Recent Posts in Property Division Category

With the onslaught of celebrity coverage surrounding Mel Gibson's recorded telephone rants, many divorce clients have asked whether it is legal to record their spouse or ex-spouse's telephone conversations.  The answer depends on several different factors and often varies on a case by case basis.

The general rule is, no, unless you obtain express consent.  Florida wiretapping laws are complex and can carry criminal or civil punishments if violated.  In situations where your spouse would have a reasonable expectation of privacy, it is not proper to record your spouse's telephone conversations without permission.  I typically recommend always obtaining permission from your spouse or ex-spouse before recording any telephone call or communication.

However, there are several exceptions to this general rule, that would require an in-depth analysis of the facts and circumstances of your family law case. 

Contact your expert Tampa family law attorney to discuss whether these exceptions apply to you and your case.

Many people are in a hurry to get a divorce in Florida.  The reasons vary.  Some people are anxious to marry someone else.  Some want to stop sharing their large incomes with their lower income spouses.  Some just want out of the relationship.  For whatever the reason, many are hopeful of getting the speediest divorce possible.

In Florida, as in all states, divorces can last for many months and sometimes even years.  There are times, however, when each person in the marriage wishes to get on with things and an agreement on all issues is not a long, drawn out process.  When that occurs, it is possible to obtain a quick Florida divorce.

Once you and your spouse have decided that you want to get things over with and move on with your lives, you can contact your expert Tampa family law attorney and find out just how quickly the process can be completed.

Florida family law allows that, once you have reached an agreement on all issues, you can get a dissolution of marriage in as few as 20 days from the filing of the petition for dissolution of marriage.  You can even get it done more quickly if you can show the court that an injustice would occur by waiting the required 20 days.

Bottom line:  If you are anxious to finalize your Florida divorce, you can accomplish this in as few as  20 days from the filing the petition for dissolution of marriage once you and your spouse have resolved all of your differences regarding parenting issues, distribution of property, spousal support and reimbursement of attorney's fees.

At the end of almost every divorce consultation, a Florida family law attorney is posed with the same question. How much is my divorce going to cost?   While this question appears to be straightforward, the unknown factors of divorce make it almost impossible to answer.   Your Florida divorce attorney should, however, be able to analyze the issues of each particular case and address the related expenses.

In the State of Florida, there are two primary types of divorce cases, the first of which is an uncontested divorce.   In an uncontested divorce, the parties have been able to work through all issues even before filing the divorce petition.   In this scenario, all that remains is for the parties to complete and file the required pleadings.   Due to the limited nature of work involved, the divorce attorney’s role is to assist the client rather than advocate a legal position.   Thus, the attorney’s role in an uncontested divorce is typically limited to the preparation of the pleadings, drafting the applicable marital settlement agreement and parenting plan, and scheduling and attending an uncontested final hearing in order to obtain the final judgment of divorce.   Because the attorney’s role is limited the expense a party faces is reduced.

The second type of divorce is referred to as a contested case.   A contested divorce means the parties are unable to agree or settle all of the issues of their divorce and need the assistance of an attorney to help bring about a final resolution.   This final resolution can come in the form of a settlement during the course of the divorce or at a trial.   The expenses involved in a contested case derive from the issues the parties are facing, and the time involved in resolving those issues.

Examples of contested, and sometimes expensive, issues include timesharing plans with minor children, support provisions, including child support and alimony, the division of assets, including homes and marital businesses, and a spouse’s request for an attorney fees contribution.   All of the above case issues can require extensive work not only by an attorney but also an expert who assists the client and attorney in advancing their particular position.   With the complexity of each case issue and with each additional contested issue, the cost of the divorce grows.

It is important for each client to discuss and address all possible case issues with their Florida divorce attorney during the initial consult.   At that time, the client can be fully aware of what issues they may face and thus can have a better understanding of what expenses lie ahead.   One constant will remain: the sooner the parties can settle, the less expensive the divorce will be.

Sometimes in a Florida divorce, one of the spouses may take off out of state with property of the marriage or may transfer ownership of marital property to someone else.  If you suspect that this is about to happen, you should contact an expert Tampa family law attorney to ask what steps can be taken to keep this from happening.

The Florida Dissolution of Marriage law provides that a judge can enter an order to protect you.  If you can show that your spouse is about to leave the state, take property out of the state or fraudulently transfer or conceal property, the judge can enter a court order called an injunction that requires your spouse to refrain from transferring or concealing the property.  In addition, the judge can enter a court order called a writ of ne exeat which prohibits your spouse from leaving the state.  In severe cases, the judge can enter a writ of bodily attachment which requires your spouse to be picked up by a law enforcement agency and held in jail.

When these are entered, the court will require you to post a bond to ensure that your allegations are accurate.  Upon having a hearing with both sides present, the judge may enter an order requiring your spouse to post a bond to pay for any anticipated losses should your spouse violate the order.

The law even provides for detailed identification information to be provided to the Florida Crime Information Center so that all law enforcement agencies in the state will have your spouse on their radar screens.

Bottom line:  If you suspect that your spouse is about to hide out of state or conceal marital property, contact an expert Tampa divorce attorney to find out how it can be stopped.

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.

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.

In many Florida divorces, part of the property division that occurs involves college funds which have been set aside for the benefit of the children.

Unless these funds are owned by one spouse alone as a result of money from before the marriage or as a result of a gift from someone other than the other parent, the funds will be divided along with all of the other assets and debts of the parties.

If the plan procedures allow both parents to exercise joint control, the solution is fairly simple.  You merely request that the plan confirm in writing that neither spouse can withdraw or otherwise move the money without the written consent of the other.

Sometimes that is difficult to do.  Many plans, including the state operated Florida Prepaid College Plan, require that the accounts be opened in one name only.  When that is the situation, your expert Tampa divorce lawyer will merely place a paragraph in the Marital Settlement Agreement or ask the judge to place a paragraph in the Final Judgment of Dissolution of Marriage which states that neither spouse can make any decisions regarding that money without the written consent of the other spouse.

Bottom line:  Don’t assume that the children’s college funds will be handled the way that you want them to be.  Have your Florida divorce lawyer obtain clear rules for withdrawing the funds.

Benjamin Franklin said, “The only two sure things are death and taxes.”  When you are going through a divorce in Florida, you must remember that there are tax consequences to certain parts of it.

Suppose that you bought some rental property with your spouse a few years back and it looks as if you are going to get the property as part of a settlement proposal from your spouse’s expert Florida divorce lawyer.  Of course you will consider the amount of mortgage debt that is on the property when you analyze what the property is really worth to you, but you need to be aware of a hidden debt.  The amount by which the property has increased in value since its purchase will be subject to capital gains tax (currently 15%).  There will be no tax due at the time of the divorce, but when you later sell the property you will have to pay that tax.

For that reason, you may not wish to put that property in your column on the property division balance sheet.  If your spouse is not willing to factor that debt into the equation, then your expert Tampa divorce lawyer may suggest that your spouse get that property and you get something else that has no future tax burden.

Bottom line:  Your Florida divorce lawyer can help you look at all of the tax factors involved in the property division aspect of your divorce.

© Copyright 2009 by Stann Givens

© Copyright 2009 by Stann Givens

© Copyright 2009 by Stann Givens

© Copyright 2009 by Stann Givens

© Copyright 2009 by Stann Givens

A common question we hear in Florida divorces is, "Does the property always get divided 50/50?

The law requires that the assets and debts of the marriage are to be divided "equitably".  That technically means that it will be done fairly, but not necessarily equally.  If a family court judge has a "substantial" reason to divide your marital property other than 50/50, the judge may do so.

But history shows that many, many family court judges in the past have had their rulings dividing marital property other than 50/50 reversed on appeal.  On the flip side, when judges divide property 50/50, they have very rarely had those rulings overturned.

Keep in mind that Florida family court judges run for reelection every six years.  When they run, the local newspapers inform the public as to how many times they have been reversed on appeal as compared to other judges.  If you were a judge and liked job security, wouldn't you be inclined to almost always divide marital property 50/50 despite the leeway allowed in the law?

Bottom line:  Based on my experience as a Florida Divorce Attorney, although it is not technically required by the statute, you can expect your family court judge to divide your marital property 50/50 almost all of the time.

© Copyright 2009 by Stann Givens