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.

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).

Does Adultery Matter in My Divorce?

November 16, 2023October 10, 2023 by Paul Shafranski

Many marriages end due to the adultery of one spouse (or both spouses). But does that adultery matter in the divorce? Legally speaking, probably not.

Florida is a “no-fault divorce” state, which means that any individual who is in a marriage can obtain a divorce either because the marriage is “irretrievably broken” or due to the mental incapacity of one of the spouses, so long as the spouse alleged to be incompetent has been adjudicated as such at least three years prior to the divorce. Section 61.052(1)(a)-(b), Florida Statutes (2023). You’ll notice that there is no mention of a finding of fault against either spouse in order to obtain a divorce in Florida.

Many decades ago, before Florida adopted the “no-fault divorce” statute, a spouse did have to prove entitlement to divorce, and one of the primary ways to meet that burden was to prove that the other spouse had committed adultery. Those days are long gone. However, there is one exception in which the adultery of one spouse can have an impact on a divorce: alimony.

The latest version of Florida alimony statute states, “The court may consider the adultery of either spouse and any resulting economic impact in determining the amount of alimony, if any, to be awarded.” Section 61.08(1)(a), Florida Statutes (2023). It is not simply the existence of an adulterous affair or adulterous conduct that matters, however. There is a long line of cases discussing what is called the dissipation of marital assets. Essentially, if adulterous conduct led a spouse to secretly waste marital assets on an adulterous relationship, that decrease in overall marital assets can be considered when determining the amount of alimony. Adulterous affairs can lead to all kinds of very expensive spending, such as on jewelry, vacations, paying for someone’s living situation, expensive meals, etc. An ongoing adulterous affair that goes on long enough can result in significant dissipation of marital assets.

Proving dissipation can be a difficult and costly endeavor, as you must do more than simply allege that your marital assets were reduced due to a spouse’s affair. Typically, one must go through years of bank statements and financial records to piece together which purchases were for the benefit of the marriage and which ones were for the benefit of the adulterous relationship. Thus, like much of the family law system, a cost-benefit analysis must be performed to determine how worthwhile this undertaking would be compared to how costly it would be. If financial experts are required, then the cost can really skyrocket.

We understand that divorce is an emotional process as well as a financial process, and often it can be difficult to see the cost-benefit analysis and make the right decision for yourself. This is why it is extremely important to speak to an attorney who will not simply agitate you and push you to go down this road, which will increase the number of hours they spend on your divorce significantly, and speak to someone who will provide you a level-headed analysis based on a multitude of factors (your family’s financial capabilities generally, your odds of success given the county you are in and the judge presiding over your divorce, how much more you are likely to receive if you are successful, and how much it will reasonably cost to investigate and pursue an alimony award based in part on suspected dissipation of marital assets). Please click here to schedule a consultation at your convenience and discuss your options with an attorney you can trust to help you make the right decisions for you and your family.

Can I Keep My House After A Divorce? Part 2

November 16, 2023September 5, 2023 by Paul Shafranski

In Part 1 we discussed whether your house is considered marital property, various factors that influence the decision to try to keep the house after a divorce, and some of the more common options for doing so. Now in Part 2, we will continue the conversation, in which we explore the legal process for valuing your house and some alternatives to keeping the house.

What Is My House Worth?

This is a key question if you are not going to be selling the house as a part of the divorce. If you agree to sell the house and split the proceeds evenly, then the value of the house will simply be whatever amount for which the house is sold. The market decides the value at the time of purchase and if you are splitting the proceeds evenly, it does not complicate equitable distribution. In other words, if the home sells for more than expected, you and your spouse will receive the benefit of that equally and if it sells for less, you and your spouse will both bear the burden equally.

While that is the simplest route, from an equitable distribution perspective, it is very common for individuals to instead want to stay in the marital home after divorce. That’s where it becomes important, and complicated, to ascertain the value of the home. You have a few options, in increasing cost and complexity:

Agree to Value:

The simplest manner to determine the home’s value for equitable distribution purposes is to agree to a value. This can be based on each of you doing your own research, online listing values (such as a Zillow estimate), or simply a strong belief you both hold as to the home’s monetary value. After all, you know your home better than anyone else. If you agree to a value, you can use that to determine what amount you will need to provide to your spouse, either in cash or in offsets from other marital assets, in order to buy out their share of the home so you can keep it. The Pros of this method are the simplicity and cost-effectiveness of agreeing to a price. The Cons of this method are the inaccuracy of the price as well as the difficulty some couples have in coming to any agreement during a divorce.

Comparative Market Analysis (CMA):

A CMA is somewhere between simply agreeing to a value and a full-blown appraisal. A CMA is performed by a real estate agent and involves comparing similar homes in the area that have recently been sold. Multiple factors go into a CMA, including but not limited to, location, lot size, and square footage, etc. A CMA is a great option if you and your spouse are not too far off in your personal estimates of the home’s worth—it will help determine what number to use. However, the bigger the difference in estimated values you and your spouse have, the less value a CMA will provide. If the CMA comes in at or near Spouse 1’s estimated value, then Spouse 2 is likely to reject it. If the CMA comes in at or near Spouse 2’s estimates value, then Spouse 1 is likely to reject it. If the CMA lands somewhere in the middle of both spouse’s estimates, they both may reject it. Ultimately, unless you both agree to be bound by the CMA, neither of you are required to agree to the price the CMA determines. The Pros of a CMA are cost (they are usually free) and speed (they are usually performed in a matter of days). The Cons of a CMA are that it is less accurate than an appraisal and require the parties to agree to a real estate agent to perform the CMA, which can be difficult in a high-conflict scenario.

Appraisal:

An appraisal is a more formal process than a CMA and requires a licensed appraiser to perform an appraisal. While a lot of the market comparison process is similar to a CMA, an appraiser will typically enter your home and physically inspect the condition of the house, noting any defects, outdated aspects, or flaws with the home. As such, an appraisal is more thorough than a CMA. An appraisal results in an appraisal report in which the detailed findings of the home are noted, with photographic evidence. Appraisals also take much longer to perform, typically 30-60 days, to obtain the appraisal report. They also carry a hefty price tag. And similarly to a CMA, either one of you may end up rejecting the appraisal report’s value of the home if it does not come close to what you already believe it to be. Neither of you are bound by an appraisal’s value unless you both agree to be. Often when a matter ends up in court, you end up with “dueling appraisals” with different values. The Pros of an appraisal is the accuracy and thoroughness it provides while the Cons are the price and length of time it can take to obtain.

Alternatives to Keeping the House

The primary alternatives to keeping the house are selling it or letting your spouse buy you out of your share of the equity in the home. It is often the case that the home is burdened with extensive family memories, which can make it difficult to let go of. However, divorces are typically difficult on your finances and maintaining a home with one income instead of two can be too difficult to realistically handle. Combined with all of the other financial and lifestyle changes that come with a divorce, sometimes it is better to say goodbye to the house and give yourself a clean break. It is very common for there to be a “resting” or “recovery” period after a divorce in which the parties live in simpler housing for a time while they adjust to the new normal and determine what they can afford and just as importantly what they actually want at this point in their lives.

Some people move in which family for a while after a divorce, which can help stabilize their finances and provide a steady place for them and their children. Still others move into smaller rental options, like a smaller home or an apartment, to get by during the adjustment period. It can be helpful to start out “smaller” with your options and then adjust upward if and when you think the time is right. Otherwise, it can be very difficult, if not impossible, to maintain the same life you had before a divorce without building back up to it. It can also be liberating to let go of an asset that is full of so many memories that are no longer a source of comfort; we have seen clients embrace a feeling of freedom when they let go of the struggle to keep the house and figure out how to maintain it. It is certainly not an easy decision to make, but it may be the best one for you and your family overall.

We welcome the opportunity to discuss your housing options with you. Please click here to schedule a consultation at your convenience.

Can I Keep My House After A Divorce? Part 1

November 16, 2023August 29, 2023 by Paul Shafranski

For most families, the home is the biggest single asset they have and the largest source of their net worth, with the possible exception of retirement accounts. The marital home is usually fraught with emotional attachment as well. This is why it is often the primary financial issue causing anxiety and argument during the divorce process. The question most individuals have usually boils down to, “Can I keep the house?” This is a simple question with some very complicated answers.

I. Understanding Marital Property

The first thing to figure out is whether your home is considered martial property. The answer is typically yes. Simply speaking, if the home was purchased during the marriage, it is likely marital property. Florida law defines “marital assets” as “[a]ssets acquired . . . during the marriage, individually by either spouse or jointly by them.” Fla. Stat. 61.075(6)(a)1.a. (2023). There are some additional complexities with the increase in the value of a nonmarital asset (a home that was purchased before getting married) during the marriage, material improvements to the home, and using marital funds to pay off part of the mortgage during the marriage, but that is for another article to discuss (stay tuned). This article will operate under the assumption that the home in question is marital.

II. Factors That Influence Keeping the House

There are multiple factors that come up when thinking about whether you can and should keep the house after a divorce.

Financial situation of both spouses. Simply put, divorce places a ton of strain on your finances. Once you are divorced, two incomes becomes one income, and shared bills become your responsibility, not to mention that the divorce process itself can be costly. The first thing you must ask yourself is whether you will be able to afford to keep the house after the divorce. Will you be able to pay for the mortgage yourself? Will you be able to keep up with the monthly household costs (insurance, utilities, maintenance, repairs, HOA fees, etc.)? It may be helpful to consult with a financial advisor if the answers to these questions are even a little unclear to you.

Mortgage and ownership details. The details of how your home was purchased and how it is owned will impact your whether and how you may be able to keep the house. Are other individuals besides you and your spouse on the deed or the mortgage? What kind or mortgage and loan do you have?

Children’s well-being. In all divorces with children, their well-being should always be the paramount concern throughout the process. How important is it that the children have access to the family home? Does the home provide unique details (spacious backyard, wonderful neighbors, etc.) that help in raising your children? Another major consideration is how important it is to stay within the children’s existing school zones. If both parents move out of the children’s school zones, the children will likely be re-zoned and required to attend different schools. Staying in the house is one way to ensure that school zones won’t be an issue (you can also move to another residence in the same school zone).

III. Options for Keeping the House

There are a few financial options for keeping the house.

Buying out your spouse’s share. If there is equity in the marital home, then that equity is presumed to be marital, and your spouse will likely have a claim to half of it. You are going to have to consider whether and how you will be able to buy your spouse’s share of the equity in order to keep the house for yourself. For example, if the house has a $200,000 mortgage and is estimated to be worth $300,000 (more on the process of determining the house’s value in Part 2), then there is approximately $100,000 in equity in the home. Your spouse would likely be entitled to half of that equity, or $50,000. You and your attorney would need to figure out if and how you could pay that amount to your spouse. You can do it through a cash transaction if that is available to you, but for many families that is not an option. Instead, you may look to other marital assets to offset the equity. One common option is to offer your spouse an unequal portion of your retirement accounts, or to offer to let your spouse keep more than half of his or her retirement accounts. Continuing from our example, if you have a retirement account worth $100,000, all of which is determined to be marital, then you and your spouse each would have a claim to half of that account, or $50,000. You could offer your spouse all of this retirement account in exchange for the marital home.

Refinancing the mortgage. This is one of the trickier aspects of keeping the marital home. Typically, both spouses are on the mortgage. Most lenders require refinancing in order to remove one of the mortgagors from the mortgage. In order to refinance a loan into just your name, you will have to qualify—which typically requires things like adequate steady income, a high enough credit score, etc. If you are denied refinancing, then chances are you will not be able to remove your spouse from the mortgage, and may at that point have to consider listing the house for sale. If you are at all considering this option, we believe it is prudent to start the refinancing process early—even if you cannot begin signing documents, you should have conversations with your lender to see how viable a refinance would be, and then shop around if you believe you may have luck elsewhere. It is not ideal to wait until the divorce is finalized to start looking into your refinancing options. You should start now.

Another consideration with refinancing the mortgage is that a refinance typically triggers a new interest rate calculation by the lender. Since interest rates have been historically low until recently, there is a chance that you will encounter a higher interest rate in refinancing. An increase in interest rate alone can make a mortgage payment go from affordable to unaffordable. There are options to try to circumvent this from happening, which you should speak to a qualified divorce mortgage lender to understand better. Our office is happy to refer you to the appropriate professionals and specialists who focus on refinancing and lending during and after divorces.

There is so much to discuss on this issue, so please come back to read Part 2, in which we will address the legal process for valuing the house and alternatives to keeping the house. If you have questions about any of these issues, we are eager to help you understand better. Please contact us to schedule a consultation.

What is a Partition Action?

November 16, 2023October 25, 2019 by Teris Deitsch

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.

Am I responsible for my spouse’s medical bills?

September 6, 2024October 17, 2019 by Paul Shafranski

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?

November 7, 2019October 11, 2019 by Paul Shafranski

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.