Does it matter who files for divorce first?

Often, clients will ask, “Does it matter who files for divorce first?” Technically, no, it doesn’t matter. However, strategically it can.  The person who files first, named the Petitioner, will set the tone. If adultery  or misuse of money is alleged, then we know the divorce is going to be contested and perhaps hostile.

It is actually about $100 cheaper to file second. However, I find that if you are the Respondent, you are behind the 8 ball. When a divorce is filed, there are certain time deadlines that can cause stress. Within 45 days from the date of service of process, parties must give a lengthy amount of documents to the other side. Honestly, just compiling all of the documents can be stressful. If you are first to file, then in theory, you have already gotten those items together. At our firm, we do not generally file a Dissolution (divorce) unless the client has obtained all of the Mandatory Disclosure documents. (https://www.ferryandferry.com/for-clients-2/mandatory-disclosure-checklist/)

Filing first also gives you more time to plan your future, rather than being blindsided. Women are 2/3 more likely to file first. White women  are at the top of that number. This is most likely attributable to increased wages that women are now capable of earning.

If divorce is certainly on your horizon, contact us to see the light at the end of the tunnel.

https://www.forbes.com/sites/jefflanders/2013/06/20/not-your-mothers-divorce-three-21st-century-trends/#ff722dd54292

 

My husband cheated on me and I am angry. Will the judge give me my pound of flesh?

 

While I would like to say that a Judge can punish the cheater like in Shakespeare’s Hamlet, the answer is no. In the state of Florida, it is no-fault. So if one says there are “irreconcilable differences” between you, a Judge doesn’t have to go any further to grant the divorce. The Judge doesn’t have to see private investigator footage, hotel receipts, or illicit text messages. HOWEVER, if that spouse spent money on the other person, or gave you a STD as a result of the cheating, the answer is  different. The Judge can award damages for the STD. If the money was spent, the Judge can require those funds to go into marital assets to be distributed.

Getting Through It:

If you are going through a divorce, my best advice is to exercise. Buy a sparring bag and hit it hard. Go for a long run. Divorce feels like you are going crazy. You have to stay grounded, especially if you have children that will be impacted. The last thing you want is for them to feel the crazy.

How is my business divided in a divorce?

smith-family-business-cubes-5landingHow is my business divided in a divorce? When someone gets divorced, their assets can be subject to different rules in order to divide them. If  one of the spouses began a business before the parties married, only the increase in value from the date of marriage until date of filing the divorce is considered marital. If the business began after the marriage but before one of them filed for divorce, the business’ entire value is marital.  There is also the hiccup that if one spouse has personal goodwill.  Personal Good will, like their name for instance, is not marital. We must know the business’ value at the time of marriage and then at the end of the marriage.

It is absolutely necessary to hire a Certified Public Accountant who has achieved a Business Valuation (ABV) by the American Institute of Certified Public Accountants. CPA’s who are also a ABV are considered experts by the Court. The CPA works well with the attorney to make sure the client receives a fair amount of the value.

How does relocation after a divorce with children work?

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After parties divorce, especially in this day and age, at least one spouse may relocate. It is almost inevitable if one party is military. The factors that the Court will consider are statutory in Florida. However, there is no rhyme or reason at times to be able to with certainty to advise a client that they will be able to move. Before the removal of standard parenting time for one parent, if the Primary Residential Parent (no longer called that as of 2008), wanted to move, it was typically granted. Since 2008, Florida has removed the term Primary Residential parent and now establishes parenting time. The parties are simply called Parents.

A parent, if there is a 50/50 timeshare schedule, is in my opinion going to have a more difficult time moving. That is not to say impossible. I have had cases where the Court allowed the moving parent, despite having 50/50 move out of the country with the child. The Court looks at the big picture. The Court if it allows the party to relocate with the child(ren), must establish an alternative parenting plan that will ensure the child’s relationship is maintained with the parent who is left behind. The Court will look at whether the parent who wants to move is flexible. It is subjective as to whether a party is being flexible.

There  is a requirement that if you relocate more than 50 miles (as the crow flies) from your residence held at the time of the final judgment, you must follow the relocation statute. Failure to do so, may result in your loss of parenting time.

https://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.13001.html

Do I have to get off Facebook if I’m in a divorce?

social_media_no-nosIf you are about to embark on a family law matter that will end with a court appearance, get off social media. Make your Facebook in active, refrain from using Twitter. If you want to keep the accounts, make sure that you avoid commenting on your case. Do not use social media to lash out at the other side or advertise your own bad behavior. I read one post the other day where the person commented how they had gone to work drunk from the night before. People who do not take this advice, will see their posts up close and personal in a court room, I promise. Before you type it, ask yourself, “What would the judge think if he/she read it?” Written correspondence is much more compelling than  “a he said-she said.”

 

What is the single most important thing I can do in a child custody case?

father-r-10.01.14

In my opinion, keeping a journal which details the parenting time each parent spends with the children including times as well as events that occur is the number 1 thing a parent can do to help themselves. Make notes as the events happen.

Now keep in mind that Florida, despite the vetoing of the equal time share bill, is moving in that direction. Gone are the days where the stay at home mother automatically gets custody of the children. The family law judges in Escambia and Santa Rosa counties are more and more frequently ordering equal time sharing.  The case, if it is a divorce, begins with the Pretrial Standing Order.  (Look in the For Clients Tab to review it). The PTSO requires that unless the parties agree otherwise, equal time with the children is granted on a weekly rotating basis. There is thankfully an exception that allows the parent who believes there is a strong risk of neglect to the minor child, to file a verified petition to abrogate the order.

 

Can a grandparent be arrested for interfering with custody of their grandchild?

Absolutely! In Florida, Section 787.03 provides that whoever, without lawful authority, knowingly or recklessly takes or keeps a minor child from their lawful guardian, even if in foster care, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. This can also apply to parents.

Grandparents who may have  rocky relationship with their own child or the other parent of the grandchild, should have something in writing which allows you to have possession of the child, even if it is a handwritten note signed by the parent. Take that extra step to protect yourself.

 

What exactly does no-fault mean in a divorce?

ostrichFlorida is one of the states where you can get a divorce without proving that either party did something wrong, like adultery or abandonment. If one party wants a divorce, then they can have it. It prevents a spouse from being forced to hire a private detective to spy on the other just so they can get out of the marriage. The no-fault provision in Florida’s divorce law actually works to somewhat heal the parties rather than throwing gasoline on the fire. I’ve had clients before say, “I’m not signing anything.” And I reply, it doesn’t matter if you sign or don’t.  One party cannot stop a divorce from happening, maybe slow it down a bit, not stop. Don’t be an ostrich

Spyware, to spy or not to spy!

Can a husband or wife install spyware on the other spouse’s phone or computer? You can certainly keep and use text messages or voicemails or even Facebook posts from the other party, but intercepting and saving communications that were intended for the other party is a first degree misdemeanor in Florida for the first offense, and a 3rd degree felony for subsequent offenses if for commercial gain or destruction. In other cases, it is a second degree misdemeanor. Read the statute below for thinking about planting spyware.
https://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0900-0999/0934/Sections/0934.21.html
https://www.abajournal.com/news/article/judge_sends_sheriff_to_seize_hubbys_devices_after_spyware_is_found_on_wifes

Can my husband take my dog in our divorce?

If the dog was bought during the marriage, he is considered personal property just like any other. Until a Court rules one way or another, your husband should not remove any personal property from the home unless it is agreed upon. Unfortunately, without the benefit of having filed for divorce, he or you can do whatever you want with marital property. You can seek relief by filing for divorce. Once the divorce is filed the courts normally issue a pretrial standing order that would prevent him from removing personal property, to include the dog. Until then, you both have equal rights to the dog. I would say the only exception may be if you were given the dog by a third party. If that is the case, the dog would be your separate property.