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Divorce

Divorce: No-Fault vs. Fault Based

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When couples get divorced, one of the things that they often do is start putting blame on each other. While pointing the finger and ascribing fault to people in a divorce can have some applicability in certain areas of a divorce, it has really no applicability in one area of divorce – whether the couple should be able to get a divorce in the first place.

No-Fault Divorce in Florida

Divorce

That is because Florida is what is known as a no-fault divorce case. Putting aside all of the other issues that arise in a divorce, neither party has to show that anybody did anything wrong, nor does either party have to show that they “deserve” a divorce.

All that needs to be shown in order to get a divorce is to show that the marriage is irretrievably broken or, as is often used, that the couple has “irreconcilable differences.” This is a relatively easy standard to meet and is difficult for either party to contest. It does not require that any party did anything “wrong,” like adultery or taking marital money. It does not require any showing that one party “caused” the divorce.

The end result is that while the divorce may take time as the parties litigate the issues in the divorce, like custody or alimony or property division, the parties do not have to prove that they have a right to be divorced in the first place, nor can a party convince a court not to enter a divorce, just because a spouse doesn’t want to be divorced.

This is why, in cases where all of the issues are agreed to by the spouses, the divorce can be entered relatively quickly. With nothing like child support or alimony to fight over, where the only issue is just the divorce itself, there is little to argue or fight about, and the divorce can be entered quickly by the court.

Other States’ Requirements

Some states that have no-fault divorces do have a waiting period or a cool-off period that parties need to wait out in order to get a divorce finalized, even if all the other legal issues have been resolved between the parties. Some states have requirements that spouses must live separately for a period of time before the divorce to show the marriage is irretrievably broken.

But Florida has no such mandatory waiting period or requirements.

When One Spouse Wants to Stay Married

There are occasions where a spouse really does not believe that the marriage is broken or where a spouse believes the marriage can be saved. On the one hand, that is admirable, and courts certainly favor keeping marriages intact. But legally, a court cannot force someone to stay married to someone they no longer want to be married to.

What will generally happen is that the court will order the parties to mediation or at least suggest counseling—but the court cannot legally deny a divorce just because one spouse believes the marriage can be saved.

Often, a spouse who does not want a divorce will not answer divorce paperwork that is served on them or file responsive documents to the divorce petition. That is a bad idea, the court can enter a default against a spouse who does not respond, and the spouse can lose valuable rights to property or the ability to get or receive alimony.

Issues Within the Divorce

What does get confusing is that some issues that relate to fault and thus have no relevance to the divorce itself (i.e., whether the parties have a right to get divorced) may have relevance (and thus cause fighting) in issues surrounding or within the divorce. In other words, the fact that it is easy to ask the court to get divorced does not mean the issues within the divorce are easily resolved.

For example, a spouse may argue that the other spouse has or had a bad drug problem and that the drug problem caused the problems in the marriage. That does not matter for the purpose of getting the divorce-the divorce will, eventually, be granted, drug problem or not, regardless of whether it caused the parties to divorce. But it may matter when it comes to issues like time-sharing with kids or division of property.

The same goes for adultery. The fact that a spouse cheated does not matter in terms of whether the parties have a legal right to get divorced. It may matter in terms of alimony (adultery is a factor that courts can consider when making alimony awards).

Misconduct that affects finances and property may be an issue. So, for example, if a cheating spouse spent a lot of marital money on his or her affairs, that does not mean they are “at fault” for the divorce itself, but it could affect that spouse’s right to receive property in the divorce.

Courts Do Not Ask About Fault

Outside of these specific issues that are resolved as part of and within a divorce, courts will almost never ask why the couples are getting divorced or whose fault the breaking of the marriage is. Practically, those reasons often come out while dealing with other issues (child support, property division, or alimony), but the court does no inquiry to see who caused the marriage to fail.

Additionally, there are no presumptions based on fault. So, for example, the fact that a husband may have been a “bad husband,” causing the marriage to fail, will not make it any more or less likely that he will get time-sharing with the kids or that he will have to pay or not pay or receive alimony.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

How Can I Keep My Divorce Private in Florida?

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Divorce private in florida

Your divorce can become very public very quickly unless you decide that maintaining your privacy is a top priority. In Florida, public records often exposed in personal matters, so finding ways to keep a divorce confidential can be a complex task. However, there is hope for protecting your privacy when you choose to use the Collaborative Divorce process.  Collaborative Divorce offers a path where your personal details can remain shielded from the public eye.

 In most cases, divorce records, including financial affidavits and marital settlement agreements, become part of the public domain. This lack of privacy extends to various divorce scenarios, such as mediation’s, uncontested cases, or litigated cases, where sensitive information is laid bare for anyone to access.

However, the noteworthy exception found in Florida is the Collaborative Divorce process. Collaborative Divorce involves resolving issues amicably with the help of a collaborative team that includes attorneys, financial experts, and mental health professionals. What sets this process apart is the ability to bypass the filing of financial affidavits and detailed settlement agreements. Instead, the final judgment in a collaborative case remains basic, keeping private information out of the public records.

Collaborative Divorce introduces a layer of confidentiality by allowing you to file a notice indicating that your case is proceeding through the collaborative process. By doing so, the court is aware that the divorce will be handled a collaboratively leading to a more streamlined and confidential resolution. When cases are successfully resolved through collaboration, the court welcomes the omission of certain documents from public records, acknowledging the commitment to confidentiality.

In addition to streamlining court proceedings, the collaborative process offers private meetings exclusively with you, your spouse, and the collaborative team. These meetings remain confidential, shielded from public scrutiny, as outlined in the participation agreement signed by both of you. This agreement extends beyond physical meetings, covering all correspondence related to the divorce, ensuring that discussions and decisions stay within the confines of the collaborative process.

In essence, the Collaborative Divorce emerges as the optimal choice for those seeking to safeguard their privacy during a divorce in Florida. Simply put, “What happens in a Collaborative Divorce stays in a Collaborative Divorce.” By choosing collaboration, you  can navigate the divorce journey with the assurance that your personal affairs remain shielded from public exposure, providing a true sense of privacy during an otherwise challenging time.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

Divorce with Adult Children: Unseen Challenges

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Gray divorce can have some unexpected and unique challenges especially when there are adult children. While society often focuses on the impact of divorce on minor children, the influence of adult children in the divorce process is a topic that deserves attention. The influence of adult children in a couple’s divorce can have a positive and negative impact on the divorce process. Let’s look at how adult children can impact the divorce of their parents.

Positive Influences

Adult Children and Divorce

In some cases, adult children can provide important support to their parents, especially if the spouses are older. The aging process may bring about additional challenges, such as decisions related to living arrangements and retirement. In these situations, adult children play a valuable role in helping their parents to navigate these complex choices.

Negative Influences

Sadly, adult children’s involvement is not always constructive. One challenge that arises is when a child takes sides, advocating for one parent over the other. This can stem from various motives, such as concern about inheritance or aligning with the parent who shares the child’s perspective. Such dynamics can inject unnecessary tension and complexity into the divorce process.

An Important Rule: Avoid Taking Sides

Adult children may feel compelled to choose sides. However, they should maintain communication with both parents, assuring them that they are supportive without taking sides. This approach not only preserves the relationship between parents and children, but also prevents unnecessary rifts within the family.

Confidentiality and Communication

A significant risk is turning adult children into confidants, potentially burdening them with the emotional weight of the divorce. Divorcing couples should consult with their attorney for legal questions instead of turning to their children. Communication with adult children is encouraged, but it should focus on logistical aspects such as living arrangements, grandparent visitation, and other practical considerations.

Preserving Family Relationships

A divorcing couple and their adult children should recognize that divorce doesn’t only impact the spouses but extends to the children and to their future relationships. Divorce at an older age can create a generational defining point, influencing the relationships between children and grandchildren. Proper handling of the divorce process is crucial for preserving family ties and ensuring that the impact on future generations is minimized.

Legal Considerations

It is important that the legal professionals representing the divorcing couple be aware of the ages and relationships of adult children to each spouse. This awareness helps attorneys anticipate potential external influences, whether positive or negative, and tailor their guidance accordingly. Attorneys play a crucial role in guiding their clients through the divorce process, taking into account the complexities when adult children are involved.

Divorce involving adult children is a complex experience that demands careful consideration from everyone that is involved. You should remember to rely on your legal team to guide you through the process, helping you to navigate the complexities when adult children become part of the divorce equation. By fostering open communication, avoiding partiality, and recognizing the long-term impact on family relationships, it is possible to mitigate the challenges and pave the way for a more amicable and respectful divorce process.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

Florida Divorce: Five Common Questions 

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Getting a divorce can, at first, seem scary. There are a lot of unknowns, and yes, your life will change to some extent. But often, it is not the divorce or the prospect of being divorced that is so scary—it is the fear of the unknown.

Having some peace of mind about what happens in a divorce and getting some common questions answered can go a long way to making you feel better about it.

Will I Lose the Kids?

In almost every divorce involving children, nobody “loses” their kids. A court may or may not give you the amount of time-sharing (overnights) with the kids that you want, but the court will almost never completely prohibit a parent from seeing their kids or prohibit a parent from making decisions about the kids’ lives or from having a meaningful relationship with the kids.

Florida Divorce

Even if you ultimately do not get the number of overnights that you wanted, you still would have equal custody over your kids—that is, the ability to share in decisions about the child, like schooling, health, and other major decisions.

Even things that you think may disqualify a parent from having meaningful time with children, like adultery or alcohol or drug abuse, will not necessarily mean that a parent does not have custody or time-sharing over his or her children, so long as there is not an immediate, present danger to the children.

The exception is when a parent may present a danger to a child. But where possible, the court will allow a parent supervised visitation or allow a parent to get help to get over whatever is in their background that presents a danger, and then the court can revisit time sharing or custody in the future.

How Will I Pay My Bills?

Certainly, divorce is a financial strain; you are going from sharing expenses, like a mortgage, food, car payments, etc, to now having two separate sets of expenses. That is compounded by situations where there was, during the marriage, only one income earner.

If there are kids involved, the court can and will order that a fair amount of child support be awarded based on the child support guidelines, which will help pay for the kids’ expenses.

Outside of child support, the court can award alimony to a parent. Marriages that last more than seven years have a better chance at an alimony award, but even shorter-term marriages can, in some cases, have an alimony award.

Alimony payments can help the spouse receiving alimony through a temporary period or can even help pay the spouse’s expenses while the spouse “gets back on his or her feet” by going to college, getting training, or doing something to try to assimilate him or herself back into the workforce.

There is even the possibility of temporary alimony, which is paid while the divorce proceeding is going on. This can allow a spouse to live without having to worry about bills, even during the course of a longer-term, more contentious divorce.

How Long Will the Divorce Case Last?

The answer to this depends on you and your spouse. Like any legal case, the more you fight and the less room there is for compromise, the longer the case will go. Some couples that generally agree on most of the issues in the divorce may find that the case only lasts a few months.

Of course, there are some things that you cannot compromise on, and there are some people that just cannot be compromised with. So, the length of time your divorce goes on is somewhat, but not completely, dependent on you. Going to alternative dispute resolution, like mediation, can help resolve some, and sometimes all, of the issues in your case more quickly than they otherwise would be resolved.

Will I Lose My Property in the Divorce?

In most cases, people do not lose property entirely they will often have to divide property that is considered marital property.

Whatever belonged to a spouse before the marriage and which was not intermingled with the other spouse’s property will remain separate property and cannot be divided in the divorce. So, if you had an inheritance, kept it in a separate bank account in your name, and did not change that, that inheritance would remain yours.

But if you deposited that inheritance into a joint marital bank account, and then used some of the money to pay marital expenses during the marriage, then that property could be considered marital property subject to division.

Because most married couples tend to share property—not protect and hoard it for their own personal use—a lot of property tends to be subject to division. But not all property—and you can “trade off” property, where one spouse keeps 100% of some property, and the other spouse keeps 100% of another property, instead of liquidating or dividing a given asset.

Some property may not be able to be neatly divided, like a business, property, or land. That property may need to be sold, and the profits shared. Some property may even have to be valued by an expert to see what it is worth before it can be divided.

Again, mediation tends to work well for this kind of “give and take” or back and forth when it comes to property division.

How Do I Prepare for My Divorce Before it Happens?

How much to prepare depends on your situation. If you and your spouse are amicable, and both agree on the divorce and can cooperate, you may not need to prepare as much, knowing you will be OK, even after the divorce starts.

Absent that, some things you can do include:

  • Make sure that you have access to important documents that you need, including any (online or real-world) passwords or account numbers; although it is rare, to be safe, assume you will not be able to access this information the way you do now once the divorce starts.
  • The divorce will not leave you homeless, but in an emergency, have a friend or relative you and the kids can go to if you need a “safe space” or just somewhere to be for a night, just as a safe backup.
  • If you share online accounts with your spouse, like emails or bank accounts, print out hard copies of documents that you think you may need in case you lose access to those accounts

Do not let the unknown frighten you–get the answers you need in your divorce case.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

Navigating the Complexities of a High Net Worth Divorce

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In the eyes of the law and in divorce law, we are all treated the same, regardless of how much money we make or how many assets we may have. But that does not mean that all cases are handled the same way. And when it comes to high-net-worth divorces, there can be complexities and legal issues that may not be encountered in other kinds of divorces.

What is High Net Worth?

There is no actual legal definition of what a “high net worth” divorce is. It obviously is a divorce where one or both of the spouses have a higher income or significant assets. But there is no dollar figure where above or below that amount, the divorce is considered officially high net worth.

More Assets, More Discovery

Although it is dangerous to stereotype, it is safe to say that in many high-net-worth divorces, one or both of the spouses will have income that may be generated from a number of different sources. And although, as in any divorce, the parties will have to fill out a complete financial affidavit, in high net divorces, that affidavit often only tells part of the story, financially.

Because of this, high-net-worth divorces may require that the parties do discovery more extensively than what may otherwise be the case.

In a high-net-worth divorce, there often is not just one job, a paycheck, and a single bank account. Rather, there could be income from multiple sources like investments, appreciating real estate, businesses, or intellectual property ownership. Spouses with businesses or other financial investments may have money held in mutual funds, business accounts, PayPal accounts, cryptocurrency, or even overseas bank accounts.

Getting a Value on Assets

Much of what is owned in high-net-worth divorces is not so easy to value.

If someone owns a home, there can certainly be differing views on what the home is worth, but there is a generally accepted range of values for that home.

But in high-net-worth divorces, things like businesses become hard to value. Business valuation requires an expert witness, and there are many different ways to value a business. A business can have more or less worth or value, depending on the methodology used to value it.

Many spouses getting divorced, whose spouses have businesses, will insist that the business is doing well and making plenty of money. But the spouse who owns the business will insist the business is struggling and on its last legs. Getting to the truth of the matter often requires accountants and extensive reviews of corporate and banking records to actually see how the business is doing.

Selling Valuable Assets is Not Easy

Assets in a high-net-worth divorce are often difficult to sell and divide. For example, someone may have a stock or investment (or many), or land or real property.

Sure, the court could just order the investment or property to be liquidated and the profits from the liquidation divided—but what if keeping the asset intact is in the best interest of one of the spouses (or perhaps the children of the marriage)? What if the asset would incur a penalty for liquidation, like a CD, where you can stand to lose a lot of money by cashing out on the CD too soon?

In some cases, assets or property cannot legally be liquidated, such as where a spouse has an interest in an LLC or a partnership, and the corporate documents do not allow the sale (or legal transfer, as in a divorce) of an interest in the business to a third party.

Parties may not even be able to keep an asset even if awarded to them; a spouse may have a one-half interest in the marital yacht, but if that spouse only makes $45,000 a year, that is not enough to keep and maintain that yacht. That spouse may need an asset to be sold to get value from it.

In these kinds of scenarios, the parties may have to work out a payout, leaving one party the asset, and the party that keeps that asset must pay the other spouse what their interest in the asset would be if it was liquidated.

This often happens with real estate, businesses, or intellectual property. It means that these assets must first be fairly valued first, and then, the party keeping the asset, must find a way to pay the other spouse their interest in the asset or property.

Issues With Kids

Division of assets becomes more difficult when there are kids involved. Aside from child support issues, some property may have to be kept to accommodate the kids, regardless of what the spouses want to do with that asset.

For example, if, for some reason, it is in the best interest of the kids to remain with Mom most of the time, those kids may need to remain in the marital home to maintain stability in their lives. That means that the home cannot just be sold, and Dad may not be able to live there, even if he wants to.

Issues like private school, tutoring, summer vacations, and other resources utilized for children of higher-earning families may need to be accommodated in any child support agreement.

When Only One Spouse Has Money

High-net-worth divorces can present different legal issues when only one of the spouses is a high earner. In that case, the spouse without the assets or income will often seek temporary attorney’s fees or temporary alimony or support from the spouse who has the assets.

This is done through a motion with the court that is often heard at or near the commencement of the divorce case. Although temporary support is not final—it can be changed by the final divorce judgment when entered—it can sometimes be an indication of how the entire divorce case will ultimately turn out when it comes to support issues.

Temporary support can make it fair and allow a spouse to hire attorneys to defend their interests—but for the paying spouse, it can increase the cost of the divorce.

In any case where there is an imbalance of assets or income, alimony will also be an issue. Assuming the marriage lasted long enough, courts will usually not allow one spouse to leave the marriage destitute while the other takes their business, real estate, and investments and walks away.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.

How Do We Tell Our Children That We Are Getting a Divorce?

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Breaking the news about your divorce to your children is one of the most difficult conversations you will ever have with your children. How you and your spouse handle this conversation matters. It is the first step in your divorce process in keeping your children’s well-being at the forefront of your divorce process.  Here are 5 tips how to talk to your children about divorce.

1. Both Parents Need to Be Present:

Talking to children

It is imperative that you deliver the news when both you and your spouse are present. This not only ensures that your children hear the information from both sources simultaneously but also fosters a sense of security. Often, children find out about divorce from one parent or overhear conversations, leading to a barrage of questions. When both parents are present, it establishes a united front, providing a safe space for the children to process the news and ask questions with the support of both parents.

2. Choose the Right Time:

Timing is crucial. Telling your children over a weekend rather than a school night is an excellent approach. This allows them the space and time to absorb the information without the immediate stress of academics. A Saturday morning is recommended, providing the entire weekend for them to digest and process the news. A conversation early in the weekend allows the children to have time to ask questions before they return to school.

This way, when they return to school on Monday, they may be in a better emotional state to handle the situation.

3. Proactive Communication and Age-Appropriate Responses:

Children often internalize blame during a divorce, thinking it’s their fault. It is important that you and your spouse are proactive about this issue. Addressing this concern before they ask demonstrates your awareness and prevents unnecessary guilt from settling in their minds. Furthermore, when explaining the reasons behind the divorce, tailor your responses to the age of your children. Younger children may need a more simplified explanation, while older ones may benefit from a more detailed conversation about the situation.

4. Addressing Future Concerns:

Anticipate that they will have questions about practical matters, such as living arrangements and potential school changes. If you don’t have all the answers, reassure them that decisions are being made with their best interests in mind. Create a supportive environment by assuring them that their concerns are valid and that you’re actively working on solutions.

5. Choose a Child-Centered Divorce Process:

Finally, be aware of the idea that you can choose a divorce process that can prioritize children’s well-being. Collaborative Divorce involves a neutral professional specifically trained in handling parenting plans. This out-of-court option empowers parents to make decisions that align with their children’s best interests, steering clear of potentially damaging court battles.

The journey of divorce is always an emotional challenge, but approaching the conversation with sensitivity, transparency, and a child-centric mindset can make a significant difference in how your children navigate this difficult time.

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124, Winter Park, FL. 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email an*****@************aw.com or visit anthonydiazlaw.com for more information.

And if you found this article helpful, please leave us a review HERE.