Tag: Divorce

House Buying Tips After Divorce

Posted by Ron Kauffman on

Buying a house is a big deal at any point in your life. However, if you’re looking to buy a house in mid-life, after a divorce, the decision is even bigger. That’s because you have to consider your wealth, retirement and fluctuations in how much you earn. Here are some things to consider before shopping.

Buying Tips

Check your debt

After the housing crash of 2008, buying and lending requirements for real estate have changed a lot.

There is increased scrutiny of mortgage applications. Before you even start to look for a house, look at your financial situation. How much money is available to you after spousal support and child support are paid, and after the property division?

Your ‘debt-to-income ratio’ is the amount of debt you have, as compared to your overall income. That debt-to-income ratio number is as important as your credit score.

Any lender is going to look carefully at how much debt you are carrying after the divorce. So, if you want to buy a house after the divorce, and debt is a big concern, plan to reduce your debt before you apply.

Florida Property Division

I’ve written about property issues before. Property division, or equitable distribution as it is called in Florida, is governed by statute and case law.

Equitable Distribution

Generally, courts set apart to each spouse their nonmarital assets and debts, and then distribute the marital assets and debts between the parties.

In dividing the marital assets and debts though, the court must begin with the premise that the distribution should be equal.

Unequal Distributions

However, if there is a justification for an unequal distribution, the court must base the unequal distribution on certain factors, including: the contribution to the marriage by each spouse; the economic circumstances of the parties, the duration of the marriage, or any interrupting of personal careers or education.

Additionally, courts can consider the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

However, courts generally can’t base unequal distribution on one spouse’s disproportionate financial contributions to the marriage unless there is a showing of some “extraordinary services over and above the normal marital duties.”

More House Buying Tips

Buy a house you can afford.

Buying a house within your budget is a great idea, and this is especially true when buying a house after your divorce, and during your middle years. That’s because your income can fluctuate due to changes in employment and the payment and receipt of support. So, it is important to have a realistic view of just how much home you can afford.

Looking for a home you can afford will help you avoid late payments.

There is also the chance of foreclosure because you did not plan to have the money to make the mortgage payment without dipping into your retirement, or savings.

Make a Big Down payment.

If after the divorce you have sufficient funds, consider using them to make a large down payment amount. Typically, twenty percent down is customary.

Making a larger down payment will lower your monthly mortgage payment, and could shorten the length of the mortgage.

Buying a house after you divorce in your middle years requires a close look at what your debt and expenses are. You want that debt and home expense to be a low part of your Florida living requirements.

 

Religious Marriage & Divorce

Posted by Ron Kauffman on

A recent survey found that 6 in 10 women who had Muslim religious weddings are not in legal marriages, depriving them of spousal rights. Many people have religious weddings, and don’t get a marriage license. What is the importance of the marriage license, and is the religious ceremony enough?

According to the London Guardian, nearly all married Muslim women have had a nikah, a religious marriage ceremony.

However, about 61% had not gone through a separate civil ceremony which would make the marriage legal.

If you have a religious marriage only, and the marriage breaks down, you may be unable to go to family court to divide marital assets, such as the family home and your spouse’s pension.

This trend of having a religious ceremony, but no civil marriage license, is becoming a problem as more people think having religious marriage ceremony is enough.

Florida Marriage Law

I’ve written about marriage validity, and the intersection between religious marriage and civil marriage before. First off, in order to be validly married in Florida, you need a license from the government.

No, you don’t get your marriage license from the DMV, but from the Clerk of the Court.

Getting a marriage license may seem like a trivial obligation, but if you want your religious marriage recognized in court, you must get a marriage license.

There is a fee for getting a marriage license, and that fee is reduced for attending pre-marital counseling. The license is valid for 60 days. The officiant at the ceremony must certify that the marriage was solemnized.

The certified marriage license must be returned to the clerk or an issuing judge within 10 days, and the clerk or judge is required to keep a correct record of certified marriage licenses.

Florida courts have repeatedly warned people that they cannot depart from the requirement of the Florida Statutes to have a license, otherwise the courts would be creating common-law marriages, which are not recognized here.

If you only have the religious marriage, but do not file for a marriage license, your marriage will not likely be recognized, and you cannot divorce, and cannot make claims for equitable distribution, or ask a court for alimony.

That can be a devastating surprise for many people.

Religious Only Marriages

Every religion has there own method of marrying. For Catholics, the celebration normally takes place within a Mass. In Judaism, there’s a marriage contract, a marriage canopy, and the breaking of a glass. In the Islamic nikah, there is a reading from the Qur’an, and the exchange of vows in front of witnesses.

Religious marriage without a license, is not only a major problem, but a growing problem.

Religious marriages are also easier to terminate than legally registered marriages, so marriage has become easy and divorce has become easy. It’s a disturbing trend.

Generally in Florida, regularly ordained ministers of the gospel or elders in communion with some church, or other ordained clergy, and all judicial officers, clerks of the circuit courts, and notaries public may solemnize the rights of matrimonial contract, under the law.

The Guardian article is here.

 

Ban Child Marriages

Posted by Ron Kauffman on

A pressing family law problem is the more than 200,000 children married in the United States. No, that’s not a statistic from frontier life in the 1800s, that covers marriages over the past 15-years. What is the status of child marriages?

According to the Independent there is a surprising number of child marriages: three 10-year-old girls and an 11-year-old boy were among the youngest to wed on the U.S., under legal loopholes which allow minors to marry in certain circumstances.

The minimum age for marriage across most of the US is 18, but every state has exemptions – such as parental consent or pregnancy – which allow younger children to tie the knot.

In May, the high-profile Republican governor for New Jersey declined to sign into law a bill that would have made New Jersey the first to ban child marriages without exception. Chris Christie claimed it would conflict with religious customs.

At least 207,468 minors married in the US between 2000 and 2015. The true figure is likely to be much higher because 10 states provided no or incomplete statistics.

Florida Child Marriages

I’ve written about marriage and divorce before. Many people would be embarrassed to know that Florida actually allows child marriages.

Our statutes say that if anyone seeking a marriage license is under the age of 18, all that’s required is the written consent of the parents. Even written consent isn’t required if the parent is deceased, or the child was previously married.

Currently, there is a Florida Senate bill which would prohibit a judge or clerk from issuing a marriage license to any person under the age of 18.

The current exceptions that permit a minor to marry, such as parental consent, the fact that a couple already has a child, or a physician’s written verification of a pregnancy, would be repealed. This bill would end child marriages in Florida.

The Scourge of Child Marriages

The problem of child marriages is concerning.

Between 70% and 80% of marriages involving individuals under age 18 end in divorce, and getting married and later divorcing can more than double the likelihood of poverty.

Children are trapped, because they face many obstacles when they try to resist or escape marriages that adults forced into marriage don’t.

Unless a child is legally emancipated – given the rights of an adult – a child has very limited rights, leaving children trapped in a marriage with an adult.

Last month New York banned children under 17 from marrying. Previously minors as young as 14 were allowed to in New York.

The Independent article is here.

 

Temporary Attorneys’ Fees

Posted by Ron Kauffman on

Canada’s Financial Post has an article explaining temporary attorneys’ fees to get you through a divorce. The process is similar in Canada to here, but then again, there are important difference in attorneys’ fees you should know about.

As the Financial Post asks:

What happens when the parties are not in an equal financial position? As contingency fees are not available in family law, how can a spouse with few assets or little income retain the professionals?

In Canada, the answer is found in the Family Law Rules, which say:

A Court can make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including lawyer’s fees.

The test before interim disbursements may be granted is to show that the case cannot proceed unless the funds are granted. In addition, the party must show that their position is sufficiently meritorious to warrant pursuit, and that special circumstances exist to allow the Court to exercise this extraordinary remedy.

Florida Attorneys’ Fees

Costs can be high in divorce in Florida too. One way to level the playing field of high divorce costs in Florida is to ask one side to pay for attorneys’ fees.

In Florida attorney’s fees may be awarded in a divorce, including enforcement and modification proceedings, separate maintenance, custody and support proceedings and appellate proceedings.

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding.

I’ve written about reducing attorneys’ fees through various means before. The purpose of awarding attorneys’ fees is to make certain that both parties in a divorce proceeding “will have similar ability to secure competent legal counsel.”

There are also fees for frivolous cases. A reasonable attorney’s fee can also be awarded to the prevailing party if the court finds that someone brought a claim that was not supported by the material facts the then existing law to those material facts.

Leveling the Playing Field

While temporary attorneys’ fees may sound like a windfall for the recipient spouse, in many complex matters, one spouse alone may spend $50,000 or more on experts’ fees, with legal fees being in excess of that amount in a divorce.

When making an order for interim disbursement, the court has discretion to decide both when the payment must be made by the wealthier spouse, and the way in which a payment will be accounted for.

Often in Canada, the payment is advanced against a future equalization (property) payment owing by the wealthier spouse. In many cases, it is clear early in the litigation that a property payment is owing — the only issue is “how much.”

Courts also have the discretion to order that the payment of attorneys’ fees be advanced as a loan to the recipient spouse, or on account of spousal support.

And sometimes, a court will simply order payment to be “uncharacterized,” meaning that whether or how the payor is credited will be determined in the future by the trial judge.

The Financial Post article is here.

 

Occupation and Divorce

Posted by Ron Kauffman on

If you marry a flight attendant are you more likely to divorce than if you marry a software developer? A recent report on occupation and divorce asks that very question.

The Study analyzed data from the 2015 American Community Survey, and, based on the number of people in a particular occupation who had married at least once, calculated the percentage of people who divorced.

Librarians have about a 28% chance of divorce, while phlebotomist have approximately a 46% chance.

Another un-surprising part of the study, people with less income are less likely to be married in the first place, and more likely to be divorced.

About 25% of “poor” adults aged 18 to 55 are currently married, compared to 39% of working-class adults, and 56% of middle- and upper-class adults (above the 50th percentile).

What the report found is that there is a divorce rate of at least 48.8% in the occupations “most likely” to experience divorce; the divorce rate is under 22% in the 10 occupations “least likely” to be subject to divorce.

Divorce in Florida

I’ve written about the correlation between occupation and divorce before. The numbers don’t paint the whole picture. If a person divorced and remarried by the time of the Census, they would be counted as married.

There are various reasons cited in the study for the fault behind the divorce rate. It could be that spouses in some jobs are just quicker to jump into the next marriage than others.

The data on occupation and divorce doesn’t reveal whether it’s the nature of the jobs that lead to divorce, or if people prone to unstable relationships are drawn to certain professions.

Florida abolished fault as grounds for filing a divorce. The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.”

But is no fault divorce the reason the for a higher divorce rate among bartenders than optometrists? Some people think so, and want to return to the old “fault” system to promote families.

Occupation as Predictor of Divorce

So, what are the occupations with the highest divorce rates:

  • Telemarketers
  • Bartenders
  • Flight Attendants

The occupations among the lowest divorce rates:

  • Actuaries
  • Physical Therapists
  • Chemical Engineers

Keep in mind that correlation is not causation. No one knows which bartenders are likely to stay married or divorced, nor give advice on choosing a profession based on the divorce rate.

Nor can the report tell you about those who choose to become bartenders may be less likely to have stable marriages for reasons other than their choice of profession.

Rolling machine operators seem to be in the same category today more because of their declining employment prospects than because of increased temptations to stray.

One question that does not command enough attention is why the correlation between relationship stability and employment prospects is so strong.

Commitment to an unstable partner — someone who runs up the credit card bills, incurs large health care expenses, or needs to be bailed out of jail — can diminish family savings, a source of peril.

The report is available here.

 

Inns of Court Award

Posted by Ron Kauffman on

It is with tremendous pride that I get to announce our Inn of Court, the First Family Law American Inn of Court, was awarded Silver Level Status in the American Inns of Court Achieving Excellence Program for the 2016-2017 Inn year.

The First Family Law American Inn of Court in Miami is a group consisting of lawyers, judges, magistrates, and judicial officers dedicated to professionalism, ethics, civility and excellence in the area of divorce, family law, child custody and related matters.

The award from the national organization was due in large part to the incredible work and leadership efforts of our Board of Directors, including: the Hon. Sandy Karlan, Bette Ellen Quiat, Elizabeth Baker, Cecilia Armenteros, Patricia Young, Daniel Silver and myself as president.

In upcoming Inns news, our Inns will once again be sponsoring the Town Hall meeting involving family law with the Hon. Scott Bernstein, Administrative Judge of the Family Division.

Sponsorship of Town Hall meetings helps our Inns of Court fulfill its mission to inspire the legal community, and to advance the rule of law by achieving the highest level of professionalism through example, education and mentoring.

 

Women Cheating and Divorce

Posted by Ron Kauffman on

Since 1990, the rate of married women who report they’ve been cheating on their spouses has increased by 40%, while the rate among men has remained the same. What is the impact of adultery and divorce?

The CNN Report

According to an article in CNN, more women than ever are cheating. What exactly is happening inside marriages to account for the closing gap between men and women and adultery?

According to the article, from a distance, the couples seemed happy enough, or at least content to be doing the family thing. They had cute kids, mortgages, busy social lives, matching sets of dishes.

On the surface, their husbands were reasonable, the marriages modern and equitable. If these women friends were angry unfulfilled or resentful, they didn’t show it.

Then one day, one of them confided in me she’d been having two overlapping affairs over the course of five years.

Almost before I’d finished processing this, another friend told me she was 100 percent faithful to her husband, except when she was out of town for work each month.

Often, they loved their husbands, but felt in some fundamental way that their needs (sexual, emotional, psychological) were not being met inside the marriage. Some even wondered if their husbands knew about their infidelity, choosing to look away.

Adultery and Divorce

I’ve written about the cheating before. Adultery can be the cause of a divorce, but can it impact the outcome? Since Florida became a no-fault state, the fact that, “she (or he) is sleeping with a co-worker” doesn’t hold much traction in court any more.

Anyone can file for divorce without proving any reason for it other than the marriage is “irretrievably broken.” Or is it? When is adultery relevant in divorce?

However, there is still a statutory basis for infidelity to be an issue in your divorce proceedings, but not in the way most people think. Here’s a quick review of when adultery can potentially creep into your divorce:

Parenting Plans/Custody

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.

So, if one parent can prove that the other parent’s adultery had, or is reasonably likely to have, an adverse impact on the child, the judge can consider adultery in evaluating what’s in the best interest of the child.

Equitable Distribution

Adultery may impact the division of property. Florida is an equitable distribution state, and it is presumed that property should be evenly divided.

This presumption may be overcome by proof that one spouse intentionally wasted marital assets.

This waste is sometimes known as dissipation. Paying for expensive jewelry, foreign trips, rent, car payments, and dinners for girlfriends and boyfriends is considered wasting marital assets. The court has the power to reduce an adulterer’s equitable distribution to credit the marital estate for waste.

Alimony

Florida law specifically provides that a court may consider the adultery of either spouse in determining the amount of alimony, if any, to be awarded.

However, courts have struggled to reconcile the “fault” of adultery with the concept of “no fault” divorce. The result is a mix of opinions depending on the judges.

Back to the Study

These women from the CNN article were turning to adultery not as a way to explode a marriage, but as a way to stay in it. The women seemed in control of their own transgressions. There seemed to be something new about this approach.

Twenty or thirty years ago they might have opted for divorce, because surely there was another man out there who could do better in this role, who could satisfy them completely.

But a lot of these women are children of divorce. They lived through the difficulties divorce can create.

The CNN article is here.

 

Rising Divorce Rates

Posted by Ron Kauffman on

The accepted wisdom is that divorce rates have dropped since the 1980s, and divorce rates have been declining since. A new report out of Great Britain is showing just the opposite, that divorce rates are increasing.

A recent article from the BBC in London reports that there were 106,959 divorces of opposite-sex couples in 2016 – an increase of 5.8% from 2015. It was the biggest year-on-year rise in divorce rates since 1985, when there was a jump of 10.9%.

Of 112 divorces of same-sex couples in 2016, 78% involved female couples.

Charity Relate said rising levels of household debt and stagnating wages could be putting a strain on marriages. For those in opposite-sex marriages, divorce rates were highest for women in their 30s and men aged between 45 and 49.

Overall, there were 8.9 divorces per 1,000 married men and women.

Florida and Divorce Rates

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

Some 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.

Some states, especially California, have stopped reporting divorce rates entirely.

In the U.S., the increase in divorce rates is being blamed on the Baby Boomers, those born between 1945 and 1954. In the 1970s, Baby Boomers, who were then in their twenties, were equally likely to divorce.

But by 1990, couples in their twenties were more stable, but the Baby Boomers, who were entering their forties, continued to divorce “at unprecedented rates.” Since then, the biggest rise in divorce has the “massive increase” in divorce among women in their fifties.

Back in the UK

A spokeswoman in the Britain said: “Although the number of divorces of opposite-sex couples in England and Wales increased by 5.8% in 2016 compared with 2015, the number remains 30% lower than the most recent peak in 2003; divorce rates for men and women have seen similar changes.”

The most common reason for the increase in divorce rates was “unreasonable behaviour”, with 51% of women and 36% of men citing it in their divorce petitions. Unreasonable behaviour can include having a sexual relationship with someone else.

Overall, women initiated proceedings in 61% of opposite-sex divorces.

Commenting on divorce rates, Chris Sherwood, chief executive of the relationship support charity Relate, said: “It is unclear as to why there was a slight increase in divorces in 2016 and as to whether this rise will continue or not.

“We know that money worries are one of the top strains on relationships and it may be that rising levels of household debt and stagnating pay growth could be contributing factors.”

“Divorce is not something that people tend to take lightly but our research suggests that many people could have saved their marriage and avoided divorce with the right support.”

The BBC report is available here.

 

Florida’s Expert Witness Crucible

Posted by Ron Kauffman on

Few people know that Florida passed a new law about expert witnesses a few years ago, which impacts divorce law. The Florida Supreme Court decided not to adopt the rule in its rule making process, waiting for a case in controversy instead. The case has arrived.

Florida’s Expert Witness Controversy

The Florida rule for expert witnesses was amended in 2013. There were some interesting things about the 2013 rule.

  1. The amendment was made by the Florida Legislature, not the Florida Supreme Court. That’s unusual because rule making authority is the court’s job.
  2. The way the Rule came into being by the Legislature created a constitutional challenge to the rule down the road.
  3. The new rule forced Florida courts to abandon the 70-year old Frye test for admitting expert testimony.
  4. The new rule required Florida courts to apply the Daubert standard, which is the standard applied in federal courts, the U.S. Supreme Court, and a majority of states.
  5. The Florida Supreme Court has said it doesn’t favor the new rule.

I have written extensively about Florida’s problem with expert witnesses before, including the constitutional issues. The constitutional problems dealt with the way the law was passed.

Generally, legislation which encroaches on the Supreme Court’s power to regulate courtroom practice and procedure is unconstitutional, but the Legislature can enact substantive law.

When one branch of government encroaches on another branch, Florida traditionally applies a “strict separation of powers doctrine.”

Given that the Evidence Code contains both substantive and procedural provisions, there was an open question whether the Legislature violated the separation of powers doctrine.

The Florida Supreme Court Case

As the Florida Bar News reports, when the Florida Supreme Court declined to adopt the legislative change to the expert witness rule, the panel said they wanted to address the issue in a case in conflict.

The court now has that case.

The Delisle case is a mesothelioma case in which the plaintiff argued he contracted the disease from smoking Kent cigarettes when they used asbestos in the filters, and from handling gaskets that contained asbestos when he worked at a paper mill.

The trial judge and the Fourth District Court of Appeal held – even though the Supreme Court had not passed on the Legislature’s amendment of the evidence code – the legislature’s expert witness rule must be presumed valid, meaning the Daubert standard should be used for expert witnesses.

The appellate court decided that under Daubert, the two experts should not have testified. The appellate opinion overturned the jury verdict and award Delisle had won in the trial court.

The Florida Supreme Court has not set a date for oral arguments.

The Florida Bar News article is here.

 

Divorce and Mortgage Tips

Posted by Ron Kauffman on

When there is equity in the home, everyone wants their share of the money as part of the final divorce. But, when one person wants to remain in the home, the party who decides to stay in the home will likely have to qualify for a mortgage on his or her own.

Staying in the Home

There are a lot of issues involved in the marital home, and when applying for that post-divorce mortgage. I’ve written before about property divisions when the housing market was down. Now that the housing market is in recovery, different issues arise.

Spouses who choose to stay in the home may have to refinance the mortgage to cash out enough equity to pay off their soon-to-be Ex. Even a spouse who has the financial resources for a buyout will still have to get a mortgage in his or her name.

The spouse walking away from the house, not only wants their share of the equity in the property, but need to get their name off the existing mortgage for a couple of reasons.

First, their name must be removed so their credit score won’t reflect the debt, that way they won’t be liable for any non-payment.

Once your name is on the mortgage, you are jointly and severally liable for the entire debt amount. The mortgage can tie up your credit, making it difficult to qualify for another mortgage, or even a car loan.

Worse still, if there’s a default or late payment of the mortgage – you are not only going to be sued – your credit report score could drop considerably, even though you are not at fault.

Investopedia offers a few tips to give yourself the best chance at getting a new mortgage after your divorce.

Pay the current mortgage

Even if you moved out of a jointly owned home during your separation, if your name is on the mortgage, you are still responsible for the payments. You may want to ensure that your spouse is keeping track of the bills to avoid damaging your own credit.

If your spouse refuses to make payments on the mortgage, and you rack up late notices or even a foreclosure, your own credit score can be badly hurt.

The result of a poor credit score could be a much higher interest rate on your new mortgage, which will cost you thousands over the lifespan of the loan, or rejection.

Remove your name from the mortgage

Your settlement and divorce decree may declare that you’re no longer responsible for the mortgage on the former marital home, but not in the eyes of the mortgage company! Before you can qualify for that post-divorce mortgage, you may have to refinance.

Unfortunately, getting your name off of the existing mortgage isn’t easy. In order to officially have your name removed from the mortgage, the spouse keeping the home will either have to refinance the home and qualify for an entirely new mortgage, or sell the home.

Until either of two choices are made, the mortgage payments are still directly linked back to your own credit — no matter what your divorce decree states.

In these situations, it is not unusual to add a clause to your agreement giving a party a period of time to either refinance the house or sell the house.

Don’t buy a new home yet

As with all major life changes, your divorce will significantly affect your financial status. Hold off on your decision to apply for that post-divorce mortgage and buy that new home until you’ve had time to adjust to a newly single income, child support payments, and alimony payments.

Purchasing a new home immediately after your divorce is final can be tempting, but don’t forget to take care of these three items first.

By making financially wise decisions with your current mortgage, you’re setting yourself up for success—when the time comes to get a new mortgage and move into your new home.

The Investopedia article is available here.