The Marks Law Firm Blog and New Updates

Florida Passes the Collaborative Process Act

After unanimously passing in the Florida House and Senate, on March 24, 2016, Governor Rick Scott signed and enacted the Florida Collaborative Process act.  This act recognizes and establishes requirements for the use of the Collaborative Process in family law matters in the State of Florida.  The Collaborative Process is a dispute resolution method used as an alternative to Court litigation.  In enacting the Collaborative Process Act the Legislature stated the purpose of the Act was:

The Legislature finds and declares that the purpose of the Part III of Chapter 61, Florida Statutes, is to:

  • Create a uniform system of practice for a collaborative law process for proceedings under chapters 61 and 742 of the Florida Statutes
  • Encourage the peaceful resolution of disputes and the early settlement of pending litigation through voluntary settlement procedures.
  • Preserve the working relationship between parties to a dispute through a non-adversarial method that reduces the emotional and financial toll of litigation.

In the Collaborative Process, each party, with the help of a specially trained attorney, meet jointly and privately to respectfully negotiate the settlement off all the issues in their dissolution.  Information and documents are exchanged voluntarily without the need of going to Court or the expense of formal discovery.  A neutral financial expert, such as a certified public accountant or a financial planner, helps the couple gather and understand their assets, liabilities, income and expenses, to help the parties negotiate a settlement of those issues.  A specially trained mental health professional acts as a facilitator to assist the parties with issues involving their children and to stay focused on resolving the issues in their dispute rather than attacking the other person.

The cost and time required by the collaborative process is typically less than half of a litigated divorce.  Best of all, the parties learn how to problem solve together, lessening the possibility of future litigation.  This is in stark contrast to litigated divorce cases which may leave bitterness and anger for years leaving the parties without a working relationship and solving future problems through more litigation.  Further, the Collaborative process allows the parties far greater privacy for themselves and their finances than traditional litigation.

We at the Marks Law Firm have been have been utilizing the Collaborative Process for years to help our clients in their disputes.  The attorneys in our firm have received special training in the use of this process, and one of the attorneys in our firm aided in the creation of this statute.  It is our hope that, with the passage of this act, the use of the Collaborative Process will become more common as we believe it will greatly benefit Florida’s families.

8 Concerns for People Facing a High Net Worth Divorce

If you own significant assets, generate substantial income, and are facing divorce, the following article could salvage a large portion of your net worth.

In divorce, the more you make, the more you have at stake. Unless you have an ironclad prenuptial agreement, up to 50% of any net worth accumulated during your marriage could belong to your spouse – and maybe more.
The following eight tips will help you understand how to protect yourself through the divorce process.

1. Use valuation specialists if necessary. If you own a business, your business could be an asset subject to division upon divorce. This means you will have to determine the value, which likely includes the blood, sweat, and tears (aka goodwill) you’ve poured into it over time. Never enter into settlement negotiations for divorce without first knowing the actual value of assets like a business, professional practice or real estate.

2. Consider a forensic accountant. In many cases, spouses comingle funds or assets, which can give those assets a mixed characterization and make pinpointing the source difficult. Using a forensic account to trace funds and assets may be necessary.

3. Evaluate the strength of your prenuptial or postnuptial agreement. If you plan to handle your divorce as outlined in a prenuptial agreement, be sure it is well-drafted. If you’ve failed to disclose any assets or failed to have your prenuptial agreement executed under the proper conditions, your prenuptial agreement could be invalidated along with its terms.

4. Consider the tax consequences of your divorce. Transferring assets by way of divorce almost always involves significant tax consequences for high net worth individuals. Your divorce attorney should collaborate with your accountant to ensure any asset transfers as a result of your divorce are structured to mitigate as much tax liability as possible.

5. Understand your potential alimony obligation. If you generate substantially more income than your spouse, and your spouse needs financial support, you could end up with a significant alimony obligation. Alimony payments have tax implications for both the receiving and paying spouse so you want to be sure you can negotiation an alimony agreement that will be favorable to your overall financial picture.

6. Understand the implications of marital waste. Since your marriage has been on the rocks, is your spouse suddenly spending more? Is your spouse funneling marital assets into accounts for which you don’t have access?

It is not uncommon for high net worth individuals to experience this type of behavior from their spouse, or even be tempted to do the same. Thankfully, the law doesn’t allow the waste of marital resources to go unaccounted for, and with the proper guidance of a family law attorney you can take appropriate steps to prevent the unnecessary loss of assets and income.

7. Consider the cost of attorney’s fees (for you and your spouse). If your spouse has little to no income, and your income is substantial, you can expect to pay some amount of their attorney’s fees if you are the spouse seeking the divorce. Treat your divorce like a business decision. Plan how much you are willing to spend to get a reasonable divorce settlement and stick to that decision. Your net worth will thank you.

8. Calculate the cost of your divorce. Would you spend $20 on a $21 dispute? Of course not. Know the value of your fight. Do you want to spend tens of thousands of dollar (or more) on a dispute you could settle for the same amount? You’ll end up spending double what you’d pay, just to fight over the value. While it may be difficult to put your emotions aside and compromise, considering settlement could save you tens of thousands of dollars.

To learn more about how you can reduce the risk of diminishing your net worth as a result of divorce, click here to request a consultation or call 407-872-3161 to speak with one of our Orlando Divorce Attorneys today.

Attention Florida Business Owners Facing Divorce

If you are a business owner, and you are considering divorce, read this first.

Under to Florida Statute 61.075, property owned by you and your spouse falls in one of two categories: marital or nonmarital.

Specifically, marital property typically includes:

  • Assets and liabilities accrued during your marriage, whether accrued individually or jointly.
  • The enhancement of value and appreciation of nonmarital assets as a result of either spouse during the marriage or from the investment of marital funds or other forms of marital assets, or both.
  • Gifts given between spouses during the marriage.
  • All vested and nonvested benefits, rights, and funds earned during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs.
  • All real property held by spouses as tenants by the entireties, whether acquired before or during the marriage is considered a marital asset.
  • All personal property titled jointly by spouses as tenants by the entireties, whether acquired before or during the marriage, is considered a marital asset.

The Statute also states that nonmarital property includes:

  • Assets and liabilities accrued by either spouse before the marriage, along with assets and liabilities accrued in exchange for those assets and liabilities.
  • Assets acquired separately by either spouse by gift (not between spouses or to the spouses as a couple, but as individuals), bequest, devise, or descent, and assets accrued in exchange for those assets.
  • All income earned from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the spouses as a marital asset.
  • Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the spouses, and assets or liabilities accrued in exchange for those assets and liabilities.
  • Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. That liability shall be a nonmarital liability of the spouse committing the forgery or having attached the unauthorized signature alone.

So what does that mean if you start or acquire a business while married?

Does your spouse have an interest?

What if you owned the business before you got married, does your spouse have an interest then?

The answer could be yes in all cases.

Let us explain.

As the factors outlined above suggest, if you started your business during your marriage, your spouse could have a marital interest in your business because all assets and liabilities accrued during your marriage are usually deemed marital.

But, your spouse could also have an interest in your business if your nonmarital business asset was converted into a marital interest because funds (or some other asset) earned by either spouse during the marriage was used to enhance or increase the value of the business.

Essentially, if you own a business and your wife contributed to the growth of your business financially or enhanced the value of the business in some other way, she could have an interest in your business upon divorce.

Determining whether or not a nonmarital business asset has become a marital asset requires a detailed and expert legal analysis. In fact, an experienced family law attorney should recruit the expertise of a business valuation expert or CPA to determine the value of the business for the purpose of divorce.

If you’re not sure where you stand, seek quality legal counsel to provide you guidance.

To learn more about whether or not your spouse could have a marital interest in your business, click here to request a consultation or call 407-872-3161 to speak with one of our Orlando Divorce Attorneys today.

 

How do I Protect My Assets in a Divorce?

Divorce requires a division of assets acquired during the marriage, so you can’t keep every asset you own out of your spouse’s hands. Knowing that, is there any way to protect your assets in Divorce?

Obtain a Prenuptial Agreement

A prenuptial agreement is an agreement between future spouses that sets forth the rights and obligations of each spouse upon divorce, death, and even during the marriage. In your prenuptial agreement make sure you designate your business as non-marital property. If you’re currently married, you may be able to achieve the same result by obtaining a post-nuptial agreement.

A postnuptial agreement is an agreement drafted after marriage but serves the same purpose as a prenuptial agreement. Having said that, if you’re currently contemplating divorce, a postnuptial agreement will likely not be very useful to you. Once a divorce is imminent a postnuptial agreement becomes a separation agreement, which doesn’t mean you’re business will be protected.

Prenuptial and postnuptial agreements are very specific documents that require experienced legal insight when drafting. Simply missing one essential element in drafting and executing a prenuptial or postnuptial agreement can render the entire thing void – and for you useless.

Consider a claim for an unequal distribution

Florida is an equitable distribution state which, based on some factors requires spouses to divide their assets “fairly.”

However, where one spouse rightly deserves total ownership of a business that is subject to division in divorce, the court must consider whether it is actually more equitable to allow one spouse to retain a “business, corporation, or professional practice, intact and free from any claim or interference by the other [spouse].”

If your business is at risk in your divorce, this could be one way to protect it. Be sure to speak with an experienced family law attorney to determine whether or not unequal distribution applies to your case.

Reconcile with Your Spouse

Now, don’t get this wrong. We are not suggesting you stay married just to protect your business. But maybe the challenges you’re facing as a result of your prospective divorce can serve as a catalyst for evaluating whether or not you want to sever the very things you and your spouse have built together?

Perhaps your marriage is salvageable?

Perhaps with the right help it could thrive?

Reconciliation isn’t always an option, but you should be sure it isn’t before you pursue the path of divorce. As strange as it that sounds coming from divorce lawyers – take our word for it.

To learn more about how you can protect your business if you’re facing divorce, click here to request a consultation or call 407-872-3161 to speak with one of our Orlando Divorce Attorneys today.

Does it Matter if My spouse had an Affair in a Florida Divorce?

Most states are “no-fault” divorce states. This traditional grounds (or reasons) like adultery, cruelty, or abandonment are not required to obtain a divorce. Simply state your reason for divorce and the court will accept it.

That doesn’t mean, however that bad behavior is without consideration in your divorce.

Under Florida’s Equitable Distribution Statute 61.075, any “marital waste” suffered as a result of your spouse’s behavior (after or within 2 years prior to filing for divorce) can be considered in the distribution of assets in your divorce.

For example, if your spouse spent extreme amounts of money gambling, on drug use, or extramarital affairs a court could consider these facts in distributing your assets and liabilities for the purposes of equitable distribution.

In extreme cases, proven marital waste could lead a judge to order an unequal equitable distribution (meaning you get more than your fair share of distribution). However, you must request unequal distribution based on marital waste to receive it.

So, yes. In some cases, your spouse’s extramarital affair or the waste of marital assets could impact the outcome of your divorce.

For more on how marital waste can impact your divorce and divorce settlement, click here to download our free guide How to Avoid an Unfair Divorce Settlement.

Whether you’re facing a challenging divorce trial or expect a quick divorce settlement, working with an experienced divorce attorney who understands the intricacies of family law is vital to obtain the most favorable outcome possible in divorce.

To determine whether or not your divorce case involves a valid claim for marital waste, click here to request a consultation or call 407-872-3161 to speak with one of our Orlando Divorce Attorneys today.

How Much Alimony Can I Receive From My Divorce?

Alimony is one of the most hotly contested issues in a divorce.

Some cases can carry on for years because spouses cannot agree on alimony.

Under Florida Statute 61.08, the amount of Alimony you can receive from your divorce depends on several factors starting with:

  1. Need: First, the court must determine whether or not you or your spouse needs spousal support (aka – alimony).
  2. Ability: Second, the court must determine whether or not you or your spouse has the actual ability to pay spousal support.

Once the court has found need for alimony by one spouse and an ability to by that alimony in the other spouse, then the court must consider all relevant factors to determine exactly how much alimony should be paid.

Generally, the court considers approximately ten key factors in assessing how much alimony should be paid from one spouse to the other, which are listed in Florida’s alimony statute 61.08.

Most Common Types of Alimony Received in Florida Divorces

There are also five different types of alimony which will impact the total amount of alimony you may receive.

The five types of alimony include:

  1. Permanent Periodic: This is alimony paid to a spouse until that spouse remarries, or until the paying spouse dies. This type of alimony is usually only available in cases of long-term marriage.

 

  1. Durational: This is alimony paid to a spouse for a short or moderate period of time. As such, this is the type of alimony awarded to spouses of short-term or moderate-term marriages. The only limitation to durational alimony is that you cannot receive durational alimony for a period of time longer than your marriage itself.

 

  1. Bridge-the-Gap: This is alimony paid to a spouse to help them “bridge-the-gap” between married and single living. Usually, this type of alimony is only paid for a short period of time.

 

  1. Lump Sum: This is alimony paid to a spouse in installments. Sometimes spouses agree to make a one-time lump sum payment of alimony, other times spouses choose to make installment payments over a specific period of time. In either case, lump sum alimony cannot be modified at any time.

 

  1. Rehabilitative: This is alimony paid to a spouse for the purposes of helping the receiving spouse become self-sufficient by developing new skills, obtaining an education, or work experience. The receiving spouse must demonstrate a plan for becoming self-sufficient, and this type of alimony is generally short in duration.

As you can see, the length of your marriage also impacts how much alimony you’re eligible to receive. Usually, the longer you’re married, the longer you are entitled to receive alimony. Florida statue 61.08 outlines what constitutes a short-term vs. moderate-term vs. long-term marriage.

You Can Agree to Any Type of Alimony

You can also negotiate alimony beyond, or different from the statutory guidelines if you and your spouse agree to different terms through a settlement conference or divorce mediation.

In Central Florida, you may also request Temporary alimony immediately after attending mediation if you and your spouse fail to come to an agreement. Temporary alimony allows you to obtain court ordered spousal support while your divorce is in progress, and you’re waiting for a final determination on your alimony issue.

Remember, obtaining alimony in divorce is not automatic. You must ask for alimony in your divorce petition or divorce counter-petition to be awarded alimony by the court. Failure to ask for alimony could result in you waiving any ability to get alimony after your divorce is finalized.

Alimony involves several complicated tax, income, and even child support issues, so it’s important to discuss your options with an experienced divorce attorney who can provide you with guidance in this area.

To learn more about how much alimony you may receive in your Orlando divorce case click here to request a consultation or call 407-872-3161 to speak with someone from our team today.

Will I have to pay Alimony if I get Divorced in Florida?

One of the more common questions we receive from clients is:

“Will I have to pay alimony if I get divorced?”

Unfortunately, that question is not easily answered. Having to pay alimony in Florida depends on several factors unique to your personal divorce case.

To help you understand how alimony works in most Florida divorce cases, let’s cover some basic alimony principles you should know.

What is Alimony?

Alimony, also known as spousal support, is financial support ordered by the court and paid to your spouse.

For a spouse to receive alimony they must be able to demonstrate that they have a need for financial support and that the other spouse can pay them.

It is important to note that a spouse who wants alimony must request alimony in their divorce petition or divorce counter-petition. If they fail to ask the court to order alimony in their petition, it cannot be granted by a Judge at all.

In other words, if your spouse does not ask for alimony they cannot automatically get it.

Finding a “Need For” and an “Ability to Pay”

Florida Statute 61.08 subsection (2) says:

“In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.”

This means the Judge will have to find evidence that supports the requesting spouse’s claim that they have a need for financial support. It also means the Judge will have to find evidence that supports the paying spouse can afford to make alimony payments.

Usually, your income is the first guideline used in this determination. If you make substantially more than your spouse, or if your spouse is a homemaker or otherwise unemployed, a court could determine that the difference in income between you and your spouse calls for some form of spousal support for the spouse in need.

Once a court has determined that the spouse requesting alimony has proven that they need alimony, and that the paying spouse has the money to provide the support requested, the Judge then has to determine the proper type and amount of alimony to order.

How Much Alimony Will I Have to Pay

To determine the proper type and amount of alimony to order, Florida Statute 61.08, outlines ten factors the Judge must consider.

Some of these factors include:

  • The standard of living during the marriage
  • The length of the marriage
  • The age, physical, and emotional condition of each spouse
  • The financial resources of each spouse (including all income and assets)
  • The earning capacities, educational levels, and ability to obtain employment
  • The contribution of each spouse to the marriage, which include homemaking, child rearing, education and career building of the other spouse
  • The adultery of either spouse and the surrounding circumstances

There are several other factors in addition to those listed above, so it is important to speak with an experienced divorce attorney about your specific situation, so you understand how alimony impacts you personally.

Once the Judge determines the appropriate amount and type of alimony to award in your case, the Judge can then order you to pay that amount and type of alimony to your spouse.

The good news is that Florida’s Alimony Statute requires an award of alimony to one spouse does not leave the paying spouse with significantly less net income than the spouse receiving alimony (although there may be exceptions).

Ultimately, while it never feels fair, this is the court’s way of ensuring an award of alimony doesn’t financially cripple the paying spouse.

When Will I Start Paying Alimony

Unless your spouse has requested and been awarded temporary alimony. Your alimony payments should begin on a date as ordered by the Judge. Usually, this date is shortly after your divorce is finalized.

However, if your spouse has requested and is awarded temporary alimony before your divorce is final, you will need to begin payments as ordered by the Judge in your case.

To learn more about whether or not alimony applies to your Orlando divorce case click here to request a consultation or call 407-872-3161 to speak with someone from our team today.

Finding Financial Peace During the Holidays

As a “mom-on-a-budget,” I’ve adopted several practices to help my family stay on track during the holiday season. By putting these few simple practices into action, my kids have learned that Christmas is about more than just receiving presents and I’ve found I can avoid breaking the bank and still make each Christmas morning absolutely amazing!

First and foremost, encourage your kids to be realistic about gifts.

A few years ago I heard of a family who had adopted the tradition of the Three Kings. When the Wise Men came to visit baby Jesus, they certainly did not come hauling the whole Walmart baby section behind them in Red Rider Wagons!
Each King brought ONE gift for Him…. And He is JESUS! Each gift was something that was meaningful in that time, each gift was a blessing fit for a King. My daughter, who is 9 now, fully understands this theory and it’s given me the opportunity to teach her that Christmas is so much deeper than Santa Claus, candy canes, and toys that break within 24 hours of opening them. Think Simple, Think Meaningful!

Set a budget and stick to it!

It’s so easy to pick up extra gifts here or there, just because they are a “great deal”, but before you know it, those deals have blown your budget and Christmas becomes a burden that you have to recover from.

AVOID THE TOY CATALOGS!!

Sit with your children, ONCE, at the beginning of the season and discuss their 3 most “wanted” gifts. And if you just must use the catalogs, don’t revisit them every week. Use this as time to really find out about your kids likes and dislikes and as a way to really invest your hard earned money rather than just buying random toys as a “great deal.”

Think outside the box! A gift doesn’t solely have to be a toy or a video game. What does he/she delight in? You can find so many unique experiences to gift to your child through websites such as Groupon. Give them a memory for a lifetime!

These are the top three ways I’ve found financial peace during each Christmas season while teaching my kids a bit about contentment and the true meaning of this season!

Parenting Through Divorce

By: Orlando Divorce Attorney Joy Ragan

It is sometimes hard to see how our divorce is affecting our children because we are hurting so badly ourselves.  It is easy to let our pain blind us to the needs of our children.  Many times, the thing our kids need most is the thing that is the hardest thing for us to do:  Be nice to our spouse.

Know that the “rock” in the children’s lives has always been your marriage. They feel as though they are now going through an earthquake and there is a crack in the foundation of their lives.

The more you lift up the other parent for them, the safer the children feel and the quicker they will adjust. Don’t do it because the other parent “deserves” it. Do it because your children deserve it.

The Judge will respect your ability to continue to praise the other parent. It will be refreshing for the Judge because they don’t see that type of thing nearly as often as they should.

Signs You Struggle Acting in Your Child’s Best Interest

As a divorce attorney, I see people who are often so angry at the other parent that they can’t act in their children’s best interest.  At times there may be some legitimate reasons for some of these but here are  red flags which may signal you are too emotional to act in your children’s best interest:

1.  You don’t pay child support

2. You refuse to allow visitation.

3.  You speak poorly of the other parent to the children

4. You bribe the child to get the child to choose to be with you over the other parent

5.  You tell the children details about the divorce

6. You make visitation difficult, set the other parent up for failure or refuse to work as a team.

7.  You obsess about your idea of what is “fair”.

People mistakenly believe that in a divorce they can “get rid of” their spouse.  When you have children, this is simply not true.  You are given the very difficult task of learning to co-parent when you couldn’t get along and communicate well enough to stay married.  It is an extremely difficult endeavor.

Too often, attorneys make it worse.  They inflame emotion and encourage clients to bring the fight home.  One of the greatest allies you can have in a divorce is an attorney who understands the challenges of co-parenting.

An attorney’s job should be to keep the legal fights in the courtroom so that they parents are free to process the emotions outside of court and learn some tools to cope as unmarried parents.  If  you are divorcing with children, you should interview attorneys on their views and philosophies on co-parenting.  If they can’t give you some good direction in this area or at least point you to the right place, then you haven’t found the right attorney for you.

There is No Room for Pride in Co-Parenting

The second biggest life skill needed for co-parenting through divorce is the ability to swallow your pride for the sake of your children.  I know, I know … it’s not fair.  Fair is a four-letter word in divorce.  Early on in the process, none of it will feel fair.  You are hurt and emotional.  But, even through the pain, you have to provide a united front for the children.

You have to compromise when it’s uncomfortable; apologize when you don’t really mean it; and discuss your children’s needs even when you aren’t overly interested in the other parent’s opinion.  It will be hardest in the beginning when the emotions are highest.  With practice and patience, it will get easier.

You must continue the effort because your children’s well-being is worth it.  A divorce is a great opportunity to teach your children how to resolve conflict in a healthy way.  It is a challenging time that can be an opportunity for growth for the entire family.  Parenting through divorce is about making the hard choices to facilitate that growth.

Collaborative Law vs. Divorce Mediation in Family Law

By Orlando Family Law Attorney Tom Marks

First, let me say that both the Collaborative Law Process and Mediation have their place and each can be very beneficial in the right circumstances. However, although they may appear similar at first blush, their focus and processes are different. Both attempt to help the Parties resolve their issues without formal litigation, with the goal being a Settlement Agreement in their case.

One calls that agreement a Collaborative Law Agreement and the other calls it a Mediation Agreement.

Let’s look at the differences.

Collaborative Law vs. Divorce Mediation

Mediation typically involves “positional bargaining,” while Collaborative involves mutual “goal setting.” An essential difference is that in Mediation the parties typically take their respective corners and usually start bargaining from polar extremes.

Each Party normally hopes to end up somewhere closer to the middle or, depending on his or her perspective, closer to their position.

In the collaborative family law, collaborative divorce or collaborative problem solving, the parties come together in a more transparent fashion. They outline their goals together and work together to find common purposes like “protecting the minor children.”

Another difference is the people involved. The Collaborative Process includes a team working together, not just the Clients and their Attorneys. The team includes a Collaborative Mental Health Professional and a Financial Collaborative Professional. These two professionals are considered “neutrals” and they do not advocate for one side or the other; they are part of the solution. And the attorneys, because they sign the Collaborative Agreement stating that they will not take the case to Court, are also vested in reaching resolution in the Collaborative Process.

One last important difference: although all Family Law cases in Central Florida are required to go to Mediation before they proceed to any contested Hearings, Collaborative Cases only proceed where both parties agree. There has to be some level of trust and willingness to be open and transparent for the Collaborative process to be effective. However, the potential benefits are tremendous for the parties, their children, finances and futures. But if the trust isn’t there or the Collaborative Process is not an option, Mediation is still far better than formal litigation, which usually results in substantial pain to everyone involved.

Check out this video of Attorney Tom Marks and Attorney Ronald Sims discussing Collaborative Law vs.  Mediation: