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Common Divorce Questions Debunked – Stop Listening to Your “Soon to Be” Ex

Sean_l._Collin300As a divorce attorney I routinely have potential clients come into my office who tell me, “I didn’t come to your sooner because my spouse told me “blah blah blah” and as a result I was afraid to seek a divorce” Many times a soon-to-be divorced spouse will tell their significant other lies (usually related to alimony, equitable distribution, or time-sharing) in an attempt to scare or dissuade them from speaking with a divorce attorney.

As a courtesy to all the potential divorcees who are hearing false information from their spouse prior to divorce, I created a cheat sheet of answers for some common divorce related questions.

As always, please call attorneys Sean Collin and Philip Snyder for further clarification on any divorce related question– the consultation is free.

ALIMONY: If you file for divorce the Court cannot award you alimony for more than two years.

This is FALSE. In Florida, the Court has the ability to award many different types of alimony over many different years based on its level of appropriateness.

The types of alimony available include: (1) temporary; (2) bridge-the-gap; (3) rehabilitative; (4) durational; and (5) permanent. The Court will make a determination on alimony based on whether the requesting spouse has a need for alimony and whether the payor spouse has the ability to pay alimony. The Court will consider all relevant factors, many of which are included in Florida Statute 61.08. One of the first factors the Court will look at is the duration of the marriage. The duration of the marriage (less than 7 years, between 7-17 years, greater than 17 years) triggers certain presumptions as to which type of alimony is appropriate. It shall be noted that bridge-the-gap alimony (alimony that provides transitional assistance) may not exceed two years. That being said, bridge the gap alimony is only one type of alimony and can be combined with the other types of alimony listed above.

ALIMONY: If you file for divorce, I am automatically entitled to alimony.

This is FALSE. The Court will not award alimony unless the requesting spouse can show a need for alimony and that the payor spouse has an ability to pay – alimony is not automatically awarded. For example, if Husband and Wife are both earning similar incomes (Husband: Teacher / Wife: Sales) the Court may not find that either party has a need or ability to pay alimony.

 

ALIMONY: If you file for divorce, “I” will decide how much alimony to give you and for how long.

This is FALSE. Without the entry of mutually agreeable marital settlement agreement, the Court (and not simply the higher-income spouse) will determine the length and amount of alimony awarded. We are in the year 2014, not 1954.

Although the purpose of alimony is not to “equalize the financial position of the parties” and/or continue exactly the same “standard of living”, it should provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties. The Court will consider all relevant factors, many of which are included in Florida Statute 61.08, before determining which type of alimony to award, the length of alimony award, and the amount of alimony to award.

In a short-term marriage (less than seven years), a spouse is eligible for all forms of alimony although an award of permanent alimony must be accompanied by “written findings of exceptional circumstances”. In short-term marriages, bridge-the-gap alimony is commonly awarded.

In a moderate-term marriage (greater than seven years but less than seventeen years), a spouse is eligible for all forms of alimony but must establish a need for permanent alimony by “clear and convincing evidence”. In moderate-term marriages, durational alimony is commonly awarded.

In a long-term marriage (greater than seventeen years), a spouse is eligible for all forms of alimony. The Court will award permanent alimony if there is an ongoing need for support on a permanent basis and no other form of alimony is fair and reasonable under the circumstances.

It should be noted that durational alimony may not exceed the length of the marriage. For example, the Court cannot award a Wife in a five year marriage ten years of durational alimony as ten is greater than five.

ALIMONY: If you file for divorce, you will be paying me alimony forever.

This is FALSE (most of time). Provided alimony is appropriate (the parties have a need and an ability to pay), the Court will consider all relevant factors, many of which are included in Florida Statute 61.08, before determining which length of alimony award is appropriate.

In a short-term marriage (less than seven years), a spouse is eligible for all forms of alimony although an award of permanent alimony must be accompanied by “written findings of exceptional circumstances”. In short-term marriages, bridge-the-gap and rehabilitative alimony is commonly awarded. Bridge-the gap alimony is intended to provide transitional assistance to party who must adjust their life from married to single. The length of this award may not exceed two years.

In a moderate-term marriage (greater than seven years but less than seventeen years), a spouse is eligible for all forms of alimony but must establish a need for permanent alimony by “clear and convincing evidence”. In moderate-term marriages, durational alimony is commonly awarded. Durational alimony is intended to provide a party with economic assistance for set period of time. It should be noted that durational alimony may not exceed the length of the marriage. For example, the Court cannot award a Wife in a five year marriage ten years of durational alimony as ten is greater than five.

In a long-term marriage (greater than seventeen years), a spouse is eligible for all forms of alimony. The Court will award permanent alimony if there is an ongoing need for support on a permanent basis and no other form of alimony is fair and reasonable under the circumstances. Although permanent means forever, permanent alimony can be modified if the parties can show a material, substantial and unexpected change in circumstances (i.e. job loss, retirement, etc.) or if the receiving party does not have an ongoing need for support (i.e. remarries, inheritance, new job, etc.). With regards to retirement, the Court will consider the payor’s spouse age, health, and motivation for retirement, as well as the type of work the payor performs and the age at which other engaged in that line of work normally retire.

Please note that the Florida legislature has recently proposed changes eliminating (further reducing) the component of permanent alimony.

EQUITABLE DISTRIBUTION AND ALIMONY: If you file for divorce, the Court will award me all the assets as I am the mother.

This is FALSE. The Court will begin with the premise that the parties will equally distribute all the marital assets and liability acquired during the marriage. The Court may decide to award the marital home to one party when it would be equitable to do so and/or it is in the best interest of the minor child(ren). In this case, however, the Court may award marital assets to the other party to equalize the distribution.

It should be noted that in additional to commonly associated marital assets (such as cash, stocks, bonds, etc.), other assets to consider for equitable distribution include all retirement accounts (i.e. 401k, IRA), real property, and business ownership. AFTER equitable distribution is taken into consideration, the Court will look at requesting spouse’s need for alimony. The Court will look at the following factors, including, but not limited to: (1) the parties’ earning ability; (2) age; (3) health; (4) education; (5) duration of the marriage; (6) standard of living; and (7) value of the parties’ estates to determine whether alimony is appropriate. The fact that one party is a mother, however, may factor into her need for alimony as her earning ability may be limited if [mother]has been out of the job market / stopped going to school to tend to children, etc.

EQUITABLE DISTRIBUTION AND ALIMONY: If you file for divorce I will hide all of our assets AND If you file for divorce I will lie about how much money I make.

Two common questions – both FALSE.

In every divorce, the parties must complete a financial affidavit (a snapshot of your financial net worth) and participate in mandatory disclosure. Mandatory disclosure requires both parties to share their financial documents, including, but not limited to: (1) a federal and state income tax returns for the past 3 years; (2) IRS forms W2, 1099, and K1 for the past year, if the income tax return for that year has not been prepared; (3) pay stubs or other evidence of earned income for the 3 months prior to service of the financial affidavits; (4) all periodic statements from the last 3 months for all checking accounts, and for the last 12 months for all other accounts (savings, money markets, etc.); (5) all brokerage account statements over the past 12 months; (6) the most recent statements in for any profit sharing, retirement, or pension plan (IRA, 401k, 403b, SEP, etc.). As a result, we will have a very accurate picture of the parties’ assets/liabilities and earning history. A neurosurgeon driving a Porsche simply cannot “claim” to earn $40,000.00 per year. If for whatever reason mandatory disclosure does not paint an accurate picture of the parties’ net worth (often in cases where one of the parties runs a cash business or is able to “write off” questionable liabilities) a forensic accountant can be retained to uncover where your spouse is hiding the money. There is always a money trail – we will find it.

EQUITABLE DISTRIBUTION and ALIMONY: If you file for divorce I will stop working out of spite – we will both be homeless.

This is FALSE. Courts disfavor spouses that clearly quit their job or take a lesser-paying job to avoid alimony and child support obligations (i.e. a lawyer who quits his/her lucrative practice to teach).

The Court has the ability to impute income to the unemployed or underemployed spouse if the Court determines that (1) the reduction of income was voluntary and (2) any subsequent unemployment or underemployment resulted from the spouse’s pursuit of his own interests through less than diligent and bona fide efforts to find employment at least at an equal to or better than formally received. Stated another way, the Court can require the voluntary unemployed or underemployed spouse to continue to pay his/her obligations (i.e. return to work, sell off assets) or face sanctions.

EQUITABLE DISTRIBUTION and ALIMONY You cheated on me (adultery) so I will get everything in the divorce.

This is FALSE. Florida is a no-fault divorce State. The Court does not take into consideration the reason(s) for the divorce; adultery has no effect on the amount of alimony or equitable distribution awarded. One exception is if the act of adultery depletes marital funds (i.e. the adulterer is paying for his mistress’ living expenses, vacations, trysts, etc.). In this case, the Court could award the faithful spouse an unequal distribution of the marital assets.

 

EQUITABLE DISTRIBUTION: If you file for divorce, I will change the locks and/or kick you out of the house.

This is FALSE. Absent exceptional circumstances (i.e. domestic violence allegations), both parties have equal access to the marital residence. The Court does not care how uncomfortable the parties will be under this arraignment (assuming domestic violence is not an issue). Think of the movie “The Money Pit” starring Tom Hanks and Shelly Long.

 

EQUITABLE DISTRIBUTION: If you file for divorce, everything that “I” earned during the marriage (bank accounts, retirement, stocks, property) is mine.

This is FALSE. The Court will begin with the premise that the parties will equally distribute all the marital assets and liability acquired during the marriage. Despite the fact that the party with the higher-paying job may have paid for certain items or deposited certain monies in his/her bank account, IRA, etc., the Court looks as if these assets were equally earned and as such should be equally distributed during a dissolution of marriage. It does not matter that one of the parties put certain assets in his/her name only – (barring some exceptions) the Court will consider these assets to be marital in nature if acquired during the marriage.

It should be noted that an asset acquired separately by either party through a non-interspousal gift (i.e. inheritance to one party) will be considered a non-marital asset.

 

EQUITABLE DISTRIBUTION: If you file for divorce, I will quickly “burn through” all the assets leaving you with nothing.

This is FALSE. The Court will begin with the premise that the parties will equally distribute all the marital assets and liability acquired during the marriage. If, however, one of the parties intentionally dissipates, wastes, depletes, or destructs martial assets after the filing of the petition or within 2 years prior to the filing of the petition, the Court can unequally distribute the assets and liabilities to account for this inequity. A common example is when one party pays back “phantom debt” to family members and friends in an attempt to reduce marital assets.

 

EQUITABLE DISTRIBUTION: You can’t file for divorce. Since I make all the money you can’t hire an attorney.

This is FALSE. The Court can award temporary alimony while a dissolution of marriage is pending to provide one spouse with funds during the divorce. Temporary alimony can include attorney’s fees. The purpose of fee awards is to ensure that both spouses have similar access to legal counsel and can participate in the case equally. The Court will look at the parties’ standard of living along with the need of the petitioning spouse and the ability of the other spouse to pay before awarding temporary alimony.

Family law attorneys commonly file Motions for Temporary Support and Attorney’s Fees when one spouse is a homemaker / stay-at-home mom while the other party is the “breadwinner” (i.e. doctor, lawyer, accountant, business owner, etc.)

TIMESHARING: If you file for divorce you will never see your child again.

This is FALSE and more often a threat by the Mother to the Father.

The Court will approve a time-sharing schedule and parenting plan describing how the parents will share the responsibilities for the daily tasks associated with the upbringing of the minor child and the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent. The time-sharing schedule and parenting plan will always consider what is in the best interest of the child. In Florida, public policy dictates that the minor child(ren) have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the mother or father of the child or for or against any specific time-sharing schedule when creating the parenting plan. It is not uncommon for the Court to award the Father 10-15 overnights with the minor child per month as a time-sharing schedule.

Please call one of our divorce and family law attorneys before taking your “soon-to-be-ex” spouse’s word as gospel. The consultation is FREE.

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