Retirement that is earned during any marriage is considered a marital asset unless the parties have a prenuptial agreement that addresses it. In Florida, we use a coverture fraction to determine what portion of the member’s retirement can be allocated to the spouse. You first start with the number of months the parties were married during the service time. That number is divided by the total number of months of service the military member has accrued. If the member hasn’t retired by the time of the divorce, then that number is determined when the member retires. There will be a percentage once you do the division. That percentage is the overall percentage of service during the marriage. That number is then divided by 2. The resulting percentage is then multiplied by the monthly retirement award. Keep in mind that many servicemembers will receive a disability rating that converts their retirement to disability. That disability is not considered an asset and cannot be awarded to the spouse; however, it can be considered a source to pull alimony, child support or attorneys fees.
For example, a couple is married for 10 years (120 months) of the members’ service. The member serves 20 years (240 months). You divide the 120 by 240 and get 50%. You divide that by 2. The spouse would receive 25% of the member’s monthly retirement. The only way to secure that retirement is if the member designates the spouse as the Survivor Benefit. The parties pay the amount from the gross pay before the retirement is divided and that ensures the spouse continues to receive that portion even if the member dies first. The amount is currently at $234 per month. Some people think that is expensive since it is to ensure the retirement. Some choose not to do that and simply get a life insurance policy.
If the parties are not married for ten years, DFAS (Defense Finance and Accounting Services), will not create a separate account for the spouse and send the retirement directly to them. The spouse would have to get it from the member.
Can a spouse file for legal separation in the state of Florida? Not often can an attorney give a straight black and white answer, but this is easy. No. Florida is one of 6 states that do not recognize legal separation. It doesn’t end there though. Florida does have different ways to get relief without filing for divorce.
You can file a Petition for Alimony or Child support unconnected with a divorce. (Pursuant to Florida Statute section 61.09) This allows the parties to appear before a court or by agreement and establish either alimony or child support without divorcing the parties. Why would someone do that? Typically, people may not want to divorce for financial, emotional or religious views. This action can in fact establish child support or alimony.
Another way to establish property rights or issues of support,they can enter into a post nuptial agreement. What is a post nuptial agreement? You may have heard of a pre-nup, or pre-nuptial agreement. A pre-nuptial is a binding contract entered into by two spouses before their marriage. It can protect one or both spouses property in the event that the marriage ends in divorce. A post-nuptial agreement can do the same thing, but it is an agreement entered into after the marriage.
I did say I could give a straight answer, but I guess not. In law there are almost always exceptions to the general rule.
The family law Pretrial Order in Escambia and Santa Rosa counties has changed effective September 1, 2020. There is no longer a provision that requires equal time until you can see a Judge. No longer are there fall back holidays. How does that impact you? If you are contemplating a divorce, the new order essentially means that the parents still have equal access to the children, but there is no bright line as to how to share the children. With the lack of schedule, it may mean some parents refuse to allow the other one time sharing at all. If this happens, it will not be favorably look on by the Court. If you are thinking about a divorce or other family law matter, contact our firm to schedule a consult. We have been helping Good People at their Worst Time for over 21 years.
Below is the link for your review.
Brick & Mortar or Virtual School? That seems to be the question that parents everywhere are faced with. Even more difficult is when the parents are no longer together. There is no bright line rule as to how the children will attend school. Many parents are filing different motions to make their choice, the choice. It comes down to whether the children are high risk or if someone in the family is high risk. What I’ve seen is Judges continuing the status quo. Just like we have personalized parenting plans, it boils down to each child’s individual needs. Try to remember that you and the other parent probably had a good relationship before the pandemic, don’t let it ruin it.
When you find yourself contemplating a divorce, one of your questions will be, “Which debts do I have to take?” In Florida, we are an equitable distribution state. That means there is no bright line showing the court how to divide the parties’ property. In some cases, the division of debts and assets are not always 50/50. In Community Property states, (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska is an opt-in community property state that gives both parties the option to make their property community property.), there is a bright line rule. Property and debt are divided equally, period. But since we are in Florida, division can be divided unequally depending on various factors.
Credit cards like any debt incurred during the marriage is considered a marital debt, even if one spouse didn’t know about it. A debt will not be considered marital if it was for a non-marital purpose, such as a paramour,or a strip club. Ultimately though, the party’s legal responsibility for a debt boils down to who is the card holder, not just an authorized user. The credit card company can only pursue the card holder. Many times the Court will allocate a credit card debt in the division of property to the non-card holder. It may ultimately be enforceable if the card holder pays the debt and then sues the other party. I always suggest to my client to take their own debt and we can sort out the rest, because the last thing a party wants is to rely on their now ex-spouse to pay their credit card. It can ruin your credit.
The linked article sheds light on a area of law that is becoming more common, sperm and egg donation. More women are waiting later to have children. When my mother was younger, it was normal for women to get married in their teens and become parents in their late teens early 20’s. This may be why infertility treatments weren’t as utilized as it is now. There was no need. A woman’s fertility doesn’t decrease until her late 20’s, but when she reaches 35, her ability to have a child decreases more quickly. According to reproductivefacts.org, “Each month that she tries, a healthy, fertile 30-year-old woman has a 20% chance of getting pregnant. That means that for every 100 fertile 30-year-old women trying to get pregnant in 1 cycle, 20 will be successful and the other 80 will have to try again. By age 40, a woman’s chance is less than 5% per cycle, so fewer than 5 out of every 100 women are expected to be successful each month.” Everyone knows that men can father a child well past that of a woman, some fathering children well into their 70’s.
Then there is the issue of how can a woman who wants to get pregnant, achieve pregnancy. In the state of Florida, sperm donors have no legal claim to their offspring. In fact, the father may not know how many times his sperm is used or not. If you are a woman who wants no contact with the father of your child, this is the route to take. The consequences of obtaining sperm in any other method will subject you to the father’s potential claim to establish paternity. It won’t even matter if the father waits years after the child is born to establish his rights. Until 2018, a married woman who became impregnated by a man other than her husband, could block the biological father’s rights to the child at all. Florida’s Supreme Court held in 2018, in Perkins v. Simmons, that a biological father does have the right to establish paternal rights to a child conceived to a married mother.
When determining how to become a parent, choose wisely.
The new Tax Cuts and Jobs Act (TCJA), cuts both ways on the issue of alimony. If you are a paying spouse, new divorces that are final post 12/31/2018, cannot deduct the alimony paid on their tax return. If you are a receiving spouse, the alimony payment you receive (if entered or modified post 12/31/2018, is no longer taxed. So, if a spouse is ordered to pay $1200 per month, $1200 is actually what will be received.
It will be interesting to see how the new law is received once its terms become effective.
In Florida, once your child graduates highschool and turns 18, he or she are on their own. There is no requirement that either parent pay for college. However, if you are that parent who can help, the path is not clear for how to get financial aid.
The following are tips to help you navigate:
1. The parent where the child has lived the most for the past 12 months is the parent who files for aid.
2. It doesn’t matter which parent claims the child on their taxes. (Refer to #1).
3. If the parent where the child lived the most remarries,you have to include the step-parent’s income on the financial aid form.
4. Same sex parents are subject to the same rules.
5. Some colleges require both parents’ incomes even if divorced. Follow this link for the list:https://profile.collegeboard.org/…/part…
6. If the child lived equally with both parents, the parent who spent the most on the child’s care is the parent who fills out the form.
The following links are helpful.
To Collaborate or not to Collaborate,
that is the question.
Many have heard about the new collaborative divorce process available in Florida and other states. The claims from attorneys who advocate for this type of law believe that the new process is cheaper, avoids the uncertainty of a court’s decision and avoids the nastiness which comes with a contested proceeding.
I must debunk the notion that collaborative divorce is cheaper than a regular divorce. The filing fee for a collaborative divorce and a regular contested divorce cost the same. Each spouse hires an attorney. Each spouse has to pay the attorney. Sometimes both spouses and both attorneys meet together. It still costs each attorneys’ hourly rate to do so. It is true that in a collaborative, you try to agree on an expert rather than hiring two, such as a CPA. You still have to pay the CPA though. In a collaborative divorce, the emphasis is on settlement rather than litigation. That ideal certainly benefits the spouses and their children, if they have any. Collaborative should reduce the animosity the parties experience in a contested divorce. However, a contested divorce, the parties will still attend a mediation before a trial is scheduled. Collaborative divorces also attend mediation and yes, it costs the same.
Any time two spouses settle their divorce, they avoid the uncertainty of a Judge’s decision. Again, in a regular contested divorce, the parties attend mediation where settlement can occur. It all depends on the parties.
When two people are divorcing, clearly they have problems with each other. Requiring them to meet often in the same room with therapists, attorneys and experts, may just throw gasoline on the fire. If two married people can be civil during their divorce, there is no reason why they cannot direct their attorney to try settlement.
The ultimate downside to collaborative divorces: If you fail to reach a settlement- You cannot use your attorney or experts you hired. You have wasted all that money and time. You literally start over. You and your spouse have to hire new attorneys. My goal is for the best outcome, via settlement or trial.In the 18 years of practicing law, I’ve had hundreds of divorce cases. Only 3, were truly uncontested. Those 3 couples literally agreed to each issue. The rest fell somewhere between settling or trial. The majority of the cases will settle. I don’t recommend Collaborative Divorce because ultimately it can cost you twice what a regular case costs and you have wasted the time. Divorce should be like a bandaid. Rip it off, don’t slowly pull one hair at a time.
During your divorce or custody action, everything you say to your best friend, parent or boy/girl friend can be disclosed. You don’t have the luxury we did growing up of being able to ask your friend to keep your secrets. Your best friend can be subpoenaed to court and compelled to recount your conversations.
Who can you talk to during your divorce? There are people you can talk to and not have the conversations replayed. Your attorney cannot disclose anything you say without your permission. If you have a therapist, he/she cannot be compelled to disclose information about you. Your priest/minister/rabbi cannot be compelled to tell your secrets. Even your accountant can hold your secrets. To read more in depth on who you can talk to, see https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0090/Sections/0090.501.html
Unless your confidant falls into one of the exceptions, he or she can be called as a witness. They can be required to provide documents. I point these hidden dangers because friendships change. Families choose sides in a family law matter. Your current spouse, if you aren’t divorcing, cannot be required to divulge your secrets.
Talk to your attorney about your case. Attorneys are counselors at law and are accustomed to listening. The best person to discuss your case is with your attorney and I am a good listener.