The Divorce Process in a Nutshell

The length and what is involved in the divorce process depends upon the parties involved.  Furthermore, if you or your husband or wife is in the military, there may be issues involved such as military retirement, special residency requirements, requirements of service on an active duty spouse. There are those who can agree on a settlement of their issues and so obtaining a divorce is uncontested. Sometimes the parties can enter into an agreement and file it with the petition for divorce.  Or in the alternative, he or she can file the petition with the court and serve the other party with it by process server, who will have 20 days to respond.  Furthermore, if the other party is agreeable he or she can accept service of the petition, rather than being served by a process server.  Upon filing the petition, the court will order that the parties attend a Case Management Conference which is scheduled for 90 days after the petition is filed.  This is a hearing which is essentially a status conference, so that the judge knows what is happening in a case and what needs to be done in it.

Hammering out a divorce agreement!

Even if the parties can come to an agreement, there are still forms which must be completed, some of which are filed with the petition and some are filed prior to the final hearing.  There is mandatory disclosure which is required of both parties; however, they can agree to waive it.  It is required that each party file a Financial Affidavit and this requirement cannot be waived.  If there are children involved, then it is mandatory that a Parenting Plan signed by the parents and a Child Support Guidelines Worksheet be filed.  Child support is mandatory because family law looks at it as it is for the child and cannot be waived by the parents.  

If a marital settlement agreement is not filed with the petition, then the husband and wife will have to come to an agreement thereafter and file it with the court.  If they have attorneys helping them with their divorce, then the attorneys can put the agreement together and the parties will sign it.  If an agreement is reached and  filed, then the parties can proceed to an uncontested final hearing or the final hearing can occur at the Case Management Conference.  At that time, the judge in the case will enter a final judgment which will incorporate all of the terms in the agreement.  It will thereafter be enforceable by the court.

If the parties cannot come to an agreement, then in Hillsborough County, mediation is required prior to the case being heard by the judge.  Mediation can be either through the county or private mediation.  Private mediation may be more costly; however, it can be scheduled earlier in the process, as it usually takes two to three months to schedule a mediation with the county.  Another plus to private mediation is that there is no time limit on the length of the mediation, whereas, county mediation is limited to two hours.  If the case is uncomplicated, then county mediation may be sufficient; however, for more complicated cases it is worth the additional expense to attend private mediation as the parties have more time to settle and are more likely to settle some or all of the issues .  If an agreement is reached, the mediator will prepare the agreement for the parties to sign.  It will then be filed with the court and a final uncontested  hearing will be scheduled.  The final judgment will incorporate the terms of the mediation agreement.

A trial date will be scheduled for resolution of all or the remaining issues if the parties cannot come to an agreement at mediation. This will be a contested divorce action. The parties may also need to attend a temporary relief hearing if there are issues such as child support, child custody and timesharing, alimony and property division, which need immediate resolution.  Trial dates may be scheduled for three months or more after mediation.  The parties will attend the trial with their attorneys and each will present testimony and evidence to support their position.  The judge will take it into consideration and he or she will come to a decision at the trial or more often weeks after the trial date.

It is very costly both financially and emotionally to prepare for and attend trial.  Furthermore, neither party may be happy with the court’s decision.  Therefore, if at all possible, it is advisable to come to an agreement which requires that the parties compromise and understand that it may not be possible to receive everything requested.

By Lynette Silon-Laguna

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UPDATE: Alimony Reform 2013

On May 3rd, the 2013 Legislative Session ended without any reform to alimony laws. Governor Rick Scott vetoed SB718 and announced his decision in a letter dated May 1, 2013, to the Senate President, Don Gaetz. In the letter, Governor Scott concluded that "I cannot support this legislation because it applies retroactively and thus tampers with the settled economic expectations of many Floridians who have experienced divorce." The governor also noted that existing Florida law provides for alimony to be adjusted under proper circumstances. For a full look at May 1, 2013, letter by Governor Scott, click here.

See the April 4, 2013 blog:  Proposed Alimony Reform 2013

Article By:  Lynette Silon-Laguna Google+

Proposed Alimony Reform 2013

Alimony Reform Bill, SB 718 was passed 29 to 11 by the Florida Senate on April 4, 2013. It will move to the House and if passed, it will likely be signed into law by the Governor.  What follows is a summary of the present law enacted in 2010 and highlights of the changes proposed in the alimony reform bill.

Alimony Law Effective July 1, 2010:

The current legislation designates and describes the following types of alimony:

1. Bridge the Gap Alimony
2. Rehabilitative Alimony
3. Durational Alimony
4. Permanent Periodic Alimony
5. Lump Sum Alimony
6. Combination of the above

It also names and defines the periods of a marriage as follows from the date of marriage through the date the petition for divorce is filed:

1 - 7 years - short term
8 - 17 years - moderate term
Over 18 years - long term

Alimony requires a finding that the recipient spouse has a need for the alimony and the payor spouse has the ability to pay alimony. Therefore, the Court cannot award alimony if there is a finding that there is no need by the recipient spouse for alimony. Furthermore, the Court cannot award alimony even if there is finding that there is need by the recipient spouse, if the payor spouse does not have the ability to pay it. Florida Statues 61.08 (2) provides the factors for the court to consider when determining the type and the amount of alimony it is to award.

A short term marriage may require bridge the gap alimony, which term of payment may not exceed two years. A moderate term marriage may require either rehabilitative or durational alimony. Rehabilitative alimony requires a defined rehabilitative plan which can be terminated or modified if there is non-compliance or completion of the plan. Durational alimony can be awarded during a short term or moderate term marriage and cannot exceed the length of the marriage under any circumstances.  Permanent periodic alimony can be awarded monthly for the life of the payee. It may be awarded after a long term marriage and it may be awarded after a moderate marriage if the factors in Florida Statutes 61.08 (2) are applicable. It may also be awarded after a short term marriage if exceptional circumstances such as total permanent disability occurred during the marriage and the spouse can no longer work. Lump sum alimony is infrequently ordered and may be ordered at any length of marriage. It is likely used as an equalizing payment in the distribution of assets.

All types of alimony terminate upon the death of the payee. Furthermore, all types of alimony may be modified if a substantial change in circumstances occurs. The length of durational alimony may be modified only upon exceptional circumstances and it cannot exceed the length of the marriage. The parties to a divorce may agree to non-modifiable alimony. If so, then the Court cannot modify it. Furthermore, the Court does not have the authority to order non-modifiable alimony.

　

Highlights of the Alimony Reform Bill SB 718

In the Alimony Reform Bill, the type and length of marriage, as measured from the date of marriage through the date the petition for divorce is filed, has been proposed as follows:

1 - 11 years -  short-term
12 - 19 years - mid-term
20 + years - long-term

A major change in the proposed law is that permanent alimony is eliminated.  Furthermore, durational alimony cannot exceed 50 percent of the length of the marriage, except for exceptional circumstances, i.e., the spouse became disabled during the marriage and is unable to work.  It will eliminate the standard of living factor the Court considers when determining the amount of alimony to order. 

Other highlights of the proposed change consist of not including, when calculating the amount of alimony, sources of income that are acquired outside of the marriage and which were not relied upon during the marriage.  This contradicts the present law as currently these funds are used in the calculation of the alimony award. 

In addition there are limits on how much alimony can be paid based upon the length of the marriage.  In a short term marriage, the alimony award may not exceed 25 percent of the obligor's gross monthly income as calculated in Florida Statute 61.30(2)(a).  Whereas a mid-term marriage limit is 35 percent and a long-term marriage limit is 38 percent of the obligor's gross monthly income. 

There continues to be the ability to modify or terminate alimony upon a showing of a substantial change in circumstances; however, if modified, the modification must comply with the time limits and percentage restrictions above.  Furthermore, death or remarriage of the party receiving alimony will terminate it as well as it will automatically terminate upon the obligor's reaching the normal age of retirement for Social Security retirement benefits. 

Under the present law, the Court may not order that alimony be non-modifiable; however, the parties can agree to alimony being non-modifiable in their marital settlement agreements.  If the parties do agree to this then the Court cannot order a modification of alimony.  In the proposed legislation alimony cannot be non-modifiable.  Furthermore, if this legislation passes it's provisions will be retroactive.  That is, even those who have agreed to non-modifiable alimony would be able to modify their alimony obligations.  In fact, all those who are presently required to pay alimony would be able to modify their alimony obligations to comply with the new legislation and to do so would not require a substantial change of circumstances.

The proposed revisions to the current alimony law would be sweeping and wide reaching. If they are enacted, some of the provisions are subject to appeal of their constitutionality, particularly the provision that agreements between parties for non-modifiable alimony may be modified by the new legislation. 

Article By:  Lynette Silon-Laguna Google+

Is it necessary to file for bankruptcy?

Whether or not you must file for bankruptcy depends on your situation. If your get behind in your credit card debt or other unsecured debt then the creditor can sue you to get a judgment against you for the amount of the debt, plus interest, penalties and attorney fees. You will know when you are being sued as you must be personally served with a petition and you will have a certain amount of time to respond to it. All of the instructions for your response and to whom you must respond will be included in the summons attached to the petition. If you do not respond to the petition, then a default will be entered against you and the creditor will obtain a judgment on what it has requested in the petition.

That a creditor will sue you is a possible scenario; however, it is also possible if you don’t have a means to pay the creditor that it will write off the amount of your debt and not attempt to collect it. In essence, whether you will be sued or not depends on your ability to pay the debt back. If the creditor believes you’re unable to pay it back then it will not waste money paying an attorney his or her fees and costs to obtain a judgment and take the steps necessary to collect it.

If a creditor determines that it will be able to collect its judgment against you, then it will proceed with the action. Once it has obtained the judgment, the judgment will continue to accrue interest until it is paid. Furthermore, it will be listed on your credit reports and it will result in substantially reducing your credit score. Judgments will stay on your record for a certain amount of time depending on your jurisdiction, and even if the judgment is paid, your credit report will reflect that it is paid, but it will remain on the report for at least seven years. Furthermore, judgments can be renewed when they expire and the length of time depends on your state laws.

Collecting the Debt

In general, the creditor may do one or more of the following to collect the debt:

A. Require you to complete an information subpoena where you are required to answer detailed questions regarding your income, assets, etc. or you may be required to attend a hearing before the court to be questioned on your income and assets.

B. The creditor may place a lien on any real estate you own by filing a copy of the judgment in official records in the county where your property is located. When that property is sold, the lien must be paid to clear title to the property.

C. The creditor may garnish your wages up to a percentage regulated by state law.

D. The creditor may seize personal property which has value, such as a vehicle, antiques, bank accounts, etc. Pursuant to your state law a certain amount of personal property is exempt from the creditors

Every state has different regulations as to how a creditor may collect a judgment, the length of time the judgment is valid, the amount of personal property exempt from seizure and the percentage of your pay that can be garnished. Therefore, it is necessary to obtain specific information from an attorney where you live.

If your credit score has been demolished by unpaid bills, you have nothing to lose by filing bankruptcy. In actuality, bankruptcy is a new beginning and chapter 7 will wipe out all or most of your debts and often times you will be able to obtain credit again shortly after your discharge. Most bad consumer debt will remain on your credit report for 7 years whether paid or not, while paid or unpaid judgments may remain on your credit report for 7 years or longer depending on state law. Lenders are less likely to lend to you with bad credit, then to lend to you after a bankruptcy.

Article By:  Lynette Silon-Laguna Google+

Pets Matter in Divorce

Why Pets Matter In A Divorce

‎Saturday, ‎November ‎17, ‎2012, ‏‎3:18:24 PM | Silvana D. Raso

 

Many pet owners treat their pets as if they are their own children, whether it be a dog, cat, turtle or gerbil. For these owners, the pet is an integral part of the family. But owner beware: in my experience as a divorce attorney, the pet that you love and cherish on can easily be taken away from you in an instant if you are involved in a nasty divorce.

According to a quarter of respondents in a 2006 survey by the American Academy of Matrimonial Lawyers, pet custody cases have increased noticeably. So who gets Fido? If you think you are entitled to your pet because you think you love him/her more, you're barking up the wrong tree.

Your pet may be considered a member of the family but the courts think otherwise. In divorce cases, the harsh reality is that pets are treated as another piece of property that is being divided in the eventual settlement. Other factors such as veterinary bills, "visitation" rights to the pet, and miscellaneous expenses can turn a nasty divorce into a toxic one.

The best solution for you, your future ex-spouse and your pet is to settle custody and visitation privately to avoid having someone else with no emotional connections decide your pet's fate for you. How the custody is determined can vary greatly too. A judge in one case threatened to put a cat in the middle of a room and grant custody to whichever spouse the cat ran toward. The couple ended up determining custody privately.

Some couples cannot stand the thought of dealing with their ex and put the decision in the hands of the court. Before taking this leap though, here is what will be taken into consideration in a judge's decision:

Ownership: If one spouse owned the dog before the marriage, the dog will typically remain with that spouse when the marriage goes sour.

Primary care : If you are the one feeding your cat, walking your dog, cleaning after your fish or reptile, and can prove that you perform these tasks, then there is a better chance that the pet will remain with you. Additionally, if one spouse is never home due to a busy work or travel schedule, the other spouse is in a better position to claim the pet.

Best interests of the children: If a couple has children, the pets will go where the children go to prevent any further loss, pain or heartache.

Prenuptial agreement: If it was determined in your prenup who would get your pet in the event of a divorce, then there is no argument as to who Fido is going home with.

Remember, the court may not see your pet as a family member but you do. So when you introduce a pet into a marriage, consider all that is stake in the event of a divorce. Not only will you have a happier ending, but Fido will keep his tail wagging too.

Silvana D. Raso heads the family law practice at Englewood Cliffs, NJ-based Schepisi & McLaughlin, P.A. where she counsels clients in all areas of matrimonial and family law, including pet custody.

Financial Hardship and Bankruptcy: Don't use exempt from creditor assets to pay current debts.

Financial hardship can occur at anytime. No matter how secure your financial situation may presently be, you never know what the future may bring. Job security is an oxymoron. Your position may become outdated because of new technology, your position may be outsourced overseas, or the company you work for may suffer its own financial hardship and either liquidate or reorganize. If you are able to retain your position in the latter circumstance, you may receive a decrease in salary. The same applies if you are an entrepreneur and you are self-employed, which does give you somewhat more control over your destiny.  In addition, divorce can be extremely detrimental to your financial circumstances.

Once a job loss or self-employment income loss occurs, then it is very easy to start spiraling into a financial abyss. You have acquired a certain standard of living and debts to be paid, including essentials such as your rent or mortgage, car loans, food, utilities, etc. When you don’t have the funds to pay your debts then you may use your credit cards for current living expenses and payment of your essential debts, thus incurring more debt that cannot be repaid. Once you miss or are late paying a credit card payment, then you will incur late fees and if you continue to miss or are late on your payments your interest rate will increase astronomically resulting in your debt increasing exponentially, until there is no hope to pay it off.

Or instead of or in addition to using your credit cards to pay for your living expenses and debts, some debtors will take funds from assets that would be exempt in a bankruptcy and pay their essential debts such as the mortgage or rent, car loans, as well as unsecured credit card debt or other unsecured debt such as medical bills, so that they don’t fall behind. Examples of reducing exempt property to pay debts are obtaining second mortgages on homes where they reside, taking funds from retirement accounts and paying taxes and possibly penalties, or taking all or part of the cash value of a life insurance policy. Depending on your age or other cirecumstances, this can be disastrous to use funds that you need for retirement to pay current living expenses and unsecured debt.

Unfortunately, this occurs to many people who are devastated because they cannot pay their debts, although that they cannot do so most often is no fault of their own. It is important to know prior to this occurring how to protect and keep your property if you must file for bankruptcy. In short, do not use up assets that will be exempt in bankruptcy to pay your unsecured debt. Or do not pay off any secured debt which will make it a non-exempt asset. In example, do not pay off your vehicle. Either keep a loan that you have on it or get a loan on it. There has been a U.S. Supreme Court ruling in Ransom v. FIA Card Services decided January 11, 2011, that in short sets the precedence that a debtor who does not make a loan or lease payment may not take the car-ownership deduction in Paragraph 23 and 24 of the means test; however, the debtor may deduct the operating expenses in 22A. This may drastically change whether you will pass the means test and be eligible for a Chapter 7 bankruptcy, rather than a Chapter 13 bankruptcy,

If your credit score has been demolished by unpaid bills, you have nothing to lose by filing bankruptcy. In actuality, bankruptcy is a new beginning and if you qualify, chapter 7 will wipe out all or most of your debts and often times you will be able to obtain credit again shortly after your discharge. Most bad consumer debt will remain on your credit report for 7 years whether paid or not, while paid or unpaid judgments may remain on your credit report for 7 years or longer depending on state law. Lenders are less likely to lend to you with bad credit, then to lend to you after a bankruptcy.

Chapter 13 is available for those who do not qualify for a Chapter 7 bankruptcy, although there is a 60 month plan period.  This Chapter does have benefits that are not available in a Chapter 7 such as the ability to pay arrearages for secured property loans during the plan and preventing a foreclosure or repossesion of a vehicle. 

Call us today at (813) 672-1900 to schedule a free consultation to discover your options.  Visit our website at www.familymaritallaw.com for more information. 

By: Lynette Silon-Laguna Google+

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Modification of Child Support in Florida

If you are paying or receiving child support, then it is important for you to know that if you or the other parent has a substantial change in circumstances, you must file a Supplemental Petition for Modification of Child Support immediately upon the change. This applies to those who are residing in and out of Florida and have a Final Judgment or subsequent Order in Florida to pay child support. The reason for this is because any change in the payment will be retroactive to the date filed. So your child support will continue as it is currently ordered until the date a Supplemental Petition is filed regardless of the change in circumstances. You will, however, have to continue to pay the prior court ordered child support until an order has been entered modifying it, if any. The modified order will take into consideration that you have paid more or received less than the change of circumstances would warrant under the guidelines from the date the Supplemental Petition was filed to the date the order is entered.

In general, factors for modification of child support if you are the payee are as follows:

1. Your income has decreased or you have lost your job since the original order was entered. The decrease in pay or loss of job must be involuntary, so voluntarily reducing your income and changing jobs would not qualify. The Florida Child Support Guidelines in the Florida Statutes, Section 61.30 (1)(b), states that"... it may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.”

2. The other parent's income has increased substantially so that a change in the guidelines would be at least $50 or 15 percent of the current guidelines amount. The reason for this is because each parent owes a percentage of the total child support obligation depending on his or her income. If the other parent's income goes up, then his or her percentage of the obligation goes up and yours goes down.

3. The cost of the children's health insurance was included in the child support guidelines worksheet originally and the health insurance is no longer available.

4. The cost of daycare was included in the child support guidelines worksheet originally and the child is no longer in daycare. For this reason, we normally advise that daycare be separate from the child support guidelines if agreed upon by the parents, so that a modification is not necessary.

In general, factors for modification of child support if you are the payor are as follows:

1. Your income has decreased substantially or you have lost your job and the change in the child support obligation is sufficient to warrant a modification.

2. If the other parent's income has increased substantially and sufficiently to change the child support obligation pursuant to the statute.

Go to the following link for more information if you are paying through or your income is being deducted by the Florida Department of Revenue:

http://dor.myflorida.com/dor/childsupport/modification.html

www.familymaritallaw.com

Article By:  Lynette Silon-Laguna Google+