Divorcing Later in Life

With approximately 44 percent of Americans going through a divorce at some point, millions of people in this country must make the often difficult transition from married to single. This adjustment is rarely easy, and the longer a couple is married, the more alien it will seem to live without the presence and support of a spouse. However, the rate of divorce for those 50 and older is on the increase, compared with the number of divorces among this group in 1990. The legal issues that typically impact divorces among older couples differ from those among younger couples. Conflicts around child support and child custody is a non-starter since the vast majority have adult children that no longer need support or care. However, couples married for decades often have much larger and more complex property holdings than someone earlier in life and career development. Retirement benefits are particularly important at this stage, especially if one spouse has been the primary or sole breadwinner for the duration of the marriage. In addition, alimony is more likely to be requested, and property division generally is more apt to generate conflict.

Retirement

Retirement benefits can easily form a substantial part of a person’s net worth, and the closer one is to retiring, the more pressing this issue becomes if divorce enters the picture. Florida law designates retirement benefits earned during the marriage as marital property and subject to equitable (fair) division. Retirement accounts that contain funds earned or contributed both before and after marriage are divided on a percentage basis, with only the amount collected after marriage subject to division. Further, if any of the retirement accounts are subject to ERISA, including pensions and 401ks, there are special rules that must be followed in order for an ex-spouse to receive a distribution as part of a divorce settlement. A judge must issue a Qualified Domestic Relations Order to permit an alternate payee to collect from a retirement account. Serious tax consequences come into play if this process is mishandled, so an attorney should be consulted to avoid potential penalties.

Alimony

Spousal support or alimony is more commonly requested among older divorcing couples in light of the economic disparity many of these marriages have. Women were less likely to work or have earned substantially less than their spouse. Thus, post-divorce these women are likely to struggle financially if assistance is not provided. Florida has four types of alimony, but the one particularly applicable to these situations is permanent alimony. The law permits courts to award permanent alimony in marriages of 17 years or more if there is a need for such support, and the examination of certain factors justifies the result, including:

• the couple’s standard of living;
• the length of the marriage;
• the age and mental/physical condition of each party; and
• each party’s financial resources.

Changing Beneficiaries

In addition to the immediate impact divorce has on the property rights of each party, older couples are more apt to have estate plans that include policies with the spouse listed as the primary beneficiary. While the law will automatically disinherit an ex-spouse in certain instances, the law’s effect depends on the type of estate plan in place. Some death benefits remain payable to the designated beneficiary regardless of divorce unless the beneficiary is specifically changed. Thus, all estate plan documents should be reviewed and revised to ensure an ex-spouse does not ascend to any unwanted rights.

Get Help

Divorce at any age is a difficult process, but divorce later in life brings unique considerations that should be taken into account. The Tampa Bay law firm All Family Law Group, P.A. will fully evaluate your situation, and advise you on the best course to achieve your goals, while also protecting your rights.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Mental Incapacity: The Lesser Known Basis for Divorce

Marriage requires compromise and acceptance of difficult situations if a couple wants it to last, and such sacrifice tends to increase as spouses age. People generally recognize that a spouse will change both physically and psychologically over time, and are willing to stay with the person despite these shifts. However, there may come a point where the change is so dramatic and profound that staying married is no longer feasible and divorce becomes a viable option. Everyone is familiar with irreconcilable differences as the no-fault basis for divorce, but Florida also offers an additional ground to justify divorce – mental incapacity. Divorcing someone in these circumstances may seem harsh, but other factors may make ending the marriage in this manner a reasonable choice. Children, especially if they are young, are likely to experience a considerable negative impact if continually exposed to a parent that is mentally incapacitated. Kim Kardashian is currently facing the dilemma of deciding whether to divorce from her husband, Kanye West, in the wake of his mental health breakdown in recent weeks. Divorcing someone on the grounds of mental incapacity is not the easy procedure offered by claiming irreconcilable differences, but is important to know about for those in this situation.

Divorce Due to Mental Incapacity

The main reason someone might choose to use irreconcilable differences as a basis for divorce, even if their spouse is mentally incapacitated, is the extra time required for choosing the latter. Florida law mandates that to use mental incapacity as the reason for divorce, one spouse must first be declared incompetent for at least three years. Further, the incapacitated spouse is entitled to have a guardian to represent their interests, which adds another layer of complexity to the case. Most importantly, though, spouses that divorce due to mental incapacity are obligated to pay alimony because the other spouse is almost guaranteed to lack the resources for self-support.

Getting Someone Declared Mentally Incapacitated

Before getting into how one is declared incapacitated, it is worth stopping for moment to consider why a spouse or family member would take this step in the first place. It seems to appear from the outside that this procedure would have little to no impact on the daily needs of the incapacitated person, which is probably true. But, it does give the spouse or family member the authority to make medical and financials decisions on behalf of the incapacitated individual, and may open access to programs that can assist with caring for the incapacitated person.

This process starts with filing a petition with the court asking it to declare someone incapacitated. These petitions are addressed on an expedited basis, so the process moves somewhat quickly compared with other cases. Within five days of filing the petition, the court must appoint a committee of three medical professionals to evaluate the condition of the person named in the petition, and each must submit a report to the judge no later than four months after their appointment. Each professional must personally examine the individual and assess whether he/she has the ability to exercise certain legal rights, such as the right to marry, manage property, vote, make medical decisions and decide living situation issues. The court uses this information, along with its own impressions gathered by questioning the individual, to decide if some or all legal rights should be removed due to incapacity. This status continues indefinitely until lifted by a court in a future proceeding.

Talk to a Divorce Attorney

If you are considering divorce, regardless of the reason, consult a divorce attorney before filing a divorce petition. Divorce has important legal consequences, many of which are permanent, and should be approached under the guidance of a divorce attorney who can make sure your interests are fully considered and protected. The Tampa Bay law firm of the All Family Law Group works with clients to achieve their specific goals as they enter a new stage in life.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Can You Keep the Details of a Divorce Private?

Divorce can leave the participants feeling emotionally and financially vulnerable. These reactions make sense in light of the dramatic changes divorce triggers within a relatively short-period of time – change in residence, change in economic circumstance and change in relationship status. Another difficult reality of divorce is the necessity of releasing private and potentially embarrassing information to the public. All cases filed in any court are matters of public record, which means anyone has the right to access them upon request. This was not much of an issue before the advent of the Internet, and to view case records typically required someone to visit the courthouse in person. However, now that records can be accessed from the comfort of home at any time of the day, concerns about who may view, and subsequently use, this information is real and justified. Parties involved in court proceedings have the right to ask a judge to seal all case records and related documents so the information is withheld from public view. However, a compelling reason must exist to justify such a request. Actor Brad Pitt recently tried to seal the records in his divorce, citing concerns about his children’s privacy rights, but the court disagreed and denied the request. While receiving approval to seal records in a divorce case is not easy, it does happen. Importantly, though, there are ways to keep information private without resorting to a request to seal records.

Sealing Records

As noted above, documents filed in connection with divorce cases are considered public records subject to Florida law on the public’s right to access this information. If a party wants to keep information out of the public eye, he/she must file a request with the court asking it to designate certain information as confidential and thus exempt from disclosure. Courts will only grant such a request if a party can demonstrate certain grounds exist to justify the decision. These include:

• confidentiality is necessary to preserve justice in a case;
• confidentiality is needed to avoid injury to innocent third parties, such as children; or
• confidentiality is necessary to prevent injury to a party by the disclosure of information normally protected under common law or a right to privacy.

Courts are generally reluctant to grant these requests, and a party must have a fairly compelling reason to be successful. Consequently, a better option is to limit or completely avoid submitting private information to a court.

Other Ways of Keeping Information Private

The most effective way to circumvent the need to release private information into the public record is to negotiate and enter into a private settlement agreement as part of a mediation or through the collaborative divorce process. These proceedings are private, and the extent to which personal information must be disclosed to finalize a divorce is limited. Further, the provisions of a marital settlement can refer to outside agreements without disclosing the terms contained within them, which is especially useful to protect financial information. Thus, while it takes a little planning, it is possible to keep most personal information out of the public domain, and an experienced divorce attorney will know the most effective way to accomplish this goal.

Consult a Divorce Attorney

Divorce is difficult, and being forced to disclose personal information to strangers only adds to the stress. If you are concerned about revealing personal information to the public, work with a knowledgeable divorce attorney about limiting your exposure. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Figuring Out Property Division in Divorce

Part of a couple’s effort to build a life together includes acquiring property that speaks to the couple’s success and affection for one another. The longer a couple is married obviously affects the variety and amount of property they own together, and will represent the couple’s hard work and sacrifice. Having to split these assets during divorce is often a hard reality for parties to accept, but absent a prenuptial agreement, some amount of property division will occur. When people typically think about dividing property in divorce, houses, cars, and retirement benefits are the first things that come to mind, but any asset of value can fall within the definition of marital property, including more personal items like books and artwork. While the parties are always free to craft their own property settlement, a court will review the terms for fairness, and, in the absence of an agreement, divide all marital property according to the rules of Florida law.

Equitable Division

Property division in divorce starts from the premise that all marital property should be divided equally between the spouses, unless there is evidence that justifies an unequal division. Examples of issues that could impact the balance of property division are adultery and dissipation of assets by one spouse. Courts evaluate whether equal distribution is appropriate on a case-by-case basis, and use a number of factors to complete this analysis. These factors include:

• the contributions of each spouse to the marriage, including childcare and household services;
• the length of the marriage;
• the economic resources of each party;
• interrupting educational or career pursuits of one spouse for the benefit of the other spouse;
• the contribution of each spouse to increases in value of marital property, and the accumulation of liabilities; and
• the wishes of either spouse to keep the family home for the benefit of a minor child.

Note that both assets and liabilities are divided in divorce, but if one spouse is mainly responsible for the accumulation of debt, the court could leave him/her with the bulk of these obligations.

Marital Property

Now that there is a basic understanding of how property is divided, the next important piece in this issue is figuring out which property is subject to distribution. As noted above, all marital property is divided in divorce. Marital property includes:

• all assets and liabilities acquired by either spouse during the marriage;
• non-marital property that increased in value during the marriage due to the efforts of either spouse or the use of marital funds;
• gifts between spouses during the marriage;
• all vested and unvested benefits and interests in retirement funds, life insurance, and pensions;
• real property jointly owned by the spouses; and
• personal property jointly owned by the spouses.

Determining whether an asset qualifies as marital property is fairly clear in most divorce cases, but one area that may be less clear is interspousal gifts.  All gifts received from a spouse are automatically labeled as marital property, but the law permits a party to dispute this assumption by presenting “clear and convincing” evidence to the contrary. This standard of proof requires a party to present enough evidence that shows his/her contention is more likely true than not.

Retirement Plans

Finally, given the importance of retirement plans in a person’s overall long-term financial stability, it is natural to wonder what happens to these assets following divorce. Any interests or benefits in these funds that accrue during a marriage are considered marital assets and subject to distribution. In addition, military benefits amassed by active military personnel are also open to division if the marriage lasted 10 years or more.

Talk to a Florida Divorce Attorney

If you are in the midst of getting divorced and have questions about which property you are entitled to receive, talk to a divorce attorney to learn your rights. There are many legal nuances not covered here that affect how property is divided. The Tampa Bay law firm All Family Law Group, P.A. has extensive experience in all facets of divorce cases, and can help you receive a fair property settlement.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Appealing a Divorce

The process of divorce can be a long and winding road, especially if children are involved. Consequently, when the divorce decree is finally issued, parties typically feel a sense of relief gained by the knowledge that they can now move past this period in their life. And, for most divorcing couples, the final divorce order marks the end of the divorce case and the marriage. However, circumstances do sometimes arise that can compel someone to appeal a divorce order, but courts are reluctant to revisit these cases because the integrity of marriage requires that divorce judgments be conclusive and not easily overturned. Despite this policy, courts are willing to reconsider and potentially modify divorce orders for very particular and limited reasons. Given how restrictive divorce appeals are, working to negotiate one’s own agreement is the best method of ensuring the settlement terms are fair. Failing agreement, parties need to present the best evidence to the judge, which an experienced divorce attorney will know how to do. Nevertheless, understanding when a divorce appeal is permitted is important information to have in case an appealable issue does occur.

Legal Options to Revisit Divorce Order

Florida law gives parties in divorce cases several opportunities to request that the court reassess an earlier decision, and the type one files tends to depend upon how much time has passed since the final divorce decree was issued. The first option, and the one with the shortest deadline, is to file a motion for rehearing. This request must be made within 15 days following the issuance of a court order, and is usually the first step in filing a formal appeal. This request is used when a party has a legal basis for appeal, not just an objection based on facts. The judge is not required to grant a rehearing, and has broad discretion to deny it, which is generally what happens.

The next alternative, which is available if the divorce order was issued within the previous 30 days, is to file a formal appeal. This is a very complicated and technical process that takes a considerable amount of time to complete. No new evidence may be presented, and the basis for appeal must rest on a claim that the court misapplied the law. Note that if a party wins on appeal, the case will likely have to go back to the trial court for final resolution.

Finally, if more than one month has passed since the court issued the divorce order, the only option left is to file a motion for relief from judgment. A party has up to one year to file this type of motion. However, these requests are rarely successful, and are only granted in unusual circumstances.

Grounds for Appeal

The legal basis for appealing a divorce order is commonly based on one or more of the following claims:

• the judge made a mistake in the application of the law;
• new evidence was discovered that was unavailable or not ascertainable earlier in the case; or
• fraud, misrepresentation, or misconduct by the other party. This claim typically relates to concealment of assets by a spouse. Note that while parties usually have just one year to file a motion to set aside a judgment, a special rule exists for divorce cases that completely removes the time restriction if the request is based on fraudulent financial records.

Get Help from Our Attorneys

If you believe a mistaken or a fundamentally unjust decision was made in your divorce case, talk to family law attorney about appealing the judge’s order. The All Family Law Group, P.A. helps clients in the Tampa Bay area deal with variety of family law issues, including divorce appeals.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Traditional vs. Collaborative Divorce: Which Option Is Better for You?

Deciding to divorce is one of the most difficult and painful decisions most people will ever make. Coming to this conclusion is typically the result of a lot of discussion, personal reflection and failed efforts to improve the relationship. Once the decision is made, though, the logistics and practical considerations of getting divorced must be addressed. Who will file the divorce petition? Will both sides hire lawyers? Should child custody and property division be decided first? These are important questions that all divorcing couples face, but another crucial matter those seeking divorce should consider is the type of divorce procedure to use. Most people assume that the traditional, combative divorce case in front of a judge is the only way to dissolve a marriage. However, as divorces have become more common over the past 30 years, alternative ways to pursue divorce have emerged, including a recent option called collaborative divorce. This method of divorce is geared toward allowing the parties to emerge from the process with a working relationship by the use of a non-combative dispute resolution approach. While collaborative divorce is an option, this choice is not right for everyone.

Marriage is a Business Contract

While viewing marriage as a business deal is not the most romantic approach, it does reflect the practical realities of the rights and obligations a couple both grant and assume to each other the day they marry. In the event of divorce, sorting out how to dissolve this arrangement is a proposition more suited for the abilities of a court, rather than the professional advisors that collaborate with divorcing parties in the collaborative divorce process. While it may seem more attractive to fashion one’s own conclusion to the relationship, the court has remedies it can access that are unavailable to private parties. These remedies are designed to ensure the unraveling of the relationship is just, and protect the rights of parties in weaker positions.

Traditional Divorce Can Be Civil

Collaborative divorce is known as the peaceful alternative to ending a marriage, but couples do not have to engage in protracted disputes simply because a traditional divorce case is filed. Couples can work out their own private settlement agreement, with the assistance of divorce attorneys, before stepping inside a courtroom. In fact, Florida offers a simplified divorce petition, which gives parties with no disputed issues a condensed and faster approach to navigating the divorce process.

Limitations on Probing the Other Side’s Claims

A key aspect of conventional divorce cases is the disclosure of financial information to the other side. This information is needed to assess the types of property owned jointly and separately for purposes of property division, and to see the financial resources of each party for calculations of child support and alimony awards. Filing the usual divorce petition gives each party the ability to request specific information, and to ask a court to compel the release of additional information if fraud or misrepresentation is suspected. Collaborative divorce does not give parties the tools to verify or contest the accuracy of the financial information offered. This limitation may make it easier to hide or withhold information on assets, so if someone considering divorce is unsure about what the other spouse owns, this process may not be the best choice.

Work with a Florida Divorce Attorney

If you are contemplating divorce, talk to a divorce attorney before filing a petition to make sure you choose the type of divorce best for you and your family. The Tampa Bay law firm All Family Law Group, P.A. is experienced in many different types of divorce, and can assist you with your case.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Alimony and How Courts Decide to Award Spousal Support

For a select few, divorce will be a seamless process that merely involves filing paperwork and waiting for a judge to issue a divorce decree. These seemingly easy dissolutions often involve couples that either had detailed prenuptial agreements or a very short marriage. For the rest, however, divorce will likely include some amount of disagreement requiring negotiation and compromise to resolve. One area that is often disputed is the payment of alimony or spousal support. Alimony is often requested in divorces where one spouse earns considerably more than the other, one spouse stopped working to raise children or otherwise support the household, or in marriages of long duration. A high profile couple in South Florida going through a divorce is currently battling over this issue as the wife has asked for alimony, as well as a sizeable portion of couple’s property. Alimony awards usually involve a balanced consideration by a court of what is fair to the spouse with greater financial resources and the spouse who needs assistance. Alimony law in Florida is complex, and does not provide a judge with hard-line rules on when an alimony award is appropriate. This leaves the outcome to a case-by-case analysis that is hard to predict. Despite this uncertainty, parties seeking alimony need to understand the various types of alimony permitted under Florida law so they know what to expect during the divorce process. A discussion of this issue will follow below.

Types of Alimony

Florida has four types of alimony that range from extremely temporary to permanent, and a judge can combine more than one type into an alimony award as needed. The four types are: bridge-the-gap, rehabilitative, durational, and permanent. Bridge-the-gap is the shortest type of alimony, and can last no more than two years. It is intended to assist a party with the transition from married to single and to cover specific short-term needs.

Rehabilitative alimony provides financial assistance to a party while he/she acquires or updates the skills needed to become self-supporting. A detailed rehabilitation plan must accompany these awards outlining precisely what the party intends to do to gain self-sufficiency.

Durational alimony is granted when permanent alimony is inappropriate or unnecessary. This alimony award is for a set period of time that cannot exceed the length of the marriage, and is difficult to modify once established.

Permanent alimony awards are approved when a party lacks the ability to meet his/her financial needs following divorce. It is typically reserved for marriage that lasted at least 17 years, and will only be given for shorter marriages if there is a strong showing of evidence to justify it.

Factors in Alimony Awards

Before a court can begin the alimony award analysis, two preliminary questions must be answered – is the alimony needed, and can the party being asked to pay afford it? Unless both of these questions are answered in the affirmative, a court will not even consider awarding alimony. Once this first hurdle is overcome, the court must then weigh a number of factors to determine if alimony appropriate is appropriate. These factors include:

• the standard of living enjoyed during the marriage;
• how long the parties were married;
• the age, physical health, and mental condition of the parties;
• the financial resources of each party;
• the earning capacities of each party;
• the contribution of each party to the marriage, including child care and career support provided; and
• the division of parental responsibilities between the parties for minor children.

Note that a court can consider evidence of adultery by a spouse in this analysis, and the length of a marriage is calculated from the date they couple married until one filed for divorce.

Get Legal Help

Getting divorced is a difficult time in a person’s life, and having the guidance of an experienced divorce attorney can take away some of the stress during this emotional time. At the Tampa Bay law firm All Family Law Group, P.A., we focus our practice on family law and divorce matters so we can provide well-informed legal representation to our clients.  Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

by Lynette Silon-Laguna Google+

Florida Divorce 101

Looking at the almost daily stories about divorce that appear in the news, it seems as if society sees this event as an everyday process that is not worth a lot of conversation. This nonchalant attitude is especially apparent in the large of number of reports about which group is most likely end their marriage and the top signs a relationship is heading for divorce. In reality, divorce is a painful process that few enter without a large amount of soul searching and numerous attempts to save the marriage, but once the decision is made, having some key bits of information can make the situation a little easier. Knowing this basic information about divorce procedure is likely to make the process feel a little less overwhelming and scary, which should provide some much needed emotional relief to anyone facing divorce. Consequently, an overview of how to initiate a divorce, the types of information needed to file for divorce, and the role of the court will be discussed below.

Starting Divorce Proceedings

All dissolutions of marriage in Florida start with a petition for dissolution. In order for a couple to be permitted access to Florida courts for divorce, at least one party must be a resident of the state for a minimum of six months and intend to remain. The petition is filed with the circuit court in the county where the couple last lived together.  This legal document provides the court with information it needs to determine if there is authority for a  Florida judge to grant a divorce and requires the party filing the petition to include certain information related to child custody, child support, alimony, and property distribution, as applicable, so the court knows what the petitioner is seeking.

Florida is a no-fault divorce state, and all that the petitioner needs to do to get divorced is claim the marriage is irretrievably broken. This means it is unnecessary to prove that one party caused the failure of the marriage, but it also allows one party to ask for a divorce even if the other does not desire that result. The length of time it takes to obtain a divorce depends on the complexity of each individual case, but the law requires a minimum of 60 days to pass between the filing of the divorce petition and the issuance of the court order dissolving the marriage.  However, this can be waived by the parties.

Necessary Information

Before a divorce attorney can begin drafting a petition, he/she will need to collect information related to minor children, property holdings, and support. Specifically, if the couple shares minor children, identifying information for each child and any agreements the parents have made about custody and parenting time should be disclosed. Further, each party must file a financial affidavit with the court no later than 45 days after the petition for divorce is filed. This affidavit will provide the court with information that will help the judge determine child support payments, property division, and alimony, if granted. Note that the law requires the information provided in this form be disclosed to the other spouse.

How the Court Is Involved

The role of the court in divorce cases is, first and foremost, to issue a court order legally terminating a marriage. Beyond this purpose, the court oversees and approves any agreements the parties make related to the divorce. The court will take a more direct role and make decisions on issues like support and child custody, but since many couples work out the terms of divorce in mediation, it is not necessary for the court to intervene. Thus, most divorcing spouses only appear in court once to attend the case management conference where the judge learns about the status of the case and makes any decisions needed to move the case forward.  Or the case management conference can be used as a final hearing if the parties are in agreement and have completed all that is necessary to finalize their case.

Talk to a Divorce Attorney

It can be tempting to file for divorce on your own, but there are a lot of procedural rules and statutory laws that affect how quickly the case progresses and the ultimate outcome. An experienced divorce lawyer is best equipped to handle these legalities, and help you avoid the frustration of not knowing or understanding why certain forms have to be filed and the particulars of local court rules. The Tampa law firm All Family Law Group, P.A. can offer you representation in all divorce matters and is committed to helping you achieve the best possible solution. Contact the Tampa divorce attorneys and family lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Bankruptcy and Divorce

Financial problems are often a complication that may have added to the stressful causes of a divorce. Divorcing couples who are deeply in debt may wonder whether they should file for bankruptcy before or after they dissolve their marriage. There is no “one size fits all” answer because there are so many factors that need to go into the decision. There are advantages and disadvantages regardless of when you decide to file for bankruptcy. However, it is best to understand your options by discussing the details of your case with a qualified divorce/bankruptcy attorney prior to making any decisions.

Filing during a Divorce

Filing for bankruptcy in the middle of a divorce can be tricky. When one spouse files for bankruptcy alone, the result could be that only his or her portion of the debts are discharged. This could leave the other spouse with quite a bit of debt to resolve. Furthermore, under divorce law you may still be responsible for your share of the debt to your spouse.  For this reason, it is best to come to a bankruptcy decision jointly, whenever possible. If you are having financial difficulties it is imperative that you let your divorce attorney know immediately, as it could affect the decisions of the divorce. 

Automatic Stay

When a bankruptcy is filed during a divorce, it puts an automatic stay, or hold, on the division of property. It does not impact the issues of child support or custody. The hold will lengthen the time it takes to obtain a divorce, since the financial debt matters must first be sorted out. This could take considerable time, in some instances. However, it may be beneficial to resolve debt problems rather than allowing them to have a negative influence on your long-term money situation.

Bankruptcy after Divorce

If you wait until your divorce is final to file for bankruptcy, you could still run into trouble. When a former spouse files bankruptcy after the divorce, creditors do not have to follow the divorce decree where debts were distributed. Instead, they will pursue collection of the debt with the spouse who did not file bankruptcy. Therefore, it could be beneficial to deal with the bankruptcy before finalizing the dissolution of marriage.

Careful Consideration

Since everyone’s marital and financial situations are unique, there is not one correct solution. As with most of the divorce decisions, the choice to file bankruptcy is filled with advantages and disadvantages. There are many important consequences of bankruptcy that need to be weighed before an informed decision can be made. An experienced divorce attorney is essential, especially in cases where there is a potential for bankruptcy.

Fresh Start

As you divorce you are likely looking forward to having a fresh start. You want to put your divorce and all of its baggage behind you. If you are struggling with debt before the divorce, it will probably still haunt you afterwards unless you take the steps necessary to resolve it. The decision to file bankruptcy is one of the most important choices that can be made as part of the divorce. However, it can be a new beginning, which would not be possible otherwise. Trust that your divorce and bankruptcy attorney will assist you in getting the new beginning you deserve. If you are about to go through a difficult divorce, count on the experienced legal team at our firm to assist you during this difficult time. Contact the Tampa divorce attorneys and bankruptcy lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Grounds for Divorce in Florida

In Florida, as in other states, state law provides for dissolution of marriage between couples. In order to be granted a divorce, the marriage must have suffered an “irretrievable breakdown” or there must be incapacity of one of the spouses. By far, the most common grounds for divorce in Florida is referred to as the existence of “irretrievable differences.”

Irretrievable Breakdown

Irretrievable breakdown of the marriage means that the parties are not able to maintain the marriage. They are no longer able to live together in a marriage and are no longer able to work things out. When the respondent does not deny that the marriage is irretrievably broken, and there are no minor children, the court will enter a divorce judgment. However, if there are minor children, the court may order the couple to seek counseling prior to granting dissolution of marriage.  That this will happen is extremely rare, although it is allowable in the language of the Florida Statutes. 

Incapacity

Incapacitation of one spouse may occur due to a number of reasons. Incapacity generally means that the person is unable or unwilling to make logical decisions or has a problem which is debilitating. The spouse must be deemed incapacitated based on the provisions of the law (s.744.331) for a time period of a minimum of 3 years. The divorce proceeding must be served to the incapacitated spouse along with the guardian. If the person does not have a guardian, the court will appoint one for the purposes of the divorce. It is imperative that the person be properly represented in order to understand the divorce proceedings.

What the Court May Require

Rarely, if ever, the court may not agree that the marriage is irretrievably broken, although it is possible under the Florida Statutes.  If this were to happen, the judge may require the parties to seek counseling in some form or fashion. For example, the judge may require parties to spend time working with a marriage counselor, psychologist, psychiatrist, minister, priest, or rabbi, or other professional that is acceptable for consultation. Other actions may be required as well, especially if they are in the best interest of the minor child or children. A continuance of the proceedings will thus be put on hold for a period of not more than 3 months. This is considered time to allow for a possible reconciliation.  Again, this is extremely rare.

Help From a Qualified Divorce Attorney

Not all divorces are easy. In fact, many of them are quite complex and each has its own set of circumstances which must be reviewed and resolved.  However, it is important to note that the court will proceed with a divorce regardless of whether both parties agree that there are irretrievable differences, and which irretrievable difference do not have to be proven, just alleged. If you are about to go through a divorce, contact the Tampa divorce attorneys and family law lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Postnuptial Agreements

Nearly everyone has heard of a prenuptial agreement, which is a contract between two people before they get married. However, many individuals may not be aware of a postnuptial agreement. This is similar to a prenuptial agreement, however, it is created during the marriage. A postnuptial, also called a post-nup, can be a helpful tool for couples who want to ensure that they resolve major issues, should they ever decide to divorce. Just like pre-nups, post-nups may be criticized for making divorce easier. Additionally, some post-nups could be considered invalid if they are not properly drafted and validated.

Creating a Valid Postnuptial Agreement

A valid postnuptial agreement should be drafted by a qualified attorney to ensure that it is legal. The purpose of the document should be to clarify and reaffirm the arrangement, not make things unclear. It is essential to be clear and precise in the document. While you may feel the need to address social issues, these should not be the main focus of the postnup. Social issues that make their way into such agreements may include things such as when and how a Facebook post can be made, or when a person you are dating can be introduced to the children. Within a postnuptial agreement it is important to address financial issues of the relationship; furthermore, it can include important information regarding wills and trusts.

Signing a Postnuptial Agreement

If you are presented with a postnuptial document it is best to take some time to completely review the document before you sign it. The agreement should be fair to both parties. Remember that you can add to the agreement if you don’t think it covers your own needs. You can also ask to make changes to it. Keep in mind that it will be much easier to resolve issues now than after the document is signed and put into place. To protect your interests, have the document reviewed by a reputable divorce attorney to ensure that it covers your needs and is fair.

How to Fight an Unfair Postnuptial Agreement

If a couple divorces with a prenuptial or postnuptial agreement in place, the document typically takes effect unless one spouse can prove that the agreement is not valid. An agreement may be invalid if it was not signed voluntarily, if one person acted fraudulently, or if a party was under duress when the document was signed. If the agreement is unreasonable a court could rule it unfair and, thus, not binding. Additionally, if a couple both agree, they can request the court to put aside the agreement or modify it. Just because a prenup or postnup is in place does not automatically mean it must be followed. If you have such a document it is necessary to bring it to the attention of your attorney immediately so it can be properly addressed.

If you have any questions or concerns about a postnuptial agreement or are about to begin a divorce, contact the Tampa divorce attorneys and family law lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Resolving High Conflict Divorce

Divorce can be extremely difficult for families; however, it may be particularly hard when there are major conflicts between the parties. And, of course, when there are children involved it can be even more problematic. One of the many areas of contention may be child custody issues, which can be complex and hard to resolve. The main thing to consider in such instances is the child. Parents must put the children first and provide them with the love and reassurance they need during this stressful transition.

Consider a Guardian Ad-Litem

Because children are your first priority one way to ensure that their needs are protected is with the appointment of a guardian ad-litem. This is a professional appointed by the court to represent the child throughout the divorce proceedings. This individual coordinates with the child’s important contacts to gather information that will assist in making decisions that are in the child’s best interest. The guardian may speak with teachers, relatives, coaches, and others to learn details that can be used to resolve custody and visitation conflicts.

Meet With a Psychologist

A psychologist will analyze you to help determine how well you are able to care for the child. An evaluation may be completed for both parents in a high conflict divorce. The psychologist may conduct interviews and testing in order to provide a complete professional evaluation that can be used in court. This type of assessment can provide critical information when one spouse has accused the other of being unfit to parent the child. Your attorney will assist in choosing a psychologist to work with.

Deposition

In cases of high conflict divorce, your attorney may want to question the other parent or other witnesses with a formal deposition. The deposition is a legal method of asking important questions that may be relevant to the case. Recording these statements can be helpful later on because the witness is locked into statements made at the deposition. If you are deposed it is essential that you properly prepare with your own attorney ahead of time. Also, your attorney may be present during the deposition.

Substance Abuse Evaluation

In cases where you are concerned about substance abuse of the other parent, it may be necessary to request an evaluation. In certain situations your attorney may need further evidence of substance abuse, which may need to be gathered through various methods. For example, the friends or relatives may need to be deposed or a private investigator could be utilized.

Help from a Skilled Divorce Attorney

Many of the issues that come up during a high conflict divorce can be more easily resolved with help from a skilled divorce attorney. Those attorneys with experience handling high conflict divorces are more adept at resolving situations and in preventing some problems from occurring in the first place. If you feel that your divorce may be one of contention it is ideal to choose a divorce attorney who will act preemptively to keep the divorce on track with as little harm to the family as possible.

If you are about to go through a divorce and fear that it could be high conflict, contact the Tampa divorce attorneys and family law lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+

Time Sharing After Divorce – How to Make it Work

Time sharing, also referred to as shared parenting, is the most common way for divorced parents to raise their children. It may seem difficult to understand how people who were unable to get along while they were married are expected to make decisions for their children together. Yet that is what time sharing is all about. There are some things you can do during the divorce process that will make parenting easier and less stressful for the entire family after the process is complete.

Accept Compromise

Going through a divorce is never easy and often comes with many difficult situations. Although you have been bruised by the process, it is necessary to keep a united front for the sake of the children. Most kids are quite resilient, but they are able to quickly sense a divide in parenting styles and will often use that to their own benefit. Instead, you and your ex need to take charge of the situation and make decisions together whenever possible. Remember that some compromises may be necessary but it is always important to refrain from making negative comments to the children about the other parent.

Create a Detailed Parenting Plan

Divorce in Florida requires the utilization of a parenting plan. The plan is designed to provide a detailed platform that will serve as the basis for all your future parenting decisions. It is best to create a plan that is as inclusive as possible. This will be of great benefit later on, after the divorce is over and day-to-day parenting kicks in. Spend plenty of time reviewing the options included in the plan and make sure that you don’t simply gloss over it quickly. Cover even the most difficult of choices now so that you have a roadmap to guide you more easily once the divorce is final.

Keep the Best Interest of the Child in Mind

It is of utmost importance that you always make decisions and choices that are in the best interest of the child. Florida family courts focus on this when making decisions regarding children in divorce. In Hillsborough and Pinellas Counties in particular, it is mandatory to take a divorce parenting class. After a divorce, the children are still the number one concern. When a parenting situation is no longer working it may need to be revisited. Keep in mind that any changes to a divorce decree must be made through a court-ordered modification. A hearing must be requested and both parents are required to appear to present their case to the judge. If you and your ex can agree to the changes, then you update the Parenting Plan to reflect the changes and obtain an order from the Court modifying the Final Judgment.

Choose an Experienced Tampa Divorce Attorney

The choice of divorce attorney can make a big difference in how well the post-divorce will be handled. An experienced lawyer will be helpful in answering questions and providing information that will help you make decisions that are going to work well for you and your family both now and in the future. Your lawyer will protect you from some of the major stresses of the proceedings and will assist you in creating a parenting plan that will help you avoid some of the common problems that can occur. Your attorney is also available to provide guidance when a modification is needed. If you have decided to divorce, contact the Tampa divorce attorneys and family law lawyers at All Family Law Group, P.A. in Tampa Bay at 813-816-2232 for a consultation at no charge or email us.

By Lynette Silon-Laguna Google+