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How Collaborative Divorce Protects Families and Assets During Separation

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There is an interesting contradiction when it comes to divorce, especially if you are the one thinking of filing the divorce. On the one hand, you may want out, and you know that you are making this decision for the best. You look forward to a day when you can start over, and build a new life, with your children.

But on the other hand, nobody wants to actually file for divorce. The cost, heartache, arguing, and stress, all can keep people who know that divorce is the right option, from actually filing for divorce.

How Collaborative Divorce Helps

Separation

Enter collaborative divorce, a way to protect your family, preserve assets, and help you fast forward to that new beginning you were thinking about.

Collaborative divorce is a legal, actual divorce like any other. What is different, however, is that while the parties may personally harbor difficult feelings or even hostility toward each other, those feelings don’t draw out the divorce or make it “messy” or contentious.

That’s because as the name implies, collaborative divorce is about collaborating—both parties working together, to iron out the differences in the divorce case, outside of court. If and when all the issues are resolved, then the case is brought before a judge, to finalize the divorce.

Getting an Attorney

Like any other divorce, you will have and retain your own attorney, as will your spouse. But while your attorneys are there to represent you and fight for your rights in the divorce, they are also there to work with the other spouse and try to get them to the bargaining table to work on the issues in the divorce.

How do you know that the attorneys will not just throw the whole collaborative thing out, and revert to cutthroat, contentious divorce tactics? It is because only attorneys trained in collaborative divorce can handle these kinds of cases, and the attorneys are not only trained to advocate for the clients, but also, to ascertain the motives, needs, and desires of both sides, to fashion a workable solution to the problems in the divorce.

Creative Solutions

One major way that collaborative divorce can protect your assets is that, like bargaining for anything, you can engage in a give-and-take and work out creative solutions to the issues in the divorce.

The problem with going to court is that a family law judge’s hands are tied. He or she can only award to either spouse what the laws say that the judge can award. The judge cannot “think outside the box,” or come up with ideas that may work for the parties. But in a collaborative divorce, so long as both sides agree, you can work out whatever solution you want.

Let’s imagine that you have a business, and your (soon to be ex) wife owns stock in your business. You no longer want her to own those stocks, but you don’t have the money to buy them back. You could negotiate to pay more alimony, or to give her an extra asset, or to make payments to her over time, in return for the stock.

Let’s say that the kids really enjoy their music lessons, and you want to ensure they keep taking them. Your ex doesn’t agree. You could agree to give your ex something—more time with the kids every now and then, or a slight reduction in support—in return for your spouse’s agreement to pay for the music lessons.

These are just simple examples of how you and your spouse can devise creative solutions to real-world problems in a collaborative divorce.

These would be hard problems to work out in a normal, contested, divorce case, because the judge doesn’t have the legal ability to work these kinds of solutions out—not to mention, in the course of a hotly contested divorce cases, neither party is often in the frame of mind to hammer out creative solutions that work for both parties.

Using Experts to Make Good Decisions

Wouldn’t it be great if you had financial professionals and mental health counselors and investment professionals, all there to advise you as to the decisions you are making in your divorce? In collaborative divorce, you can have that. And because your expert is not fighting with the other side’s expert, as they would be doing in a contested divorce case, there is less expense, and more certainly, as the experts are working for both of you, advising you as to the consequences of the decisions you are making in your divorce.

A Lasting Peace

Another benefit, which can have an even longer lasting effect, is the fact that because of the nature of a collaborative divorce, when it is over and the issues are agreed upon and the divorce entered, the parties have not spent months (or more) at each other’s throats.

That means that there is no long-lasting contentiousness, hostility, or anger that there often is at the conclusion of a full-blown contested divorce that ends in a divorce trial.

This can have an enormous benefit on you, mentally, but also in your and your spouse’s ability to co-parent the children, post-divorce.

Your Time Frame

Although you can work at your own pace in a collaborative divorce, the good thing is that you can take matters as fast or as slow as you want. Is there a difficult issue that it may take time to resolve? No problem—the parties can spend as much time as they need, working with the other side, to work that issue out.

Want to get it done as quickly as you can? You can do that as well—because you are not arguing and not in court, there is no waiting on a judge’s calendar to open up so your lawyer can get a hearing in court.

All of this ensures that the assets and property in your divorce case, are divided fairly, that your voice and position are being heard, and that the kids’ needs will be met, post-divorce.

Certainly, there are times and situations where things cannot resolve amicably. But if there is even a glimmer of a chance of collaboration and teamwork between you and your spouse, collaborative divorce may be the way to get that divorce finalized in a way that works for both of you—and which protects your children, and your assets.

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 www.AnthonyDiazLaw.com

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

Protecting Your Assets: Pre and Postnuptial Agreements Explained

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We have all heard people facing divorce lament that they will “lose all their stuff” in the divorce, whether that is actually true or not.

For many people, the uncertainty of what could happen to their assets and property or money in a divorce is a deterrent to even getting married in the first place. It should not, and need not, be or feel this way, and one way that couples can go into a marriage with some security should things not work out as planned is through the use of prenuptial agreements, executed before marriage, and postnuptial agreements, which are executed during the marriage.

What Do These Agreements Do?

Husband and Wife

Both of these types of agreements do the same thing: they set forth the rights of the spouses in the event that there is a divorce later on down the road.

These agreements are most often used to protect property or assets, providing that one spouse or the other will or will not receive certain property or setting out how much of a given asset each spouse would get in the event of a divorce.

These agreements can also provide or take away rights to alimony, but they cannot be used for predetermined rights that have to do with children, such as custody, timesharing, or child support.

Marital and Non-marital Property

Pre and postnuptial agreements will often list property that is owned by the couple, or list property that either one spouse, individually, is bringing into the marriage. The agreement will often state that the property or assets will remain that of one spouse or another, even on divorce.

These agreements often prevent the common problem of non-marital property from becoming marital upon marriage.

For example, even though a wife may have had, started, and owned a business before marriage, if the couples are married, and the assets of the business are used for marital purposes, or if the husband puts marital time, money, or assets in the business, that could transform the business from non-marital (the wife’s alone) to marital property subject to division by a court.

However, the use of prenuptial and postnuptial agreements avoids this problem. You can state that whatever asset you want that is non-marital stays that way.

Prenuptials can even state who gets property when that property or asset does not exist at the time the contract is executed. So, for example, it could say that should either spouse start a business or get an inheritance in the future, the assets will remain the property of that spouse.

Protection for Relatives

Because pre- and postnuptial agreements ensure that nonmarital property listed in the agreement stays that way, they can also allow relatives more freedom to give assets to the marriage.

So, for example, a wife’s mother who wants to pay for the couple to own their first home can ensure that the husband does not get the home in the event of a divorce, so long as the spouses agree to this in the agreement. Relatives are free to give whatever they want to the marriage safely, knowing that if there is a divorce, their relative will get that asset or property.

Use and Possession of Property

These agreements can also provide other benefits that do not have to do with which spouse gets what.

For example, parties can agree on who will get to use or live in the marital home while the divorce is pending. It can state which spouse gets to use other assets, like vehicles, boats, or other benefits.

If spouses own a business, it can address what happens to both spouses in relation to the business—for example, whether both spouses will continue to get dividends or profits from the business, and what level of management both spouses will continue to have in the business.

Elective Share

Parties can also waive elective share in pre- and post-nuptials. The elective share is property one spouse gets from the other, should the other spouse pass away. Parties may prefer that children of a prior marriage, parents, or some other relative receive their assets instead of the new spouse, and this can be accomplished through a pre or postnuptial.

Attorneys Fees if There is a Divorce

The agreements also can state who will pay attorneys fees in the event of a divorce, including temporary fees, incurred while the divorce is going on. This can avoid a situation where a spouse with lesser assets feels powerless in a divorce, or feels like they “can’t afford a divorce.”

While these agreements cannot alter any rights regarding child custody or child support, knowing that the other spouse will have to pay attorneys’ fees can help a spouse fight for rights regarding the children, if need be, in a divorce.

Flexibility

Because these are both contracts, you and your spouse are free to tailor them how you see fit. You can include all your assets or only some of them. You can state who gets what asset in a divorce or come up with a method or formula to be used later on in the event of divorce that will tell the spouses how much of a given asset that they get. You can determine in advance how assets that don not have a definitive value will be valued or appraised.

Making Them Legal and Enforceable

Both pre and postnuptial agreements are similar in their procedural requirements—that is, what it takes to make them legally binding and enforceable.

One absolutely mandatory requirement is that both parties must disclose to the other, in full, all of the assets that they own before the contract is signed. It does not matter that the other spouse may know what you own anyway. Disclosures of every kind of asset (often done with a financial affidavit form) are mandatory.

Also mandatory is providing the other side the opportunity to get their own attorney if they so choose. When it comes to prenuptials, that means that the agreements must be exchanged with enough time for both parties to get their own attorney. Parties should never coerce, pressure, or threaten the other spouse, in order to get them to agree to either type of agreement.

Both agreements can be challenged if they are not executed properly and with these procedural requirements, so it is important to make sure you are not pressuring the other spouse to sign and to make sure you have fully disclosed to the other spouse every asset that you own.

Let us help you get some peace of mind with enforceable pre or post nuptial agreements.

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.

Asset Protection: Strategies for Divorce

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One thing that many people, understandably, worry about when they are getting ready to go through a divorce is protecting their assets. While not all assets are divided or split in a divorce, some certainly may be, and that leads people to wonder what strategies they can use pre-divorce, to protect as many assets as they can from being divided.

Asset Protection in Divorce is Different

Remember that asset protection, in the context of a divorce, is different than traditional asset protection that you may do to protect your property from creditors.

The laws that make certain property “exempt” from collections do not necessarily apply to a divorce (at least, not to spousal support obligation); the law may let you shield property from Chase Bank, but it does not want you to hide property from your spouse.

The other thing to remember is that when we talk about asset protection, we are talking about property—not income. In other words, it is one thing to use a strategy to try to ensure that property, like a business, a car, or a boat, is not divided. But that does not mean that your income will be hidden or lowered, income that is often used to determine things like alimony and child support.

Starting Early?

Many asset protection strategies, when planning for divorce, have an inherent contradiction to them. To be effective, many of them need to be established or set up early—long before you file for a divorce. Of course, too long before a divorce, and you may not even be thinking about a divorce, and thus, it may not even dawn on you to start to implement these strategies.

Separating Assets and Property

One strategy is to keep your separate property separate from marital funds, paying marital bills, or buying things for the marriage. If there is truly money you want to protect from division upon divorce, it should be kept in a separate bank account and not used for things that benefit both spouses jointly. This is called “commingling,” and it can turn property or money that is yours and yours alone into property that a divorce court can divide in a divorce.

Using Pre and Post Nuptials

Another strategy is to have a prenuptial or postnuptial. While effective, these two things do have inherent practical problems: If you have not already drafted a prenuptial agreement and you are married, it is too late. You can still do a postnuptial agreement, but that, of course, may signal that you are considering divorcing your spouse.

Protecting Businesses

Smaller businesses may benefit from getting a business valuation. The valuation will give an estimate of what the business is worth.

This can be beneficial because some spouses have an inflated idea of the worth and value of a business. If the valuation comes back with a low value, or even a negative value (some businesses simply are not worth money), it can be a helpful tool for you to negotiate keeping the family business.

Using Trusts

In some situations, putting assets in a trust could be helpful to you. This is usually done with trusts that are irrevocable.

Domestic Asset Protection Trusts and other offshore accounts can be helpful and effective. Offshore accounts are not necessarily automatically shielded from division in a divorce, but they that are hard for spouses to find and difficult for attorneys to collect against if a judgment is entered.

However, with many of these trusts, you do not have ready access to the funds and property put there, so you should be careful about putting money there that you need to access to pay regular, daily expenses.

Tradeoffs of Assets and Debts

One way that you can protect a particular asset that you absolutely cannot bear to part with in a divorce is to make a tradeoff.

For example, if your spouse’s interest in the marital boat is $30,000, and you really want to keep the boat, you could opt to just buy out your spouse for that amount or increase payments to your spouse to pay off that amount over time. You could even “trade” assets—for example, give your spouse 100% of Asset A, and you keep 100% of Asset B.

You can even agree to take on marital debt or your spouse’s debt that normally would be divided in return for keeping certain property. So, if you agreed that you will be responsible for $10,000 worth of debt that would normally be the obligation of your spouse post-divorce, you could then ask to keep an additional $10,000 worth of property to balance that out.

Support and Assets: Be Clear

Some payments and providing of assets to a spouse in a divorce are considered spousal support.

If you agree that your wife will get 50% of a vacation home to aid in her support, then that asset is treated like alimony or child support would. This kind of support gets special treatment in the law; it is almost impossible to wipe out in bankruptcy, and traditional collection protections (exemptions) will not help you avoid paying it. You could even be held in contempt of court for not paying.

If you make sure that division of assets and property is just that—the division of property—and not part of your support to your wife, then financial obligations could, later on, be discharged in bankruptcy if needed. And, those payments would not get the same protections as support would. You would be able to use traditional collection protections as a defense against any collection action.

Negotiating and Settling Can Help

Note that these “give and take” arrangements, such as trades and payoffs over time, are really only possible through negotiation and a settlement reached by the parties inside or outside of mediation. A judge in your family law trial will usually not work out these kinds of arrangements, making an amicable settlement beneficial to you, if you are seeking to keep certain property in your divorce.

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.