offense, stalking, child abandonment, child abuse, or child neglect
6. Any alien convicted of visa or passport fraud
In addition, a person involved in alien smuggling is deportable regardless of whether there is a conviction or not. Smuggling must have occurred prior to or at the time of the person’s entry or within 5 years of they entered.
Each crime in the above list is carefully defined by immigration law and court opinions, therefore to determine whether a crime that sounds like one of the above will cause someone to be deportable from the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been convicted of having committed a crime meet with an experienced attorney to discuss their options.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Crimes Involving Moral Turpitude: Deportable
A few weeks ago, in a prior blog, I mentioned that a conviction for or an admission to having committed a crime involving moral turpitude (CIMT) makes a person inadmissible to the US. Today, we look at the instances in which a CIMT will make a person deportable from the US after they have already been admitted. (CIMT definition)
There are two different instances in which CIMT’s will make someone deportable. In the first instance, the person has to have been convicted of committing a CIMT within 5 years after the date of admission and the crime must be one for which a sentence of one year or longer may be imposed. Keep in mind that it is not necessary for the person to actually be sentenced to one year or longer for the conviction of the CIMT to make the person deportable.
In addition, any person that has been convicted of 2 or more crimes involving moral turpitude is deportable.
Notice, that an admission to the commission of a CIMT will not make the person deportable.
Let’s consider the following situations:
Maria entered the US as a lawful permanent resident in 2003. In 2009, she was convicted of committing a CIMT in 2007. The crime she was convicted of had a maximum sentence of 5 years. As a result of a plea deal, Maria was sentenced to 6 months in prison. Maria is deportable.
Esteban is a lawful permanent resident. In 2003, he was convicted of committing a CIMT. Ten years later, Esteban was convicted of committing a CIMT. Esteban is deportable.
Determining whether a crime is a CIMT and will make someone deportable from the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been convicted of committing a crime meet with an experienced attorney to discuss their options.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
Crime & Immigration
Aggravated Felony: Deportable
Aggravated felons are deportable from the US. The immigration act includes an extensive list of crimes that will cause someone to be deportable. Some of the crimes included are the following:
1. Murder, rape, or sexual abuse of a minor
2. Illicit trafficking in controlled substance, including a drug trafficking crime
3. Illicit trafficking in firearms or destructive devices or in explosive materials
4. A crime of violence, but not including a purely political offense, for which the term of imprisonment is at least 1 year
5. A theft offense, including receipt of stolen property, or burglary offense for which the term of imprisonment is at least 1 year
6. An offense relating to child pornography
7. An offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000 or relates to tax evasion in which the revenue loss to the Government exceeds $10,000
8. An offense relating to obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year
The list of crimes that will be considered an aggravated felony is very detailed. However, it is still important to keep in mind that, to determine whether a crime is an aggravated felony, it is necessary to compare the state statute of conviction with the federal laws. The classification of a crime as an aggravated felony by a state does not necessarily mean that the crime is an aggravated felony for immigration purposes.
A conviction is necessary for the person to be deportable.
Determining whether a crime is an aggravated felony and will make someone deportable from the US requires a careful analysis of immigration law, criminal law, and court opinions. It is very important that anyone that has been convicted of committing a crime meet with an experienced attorney to discuss their options.
If you have questions about your immigration case, it’s important to speak with an experienced immigration attorney to discuss your specific case and circumstances. Attorney Evelyn J. Pabon Figueroa is an Associate in the Orlando office of CPLS, P.A. She is a member of the firm’s Immigration Practice Group. Contact Attorney Evelyn today at epabonfigueroa@cplspa.com to discuss any immigration issues you may be experiencing.
