Ocala Divorce Lawyer Blog

On July 1, 2011, changes to section 61.08, Florida Statutes went into effect. This is the section of Chapter 61 that governs an award (or lack thereof) of Alimony. These small or "tweaking" changes narrow the circumstances under which permanent, periodic alimony will be awarded. The new portions of the Alimony Statute are found below, with the changes underlined:

61.08 Alimony.--

(2) In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.

(7) Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis. An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances in accordance with s. 61.14. However, the length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.

(8) Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in subsection (2), following a marriage of moderate duration if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set forth in subsection (2), or following a marriage of short duration if there are written findings of exceptional circumstances. In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance with s. 61.14.

(9) The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.

Section 80. Effective July 1, 2011, the amendments to s. 61.08, Florida Statutes, made by this act apply to all initial awards of alimony entered after July 1, 2011, and to all modifications of alimony of such awards made after July 1, 2011. Such amendments may not serve as a basis to modify awards entered before July 1, 2011, or as a basis to change amounts or duration of awards existing before July 1, 2011. The amendments to s. 61.08, Florida Statutes, made by this act are applicable to all cases pending on or filed after July 1, 2011.

The Los Angeles Times had an interesting article recently which explains the impact of divorce and remarriage on receipt of Social Security funds. Nearly 50 percent of marriages will end in divorce, and many retirees are not married because of divorce. Social Security benefits are the main source of income for over 70 percent of unmarried retirees, so it is important for individuals to learn how previous marriages can affect their plans for retirement.

Social Security sends out quarterly statements to help people plan for their retirement and estimate their benefits. However, these statements fail to properly address the impact divorce has on future benefits. In fact, divorced people often make costly errors because they don't understand spousal and survivor benefits, said Leslie Walker, communications director for the Social Security Administration in Richmond, Calif. "The closer you get to retirement age, the more you need to know the rules.

You may claim spousal benefits if you were previously married for 10 years and if your spouse was paying Social Security taxes during that time. If you worked for at least 10 years and paid Social Security taxes, you may be eligible for personal benefits as well. You cannot claim both spousal and personal benefits, but you can claim the option that gives you the larger amount of money.

However, if you remarry prior to turning 60 years old, you become ineligible to spousal benefits from a previous spouse . If you wait to remarry until after turning 60, you can retain rights to spousal or survivor benefits. Most divorce lawyers are incompletely unversed on the impact on a "gray divorce" and collecting social security.

Survivor benefits are a preferred option since you are given 100 percent of your former spouse's benefits as opposed to 50 percent from spousal benefits. If you have been married twice and both of your spouses are deceased, you cannot claim benefits for both spouses. However, you may choose the benefits from the spouse that would pay you the most.

If you are thinking about divorce or facing a family law related matter, please see our website for more information on your legal options or call Ocala Divorce and Family Law attorney at the Law Office of Anne E. Raduns, PA to find out how we can help. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation. Call for your appointment today.

A story from Tampa Bay Online, shows that sometimes being done does not really mean being done. The Florida legislature is considering another redo of the statues that govern Florida family law, Chapter 61. And although they just finished "tinkering" with the statute just last year, they are now proposing to further amend spousal support requirements for those who are ordered to pay alimony.

"We want to do things equitably and fairly," said Rep. Kelli Stargel. She said she knows men who have been ordered to pay so much in alimony that they're unable "to live their lives." Some told her that they would be better off financially if they simply stopped working. Representative Stargel is pushing a proposal that would stop the state's courts from automatically awarding permanent alimony when there's a divorce after a long marriage. The bill's proponents say it would also include safeguards to prevent the person paying alimony from becoming worse off financially than that the person on the receiving end of spousal support.

Last month, the House Civil Justice Subcommittee voted unanimously to approve Stargel's proposal protecting those who pay alimony. A similar bill is in the Senate, but has not yet been voted on.

A 56-year-old man interviewed for an article on the bill said it needs to go further in remaking Florida law. He was divorced in 2007 following 27 years of marriage. He said he was ordered by a court to pay $2,000 a month in permanent alimony from his $66,000 per year salary. He claims his ex-wife worked throughout their marriage, only to quit her job during their divorce.

Another divorced man said the proposed legislation "will stop the easy payoff, this easy money these women are getting." He claims he pays $700 per month out of a yearly income of $17,000.

When courts award spousal support they must look to the statutory factors of Chapter 61.08 that guides the award of spousal support, and are supposed to consider need vs. ability to pay, income, the couple's marriage lifestyle, the length of their marriage, their ages and health conditions, the contributions the two parties made to the marriage, assets and other factors.

If you are thinking about divorce or facing a family law related matter, please see our website for more information on your legal options or call Ocala Divorce and Family Law attorney at the Law Office of Anne E. Raduns, PA to find out how we can help. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation. Call for your appointment today.

Buyer Beware is never more true than when buying a home from a divorcing couple. Marriage break-ups can be tense. And when divorcing couples sell their homes, it's buyer, agent and everyone that should be cautious.

There are about one million divorces a year in the United States and in most cases, there's a home that needs to be sold. That can mean great bargains, because couples divorcing -- like those in foreclosure -- are often among the most motivated of sellers, willing to accept offers below market value.

Still, house hunters may well pay the price in terms of aggravation and time when working with these sellers.

Buyers must wade through the venom generated by the divorce. Often, one spouse is anxious to sell while the other tries to sabotage the deal -- either out of spite or an unwillingness to end the marriage.

"Most of my divorcing clients dislike each other very much so navigating the transaction can be tricky," said Scott Weeda, a Seattle-based real estate agent who specializes in divorce. To read more about the dangers of buying a home from a divorcing couple, please click on this link.

If you are thinking about divorce or facing a family law related matter, please see our website for more information on your legal options or call Ocala Divorce and Family Law attorney at the Law Office of Anne E. Raduns, PA to find out how we can help. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

There is no doubt that divorce can be emotionally challenging. But it can also be just as financially challenging in this difficult economy. A recent article from the Huffington Post provides some tips and pitfalls in divorce. Here are some things to consider:

-Get good advice. Do-it-yourself divorce kits are widely available, but even couples with few assets who part amicably still need capable representation. That may mean hiring an attorney who specializes in divorce to at least review your paperwork and make sure you haven't overlooked anything you might later regret.

-Protect your credit. To protect your credit status, close joint bank or credit card accounts and open new ones in your own name; otherwise, an economically struggling or vindictive ex-spouse could amass debt in your name and ruin your credit. Be sure all closed accounts are paid off, even if you must transfer balances to your new account and pay them off yourself. That's because late or unmade payments by either party on a joint account -- open or closed -- will damage both of your credit scores.

-Help your Attorney help you: To simplify your attorney's task (and thereby lower fees), gather copies of important financial paperwork including: tax returns; retirement account records; current pay stubs; employee benefit statements; life, health, homeowners and auto insurance policies; bank, brokerage, mortgage and credit card account statements; home deed or lease agreement; and wills, trusts and other legal documents.

Don't get caught up in the emotional turmoil of divorce and forget to protect your future financial interests.

If you need assistance with your divorce or family law matter, please call Ocala Divorce and Family Law attorney at the Law Office of Anne E. Raduns, PA to find out how we can help. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

Often times when a divorce case is newly filed and one of the parties needs some temporary financial assistance during the divorce, that person's attorney will file something called a Motion for Temporary Relief. Temporary Relief could be anything from exclusive use and possession of the home to temporary spousal or temporary child support. The most frequent temporary relief hearings are usually financial, but these hearings could also be to used to establish a temporary parenting plan.

A case came out this week from the Fourth District Court of Appeals from a non-final order that gave some guidance to trial court Judges on just how much is too much support to be paying on a temporary basis. If the Temporary support award consumes a vast majority of the paying spouse's available income, to the extent that he/she has very little money upon which to live, the court could have exceeded it's award to payee spouse.

The Court in Wilder v. Wilder, 4D10-205, 2010 WL 3418402 (Fla. Dist. Ct. App. Sept. 1, 2010) held that "temporary relief awards are among the areas where trial judges have the broadest discretion" and an appellate court will not reverse such an order in the absence of an abuse of that discretion." Robbie v. Robbie, 591 So.2d 1006, 1008 (Fla. 4th DCA 1991). It is an abuse of discretion, however, for a trial court to enter a temporary support order that "exceeds or nearly exhausts a party's income." Bolton v. Bolton, 898 So.2d 1084, 1084 (Fla. 4th DCA 2005) (reversing temporary support order that left husband with only $300 per month for own living expenses); see also Williams v. Williams, 10 So.3d 651, 652-53 (Fla. 5th DCA 2009) (reversing award of temporary child support and "in-kind" alimony that consumed ninety-seven percent of husband's monthly income). That is the case here as the husband's financial obligations under the temporary support order consume his income to the extent that he is left with little or nothing for his own reasonable living expenses.

The Court in the Wilder case found that the Husband was left with very little money after his payment of the Temporary Support. The Court reversed the trial courts order with instructions to recalculate the temporary support that was ordered.

If you are facing or thinking about divorce or have a family law matter, and want more information, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

There are times when my client asks if he/she could get the IRS Dependency Exemption, even though they are not the custodial parent (or parent with the most overnights). It was in the past that the Court could not order the custodial parent to give the other parent the IRS Dependency Exemption, but that has changed. If the custodial parent is not working and the non-custodial parent paying child support, there is case law that supports having the non-working custodial parent give the other parent the IRS Dependency Exemption.

The Court in Geddies v. Geddies, 1D09-4635, 2010 WL 3477462 (Fla. Dist. Ct. App. Sept. 7, 2010) held that pursuant to Florida Statute Section 61.30, the trial court is authorized to take into account the "impact of the Internal Revenue Service dependency exemption and waiver of that exemption" in determining the amount of child support. The statute authorizes the trial court to direct the transfer of the exemption to the noncustodial parent, which has the effect of "mak[ing] more money available for child support through tax savings." Vick v. Vick, 675 So.2d 714, 719 (Fla. 5th DCA 1996).

The trial court cannot allocate the exemption directly, but it can only require the custodial parent to execute a waiver transferring the exemption to the noncustodial parent pursuant to Florida Statute § 61.30(11)(a) 8, ("The court may order a parent to execute a waiver of the Internal Revenue Service dependency exemption...."); Salazar v. Salazar, 976 So.2d 1155 (Fla. 4th DCA 2008).

In the Geddies case the First District Court of Appeals upheld the the trial judge's ruling on this issue. The Former Wife had no taxable income or income tax liability in order to benefit from the exemption. See McDaniel v. McDaniel, 835 So.2d 1265 (Fla. 1st DCA 2003) (reversing award of tax dependency exemption to the Former Husband where the Former Husband did not have any taxable income or income tax liability for the tax year). Additionally, because the Former Husband had another child support obligation that had already reduced his disposable income, the award of the dependency exemptions to the Former Husband would serve to maximize the disposable income available for him to pay his child support obligation in this case. Accordingly, the trial court did not abuse its discretion in awarding the dependency exemptions to the Former Husband while the Former Wife was unemployed

If you are facing a family law or divorce matter, and want more information, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

A recent study, led by sociology doctoral candidate Christin Munsch at Cornell University, New York, suggests men who earn substantially less than their partner are more likely to have an affair.

She said that "Making less money than a female partner may threaten men's gender identity by calling into question the traditional notion of men as breadwinners."

Surprisingly, the study found that men who were completely dependent on their female partners for income were five times more likely to cheat than those who contributed equally.

Conversely, women who are dependent on their husband's salary are 75% less likely to have an affair than those who provide the majority income.

The findings support a 25-year American study of more than 25,000 marriages between 1979 and 2002, which found that women who consistently earned more money than their husbands were up to 38% more likely to divorce than others.

But factors having to do with money -- such as the man making more or less than his wife or female partner -- did increase the risk of infidelity, Munsch said. But she cautioned that "we're talking about very small numbers."

If you're a woman and "you make more money than your partner, your partner isn't 100 percent likely to cheat," she stressed.

Still, money appeared to be a significant factor.

Men who make less than their wives may lean toward infidelity because they feel a "gender identity threat," Munsch speculated.

If you are thinking about divorce or the divorce process, and want more information, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

If you are divorcing in Florida in this current economic climate, like many, your house may be "upside down" on the equity to loan ratio or have what we are calling, "negative equity." That has happened one of two ways: either you bought between '05 and '07 when the housing market was at its highest or you took equity out of the home through a "home equity line of credit," and now the house is worth substantially less.

But what happens to that house and the negative equity in divorce? Generally, if your spouse has decided to keep the marital home, it could cause problems for you. Unless your spouse is able to re-finance that home, your name remains on the loan/mortgage for that home- even if you sign a Quit Claim deed. The Quit Claim deed only relinquishes legal title to the home, it does not relieve you from the financial obligation. Just because the home is now hers/his, does not release you from your original liability of the original mortgage you both took out as a married couple. Unless your spouse can qualify for a new mortgage, by way of a refinance, on his/her own, you will still be liable to the lender for the original mortgage on a home you do not own, if your spouse cannot or will not pay the obligation. In other words your good credit may be at the mercy of your ex. The next problem is that He/she may not qualify, so you have all the legal obligation to the bank without the legal position of owning the property.

Lastly, there may even be some equity in the house, but in order for you to get your portion of the equity, your spouse might not be able to refinance because the Bank's just aren't lending much anymore, because of the credit crunch. We have had some client's that just pay the other spouse their share of the equity of the house over a long period of time.

It used to be that divorcing couples would fight over which one of them keeps the marital home. Now couples are fighting over which one of them is going to take the marital home. Many of my clients are just letting the house go back to the bank. There is absolutely no benefit for them financially in keeping a home that is worth much, much less than is owed. However, from the lender's standpoint, nothing has changed because both partners are responsible for the mortgage. The only other alternative is a short sale to a third party. Should that occur the deficiency belongs to both of you.

If you are thinking about divorce in North Central Florida, please call us to talk your case. Visit our website or call the office to schedule your low-cost consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

Most prospective clients do not know that a Retirement Account is an asset that can be divided during a divorce. Both State and Federal law authorizes our Divorce Courts to award part of one spouse's retirement and pension accounts as part of a marital settlement in divorce cases. Such an award is accomplished by executing and signing a qualified domestic relations order (QDRO).

A QDRO is a legal order which grants an ownership interest in the employee spouse's (plan participant's) retirement or investment account to an alternate payee. The alternate payee must be a spouse, a former spouse, or a dependent of the plan participant. Qualified domestic relations orders only apply to retirement or pensions plans governed by the Employee Retirement Income Security Act (ERISA). Similar orders are used to divide military retirement benefits, Federal civil service retirement benefits, and state, county, and local government retirement benefits.

There are several methods for determining the value of the alternate payee's interest in the plan. If the plan participation pre-dates the marriage, the division is usually not a 50-50 split - and only divides that portion that was accumulated during the marriage (ie: the "martial portion of the retirement account"). On the other hand, if plan participation began after the parties where married, the division will usually be a 50-50 split.

Your pension plan's administrator will provide your attorney or your spouse's attorney with the plan's standard QDRO. The attorney will insert all of the appropriate information into the form as required. Once the form has been completed, the attorney will submit it to the court and then to the plan administrator for approval. Generally, a QDRO must contain the following information:

• The full name and address of the plan participant;
• The social security numbers of both parties;
• The formal name of the plan;
• The participant's plan identification number, if different from his social security number;
• The amount payable to the alternate payee or the formula used to calculate that amount;
• A method of distribution to the alternate payee from the distribution options available under the plan; and
• The duration the benefits are to be paid to the alternate payee (in the case of a defined benefit plan).

In addition to above information, a QDRO must also satisfy state domestic relations law requirements and U.S. Tax Code requirements. If the QDRO does not meet all legal requirements, it will not be approved by the plan administrator.

If you have questions about what portion of your pension is martial in nature, or just need more information about retirement plans during a divorce, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

I have many potential clients coming in asking about discharging debt in Bankruptcy and wanting to know if it's better to file Bankruptcy before or after the divorce. While I do not practice in the area of Bankruptcy, I will share what I have learned over the last few years from those attorneys with whom I work to practice in this field of law. I can reassure you, that over the past 3 years as the economy has headed downward, the rate of filing for Bankruptcy has headed skyward!

If you, as a prospective client, think you're headed for divorce and have a lot of debt between you and your spouse, it might make sense to file for bankruptcy before starting the divorce process. Filing bankruptcy first can simplify the divorce by clearing out some of your debt. This makes the Equitable Distribution aspect of the divorce much easier and quicker. It is fairly easy to negotiate how the remaining debts should be divided, and protect you from your soon-to-be-ex's bankruptcy filing down the road.

One important thing you might want to consider is filing a joint bankruptcy before the divorce. Not only will this make the final division of any remaining debts even easier, but filing a joint bankruptcy is cheaper than filing two separate ones. In either event, bankruptcies and divorces have serious impacts on each other, especially with respect to your property and personal finances.

How Will The Bankruptcy Effect My Divorce?

When one or both spouses file bankruptcy, all the property, that is, property that was bought or acquired during the course of the marriage, becomes a part of the bankruptcy estate and is available to pay debts. The bankruptcy estate is simply all of your property that you and your spouse own at the time the bankruptcy is filed.

When you or your spouse file a bankruptcy, an "automatic stay" is immediately entered by the court and prevents creditors from collecting on most debts. But the automatic stay doesn't prevent you from asking a Domestic Relations Court to order your spouse to pay child support or alimony.

Once a bankruptcy court decides property is "exempt," that is, it is not part of the bankruptcy estate and so it is not available to be sold to pay debts, but a divorce court can then divide that property. Property exemptions are defined not only by federal law (the "Bankruptcy Code"), but also by the laws of the state in which the bankruptcy is filed.

How Is My Marital Settlement Agreement Effected by Bankruptcy?

Negotiating a marital settlement in the midst of bankruptcy is complicated. Debts related to a marital settlement are presumed to be "non-dischargeable" in bankruptcy, meaning that the person who files bankruptcy can't have those debts wiped out and must still be responsible for them.

So if you think your soon-to-be-spouse is contemplating bankruptcy after your divorce is final, you'll want to word your Marital Settlement Agreement in such a way that your soon-to-be-ex's obligation looks and acts as much as possible like a support obligation instead of a "property settlement." That is so simply because support obligations are more difficult to have discharged.

For many bankruptcies filed on or after October 17, 2005 (when the Bankruptcy Laws were significantly changed), any obligation between former spouses can't be discharged in bankruptcy. So, a spouse with an alimony and/or child support obligation can't have that obligation discharged in bankruptcy if the bankruptcy petition was filed on or after October 17, 2005.

Can An Indemnity Clause Help If My Ex-Spouse Tries To Discharge the Debt?

Many lawyer who practice in the area of divorce lawyer are adding yet another layer of protection for their clients by adding an "Indemnification Clause," based on the possibility that the former spouse may file for bankruptcy after the divorce. This "hold harmless" or "indemnity" clause written into the divorce agreements, require your spouse to pay certain debts or repay you if a creditor makes you pay the debt. While this indemnity clause doesn't provide total protect, it does make it less likely to get that particular debt discharged by the bankruptcy court. At that point, you can go to bankruptcy court and ask the judge to enforce the indemnity agreement. While an indemnity agreement won't guarantee you'll get paid, it's one more factor for the bankruptcy judge to consider.

Contact An Attorney

Going through a divorce and bankruptcy at the same time is confusing and complicated. If you find yourself in this position it is best to consult with a lawyer as soon as possible. To talk to us about your case, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

If you are interested in pursuing an Uncontested Divorce, please call the Law Office of Anne E. Raduns, PA to find out how we can help. Even with an Uncontested Divorce, there are risks involved if you decide to do it yourself. We can help you with the process quickly and inexpensively.

We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation.

As a divorce attorney, I suppose this is probably the third most common question I get from clients or prospective clients (right behind "how much will this divorce cost" and "how long will this divorce take"), which simply stated is, "do I have to take the credit card debt of my spouse if I didn't run up the bill." The answer to that question generally results in the spouse who did not run up the bills feeling "duped" and the divorce process being "unfair."

Under Florida Statute 61.075, marital debts and liabilities will be equitably between spouses during a divorce. This means that generally any debt or liability acquired during the marriage will be divided between the divorcing spouses, regardless of whose name is on the debt or liability. This means credit cards too. It's important to remember, however, that the Statute requires the division of debts/liabilities be equitable, not necessarily equal. For the court to determine what is an equitable distribution of marital debt, it can consider many statutory factors, including: each person's contribution to the marriage, any contributions one party has made to other person's education or career, whether either party has intentionally depleted or destroyed marital assets and other equitable factors. As an aside, this process generally does not include "pre-marital debt." So if one spouse can show that the debt (or a portion of the debt) existed before the marriage, then it may not be treated as a marital debt for the purposes of equitable distribution.

However, I must point out that credit card companies to not have to and generally won't agree to abide by a Divorce Decree or Final Judgment of Dissolution of Marriage. So while you and your spouse have agreed to divide up the debt a particular way or the Court has ordered it divided a particular way, the credit card company is not obligated to follow that agreement or Order. Instead, the credit company will hold whomever is listed on the account responsible for the debt. This may be problematic if say the Husband has agreed to take a credit card debit listed in the Wife's name. He may fail to pay it and the credit card company will still demand payment from the Wife, regardless of the court order.

But what about credit card debt when one spouse didn't know a thing about? This is the most heartbreaking answer: if it was acquired during the marriage, regardless if you knew about it or not, or it was it your name or not, it is still a marital debt that it going to be divided. I had a client whose Wife had charged up about $30,000 of debt he knew nothing about. He generally handed her his paycheck and let her handle the martial bills and finances. When she filed for divorce, it was only then did he find out about the debt. She had not engaged in any "martial waste," as in spending money on a paramour or anything. So, even though the didn't know about the debt, he was still required to take on half of it. Not knowing about the debt does not relieve the other spouse from being responsible for it. This is a caveat emptor - KNOW, LEARN, BE INVOLVED in what is happening with your finances! Don't let someone else just manage the household finances unchecked.

If you are thinking about Divorce, an experienced divorce lawyer can help you protect yourself as much as possible from the financial hazards involved in credit card debt. For more information on how we can help you, or to talk to us about your case, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation. Call for your consultation today.

Positive. Life-enhancing. Enlightening. Compassionate. These words are seldom associated with divorce. Words that typically come to mind are: Painful. Agonizing. Resentful. Bitter. Ugly. The average divorce takes two years with a median cost of $30,000. Yet the true cost of divorce is more than time or money, it is the legacy of the decisions made during the process, says Chicago Judge Michele Lowrance. It doesn't matter how long a couple has been married, whether there are kids or no kids, the painful impact of divorce often leads to bad choices that can forever alter a family's life, she adds.

Couples overburdened with emotion choose litigation as the best way to protect their interests. "By letting the court determine far more than just their future financial, and custody decisions, the divorcing parties abdicates the power they have over their own life and choices," the judge says. "Without fail, both parties end up regretting the decision to litigate almost immediately and for years to come. Nobody starts a marriage hoping it will end in divorce, but that doesn't mean that divorce needs to be the defining moment of their life."

Judge Lowrance has learned that there's a better way to handle divorce. So she came up with a plan to turn the negatives of divorce into positives. She explains the program in her new book, The Good Karma Divorce: Avoid Litigation, Turn Negative Emotions into Positive Actions, and Get On with the Rest of Your Life.

Continue reading "Florida Divorce Advice: The "Good Karma Divorce" from Judge Lowrance" »

A very common question that I often hear from my divorcing clients is, "Is my Spouse entitled to half of my 401K Plan, Pension Funds, or Retirement Account?"

There seems to be much confusion as to this area of divorce. Equitable Distribution in Florida allow for the division of property and assets acquired during marriage to be divided when the parties divorce. It comes as quite a surprise to my clients to learn that their soon-to-be former spouse is entitled to a portion up to one-half of any pension or retirement savings that was accrued during the marriage. In Florida, pension and retirement funds that accrue during the marriage are treated as marital property and are generally split equally between the parties. However, like with any rule, there are exceptions and modifications that may allow a client protect all or part of his/her retirement savings.

Florida Statute 61.076 Distribution of Retirement Plans Upon Dissolution of Marriage governs how the court should distribute these assets. The Statute holds that all vested and non-vested benefits, rights, and funds that accrue during the marriage are marital assets subject to equitable distribution during a divorce. This Statute applies to a plethora of Retirement/Pension plans including: 401(k), Pension Plans, Individual Retirement Account (IRA), Annuity, Deferred Retirement Option Program right (DROP), Thrift Savings Plans, and CSRS/FERS (Retirement plans through the Federal Government) that is acquired or accrues during the course of the marriage. It even applies to accrued sick-time that has monetary value if it was acquired during the marriage.

If the court determines a pension or retirement fund is a marital asset, they will issue a Qualified Domestic Relations Order (QDRO) that directs the plan administrator to divide the fund according to the Final Judgment of Dissolution of Marriage. We do not do QDRO's at our office but can direct clients to attorneys that specialize in this field of law. Once the court has determined that the pension, plan or fund is to be divided, the non-employee spouse is usually entitled to the same rights under the plan as the employee spouse, such as cost-of-living adjustments and early withdrawal options.

There are a few choices when it comes to how the money is to be received by the recipient-spouse, either that spouse is eligible to receive his or her share of the ex-spouse's benefits when the ex-spouse is entitled to receive them. Or that recipient-spouse might want to have it reduced to "present value" and cash out the money out of the plan/fund along with having to pay the penalties.

But not all retirements accounts/plans are considered a martial asset. Consider this: if a spouse has not contributed to their retirement account since the day they were married, the account will not be considered a marital asset and will retain its "pre-marital status." This also holds true for contributions made to a retirement account both before the marriage occurred and after it dissolved are the separate property of that spouse who made the contributions and are not considered marital property. The problem arises when monies are either co-mingled or contributed during marriage.

When determining what portion, if any, of a retirement account is not a marital asset, the courts will consider the length of any marital separation and whether marital "labor" or earnings were use to acquire the benefits. If a spouse maintains that all or part of his or her retirement account should not be considered marital property, that spouse will have the burden of proving when the retirement benefits accrued.

On the other hand, if a spouse is retired and dependent on a retirement account for income, the funds may be considered income-stream instead of an asset. In this situation, the retirement account will be considered for the purposes of determining an alimony claim or for computing child support, but will not be divided as marital property.

Retirement accounts and pension plans are a fairly complicated area in Divorce. To learn more about the process and what you are entitled to during your divorce, please visit our website or call the office to schedule your initial consultation. We employ a client based approach, which means that we are selective in the cases we take so that we can be available to our clients. We spend time with you to thoroughly understand the facts of your case, so that we can provide you with a comprehensive and realistic legal evaluation. Our process begins with a half-hour low-cost consultation. Call for your consultation today.