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Answering Some of the Most Common Divorce Questions

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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).

 

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.

Case Study: One Fictional Couple’s Journey Through Traditional and Collaborative Divorce

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The world of family law can be a mysterious one to outsiders.  Even if you have been through a divorce, your knowledge and experience is limited to your unique encounter with the family law system.  However, once you’ve seen the process play out time and time again, you begin to see patterns and similarities.  Below is a fictional example of how one couple, “John” and “Betty,” navigate the family law system through the traditional litigation method and the collaborative divorce method.  While this is by no means a representation of how every divorce unfolds, either traditionally or collaboratively, it is emblematic of the key differences between the two methods and showcases how the collaborative method can de-escalate problems while traditional litigation can often make matters worse.

Events Traditional Litigation Divorce Collaborative Divorce
Initial Filing John and Betty’s marriage had reached a breaking point, and they decided to end their relationship. However, they took separate paths in their divorce approach. John hired an aggressive attorney focused on winning the case, while Betty chose a lawyer who believed in a collaborative approach to conflict resolution. This difference in approach set the tone for the entire divorce process, leading to an adversarial environment from the start. Despite their many differences, John and Betty recognized the importance of resolving their issues amicably, especially for the sake of their children. They jointly decided to pursue a collaborative divorce, where they committed to working together respectfully and openly, seeking solutions that benefit both of them. This joint decision fostered an atmosphere of cooperation and respect throughout the process.
Temporary Time-Sharing (Custody) As John and Betty couldn’t agree on temporary time-sharing arrangements during the divorce process, the court had to step in to determine a schedule. This resulted in multiple court hearings, escalating tensions, and emotional strain on both parents and the children. The prolonged legal battle took a significant toll on the family, affecting the children’s well-being and causing financial stress due to increased legal fees. Opting for a collaborative approach, John and Betty engaged in a series of meetings with their collaborative attorneys and a child specialist. These discussions allowed them to understand the children’s needs better and craft a temporary time-sharing arrangement that considered their schedules, preferences, and emotional needs. By avoiding court intervention, they reduced stress on the children and preserved their sense of stability during the divorce.  This issue also resolved much faster than waiting on a court to have hearing availability and to issue a ruling.
Division of Assets During the traditional litigation divorce, John and Betty’s lawyers engaged in aggressive negotiations over asset division. Each party aimed to secure the most favorable outcome, leading to bitterness and hostility. The lack of open communication and trust resulted in a prolonged discovery process, with both sides refusing to share critical financial information willingly. In contrast, the collaborative divorce process embraced transparency. John and Betty, along with their joint financial specialist, shared their financial information openly and honestly. This allowed both parties to gain a comprehensive understanding of the family’s financial situation and work together to divide assets fairly.
Time-Sharing (Custody) In the traditional litigation divorce, disagreements over time-sharing (custody) were at the center of the conflict. John and Betty viewed their children’s future living arrangements differently, leading to contentious court battles. The children, caught in the middle, suffered emotionally from the constant tension and uncertainty. By choosing collaborative, John and Betty focused on the best interests of their children. They participated in joint sessions with a child specialist, who helped them understand the impact of divorce on their children’s lives. This deeper understanding allowed John and Betty to develop a comprehensive parenting plan that addressed the children’s emotional, academic, and social needs. The collaborative approach emphasized co-parenting, promoting a healthier and more stable environment for the children during and after the divorce.
Spousal Support The contentious nature of the traditional litigation divorce extended to spousal support. John and Betty disagreed on the amount and duration of support, leading to mediation failures. As a result, the court had to intervene and impose a spousal support decision, leaving both parties dissatisfied with the outcome. In the collaborative model, John and Betty engaged in a series of discussions facilitated by their attorneys and financial specialist. They openly discussed their financial circumstances, future financial goals, and individual needs. Through empathy and compromise, they reached a fair spousal support agreement that considered their respective abilities to support themselves post-divorce. The collaborative negotiations allowed both John and Betty to feel heard and respected, leading to a mutually agreeable arrangement.
Communication Issues In the traditional litigation divorce, the lack of communication between John’s attorney and Betty’s attorney often led to misunderstandings. This communication breakdown resulted in unnecessary conflicts and fueled distrust between the parties. The attorneys became a barrier to communication, heightening emotions and preventing any meaningful resolution. Recognizing the significance of effective communication, the collaborative attorneys encouraged direct communication between John and Betty. Through joint meetings and regular check-ins, John and Betty were able to express their concerns, share their perspectives, and find common ground. The collaborative attorneys acted as facilitators, ensuring that the conversations remained constructive and respectful. This improved communication helped build trust and cooperation between John and Betty, setting a positive tone for the entire process.
Discovery Process The formal discovery process in the traditional litigation divorce required an overwhelming exchange of documents, contributing to a contentious atmosphere. John and Betty’s attorneys engaged in extensive requests for information and documentation, leading to increased legal fees and delaying the resolution of the divorce. In the collaborative model, the financial specialist played a vital role in the exchange of information. The specialist guided John and Betty through the process of gathering relevant financial documents efficiently. By focusing on the necessary information and employing open communication, the collaborative process streamlined the discovery phase, saving time and reducing costs. This allowed John and Betty to concentrate on resolving their issues rather than getting bogged down in extensive paperwork.
Court Delays The traditional litigation divorce faced delays due to court backlogs and scheduling conflicts, further prolonging the emotional strain on John and Betty. The uncertainty caused by these delays intensified their anxieties, making it challenging for them to move forward. By choosing a collaborative approach, John and Betty were able to control the timeline of their divorce. They held meetings and discussions on their terms, without waiting for court dates. This efficient resolution allowed them to process their emotions and begin their post-divorce lives sooner. The reduced waiting time contributed to a smoother transition for everyone involved.
 Trial In the traditional litigation divorce, the trial turned into a battle of accusations, as each party tried to paint the other in a negative light. The children were caught in the crossfire, witnessing their parents’ hostility and experiencing emotional turmoil. In the collaborative approach, John and Betty avoided a contentious trial. Instead, they worked together with the child specialist to ensure the children’s well-being remained the top priority. The specialist provided guidance on how to communicate effectively with the children about the divorce, minimizing the emotional impact. This cooperative approach allowed the children to feel supported and loved, even as their parents went through the divorce process.
Final Resolution The traditional litigation divorce ended with a final divorce decree handed down by the judge, a stranger to the family. The contentious and emotionally draining process left John and Betty with long-lasting resentment towards each other, making it challenging for them to co-parent effectively.  Both spent enormous sums of money to litigate their divorce for well over a year, possibly years.  And even when the final judgment was handed down, both John and Betty appealed because of issues each of them had with the decisions of the judge.  The appellate process took another year to resolve and cost a hefty amount of money for both John and Betty.  And still, neither John nor Better were satisfied with the outcome. The collaborative divorce concluded with John and Betty reaching a respectful closure. They mutually agreed on all aspects of their divorce, fostering a sense of understanding and empathy for each other’s perspectives. This amicable agreement allowed them to transition into their new roles as co-parents with a foundation of respect and cooperation. The collaborative process empowered John and Betty to communicate openly and work together in the best interests of their children, facilitating a healthier post-divorce relationship.

We know this is a lot of information to process.  Your situation is unique and should be treated as such.  We welcome the opportunity to discuss your divorce options, both traditional and collaborative, so please schedule a consultation with us today.

Can I Keep My House After A Divorce? Part 2

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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

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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.

Why Collaborative Divorce Is Better for Families Than Traditional Divorce

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The team moves at your pace. 

Whether you’re motivated to move quickly through the process, or you are seeking a slower, deliberate process, the team is able to accommodate your needs.  In a traditional divorce, the timeframe is set by one-size-fits-all statutory deadlines that may not be appropriate for your family.

Your goals and priorities are central to the process.

At the start of a collaborative divorce, each client is asked to compile a list of their goals for the process and after.  Some examples include developing co-parenting skills together, maintaining financial security, or ensuring that you receive a fair split of the marital assets.  Your goals help the professional team that is supporting you in the process understand what is important to you when exploring various options and scenarios.  In a traditional divorce, your marriage is treated more like a business dissolution than a unique set of emotionally-charged circumstances and history. 

Your family’s privacy is safeguarded.

Because the conversations and negotiations in a collaborative divorce occur in a private, non-litigation setting, people feel free to have some of the awkward conversations that are necessary to resolving underlying issues in a divorce.  Further, collaborative divorces typically occur with minimal filing of court documents, which helps to protect your family’s privacy.  In a traditional divorce, extensive personal and financial documents are often filed with the court and are accessible to the public.

Your children are not weaponized.

In a collaborative divorce, parents work with a collaboratively-trained licensed mental health neutral who facilitates co-parenting conversations and helps parents develop a parenting plan and timesharing schedule that is best for the children.  Unfortunately, in a traditional divorce, children often end up being treated like objects to fight over and “win.”

Your family’s finances are protected.

Each family in a collaborative divorce is guided by a collaboratively-trained and licensed financial neutral, who gathers all of the necessary financial information to create an overall picture of the family’s finances.  This allows the team to explore financial options more efficiently than in the traditional divorce, where each side’s attorney, who rarely has any financial education, spends countless hours poring over financial documents and fighting with the other side to make sure everything is disclosed, and nothing is hidden. 

You have the final say in what your future will look like.

At the conclusion of a collaborative divorce, you will decide what your future looks like. In a traditional divorce, your entire family’s history will be condensed into a brief hearing, where a judge who is a stranger to your family will hear minimal evidence and testimony and then decide your future for you. Instead of handing over your family’s future to a stranger, collaborative divorce allows you to stay in control of your family and your future.

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