The Marks Law Firm Blog and New Updates
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:
- Need: First, the court must determine whether or not you or your spouse needs spousal support (aka – alimony).
- 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:
- 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.
- 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.
- 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.
- 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.
- 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!
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:
Orlando Collaborative Family Law and Professionalism
By Orlando Collaborative Family Law Attorney Tom Marks
I believe that the vast majority of attorneys are caring and professional in their behavior and advocacy for their clients. In our adversarial system it is only natural though that by the end of the case, at least one of the parties will feel like they lost. That is especially true in Family Law, the area I practice in.
Of course, it doesn’t have to be that way and that is one of the reasons I have developed a Collaborative Family Law Practice where husbands and wives agree to work together to resolve the issues without having to take the case to Court.
Not only are both parties winners in Collaborative Law, because they avoided acrimonious Litigation, but also because both parents together have focused on their kids’ best interests.
I have actually participated in Collaborative Law Cases where both parties have felt like they are not only happy with the final results but that they believe they have done everything they can mutually to protect their children and to ensure that their children thrive even after the Dissolution of Marriage. They have chosen to love their children the most and to continue to be friends in order to co-parent their children in the most healthy and productive way possible.
A Word About “Collaborative” Family Law Attorneys
Attorneys who practice Collaborative Family Law are some of the most professional, ethical and caring lawyers I have ever met. The focus is no longer on litigation and winning at no small expense, financially, emotionally, psychologically and spiritually to the clients. And in addition to the Collaborative Family Law Attorneys, there are highly professional Neutral Collaborative Professionals like the Financial Collaborative Professional and the Mental Health Collaborative Professional. They assist the clients and attorneys in putting together Equitable Distribution Worksheets and other financial documents as well as the Parenting Plan and other important documents in the case.
I am not saying that Family Law Attorneys involved in the Litigation aspects of Family Law are not for the most part Professional. There certainly are many. But those Attorneys who have decided to focus on Collaborative Family Law, do it I believe, because they care about the process of helping clients resolve their cases in the healthiest and most productive way possible.
A Life Well Lived
by Family Law Attorney Tom Marks
I went to a funeral for a 20-year-old young woman named Jenny recently. She was the daughter of two of our best friends, Mike and Lisa who we have known for about 25 years. My wife and Lisa were pregnant together and our daughter was born two months before Jenny. Then our sons were born one month apart a couple years later. So we have lived a lot of life with our friends Mike and Lisa.
Jenny was born with a diaphragmatic hernia and had probably 50 surgeries during her short 20 years of life. Although she had significant medical issues and had to rely on oxygen most of her life she was a determined and amazing young lady.
Although we have known Mike and Lisa for 25 years I still learned so much about Jenny from the many people who got up and spoke about her many accomplishments from working at Chick-fil-A to attending college at Florida Southern College in Lakeland. Jenny had a 4.0 GPA and was in the process of working with Florida Southern and Arnold Palmer Hospital to create a new degree major called a Child Life Specialist.
The church was packed with people who Jenny had positively impacted during her life and there were a flood of tears shed but also a lot of appreciation for all of her accomplishments and the lives she’d touched. She helped families and other young lives through some very similar difficult medical paths that she had taken.
For someone who had gone through so much she had an enduring spirit, a quick wit and a precocious and determined personality. She touched a lot of people in very positive ways despite her circumstances. In short, she left a legacy that lives on.
I hope many who read this will pause to consider that perhaps our circumstances are really not that hard and just maybe we can rise above to see how much we have to appreciate and how great an impact we can have on the lives of others, just like Jenny did.
Blessings!
Who Is at Fault When Nobody’s to Blame?
One of the questions asked most during initial consultations is: “Does my spouse’s infidelity matter?” It’s a fair question, given the pain infidelity can cause. While televisions shows like “Jerry Springer” and “Cheaters” make light of spouses who don’t honor their vows, for the cheater’s other half the issue isn’t funny and demands attention.
Without a doubt, the party who has been “cheated on” has every right to be hurt or even angry, and the desire to see the cheating spouse held accountable is understandable. The same goes for parties who have been victimized by emotional affairs, disengaged spouses, or a just plain “bad marriage.”
Infidelity Irrelevant in Orlando?
However, Florida’s divorce laws render a spouse’s infidelity, and the other reasons marriages fall apart, largely irrelevant in a divorce proceeding. That’s because Florida is a “no fault” divorce state, which means the reason behind the failure of your marriage is of little importance to the Court. The Court will ask only if your marriage is “irretrievably broken,” and if either party wants a divorce, that desire is enough to “break” the marriage for legal purposes.
The Court generally does not make judgments about the health of your marriage or whether divorce is right for you, and it almost never engages in a discussion about whether counseling or other steps might save your marriage. Unfortunately, in Florida, if one spouse “wants out” of a marriage, there is little the other spouse can do, through the legal system, to stop them. Many people (including yours truly) believe we have made it too easy for people to end their marriage, but that is the current state of Florida’s law.
I write the above not to discourage anyone, or steal hope from a spouse holding on in a difficult situation. It’s actually quite the opposite. My hope in explaining Florida’s “no fault” divorce laws is to encourage those in struggling marriages to get help before considering legal options. Unless you are in an abusive situation or have been abandoned without the means to support yourself and/or your children, I urge you to explore non-legal ways to address your marital issues.
Seek out the counsel of trusted clergy or a professional counselor. Consider programs like the “Fireproof” or “Courageous” studies to see if they might be useful. Enlist friends and relatives to help you communicate with your spouse about your desire and commitment to salvage your marriage and keep you family together.
Whatever you do, don’t give up on your marriage and family just because the road gets rough. Divorce is too important a decision to make lightly, and it’s too difficult a process to endure as anything other than a last resort. If you need help figuring out the right thing to do in your situation, please contact one of the family law professionals at The Marks Law Firm so we can talk about what you can do to preserve your family and protect your marriage.
