Tag: best divorce lawyer

Virtual Divorce Court

Since we have moved to a virtual divorce court system, there have been a surge of people filing for divorce in the United States. This is a pattern also seen in China, Britain and Sweden. But as the New York Times reports, there are also problems with the reopening of virtual court, for expected reasons, and less obvious ones.

divorce surge

Old Problems and New

National statistics are not yet available, but there seems to be more work for lawyers and mediators across the board. Consultations are up significantly, but at the same time, some clients are frozen. Many people do not want to initiate the divorce process when their spouse is earning less or business values are down.

Every divorce comes laden with its own issues, but there are some pandemic-era problems facing those wondering whether to stay or get divorce. The pandemic hasn’t just heightened the tension in marriages. It’s also heightened the tension in divorces.

Lawyers acknowledge that although there is rarely travel time or time spent waiting around court for clients to pay for these days because almost everything is virtual and by appointment. However, this convenience can be offset by other costs, like waiting for hours outside courthouses to file something the electronic system won’t accept.

Then there’s the problem of documents which need to be notarized. Something once so simple a lawyer could do it while waiting with a client at court is a problem. Now, if clients don’t want to notarize something in person, it may require video calls along with the document being sent back and forth via snail mail or delivery service.

Florida Problem Free Divorce

I’ve written about no-fault divorces before. Historically in Florida, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.

This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was. In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010. Whether or not it is intimacy or communication, you do not need to list a reason for a divorce other than an irretrievable break in the marriage.

Virtual Divorce Court

Further complicating things in virtual court is how difficult it can be to get on a judge’s calendar for a non-urgent matter. Besides the backlog in many courts, the video hearings in some virtual courtrooms mean that judges are able to get through fewer cases than in the pre-COVID world, when everyone was crowded into the same courtroom and cases went one after another.

The crush of cases means there is even more of a push to settle — pre-pandemic, some 90 percent of divorce cases didn’t go to trial. Some lawyers say that during the pandemic that figure is closer to 98 percent.

In addition to mediation, there has also been an uptick in couples using the collaborative divorce process. Collaborative divorce is a voluntary process in which couples work toward  a settlement  without the financial and emotional cost of litigation.

It may also be harder for clients to feel they have gotten a fair hearing via a zoom hearing. Virtual backgrounds can be frowned upon, because a judge needs to be able to see who else might be in the room.

In addition to the problem of how you appear before the court, there’s the added problem of how to consult with therapists, lawyers, and real estate agents, because there’s so little privacy with everyone at home.

There is also the more significant problem that judges can’t see body language, and nor can clients, who in the past could use it to glean information about the judge’s reaction to their position as presented by their lawyer. This can make clients wonder if the judge has fully heard them.

The New York Times article is here.

 

National Divorce Day

National Divorce Day arrives at every new year, and after the stress of 2020, this year is not likely to be different. But is there a way to avoid the surge in new year divorce filings?

National Divorce Day

New Year, New You

National Divorce Day is the first working Monday of the New Year when legal firms see a surge in consultation requests from people seeking a divorce and separation.

Lawyers typically see the number of inquiries double around this time and then in late January it tails off. Over the last two or three years people even inquire a little bit earlier between Christmas and New Year.

Legal statistics have shown that marital dissolution filings can jump as much as 27-30 percent during the first month of the year. In 2019, searches for divorce peaked between January 6-12 according to Google. This year, that Monday is January 4.

It’s thought the surge is due to a breakdown in relationships nearing the festive period, with couples halting divorce proceedings until after Christmas and New Year so as not to spoil the fun.

Relationships can also break down in January because of New Year’s resolutions or stress over the holiday period. Clients can wait until after the holiday season to start divorce proceedings, and these folks have been contemplating divorce for months, if not years.

Many of them have actually held out until the holidays were over to leave so as to spare their children from connecting Hanukkah, Christmas and New Years divorce.

Florida Divorce

I’ve written about the rise in new years divorce filings, and many times the holiday season can highlight problems. What should you do? Whatever the reason for your problems, there are a few things that anyone looking into divorce for the first time needs to know to help them through the process.

Prioritize

Line up your priorities for life after the divorce. Is it finding a home? Is it retiring? Getting a job? Managing your special-needs child? Consider writing down your most important goals.

Consult

Even if you aren’t certain you need to hire an attorney, or filing for divorce at all, it is a good idea to meet with an expert in Florida’s divorce and family laws. Who better than someone certified by Florida as an expert in marital and family law? We offer free consultations, but even when there is a charge, it is well worth the fee to get accurate information.

Alternatives

Litigation is something to avoid. It’s time-consuming, contentious and expensive. The majority of divorces end up settling. There are many forms of alternative dispute resolution out there, including collaborative divorce, mediation, and informal settlement conferences.

2021 National Divorce Day

The events of 2020 have led many to believe that there are more reasons than ever to really take stock before making one of the most consequential decisions of your life. COVID-19 has been a game-changer in many ways for all of us, not the least of which has been in relationships.

If there was already stress and strain in the marriage, the pandemic has been like gas on the fire, magnifying all the nooks and crannies of pain and resentment between partners. If things were fine before COVID-19 hit, they might not be so great nine or 10 months in. Many of us are stressed and edgy.

The fallout from 2020 will leave a large wake of destruction and loss. It’s never a good idea to make any decision—let alone perhaps the most major decision of your life—when you’re on rocky terrain. So, there are some important and obvious reasons why this January might be the worst year ever to take the divorce leap.

Some helpful advice from Newsweek:

Consider whether you need a temporary or permanent break

Just about everyone in a long-term relationship has thought on occasion about what life would be like if they were free, single, and didn’t have to answer to anyone. It seems we humans often want what we don’t have. But, having worked with enough divorcing folks, I’ve heard plenty say, “If I had known how hard divorce would be (or how lonely I would be), I would’ve stayed in my marriage.”

 Evaluate the kind of hit your finances could take

Between 2007 and 2009, 18 percent of my private practice population was homeless as a result of getting a divorce at the exactly the wrong financial time. These homeless people included what we’d normally call “successful” people: an attorney, an accountant and a social worker.

Hard times compounded by the divorce, they ended up with nowhere to live and not enough money to rent a place. With 2020 having decimated businesses and many economies around the world, it’s important to think long and hard about how you’ll get basic needs met if the bottom falls out.

The Newsweek article is here.

 

Exploding International Divorce Rates

More news about exploding international divorce rates as new data shows the largest annual percentage increase in separations in England and Wales in nearly 50 years – with same-sex splits almost doubling.

International Divorce Rates

Not So Merry England

The Office for National Statistics (ONS) said divorces of heterosexual couples rose by 18.4% 90,871 in 2018 to 107,599 last year – the highest number since 2014, when 111,169 divorces were granted.

It was the largest annual percentage increase in the number of divorces since 1972, following the introduction of the The Divorce Reform Act 1969 which made it easier for couples to divorce upon separation, the ONS said.

Divorces among same-sex couples in England and Wales nearly doubled, from 428 in 2018 to 822 last year. Nearly three-quarters (72%) of these were between female couples.

The data suggests a reversing trend after divorce rates in the previous two years had dropped to their lowest since the early 1970s.

Florida Divorce Rates

I’ve written about fluctuating divorce rates in the United States before. Part of the problem with counting divorces in the U.S., unlike in England and Wales, is that collecting divorce statistics in the United States is not consistent.

Individual counties in some states keep excellent records of finalized divorce cases, an important statistic in measuring divorce rates. Miami-Dade County, for instance has excellent records of filing online. However, other counties in Florida and outside of Florida may not.

Additionally, different American states and the federal Census Bureau, have had a rocky history of collecting the data from across the country on divorce rates. In fact, the federal government has stopped providing financial support for detailed state collection.

The Crown . . . of Statistics

The crown of statistics gathering in England, the ONS, said that the scale of the recent increases could partly be attributed to divorce centers processing a backlog of casework in 2018, which was likely to have translated into a higher number of completed divorces in 2019.

It added the size of the increase can be partly attributed to a backlog of divorce petitions from 2017 that were processed by the Ministry of Justice in early 2018, some of which will have translated into decree absolutes (completed divorces) in 2019.

This is likely to have contributed to both the particularly low number of divorces in 2018 (the lowest since 1971) and the increase seen in 2019.

“The pandemic has put immeasurable strain on relationships and has caused a massive influx of cases hitting the divorce courts. In 35 years as a family lawyer I have never seen a consistently busy year like this year and that will be reflected in next year’s divorce numbers.

The ONS also said that the number of same-sex divorces has risen each year, reflecting the increasing size of the same-sex married population since the introduction of marriages of same-sex couples in March 2014.

Same-sex couples have been able to marry in England and Wales from March 2014. Since then, the number of divorces of same-sex couples increase each year from very small numbers in 2015, when the first divorces took place, to more than 800 in 2019, reflecting the increasing size of the same-sex married population in England and Wales.

While we see that 56% of same-sex marriages were among females, nearly three-quarters of same-sex divorces in 2019 were to female couples. The ONS said that there had been an overall downward trend in divorce numbers since the most recent peak of 153,065 in 2003.

But this is broadly consistent with an overall decline in the number of marriages between 2003 and 2009. Unreasonable behavior was the most common reason for couples divorcing in 2019, the ONS said.

The new figures showed that 49% of wives and 35% of husbands in heterosexual marriages petitioned for divorce on these grounds. It was also the most common reason for same-sex couples divorcing, accounting for 63% of divorces among women and 70% among men.

The Independent article is here.

 

Fault and Extreme Cruelty in Divorce

The South Dakota Supreme Court weighs in on when a divorce can be issued on fault based grounds of extreme cruelty. A father in a divorce case was awarded custody of his children, attorneys’ fees and sanctions the hard way.

Divorce Extreme Cruelty

Bad Marriages in the Badlands

Rachel Evens and Tim Evens were married in 2005 and have four children. Tim owned and operated a carpet cleaning business, known as Tim Evens Carpet Care. Rachel began working for Tim’s carpet cleaning business and Tim gave her a 90% ownership interest.

Then things went bad.

Rachel obtained a domestic violence injunction based on allegations that Tim physically and sexually assaulted her. She removed the children from their schools in Rapid City and took them to Montana. But after an evidentiary, the court found her testimony was not credible and denied the injunction.

When Tim traveled 750 miles to get the children, Rachel prevented Tim’s departure by taking the keys to his vehicle and physically engaging him by pushing and pulling him inside of her house and in front of the children.

Rachel was represented by four different attorneys, each of whom quickly moved to withdraw

Rachel physically and mentally abused Tim, loudly accusing Tim of extramarital affairs at a restaurant, causing patrons to take notice. After dinner, Rachel told Tim she was going out to find a man to satisfy her, only to return later to taunt him by advising him she had succeeded in her effort.

Rachel falsely accused Tim of raping her, failing to pay taxes and hunting without a license, all of which the court determined were unsupported by the evidence

Tim commenced a divorce alleging irreconcilable differences or, in the alternative, extreme cruelty. Tim also requested primary physical custody of the children, equitable division of the parties’ assets, and child support

Florida Fault and Extreme Cruelty

I’ve written about no fault divorce before. No-fault laws are the result of trying to change the way divorces played out in court. In Florida no fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

Unlike South Dakota, Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or extreme cruelty.

The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.

Supreme Court of the Black Hills

The Supreme Court of South Dakota found that the family judge had made detailed findings of fact and conclusions of law as part of its decision to grant Tim’s request for divorce on the grounds of extreme cruelty.

Specifically, the court found that Rachel had physically abused Tim, including hitting, slapping, and kneeing him, as well as spitting in his face. The court also found Rachel had mentally abused Tim by calling him several names, including “stupid, dumb” and a “prick of a man.”

Rachel also told Tim that she was going to find someone else to satisfy her while also accusing him of having extramarital affairs and leveling unsupported allegations that he had committed serious criminal misconduct.

The court credited testimony from several witnesses who relayed derogatory comments Rachel made about Tim to her family, the parties’ children, and their friends.

This behavior, the court found, had continued throughout the marriage with more frequent, escalating incidents over time. As a result, the court found that “Rachel’s conduct toward Tim during this marriage has caused Tim great pain, anxiety, stress, grievous mental and physical suffering and constitutes extreme cruelty.

The circuit court’s comprehensive custody analysis includes over 300 findings directed to determining the children’s best interests. These findings are supported by the record, and we conclude that the court did not abuse its discretion by granting primary custody to Tim.

The South Dakota Supreme Court opinion is here.

 

Swinging into Child Custody Co-parenting

Four years after Spiderman star Tobey Maguire separated from his estranged Wife Jennifer Meyer, the couple is swinging into a new life of child custody and co-parenting in a way many divorcing couples should stick to.

Spiderman coparenting

Spiderman Meets Divorce Court

The two are officially ending their marriage. Four years after splitting, Meyer filed for divorce from the actor. Jennifer Meyer announced their separation, but the issues that led to the end of their nine-year marriage are not new.

“They’ve been living separate lives for a while. They have completely different interests and haven’t seemed to be connecting.”

Part of the problem seems to be a personality clash. “He’s extremely private and prefers to stay home, and she’s very social and has tons of girlfriends,” the source explains.

“They haven’t been happy together for a long time. But they are great parents, and they love their children.” A family friend echoed the couple’s devotion to their children. “It’s a marriage that’s ending, but a bond and a family as strong as any I know. They’re remarkable people. And very supportive of each other.”

Florida Co-Parenting

The question about an award of custody of children frequently comes up and is a matter I’ve written about before. Many people are surprised to learn that the term “custody” is no longer recognized in Florida.

Florida replaced the “custody” term for the “parenting plan” concept in order to avoid labeling parents as “visiting parent” or “primary parent” in the hopes of making child custody issues less controversial, and encourage parents to co-parent more effectively.

Under Florida’s parenting plan concept, both parents enjoy shared parental responsibility and a time-sharing schedule. “Shared parental responsibility” means both parents retain full parental rights and responsibilities and have to confer with each other so that major decisions affecting their child are made jointly.

A time-sharing schedule, as the name suggests, is simply a timetable that is included in the parenting plan that specifies the times, including overnights and holidays, that your child spends with each parent.

Florida’s parenting plan concept has changed sole custody into “sole parental responsibility.” The term means that only one parent makes decisions regarding the minor child, as opposed to the shared parental responsibility terms, where both parents make decisions jointly.

Spidey Sense

Maguire, 41, and Meyer, 39 met in early 2003 and were married four years later in an intimate wedding ceremony in Hawaii, witnessed by a small group of family and friends.

At the time Meyer, a jewelry designer, shared her feelings about the big moment, telling USA Today, “Let’s just say this is truly the best time of my life. I’m walking on air. I’m getting married, starting a family and have an amazing company.”

The actor, who has spoken out about having a rocky childhood, revealed that settling down was a big priority in his life.

“Growing up the way I did, I had a very serious ambition to make some money, to have some security and comfort in my life,” he told Parade magazine in 2007.

Maguire has been keeping a low profile in Hollywood since wrapping up Spider-Man 3 — his final outing with the franchise — in 2007, appearing only in a handful of carefully selected projects including 2013’s The Great Gatsby and 2015’s Pawn Sacrifice, his last film to date.

The actor has also been seen hanging with pal Leonardo DiCaprio and girlfriend Nina Agdal, mostly recently on a yacht in Ibiza.

Maguire and Meyer also attended Jennifer Aniston and Justin Theroux’s secret wedding last year (Meyer designed Aniston’s wedding ring), and eventually joined Aniston and Theroux on a group honeymoon trip to Bora Bora that included a slew of other friends.

“They have completely different interests and haven’t seemed to be connecting,” the insider said at the time. “He’s extremely private and prefers to stay home, and she’s very social and has tons of girlfriends.”

“They haven’t been happy together for a long time,” the source continued, “but they are great parents, and they love their children.”

Despite their separation, the duo seems to have remained on friendly terms. The Spider-Man star has shown up to support Meyer in the years since their split. In 2018, Maguire attended the opening of his ex’s jewelry store in Los Angeles and posed for photos with Meyer.

In June, Meyer wished Maguire a happy Father’s Day on Instagram, calling the actor her “best friend.”

“To the best baby daddy. All is can say is no matter what happens in life, to relationships etc…. choose a dad for your kids that you can count on forever. This one right here is my best friend and the greatest dad to our babies. I’m sorry Tobey, I know you hate Instagram, but every once in a while I like to brag to everyone about how special you are ❤️ Happy Father’s Day.”

The People article is here.

 

Marriage Penalties

Although Florida doesn’t have a state income tax, many people moving here from other states and seeking divorce, frequently ask whether our state has marriage penalties built into the tax code. The Tax Foundation has the answer.

marriage penalty

What is a Marriage Penalty?

A marriage penalty is when a household’s overall tax bill increases due to a couple marrying and filing taxes jointly. A marriage penalty typically occurs when two individuals with similar incomes marry; this is true for both high- and low-income couples.

In other words, a marriage penalty arises any time a married couple pays higher income taxes than they would have paid if they were un-married and filed individual tax returns.

At the federal level, the Tax Cuts and Jobs Act of 2017 definitely lowered the cost of being married for many couples. But being married can be more expensive than being two single tax filers on April 15th.

For example, if a couple has children and both spouses earn income, they can owe thousands of dollars every year just for being married.

Some states have their own income tax. Under a graduated-rate income tax system, a taxpayer’s marginal income is exposed to progressively higher tax rates.

A marriage penalty might exist when a state’s income brackets for married taxpayers filing jointly are less than double the bracket widths that apply to single filers.

Put differently, married couples who file jointly under this scenario face a higher effective tax rate than they would if they filed as two single individuals with the same amount of combined income.

Florida Divorce and Tax

I’ve written about divorce and taxes before. For example, in 2012 the American Taxpayer Relief Act made permanent the Bush-era expanded standard deduction, and the expanded 15% bracket for joint filers.

But for high income earners, the 2012 law raised taxes on couples making more than $450,000, and individuals making more than $400,000.

As it turns out, some couples found out they could save over $25,000 a year if they divorced.

State Marriage Penalties

While Florida doesn’t have a state income tax, fifteen states have a marriage penalty built into their bracket structure. Seven additional states (Arkansas, Delaware, Iowa, Mississippi, Missouri, Montana, and West Virginia), as well as the District of Columbia, fail to double bracket widths, but offset the marriage penalty in their bracket structure by allowing married taxpayers to file separately on the same return to avoid losing credits and exemptions.

Ten states have a graduated-rate income tax but double their brackets to avoid a marriage penalty: Alabama, Arizona, Connecticut, Hawaii, Idaho, Kansas, Louisiana, Maine, Nebraska, and Oregon.

The ability to file separately on the same return is important in states that do not double bracket widths, as is the ability to do so even if the couple files jointly for federal purposes.

While married couples have the option of filing separately—though some states only allow this if they do so on their federal forms as well—this normally creates a disadvantage, because it either disallows or reduces the value of deductions and credits available to the family jointly, which is also a form of marriage penalty.

Filing separately on the same return eliminates this problem, though at the cost of slightly greater complexity than doubling tax brackets for joint filers so that there is no penalty for filing jointly.

The Tax Foundation article is here.

 

Cardi B, Divorce, and Infidelity

Singer Cardi B has filed for divorce from rapper husband Offset because of his alleged infidelity. The divorce petition was filed in Georgia, and there is an initial hearing scheduled for November. Many have asked whether infidelity is grounds for a divorce.

Cardi B Divorce

No Longer Migos

Belcalis Marlenis Almánzar, known professionally as Cardi B, became an Internet celebrity and her debut album was number one on the Billboard 200, broke several streaming records, was certified triple platinum and named by Billboard the top female rap album of the 2010s.

Kiari Kendrell Cephus, known professionally as Offset, is a member of the hip hop and trap music trio, Migos. The couple married in 2017 in a secret ceremony.

Our relationship was so new breaking up and making up and we had a lot of growing up to do but we was so in love we didn’t want to lose each other, was one morning in September we woke up and decided to get married … No dress no make up and no ring.

Their daughter, Kulture, was born in July 2018 – Cardi B’s first child and Offset’s fourth. Cardi B is reportedly seeking primary custody, and child support from Offset.

Florida Divorce and Infidelity

I’ve written about the impact of infidelity and divorce before. In practical terms, adultery as a crime poses very little threat of prosecution, but it could have other consequences.

“Cheating on your spouse can even be grounds for losing your job. This is particularly true in the military, where adultery has a maximum punishment of a dishonorable discharge.”

Chapter 61 discusses the “the moral fitness of the parents” as one of the factors the court considers in determining the best interests of a child. Adultery may impact the division of property. Proof that one spouse intentionally wasted marital assets could be seen as dissipation of assets. Adultery of either spouse could be a factor in determining the amount of alimony, if any, to be awarded.

There are times when evidence of adultery comes into evidence. Most often it doesn’t. In 2003, the U.S. Supreme Court ruled in Lawrence v. Texas that sexual activity between consenting adults is legal.

Bad and Boujee

Their relationship has had high-profile ructions. Following rumors of Offset’s infidelity in 2017, Cardi B said:

“No, it’s not right … But what you want me to do? Start all over again and get cheated on again? This shit happens to everyone.”

The couple stayed together but briefly split in December 2018, with Cardi B saying: “Things just haven’t been working out between us for a long time … we just grew out of love.”

Offset publicly pleaded for a resolution, saying:

“I was partaking in activity that I shouldn’t have been partaking in, and I apologize. For breaking your heart, for breaking our promise, for breaking God’s promise and being a selfish, messed up husband.”

They reconciled in January 2019. But could he “walk it like I talk it?” Their divorce ends one of the highest-profile celebrity relationships in the US. Cardi B is among the world’s most successful and respected rappers – after breaking through in 2017 with US No 1 hit Bodak Yellow she has had three other No 1 singles, more than any other female rapper.

They collaborated with Cardi B on the 2017 single MotorSport. Offset has also released a successful solo album, Father of 4, featuring a hit track, Clout, with Cardi B. He has also guested on US Top 10 hits with Kodak Black and Tyga.

The Guardian article is here.

Photo by Frank Schwichtenberg – Own work.

Strategy if Your Spouse Files for Divorce

There is some strategy for you to consider if your spouse asks you for a divorce. MSN discusses some things you could do immediately to protect your personal and financial interests. Obviously, it is difficult to focus on money when your marriage is ending, but you need to make sure that you reach a fair and equitable divorce settlement too.

divorce strategy

A Few Good Moves

You wouldn’t end a business partnership without first determining that all assets were divided fairly. The same holds true for dissolving a marriage. Focus on the following things immediately if you learn that your spouse is planning to end your union.

Hire a good attorney

According to MSN, hiring a lawyer is crucial. Your goal: Find an experienced advocate who will put your personal and financial interests first. Never share the lawyer with your spouse. Make sure you feel comfortable with the attorney.

Get referrals for attorneys from your trusted friends, family members and business associates, but keep in mind you want a lawyer who specializes in family law and divorce, preferably someone board certified as a specialist by your state’s Bar Association, and who is very involved in the legal community.

Monitor your credit reports

Protect yourself by preventing your spouse from running up large or unnecessary bills at this time. For now, at least, you may be responsible for half of any joint expenses.

“You know your spouse better than anyone else. If you know they’re not trustworthy, or they have a gambling problem, or you both are in a lot of debt, that tells you there are financial warning signs.”

Monitoring your credit score and credit reports before, during and after a divorce will ensure that your credit is safe and that no one else is using your name to borrow.

Florida Divorce

The official term for divorce in Florida is “dissolution of marriage”, and you don’t need fault as a ground for divorce. Florida abolished fault as a ground for divorce.  I’ve written about divorce before. In order to divorce in Florida, you need to file a petition for dissolution of marriage in the family court.

The no-fault concept in Florida means you no longer have to prove a reason for the divorce. Instead, you just need to state under oath that your marriage is “irretrievably broken.”

Before the no-fault divorce era, people who wanted to get divorce either had to reach agreement in advance with the other spouse that the marriage was over or throw mud at each other and prove wrongdoing like adultery or abuse.

No-fault laws were the result of trying to change the way divorces played out in court. No fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.

But there is some additional strategy to protect yourself.

Consider Closing joint accounts

To protect your credit rating, you may want to consider closing credit accounts that your spouse has access to. The idea is to prevent your spouse from incurring large debts before the divorce is final.

With joint credit cards, you are liable for any debts taken on by your spouse, says Sarah Carlson, a certified financial planner in Spokane, Washington.

If your spouse can’t pay the debts he or she runs up on your joint accounts, you may be held responsible.

Determine how much money you’re entitled to

When people divorce, many financial issues are tied to the size of the marital estate. To help you determine which assets you’ll be entitled to in a divorce, you’ll need to understand how much you and your spouse are worth, separately.

“For example, identification of an income-producing asset may be helpful for determination of child support and maintenance issues, while also affecting the division of the marital estate”.

Your job: Find out which assets are in your name and which belong to your spouse.

Protect your savings

It is easy to use up your cash quickly in a divorce. Safeguard your joint assets by asking your financial institutions to require two signatures for withdrawals.

“We generally don’t advise doing this with a regular joint checking account that is continuing to be used for household expenses, because that can become cumbersome. But we do advise dual signatures for any savings or investment accounts.”

Keep things as friendly as possible

Starting your divorce on an amicable note will make the proceedings easier and less time-consuming. From the beginning, work to keep things civil.

When you spend time bickering over minor issues, the only people who benefit are attorneys billing you by the hour.

“If ever there was a time to pick your battles, this is it. If you fight over every detail of your divorce, the fights will be never-ending, and that will impact your emotional state and your wallet.”

Talk with your children

The needs of children sometimes can be overlooked when parents divorce.

The best way to break the news of a divorce to children is for both parents to explain that their relationship is changing, making it clear that both parents love the children and the parents respect each other, says David T. Pisarra, a family law attorney in Santa Monica, California.

The Mayo Clinic advises parents to spend time explaining to children what is happening. Let them know that the separation isn’t their fault and that you will continue to care for them.

The MSN article is here.

 

Enforcing or Modifying Your Marital Settlement Agreement

We scored another big appellate win which sheds light on the question: are you enforcing or modifying your marital settlement agreement when a family court requires the continuation of soccer and other extra-curriculars?

The Beautiful Game

In our recent appeal, the parents had three children. After less than a decade of marriage, they divorced in Portugal, but they never had a parenting plan for their children. After they both moved to Miami with the children, a family court ratified their agreed parenting plan.

Under their parenting plan, they agreed to certain extracurricular activities, including organized activities such as soccer, lessons and special training. However, the sports and activities had to be mutually agreed on by the parents in accordance with Florida’s shared parental responsibility statute.

All of the children’s current extracurricular activities, especially ‘the beautiful game,’ soccer, were agreed upon by both parents. Additionally, they agreed that the parent exercising time sharing with the children handle the transportation with the necessary equipment.

Although all three of the children were traditionally dedicated to sporting activities, their involvement in youth soccer travel teams had increased, requiring more of a time commitment because the children are expected to attend frequent practices, and regularly traveling outside of their local community for games and tournaments.

The father filed a motion to stop the soccer commitments of the children and to eliminate his obligation to transport the children to certain competitive events during his timesharing.

The family judge heard his motion, and, after considering the relative merits of the parties, along with the language reflected within the parenting plan, entreated the parties to reach an agreement as to enrollment and participation in the relevant activities.

When that failed, the court conducted another hearing and authorized the mother to re-enroll the children in their respective leagues and directing the father to transport the children to those competitive events scheduled during his timesharing.

He appealed.

Florida Marital Settlement Agreements

I’ve written about modifications and enforcement of marital settlement agreements before. Most family law cases are resolved by agreement, not by trial. A Marital Settlement Agreement is the method to resolving all of the issues, and is the final product of the negotiations.

A marital settlement agreement puts in writing all the aspects of the divorcing parties’ settlement. Topics covered in the Marital Settlement Agreement include the parenting plan and timesharing schedule, the division of the parties’ assets and liabilities, and often times: soccer and other extra-curricular activities to which the parties have agreed.

A marital settlement agreement entered into by the parties and ratified by a final judgment is a contract, subject to the laws of contract. The enforceability and modifications of contracts in Florida is a matter of importance in Florida public policy.

Because a marital settlement agreement is treated like any other contract, and is subject to interpretation like any other contract, they can be enforced by the court. Unique to marital settlement agreements though, they may be modified too.

But sometimes it is difficult to tell whether the court’s action is a modification of a contract or the enforcement of a contract. Our recent appellate goal hopefully sheds some light on that distinction.

Goal!

Ruling in our favor, the appellate court wrote an opinion stating that under the principle of shared parental responsibility, major decisions affecting the welfare of the child are to be made after the parents confer and reach an agreement.

However, in cases in which the parents cannot reach agreement on such a decision, the dispute should be presented to the trial court for resolution. In resolving the impasse, the lower tribunal must be guided by a consideration of the best interests of the child.

In our case, the parenting plan allows for shared decisions over extracurricular activities, but prohibited the unreasonable withholding of consent. So, the court was properly permitted to explore the facts and circumstances surrounding both continued participation and transportation.

At the time the parents signed the parenting plan, the children were already heavily involved in soccer. By including a provision that the “present extracurricular activities are agreed upon by both parents,” and allocating continuing enrollment expenses and other relevant allowances for league travel, the agreement clearly anticipated a continuation of such participation.

Further, as the trial court did not “change the status quo [or] alter the rights and obligations of the parties,” but merely rejected the unreasonable withholding of consent, we conclude the decision was grounded in enforcement of the existing 7 terms of the judgment, and affirmed.

The opinion is here.

 

Divorce Real Estate Problems: House Custody?

You can face many real estate problems in a divorce, but how about house custody? One unique case involves a couple which jointly owns a home, are both on the mortgage, and whose children left. She wants to be able to spend time living at their home alone. The husband disagrees and refuses to leave for any amount of time. Does she have the legal right to house custody half of the time?

House Custody

Brick and Mortar Issues

The New York Times article re-frames the issue as a case of a married couple, jointly owning a house, with equal rights to it. So, the article states both need to be in agreement about what to do with the property.

Neither of you can sell the house without the other’s consent, nor can you limit each other’s access to it. It’s as much his house as it is yours.

If they bought it together and maintained it together, it’s marital property and most likely it would be divided 50-50. Most likely, they would be both entitled to live there until the place is sold.

The article suggests that for the moment, set aside your immediate desire to share time at the house and, instead, figure out what you ultimately want for the house once your divorce is finalized.

Do you want to keep the house? If so, you may eventually need to buy out your husband when you divide your assets. Or do you want to move? In that case, your husband could either buy you out or you could sell the property and divide the assets.

Florida Divorce Real Estate Problems

I’ve written about real estate problems in divorce cases before. A big question frequently arises: should you move out of the house before the divorce is over?

Sometimes the arguing gets too intense, and the court must intervene. For one couple in Brooklyn, their arguing resulted in their being ordered to build a wall dividing their home so each could stay in the house peacefully.

This was not just a simple line on the floor as in the 1989 movie: War of the Roses, but an actual wall of plywood and sheetrock through the middle of their house (see picture above). Interestingly, the judge gave the wife the kitchen and the husband the dining room.

The marital home is a valuable asset, maybe your most valuable asset, but it is also a place for you to live in and it is an important, and possibly big part, of the final settlement. Consider the following:

Marital Asset

The home remains a marital asset, which is subject to equitable distribution, regardless of who lives there during the divorce process. If a home is marital then both parties have equal rights to buy–out the other’s share. Both may also be on the hook for liabilities.

Children’s Issues

Until a parenting plan in place, if you are interested in maintaining a meaningful relationship in your child’s life, leaving the home before a timesharing agreement is entered may show a lack of real interest in the child’s daily life. Moving out can create the appearance of a new ‘primary residential parent’ by default. Worse, if the process takes a long time, it creates a new status quo.

Cost

The person leaving may still have to contribute for the expenses of the home while also paying for a new home. It can be costly, and prohibitive expensive when you know that the process will take a long time.

Settlement

Staying in the same home could create an incentive to negotiate a final settlement because living with your soon to be ex-spouse is very uncomfortable. However, if someone moves out, the person remaining in the home is sitting pretty and may be less inclined to settle.

If you Leave

Before moving out, there should be some discussions about maintaining the home and who is paying for which expenses, an inventory should be made of the personal property, artwork, silverware etc., and the boundaries for when the ‘out-spouse’ can use and enjoy the home after vacation

The New York Times piece correctly suggests thinking about your long-term goals. Once you’ve done that, try to reach a temporary agreement for how to weather this transition period.

That may mean that you alternate time spent in the house, or it may mean that one of you moves out, or that you both continue to live there until you can sell the property and move on with your lives. Moving out will have financial ramifications for both of you and those need to be carefully considered.

The New York Times article is here.