Contested divorce in Florida- What to Avoid

contested divorce in florida

Over my years doing divorces, I have learned which behaviors will lead to high legal fees in a contested divorce in Florida.  Although I’ve numbered them, they are in no particular order.

I’ve also included an explanation as to why these behaviors will not result in the intended outcome.

Behaviors that Make You Pay More

1)  The person who doesn’t want a divorce but their spouse does.  Florida is a no-fault divorce.  This means that if one spouse believes the marriage is over and wants a divorce, they will get it.  Fighting it, especially with a lawyer, will only lead to spending money to delay but will not avoid the divorce.

2)  The person who caught their spouse cheating and wants to use the courts to shame their spouse while going through a divorce, and thinks the spouse’s adultery will let them get a better equitable distribution.  Courts (Judges) are not going to engage in moral judgment, regardless of how they may privately feel about a party. In addition, the equitable distribution statute doesn’t provide for a greater division to the spouse that did not engage in adultery unless an asset (usually money) was spent in the affair.

3)  The person who has been married to a stay-at-home spouse and thinks that spouse should receive little or no assets because they didn’t contribute any hard-money to the marriage.  The spouse who has been a stay-at-home Mom or Dad has worked, although not received pay for that work.  The statutes take this into consideration in a divorce.  So whether they worked outside the home or not, they will receive assets from the marriage.

4)  The person who has put up with a lot, thinking the other spouse will change but doesn’t; then they want the divorce judge to compensate them for having put up with the spouse.  There is no compensation in divorce for “bad” behavior accepted throughout the marriage.  At best, there is just equitable distribution.

5)  The couples who don’t want to set child support even though it is a requirement in divorces with minor children.  The Florida divorce statutes require a court to establish child support.  Moreover, the right to receive child support does not belong to a parent.  So child support will be calculated.

6)  The parent in a divorce with minor children who doesn’t want the other parent to have any contact with the child.  Children have a right to the companionship of both parents when that is in the best interest of the child.  As far as Florida law is concerned, the recent changes to the timesharing statute makes clear that each parents starts out with a presumption of equal timesharing.

Dealing with Emotions in a Contested Divorce in Florida

These situations all involve emotions crashing against the realities of laws providing for a no-fault divorce, timesharing/child support, and equitable distribution.  Many divorce lawyers will be happy to accommodate these positions for a while, although no lawyer will guarantee the desired outcome.

The answer is a cold, hard look at what the law provides, and using a therapist to deal with the emotions brought about by these situations. 

There is nothing wrong with the emotions, but don’t let them make you pay more for a divorce than you have to.

A Better Way to Divorce

You can avoid contested divorce in Florida without giving up any rights.  You can start by educating yourself about your rights with a divorce lawyer. A consultation with a divorce attorney will save you money when you prepare yourself to get the answers to your questions and doubts.  Learning about all the options available for doing your divorce is better than just going into court to litigate.

Avoid Probate -An Easy Reminder to Check Assets

beneficiaries, life planning, probate

As we get ready for tax time, you have a perfect opportunity to do a check on your assets to see which ones can avoid probate. 

Ideally, you would look at fine tuning your estate planning if anything has changed since you did your last will and testament.  These changes can include your divorce, new or dormant accounts (whether bank, brokerage or retirement) that you haven’t looked at in a while, or simply do not remember how you set them up. This would allow you to correct any errors to ensure an asset will avoid probate.

What is Probate and what is Included/Excluded?

Probate involves the administration of the estate (assets and debts) of a person who has passed away, the deceased. It is a legal process to ensure that the assets of the deceased are distributed to their heirs, and legal debts paid.

When a person dies without a will, or intestate, probate will be conducted according to the instate statute.  In Florida, the intestate laws can be found here (in Part 1 of Chapter 732) of the Florida Statutes.

If the person passed away with a will, probate will be administered according to the person’s will.

Generally speaking, assets that have a designated beneficiary will avoid probate.  This is the case, for example, with retirement plans, life insurance policies, bank accounts, certificates of deposit, investment accounts. 

Real property may also bypass probate, depending on how the property is titled; however, real property issues related to probate are not discussed in this post.

The important thing to remember is that for an asset to bypass probate, it has to have a designated beneficiary.  That is, a beneficiary has to be named with the institution holding the asset as the person who will receive the asset when the owner passes away.

For example, you have a bank account at XYZ Bank; they hold your money in that account.  By designating a beneficiary for payment upon your passing away, the account does not have to go through probate in order for your beneficiary to get the money.  It is similar for investment accounts.

Using Year-End 1099 Forms as a Checklist to Avoid Probate

Anyone who paid you money during the year in excess of $600 is required to provide you a 1099 form regarding the income they paid you.

For bank accounts that paid you interest during the year, the bank may or may not send you a 1099 even if the interest was less than $600.  Even if you do not receive a 1099, you are still responsible for reporting any amount received as interest.  But this would be a good opportunity to check the beneficiary on all your accounts held at any bank.

For brokerage or investment accounts, institutions will send you a 1099 related to dividends received/reinvested during the year.  Here too, you have an opportunity to check for a beneficiary designation.

Retirement plans are different in that they do not send you a 1099; they send a different form later in the year.  You still get to designate your beneficiary in most cases.

2 Important facts about Assets that Avoid Probate

There are two facts you need to remember about these assets.

First, because the asset will pass outside your will, the gift will be immediate, as it does not need to be probated.  This means that you should make sure you have designated the beneficiary you want.

Second, you may want to consider designating a primary beneficiary and a contingent beneficiary.  The primary beneficiary will receive the asset if they are alive at the time of your passing.  If, however, the primary beneficiary is no longer alive when you pass away, then the contingent beneficiary will get the asset.  In this way, you don’t leave the asset without a beneficiary, which would cause it to go through probate as part of your general estate.

Conclusion

Florida law provides you an opportunity to avoid probate for many assets.  Making sure you have designated a beneficiary for them lets you take advantage of that opportunity.

This post is general information and not legal advice. If you have questions about your specific situation, you should consult an attorney to get legal advice for you.

Life Planning –Getting to Where You Want to Be in the New Year

Holidays, life planning

Life planning can be an idea that either scares you or excites you, depending on what you think about when you hear the phrase.    The good news is that life planning is all about setting a goal -or set of goals -for the near future, and the steps you need to take to realize those goals. It is not about planning every minute of your waking day.

Although the New Year is a perfect point for starting a life plan, you can start at any point during the year.  All you need is at least one goal that you really want to achieve, something that is important to you now.

Contents:

Life Planning and Unfinished Business

A natural place to start life planning is to take stock of whatever you have started but not finished. If, for whatever reason, you decide that any unfinished business is not important to you any longer, than you can close them out in your mind and begin with a goal that you now want to accomplish.

In terms of unfinished business, the only thing to watch out for is the habit of not finishing what you start.  A pattern of not finishing what you start will naturally lead to nothing being accomplished. It’s hard to accomplish a goal without taking steps to accomplishing it.

How to Start a Life Plan

Ideally, your life plan will include goals that are relevant to you in all areas of your life.  I find that to be an intimidating thought.  Some will tell you to create a vision.  Others will tell you to prioritize your goals.  Still others advice that you conduct a self-assessment.

I have found creating a vision to be useful.  It is nothing more than taking some time to think about what I want my life to look like in a year’s time—to envision a day in my life in the future.  Then, I work backward to establish a goal to get to what I have envisioned, and the steps I need to take during the year to get there.  I have found that when envisioning my life in a year’s time, there is usually one area that stands out; that is the area I build my plan around.  I don’t build detailed plans about every area of life; I also don’t write down more than 3 or 4 general steps.

I think the most important approach for starting a life plan is the one that will work for you.  Some people write very specific steps and reviewing weekly or monthly.  Other have a general idea or direction and follow it.

Stay Flexible

Like any planning, one has to remain flexible in the steps one has to take.  I’ve found that evaluating what I do in terms of my general steps is a more sane way for me to following a plan; and I prefer to follow the steps I set out as best I can.  When the year is up, it doesn’t matter if I followed each step I set out to the letter or if I varied it some.  I still get a version of what I envisioned.

Writing Your Life Plan for the New Year

Once you have a life plan, it’s time to write it down.  There are life plan books you can buy; and, of course, there are apps for that as well.

Whether to use pen and paper or a digital app is really a personal preference.  However, research suggests that using pen and paper makes it more likely that you will remember what you write down.  Personally, I’ve found this to be true as I write my life plan on a journal.

Why Plan?

If you’ve  read this far, you may be wondering about why make a plan.  You only need a plan if you want to accomplish something, want to keep focus on it, and minimize distractions.

Otherwise, my guess is that no plan is needed.  Below is a quote I love from Alice in Wonderland, which encapsulates the ideas of plans/goals pretty well:

“Alice: Would you tell me, please, which way I ought to go from here?

The Cheshire Cat: That depends a good deal on where you want to get to.

Alice: I don’t much care where.

The Cheshire Cat: Then it doesn’t much matter which way you go.

Alice: …So long as I get somewhere.

The Cheshire Cat: Oh, you’re sure to do that, if only you walk long enough.”

Conclusion

The approach of a New Year gives us an opportunity to set and accomplish goals important to us. Tying up unfinished business can be part of a life plan. On the other hand, life planning can be a useful tool to help you accomplish what you want, whenever you want.  Setting out steps to accomplish your goal(s) keeps you focused and minimizes distraction. 

Much of what I write during the year has to do with divorce and other legal documents.  As family lawyers, we know that our services to a client are not rendered in a vacuum.

You may come to us for a divorce or life documents because these are areas you need to take care of and fit within the idea you have of your life going forward.  This is a different perspective than seeing divorce as something that happens to you; or a last will you do ahead of time as opposed to forcibly facing our mortality.  I find this different perspective to be more empowering.

I share here the idea of life planning as a tool because I have found it useful throughout the years, and don’t get much of an opportunity to discuss it otherwise with my clients.

The path to a peaceful divorce

divorce in florida

If you are facing and dreading a divorce, it’s a good idea to keep in mind that every divorce can be a peaceful divorce.  The only exception would be a divorce in which there is domestic violence or abuse/neglect of children.  By definition a relationship with domestic violence is not even a peaceful or healthy situation, and the divorce process may be a difficult one.

Other people’s experience of divorce 

The divorce experience of people we know tends to shape our ideas as to what to expect in our own divorce.  For example, if you have relatives or friends who have told you about how difficult or combative their divorce was, then their stories can shape your idea of the divorce process.

You and your spouse can choose a different experience, shaped by your individual perspectives and goals.  If you have children, your shared concern for their well-being can shape a different type of divorce –less combative– as you both go your separate ways.

How to have a peaceful divorce

There are steps you can take to work on having a peaceful divorce.  Some are things you may need to do, which have nothing to do with the divorce process in the legal system. 

Others are things you should know about the process of divorce itself.  These include knowing your rights in a divorce and how the process works.  When you have knowledge about your rights in a divorce and how the system works, you have a framework to negotiate.  This knowledge provides you context for you to be able to navigate the system effectively.

Things you can do

Communication with your spouse is by far the most important thing you can address.  I am often contacted by people wanting an uncontested divorce, and yet they have not even discussed divorce with their spouse.

We may dread having the divorce conversation; thinking about it may lead to anxiety. The reality is that in order to have a peaceful divorce, we need to have that conversation, so we need to address the anxiety.  Sometimes, it may even surprise you to learn that your spouse feels the same way.

Other things you can do includes thinking about a good timesharing schedule for the children.  Discuss a timesharing schedule with your spouse that will work for the entire family, helps the children and yourselves.

Gathering paperwork and financial information is important.  This will help in reaching an agreement as to equitable distribution of assets and debt from the marriage.

Things you need to know

You need to know about the real legal process of divorce.  The real process of divorce for you will have nothing to do with what you may have heard from other people.  It’s also not what you see dramatized in movies.

Divorce court is designed to accomplish a very limited purpose: dissolve your marriage.  Part of dissolving your marriage includes making provisions for the well-being of minor children from your marriage, and dividing assets and debt. Divorce court may address alimony issues when either of you may need financial support from the other.

The courts and the Florida divorce laws prefer that you and your spouse reach an agreement as to these things.  When you do, your divorce is an uncontested divorce. The only thing you cannot agree to is to waive child support, if you have minor children of the marriage; some provision for child support must be made.

Your ability to work with your spouse to reach an agreement on everything related to your divorce is the real key to a peaceful divorce.  It is what will unlock a different divorce experience for you than those you may have heard from others.

When you and your spouse can’t reach an agreement, the path in divorce court is litigation.  This includes lots of deadlines to move you along to the ultimate destination: a divorce trial.  This path is the most expensive path, involving hourly attorney’s fees and possibly several hearings.  Of course, this is the path that makes divorce extremely expensive and tends to cause a lot of emotional turmoil for everyone involved.

Your next steps toward a peaceful divorce

Once you know about the things you can do and learn about the real landscape of divorce, you can take steps toward a peaceful divorce by communicating with your spouse.  You can explore options, including getting legal advice.  You can also narrow down the issues on which you and your spouse may not readily agree but can work on to reach an agreement.

I don’t think it’s an exaggeration to say that divorce litigation is not only brutal financially, but also emotionally.  Despite what you may hear from anyone else about “winning” a divorce, there are no winners in divorce litigation.

Conclusion

When facing a divorce, we may not realize that our ideas about divorce being a war may be based on the stories of our friends and family.  There are steps you can take to make yours a peaceful divorce.  These steps include steps you may need to take as well as things you may have to learn about the divorce process and the rights belonging to you, your spouse and your minor children from the marriage, if any.  Communication with your spouse will be important.  Lastly, litigation might be your last option, when all else fails.

For a specific assessment for your individual divorce situation, consider a case assessment session to explore things you can do and learning about your rights in a divorce. You can also call me at 305-710-9419.

florida-divorce-process

Making Sense of the Florida Divorce Process Before Getting Started

divorce in florida

Are you considering a divorce in Florida and feeling overwhelmed by the process? Don’t worry, you’re not alone. The Florida divorce process is indeed complex and can be confusing for those going through it for the first time. However, with the right information and guidance, navigating this journey can be made easier.

In this article, I will unravel the Florida divorce process and provide you with the essential information you need to know before getting started.

Table of Contents

Whether you are contemplating a contested or uncontested divorce, this article will equip you with the knowledge to make informed decisions and understand your rights throughout the process. I  will outline the steps involved, shed light on common misconceptions, and provide valuable tips to ensure a smoother divorce experience.

Divorce is never easy, but being prepared and having a solid understanding of the Florida divorce process can help alleviate some of the stress.

As you read this article, it’s important that you understand that I am not providing you legal advice—I don’t know anything about your individual circumstances so it is impossible to provide you, the reader, with legal advice.  All I am providing here is information, a bird’s eye view of the process of divorce in Florida.  For specific legal advice, you can contact me or contact a divorce lawyer in your area.

Let’s dive in and empower you during this challenging time.

Divorce laws vary from state to state, and Florida is no exception. Before initiating the divorce process, it’s crucial to understand the legal requirements in Florida.

In Florida, there are two main grounds for divorce: a marriage that is irretrievably broken or mental incapacity of one of the spouses. The majority of divorces in Florida are based on the marriage being irretrievably broken, which means there is no hope of reconciliation. It’s important to note that Florida is a no-fault divorce state, meaning you don’t need to prove fault or wrongdoing to obtain a divorce.

There is no ground for divorce in Florida based on adultery, abandonment of the home or any other ground based on either spouse being at fault.  The marriage is simply broken.

To file for divorce in Florida, either you or your spouse must have been a resident of the state for at least six months before filing. This means living in Florida as your home state, not being a resident for immigration purposes. 

Where to get a divorce in Florida

You can get divorce anywhere in Florida.  However, if your divorce is contested, than the appropriate county to file a divorce is the county where you and your spouse live as husband and wife. 

If you and your spouse are separated but agree to do an uncontested divorce, then you can get divorced anywhere in the State of Florida.

Types of divorce in Florida – contested vs. uncontested

In Florida, divorces can be classified into two main types: contested and uncontested.

A contested divorce occurs when you and your spouse cannot reach an agreement on one or more issues, such as child custody, alimony, or property division. In this case, the court will intervene and make decisions on these matters. Contested divorces are more expensive and take longer.

On the other hand, an uncontested divorce is when you and your spouse are in agreement on all aspects of the divorce, including issues related to children, alimony (if any), and property division. This type of divorce tends to be less time-consuming and less costly compared to a contested divorce.  In some counties, like Miami-Dade, we are doing uncontested divorces without a hearing.

It’s worth noting that even in an uncontested divorce, it may be wise to seek legal advice to ensure that your rights and interests are protected. An attorney can draft the necessary legal documents, and provide guidance to you throughout the process, and complete the process until the entry of the divorce decree.

Steps involved in the divorce process in Florida

The divorce process in Florida typically involves several steps. While the specifics may vary depending on the circumstances of each case, the following outline provides a general overview of a contested divorce:

1. Filing the Petition: The divorce process begins with one spouse filing a petition for dissolution of marriage. This document outlines the grounds for divorce and the relief you are seeking from the Court.

2. Serving the Petition: After filing the petition, the other spouse must be formally served with the divorce papers. This can be done through a process server.

3. Responding to the Petition: The spouse who receives the divorce papers must respond within a specified time frame, usually 20 days. The response can either admit or deny the allegations made in the petition.  Sometimes, the responding party may want to file their own counter-petition for divorce.

4. Discovery: The discovery phase involves gathering information and evidence related to the divorce, such as financial records, property appraisals, and child custody evaluations. This phase may also include depositions and interrogatories.  It is important to know that Florida has rules which require disclosure of some basic documents.  Moreover, each party in a divorce can request additional documents as necessary.

5. Mediation: In many Florida counties, mediation is required before a divorce case can proceed to trial. Mediation is a process where a neutral third party helps the spouses reach a mutually acceptable agreement on issues such as child custody, visitation, and property division.

6. Temporary Orders: During the divorce process, it may be necessary for you or the other party to obtain temporary orders to address immediate concerns, such as child custody, support, and the use of marital assets. These orders remain in effect until the final divorce decree is issued.  To obtain these orders, motions need to be filed and hearings will take place to make decisions if the parties cannot agree.

7. Final Hearing or Trial: If you and your spouse are unable to reach a settlement through mediation, the case will proceed to a final hearing, a trial. The final hearing allows you both to present evidence and to the judge assigned to our case, who will make decisions on contested issues.

8. Finalizing the Divorce: Once all issues have been resolved, either through settlement or a decision from the judge a final judgment of dissolution of marriage is issued. This judgment outlines the terms of the divorce, including child custody, support, alimony, and property division.  If you and your spouse settle at mediation, the final judgment will incorporate the terms of your agreement.

Many of the steps above will not usually necessarily apply to an uncontested divorce. For example, there is no service of process, no discovery, no mediation, no temporary hearings to get temporary orders, and no final hearing (meaning no trial).

Filing for divorce in Florida – documents and fees

To file for divorce in Florida, you will need to file the petition and a financial affidavit.  In addition, there are other documents which are notices to the court of, for example, related cases between the parties, and social security numbers.

In addition to the required documents, you will have to pay a filing fee to the court to open the divorce.  This fee is usually in the range of $407 to $409, and specific to each county.

If you are doing your own divorce, you are responsible for preparing the appropriate documents required for filing your divorce. If you hire a divorce attorney to represent you, your attorney will prepare the required documents, ensure that you comply with other applicable requirements, and file the case.

Serving divorce papers and the response from the other party

Once the divorce petition is filed, your spouse must be served with a copy of the documents as filed.  This ensures that they are aware of the divorce proceedings and have the opportunity to respond.

Serving divorce papers is done through a process server when you know the whereabouts of your spouse.  If you don’t know how to find your spouse, then the process is different and involves a divorce by publication.  Regardless, it’s crucial to follow the proper legal procedures when serving the papers to ensure that they are valid and legally binding.

After being served with the divorce papers, then your spouse must respond within 20 days. The response can either admit or deny the allegations made in the petition. If the response is not filed within the required time frame, the court may proceed with the divorce based on the information provided in the petition.

As with filing the petition, you are responsible for making sure all requirements as to service of process—which is what serving your spouse is called—are met.

Negotiating and settling divorce issues

One of the most challenging aspects of divorce is negotiating and settling the various issues that arise, such as children’s issues, alimony, and property/debt division. These issues can be emotionally charged and require careful consideration.

When it comes to children’s issues, Florida courts focus on the best interests of the child. The court may consider factors such as the child’s age, health, and relationship with each parent before making a decision. It’s important to approach negotiation regarding children’s issues with a focus on the child’s well-being and be willing to compromise to reach a mutually acceptable agreement.

Alimony, also known as spousal support, may be awarded in certain cases where one spouse requires financial support from the other.  Florida alimony laws were recently amended. 

Property division in Florida follows the principle of equitable distribution, which means that marital assets and liabilities should be divided fairly.  Although the division starts out equally, there may be factors which make the court divide assets (and debt) unequally. It’s essential to compile a comprehensive list of marital assets, such as real estate, vehicles, bank accounts, and retirement accounts, and work towards a fair division of these assets.

Mediation and the role of the mediator in the divorce process

Mediation is a crucial step in the Florida divorce process. It is a voluntary process where a neutral third party, known as a mediator, helps the spouses reach a mutually acceptable agreement on issues such as child custody, visitation, alimony, and property division.

The mediator’s role is to facilitate communication between the spouses and help them explore potential solutions to their disputes. The mediator is not a judge and therefore does not make decisions.  Instead, the mediator assists you and your spouse in finding common ground and encourages compromise.

Mediation can be a cost-effective and less adversarial alternative to going to court. It allows the spouses to maintain control over the outcome of their divorce and find solutions that work best for their unique situation. It’s important to approach mediation with an open mind and a willingness to negotiate in good faith.

Going to court – what to expect during divorce hearings

If you and your spouse are unable to reach a settlement through mediation, the case will proceed to trial. Going to court can be a daunting experience, but knowing what to expect can help alleviate some of the anxiety.

During court hearings, both parties will have the opportunity to present their arguments, evidence, and witnesses to support their case. The judge will listen to both sides and make decisions based on the evidence presented and the applicable laws.

It’s important to be prepared for court hearings by having all necessary documents, evidence, and witnesses ready. Neither you nor your spouse may be happy with the ending after a trial.  That’s because a party’s idea of what the outcome should be is rarely the actual outcome they get.  It’s impossible for me to detail what happens in a trial because the issues between the parties dictate what evidence and witnesses need to be presented.  Real-life trials are not like anything you see on TV and movies.

Finalizing the divorce – obtaining the divorce decree and post-divorce considerations

Once all issues have been resolved, either through settlement or court hearings, a final judgment of dissolution of marriage is issued. This judgment outlines the terms of the divorce, including children’s issues, child support, alimony (if any), and property division.

Obtaining the divorce decree is the final step in the divorce process. It signifies the legal end of the marriage and allows both parties to move forward with their lives. It’s important to review the divorce decree carefully to ensure that it accurately reflects the agreements reached or the dictates of the court, and that all necessary provisions are included.

After the divorce is finalized, there are several post-divorce considerations to address. These may include changing your legal name, updating your identification documents, updating beneficiary designations, and revisiting estate planning documents.

It’s also important to take care of your emotional well-being after a divorce. Seeking support from friends, family, or a therapist can be beneficial during this transition period.

What if you can’t find your spouse?

Sometimes couples separate and put off the divorce.  After the separation, one or the other spouse moves away and they lose track of each other.  If you wish to get a divorce but cannot locate your spouse to serve them, you can still get a divorce.  In this case, your divorce will take a bit longer but less than a contested divorce.  A divorce by publication is the process for getting a divorce when you don’t know where to find your spouse. Besides publication, there are additional steps to take before obtaining a divorce decree.

Conclusion

In conclusion, the Florida divorce process can be complex and overwhelming, but with the right information and guidance, you can navigate it successfully. By understanding the legal requirements, types of divorce, steps involved, and key considerations, you will be better equipped to make informed decisions and protect your rights.

Remember, divorce is a challenging time, but being prepared and having a clear understanding of the process can help alleviate some of the stress. Consult with a family law attorney whose practice concentrates on Florida divorce laws to ensure that your interests are protected and to guide you through each step of the process.

If you need help

If you’d like a case assessment session about your divorce situation, please call 305-710-9419; email vivian@viviancrodriguez.com, or complete this form to ask me to call you..

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Florida Durable Power of Attorney-Top 3 Mistakes

florida durable power of attorney

A Florida durable power of attorney is a really powerful document that can allow a person to act for you and to make decisions about your finances and health issues.  There are many mistakes you can make regarding a durable power, but in this entry I cover what I know are the top three mistakes people make when looking to do a Florida durable power of attorney.

First, let’s look at some definitions as to who is signing the power and who is acting under the power.  You are the principal in a power of attorney if you are the person who will sign the durable power of attorney in favor of someone to act on your behalf.  The person who will be acting on your behalf and is designated in the power, is the agent or attorney-in-fact.  Of course, being an attorney-in-fact is not the same thing as being an attorney, unless the person who is designated as an agent happens to be a licensed attorney.

Mistake #1 – Lack of Legal Capacity to Make a Durable Power of Attorney

As a principal you must have legal capacity to sign a durable power of attorney.  This means that you must have the mental capacity to understand what you are doing, the decisions you are making under the power and the consequences of the appointment under the power.

Questions as to the capacity of a person to sign a durable power of attorney may be present when, for example, the person has had a stroke, has the beginnings of dementia or Alzheimer.  In the worst case scenario, the principal is already incapacitated and a determination of mental capacity may be difficult.

It is important to have a durable power of attorney and other legal documents in place before we actually need them.  That’s because it is impossible for any of us to know if we will suffer health issues which may incapacitate us, to the point where we lose the ability to make these provisions in a timely manner.

I recently had a consultation related to a divorce where the prospective client had indicated that the spouse was willing to sign but could not sign.  In asking additional questions, it appears that the spouse had health and mental issues that prevented them from signing.  Yet, there appeared to be a document described as having been signed by witnesses and notarized, but not signed by the principal (the other spouse).  To me this is clearly not a valid document as described, regardless of whether it is titled as power of attorney, which brings us to the next mistake.

Mistake #2-  Powers of Attorney Not Signed by the Principal and Signed by the Agent

As a principal, you must sign a durable power of attorney. In addition, two persons must sign as witnesses to your signing the durable power of attorney. A notary must acknowledge your signature.  On the other hand, an agent cannot sign the durable power of attorney, not even as a witness.

These types of mistakes are not common when an attorney prepares your documents since we also provide detailed instructions for signing or assist you in a signing appointment.

Mistake #3 – Mistaking a Florida Durable Power of Attorney for a Will

Your Florida durable power of attorney will be effective so long as you have not passed away.  A durable power of attorney ceases to have validity once the principal has passed away .  As a result, once you pass away, your agent can no longer act for you, such as, for example, transfer property to your heirs.

This is why you should also have a testamentary will in addition to a durable power of attorney. A testamentary becomes effective one the maker (the testator) is deceased.

An agent using a durable power of attorney after the principal has passed away maybe opening themselves to liability.

Durable powers of attorney can be used unscrupulously if an agent is not carefully chosen.  Florida had the Department of Elder Affairs has Elder Protection Programs that can help you or help family members protect elders.

If you have any questions about durable powers of attorney, or last wills and other life documents, call us at 305-710-9419.

florida family law changes 2023

Florida Family Law Changes You Should Know About (2023)

alimony in florida, florida family law, timesharing in florida

Florida family law changes took effect recently.  Here you have the highlights of some significant changes to alimony and timesharing.

Please note that the online statutes, which you can find here from the Legislature have not been updated as of the date of this blog entry. 

Alimony in Florida 2023

The most significant change in alimony law in Florida is the elimination of permanent alimony.  You can still ask for bridge-the-gap alimony; or rehabilitative alimony, which is now capped at 5 years.  The legislature added temporary alimony to the alimony statute. 

The amendments made significant changes to durational alimony.  The provisions now include a cap as to how long you can get it, depending on the length of the marriage. It also added a formula or guideline as to the amount that you can get, which is to be calculated using your net income and that of your spouse.  Specifically, the cap is 35% of the difference in net income as calculate using the same formula as child support for calculation of net income.

Finally, which type of alimony you can claim will depend on how long you have been married.  A short-term marriage is defined as anything less than 10 years; a moderate-term marriage is one that lasts between 10 – 20 years; and a long-term marriage is 20 years or more.  Durational alimony cannot be granted in a marriage that has lasted 3 years or less.

There were no changes as to when you can ask for alimony, meaning that just being married, alone, is not the requirement that will get you alimony. If you are asking for alimony, you have to prove that you have a financial need for it.  It is not just a question of checking boxes and asking for the particular alimony you think you qualify for.  Additionally, you must also prove that your spouse has the financial ability to pay alimony.

Florida Family Law Changes to Timesharing

There is now a presumption of 50-50 timesharing when it comes to children in divorce or paternity.  This presumption can be eliminated if you show the court that such a 50-50 timesharing would not be in the best interest of the children.

New Support Statute for Dependent Adult Child

The Legislature created a new provision for the support of dependent adult children, Section 61.1255. 

Under this Statute, parents have a legal obligation to support an adult child who is dependent due to a physical or mental incapacity that began before the age of 18. This is really not a new obligation since this obligation was already recognized under Florida case law.  This new statute provides a framework, or guidance, as to how to calculate the financial obligation.

In addition, the statute is designed to work in furthering the right of a dependent adult child to obtain and/or qualify for any available federal/state benefits programs.  It explicitly provides that the child support guidelines used for establishing child support before the age of 18 do not apply.

You can file a suit under this statute at any time after the dependent adult child reaches the age of 17 years and 6 months, unless there is already an order of support in place.  Any support ordered to be paid under this statute would be paid to the dependent adult child, or an agent of the child under a durable power of attorney, or a aren’t or other person for the benefit of the dependent adult child.

Conclusion

These Florida family law changes caused quite a bit of disagreement with some.  By knowing about them, you can better prepare yourself. Those of us who practice family law have been busy with seminars to ensure that we are up to speed on what our clients may need.  While I provide the above as a summary of the changes you should not rely on what I described above.  You should consult a family law attorney in your area to provide you specific advice, tailored to your situation, if you have any questions about this changes and how they may impact you.

money-divorce-fees

Divorce Fees: How to Avoid Spending $15,000 in Your Divorce

florida divorce fees

Paying high divorce fees is usually the result of not understanding how divorce actually works in the legal system.

On Monday, I represented a client in a divorce trial.  This couple is not a wealthy couple.  They are hardworking people with decent earnings, and they have older children.

At trial the Husband testified that he estimated he spent between $10,000 and $15,000 in legal fees.

Because of scheduling issues related to the pandemic and the court, this divorce took almost two and half years to get to trial.  Technically, the case is not over yet because the judge has to issue the final judgment, letting the parties know how he will divide the marital property and debt.

I represented the Wife.  She tried repeatedly to settle the case by keeping less property and keeping more debt.  She wanted the case to be over.  As far as I’m concerned, she was the more reasonable party, not because she was my client; but because she understood how long a divorce can take to go to trial.  She also understood the cost in time and money only to end up waiting for a stranger—the judge—to make decisions about her life with only a few hours of information gathered from the evidence presented.

Avoiding High Divorce Fees

Many couples headed for divorce misunderstand the divorce process as to cost and available options.

These misunderstandings include:

  • Divorce trials are very expensive.  It is not about legal fees only.  It is also about the cost of getting evidence to prove your case. Trials are not decided only on what you say—your testimony—or on any old paper related to your assets or debts.  You have to go through a process to get documents that can be admitted into evidence.  To get these papers, you have to pay to serve subpoenas for those documents, and then pay the company or party for the cost of providing those documents.

The above process is just preparing for trial.

  • Second, before you get to trial, there are all sorts of problems between you and your spouse that may force you to go to hearings before a trial.  Hearings are a lot like mini-trials.  That means more legal fees, more costs, etc.
  • Divorce laws and judges give you a way out of expensive divorces.  Our Florida divorce laws let you short-circuit the divorce process by entering into an agreement.  What’s more, judges require you to go to mediation before trial.  Mediation gives you an opportunity to settle the case before you go to trial.   This will save a lot of time and possibly a lot of money in fees and costs.

But you don’t have to wait to be ordered to mediate in your divorce.  You can do a settlement before you even get into court.  Or even after the divorce is filed but before getting an order for trial.

Getting Your Divorce Done Without a Trial

The process to getting your divorce done without a trial is what an uncontested divorce is all about.  Uncontested divorces are all about negotiating with your spouse, either directly or with a lawyer helping you.

An uncontested divorce doesn’t mean you give up rights or necessarily get less.

It does mean that you know what your rights and obligations are under the law.  For this, you will most likely need a divorce lawyer.  It also means that you make decisions about your divorce keeping in mind those rights and obligations.  And then you negotiate, keeping in mind that neither you nor your spouse will have a great likelihood of getting everything they want in a trial.

There is a Spanish saying that roughly translates to “a bad deal is better than a good lawsuit.”  I have to agree with that, even though I make my living as a divorce lawyer.

Conclusion

You have options for your divorce, other than just opting for a long and expensive process.

If you are considering a divorce and want to explore your options for an uncontested divorce for a flat fee, please visit MiamiDivorceOnline.com.  You can read about how to get it done without a trial, and even make an appointment right on the page to discuss if this option is available to you.

On the other hand, if you suspect your spouse will litigate no matter what, consider a case assessment session to evaluate your situation.

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Online Divorces – What They Are and How to Do Yours

divorce in florida, Uncategorized

Online divorces are possible thanks to the courts continuing to adopt technology.  When you understand what a true online divorce is, you can take advantage of the technology for your divorce. The idea is not only to streamline the judicial system, but to better serve those who have to use the system.  As with anything legal, though, online divorces are not just a matter of touch or click options provided.

What are online divorces?

Below you will find examples of situation when an online divorce may be advertised.  What they all have in common is that the divorce is one that is uncontested; that is, there is no litigation.

The definition of an online divorce will depend on what you, the party looking to get a divorce, is looking for.

Examples include the following:

  • Doing your own divorce – If you are looking to do your own divorce, you will find businesses who prepare forms advertising their online divorce services.  Their version of online divorces is one in which they provide you completed documents, and you do the rest, including filing the divorce.
  • Doing your divorce with an attorney but going to court – In this situation, an attorney prepares all your paperwork without you having to go into their office.  On the day of the hearing, you appear in court with the attorney.  This is usually found in Florida counties that do not provide the ability for an uncontested divorce to be done without a hearing.
  • Doing your divorce with an attorney with no court hearing – In this example, all the paperwork is prepared without you going into the attorney’s office and also without having to go to a court hearing.  Several counties in Florida offer this option.

Requirements for an Online Divorce

Online divorces are divorces are all about a “how” to get it done.  It is about the processing of your divorce through the legal system.

An online divorce still has the same requirements as a divorce for which you have to appear in court.  If you have minor children of the marriage, you must still satisfy the requirements of a parenting plan and setting child support.  If you have property and debt of the marriage, you must still divide those during the divorce.  Of course, the Florida residency requirement must also be met; you have to be living in Florida for at least 6 months before filing.

If you and your spouse enter into an agreement, then your divorce is uncontested and a great candidate for an online divorce.  If you have children, you and your spouse agree on a parenting plan and set child support, and also agree as to how to divide property and debt, you also have a divorce that is a great candidate for an online divorce process.

Where to Get an Online Divorce in Florida

Online divorces are not available in all Florida counties.  Sometimes you can get an online divorce in another county, even if your county does not offer that process. To find out if your county offers it, you would have to check with your local family court.

The Biggest Benefit of Online Divorces

Doing your divorce without having to go to court is already a great benefit.  Doing them for a flat fee instead of having to pay hourly fees is even better.  The combination of an online divorce for a flat fee provides you the benefits of less stress, a quicker divorce, a no hourly legal fees.

Conclusion

The bottom line is that online divorces are legitimate if your county divorce court offers it, and you and your spouse want to work together to get it done.   Or if you can get it done in another county in Florida.

If you would like to find out more about our flat-fee Florida online divorces, without a court hearing, regardless of where you live in Florida, visit Florida Divorce Online from Anywhere in Florida.

If you live in Miami-Dade, Broward or Monroe Counties, Florida, and want to find out about our flat-fee online divorce with no court hearing, visit MiamiDivorceOnline.com.

Contested or litigated divorces cannot be done without court hearings.  If you are about to face a contested divorce you can ask for a case assessment session to find out about your rights and what you are facing in your divorce situation.

When to Use a Divorce Lawyer or Mediator

divorce lawyer, mediation

In a divorce, some couples ask themselves whether they should use a divorce lawyer or mediator.  A divorce lawyer is not the same as a divorce mediator.  Their roles in a divorce are different.  What’s more, a divorce lawyer and a mediator are sometimes present in the same divorce.

Should You Use a Divorce Lawyer or Mediator?

divorce-lawyer-or-mediator

As with most legal questions, the answer depends on your specific situation, the relationship with your spouse, and what you each want to accomplish. On the one hand, mediation can help you avoid litigation and do an uncontested divorce.  On the other, a divorce lawyer can help you with an uncontested divorce.

Below you will learn the difference between a divorce lawyer and a mediator.  Understanding the difference between them and their role in a divorce, will help you decide which to use.

The Role of a Divorce Lawyer

A divorce lawyer in a divorce represents one party.  Your lawyer can only represent you in your divorce, they cannot also represent your spouse. 

This is true even when you have an uncontested divorce.  If you have an uncontested divorce, your lawyer may represent you and do the divorce documents for an uncontested divorce.  In this case, your spouse may choose not to use a lawyer; but the lawyer doing the documents on your behalf only represents you.

If, for whatever reason, your uncontested divorce becomes contested, your divorce lawyer will represent your interest in the case.  They will take steps to secure your rights to property, and your rights as a parent.  At trial or final hearing of your divorce, your divorce lawyer will only represent you.

The Role of a Divorce Mediator

Divorce mediators are trained as neutral professionals to help you and your spouse communicate with the goal of reaching an agreement in your divorce.  A mediator cannot represent either party. 

In Florida, many divorce mediators are also divorce lawyers.  A mediator is prohibited from providing legal advice during a mediation even if the mediator is also a divorce lawyer.  When you attend mediation, with or without your lawyer, the mediator cannot provide you any legal advice, even if the mediator is also a divorce lawyer.

In Florida litigated divorces in Miami, you and your spouse will be ordered to attend mediation before a trial or final hearing date.  The idea is to provide you and your spouse one last opportunity to reach an agreement to avoid a trial.  Trials are expensive.  Trials also take longer, and can cause delay in getting the time needed on a judge’s calendar.

When to Use a Divorce Lawyer or Mediator

You can use mediation before filing your divorce in court. At this mediation, you can also use a lawyer to represent you or mediate without a lawyer. It’s important to understand that your spouse must also agree to mediate.  If your spouse does not agree to mediate before filing for divorce, then you must file for divorce.  If you reach an agreement, your divorce will be an uncontested divorce, and be resolved much faster than a litigated divorce.

As mentioned above, a judge will order you and your spouse to attend mediation before giving you a trial date in your case.  In this case, if you reach an agreement during mediation, then your divorce will also end as an uncontested divorce.

Conclusion

You can use a divorce lawyer or a mediator depending on your case.  If you and your spouse have an agreement, you can use a divorce lawyer to do an uncontested divorce.  In this case the lawyer will represent you and do the documents with the terms you want.  You can also choose mediation before filing the case in court because you do not have an agreement; but your spouse must also agree to mediate.  Lastly, you can file for divorce with a divorce lawyer if you do not have an agreement, and your spouse does not want to mediate.

As a divorce lawyer, I can provide uncontested divorce services as well as representation in a litigated divorce.  If you would like more information, please call 35-710-9419, or provide your information for me to contact you.