In federal court, Diane B. McWhirter has an active Bankruptcy practice and in state court, she maintains an active Probate, Guardianship, Elder Law and Family Law practice.
Diane B. McWhirter is one of the Top 100 Bankruptcy Lawyers in the State of Florida, according American Society of Legal Advocates. She received the Three Time Member award in the years 2013-2018. Also beginning in 2014, she annually received the Client Satisfaction Award as one of the "10 Best" Bankruptcy Attorneys in Florida from the American Institute of Bankruptcy Attorneys. She currently handles consumer bankruptcy cases for individuals and couples, including Chapters 7 and 13.
Diane B. McWhirter is an advocate for the elderly and their families. As former Chair of the Orange County Bar Elder Law & Estate Guardianship and Trust Committee, Diane McWhirter consults with clients (individuals, children, families, or non-profit charities) in the following legal matters:
- Elder Law & Durable Powers of Attorney
- Wills, Trusts and Estates
- Estate Planning & Document Drafting
- Probate Administration and Litigation
- Guardianship Administration and Litigation
The attorney handles complex and contested Guardianship cases. Her active Probate Practice has included cases statewide. She has successfully appeared at the Appellate level at the District Court and The Florida Supreme Court defending families in Probate.
Her family law practice has taken her to Orange, Duval, Polk, Volusia, Seminole, Brevard, Lake, Pinellas, Hillsborough, and Indian River counties to represent families, children, child caring facilities, spouses, and grandparents. She prepares, presents, drafts, defends, litigates and mediates:
- Custody, Support, and Parenting Plans
- Agreements - Before and After the Marriage
- Temporary Alimony and Child Support
- Juvenile Court - Delinquency or Dependency
In 1991 Diane McWhirter became a Florida Supreme Court Certified Family Law and County Law Mediator. In 2011 she became Certified by the Florida Supreme Court in Circuit Civil Mediations including probate, guardianship and foreclosure mediation.
Selected as one of the "10 Best" Family Law Attorneys in Florida by the American Institute of Family Law Attorneys and received their Client Satisfaction Award in 2015. She has litigated domestic relations cases, counseled family law clients and negotiated their family law agreements for more than 30 years in the Central Florida area.
The Ten Steps to the Court House in a Family Law Case
By Diane B. McWhirter
First Step: Filing
Your initial paperwork consists of a financial affidavit, an affidavit regarding children, any agreements executed by the parties, and the petitions for relief. The Clerk’s filing fee must be paid to access the court system.
Second Step: Service
In family law court the process server serves contested paperwork on the Defendant (the other side), who has 20 days to file a response with the court. If no service is affected, then the Plaintiff must initiate a search by contacting hospitals, phone directories, relatives and friends of the missing Defendant. After the completion of the search, a newspaper ad prepared by an attorney, could be run as substitute service.
Third Step: Waiting 21 days
A case with an agreement might be processed in 22 days, if the court and parties calendars allow it. The courts try to conclude cases within one year from the date of filing.
Fourth Step: Mandatory Disclosure
The parties must disclose their assets and liabilities and keep the other party continually apprised of any changes in their finances. The financial affidavit needs to be correct and reflect the party’s true income and liabilities so that the party’s needs and ability to pay alimony or other support can be appraised.
Fifth Step: The parties file paperwork outlining their cases and defenses
After service the defendant has 20 days to reply with an answer, or a default could be entered by the court or Clerk. If a counterclaim or counter petition or affirmative defenses are filed with the answer, then another 20 days might pass before all of the paperwork is complete.
Sixth Step: Mediation
After complete discovery the parties are required to enter family law mediation in certain counties. If the mediation is successful, then the parties proceed as an uncontested matter.
Seventh Step: Temporary Hearings
If one side fears the other might damage or deplete assets then an injunction preventing same can be sought from the court and the notice requirements for such a hearing vary. Other types of emergency relief might include petitions to freeze marital funds, and emergency petitions for financial relief or aid, including temporary alimony and child support.
Eighth Step: Review of Debt and Asset Division
If the parties have unpaid debt, they might incur lawsuits, foreclosure actions, and general bad credit. Debt and Asset division are considered together by the court in equitable distribution. Sometimes the court will divide the assets and debts in an unequal manner, depending on the parties’ needs and circumstances. In the event of a creditor suit, retirement funds are protected from creditors. Although divorce is a life emergency, the parties should seek financial advice and consider carefully before withdrawing funds from retirement accounts.
Ninth Step: Support Needs Analysis
Using the financial affidavits and other financial earning documents and bills, the court will analyze the parties’ financial needs for alimony and support on request.
Tenth Step: Prepare for Final Hearing
Required items for the day of court include a Florida Driver’s license issued more than 6 months before the date of filing. You should plan to purchase certified copies of the Final Judgment for later legal purposes.
After the Hearing: The Court's Final Judgment
The Court's Final Judgment will contain the court's ruling, and might serve as a quit claim deed to your home, might change your legal name, might transfer assets or debts, or specify rights and obligations concerning your children. Buy several certified copies to present to the County Recording Office, the automobile agency, the schools, the financial institutions and other offices.
Since 1987 Diane B. McWhirter has represented families, individuals, and charities in Probate Court. She litigates and administers large, mid-size and small estates.
POPULAR PROBATE POLL
1. How / Where do I apply for a federal tax ID number?
You apply for this at the IRS website. It is a simple process, but upon request, some banks or my office staff will assist you with this application during a scheduled in-person appointment. Read more here.
2. I have a small estate, but the life insurance company requires “letters of administration” for the family to receive their inheritance from the insurance company. What should I do?
This step is part of “marshalling the assets.” After receiving the money from the life insurance company, as part of a formal administration the personal representative places the money into a separate bank account marked "Estate Account."
3. Why do I need to open a separate bank account for a small estate without creditors or other expenses?
If the monies are made payable to the Estate, then they should be placed into an Estate account for probate and administration until determination of the creditors' claims, if any.
4. With only one asset must I file an inventory in a very small but formal administration?
Yes, the initial inventory would list the only asset.
5. What is a summary administration?
It is a process for estates with less than $75,000 in assets on the inventory; however, no letters of administration are issued. The estate's creditors must be notified and given time to file a claim against the estate in either proceeding.
6. Who requires the notice of filing proof of publication? Is it the court or the insurance company?
That newspaper publication is a requirement of Florida Statutes to protect the estate and the creditors' claims. The creditors must file their claim with the court within the time allotted or the claim is time barred.
7. What can I do to protect my interests in an estate that has not been filed with the court yet?
8. What does an attorney usually charge for the probate of an estate?
Since 2013, Diane B. McWhirter has been named one of the Top 100 Bankruptcy Lawyers in the State of Florida, according to the American Society of Legal Advocates. Beginning in 2014, she annually received the Client Satisfaction Award as one of the "10 Best" Bankruptcy Attorneys in Florida from the American Institute of Bankruptcy Attorneys. She currently handles consumer bankruptcy cases for individuals and couples, including Chapters 7 and 13 in the Middle District of Florida, Orlando, Tampa and Jacksonville.
As an experienced litigator, the attorney defends clients in adversarial actions filed by creditors or other interested persons. The attorney uses her training in court preparation to guide the clients through the court process in state and bankruptcy court.
Please watch the videos prepared by the United States Bankruptcy Court for a detailed explanation of the process and different types of cases found at: http://www.flmb.uscourts.gov/bankruptcybasics/
A Chapter 7 bankruptcy case is usually finished within 60 days of filing the paperwork with the court. Once filed, it is not a voluntary process. Not everyone qualifies for a Chapter 7; the Debtor might have too much income as an individual, but might qualify because of business debt.
Chapter 13 plans last 3 to 5 years and help the Debtor retain assets and refinance debt such as mortgage arrearages.
The bankruptcy mediation system is generally more successful than the state mediation foreclosure system. Diane McWhirter has more than 25 years of certified mediation training, including special certificates in mortgage mediation training. She uses her training to help her clients receive the best mediation process possible for their situation.
Unlike arbitration the mediation process is voluntary and confidential. As trained neutral professionals, mediators facilitate agreements. At its best mediation empowers the parties to take control of the outcome of their case by mutual agreement.
Diane McWhirter received certification from the Florida Supeme Court as a Family Law and County Law mediator in 1991 and in 2010 as a Circuit Civil mediator, including probate, guardianship and foreclosure mediations.
HOW MORTGAGE MODIFICATION MEDIATION IN BANKRUPTCY SUCCEEDS
The Bankruptcy court located in Orlando, Florida, recently designed the Loss Mitigation Mediation Program to help Central Floridian bankruptcy filers retain their homes. This new program has been used in Chapter 7 cases only since the summer of 2014. In Chapter 13 cases, however, statistics show the program has been successful in the Orlando Division of the Bankruptcy Court for the Middle District of Florida at a rate of more than 70% for 2012 and 2013. Success occurs when a lender provides the HomeOwner a proposed modified mortgage within a reasonable time.
This process is successful in part because the Bankruptcy court can remove barriers to the modification such as credit card debt and second mortgages, that the state court system cannot remove. This allows many HomeOwners to qualify for a modification that would not qualify outside of bankruptcy.
The mediation gives the Homeowner and the Lender a common goal of working on the Home Owner’s loan modification application within a set timeframe. It gives the Lender and the Home Owner an occasion to meet and exchange information working toward that goal. It gives the Home Owner another chance to save the home. The process can be used, even if the homeowner suffered past modification denials, or had defaulted on a prior modification.
Either the Lender or the Homeowner initiates the Mediation by filing a Motion with the bankruptcy court. Once ordered the Bankruptcy Judges and the Chapter 13 trustee require and enforce good faith participation by both Lender and Home Owner. The bankruptcy court is strongly committed to a successful program. The program gives the Home Owner a real chance to save the realty.
Attorney McWhirter has defended foreclosure suits for the individual homeowner and their families in both state and federal court in Orange, Osceola, Seminole, and Brevard counties. When necessary she has asked the federal bankruptcy court for protection for the families. She has negotiated HAMP and other lending packages for the homeowner threatened with foreclosure. Additionally, through litigation or mediation she has re-negotiated terms of clients loans making it possible for them to remain in their home. The attorney is also a Florida Supreme Court certified mediator trained in bankruptcy and circuit civil mediation.