The Marks Law Firm Blog and New Updates
Yes! Even a student loan debt incurred during the marriage by one party is considered a marital asset under Florida Law. Due to its classification, as a marital asset, the student loan debt is subject to equitable distribution between parties.
A student loan debt can be unequally distributed only with sufficient factual findings to advise the parties or the reviewing court of the trail court’s reasoning and rationale for the unequal distribution.
Despite a frequent argument that one should not be required to pay the other’s student loan debt because of the benefit gleaned from the education; that alone is not a factor to be considered when allocating the student loan debt.
Furthermore, controlling Florida case law forbids a trial court from awarding the student loan debt incurred during the marriage solely to one party or the other. However, if the student loan debt was incurred prior to the marriage it is non-marital therefore remains with the indebted party and is not subject to equitable distribution.
If you have any questions regarding the above as it relates to your case, either submit an online inquiry for a consult or call The Mark’s Law Firm at 407.872.3161.
Florida Statute 61.075 controls how the parties’ assets and liabilities are to be distributed. As previously discussed, the court must first determine which assets and liabilities are classified as “marital” (see previous blog for more information on this topic).
Upon said identification, the Courts must begin with the premise that distribution should be equal, unless there is justification for same. The statute provides factors for the Court’s consideration for an unequal division of the marital assets and liabilities as follows:
- Contributions to the marriage by both parties, including care of both the children and the home.
- The economic circumstances of both parties.
- The duration of the marriage.
- Any interruption of personal careers or educational opportunities of either party.
- The contributions from one spouse to the other spouse’s career or educational opportunities.
- The desirability of retaining any assets, including an interest in a business, corporation or professional practice, intact and free from any claim or interference from the other party.
- The contributions of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and non-marital assets of the parties.
- The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or the party, and it is financially feasibly for the parties to maintain the residences. In making this decision, the court will examine whether it is in the best interest of the dependent child to remain in the marital home; and, if not, it will look at whether other equities would be served by giving one party exclusively use and possession of the marital home.
- The intentional dissipation, waste, depletion, or destruction of marital assets after filing of the petition or within 2 years prior to the filing of the petition.
- Any other factors necessary to do equity and justice between parties.
The date for determining the assets and liabilities as marital is the earliest of: the parties’ entry of a valid separation agreement, a date agreed upon by both the parties, or date of filing a petition for dissolution of marriage. The value of said assets and liabilities is to the judge’s discretion as to what is just and equitable under the circumstances. In many cases, the valuation date of marital assets is as close to the time of Trial as possible to produce the most fair distribution for both parties. However, in same cases a valuation date is identified as prior to Trial because of an extreme increase or reduction in value of the assets by a spouse since filed.
If you have any questions regarding the above as it relates to your case, either submit an online inquiry for a consult or call The Mark’s Law Firm at 407.872.3161.
For those who being the dissolution of marriage process an initial concern commonly arises regarding how the belongings and finances will be divided: who gets what?
In the state of Florida the two parties can either agree among themselves, or the court will hold a hearing and impose its own decision on them regarding the division of their property. If the two parties choose to reach an agreement between themselves, the court will ratify the agreement with a Court Order.
The basic principle of property division in the state of Florida begins with the identification of assets and liabilities. Property includes everything that can be considered an asset such as a house, cars, timeshares, investment property, investment accounts, retirements accounts, retirements assets, stocks, bank accounts, a business, cash-value life insurance policies, furniture, and jewelry.
Liabilities generally include the home, credit card debt, etc. The next step is to determine whether the assets and liabilities are considered marital or non-marital property. Although martial and non-marital properties can sometimes be difficult to clearly determine, below are some examples of both.
- Non-martial property may include:
- Property acquired by either spouse prior to the marriage
- Property acquired by either spouse via a non inter-spousal gift or inheritance
- Income derived from non-marital assets during the marriage, unless that income was used or relied upon as a martial asset
- Assets and liabilities excluded from martial property via a valid written agreement, such as a pre-nuptial agreement
- Marital property may include:
- Property acquired by either or both spouses during the marriage
- Enhancement of value of a non-martial asset, as a result of efforts by either spouse during the marriage or from a contribution of marital funds to an expenditure of marital funds or assets
- Inter-spousal gifts during the marriage
- All vested or non-vested benefits or funds occurred during the marriage such as retirement, pension, profit sharing, annuity, deferred compensation, and or insurance plans or programs
- Property held by the parties in tenancy by the entirety or otherwise commingled or acquired during or prior to the marriage.
If you have any questions feel free to contact our office.
“Kitchen Table” Negotiations commonly occur when parties represent themselves and negotiate their divorce issues without the assistance of attorneys and outside of the mediation setting. This may occur prior to filing, such that an executed Agreement resolving all issues can be filed with the Uncontested Petition for prompt finalization of the case.
This form of negotiation can also occur during suit whereby the parties expedite the proceeding by coming to an Agreement, ratifying same in written form, and proceed in an expedited manner to finalization.
Kitchen Table Negotiations are often most effective for Parties who do not have children and have very few assets and liabilities to divide. Generally speaking, the higher the conflict level amongst the Parties, the less likely it is that these types of negotiations will be effective.
Though this form of divorce is cost effective, Parties who participate in these types of negotiations should be cautious as there may be legal implications of the proceedings that could be detrimental to both individuals if not properly addressed. As a general rule of thumb, it is advisable to seek legal counsel at some point during your Dissolution of Marriage proceeding.
If you have reached an Agreement and would like to have same reviewed prior to execution, or you would like assistance with the process of ratifying your Agreement with a Court Order, please contact The Marks Law Firm at 407.872.3161.
Mediation in Family Law cases can happen either pre-suit or during the litigation process. Pre-suit Mediation is where a neutral mediator is used to help settle the dispute between both parties before the lawsuit is initiated, which means before the initial Petition for Dissolution of Marriage is filed.
Family Law Mediators go through a lengthy training and are certified by the State of Florida to participate in Family Law Mediations. They are objective professionals who can help both parties overlook trivial disputes and clearly focus on the important issues at hand. They help develop solutions by offering ideas, identifying and framing issues, and when appropriate, proposals for settlement.
Parties who know they want to file for divorce have an opportunity to work out the details related to the division of assets and liabilities, Child Support and Parenting Issues before the filing of any Petition for Dissolution. If the Parties can agree on all of the details relating to their case, the process of filing an uncontested Petition and proceeding to a Final Hearing is much quicker than typical litigation.
Mediation may also be engaged in after the initiation of the lawsuit. In Florida, parties to domestic relations case must attempt to resolve the issues in their case through Mediation before appearing before a judge.
When successful, mediation can be appealing because the parties can bring forth an acceptable outcome and compromised resolution without having to rely on a judge to determine the results. To seek more information regarding the use of mediation to address your family law dispute, please visit our website or call our office for more information.
Over time, a common form of divorce has fallen into the category of traditional divorce through litigation. In a traditional divorce each party hires an attorney to represent them throughout the divorce process.
Though the parties are free to communicate with one another, most of the negotiations between the parties go through their attorneys. Settlement may be available through mediation or 4-way settlement negotiations with the parties and their Attorneys.
However, if a resolution cannot be made, the case may proceed to a trial where a judge will make the final decisions. A traditional divorce utilizes various litigation tools such as: subpoenas, requests for production, and depositions to use in hearings or trial. At trial, both parties will make opening statements to the judge regarding the basics of their case.
Each party will then proceed with their legal arguments, based on various forms of evidence, including possible witness testimonies. The parties will conclude the presentation of their case through closing arguments. During trial, both parties attempt to present their opponent in the worst possible light and as such the entire trial process is emotionally difficult. Few people tend to be genuinely happy with the results because a stranger is ultimately making decisions that affect the rest of that individual’s life.
In general, there are four main methods that can be used to obtain a divorce: Collaborative Law, Traditional Divorce via Litigation, Pre-Suit Mediation, and “Kitchen Table” Negotiations.
Collaborative Law is a relatively new type of Family Law which first began to be utilized in the U.S. in the 1980s. Collaborative Law has quickly grown in popularity and recently became more organized in the Central Florida area.
Collaborative Law is a process in which the parties and a team of professionals, including collaboratively trained lawyers representing each party, analyzing the best outcome for the entire family in a team-like process.
The professional team generally includes, but is not limited to, a neutral mental health expert (“coach”), a neutral financial specialist, and two attorneys representing the respective parties. The collaborative law divorce process is especially helpful in situations where children are involved, as it helps develop better cooperation and ultimately better relationships for everyone involved. It is also financially beneficial because it may help limit the extensive cost associated with a traditional divorce through the overcrowded court system.
Collaborative Law has been described as a form of divorce which incorporates respect, allows for more control to the clients, provides lower stress overall, and utilizes creative problem solving skills. However, Collaborative Law may not be for everyone, particularly for cases involving domestic violence, mental abuse, mental illness, drug abuse, and other similar scenarios.
For the last four years I have had the privilege of working with the Orange County Bar Association as the Chairman of their Family Law Committee. I wanted to take some time to introduce the Committee to our friends, family and clients of The Marks Law Firm, P.A. The Family Law Committee has become one of the largest and most active Committees of the Orange County Bar Association. I am proud to lead, along with the Executive Committee, such an esteemed group of Attorneys.
Over the past several years, the Executive Committee and I have met on a monthly basis to plan different events that will enhance the knowledge and experience of our local Family Law Attorneys. On the 3rd Friday of each month we invite all Family Law Attorneys to attend our Lunch & Learns, which highlight different topics and speakers related to Family Law. Most recently we developed a series called “Get to Know Your Judges” in which we featured a different Family Law Judge each month and asked them to share their Courtroom style and Judicial insights with our Attorneys. We also host a day-long Major Seminar once a year to provide even more in-depth legal training for Family Law Attorneys. Every Fall we organize a Judicial Assistant/Magistrate Assistant luncheon which is designed to thank the wonderful Court personnel that work behind the scenes to support our Judges and Magistrates.
As acting Chair of the Family Law Committee I have had the opportunity to work with some remarkable Attorneys. I was honored last month to receive the Outstanding Committee Chair Award from the Orange County Bar Association at their Annual Awards Dinner. I would like to take a moment to thank all my Executive Committee members for helping make the Family Law Executive Committee of the OCBA an exceptional place to serve and something to be proud of.
To learn more about the Orange County Bar Association, please visit their website at www.orangecountybar.org or contact our office at 407-872-3161.
In the spirit of summer, The Marks Law Firm has big plans to get outside and enjoy the weather with our community. This year is the third year that our team will be participating in the Nathaniel’s Hope- Make M’ Smile Celebration! Make M’ Smile is an annual community festival dedicated to celebrating VIP Kids, children with all types of special needs/disabilities, and their families. VIP kids, families, volunteers, exhibitors and sponsors enjoy free entertainment, food, activities, and many vendors with giveaways.
Every year the Marks Law Firm has been an active sponsor in the midst of all the fun and entertainment giving away free drinks and helping bring a smile to every child’s face! The event will be held on Saturday, June 4th from 7:30 a.m. until 1:00 p.m. at Lake Eola in downtown Orlando. We would love for you to come out to help support the VIP kids, their families, and this wonderful organization.
If you are interested in participating please visit the Nathaniel’s Hope website at www.NathanielsHope.org. One way to participate is by becoming a “buddy” to one of the VIP kids. As a “buddy” you will walk with a child and guide them during the “friendship stroll” around the park and throughout the event. You can also sign up to be a volunteer or make a donation on the website. Stay tuned to our website and Facebook to find out updates regarding this event and other ways that you can help.
The Marks Law Firm, P.A. wants to encourage parents to get their children involved in sports. Especially when a family is going through dynamic changes such as a separation or Divorce of the parents, the children often need the positive benefits that come from team activities and physical action.
Participating in sports helps children develop a number of qualities that will have lifelong benefits. Studies suggest that participation in sports can help children learn responsible social behavior and gain an appreciation of personal health and fitness.
Along with the appreciation of personal health and fitness, sports will give children the right amount of exercise to keep their bodies healthy, happy and in good physical shape. Regular physical activity also helps the body manage stress, which can result in better school performance and improve your child’s ability to respond appropriately to daily challenges.
In addition to these benefits, team sports give children a sense of belonging. Below are some tips to help parents build confidence and good character in their children through sporting activities.
Setting an Example for Your Child
* Teach good sportsmanship. Be a role model to your child and other parents. Offer words of encouragement to your child, his or her teammates and their opponents.
* Be respectful of everyone. Show respect for the other team, the coaches and the officials. Avoid criticizing a child’s athletic ability, a coach’s decision or an official’s call on a play. Keep this in mind when attending athletic events and watching sports on TV with your child as well. If you have a concern about a coach’s particular style of coaching, politely bring your concern to the coach’s attention after the game. You may want to volunteer to help coach during the next practice.
Building you Child’s Confidence and Motivation
* Focus on effort, not results. The message to “win at all costs” can put a lot of pressure on a child. Regardless of the final score, your child should feel proud that he or she played their best. Let children know when they had the right idea or made the right decision in the game even if it didn’t result in a score. Let your children know they always winners in your eyes.
* Extra Practice. If the coach brings up an area your child needs to work on, help them practice at home and offer lots of specific encouragement. Occasionally plan to stay after practice for an extra 10 or 15 minutes so your child can get a little extra time with their teammates. This encourages social development and team building. If your child is having trouble, also make sure to communicate with them and make sure no other teammate is bullying your child or making fun of them. This could also be a result of your child not playing well. If this is the case, make sure to contact the coach in a private setting so they can handle the problem.
–Excerpt taken from the Pinwheels for Prevention- 2011 Parent Resource Booklet
There are so many different outlets for you and your child to choose just the right sports activity for them. From soccer to karate to gymnastics and beyond, the possibilities are seemingly endless. The Marks Law Firm, P.A. wants to be a resource for all things that build a healthy foundation for families. Below are some links to local and national establishments that offer different sporting activities to the public.
Central Florida YMCA
Orlando Kids Directory
National Alliance for Youth Sports