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When Is an Unequal Distribution Available in a Divorce?

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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

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.

Can You Make Your Spouse Pay Your Legal Fees?

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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

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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

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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.

Keeping Your Divorce Costs in Check: Practical Tips for a Cost-Effective Divorce

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Divorce can be emotionally challenging, and it can also take a toll on your finances. To help you navigate this difficult time while keeping costs down, we’ve compiled a comprehensive list of practical suggestions that can make a significant difference in the overall expense of your divorce.

Effective Communication with Your Attorney

Effective communication with your attorney is the cornerstone of a cost-effective divorce. Here’s a more detailed look at this essential aspect:

Set a Regular Update Schedule: Instead of reaching out to your attorney every time a thought pops into your head, establish a regular communication schedule. Weekly updates, combined with your questions, encourage you to consolidate your thoughts, which can streamline your attorney’s responses and minimize billable hours.

Use Clear and Concise Language: When communicating with your attorney, use clear and concise language to convey your thoughts and concerns. This clarity can prevent misunderstandings, reducing the need for additional discussions and expenses.

Timely Information Gathering

The efficient gathering of information can significantly impact your divorce costs. Here’s how you can be more proactive in this regard:

Respond Promptly to Requests: Whenever your attorney requests specific information, responding promptly is vital. Providing all necessary documents and details in one comprehensive response reduces the need for multiple follow-ups, saving both time and money.

Organize Your Documents: Maintain a well-organized file of all relevant documents. Categorize them by type, date, and relevance, making it easier for both you and your attorney to access crucial information quickly.

Consult Your Attorney While Negotiating with Your Spouse

Frankly, it is a lot better for your finances if you and your spouse can resolve some of your issues without attorney involvement.  Think about it:  If every issue, no matter how minute, had to be run through attorneys in order to be resolved, the amount of billable time in your matter will skyrocket.  Before engaging in negotiations with your spouse, however, it’s wise to consult your attorney.  Here’s why this step is crucial:

Legal Guidance: Your attorney offers invaluable guidance, ensuring that your negotiations align with your best interests. They can also help you navigate complex legal matters, potentially saving you from costly mistakes that can arise from uninformed decisions.

Ask Questions When in Doubt: If you’re unsure about any aspect of the negotiations or the legal process, don’t hesitate to ask your attorney. Clarifications can prevent costly misunderstandings or errors.  Your attorney should be glad to explain anything to you and should make legal concepts as accessible and understandable as possible for you.

Review Attorney Communications Carefully

Attorneys often send important communications, and it’s crucial to pay close attention to them:

Proactive Approach: Many questions you may have can be addressed within the communications sent by your attorney’s office. Reading them carefully and seeking clarification only when necessary can save you from incurring additional billable hours. It’s a proactive approach to staying informed.

Keep an Organized Record: Maintain a record of all communications with your attorney. This record ensures that you can easily reference past discussions, minimizing the need to revisit the same topics.

Avoid Aggressive Attorneys

Selecting the right attorney is pivotal in keeping costs down. Here’s why you should avoid overly aggressive attorneys:

Billable Hour Model: Some attorneys have a business model that relies on fostering aggression and prolonging the divorce process to bill more hours. Opt for an attorney who prioritizes resolution and cooperation, as this can lead to a more cost-effective and efficient divorce.  If both you and your spouse retain attorneys who are resolution minded and not out to fan the flames, you have a much better chance of keeping your legal costs down compared to a lengthy legal battle.

Additional Tips for a Cost-Effective Divorce

Open and Honest Communication: Fostering open and honest communication with your spouse can facilitate smoother negotiations. A willingness to discuss matters openly can lead to more amicable and cost-effective solutions.

Create a Detailed Budget: Planning your finances carefully during the divorce process is essential. Consider all expenses, including legal fees and post-divorce costs, to avoid financial surprises that can inflate the overall cost.

Seek Expert Advice: Consult financial experts when necessary. Their expertise can help you make well-informed decisions about property division, alimony, and other financial matters.

Stay Organized: Keeping all your divorce-related documents and correspondence organized is a practical way to save time and money in legal fees. A well-organized approach ensures that nothing is overlooked and helps maintain clarity throughout the process.

Stay Informed: Familiarize yourself with your state’s divorce laws and regulations. Understanding the legal framework can help you make informed decisions and minimize costly legal disputes.

Consider Alternative Dispute Resolution: Explore alternative dispute resolution methods like mediation or collaborative law, which can lead to cost savings by avoiding contentious court battles.

In conclusion, navigating a divorce is never easy, but these practical tips and additional suggestions can help you keep costs in check while ensuring a smoother process. By following these recommendations and choosing an attorney who aligns with your goals, you can make the journey to resolution less financially burdensome.  At Artemis Family Law Group, we are ready to help you navigate your divorce in a cost-effective manner, so please schedule a consultation today.

Parallel Parenting: When Co-Parenting Won’t Work

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Co-parenting during and after a divorce isn’t easy, even under the best of circumstances.  It asks a lot of both parents:  to set aside or ignore their feelings toward their ex-spouse, to put on a happy face during exchanges when they are emotionally distraught, and to restrain themselves when potentially triggering comments are made by their ex-spouse.  Many divorces are based, in part, on communication issues between spouses, so there is no reason to think those communication issues will simply vanish when it comes to co-parenting.  Fortunately, something called “parallel parenting” offers another option, in particular in high-conflict situations.

What is Parallel Parenting?

Parallel Parenting is a type of parenting in which both parents severely limit their communications and contact with each other.  Often they agree to one specific form of communication, usually written, such as text messages, email, or use of a third-party parenting app.  Instead of parents speaking regularly to each other about their children, they limit their communication to only that which is necessary, and usually only when an exchange has occurred or is occurring.  For example one spouse may text the other that a child has a cold before dropping him off with the other parent.  Otherwise, communications are limited to only what is strictly necessary.  “Just the facts, ma’am.”  No one is asking about each other’s weekends or how the new job is going.

In more high-conflict parallel parenting arrangements, the children are exchanged in “neutral” third-party locations, such as a parking lot, instead of at either spouse’s residence, which can trigger conflict.

While the ideal arrangement is healthy co-parenting in which both parents are able to communicate robustly about and around their children, this is simply not a realistic option for many parents.  In those situations, it is in the best interests of the children that they be sheltered from parenting conflicts, even if it means setting up strict communication boundaries between parents.

Parallel Parenting Doesn’t Need to be Permanent

Just because a rigid Parallel Parenting arrangement is necessary during a divorce, or immediately upon conclusion of a divorce, does not mean that it will be necessary forever.  Often Parallel Parenting offers parents the opportunity to get comfortable with their new lives, their new independence, and their new roles as single parents.  This can provide the hostility and negative emotions between parents the opportunity to dissipate.  Once things have “cooled down” between the parents–after a few months, or a few years–they can allow their Parallel Parenting arrangement to evolve into a more traditional co-parenting relationship, with stronger communication and integration between the parents.  Text messages only become phone calls and FaceTimes as well; exchanges at the mall parking lot start to occur at the parents’ residences; parents start to share details about the children’s time with them with the other parent.  Sometimes getting to a point like this requires distance and strong boundaries at first to get there.

Parallel Parenting Isn’t Just for High-Conflict Divorces

When you receive your Final Judgment of Dissolution of Marriage, you will be legally divorced, and you will be financially divorced.  However, in many cases you will not be close to emotionally divorced yet.  Couples often focus so much on the details of the divorce itself while it is happening that they do not take the time to process the emotional cost of being divorced officially.  Even if you are on decent terms with your former spouse, coming out of a divorce can be a difficult time, one in which boundaries and limited overlap between the parents may provide both parents the opportunity to “move on,” which they were unable to do while in the midst of a divorce.  A less rigid form of Parallel Parenting can aid couples who need the time and distance to process their divorce before establishing a new co-parenting relationship in the future.  Opting for a short- or medium-term Parallel Parenting arrangement can often be the best way for families to move into healthy long-term dynamics.

Figuring out the best parenting arrangement for your family can be one of the most difficult decisions you make during a divorce, but it is also often the most important.  Each family is unique and as such no one-size-fits-all Parenting Plan will work for every family.  When you are ready to explore your options and discuss parenting further, click here to schedule a consultation.

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.

The Importance of Communication in Family Law Cases: Strengthening Your Relationships Amidst Legal Challenges

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Divorce and family law cases can be emotionally challenging, putting tremendous strain on relationships with loved ones. As a collaborative family law firm dedicated to supporting families in Central Florida, we understand the significance of effective communication during these trying times. In this blog post, we delve into the importance of communication in family law cases and offer practical strategies to maintain healthier relationships with your family while navigating the legal process.

The Power of Open Communication

When facing family law matters, open and honest communication is the cornerstone of resolving conflicts amicably. Transparent communication can foster understanding, empathy, and cooperation, which are vital elements for reaching mutually beneficial agreements. We encourage our clients to express their thoughts and emotions openly, as bottling up feelings can lead to unnecessary tension and misunderstandings.

Emotions and Family Law

Family law cases often evoke intense emotions, ranging from sadness and anger to fear and confusion. These feelings can cloud judgment and escalate conflicts, making it challenging to find common ground. By acknowledging these emotions and communicating them to your family and legal team, you open the door to greater empathy and support.

We are here to provide a compassionate ear and guide you through the legal process, ensuring your voice is heard and your feelings are respected. Our goal is to help you approach family law matters with a clear and focused mind, enabling you to make well-informed decisions for your future.

Putting Children’s Best Interests First

For couples with children, prioritizing their well-being is paramount. A child’s emotional and psychological development can be significantly impacted by the divorce process. Maintaining open lines of communication with your co-parent can help create a stable and nurturing environment for your children.

We encourage parents to engage in frequent and constructive dialogue about their children’s needs and preferences. By demonstrating unity and cooperation, you can assure your children that they are loved and supported, even during difficult times.

Tips for Effective Communication

1. Active Listening: One of the most valuable communication skills is active listening. Give your full attention when your family members or legal team are speaking, and avoid interrupting. This fosters mutual respect and understanding.

2. Choose the Right Time and Place: When discussing sensitive matters with your family or co-parent, choose a calm and private setting where you can communicate without distractions.

3. Use “I” Statements: When expressing your feelings or concerns, use “I” statements to avoid sounding accusatory. For example, “I feel hurt when…” instead of “You always…”

4. Stay Focused on the Present and Future: While it’s natural to discuss past grievances during emotional conversations, try to stay focused on the present and future. This approach promotes problem-solving rather than dwelling on past mistakes.

5. Seek Professional Support: If communication becomes too challenging, consider seeking support from a therapist or counselor who specializes in family dynamics. A neutral third party can facilitate conversations and help navigate difficult emotions.

6. Embrace Technology: Utilize technology to stay connected with your family and co-parent, especially if distance is a factor. Video calls or messaging platforms can bridge the gap and facilitate regular communication.

Conclusion

At Artemis Family Law Group, we understand that effective communication is the key to preserving the strength and harmony of your family during challenging legal processes. By fostering open dialogue and empathy, you can navigate family law cases with a more positive and cooperative approach.

Our warm and professional team is dedicated to supporting you through every step of your journey, providing the guidance you need to make informed decisions that serve your family’s best interests. Remember, you are not alone – we are here to help you find resolutions that honor your values and create a brighter future for you and your loved ones.

Reach out to Artemis Family Law Group today to learn more about our collaborative approach to family law and how we can assist you in this important chapter of your life. Together, let’s strengthen your relationships and build a foundation for a thriving future.

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