Frequently Asked Question: What is a Partition Action?

Partition actions are a unique option of last resort in a dissolution matter. When property is jointly owned by more than one person, and a point comes where the co-owners cannot decide on what to do with the property together, one of the owners may file a partition action with the court. A partition action is available for all kinds of joint owners (siblings who have inherited joint interests in the same property, for example), not just spouses. However, the issue can come up in a dissolution of marriage when the parties may not be able to agree on what to do with a jointly owned property (often the marital home).

There can be many reasons for this problem to occur. Most commonly, one spouse may insist on selling the marital home, while the other spouse will likewise insist on staying in the marital home.

There are typically two outcomes to a partition action: First, the court may divide up the property according to each parties’ ownership interest (this is typically only feasible with large tracks of land, not a residence as residences are normally deemed indivisible and cannot be divided without prejudice to the parties); second and more commonly, the court will order the sale of the property. It is important to note that the court is empowered to order the sale the property at a public auction, but the parties can agree to a private sale. However, a public auction can be a very risky option as there is no guarantee the house will sell for a certain amount. It will only sell to the highest bidder, whatever that amount may be. And further, any liens or mortgages on the property will have to be satisfied from the proceeds of the sale before that money can be divided up between the co-owners. Thus, a private sale offers the maximum amount of control over the process. (See Chapter 64 of the Florida Statutes)

Therefore, a partition action should only be pursued as a last resort, if the parties truly cannot come to an agreement on what to do with a piece of real property. It is important to note, however, that a partition action must be specifically pled for in a petition for dissolution of marriage in order for the court to have jurisdiction to order the partition of jointly owned marital property. Failure to include this request for partition can leave the parties and the court in a difficult position later in the process. That is why it is worthwhile to include a request for partition in the petition for dissolution so that it is available as an option, even though the parties should still do everything possible to come to a decision together on what to do with a piece of jointly owned property. One may also include a request in the partition action that the parties be permitted the right to bid on the property should be reach public auction.

Additionally, all individuals or entities with an ownership interest in the property must be included in the action for the court to order a partition. In other words, if Stan and Jean own a house together along with their son David, then David must be included in the partition action or the court cannot order the sale of the house. This is why it is important to make sure your attorney has a full and complete understanding of the ownership interests held on various types of real property.

Finally, in a dissolution of marriage, if there are significant enough assets and/or liabilities, the court can address who gets certain property through equitable distribution.

Frequently Asked Question: Am I responsible for my spouse’s medical bills?

Unfortunately, during a marriage, one or both of the spouses may incur significant medical debt. A main concern is whether one spouse will ultimately have to pay the medical bills of the other. The answer to this complicated question is nowhere near straight-forward.

Many people are under the impression that they will not have to pay for their spouse’s medical bills by simply refusing to sign any documents that would make them a responsible party to the medical bills; however, this is not a complete shield in every case. In essence, you may not have to directly pay for your spouse’s medical bills, but you can still be affected by them.

For instance, if the medical bill was paid with a credit card that is joint or that you co-signed for, the credit card company would not care that you did not sign off as being a responsible party.  The credit card company will most likely hold you and the spouse incurring the medical bills jointly liable for the debt.

If your spouse should die, pursuant to the laws of Florida involving estates, you as a surviving spouse would not be held responsible for the medical debt incurred by your deceased spouse; this medical debt would be paid from the deceased spouse’s estate. However, this means that if your estates are combined, the medical debt is still, in reality, being paid in some manner by you.

If you and your spouse decide to divorce, the medical debt may be in the other spouse’s name, but because it was accrued during the marriage, it would be considered marital debt.  Thus, this medical debt would be included in the distribution of all the assets and debts accrued during the marriage Further, although this medical debt may be in one spouse’s name and on that spouse’s side of the marriage’s asset and debt “balance sheet,” it would affect the overall division of the assets and debts (i.e., there would have to be a balance of assets and debts to each person so that the two parties are essentially walking away from the marriage in fairly equal positions).

One spouse in a marriage may believe that they will not have to be responsible for medical debts incurred by the other spouse. By refusing to be made a responsible party to the other spouse’s medical debts, at first glance, this may hold true. Further, in certain circumstances, a spouse may not be held directly responsible for the other spouse’s medical bills. However, based on the discussion above, in actuality, your spouse’s medical bills will ultimately affect you in some manner.

Who is a child’s legal father in Florida? Does it matter?

The issue of paternity is one we find generates a great deal of confusion. Many fathers in Florida operate under the incorrect assumption that biological fatherhood is the same as legal fatherhood, or that being the biological father supersedes being the legal father. It may seem counterintuitive but when it comes to who has the rights and responsibilities of being a father, being the legal father is all that matters.

It is perhaps easiest to explain paternity using examples:

  • If John and Annie have a baby while they are married, then John is both the biological and legal father. This is the simplest scenario.
  • If John and Annie have a baby but are not married at the time and remain unmarried, John is the biological father but not the legal father. This is true even if John is listed on the birth certificate. If John and Annie later marry, then John can become the legal father through a process known as legitimation, which involves updating the child’s birth records.
  • If Annie becomes pregnant by John while they are unmarried and Annie marries Steve before the baby is born, then even though John is the biological father, Steve is the legal father.

If you are not the legal father, regardless of being the biological father, you have no rights to your child. You have no parental responsibility or decision-making authority. Instead, the mother has exclusive rights to make all decisions regarding the child, which can impact your ability to exercise time sharing (custody) or see your child. This is not an uncommon scenario in Florida.

The legal method by which a biological father may seek to be declared the legal father is called a paternity action. Some paternity actions, however, are brought by the mother, in order to establish the father’s obligations to pay child support. By the end of a paternity action, if paternity is established, there should be a parenting plan in place which declares the parental responsibilities of both parents as well as a time-sharing schedule, in addition to child support obligations.

At Artemis Family Law Group, our attorneys are well-versed in paternity matters, having represented both mothers and fathers, and are ready to help you bring some stability and peace of mind to your situation. Please contact us to discuss your paternity matter and we will be happy to answer any questions you may have.

Frequently Asked Question: Do I need a prenup?

It is an understandably awkward situation—two people moving toward their wedding date to declare their undying love, through better or worse, through richer or poorer, etc., but before this happens, also negotiating a contract that contemplates a possible divorce.

Describing a prenuptial agreement as a contract is a general definition; however, in short, a prenuptial agreement is a document that dictates the provisions in a divorce. Often this means that instead of relying on Florida law existing at the time of their divorce, the parties have instead decided to create their own set of rules in the event they should divorce. This reason—being able to control how the important aspects of their divorce will be handled—is the main advantage in entering into a prenuptial agreement.

Parties enter into prenuptial agreements for various reasons.   It may be that one or both parties have accrued significant assets prior to entering marriage, and although these assets may be pre-marital, under Florida law, the spouse may be entitled to a portion of those assets. Thus, the parties can contract in a prenuptial agreement that all pre-marital assets remain entirely the assets of the party who had them before the marriage.

Another example is when parties have children from a previous relationship that they would like to leave their assets to once they pass away.   Under Florida law, if there was no will, those assets would first pass to the surviving spouse.  A prenuptial agreement could provide that the surviving spouse waive all rights and interests that they may have had pursuant to the laws governing probate.  A common reason that some parties enter into prenuptial agreements is to determine how the issue of alimony will be addressed in the event the parties divorce. The above are only a few reasons for parties entering into a prenuptial agreement.  There may not even be a distinct reason why a prenuptial agreement is needed, but parties wish to think toward the future.

Keep in mind, there are some issues that cannot be dictated by a prenuptial agreement—-namely, anything having to do with children.  Thus, a prenuptial agreement cannot determine issues of time-sharing (custody), parental responsibility, or child support.   Also, under current Florida law, there are certain temporary rights—temporary support and temporary attorney’s fees—that cannot be waived pursuant to a prenuptial agreement; however, many parties still agree to waive these rights voluntarily within a prenuptial agreement.

There is a misperception that prenuptial agreements carry little weight in the legal world and that if either party expends enough money on challenging the prenuptial agreement, they can undo any prenuptial agreement. To the contrary, courts are very hesitant to undo contracts between parties, and that includes prenuptial agreements. There is an abundance of case law that establishes that a prenuptial agreement may still be binding although one spouse is unable to read English but signs anyway; or a spouse was on anti-depressants, anti-anxiety medications or other similar medications when they signed; or an agreement was signed only a few days before the wedding and the spouse was told that the wedding would be cancelled if they did not sign, etc.

The prenuptial agreement’s provisions directly impact the actions of the parties once married. Thus, depending on the controlling provisions, parties must make decisions as a married couple in terms of how assets are titled, how individual and joint funds are held, how to pay their income taxes, etc. In short, a prenuptial agreement involves developing and continuing a mindfulness toward important financial decisions and purchases during the parties’ life together.  Lastly, although prenuptial agreements are routinely perceived as a one-sided contract that benefits only one party, in truth, prenuptial agreements may be advantageous to both parties should their undying love, die.  At Artemis Family Law Group, we specialize in drafting and analyzing prenuptial agreements, from simpler agreements to more complex ones.  Contact us today to discuss whether and how a prenuptial agreement is something you should explore.