Paul Shafranski | Artemis Family Law Group PLLC

When Is an Unequal Distribution Available in a Divorce?

September 3, 2024February 21, 2024 by Paul Shafranski

Several sets of rock stacks - Unequal Distribution

The Factors

Equitable Distribution is premised on the starting point that equal is equitable. (See prior post, “How Is Property Divided In A Florida Divorce?”) In other words, Florida statutes specifically instruct the trial courts to begin analyzing equitable distribution with “with the premise that the distribution should be equal”; however, that same statute permits the courts to provide for an unequal distribution of assets and liabilities based upon certain enumerated factors:

The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker;
The economic circumstances of the parties;
The duration of the marriage;
Any interruption of personal careers or educational opportunities of either party;
The contribution of one spouse to the personal career or educational opportunity of the other spouse;
The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party;
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;
The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home;
The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition;
Any other factors necessary to do equity and justice between the parties.

These factors seem to encompass practically any circumstance, especially when the final catch-all factor is thrown into the mix. Fortunately, The Florida Bar Journal recently published a helpful article which discusses this subject in great detail, with an interesting report on the history of the law leading to where we are now, “Is An Unequal Equitable Distribution Equitable?” While there are plenty of circumstances in which an unequal distribution may be appropriate, it remains the exclusion to the rule of equal distribution. It must be emphasized that the circumstances leading to an unequal distribution are incredibly fact-specific and no one scenario is “guaranteed” to result in an unequal distribution.

Equitable Distribution and Spousal Support Are Different Pieces of the Divorce Pie

A pie with a slice out of it - Divorce Pie — Divorce Pie has multiple slices, including Equitable Distribution and Alimony (along with Child Support and Parenting Issues and more).

Many of the equitable distribution factors overlap with the factors that go into a determination of alimony. Alimony is based on one spouse’s need and the other spouse’s ability to pay, after which various factors are analyzed to figure out what kind of alimony is appropriate, what amount, and for how long. Unlike in the alimony context, the courts are instructed by the law to begin with the premise that equitable distribution of the marital assets and liabilities should be equal. This means that if you are seeking an unequal distribution of assets or liabilities, you will have to overcome with mandated starting point and presumption against an unequal distribution. While only certain kinds of alimony are available for marriages of a certain length, there is no presumption against alimony as a concept in the statutes; instead, it is a mathematical determination of needs and ability to pay.

Furthermore, if you are seeking alimony and an unequal distribution, understand that they exist within the same context, meaning if you are successful in your alimony claim, you are less likely to succeed in your request for unequal distribution, just as if you are successful in your request for an unequal distribution, you are less likely to receive alimony or there is a good chance you will be awarded less alimony. It would be rare, but not unheard of, to receive alimony and an unequal distribution, particularly if they are both based on the same or similar factors. But it cannot be emphasized enough that each case is unique, as are its circumstances. A particularly compelling case for unequal distribution may also be similarly compelling in the alimony context.

Evidentiary Standard: It’s Not Enough to Merely Make a Claim

When making a final decision regarding equitable distribution, Florida statutes instruct the court as follows: “any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated [above].” This means that the court must make written findings of fact in the final judgment and those findings of fact must be based on competent substantial evidence which relate directly to the equitable distribution factors listed above. Thus, any equitable distribution decision, including one that is unequal, must be based on competent substantial evidence. This means more than just a claim that something happened. There must be actual, admissible evidence presented to the trial court to justify a decision. Failure of the trial court to include these findings of fact in the final judgment is reversible error on its face.

Equitable distribution starts off on a pretty straightforward presumption that everything will be split equally when all is said and done. While the process of identifying and valuing all marital assets and liabilities can be an arduous one, it is typically somewhat predictable, especially to seasoned family law attorneys. However, the strength of a claim for unequal distribution is much more complicated than simply reading the relevant statutes and factors. Only an attorney who understands the plethora of case law discussing various scenarios over the decades in Florida, like at Artemis Family Law Group, can accurately gauge whether a claim for unequal distribution should be attempted or if legal efforts and fees should be directed toward a different direction that has a better chance of success. When you are ready to discuss your options, please schedule a consultation with our office today.

What is Mediation in a Florida Divorce?

February 7, 2024 by Paul Shafranski

In the realm of family law, where emotions often run high and tensions can escalate rapidly, finding amicable solutions to disputes is paramount. One of the primary methods to resolve a family law dispute is mediation.

Understanding Mediation

Mediation is a voluntary but required process wherein disputing parties engage in facilitated discussions to reach a resolution. How can something be both required and voluntary? Well, in Florida parties in a divorce are generally required to attend mediation before they can go to court to have a judge decide things in a trial. However, you cannot be compelled to settle or resolve a dispute through mediation, only attend mediation. Thus, whether and how you will resolve a divorce at mediation (the terms to which you agree) is voluntary.

Additionally, mediation may not be required in cases involving domestic violence, child abuse, or other sensitive issues that may make mediation inappropriate. In those instances, the judge will decide if mediation should still be required or if the parties may dispense with that requirement.

Unlike litigation, which can be adversarial and time-consuming, mediation fosters open communication and encourages compromise. It provides a platform for parties to express their concerns, interests, and priorities in a non-confrontational environment. Contrary to popular belief, the vast majority of divorces find resolution at or by mediation, obviating the need for a trial.

The Mediation Process

Engaging with Mediation

The mediation process typically commences with both parties agreeing to participate. If both parties will not agree to participate, the court will often issue an order requiring them to participate. In many counties, you are not typically permitted to bring a matter before the court (such as temporary relief) until the parties have attempted mediation. This underscores the judiciary’s recognition of mediation’s potential to expedite case resolution and alleviate court congestion.

Duration

The duration of mediation sessions can vary significantly depending on various factors, including the complexity of the issues and the willingness of parties to negotiate. While some disputes can be resolved within a single session lasting two to four hours, others may necessitate extended negotiations spanning multiple sessions over several days. In recent times, virtual mediation has gained prominence, offering flexibility and accessibility to parties, especially amidst the challenges posed by the COVID-19 pandemic (although it should be noted that Rule 12.740(b) of the Florida Family Law Rules of Procedure makes it clear that unless the court orders the parties to conduct mediation virtually or the parties agree to conduct mediation virtually, mediation is required to be in person still–the standard practice, however, is for both sides to agree to virtual mediation at this point).

Cost

The parties will need to pay the mediator’s hourly rate and each client will be responsible for paying for their respective attorney’s hourly rate, as attorneys will appear at mediation with their clients. The longer a mediation goes, the more expensive it gets overall. However, mediations typically need time to warm up and make progress.

While mediation is not cheap, unlike court proceedings where fees are often unpredictable and substantial, mediation offers greater cost transparency. Parties are responsible for paying the mediator’s fees, typically on an hourly basis. These fees can vary depending on the mediator’s experience, credentials, and geographic location. However, compared to protracted litigation, mediation is generally more cost-effective and expeditious.

How Soon Can I Attend Mediation For My Divorce?

In order for mediation to be successful, the parties need to have all of the information necessary to feel comfortable weighing options and making decisions. This means that the parties must have completed the financial disclosure process known as “mandatory disclosure.” In a divorce, mandatory disclosure means both parties provide an extensive list of financial documents to each other through their attorneys and certify their compliance with the court. This includes the filing of financial affidavits as well.

The Role of the Mediator

Central to the mediation process is the mediator, an impartial facilitator trained in conflict resolution techniques. While many mediators are attorneys, some may possess backgrounds in psychology or forensic accounting or other fields. The mediator’s primary role is to foster constructive dialogue, facilitate communication, and assist parties in generating viable solutions. The mediator is not a judge or judicial officer and does not make decisions for either party or resolve disputes for them.

The Advantages of Mediation

Confidentiality

Mediation offers a level of confidentiality that is often lacking in traditional court proceedings. Discussions held during mediation are confidential and cannot be disclosed in subsequent court proceedings. This confidentiality fosters an environment where parties feel more comfortable expressing their concerns and exploring potential solutions without fear of public scrutiny or having it thrown back in their face in court.

Empowerment

Mediation empowers parties to take control of the resolution process and actively participate in shaping the outcome. Unlike litigation, where decisions are imposed by a judge, mediation allows parties to collaborate and find solutions that meet their unique needs and priorities. This sense of empowerment can lead to more durable and satisfactory agreements.

Preservation of Relationships

Family disputes can strain relationships and create lasting rifts between parties. Mediation offers a less adversarial approach, focusing on finding common ground and preserving relationships whenever possible. By fostering open communication and mutual respect, mediation can help parties navigate difficult issues while maintaining a level of civility and cooperation.

Flexibility

Mediation is inherently flexible, allowing parties to tailor the process to their specific needs and preferences. Whether it’s scheduling sessions at convenient times, choosing a mediator with relevant expertise, or exploring creative solutions to complex issues, mediation offers a level of flexibility that is often lacking in traditional litigation. Further, mediation is not a zero-sum game. If you reach a point in mediation where you have resolved some issues but remain stuck on other issues, you may agree to sign a partial agreement that memorializes and binds you to the terms you could find agreement over and leave the remaining issues to be negotiated at a later time or decided by the judge. Even this can greatly reduce the cost of litigation by focusing the parties’ and their attorneys’ efforts on just the specific issues that are left unresolved.

Conclusion

In conclusion, mediation stands as a cornerstone of family law dispute resolution, offering a constructive alternative to traditional litigation. Its collaborative nature, flexibility, and cost-effectiveness make it an attractive option for parties seeking timely and amicable resolutions. By embracing mediation, individuals can navigate the complexities of divorce and other family law matters with dignity, respect, and mutual understanding. With its emphasis on communication, collaboration, and empowerment, mediation offers a path towards resolution that is both effective and sustainable.

When you are ready to discuss your options for resolving a family law dispute, including mediation, please schedule a consultation with our office today.

How Is Property Divided In A Florida Divorce?

January 24, 2024 by Paul Shafranski

This is one of the most important questions in a divorce. While a marriage, and its undoing, can be fraught with complex and difficult emotions, the legal process of a divorce mostly comes down to who gets what and how to handle parenting issues. The first question, who gets what, is decided through the process known as “equitable distribution.”

What Is Equitable Distribution?

Equitable Distribution is the process by which all of the marital assets and liabilities, also known as all of the marital stuff you’ve accumulated over the years and all of the marital debt that is left, is distributed to both spouses. The concept comes from section 61.075 of the Florida Statutes, which outlines the entire process. The first step in determining equitable distribution is determining what is a marital asset/liability and what is a nonmarital asset/liability.

Marital vs. Nonmarital Assets and Liabilities

The simple rule is that assets that were obtained before a marriage are nonmarital, meaning they belong to one of the spouses individually and independent of the marital bonds, and the same goes for debts that were incurred before a marriage. For example, if you purchased an antique sports car before the marriage, that is presumed to be nonmarital and not part of the equitable distribution process. Similarly, student loans that you took out before you got married are presumed to be nonmarital and will remain your sole responsibility after the divorce.

The same analysis applies when determining whether something is a marital asset. If that antique sports car was purchased three months into your marriage, it is presumed to be a marital asset. If you took out student loans three months into your marriage that is presumed to be marital debt.

That’s the quick and easy way to determine what are marital assets and liabilities and what are nonmarital assets and liabilities. However, like many things in the law, it is never really that easy.

Common Issues in Equitable Distribution

Equitable Distribution can be complicated by a number of circumstances that families regularly encounter. While these are exceptions to the rules, they are not uncommon.

Valuation

One of the trickiest issues in Equitable Distribution is determining the value of certain assets. How much is your home worth? Are you having the home appraised? Do you and your spouse agree to the appraiser or will you each have your own appraisal performed? Are you using an online listing option, such as Zillow, to get a feeling for what your house could be worth? Or are you both simply agreeing to a value? The answer to these questions will directly impact what number gets placed in the Equitable Distribution Spreadsheet (see below). If you have a family business, it can be very tricky to determine the appropriate value of the business for Equitable Distribution purposes.

Pensions and Retirement Accounts

Another problematic area is with pensions and retirement accounts. It is very common for a spouse to come into a marriage with an existing retirement account that was established pre-marriage, which they then continue to contribute to after the marriage has begun. The pre-marital contributions, and interest derived therefrom, would be nonmarital, while any contributions and interest on those contributions after getting marriage would be considered a marital asset. Calculating the nonmarital portion of the retirement account and any interest derived from those pre-marital contributions can be complicated and requires expertise to determine.

Pensions can be even more difficult to calculate because of the nature of how they pay out. There is usually not a value that a pension can be traded in for until the time comes for one to retire. Pensions will state a current payout amount based on projections, anticipated age of retirement, and other factors. Even more complicated, if the pension was started before the marriage and continued throughout the marriage, it can be very difficult to find the precise nonmarital and marital values of the pension for Equitable Distribution purposes.

Active vs. Passive Appreciation

Another difficult area that can complicate Equitable Distribution is determining whether the increase in value of a nonmarital asset is due to active or passive appreciation. Generally speaking, if a nonmarital asset appreciates in value during the marriage due to the active efforts of one or both spouses, that increase in value is considered “active” appreciation and is likely considered a marital asset subject to Equitable Distribution. If, however, a nonmarital asset increased in value due to market forces, inflation, or other methods that neither spouse had any active involvement in, that increase in value is considered to stay nonmarital and not subject to Equitable Distribution. This is common in real property and in investment accounts in which one or both spouses spent considerable efforts during the marriage to manage the investments.

Inheritances

Inheritances are a big exception to the ordinary marital vs. nonmarital rules. Generally, if a spouse receives an inheritance or a gift that is not from the other spouse, that is considered nonmarital. Also nonmarital are any assets exchanged for such nonmarital assets. In other words, if you spend your inheritance while married on a yacht, that yacht is likely nonmarital even though it was purchased during the marriage. However, if an inheritance or gift is comingled with marital assets, they can lose their nonmarital nature. Thus it is very important if you receive an inheritance or non-spousal gift during the marriage and you would at least like the option to keep it nonmarital, to be careful how it is stored and what you do with it.

Equitable Distribution, Not Necessarily “Equal”

It is important to note that the term we use for the distribution of marital assets and liabilities is “Equitable” Distribution, not “Equal” Distribution. While the courts are instructed to start the process “with the premise that the distribution should be equal,” the court is also permitted to perform an unequal distribution of assets based on certain enumerated factors, which we will discuss in another post.

Gathering Information

Typically, the longer a marriage, the more assets and liabilities a couple has accumulated. It can be a very overwhelming process to gather all of this information into one place. How does one organize all of this financial information? A good place to start is an Equitable Distribution Spreadsheet. The Ninth Circuit in Central Florida has a helpful Equitable Distribution Spreadsheet which one can use to input all information about a couple’s marital assets and liabilities. If you are in litigation, your lawyer should prepare this form for you based on the information you and your spouse provide. While one would think financial information is cut and dry and the answers clear, it is not uncommon for both attorneys to have differences in their Equitable Distribution Spreadsheets (usually regarding whether an asset or liability is marital or nonmarital or the value of an asset or liability). If you are pursuing a collaborative divorce, the financial neutral will gather all of your financial information into their own Equitable Distribution Spreadsheet for the team to analyze and build options with together. In the collaborative process, this spreadsheet is a joint document that both spouses and their team members work together to create and ensure it is accurate.

Equitable Distribution, along with parenting issues, makes up the vast majority of issues to figure out during a divorce. It can be very helpful to talk to a lawyer about this process to figure out what, if any, issues might arise during the Equitable Distribution process and how to resolve them efficiently and fairly. Please schedule a consultation with our office today to discuss these and any other questions you might have. We look forward to hearing from you.

What is Dissipation of Marital Assets in a Florida Divorce?

October 2, 2024January 10, 2024 by Paul Shafranski

How Do you Prove Asset Dissipation?

Once a couple gets married, they have formed a partnership in which they are each impacted and bound by the decisions of the other spouse. The income that both spouses make at their respective careers is considered a marital asset, part of the marital estate. If they purchase a house, that too is considered a marital asset. If one of them goes back to school, any student loans incurred during the marriage are considered a marital asset. Any unwise financial decisions that one or both makes during the marriage is ordinarily considered part of the marital estate, for better or worse. What happens when a marriage is reaching its endpoint, though? When things are starting to come undone, but no one has initiated a divorce yet and decisions are no longer as mutual as they used to be? In particular, what happens when one spouse starts spending money secretly, starts giving away money in anticipation of a divorce, or starts to spend significant amounts of money on a lover in an adulterous affair? This is when we need to start discussing the concept of “dissipation of marital assets.”

What is Dissipation of Assets in Florida Divorce?

Under Florida law, equitable distribution of a couple’s marital assets and liabilities begins with the presumption that the entire marital estate will be split equally, or 50/50. See Fla. Stat. § 61.075(1) (“[T]he court must begin with the premise that the distribution should be equal.”) This fundamental concept of marital law is known as equitable distribution. Notice that the term is not “equal” distribution, but equitable. Another word for equitable is “fair.” Essentially, the law starts with the premise that what is fair is an equal division of the value of the entire marital estate. However, that premise can be overcome and an unequal distribution of the marital estate can be obtained under certain circumstances. One such circumstance is the dissipation of marital assets.

Dissipation of Marital Assets

Section 61.075(1)(i) of the Florida Statutes defines marital dissipation of assets as, “The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition [for dissolution of marriage] or within 2 years prior to the filing of the petition.”

Case law in Florida has helped to explain this brief definition. First, in order for an asset to be considered marital dissipation, it must be the result of intentional misconduct. Importantly, mismanaging funds, being bad with money, or overspending do not count as marital dissipation. In other words, you will not be able to go back and argue that all of the shoes or fishing trips your spouse “wasted” money on should be considered dissipation. Similarly, it is not uncommon for one spouse to be the more prudent one when it comes to money and financial decisions while the other spouse might be more of a spendthrift or have a hazy understanding of the concept of savings. Simply put, when you stay married to someone, you are choosing to go along with all of their strengths and all of their flaws, including poor money management. You cannot go back later and claim you did not support this purchase or that purchase over the years.

Instead, there must be evidence of the offending spouse’s intentional dissipation or destruction of an asset. And the trial court must include specific findings of such intentional misconduct in the Final Judgment, with a specific factual basis for such finding. General allegations of misconduct will not be sufficient either. One must prove that the asset was diminished or dissipated for one party’s “own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” See Walker v. Walker, 85, So. 3d. 553, 555 (Fla. 1st DCA 2012).

What is an Example of Dissipation of Marital Assets?

So what constitutes intentional misconduct for dissipation purposes? The most common behavior is when a spouse spends money on an adulterous affair. However, there is a cost-benefit component that goes into this analysis. If a spouse spends money on some dinners and dates as part of an affair, that is probably considered dissipation. But the amount of time and attorney’s fees it would cost to prove it and obtain an unequal distribution of the marital estate as a result would almost certainly outweigh the amount actually dissipated. If the affair was lengthy, involved substantial items like expensive jewelry, trips, or housing for a lover, that level of dissipation might be worth it from a cost-benefit perspective. Of course, a cost-benefit perspective does not factor in the emotional harm that an affair can bring to a divorce and the non-offending spouse’s need to be made complete through a finding that some of the marital estate was dissipated in order to support the affair. This is an individual decision that you should make after consulting with legal counsel to have a better understanding of what a fight over alleged dissipation would really entail.

Other common ways that dissipation can occur is when one spouse gives money away to a friend of family member in order to try to keep it from being considered part of the marital estate. Gambling can also constitute dissipation of marital assets, depending on the circumstances.

Resolving Dissipation Issues Through the Collaborative Model

It is a common misconception that thornier issues, like dissipation of assets due to an affair, cannot be resolved through the collaborative family law process but must instead be obtained through contentious litigation. To the contrary, we have resolved many complex and emotional matters, like dissipation of assets, through the collaborative process. In fact, the results tend to be more efficient and also more conscious of the emotions involved, than litigation offers. We encourage you to consider the collaborative model if your divorce will likely need to resolve a claim of dissipation of marital assets. Please click here to schedule a consultation with us today so that we can help you better understand dissipation of marital assets.

Ways to Prepare for a Divorce That Aren’t Discussed (But Should Be)

December 28, 2023 by Paul Shafranski

All major life events, both the good and the bad, are improved through preparation. You prepare for a family vacation and you prepare for hurricane season every year. Likewise, you should prepare for a divorce if you are considering one, and not just “wing it.” There are many aspects that can go into preparing for a divorce. This article will explore some of the aspects of preparing for a divorce that are discussed less than others but are as important, if not more so.

Establish a Support System Now

It is vitally important that you establish some kind of support system now if you are considering a divorce (or if your spouse has initiated one). Divorces can be extremely isolating and emotionally devastating. It is imperative that you have at least one safe space to vent throughout the process. This can mean finding a therapist or divorce coach who can walk you through the transition of a divorce. We have had many clients who have benefited from a local support group for people going through a divorce. Some support groups are broken down into subgroups, such as men or women, senior citizens, religious affiliation, LGBTQ members, etc., so you should be able to find one that fits your needs.

Mentally Prepare for the Loss of Family and Friends

I know it sounds dire, but the reality is that when a couple divorces, it is very common for the couple’s friends to “choose sides” and maintain a friendship with only one of the spouses. Similarly, it is common for the in-laws to side with the spouse that is their family by blood. This does not mean you will be fighting with these people, but you should anticipate the possibility that a significant portion of your friend and family circle will disappear, sometimes immediately, upon the initiation of a divorce. This can amplify the feelings of isolation and grief that come with a divorce, and this is why it is vital to take stock of your closest friends and family and identify who can serve as a confidant and trusted source of support. Because this is not a “legal issue” in family law, it is rarely discussed by attorneys, but it is one of the most important things you can do for yourself going into a divorce. Do not underestimate its importance.

Give Yourself a Financial Education

Few married couples handle the finances equally. Whether on purpose or through the passage of time, it is common for one spouse to handle the financial logistics of married life, from paying bills and budgeting to making investment decisions and everything else financial. What can end up happening is the other spouse finds themselves with very little financial knowledge. If you are preparing for a divorce and you don’t have much financial literacy or knowledge, it imperative that you take the time to remedy this imbalance. The good news is that in our current technology age, you have limitless resources to learn anything, including all about finances, investing, budgeting, retirement, etc. While you should learn broad financial concepts, or at least become familiar with them, you should also take the time to learn about your family’s own personal finances. What do you and your spouse actually make every year? How much are you spending? Are you investing any money and if so, how? What do your respective retirement plans look like? You will do yourself a great disservice going into a divorce with little to no knowledge of your financial situation. You will ultimately be in charge of your finances when the divorce is finalized, so this is something you will have to learn regardless. Doing it sooner will make your divorce go more smoothly and give you confidence going forward into your future.

Set Reasonable and Realistic Expectations

How will the divorce go? Will it be peaceful and relatively quick or acrimonious and never-ending? What will the new time-sharing schedule for your children look like? Will you receive spousal support, and if so, how much? What kind of new living arrangement do you actually need and can realistically afford? Will this divorce change your retirement plans? You should be asking yourself these and many other questions going into a divorce. You should also seek sound legal counsel who will provide you with real answers, not just what you want to hear, so that you can start the process with reasonable expectations. We have seen many parties led astray in their divorce because they did not set reasonable expectations with themselves and their attorney.

There are many things you can and should do to prepare for a divorce. The best way to start this is to discuss everything with an attorney, even if you are nowhere near ready to move forward with the divorce. The first time you speak to a family law attorney should not be when you have reached your breaking point and want to file immediately. We are happy to talk to individuals who are simply exploring the possibility of divorce at some point in their future. Please click here to schedule a consultation today.

What Happens If I Move Out During the Divorce?

December 13, 2023 by Paul Shafranski

One concern we see often in divorces is how to handle the marital home while the divorce is pending. For a related discussion of how to ultimately determine what to do with the marital home at the conclusion of the divorce, and the logistics of those decisions, click here and here.

No Such Thing As “Abandoning” the Home

A very common misconception is that if one spouse moves out of the marital home, they will have “abandoned” any claim to it, whether it be the right to return to the home or the value of the equity in the home. Neither concern is true but each warrants a discussion.

Moving out of the marital home during the divorce does not eliminate your right to return to the home or your claim to any possessions within the home that are marital property. From a practical standpoint, however, returning to the home after moving out can be difficult. If the spouse who did not leave the home decides to change the locks and security system codes (which is not unheard of), then the spouse who is attempting to return to the home, whether to move back in or to simply visit the home to check on or gather some belongings, will be thwarted. This means that the attorneys of both spouses will have to work together to obtain the cooperation of both spouses to facilitate the returning spouse’s plans, a process that can be much more complicated and time consuming than you may imagine, due in part to the heightened emotional state of both spouses. If the spouses cannot be convinced to cooperate in this manner, then a motion will have to be filed with the court to allow the spouse to return to the marital home. Between the time it takes to draft and file the motion, coordinate hearing time, ensure the court is available, have the hearing, and obtain an order, months can go by. As can be gleamed from the above, this can be a time-consuming and therefore costly process. The conclusion here is: Be cautious about moving out of the marital home if you think your spouse will lock you out as a result; you can get back in but it can be a complicated and costly process to do so.

When it comes to your legal claim to the value of the equity in the marital home, that is entirely unaffected by your decision to move out of the house during the divorce. There is no legal concept of “abandonment” of the marital home in Florida law. You will not lose your right to the value of the equity in the marital home, regardless of how the home is ultimately handled. This is a pervasive myth in family law that has no basis in the law, perhaps based on antiquated statutes and common law concepts from ages ago. It must be noted, however, that if you do move out of the marital home during the divorce, you and your spouse are still responsible for maintaining the cost of the home the way you had been doing so previously (maintaining the financial status quo). In other words, just because you move out of the marital home during the divorce does not mean you are no longer responsible for helping to pay the mortgage, utilities, home owners’ association fees, etc. This is why it is often financially not feasible for one spouse to move out during the divorce. It is difficult to maintain two households on the income that was being used to support one household. The conclusion here is: You will not lose your claim to your portion of the equity in the marital home by moving out; however, it can be financially impossible to support two households while going through a divorce, so tread carefully.

Moving Out Could Impact Who Gets To Keep the House Ultimately

Something else to consider is that moving out of the marital home may impact who gets to keep the house ultimately. If your goal is to move back into the house and keep it for yourself as part of equitable distribution, the fact that you already moved out and have not been living in the house for a substantial period of time may have a practical impact on whether you get to keep the house in the divorce. Of course if both you and your spouse want to sell the house eventually, this should not matter. Or if your spouse wants to keep the house and pay you your share of the equity in the home and you agree to that, this should not matter either.

Safety First, Always

If you feel that you need to leave the marital home due to domestic violence or fear for your personal safety, that should guide your decision to leave the home before any legal consideration mentioned above. Your safety is the paramount concern. Further, if thing have reached a point where you and your spouse cannot peacefully co-exist in the marital home, then moving out might be for the best. A divorce can go on for well over a year and if you and your spouse are making each other extremely uncomfortable every day, it might be worth exploring your options to move elsewhere.

Making the decision to pursue a divorce is already one of the most difficult decisions a person can make. Having to then decide how to navigate whether to move out during the divorce only compounds the difficulty and emotional strain. We welcome the opportunity to help you make these decisions in a constructive and measured manner, so please click here to schedule a consultation.

Can You Make Your Spouse Pay Your Legal Fees?

November 29, 2023 by Paul Shafranski

One of the most common questions clients ask in a divorce and other family law matters is whether they can make their spouse pay for their attorney’s fees. Like most things in the law, the answer is unsurprisingly nuanced and complicated. It is an important question because legal fees is one of the biggest concerns people looking into divorce can face. Let’s face it—divorces can be expensive and not everyone has access to the same resources. Florida law provides some options to try to level the playing field when it comes to attorney’s fees in a divorce.

Section 61.16

Section 61.16 of the Florida Statutes provides the primary basis for obtaining attorney’s fees from your spouse or the other party. It broadly authorizes the court to “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 under this chapter, including modification and enforcement proceedings and appeals.” As the language indicates, these fees are available not just for an original divorce action but also for enforcement actions, modification actions, and appeals of the divorce. The statute vaguely instructs the court to “consider[] the financial resources of both parties” in making this decision. In the seminal decision Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla. 1980), the Florida Supreme Court held that the purpose of section 61.16 is to “ensure that both parties will have similar ability to secure competent legal counsel.”

Importantly, section 61.16 specifically notes that a party who is found to be a wrongdoer in the context of a domestic violence proceeding or enforcement actions is not entitled to receive attorney’s fees, regardless of the parties’ respective financial positioning (in other words, the person who is not paying child support and found to be a wrongdoer cannot receive attorney’s fees under this section even if they make significantly less income than the other person).

Section 61.16 is not intended to necessarily cover all of one party’s attorney’s fees for an entire divorce, or other family law matter. Instead, a party can be provided with a limited amount of attorney’s fees at one point in the process and then the court can re-assess if more fees are necessary later on, depending on how the matter unfolds.

Section 742.045

Section 742.045 of the Florida Statutes mirrors the language of 61.16 and applies it to paternity actions.

Section 57.105

Florida law also provides attorney’s fees upon a finding that the losing party took a position that was not supported by the material facts necessary to establish the claim or defense or would not be supported by then-existing law to those material facts. What this means is that if someone takes a position or makes a claim that is without factual or legal merit, then attorney’s fees are available. It must be noted that this is a rather extreme provision that is rarely applicable in the family law context. It is not enough to disagree with the other side or to interpret a case or statute differently (most litigated cases have at least some of this).

Before one can file a motion for attorney’s fees pursuant to this law, section 57.105, a copy of the motion to be filed must be served on the other side at least 21 days before the motion can actually be filed with the court. The intention behind this is to provide the other side a period of time to rectify the claim that allegedly falls under section 57.105 (the outlandish claim that is without legal or factual merit). This is referred to as the “safe-harbor” requirement.

Moakley v. Smallwood

Despite there being no statute authorizing it, the Florida Supreme Court has recognized the courts’ inherent authority to sanction attorneys for attorney misconduct. An award of attorney’s fees under this provision is not based on a finding that the parties have disparate financial positions or need and ability to pay attorney’s fees. A motion for attorney’s fees based on this inherent authority to sanction attorney misconduct requires notice, an evidentiary hearing, and detailed factual findings by the court. Further, the award of attorney’s fees is limited to that which was incurred to respond to and deal with the specific misconduct, not just general attorney’s fees.

When to Request Attorney’s Fees

You can request attorney’s fees at various times in litigation, largely depending on the basis for the request in attorney’s fees. Fees under 57.105 and Moakley v. Smallwood are a reaction to specific legal tactics and misconduct so they cannot be requested until that behavior has already occurred. A request under 61.16 can be more proactive, toward the start of litigation if the financial resources are so imbalanced that one party can barely afford an initial retainer to get started, but the request can also be resolved after a full trial, when all of the ultimate evidence has been presented.

If you have questions about whether you may be entitled to attorney’s fees in your family law matter, please schedule a consultation with us today.

Navigating Divorce with P.E.A.C.E.: A Comprehensive Guide to Methodical Resolution

November 14, 2023 by Paul Shafranski

Introduction:

Embarking on the journey of divorce necessitates a comprehensive understanding of the many issues involved. Family law attorneys often use a structured approach encapsulated in the PEACE acronym, wherein each letter represents a critical aspect of a divorce in a specific order: Parenting Issues, Equitable Distribution, Alimony, Child Support, and Everything Else. In this thorough exploration, we will delve into each component of the PEACE acronym, explaining why addressing these issues in a specific order is not only mathematically sound but also immensely beneficial for organizing your thoughts during the overwhelming divorce process.

Parenting Issues:

At the epicenter of any divorce lies the pivotal matter of parenting, a facet that extends far beyond legal agreements. Addressing parenting issues early in the process is not merely advisable; it is integral. This phase involves determining time-sharing arrangements (formerly known as “custody”), constructing a comprehensive time-sharing schedule, and making decisions that profoundly impact the child’s education and healthcare. By dedicating time to resolve parenting matters first, a foundational structure is laid for other aspects of the divorce. Decisions made in this phase have a cascading effect, influencing child support calculations and impacting equitable distribution. Furthermore, an early focus on parenting fosters cooperative co-parenting, contributing significantly to a healthier environment for the children involved. Finally, children should come first in any divorce, so deciding issues related to parenting first just makes good sense. It also ensures that the time-sharing schedule, which should be based on what it in the best interests of the children, is not being impacted by financial decisions in Equitable Distribution or Alimony.

Equitable Distribution:

Equitable Distribution, the next step in the PEACE acronym, involves the fair division of marital assets and liabilities. This stage necessitates a meticulous examination of financial contributions to the marriage, essentially everything that a couple owes and owns. Addressing equitable distribution after parenting issues enables a more accurate assessment of the financial needs of both parties, especially when considering the financial responsibilities associated with raising children. The process may involve appraising property, evaluating complicated financial documents, and negotiating a fair division of assets. This systematic approach ensures that financial considerations align with the responsibilities outlined in the parenting plan, fostering transparency and fairness.

Alimony:

Alimony, or spousal support, emerges as a critical aspect after addressing parenting and equitable distribution. This phase seeks to ensure a more accurate assessment of each party’s financial situation, acknowledging the complexities that arise after the dissolution of a marriage. The decisions made regarding alimony can significantly impact child support calculations, emphasizing the need to tackle this issue in a systematic order. Factors such as the duration of the marriage, the financial needs of each party, and the standard of living during the marriage are considered when analyzing alimony. This careful consideration plays a pivotal role in crafting a fair and sustainable financial arrangement for both spouses post-divorce.

Child Support:

Child support, a cornerstone in divorce proceedings, ensures that the financial needs of the children are met post-divorce. Addressing parenting, equitable distribution, and alimony before delving into child support calculations enhances accuracy and avoids potential complications. Child support calculations involve considering each parent’s income, the number of children, and specific expenses related to the children’s well-being, as well as the specific time-sharing schedule that the parents have agreed to use. A thoughtful approach to child support ensures that the financial responsibilities align with the parenting arrangements established earlier in the process. This systematic progression, guided by the PEACE acronym, not only streamlines the divorce process but also safeguards the best interests of the children involved.

Everything Else:

The final stage in the PEACE acronym encompasses addressing any remaining issues that were not covered in the preceding steps. This includes the division of personal property, considerations regarding adult children, and the finalization of the legal details of the divorce. By saving these miscellaneous issues for the final phase, individuals can focus on the core aspects of the divorce first, making the entire process feel more manageable. This deliberate approach allows for a comprehensive resolution, ensuring that no important details are overlooked in the rush to conclude the divorce process. Addressing everything else after resolving the core issues also provides a smoother transition into post-divorce life for both parties, fostering a sense of closure and allowing individuals to embark on their new chapter with clarity.

Conclusion:

In conclusion, the PEACE acronym stands as a guiding beacon, providing a structured and logical approach to navigating the complicated landscape of divorce. By systematically addressing Parenting Issues, Equitable Distribution, Alimony, Child Support, and Everything Else in a specific order, individuals not only follow a mathematically sound progression but also gain a profound sense of organization and control over the myriad decisions involved in divorce. This methodical approach reflects a commitment to guiding clients through the divorce process with empathy and efficiency, ultimately paving the way for a more peaceful and sustainable post-divorce life. As individuals traverse this challenging terrain, the PEACE acronym serves as a roadmap, facilitating a comprehensive and thoughtful resolution for all parties involved. When you are ready to discuss the divorce process, please schedule a consultation today.

Answering Some of the Most Common Divorce Questions Part 2

November 16, 2023November 7, 2023 by Paul Shafranski

Today we are continuing our series in which we address some of the questions we hear most frequently about divorce. If you have any questions of your own, please feel free to schedule a consultation today.

Does Florida law require separation before divorce?

Answer: No. While some states require a separation period before a divorce can proceed, Florida does not. In fact, Florida does not recognize legal separation at all. While you may live apart, you are legally married until you request and obtain a dissolution of marriage.

Can I avoid going to court for my divorce?

Answer: Maybe. If you have a litigated divorce with contentious issues that a judge has to resolve, you will have to go to court to make your case and arguments. If you settle your litigated divorce through some kind of alternate dispute resolution method, such as mediation or collaborative, you can likely receive a final judgment without having to go to court. Since Covid, many local courts have created processes to obtain a final judgment without having to appear in person, but the rules tend to change relatively frequently, and it is up to each individual judge’s policies and procedures whether an in-person appearance is required in a divorce. If you file an uncontested divorce, the same rules apply—it is likely you can obtain a final judgment without having to go to court, but it is not guaranteed. If avoiding going to court is a priority for you, it is important that you discuss this with an attorney who is versed in the various local rules and procedures to maximize your chances of keeping away from the courthouse.

Is the inheritance I received during my marriage considered a marital asset?

Answer: No, but it can become a marital asset if you are not careful. Section 61.075(6)(b)2., Florida Statutes defines as nonmarital “[a]ssets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.” However, inherited property can become a marital asset if it is co-mingled with other marital assets. The most common way to do this is to deposit part or all of the inheritance into a joint bank account. Doing so likely changes the nature of the inheritance from a nonmarital asset to a marital asset—both spouses have access to it in a joint account and over time it becomes difficult to separate out inherited funds from a joint account. The easiest way to prevent your inheritance from becoming marital, and thus subject to a claim from your spouse in a divorce, is to always maintain it in a separate bank account in your name only.

Question: What other expenses will I have to pay for in my divorce besides attorney’s fees?

Answer: There are multiple other types of expenses you may have to pay for in a divorce. This is a list of the most common ones, but you should be aware that it is not an exhaustive list, and it is also not a list of expenses that every divorce necessitates.

Filing fee;
The cost to have the clerk of court execute a Summons;
Having a process server serve your Summons and Petition on your spouse;
Having a court reporter present at a hearing;
Having a court reporter create the transcripts from a hearing;
The cost of a private investigator;
Recording costs to have a Final Judgment or Deed recorded;
Certified Copies of your Final Judgment from the clerk’s office.

Divorces are full of nuances and complicated decisions. This is why it is important that you speak to an attorney who will help you understand the law and your options, not someone who will simply quote a statute at you and expect you to fully understand something attorneys go to law school to be able to grasp. At Artemis Family Law Group, we pride ourselves on making the law as accessible to clients as possible. If you don’t understand something, then our job is not finished. Please click here to schedule a consultation at your convenience. And continue to read this ongoing series to answer some of your most common questions.

Answering Some of the Most Common Divorce Questions

November 16, 2023October 31, 2023 by Paul Shafranski

Today we are taking the opportunity to address some of the questions we hear most frequently about divorce. As a divorce involves every area of your life, it is only natural for there to be all kinds of questions about it. We anticipate this being an ongoing series as there are plenty of questions to answer. If you don’t find the answer to your specific question here, please click here to schedule a consultation with us today so that we can help.

Are divorce papers public?

Answer: Usually yes. While this can vary from state to state, Florida has a broad public records policy. A divorce is a legal action which goes through the court system, which means anything filed in a divorce is public record unless some portion of a document is redacted (because it contains sensitive information) or if the matter is sealed by the court at its conclusion. One of the many benefits of a collaborative divorce is the minimal number of legal filings required to obtain a divorce—typically even the settlement agreement is excluded from the court record. If privacy is your primary concern, consider a collaborative divorce.

How long will a divorce take?

Answer: This depends on many different factors. A litigated divorce typically takes the longest because the adversarial process adds many steps to a divorce. In a litigated divorce, communications often go through both attorneys, which can substantially increase the time it takes to resolve any issue. For example, if Client A is having trouble with an issue related to soccer camp, he brings it up to his attorney, who then contacts Client B’s attorney to address the issue. Client B’s attorney then contacts Client B to discuss it directly, before then reaching back out to Client A’s attorney to relay the gist of the conversation. Client A’s attorney then contacts Client A to let them know the results of the communication attempts. Between scheduling issues, missed phone calls, email delays, etc., it can take weeks to resolve an issue that would take Client A and Client B ten minutes to fix if they discussed it themselves. As you can imagine, it is common for litigation divorces to have lots of random issues like this come up, all of which act to slow down the process.

Additionally, any time the court becomes involved in resolving a dispute, everyone is bound to that judge’s schedule. If the judge doesn’t have time for a hearing for two months, which is not uncommon at all depending on the judge and the jurisdiction, then everything is slowed down and delayed.

All of this is to say that litigation divorces, depending on things like the number and complexity of issues, the attorneys involved, the court’s calendar, etc., can easily take well over a year to obtain a final judgment, so it is important that you plan accordingly, both financially and mentally.

A collaborative divorce, however, tends to move much faster than a litigated divorce. Communications tend to be more efficient as everyone works toward a common goal, even if they are not always in agreement about how to get to that goal. The Collaborative team meetings are agenda-driven and very focused. As such, more can be accomplished with less time. Finally, the faster clients are in obtaining the various financial documents needed to understand the family’s picture and build options, the faster the matter can be resolved. When all is said and done, the vast majority of collaborative divorces resolve within a year of beginning, with many resolving in under six months. If the time it takes to divorce is your top priority, then consider a collaborative divorce.

Can a divorce settlement be reopened?

Answer: With a few exceptions, probably not. Most divorces resolve with a Marital Settlement Agreement (“MSA”), not a trial. The Agreement may be reached before attorneys are involved, at or after mediation, or even the night before a trial. But the fact is most divorces end with an MSA that the couple agrees to, often reluctantly. A settlement agreement is supposed to provide a family with finality and understanding when it comes to the terms of their divorce.

The two most common ways an MSA is reopened is to modify either child support, or alimony, or both. Child support is always modifiable so long as the statutory requirements are met. Alimony is modifiable under certain circumstances, so long as the right to modify it has not been waived in the MSA.

Otherwise, short of evidence of fraud, duress, or material misrepresentation of fact, reopening an MSA is going to be highly unlikely, if not impossible. If you are unhappy with the terms of the MSA you signed, there is not much to be done about it. This is why it is extremely important that you a) speak to an attorney before you sign an MSA, regardless of who drafted it; b) make sure you understand the specific terms and conditions of the MSA (if you have questions, the time to ask is before you sign it and your attorney should ensure that you understand what is being explained); and c) take the time to contemplate the MSA and make sure you are comfortable enough with it to sign it (don’t rush on anyone else’s behalf—this is your life and your future).