Schedule A Consultation

florida divorce

Can You Make Your Spouse Pay Your Legal Fees?

by

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

by

Introduction:

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

 

Parenting Issues:

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

 

Equitable Distribution:

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

 

Alimony:

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

 

Child Support:

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

 

Everything Else:

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

 

Conclusion:

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

Answering Some of the Most Common Divorce Questions Part 2

by

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

Does Florida law require separation before divorce?

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

Can I avoid going to court for my divorce?

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

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

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

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

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

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

 

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

Answering Some of the Most Common Divorce Questions

by

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.

Tips to Prepare Financially For Your Divorce

by

If you find yourself at a crossroads, contemplating divorce, you’re likely aware of the emotional and personal toll it can take. But have you considered the financial aspects? Preparing for a divorce is not just about untangling your emotions; it’s also about safeguarding your financial well-being and future. Here, we’ll guide you through the essential steps to prepare for divorce financially, and also highlight some critical pitfalls to avoid.

 

  1. Understand Your Current Financial Situation

The first step in preparing for divorce is to have a clear picture of your current financial situation. Gather all your financial documents, including bank statements, tax returns, pay stubs, and information about assets and debts. This is the foundation upon which you’ll build your financial strategy.  Depending on how organized you are, this can take a while, so make sure you allow yourself an adequate amount of time and try not to get too frustrated at how arduous it can feel.  The only way to figure out what you are entitled to is to determine what you have (and what you owe) in the first place.  The sooner you begin this organizational process, the better it will be for your divorce process (it will cost less in legal fees for your attorney to sort through your finances, you will be able to start filling out your financial affidavit sooner and will have a head start completing your mandatory disclosure requirements).

 

  1. Budget for the Divorce

Divorces can be costly, and it’s essential to budget for legal fees, court costs, and other divorce-related expenses.  Consult with multiple family law attorneys to get a better understanding of what kinds of costs your case may involve. Having a budget can help you avoid financial surprises.  If you and your spouse are in a place where you can discuss these kinds of things, have a conversation about how to budget for the divorce; try to get on the same page in terms of how much you believe it will cost.  Sometimes the very act of trying to budget for a divorce together can help a separating couple stay focused on keeping the peace in the interest of staying on budget.

 

  1. Save for Post-Divorce Life

As you plan for divorce, start setting aside money for your post-divorce life. Create an emergency fund to cover unexpected expenses, and consider opening a separate bank account if you don’t already have one.  It is important to remember, however, that everything a couple earns while married is presumed to be marital, including emergency funds and separate savings accounts.  These will likely be subject to equitable distribution, but starting with some cash on hand to use for post-divorce life, even if it’s been split in some manner, will provide you a soft landing in the post-divorce landscape.

 

  1. Inventory Your Assets and Debts

Make a comprehensive list of your marital assets and debts. Include everything from real estate and vehicles to investments and credit card balances. Knowing what you own and owe is crucial for equitable asset division.  There are plenty of assets that are commonly forgotten in this process, so check here for a list of items to make sure you remember when creating your inventory of assets and liabilities.  Again, this will help you in your divorce process overall as well.

 

  1. Consider Your Post-Divorce Budget

Think about what your financial situation will look like after the divorce. This includes housing costs, child support or spousal support (if applicable), and your daily expenses. Creating a post-divorce budget will help you make informed financial decisions.  It will also help you understand what your needs may be in terms of spousal support, and it will also help clarify what your housing options could be.  Post-divorce financial uncertainty seems to be the thing that causes the most anxiety during a divorce, so the sooner you can start to get a realistic idea of what your financial future could look like, the more relaxed you will feel during and after the process.

 

  1. Avoid Financial Mistakes

When preparing for divorce, avoid certain financial mistakes that can have long-lasting consequences. These include:

Hiding Assets: Concealing assets is unlawful and can lead to severe consequences in court. Be transparent about your financial situation.  Also, from a practical standpoint, it is not particularly difficult to figure out that someone is hiding assets, so don’t waste everyone’s time trying.

Gifting or Transferring Assets: Trying to give away assets or income to friends or family to protect them from division can backfire during the divorce process.  And again, this is easy to figure out and there will be unfortunate consequences for the one trying to do this.

Becoming Unemployed or Underemployed: Intentionally quitting your job or reducing your income can affect spousal and child support calculations negatively. Maintain your employment to ensure a fair outcome.  There are ways to figure out that someone has intentionally become unemployed or underemployed and the court will remedy this by imputing income to the person who is trying to artificially reduce their income.

 

  1. Consult a Financial Advisor

Consider seeking advice from a financial advisor who specializes in divorce planning.  They can help you understand the financial implications and assist in making informed decisions.  It is important to make sure that they are qualified in their role and that they will not improperly influence you during the divorce proceedings.  A good financial advisor can be invaluable both during and after the divorce process.  They can also assist you with budgeting for your future as well.

 

  1. Protect Your Credit

It’s crucial to safeguard your credit during a divorce.  Monitor your credit report to ensure that your ex-spouse’s financial actions don’t negatively impact your credit score.  Talk to a lawyer or financial advisor if you are concerned that certain actions taken by you or your spouse could negatively impact your credit score.

 

  1. Update Your Estate Plan

Review and update your estate plan, including your will, beneficiary designations, and power of attorney. Ensure your wishes reflect your post-divorce situation.

 

  1. Consider Collaborative Divorce Options

If possible, consider the collaborative divorce process, which focuses on cooperation and amicable settlement. This can often be a more cost-effective and less adversarial option.

 

In conclusion, preparing for divorce, especially from a financial perspective, is a critical step in ensuring your future stability. Understanding your financial situation, budgeting, and avoiding common financial pitfalls are essential components of this process. Remember, it’s essential to seek professional guidance, whether from a family law attorney or a financial advisor, to navigate the complexities of divorce and make informed decisions. By taking these steps, you can secure your financial future as you move forward in your post-divorce life.  When you are ready to speak to an attorney about your options, please click here to schedule a consultation with our office.

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

by

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.

Does Adultery Matter in My Divorce?

by

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

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

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

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

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

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

Amendments to Family Law Rule Improves Financial Privacy in Some Divorces

by

New Rule 12.285

On September 7, 2023, the Florida Supreme Court announced amendments to Florida Family Law Rule of Procedure 12.285 related to mandatory financial disclosure requirements.  Under previous versions of the rule, parties were required to file and serve their financial affidavits, with the only exception being simplified dissolutions of marriage with no minor children and no support issues, which are rare.

Under the new Rule 12.285, the parties may agree to forego filing their financial affidavits with the court.  Instead, the parties must file a joint verified waiver of filing financial affidavits.   According to the new rule, in the joint verified waiver the parties must acknowledge the following:

A.  that evidence of their current or past financial circumstances may be necessary for future court proceedings;

B.  they each have provided the other with a fully executed and sworn financial affidavit in conformity with Florida Family Law Form 12.902(b) or 12.902(c), as applicable;

C.  that the responsibility to retain copies of all affidavits exchanged rests solely with the parties;

D.  that the waiver only applies to the current filing and does not automatically apply to any future filings; and

E.  that the waiver may be revoked by either party at any time.

Rule 12.285(c)(2), Florida Family Law Rules of Procedure.

Thus, according to the new rule, the parties must still provide each other with completed and sworn financial affidavits, but they are not necessarily required to file them.  They must also ensure that they have properly retained copies of the exchanged affidavits among themselves as the court will not have copies to maintain.  While the new rule was announced on September 7, 2023, it does not become effective until November 1, 2023.

Limited Application of New Rule 12.285

While the new 12.285 could apply to any case, realistically speaking if your matter is contested and the judge is having to decide financial matters, whether temporary support during your divorce, or resolving financial issues like alimony, child support, etc. at a trial, both parties will have to file financial affidavits so the court can review and weigh that evidence.  It is also going to be vital to ensure that the financial affidavits are part of the trial court’s record if the matter ends up before the appellate court.  Failure to include financial affidavits in the record on appeal could very well result in an unsuccessful appeal due to an incomplete record.

So, in what circumstances will the new 12.285 apply?  Collaborative divorces are a primary candidate for 12.285’s financial affidavit filing waiver.  Additionally, uncontested divorces are also likely to take advantage of the new rule, as they don’t require court intervention to reach a resolution.  Another scenario that could apply is contested divorces that are able to reach a resolution at mediation or at any point before court intervention is required.  Importantly, however, the parties would have to agree to simply exchange completed and sworn financial affidavits during the mandatory disclosure process and wait to see if filing them becomes necessary.

Why Does This Matter?

Financial affidavits are incredibly detailed documents, containing every facet of a family’s financial standing, including incomes, all debts, monthly payments to creditors, monthly bills, and all assets such as real property, investment and retirement accounts, and jewelry, to name just some of the required items.  Filing a financial affidavit makes it part of the public record, accessible to anyone who would seek to view it.  Many individuals value their privacy and would prefer not to have that much of their financial life placed into the view of the public.  The new Rule 12.285 provides a way to avoid so much public financial exposure.

If you have any questions about how best to maintain your financial privacy in a divorce, please click here to schedule a consultation from the convenience of your computer or mobile device.

Parallel Parenting: When Co-Parenting Won’t Work

by

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.

Don’t Forget These Things in Your Divorce Settlement Agreement!

by

If you resolve your divorce amicably, either through an uncontested divorce process, mediation, or a collaborative divorce, you will end up signing a Marital Settlement Agreement.  The purpose of this document is to list out all of the terms of your divorce, including which of you will receive which assets and which debts, or some specific portion of various assets and debts (in other words, memorializing the terms of your equitable distribution).  It is very important that your Settlement Agreement be as exhaustive as possible and include every asset of some significance.

Most couples can work out personal property (furniture, clothes, appliances, etc.) without needing to clutter up a Settlement Agreement with such minute details. However, failure to include important assets can lead to confusion in the future over who it belongs to after the divorce is finalized.  Here is a list of assets we have found are commonly overlooked when divorcing:

  • Cryptocurrency. This has become a major source of investment for many people.  As such, it should be treated like any other marital asset and distributed according to the couple’s wishes.  All cryptocurrency accounts and amounts should be disclosed the same as bank accounts and investment accounts.  You should consult with a financial specialist if you are unclear on the monetary worth of cryptocurrencies as some can have a very significant value.
  • Jewelry. If you have jewelry you believe to be of significant value (which is for each couple to decide for themselves), then there is a good chance it should be included in the Settlement Agreement.  If the jewelry is of such a value, occasionally an appraisal will need to be performed to determine its total overall value.  But remember, wedding rings and engagement rings are not considered marital assets and are not subject to equitable distribution.
  • Hotel or Vacation Points. These can be quite easy to forget about when you are navigating a divorce.  But they can have value, and if nothing else it should be clear who is going to keep them and whether and how a transfer will be necessary to make that happen.
  • Future tax refunds for the prior year. If you are anticipating receiving a tax refund during or after the divorce, for a year in which you filed as married and are both entitled to a refund, you should ensure that is addressed in clear terms in your Settlement Agreement.  Some tax refunds are for substantial amounts and should not be overlooked.  The same goes true for tax liabilities as well.
  • Frequent Flyer Miles. Similar to hotel and vacation points, frequent flyer miles are easy to miss but can provide plenty of value.  Check to see whether and how frequent flyer miles can be transferred from one spouse to another if that is part of the Settlement Agreement.
  • Paid Time Off/Sick Leave Time. Florida law provides that accrued vacation and/or sick time which is unused at the time of divorce is a marital asset and subject to equitable distribution.  Not all vacation and sick time is created equal, however.  The employee must be eligible to be compensated for unused hours upon termination of employment.  This includes military vacation and sick time as well.  The non-employee spouse cannot choose to exercise the vacation or sick time on behalf of the employee spouse, so the total value of the benefit should be determined so the employee spouse can “buy out” the non-employee spouse for their share of the leave time’s value.
  • Cemetery Plots. Many spouses make arrangements to be buried next to each other.  This can be an expensive arrangement and should thus be addressed in the Settlement Agreement.  Otherwise, if there is lack of clarity after someone has passed away, it can lead to a host of complications.  Further, if one former spouse re-marries and wants to use the burial plot for their new spouse, if the agreement is silent as to who has claim to the burial plots, it is entirely possible that neither former spouse will be able to use the burial plots with a new spouse.

Equitable Distribution can be a daunting and complicated process, particularly for longer marriages which have had more time to accrue more marital assets.  This is why it is important to have an attorney review your equitable distribution, even if you don’t need legal advice on how to split things up.  Ensuring that you get your Marital Settlement Agreement done correctly and completely the first time can avoid uncertainty and potential legal intervention in the future.  We at Artemis Family Law Group are ready to discuss your thoughts about equitable distribution and the status of your Settlement Agreement.  Please click here to schedule a consultation at your convenience.

Serving The Central Florida Area
Contact Us