I recently had the opportunity to appear as a guest on the Respectful Divorce Podcast with my friend and colleague, Wendy Aikin. We were invited to discuss how the Collaborative Divorce works and why it is often a better option than traditional litigation. We also addressed common questions people have about Collaborative Divorce and how it benefits families.
Solving Problems, Not Creating Conflict: The Collaborative Divorce Advantage
Collaborative Divorce often utilizes a team of professionals, including a financial neutral and a mental health neutral, who are trained to address common issues that arise in divorces. Unlike traditional litigation, the collaborative team approaches each family’s unique situation as a problem to solve together, rather than an opportunity to inflame emotions or prolong conflict.
How Trust and Teamwork Make Divorce Less Painful
One of the key strengths of Collaborative Divorce is the relationship between attorneys. Because collaborative attorneys frequently work together on multiple cases, they develop a professional relationship built on trust. While transparency and maintaining confidential communication between attorney and client are essential, when attorneys trust each other, they can explore creative solutions and resolve issues faster than the rigid, paint-by-numbers litigation process allows.
Co-Parenting Success After Divorce: Why Collaboration Matters
During the podcast, we also discussed how Collaborative Divorce benefits children and parents. Since this process prioritizes communication and co-parenting skills, parents are more likely to continue co-parenting successfully after the divorce is finalized. Learning how to navigate the Collaborative Divorce process together sets the foundation for a healthier co-parenting relationship moving forward.
Helping Families Through Divorce with Collaboration, Not Conflict
As a firm believer in Collaborative Divorce and a board member of Central Florida Collaborative Divorce, I am committed to making this process accessible to any family who may benefit from it.
If you are interested in discussing your divorce options, please click here to schedule a consultation.
For the majority of people, going through the divorce process can be a complex and surreal period in their lives. In some cases, however, even starting the process can be exceedingly difficult. “Starting the process” does not refer to the situation where most people contemplating a divorce find themselves, namely, grappling with the decision of whether to proceed with the divorce or not. This situation involves an individual wanting to move forward with a divorce, but the other party cannot be located, does not want to be located, or refuses to participate in the legal proceedings. Faced with this situation, some people will choose to remain married because they believe they have no other options. Yet, it is exactly in these circumstances that a dissolution via service by publication, or constructive service, can help individuals to be awarded a divorce, find closure, and allow them to move forward.
PERSONAL SERVICE OF PROCESS
Typically, a dissolution of marriage case requires a petition for dissolution of marriage and other related documents to be filed by one spouse with the other spouse getting served with, or accepting service of, those documents. This is referred to as “personal service of process.” The rationale behind personal service of process is that the other spouse has been provided notice of the pending litigation, and thus, has the opportunity to respond to the petition and be able to participate in the case. There are specific deadlines involved, and being served with the documents usually means that the spouse initiating the divorce does not (shadily) proceed with the case without the other’s knowledge.
But what can be done when, for example, the other spouse left years ago and the individual seeking a divorce has no idea where they could be living, or frankly, if they are actually living. In this circumstance, getting the absent spouse personally served is not only unlikely, but perhaps, impossible. In circumstances where personal service cannot be accomplished, the spouse seeking a divorce can complete the necessary service of the documents using the method of “service by publication” or “constructive service.”
SERVICE BY PUBLICATION
The case law makes clear that service by publication can only be used as a last resort. Further, there are only a few specific types of cases in which this method of service can be utilized. The procedure must be followed strictly.
Affidavit of Diligent Search and Inquiry. The first step is to ensure that the spouse filing the petition has made a concerted effort to try and discover the address or location of the other spouse. This requires filing an Affidavit of Diligent Search and Inquiry in which several sources must be searched[1] in an effort to locate the other spouse. These sources[2] include the United States Post Office inquiry through the Freedom of Information Act; last known employment; names and addresses of relative; law enforcement agencies; Department of Corrections; hospitals;
Notice of Action. Once the search is completed, the Affidavit of Diligent Search and Inquiry is filed along with the petition for dissolution of marriage and other documents. A Notice of Action indicating that there is a divorce action pending against the other spouse and indicating they have a certain amount of time to provide a response is also filed and returned by the Clerk of Court to the petitioner or petitioner’s attorney.
Publication. The Notice of Action must then be published in a newspaper in the county where the petition is pending once during each week for four consecutive weeks.
Proof of Publication. Once the Notice of Action has been published for the required amount of time, the proof of publication is filed.
Default. If the other spouse fails to provide a response within the allotted time, a Motion for Default is filed requesting the Clerk of Court enter a default against the other spouse.
Final Hearing. Once the default is entered against the other spouse, the petitioner can move toward finalizing the divorce by scheduling a final hearing with the Court.
It should be noted that by utilizing service by publication, the petitioner must still prove their elements of the case. Generally, courts disfavor making make determinations regarding the children such as parental responsibility and timesharing based on the entry of a default; yet, if the Court finds that the petitioner requests are in the best interests of the children, they will consider making such decisions. Further, the Court can distribute property that is subject to the Court’s jurisdiction (real property must be sufficiently described in the Notice of Action in order for the Court to obtain the proper jurisdiction over it). Determinations regarding issues of child support and alimony are more complex and depend on whether the Court has personal jurisdiction over the other spouse.
Obtaining a divorce through service by publication is a unique and complicated legal process designed to address the legal challenges when one spouse cannot be located or is purposely being evasive. While it is a last resort, it is a valuable method providing individuals a path forward to getting divorced and reach closure. If you would like to discuss this issue or any other family law issue, please schedule a consultation with the attorneys of Artemis Family Law Group.
[1] In my practice, the client employs a private investigator to complete this search. This is the more economical method for the client since the cost of the private investigator to complete this task is usually less than paying hourly attorney fees.
[2] Admittedly, some of the places to be searched seem outdated, i.e. telephone listings in the area where the other spouse last resided
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.
In spite of all the bleak statistics everyone has heard about the likelihood of a marriage ending in divorce, people have always entered into marriages full of hope. The newest statistics indicate that in Florida, the marriage rate is increasing while at the same time, the divorce rate is decreasing. Given these different factors, it is not surprising that sometimes, one spouse in a marriage, does not “want” to get divorced and when faced with the other spouse filing for divorce, questions whether it is possible to stop it from moving forward.
Short Answer: Not Really
If one spouse is really intent on getting divorced and the other does not want to get divorced, there are instances in which the divorce may be delayed for a bit of time, but most likely, finalizing the divorce is inevitable. The reason for this is simple: Florida is a no-fault state.
The No-Fault Principle in Florida
The Florida divorce system operates on the principle of no-fault. This means that in order to seek a divorce, neither party needs to prove that the reason the marriage is over is due to the fault of one of them. Further, unlike other states that require a separation period before being able to file for divorce, Florida has no such requirement. It is worth noting that Florida has a “cooling-off period;” however, that simply provides a final judgment cannot be entered until after 20 days have elapsed from the date of the filing the petition for dissolution of marriage. Pursuant to Florida Statute,§ 61.052 here are only two grounds for a divorce, with one being required to be pled in the petition for dissolution of marriage: The marriage is irretrievably broken or mental incapacity of one of the parties. In this last circumstance, the party must have been adjudicated incapacitated for at least three years prior to the filing for divorce. The principle of no-fault and only needing to allege the marriage is irretrievably broken (which is the most common allegation pled), makes it fairly easy for the spouse seeking the divorce to move the process forward, and conversely, much more challenging to stop the process once it has been initiated.
Female psychologist working with patient in office
But What if the Marriage is NOT Irretrievably Broken?
The concept of a marriage being “irretrievably broken” essentially means that the marriage cannot be saved and all attempts of reconciliation have been attempted and failed. If there is an allegation in the petition that the marriage is irretrievably broken, the other party does not deny it is in their response to the petition, and the court finds that the marriage is indeed irretrievably broken, then the divorce will be granted. However, the statute provides that if one party has denied that the marriage is irretrievably broken or if there is a minor child of the marriage, then the court may take some actions that would delay the proceedings. Under these circumstances, there would be a hearing and based on the evidence presented, the court may order one or both parties to consult with a marriage counselor, psychologist, psychiatrist, religious advisor, or “any other person deemed qualified by the court and acceptable to the party or parties ordered to seek the consultation. The court may also decide to continue the proceedings in order for the parties to attempt reconciliation. This continuance has to be for a reasonable period of time, not to exceed three months. Lastly, the court may utilize the catch-all by “taking any such action as may be in the best interests of the parties and the minor child of the marriage.”
How The Above Works Practically
it is extremely rare for a party to deny that the marriage is irretrievably broken. The reasons it is rare are the practical consequences of going through the above process. Having a hearing in order to provide evidence of why your marriage can, and should, be saved is likely to be an awkward, uncomfortable, and distressing experience. Further, the party seeking the divorce may believe the other party is using the denial as just an attempt to thwart or strategically delay the process. This party will then work their hardest to convince the judge that there is no saving the marriage, making that hearing even more difficult. The overriding consideration, however, is that the court and the State of Florida will not force someone to remain married if they do not want to remain married.
When the Parties Want to Reconcile (Or, At Least Try)
In instances when both parties decide they want to attempt reconciliation, there are some options to halt the process while they see if they can save the marriage. The person who filed the petition could file a motion, or both parties could file a joint motion, to abate the proceedings. This lets the court know the parties are “pausing” the divorce while they attempt reconciliation. Keep in mind, however, that if the party seeking the divorce does not agree, the other party cannot unilaterally abate the proceedings. Another option is the party who sought the divorce and filed the petition could voluntarily dismiss their petition. If both parties filed petitions, they could voluntarily dismiss both their petitions. By voluntarily dismissing the petition or petitions without prejudice, the process is not paused, but instead is completely ended. If reconciliation does not work, either party could file another petition for dissolution of marriage.
Conclusion
The no-fault system of divorce in Florida and the marriage being irretrievably broken being sufficient grounds for a court to grant the divorce makes it challenging for someone seeking to stop the process. Although there are avenues to have the court delay the process if there is a denial that the marriage is irretrievably broken or if there is a child involved, the practical considerations make it challenging to contest the divorce based on one party’s desire to save the marriage. Ultimately, unless the parties decide to reconcile and dismiss the divorce action, the divorce might be delayed, but will inevitably be granted. If you would like to discuss this issue or any other family law issue, please schedule a consultation with the attorneys of Artemis Family Law Group.
In the realm of family law, where emotions often run high and tensions can escalate rapidly, finding amicable solutions to disputes is paramount. One of the primary methods to resolve a family law dispute is mediation.
Understanding Mediation
Mediation is a voluntary but required process wherein disputing parties engage in facilitated discussions to reach a resolution. How can something be both required and voluntary? Well, in Florida parties in a divorce are generally required to attend mediation before they can go to court to have a judge decide things in a trial. However, you cannot be compelled to settle or resolve a dispute through mediation, only attend mediation. Thus, whether and how you will resolve a divorce at mediation (the terms to which you agree) is voluntary.
Additionally, mediation may not be required in cases involving domestic violence, child abuse, or other sensitive issues that may make mediation inappropriate. In those instances, the judge will decide if mediation should still be required or if the parties may dispense with that requirement.
Unlike litigation, which can be adversarial and time-consuming, mediation fosters open communication and encourages compromise. It provides a platform for parties to express their concerns, interests, and priorities in a non-confrontational environment. Contrary to popular belief, the vast majority of divorces find resolution at or by mediation, obviating the need for a trial.
The Mediation Process
Engaging with Mediation
The mediation process typically commences with both parties agreeing to participate. If both parties will not agree to participate, the court will often issue an order requiring them to participate. In many counties, you are not typically permitted to bring a matter before the court (such as temporary relief) until the parties have attempted mediation. This underscores the judiciary’s recognition of mediation’s potential to expedite case resolution and alleviate court congestion.
Duration
The duration of mediation sessions can vary significantly depending on various factors, including the complexity of the issues and the willingness of parties to negotiate. While some disputes can be resolved within a single session lasting two to four hours, others may necessitate extended negotiations spanning multiple sessions over several days. In recent times, virtual mediation has gained prominence, offering flexibility and accessibility to parties, especially amidst the challenges posed by the COVID-19 pandemic (although it should be noted that Rule 12.740(b) of the Florida Family Law Rules of Procedure makes it clear that unless the court orders the parties to conduct mediation virtually or the parties agree to conduct mediation virtually, mediation is required to be in person still–the standard practice, however, is for both sides to agree to virtual mediation at this point).
Cost
The parties will need to pay the mediator’s hourly rate and each client will be responsible for paying for their respective attorney’s hourly rate, as attorneys will appear at mediation with their clients. The longer a mediation goes, the more expensive it gets overall. However, mediations typically need time to warm up and make progress.
While mediation is not cheap, unlike court proceedings where fees are often unpredictable and substantial, mediation offers greater cost transparency. Parties are responsible for paying the mediator’s fees, typically on an hourly basis. These fees can vary depending on the mediator’s experience, credentials, and geographic location. However, compared to protracted litigation, mediation is generally more cost-effective and expeditious.
How Soon Can I Attend Mediation For My Divorce?
In order for mediation to be successful, the parties need to have all of the information necessary to feel comfortable weighing options and making decisions. This means that the parties must have completed the financial disclosure process known as “mandatory disclosure.” In a divorce, mandatory disclosure means both parties provide an extensive list of financial documents to each other through their attorneys and certify their compliance with the court. This includes the filing of financial affidavits as well.
The Role of the Mediator
Central to the mediation process is the mediator, an impartial facilitator trained in conflict resolution techniques. While many mediators are attorneys, some may possess backgrounds in psychology or forensic accounting or other fields. The mediator’s primary role is to foster constructive dialogue, facilitate communication, and assist parties in generating viable solutions. The mediator is not a judge or judicial officer and does not make decisions for either party or resolve disputes for them.
The Advantages of Mediation
Confidentiality
Mediation offers a level of confidentiality that is often lacking in traditional court proceedings. Discussions held during mediation are confidential and cannot be disclosed in subsequent court proceedings. This confidentiality fosters an environment where parties feel more comfortable expressing their concerns and exploring potential solutions without fear of public scrutiny or having it thrown back in their face in court.
Empowerment
Mediation empowers parties to take control of the resolution process and actively participate in shaping the outcome. Unlike litigation, where decisions are imposed by a judge, mediation allows parties to collaborate and find solutions that meet their unique needs and priorities. This sense of empowerment can lead to more durable and satisfactory agreements.
Preservation of Relationships
Family disputes can strain relationships and create lasting rifts between parties. Mediation offers a less adversarial approach, focusing on finding common ground and preserving relationships whenever possible. By fostering open communication and mutual respect, mediation can help parties navigate difficult issues while maintaining a level of civility and cooperation.
Flexibility
Mediation is inherently flexible, allowing parties to tailor the process to their specific needs and preferences. Whether it’s scheduling sessions at convenient times, choosing a mediator with relevant expertise, or exploring creative solutions to complex issues, mediation offers a level of flexibility that is often lacking in traditional litigation. Further, mediation is not a zero-sum game. If you reach a point in mediation where you have resolved some issues but remain stuck on other issues, you may agree to sign a partial agreement that memorializes and binds you to the terms you could find agreement over and leave the remaining issues to be negotiated at a later time or decided by the judge. Even this can greatly reduce the cost of litigation by focusing the parties’ and their attorneys’ efforts on just the specific issues that are left unresolved.
Conclusion
In conclusion, mediation stands as a cornerstone of family law dispute resolution, offering a constructive alternative to traditional litigation. Its collaborative nature, flexibility, and cost-effectiveness make it an attractive option for parties seeking timely and amicable resolutions. By embracing mediation, individuals can navigate the complexities of divorce and other family law matters with dignity, respect, and mutual understanding. With its emphasis on communication, collaboration, and empowerment, mediation offers a path towards resolution that is both effective and sustainable.
When you are ready to discuss your options for resolving a family law dispute, including mediation, please schedule a consultation with our office today.
During a pending divorce in Florida, often, one of the parties will decide to move out of the marital home. (See our post on What Happens If I Move Out During the Divorce?) There are varying rationales as to why individuals involved in a divorce choose to leave the marital home during the process; however, one of the most consistent and pressing concerns that each party in this situation—-whether it is the spouse moving out or the spouse staying in the marital home—is how the mortgage and the household expenses will be paid during the pendency of the divorce.
The Short Answer
Both parties are expected to contribute to the shared financial obligations of the marriage and these should continue to be paid as they were during the marriage.
The Role of Standing Administrative Orders
The majority of counties in Florida have standing administrative orders that go into effect, and that parties are ordered to comply with, immediately upon the filing of a dissolution of marriage action. The courts take these standing administrative orders very seriously. The person filing the divorce action, or their attorney, receives a copy of the order at the time they file the petition for dissolution of marriage, and the other party must be served a copy of the order along with the petition and other initial documents. The provisions of these standing orders that are pertinent to the question of who pays for the mortgage and household expenses during the divorce involve “maintaining the status quo” and “dissipation of assets.”
Maintaining the Status Quo. The overarching purpose of these standing administrative orders are to maintain the stability of families going through a divorce. For instance, in the Ninth Circuit Court’s standing administrative order, some of the expressly stated purposes are to “provide guidance to parties in a dissolution of marriage actions” and “to help parties pattern their behavior in ways that reduce conflict.” Further, the order states that “it is in the best interests of the parties and children. . . that parties learn about the . . .duties and responsibilities of litigation.” According to the Ninth Circuit standing administrative order specifically, “Food, shelter, utilities, transportation and necessary medical expenses shall continue to be paid as they were during the intact marriage until further order of the Court or written agreement of the parties.” [1] (emphasis added).
This bolded and italicized language means that if during the time the parties were living as a married unit, the mortgage and household expenses were paid out of, for example, a joint account in which both parties’ incomes were deposited, then upon the filing of a divorce, both parties should continue to pay their share of these marital expenses, even when one of the spouses moves out. In the scenario where one spouse earned all the income while the other stayed at home raising the children, technically, all the household expenses were being paid by the earning spouse; however, all of those funds were considered marital. Thus, in order to comply with the standing administrative order, the earning spouse would still be obligated to pay all the household expenses because that is how it was done during the “intact marriage.”
Dissipation of Assets. The other consideration of the courts’ standing orders as to the parties paying the mortgage involves the concept of one party “dissipating” a marital asset. For most couples divorcing, the marital home is their largest asset. If, for instance, one of the spouses refuses to pay (and has the ability to pay) their portion or the entire portion of the mortgage on the marital home, whatever was the case during the marriage, that spouse could be viewed as intentionally dissipating or disposing an asset. Many times, this situation will occur where the earning spouse moves out of the marital home into another residence, refuses to pay the mortgage, leaving the spouse who perhaps had never worked during the marriage and without a way to pay the mortgage, and essentially obliterating the equity in the home should the home go into foreclosure. The Ninth Circuit also states that it is in the best interests of the parties and children. . . “that the parties preserve their assets…” Further, the standing order states, “Neither party may conceal, damage, or dispose of any asset, whether marital and non-marital, and neither party may dissipate the value of an asset, for example, by adding a mortgage to real estate or by failing to take care of an asset.”[2]
As previously stated, courts take these standing administrative orders very seriously. Therefore, should a party have the ability but fail to pay the mortgage or household expenses as they were paid during the marriage (thus, failing to maintain the status quo) and/or the marital home goes into foreclosure, (thus, dissipating a marital asset) the court could punish these violations the standing order punishable by contempt and impose sanctions.
Other Factors & Practical Considerations Regarding Payment of Mortgage & Household Expenses
Other factors and practical considerations include the following:
Temporary Support (Child Support/Spousal Support). Payment of the mortgage and household expenses might be regarded as, and perhaps during the finalization of the divorce, credited toward, a parties’ child support or spousal support obligations.
Equitable Distribution Credits. In the final distribution scheme of the parties’ assets and liabilities, if one party completely paid the monthly mortgage on the marital home, that party may receive a credit for paying the other party’s half. If the house was sold, after payment of the remaining loan amount, closing costs, realtor fees, etc., normally, the parties would split the remaining funds equally. However, if one party solely paid the monthly mortgage payment (thereby, also paying what the other party owed monthly) that party would receive credit for paying the other party’s half and would receive more than half of the remaining funds. Or, that party could receive more from another marital asset.
Maintaining Creditworthiness. Both spouses’ credit may be affected if the mortgage payments are not maintained.
Mediation Before Court Intervention. Lastly, if the mortgage and other household expenses are not being paid in violation of the courts’ standing administrative orders, the majority of courts require that you first attempt to resolve these issues at mediation prior to seeking the courts’ help.
During a pending divorce, the issue of which party should continue to pay the mortgage and household expenses, especially where one party has moved out of the marital home, is multifaceted. Individual circumstances, standing administrative orders, and how these things were customarily paid while the parties were together, all play a role in determining financial obligations during the pendency of the divorce. Also important is how these payments are ultimately regarded in the finalization of the divorce. Making informed decisions with knowledgeable advice is paramount for your future. If you would like to discuss this or any other family law matter with the attorneys at Artemis Family Law Group, please schedule a consultation today.
[1] The pertinent provision in the Eighteenth Circuit’s standing administrative order states: “These restrictions (not selling, damaging, disposing, etc. any marital or non-marital property) exclude cash, checking accounts or other sources of funds customarily used to pay ongoing living expenses of the parties or marital debt or other reoccurring marital obligations of the parties.”
[2] The pertinent provision from the Eighteenth Circuit’s standing administrative order states: “Neither party shall sell, donate, pledge, conceal, damage, encumber, or otherwise dispose of any marital or non-marital property without the prior written consent of the other party or court order.”
This is one of the most important questions in a divorce. While a marriage, and its undoing, can be fraught with complex and difficult emotions, the legal process of a divorce mostly comes down to who gets what and how to handle parenting issues. The first question, who gets what, is decided through the process known as “equitable distribution.”
What Is Equitable Distribution?
Equitable Distribution is the process by which all of the marital assets and liabilities, also known as all of the marital stuff you’ve accumulated over the years and all of the marital debt that is left, is distributed to both spouses. The concept comes from section 61.075 of the Florida Statutes, which outlines the entire process. The first step in determining equitable distribution is determining what is a marital asset/liability and what is a nonmarital asset/liability.
Marital vs. Nonmarital Assets and Liabilities
The simple rule is that assets that were obtained before a marriage are nonmarital, meaning they belong to one of the spouses individually and independent of the marital bonds, and the same goes for debts that were incurred before a marriage. For example, if you purchased an antique sports car before the marriage, that is presumed to be nonmarital and not part of the equitable distribution process. Similarly, student loans that you took out before you got married are presumed to be nonmarital and will remain your sole responsibility after the divorce.
The same analysis applies when determining whether something is a marital asset. If that antique sports car was purchased three months into your marriage, it is presumed to be a marital asset. If you took out student loans three months into your marriage that is presumed to be marital debt.
That’s the quick and easy way to determine what are marital assets and liabilities and what are nonmarital assets and liabilities. However, like many things in the law, it is never really that easy.
Common Issues in Equitable Distribution
Equitable Distribution can be complicated by a number of circumstances that families regularly encounter. While these are exceptions to the rules, they are not uncommon.
Valuation
One of the trickiest issues in Equitable Distribution is determining the value of certain assets. How much is your home worth? Are you having the home appraised? Do you and your spouse agree to the appraiser or will you each have your own appraisal performed? Are you using an online listing option, such as Zillow, to get a feeling for what your house could be worth? Or are you both simply agreeing to a value? The answer to these questions will directly impact what number gets placed in the Equitable Distribution Spreadsheet (see below). If you have a family business, it can be very tricky to determine the appropriate value of the business for Equitable Distribution purposes.
Pensions and Retirement Accounts
Another problematic area is with pensions and retirement accounts. It is very common for a spouse to come into a marriage with an existing retirement account that was established pre-marriage, which they then continue to contribute to after the marriage has begun. The pre-marital contributions, and interest derived therefrom, would be nonmarital, while any contributions and interest on those contributions after getting marriage would be considered a marital asset. Calculating the nonmarital portion of the retirement account and any interest derived from those pre-marital contributions can be complicated and requires expertise to determine.
Pensions can be even more difficult to calculate because of the nature of how they pay out. There is usually not a value that a pension can be traded in for until the time comes for one to retire. Pensions will state a current payout amount based on projections, anticipated age of retirement, and other factors. Even more complicated, if the pension was started before the marriage and continued throughout the marriage, it can be very difficult to find the precise nonmarital and marital values of the pension for Equitable Distribution purposes.
Active vs. Passive Appreciation
Another difficult area that can complicate Equitable Distribution is determining whether the increase in value of a nonmarital asset is due to active or passive appreciation. Generally speaking, if a nonmarital asset appreciates in value during the marriage due to the active efforts of one or both spouses, that increase in value is considered “active” appreciation and is likely considered a marital asset subject to Equitable Distribution. If, however, a nonmarital asset increased in value due to market forces, inflation, or other methods that neither spouse had any active involvement in, that increase in value is considered to stay nonmarital and not subject to Equitable Distribution. This is common in real property and in investment accounts in which one or both spouses spent considerable efforts during the marriage to manage the investments.
Inheritances
Inheritances are a big exception to the ordinary marital vs. nonmarital rules. Generally, if a spouse receives an inheritance or a gift that is not from the other spouse, that is considered nonmarital. Also nonmarital are any assets exchanged for such nonmarital assets. In other words, if you spend your inheritance while married on a yacht, that yacht is likely nonmarital even though it was purchased during the marriage. However, if an inheritance or gift is comingled with marital assets, they can lose their nonmarital nature. Thus it is very important if you receive an inheritance or non-spousal gift during the marriage and you would at least like the option to keep it nonmarital, to be careful how it is stored and what you do with it.
Equitable Distribution, Not Necessarily “Equal”
It is important to note that the term we use for the distribution of marital assets and liabilities is “Equitable” Distribution, not “Equal” Distribution. While the courts are instructed to start the process “with the premise that the distribution should be equal,” the court is also permitted to perform an unequal distribution of assets based on certain enumerated factors, which we will discuss in another post.
Gathering Information
Typically, the longer a marriage, the more assets and liabilities a couple has accumulated. It can be a very overwhelming process to gather all of this information into one place. How does one organize all of this financial information? A good place to start is an Equitable Distribution Spreadsheet. The Ninth Circuit in Central Florida has a helpful Equitable Distribution Spreadsheet which one can use to input all information about a couple’s marital assets and liabilities. If you are in litigation, your lawyer should prepare this form for you based on the information you and your spouse provide. While one would think financial information is cut and dry and the answers clear, it is not uncommon for both attorneys to have differences in their Equitable Distribution Spreadsheets (usually regarding whether an asset or liability is marital or nonmarital or the value of an asset or liability). If you are pursuing a collaborative divorce, the financial neutral will gather all of your financial information into their own Equitable Distribution Spreadsheet for the team to analyze and build options with together. In the collaborative process, this spreadsheet is a joint document that both spouses and their team members work together to create and ensure it is accurate.
Equitable Distribution, along with parenting issues, makes up the vast majority of issues to figure out during a divorce. It can be very helpful to talk to a lawyer about this process to figure out what, if any, issues might arise during the Equitable Distribution process and how to resolve them efficiently and fairly. Please schedule a consultation with our office today to discuss these and any other questions you might have. We look forward to hearing from you.
Divorce can involve a chaotic jumble of emotions, leaving most people cycling through feelings of anger, hurt, sadness, and betrayal. For some during this traumatic period of time, this combination of feelings leads to the overwhelming desire for “justice”—-for what has been done to them, for the pain inflicted upon them. Simply, someone needs to “pay” for the circumstances in which they now find themselves. In these instances, individuals look to what types of legal actions they can bring against their spouse or perhaps, the “homewrecker” that is at fault by destroying their marriage and causing what is perceived as the death of their family.
Isn’t There a Law Where Spouses Cannot Sue Each Other?
Short Answer: There was. But not anymore.
Many people remember something about spouses not being able to sue each other. This was previously true in Florida under the Interspousal Immunity Doctrine. This doctrine prevented spouses from bringing civil torts (wrongful acts or infringement of a right leading to civil legal liability) against each other. The rationale behind this was the belief that lawsuits among family members would destroy relationships. In 1994, this doctrine was abolished, allowing spouses to sue each other for things like battery, negligence, fraud, and intentional infliction of emotional distress.
Can I Sue My Spouse for Cheating on Me?
Short Answer: Yes, for some things.
Cheating is a Crime. It may be difficult to believe, but cheating on your spouse is actually illegal in Florida. Pursuant to Florida Statutes, §798.01, if either party involved in the cheating is married and they “live in an open state of adultery,” both parties are guilty of a second-degree misdemeanor. Thus, your cheating spouse can be subjected to up to 60 days in jail, a monetary fine of up to $500, and up to 6 months of probation. However, before there is a deluge of calls to the police requesting arrest of the adulterous offender (and his or her cheating partner), this law is rarely put to use. In fact, adultery laws are most likely unconstitutional[1].
Suing for Contracting an STD/STI from Your Spouse. What if the other person gave your spouse an STD/STI and then your spouse gave it to you? If your spouse knew that they were infected by a sexually transmitted disease (STD)/sexually transmitted infection (STI), knew that they could transmit it to you through sex, had sex with you, and you were unaware that they were infected, your spouse could be charged criminally pursuant to Florida Statutes, §384.24. However, you could also bring legal action against the cheating spouse who gave you the STD/STI under the above circumstances in a separate civil suit for monetary damages or as a claim in a divorce.
Intentional Infliction of Emotional Distress. The emotional toll associated with cheating may lead the aggrieved spouse to sue their cheating spouse using the seemingly most fitting cause of action, intentional infliction of emotional distress. However, proving that your spouse intentionally inflicted emotional distress upon you by his or her cheating, is a challenging undertaking. You would have to prove that by cheating, your spouse (1) acted intentionally or recklessly; (2) his or her conduct was extreme and outrageous; and (3) his or her conduct caused (4) severe emotional distress. Given that some statistical data indicates that approximately 57% of divorces were caused by infidelity, proving that your spouse’s cheating was “extreme and outrageous” is unlikely. This cause of action against your spouse is likely not going to get you very far.
Can I Sue the Other Person?
Short Answer: No.
As mentioned above, technically, the other person involved in the cheating could be charged with a crime; however, for the reasons stated above regarding the unlikelihood of having your spouse charged with adultery, it would be even more unlikely that the other person would be charged. Further, in the very unfortunate event that you contracted a STD/STI from your spouse because he or she contracted it from the other person, there is no cause of action against the other person (other than perhaps your spouse bringing his or her own case against them because they gave him or her the STD/STI under those elements above).
Alienation of Affection. This cause of action is what some people immediately think of when seeking “justice” against a homewrecker. These types of lawsuits, where the aggrieved spouse sues the other person, are , in fact, called, “homewrecker lawsuits.” The angry thinking goes like this, “This shameless homewrecker did just that, wrecked my home and family, and he or she needs to pay.” In 2010, a North Carolina woman was awarded $9 million after suing the other person for destroying her 33-year marriage. However, North Carolina is one of the six states in which an aggrieved spouse can bring a lawsuit of this kind. Florida is not one of the other states[2].
Moving Forward with Collaborative Divorce
All the above being said does not necessarily mean that your spouse’s cheating considered in a Florida divorce. For instance, adultery can affect distribution of assets and alimony (if your spouse spent a great deal of marital money on the other person) and timesharing (one of the factors a court considers in determining the best interests of the children is the “moral fitness of the parents”). These things may be considered by a court if you choose to take the litigation route for your divorce. However, while the emotional rollercoaster of a divorce can lead to wanting a spouse or the other person to “pay” for perceived wrongs, it is more important to move beyond the need for vengeance and move forward with your future. Yes, you are allowed to feel all of the challenging feelings associated with a divorce but recognizing that a mindset focusing on retaliation will not be beneficial to your (or children’s) future, can pave the way toward more constructive and amicable resolutions. Thus, instead of focusing on making someone “pay,” moving forward with your divorce through collaborative divorce can shift the focus from finding “justice” to finding equitable solutions. Through the framework of collaborative divorce—encouraging transparency and focusing on goal and interest-oriented resolutions—families can work together toward more positive futures, keeping each person’s and the children’s emotional well-being intact. Please schedule a consultation today if you would like to discuss a family law matter.
[1] In Lawrence v. Texas, the Supreme Court ruled that criminal punishments for “consensual, adult, non-procreative sexual activity” (in this case, same-sex sexual activity) were unconstitutional, basing their ruling on the right to privacy, personal autonomy to decide on one’s relationships, and non-interference with private decisions regarding sex between consenting adults.
[2] The states other than North Carolina in which “homewrecker lawsuits” can be brought are Hawaii, Mississippi, New Mexico, South Carolina, and Utah.
Once a couple gets married, they have formed a partnership in which they are each impacted and bound by the decisions of the other spouse. The income that both spouses make at their respective careers is considered a marital asset, part of the marital estate. If they purchase a house, that too is considered a marital asset. If one of them goes back to school, any student loans incurred during the marriage are considered a marital asset. Any unwise financial decisions that one or both makes during the marriage is ordinarily considered part of the marital estate, for better or worse. What happens when a marriage is reaching its endpoint, though? When things are starting to come undone, but no one has initiated a divorce yet and decisions are no longer as mutual as they used to be? In particular, what happens when one spouse starts spending money secretly, starts giving away money in anticipation of a divorce, or starts to spend significant amounts of money on a lover in an adulterous affair? This is when we need to start discussing the concept of “dissipation of marital assets.”
What is Dissipation of Assets in Florida Divorce?
Under Florida law, equitable distribution of a couple’s marital assets and liabilities begins with the presumption that the entire marital estate will be split equally, or 50/50. SeeFla. Stat. § 61.075(1) (“[T]he court must begin with the premise that the distribution should be equal.”) This fundamental concept of marital law is known as equitable distribution. Notice that the term is not “equal” distribution, but equitable. Another word for equitable is “fair.” Essentially, the law starts with the premise that what is fair is an equal division of the value of the entire marital estate. However, that premise can be overcome and an unequal distribution of the marital estate can be obtained under certain circumstances. One such circumstance is the dissipation of marital assets.
Dissipation of Marital Assets
Section 61.075(1)(i) of the Florida Statutes defines marital dissipation of assets as, “The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition [for dissolution of marriage] or within 2 years prior to the filing of the petition.”
Case law in Florida has helped to explain this brief definition. First, in order for an asset to be considered marital dissipation, it must be the result of intentional misconduct. Importantly, mismanaging funds, being bad with money, or overspending do not count as marital dissipation. In other words, you will not be able to go back and argue that all of the shoes or fishing trips your spouse “wasted” money on should be considered dissipation. Similarly, it is not uncommon for one spouse to be the more prudent one when it comes to money and financial decisions while the other spouse might be more of a spendthrift or have a hazy understanding of the concept of savings. Simply put, when you stay married to someone, you are choosing to go along with all of their strengths and all of their flaws, including poor money management. You cannot go back later and claim you did not support this purchase or that purchase over the years.
Instead, there must be evidence of the offending spouse’s intentional dissipation or destruction of an asset. And the trial court must include specific findings of such intentional misconduct in the Final Judgment, with a specific factual basis for such finding. General allegations of misconduct will not be sufficient either. One must prove that the asset was diminished or dissipated for one party’s “own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” SeeWalker v. Walker, 85, So. 3d. 553, 555 (Fla. 1st DCA 2012).
What is an Example of Dissipation of Marital Assets?
So what constitutes intentional misconduct for dissipation purposes? The most common behavior is when a spouse spends money on an adulterous affair. However, there is a cost-benefit component that goes into this analysis. If a spouse spends money on some dinners and dates as part of an affair, that is probably considered dissipation. But the amount of time and attorney’s fees it would cost to prove it and obtain an unequal distribution of the marital estate as a result would almost certainly outweigh the amount actually dissipated. If the affair was lengthy, involved substantial items like expensive jewelry, trips, or housing for a lover, that level of dissipation might be worth it from a cost-benefit perspective. Of course, a cost-benefit perspective does not factor in the emotional harm that an affair can bring to a divorce and the non-offending spouse’s need to be made complete through a finding that some of the marital estate was dissipated in order to support the affair. This is an individual decision that you should make after consulting with legal counsel to have a better understanding of what a fight over alleged dissipation would really entail.
Other common ways that dissipation can occur is when one spouse gives money away to a friend of family member in order to try to keep it from being considered part of the marital estate. Gambling can also constitute dissipation of marital assets, depending on the circumstances.
Resolving Dissipation Issues Through the Collaborative Model
It is a common misconception that thornier issues, like dissipation of assets due to an affair, cannot be resolved through the collaborative family law process but must instead be obtained through contentious litigation. To the contrary, we have resolved many complex and emotional matters, like dissipation of assets, through the collaborative process. In fact, the results tend to be more efficient and also more conscious of the emotions involved, than litigation offers. We encourage you to consider the collaborative model if your divorce will likely need to resolve a claim of dissipation of marital assets. Please click here to schedule a consultation with us today so that we can help you better understand dissipation of marital assets.
I like to think I stay well-informed regarding current issues in family law. I read new case law; attend continuing legal education seminars; seek out multiple-day conferences; I even read up on new procedural law changes (believe me, that is elevated nerdiness). Further, when the sweeping changes affecting the Florida family law statutes encompassing timesharing, alimony, and paternity were enacted in July 2023, I could see the arguments for and against these changes to family law. This is a lead-up to letting you know that either I simply missed it, or I had completely disassociated from Florida’s asylum-like politics and purposely pretended it was not happening. . . It was only today when preparing for a hearing involving the UCCJEA that I learned the Florida legislature snuck in a provision into this fairly straightforward statute.
What is the UCCJEA?
“UCCJEA” is the acronym for the Uniform Child Custody Jurisdictional Enforcement Act. This act serves as the legal framework in resolving child custody disputes that can cross several different states and jurisdictions within the U.S. or foreign countries. As the word, uniform, suggests, the UCCJEA has been adopted in some form by every state (except Massachusetts that follows the older version of the law, the UCCJA). The intended, and stated, purpose of the UCCJEA is avoiding jurisdictional competition between courts in different states in child custody cases. The UCCJEA establishes and maintains consistency in custody determinations, avoiding potential conflicts and confusion that might arise when two different states have related interests regarding a child. Essentially, the UCCJEA was enacted so that parents would not utilize the court systems in different states to try and find the one that best suited their objectives. The bottom-line—-the UCCJEA was put in place to prevent forum shopping.
How is Jurisdiction Determined According to the UCCJEA?
The UCCJEA establishes clear guidelines to determine when a state would have jurisdiction over a child. Having jurisdiction over the child means that the court would be able to make decisions regarding the child. The concept of the child’s “home state” is the first consideration as to which state has jurisdiction over the child. A child’s home state is the state where a child lived with a parent for 6 consecutive months before the filing of a case that involves child custody issues. The child’s home state would be the proper state to determine an initial child custody matter. In circumstances where the child has not lived in any state for at least six months, a court can accept jurisdiction of the child if other criteria are met. Namely, the child and at least one parent have significant connections with the state and substantial evidence involving the child exists in the state.
Temporary Emergency Jurisdiction
Other than the above methods of exercising jurisdiction, the other method in which Florida can exercise jurisdiction is under Florida Statutes, §61.517, Temporary Emergency Jurisdiction. Previously, pursuant to this part of the UCCJEA, there were two circumstances in which Florida could exercise temporary jurisdiction in emergency situations if the child was present in Florida and (1) the child has been abandoned or (2) the child, a sibling, or parent of the child has been endangered or threatened with mistreatment or abuse. As I indicated at the start, these are straightforward and rational reasons as to why Florida courts should exercise jurisdiction over a child: Protecting children who are physically present in Florida when they are in emergency situations. However, Florida recently added another “emergency” circumstance under which Florida could chose to exercise jurisdiction: When “it is necessary to protect the child because the child has been subjected to or is threatened with being subjected to sex-reassignment prescriptions and procedures.” Under the Temporary Emergency Jurisdiction Statute, if a matter involving child custody issues has not been started in a court of a state having jurisdiction, “a child custody determination becomes a final determination if it so provides and Florida becomes the child’s home state.”
Although the current governor and his people proudly boast that this addition to the UCCJEA is meant to protect the “innocence of Florida’s children” and Florida is “following the science to elevate our standards of care to protect kids from harmful drugs and surgeries,” this provision actually creates the potential for problems that the UCCJEA was created to avoid. By adding in the third provision above, Florida’s UCCJEA gives permission for parents to use the Florida court system in their “forum shopping.” Most troubling is that this new provision essentially obliterates the criteria in determining which state would have the jurisdiction to make custody determination. As indicated above, even if another state had actual jurisdiction over the child, if a parent gets to Florida with the child first, claims that their poor, innocent child needs to be protected because they have been a victim of, or been threatened with, sex-reassignment procedures, that parent could have the court in Florida enter a judgment regarding custody of the child, and if the Court chose to label the judgment as “final,” it would be. And Florida is deemed the home state of the child. This means that Florida would have continuing and exclusive jurisdiction over any litigation involving a child. Thus, the other parent would not be able to bring litigation in the correct state with actual jurisdiction. Although clearly, the governor meant it to be compliment for Florida, he actually stated the potential issue plainly, “As the world goes mad, Florida represents a refuge of sanity and a citadel of normalcy.” He might as well held up a flashing sign to parents that want to circumvent the law of their own jurisdiction that said, “Come to Florida, folks, we don’t care about actual uniform procedures and law.” The UCCJEA’s aim was to prevent competitions between states and instead encourage cooperation through uniform laws. By imbuing political attitudes into the law, Florida’s UCCJEA now does the exact opposite.
[1] Said with a shaking of the head, pursed lips, and a heavy sigh in disappointment
[2] I actually wanted this headline to read, “Florida Man F**ks Up Family Law by Putting Politics Into Procedures Purporting to Protect the Innocent Children” (I really like alliteration.)
marriage, which they then continue to contribute to after the marriage has begun. The pre-marital contributions, and interest derived therefrom, would be nonmarital, while any contributions and interest on those contributions after getting marriage would be considered a marital asset. Calculating the nonmarital portion of the retirement account and any interest derived from those pre-marital contributions can be complicated and requires expertise to determine.
