Recent Blog Posts in January 2010

Florida law requires that there be language in the Final Judgment of Dissolution of Marriage to comply with the requirements of the military law to divide a military pension.

If a spouse has been married to a member of the military for a period of at least ten years while the military spouse has been in the service for at least an overlapping ten years, the Final Judgment of Dissolution of Marriage must contain certain language.  

There must be a statement to specifically identify the military member.   Then, there must be a statement that the rights of the service member have been protected under the Servicemembers Civil Relief Act.   (This has to do with notice and an opportunity to be heard.)

Next, there must be a specification of the amount of the retired or retainer pay to be distributed expressed in dollars or as a percentage of the disposable retired or retainer pay.

Finally, the Florida Final Judgment of Dissolution of Marriage must provide for distribution of the retired or retainer pay no more frequently than monthly and shall not require the payor to vary normal pay and disbursement cycles for retired or retainer pay in order to comply with the Final Judgment.

Bottom line:   If your marriage involves a military member with at least ten years of service during your marriage, contact an expert Tampa divorce lawyer to see how the paperwork can be drafted so that retirement benefits may be properly divided.

A petition for dissolution of marriage is the pleading that begins a divorce action.   Throughout the petition a party frames the issues of the divorce and notes the relief they are seeking from the court.   The issues and remedies may include areas concerning child custody, the division of assets and debts, alimony, an attorney fees request, and other demands.

In many instances parties are caught off guard when they review their spouse’s petition.   The petition can contradict prior understandings between the parties and the review of demands can be very difficult.   This contradiction can lead to increased stress levels and even worse, may lead to unnecessary and costly litigation.

It is important to note that, in general, many petitions are boiler plate pleadings, which plead or request general and all-inclusive demands.   A general and all-inclusive petition provides protection for a party, as it reserves the right to bring future claims, even if they are not at issue in the beginning of the divorce.   Similarly, it is important to remember that the petition is just a request from the court and has no bearing on what the actual facts or evidence will establish.   In a great majority of divorce cases, a party does not advance all demands made in their petition and a settlement can be reached.

By working with your Tampa divorce attorney to understand not only the legal impact of the demands made in a petition, but their particle effect, a party can avoid beginning the divorce in a stressful state.

For many years, the law in Florida was that you were entitled to a “special equity” in your previous non-marital property in a divorce even though you placed the property in joint names with your spouse during the marriage.  The concept was fairly simple.  

It was pure mathematics.  Suppose you owned property before the marriage that was worth $100,000 at the time you placed it in joint names with your spouse and the property was worth $200,000 at the time of the divorce.  The formula would allow you to get all of what was yours alone and half of what belonged to the marriage.  In the numbers I gave, you would be entitled to all of the initial $100,000 and half of the second $100,000.  So you would get $150,000 of that asset and your spouse would get $50,000 of the asset.

A recent change to the law of equitable distribution of marital property in Florida specifically did away with the concept of special equity.  Instead, it allows a family court judge to consider the fact that you brought a little extra to the marriage and possibly award you an unequal distribution of the marital assets and debts.

Judges have in the past been very reluctant to award anything other than an exactly equal distribution of marital assets and debts.  Now, people bringing some non-marital property into a marriage and then going through a Florida divorce have a much greater chance of a judge making a ruling that is other than 50/50.

Bottom line:  Contact an expert Tampa divorce lawyer to find out how these recent changes in the law will affect your Final Judgment of Dissolution of Marriage.

In an effort to reduce the contention, litigation, and detriment a contested divorce may have on the parties and their children, Florida statues were amended to replace terms such as “custody” and “visitation” with a less confrontational term of art called “timesharing”.   Timesharing addresses the issues involved in implementing a visitation schedule between the parents and their minor children.   Many factors are taken into consideration when analyzing and developing a timesharing schedule, but above all else the goal of the court system is to ensure that the best interests of the minor children are protected.

Although timesharing schedules can differ on a case to case basis, there are three primary types.   The first of the three types of timesharing schedules include a standard timesharing schedule.   Under this schedule one parent receives the majority of weekly timesharing and the other parent is afforded timesharing opportunities once during the week and every other weekend.   A standard timesharing schedule may be best suited when one parent has a demanding and fluctuating work schedule and where the majority timesharing parent has a flexible and accommodating schedule.

The second type of timesharing schedule is known as a substantial timesharing schedule.   Under this scenario the non-majority timesharing parent receives at least forty percent of the overnight timesharing opportunities.   A substantial timesharing schedule is designed by either the parents and or the court with the focus remaining on the best interest of the children.          

The third type of timesharing schedule is commonly referred to as a rotating or shared timesharing schedule.   When practicing a shared/rotating timesharing schedule each parent receives the same amount of timesharing opportunities with the children.   Important factors to consider when analyzing whether a shared timesharing schedule is in the best interest of the children include school issues, the proximity of the parents homes to each other, the age of the children, and the ability of each parent to accommodate the demands of a shared timesharing schedule.

There are several other important factors which should be analyzed when attempting to resolve a child custody case and when implementing a timesharing schedule.   Thus, it is important to ensure that your review and discuss all aspects of your particular case with a Florida divorce attorney.   By working with your divorce attorney, and just importantly by working with your spouse, a parenting plan can be designed which can alleviate the fears of a child custody case.

The factors to be considered are: 1) whether one spouse has been awarded exclusive use and possession of the marital home before the sale and the basis of the award, 2) whether alimony was awarded for the purpose of covering the mortgage expense, 3) whether child support was awarded for the purpose of covering the mortgage expense, 4) the value to the spouse in possession of the use and occupancy of the marital home, 5) the value of the use and possession to the spouse not in possession, 6) the spouse entitled to claim tax deductions for mortgage or real estate tax payments on the home, 7) whether a spouse will have to pay a capital gains tax on the sale of the marital home and 8) any other factor necessary to do equity and justice between the spouses.

A typical situation where setoffs apply in the sale of the marital home involves a spouse who has been awarded use of the marital home during the pendency of the divorce.   That spouse makes the mortgage payments until the house is sold and wants credit for making the other spouse’s share of those payments during that time.   The other spouse objects by saying that the spouse in the home should be required to pay rent on the property in the amount of the mortgage for having been given the exclusive use of it.

It is a bit of a complicated matter.   The judges try to be fair to all involved, but there are a lot of factors to be considered.

Bottom line:   Your property rights are important.  Contact an expert Tampa divorce lawyer for advice on whether you are entitled to a credit or setoff upon the sale of the marital home in your Florida divorce.

Often times a challenging issue for parents to understand is how the court will assess the decision making or parental responsibility roles of the parties in regard to their children.  Florida Statute 61.13 provides that “the court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.”  Thus, in most circumstances the parents will share the decision making responsibilities for the children. 

When moving through the divorce process and creating a parenting plan, the parties, along with their family law attorney, work to reach an amicable settlement on the terms of parental responsibility.  Areas of responsibility may include education, health care, and any other responsibilities that are unique to a particular family.  Florida law provides a presumption that the parental responsibility for minor children should be shared by both parents.  As such, this area of the divorce has high probability of the parties reaching an amicable settlement.

In the event the parents cannot reach a settlement on the terms of parental responsibility than the court will make the final decision.  Pursuant to Florida Statute 61.13, the court, at a final hearing, may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those responsibilities between the parties based on the best interests of the child.  Further, if it is in the best interests of the minor child, the court has the discretion to order sole parental responsibility for a minor child to one parent.

By understanding the analysis of the parental responsibility aspect early in a Florida divorce, a party can begin to create one aspect of a parenting plan and hopefully avoid any undue stress and expense of unnecessary litigation.

The most common type of forgery involves signing a spouse’s name to a credit card application.  Let’s suppose that at the time of the divorce the credit card carries a balance of $5,000.  The spouse who ran up the debt will be responsible for all of it.  The rest of the net worth of the divorcing couple will be divided basically evenly unless there are other extenuating circumstances.

So how do you prove the forgery?  Any expert Tampa divorce lawyer will have access to handwriting experts who are highly trained and qualified to testify in court as to the authenticity of a signature.  Most of these experts are former police detectives who were trained while on duty so that they could conduct criminal investigations.

Forgery occurs during marriages more often than you would think.  If that is part of your divorce scenario, contact an expert Florida divorce lawyer to guide you on how to preserve the evidence and how to make sure that you don’t pay for your spouse’s unauthorized spending.

Bottom line:  Look closely at the debts that your spouse says are marital.  Some of them may not be.

In a Florida Divorce a marital settlement agreement encompasses all of the terms and/or conditions of the parties divorce settlement.   These terms include the equitable distribution of the marital debts and assets, the support obligations of the parties, and other miscellaneous factors which the parties may agree to.  Typically any conditions regarding the parental responsibility and timesharing schedule (what used to be referred to as "custody") of the parties’ minor children are not contained in the Marital Settlement Agreement, but rather are found in the parties parenting plan.  The parenting plan is however, attached as an exhibit and will be referenced in the marital settlement agreement.

The marital settlement agreement provides the parties with a vehicle to reach an amicable settlement in lieu of further litigation.  Often times, a marital settlement agreement is reached at mediation, where the parties, along with their Florida divorce attorneys, work together in order to draft the marital settlement agreement incorporating each of the respective terms and conditions.  Once the parties have reached, memorialized, and entered into the marital settlement agreement the divorce has settled and the parties only await a Final Judgment of Divorce by the court.  In the event the parties are unable to come to terms on the conditions of the marital settlement agreement, then further litigation will ensue and the divorce case will likely move toward a contested final hearing where the court will decide and adjudicate the rights of the parties.

It is important for a party in a Florida divorce to understand the impact the marital settlement agreement will have and the binding affect on the parties.  A marital settlement agreement is a contract and once entered into by the parties, it’s terms and conditions becoming binding and are subject to the enforcement powers of the court.  In the event a party does not comply with the conditions of this contract they may subject themselves to the court’s enforcement powers, including the court’s power to compel compliance the conditions, and the court’s power to sanction them for contempt.  Because of the immediate and future impact the terms and conditions of the marital settlement will have on the parties it is imperative that your Tampa and or Florida divorce attorney is skilled in the areas of not only negotiating but drafting the marital settlement agreement.

Reaching these terms and conditions can be established in two primary ways.  Either the parties through the assistance of a Tampa divorce attorney can establish the parenting plan via their divorce settlement, or in cases where the parties are unable to reach an amicable agreement a judge will establish their respective rights in regard to the minor children by way of a court ordered parenting plan, which is contained in a Final Judgment of Dissolution of Marriage.  Once the Parties have reached, memorialized, and entered into a parenting plan the terms and conditions become binding on the parties and are subject to the enforcement powers of the court.  Similarly, in the event the parties are unable to come to terms on a parenting plan and the court has entered an order, that order concerning the minor children is subject to future enforcement by the court.

In an effort to help the resolution process and help the parties enter into a parenting plan many parties to a divorce use the assistance of mediation.  Additionally, in some uncontested divorce cases the parties are able to reach the terms and conditions regarding parental responsibility and timesharing with their children before filing for divorce and only need the assistance of the divorce attorney to properly draft the parenting plan and ensure that the terms are memorialized in the agreement.  In any event, because the conditions of your settlement regarding your minor children are of the upmost importance and will have a lasting affect, your Tampa divorce attorney should be skilled in the areas of not only negotiating, but drafting the parenting plan agreement.

Many times people going through the Florida divorce process need to have access to cash or need specific items of property and can’t wait until the lengthy divorce process is over.  The law has changed recently to allow Florida divorce judges to divide some property even before the case is finished.

For example, suppose that one of the spouses has equipment that is used to earn an income.  If both spouses have been arguing over every little thing during the divorce process, it may be difficult to get access to that necessary equipment.

In that situation, you contact your expert Tampa divorce lawyer and explain your problem.  A motion for interim equitable distribution can be presented to the judge.  This document will explain to the court your need for the equipment and ask for a temporary hearing before the end of the case.

Because of this fairly recent change in the law, your practical problem may be resolved by the judge before the affected spouse goes broke from lack of the equipment necessary to earn a living.

Bottom line:  Ask your expert Florida divorce lawyer what can be done to help with problems that cannot wait until the final trial.

When someone finds that the property to be received in a Florida divorce is less than what normally would occur because of what is required by a prenuptial agreement, often the next step is to contact an expert Tampa divorce lawyer to try to get the agreement set aside.  When the amount of alimony to be paid is far less than what the receiving spouse would receive without such an agreement, advice as to how to set aside the agreement becomes necessary.

A Florida divorce judge will first look at whether the prenuptial agreement is unfair as compared to what the court would do without the agreement.  For example, has one of the spouses given up property or alimony rights that would have been available during a divorce without the existence of a prenuptial agreement?  If there is a significant difference in what the court would do with and without the existence of the agreement, then the court can determine that the agreement is unfair.

The next question in determining whether to set aside the agreement involves fraud or duress.  Was undue pressure put on one spouse to get a signature on the agreement, such as first bringing up the agreement on the eve of the wedding after many expenses have been incurred and people have traveled long distances to attend?  And did the other spouse fully disclose all finances in advance of the signing of the agreement?

Bottom line:  Contact your expert Florida divorce attorney to assess whether your prenuptial agreement is subject to being set aside.