Thinking About Divorce!!!

If you have been thinking about divorce because your marriage is failing, someone cheated, your having economic problems, or you just want to get out of a bad relationship, there are a few thing to consider before untying the knot.

First, if you have kids who are under the age of 18, they should be your priority.  Plan ahead and figure out how to break the news to your kids and how best to soften the stress of seeing there parents split up.  I don’t know of a good way to break the news but I think reassuring them that both parents love and cherish them and nothing will change that is a first step.   Kids are the true victims of divorce and it is difficult for me not to get angry with the parents when they try to use them to get to the other person, they need to be left out of the situation, period.

Second, if you have a prenuptial agreement or postnuptial agreement make sure to read thoroughly before moving out, it may say you get nothing and now your homeless.

Third, determine your assets (money in the bank or under your pillow, homes, cars (not the leased BMW or Mercedes) and anything else of value that can be sold) and liabilities or debts (credit card debt, loans, mortgages).  Remember, in a divorce the court wants to equitably divide all your stuff, the good and the bad.  Now, if you had assets or debts before the marriage, this should remain yours, this may be good or bad depending.

Fourth, are your the bread winner or is it your spouse, or do you both bring home the bacon.  Well, the income of the parties comes into play when your dealing with child support or alimony.

Lastly, depending on the length of your marriage you may be eligible to receive alimony or be obligated to pay alimony.  Alimony is a way to place one spouse in equal financial footing when the other spouse makes more money or is the only moneymaker.  The classic example of a spouse being eligible for alimony is where the couple has been married for 30 years and one spouse is the sole breadwinner,  the non-income producing spouse is eligible for alimony to put him or her on equal financial footing.  This was designed for the homemaker who gave up their career to raise the children.  

My name is Javier L Gonzalez, Esq. and I am a divorce attorney in the Magic City of Miami, Florida.

Unbundling: “Do it Yourself” or Not?

Many of you are undoubtedly aware of online legal companies which provide general ready made documents; however, little support or guidance as to their proper usage.  Moreover, if the divorce you initially believed would be friendly and amicable isn’t quite so friendly, you are left with documents not specifically tailored to your individualized needs in the midst of a contested divorce litigation, during which your future ex-spouse may have legal counsel of their own.
A rising trend in the legal field is the concept of “unbundling.”  This is essentially a la carte legal services, where you the client can engage an attorney in a limited capacity for a specific task, such as providing consultation services for an upcoming mediation between you and your spouse or to draft a particular document, such as a petition for dissolution of marriage or a timesharing schedule.  Additional services may include ghostwriting documents, legal research, limited court appearances, legal strategizing and coaching or preparing exhibits and documents for court usage.
This is a good way of keeping legal fees low and obtaining legal services while on a budget. Furthermore, if you need additional documents prepared or services rendered, you can always contact the attorney; enter into a separate agreement for the preparation of these documents and “pay as you go.”  
Understandably, this is not for everyone.  Many people feel more comfortable knowing that an attorney is handling their case and they have someone with whom to confide and strategize.  Please remember, sometimes clients by deciding to represent themselves may unknowingly give up rights they are entitled to or end up costing themselves more money in legal fees by having to fully retain an attorney later on in the process to remedy previous mistakes.
Sometimes it is better to not be a “do it yourselfer” and seek professional help, but in case you are feeling adventurous, unbundling may be for you.

What can I Expect if I Divorce In Florida?

Often times, new clients come to see me at Gonzalez & Rodriguez, PL in Coral Gables on an exploratory mission, they have no idea about divorce nor what it means and are scared about the implications.  Divorce is probably one of the most dramatic and emotionally destabilizing moments for anyone to have to go through.  The emotions run high and often times people are not saying or doing what is in their best interests because they are so confused and emotionally drained.  Often times I feel more like a psychiatrist or psychologist than an attorney because the client wants to confide in someone who is objective and a third party to tell their part of the story as to what led them to divorce and usually want to take some of the blame.  I explain to them that they may seek professional help to deal with their emotions and to help them get through this tough time, my job is to sort and separate their lives in a manner that is fair to all parties involved.  
When their are children involved in a Divorce, I think the focus should be on them and how they will deal with this most traumatic experience.  Parents need to make every effort to insure that children make the most comfortable transition from living together as one unit to living apart with one parent at a time. Children need to understand that they are not the cause of the Divorce.  The parents should be responsible enough to not drag their children into the arguments or use them as pawns to hurt one another.  I see this all of the time and it really upsets me that people stoop so low and as a result hurt their own children’s well being.   
Divorce has a few basic components which I will describe as follows:
1.  Alimony – is defined as a legal obligation to provide financial support to one’s spouse from the ex-spouse upon divorce.  Alimony basically has three types: rehabilitative, lump sum, or permanent.  Depending on the amount of time one has been married, the disparity of income, and the ability of the ex-spouse to make alimony payments will determine the type and/or whether alimony is appropriate.  In Florida, the length of time of the marriage is a factor in the eligibility for alimony. 
2. Equitable Distribution of Assets and Liabilities – Basically, anything of value that was purchased during the marriage should be divided equally and any debt incurred during the marriage should be divided equally as well.  Assets include the marital home, other property, bank accounts, automobiles, boats, furniture, appliances, jewelry, 401k, pension plans, investments, etc.  Liabilities will include mortgages, loans, credit card debt, student loans, pending law suits, etc.  The idea is to equitably divide both assets and liabilities so that each party keeps half of each.  
 3. Child Support – the amount for child support is determined by the number of kids and the combined income of the parents as stated on a scale promulgated by the state of Florida.  The percentage of income for each parent determines their percentage of the promulgated amount they will be obligated to pay.  For example, if you have two children and your combined income is $1,500.00, the child support obligation would be $529.00.  If your income accounted for 80% of the combined income, then your personal obligation would be $423.20 of the total child support amount of $529.00.  Other factors are involved in determining child support including the amount of time the child or children are with any one parent. 
4.  Custody and Visitation – Several years ago Florida removed language in the statute which designated one parent as the primary custodial parent and the other with merely visitation.  The idea being that parents should share custody equally without a designation and stigma that one parent was primary and the other secondary.  The court is taxed with insuring and looking after the best interests of the children when determining custody, visitation, school location, living arrangements, or anything related to the well being of children.  The parties should come to an agreement as to custody and visitation which works for them.  No situation is the same for anyone case and as such the schedule and flexibility of visitation and living arrangement should be determined by the parties and not left to the court which can result in an outcome contrary to the party’s wishes.  Sometimes the parties cannot come to an agreement and the court is forced to make the ultimate determination. 
These are some of the issues which usually come up in any divorce, my advice to all new clients is to stay level headed, try to talk to your spouse about making the divorce a smooth transition and only fight the big fights and forget the rest.  Remember, the only one who will win if you fight like cats and dogs about every little issue is the divorce attorney. 

Prenup’s or Postnup’s, “What’s Fair”


Normally, when a couple is thinking about marriage, they are thinking about the wedding preparations, the ceremony, place of reception, table cloths, food, etc., but as couples are getting married later in life, more and more couples are thinking as well about prenuptials and sometimes postnuptials.  To start, a prenuptial is a marital agreement that is made prior to the marriage; a postnuptial is a marital agreement that is made after the marriage.  Both agreements basically layout the framework for the worst possible event in a marriage, “Divorce.”  They are basically used as a way to make sure that the assets that you have going into the marriage are the assets you have leaving the marriage.
Florida, like many other states has a theory of equitable distribution when it comes to divorce; the couple’s assets and liabilities (debts) are distributed equally between the parties.  This may or may not seem fair depending on each couple’s situation coming into the marriage.  When one party’s assets are significantly more than the other party, it may be wise to have a prenuptial agreement to protect the asset from equitable distribution if the relationship fizzles out. 
Recently, actors Katie Holmes and Tom Cruise were in the news regarding their divorce and it is alleged that they had a prenuptial agreement that contained monetary payouts at the 5 and 10 year mark.  Although both actors had plenty of money when they were married, we can assume that Tom Cruise had much more money that he wanted to protect and as such a prenuptial agreement was made and was most likely the reason their divorce proceeded so smoothly.  Whether you’re big shots like Tom Cruise and Katie Holmes or just regular folk with some assets to protect, it may be a good idea to invest some of your hard earned money in a prenuptial agreement because if not you will be exposed to losing a big chunk if your marriage goes sour.
The most difficult part of the prenuptial or postnuptial agreement is bringing up the subject to your significant other without the response that says “you are already thinking about divorce when we are about to get married and think I’m a gold digger.” The response should be fairness, it is fair to go into the marriage with each party keeping what they already had going into the marriage and should not lose it just because they were married for a time.  I have worked on prenuptial agreements which are so one sided that it doesn’t matter how long the couple is married, financially it will look like they were never married.  Depending on what side your one, this will not seem fair, normally when one side is significantly better off than the other, you can input milestones where the other party will be entitled to certain benefits as time goes on as in the rumored payouts to Katie Holmes. 
The most important part of any prenuptial agreement is the transparency of the assets and liabilities of each party and that each has full and complete knowledge of what the other is giving up by entering into the agreement.   Any asset left out of the statement could invalidate the entire agreement so be careful not to exclude something unknowingly or knowingly. 
You can include the right to alimony, who leave or stay in the event of the filing of a divorce petition and other things people fight about in a divorce can be taken care of civilly when presumably the relationship is in or leading up to the honeymoon stage.  Recently, I worked on a prenuptial agreement wherein one party wanted language that if there was any suspicion of infidelity, the other would be in agreement to take a lie detector examination and if the outcome was that the person cheated, the prenuptial agreement would no longer be valid.  Although Florida is a no fault state and infidelity generally does not matter for purposes of divorce, the parties wanted this language put in which was perfectly ok.
Whatever you do, try to have the documents prepared with sufficient time prior to the marriage date so that you are not discussing these issues within weeks or days of your marriage which could cause more stress than you need or want at this supposedly glorious time in your life.    

Nebraska court can’t order joint tax return in divorce

TheOmahaChannel.com
updated 6/15/2012
 
The Nebraska Supreme Court says judges can’t order divorcing couples to file joint federal tax returns.
But the high court said in a ruling released Friday that if one spouse is unreasonably refusing to file a joint tax return, the judge can adjust the way the couple’s assets are divided.
Filing a joint tax return usually results in lower tax liability, but the high court said ordering a couple to file jointly is problematic because one spouse would be exposed to some unknown additional tax liability.
And federal law allows married couples to choose to file separately if they want to.
The Supreme Court ruling overturned a previous order in the divorce of Jennifer Lynn Dalbey and Matthew John Bock. Dalbey had objected to the joint tax returns.

Federal court strikes down key part of federal law banning same-sex marriage

(CNN) — A key part of the law banning federal recognition of same-sex marriage was struck down as unconstitutional by a U.S. appeals court Thursday. The Defense of Marriage Act — known as DOMA — defines marriage for federal purposes as unions exclusively between a man and woman.

At issue is whether the federal government can deny tax, health and pension benefits to same-sex couples in states where they can legally marry. The ruling is a boost for gay rights advocates and the Obama administration, which in a rare move, has refused to defend a federal law in court.  “If we are right in thinking that disparate impact on minority interests and federalism concerns both require somewhat more in this case than almost automatic deference to Congress’ will, this statute fails that test,” said the three judge panel.

Same-sex marriage an election hot topic

The 1st Circuit U.S. Court of Appeals, based in Boston, did not rule on the federal law’s other key provision: that states that do not allow same-sex marriages cannot be forced to recognize such unions performed in other states. Traditionally, marriages in one jurisdiction are considered valid across the country.
DOMA was enacted in 1996, when Hawaii was considering legalizing same-sex marriage.
Marriage between two males or two females is legal in the District of Columbia and six states — Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York. It is set to become legal in Washington state next week and in Maryland in January, but in each state the implementation could be delayed by opponents placing the question on the November ballot.
Many other states have legalized domestic partnerships and civil unions for such couples, including New Jersey, Illinois, Delaware, Rhode Island and Hawaii, a step designed in most cases to provide the same rights of marriage under state law.
But other states have passed laws or state constitutional amendments banning such marriages.

Pet Custody: Divorcing Couples Fighting Over Pets

Forget fighting like cats and dogs. These days, divorcing spouses are fighting over their cats and dogs.
On Tuesday, News 4 Tucson investigated the rising number of pet custody battles, which attorneys surveyed by the American Academy of Matrimonial Lawyers in 2006 say have increased substantially in the past decade.
Pets are considered property in every state in the country, according to the local news report, so judges often have their hands tied when couples come to them looking to reach custody agreements for their pooch.
“The court really doesn’t have any authority to give somebody rights of access or time with a pet,” Tucson attorney Elisabeth Benavidez said.
Instead, Benavidez said many couples are resolving their pet custody issues outside of court, hammering out civil agreements separate from the main divorce settlement to determine who gets the pets. In a recent case, Benavidez helped one divorced man secure visitation with his Chihuahuas every other day for at least an hour.  Conflict among divorcing pet owners has become so common that many lawyers are suggesting couples with pets sign “pre-pup agreements” in addition to a pre-nuptial agreement, the Daily Mail reported in March 2010.

Read more: http://www.huffingtonpost.com/2012/05/09/pet-custody-number-of-div_n_1503732.html#s254561&title=Britney_Spears_and

Court Rules Lesbian Couple Can File Divorce in Maryland

Washington (CNN) — Maryland’s highest court has ruled that a lesbian couple married out of state can legally file for divorce, even though Maryland’s own same-sex marriage law does not take effect until next year.

The issue is whether states without legalized same-sex marriage can recognize gay or lesbian weddings outside their borders. The appeal involved a Prince George’s County couple, Jessica Port and Virginia Anne Cowan.
“Maryland courts will withhold recognition of a valid foreign marriage only if that marriage is ‘repugnant’ to state public policy. This threshold, a high bar, has not been met yet,” the seven state Court of Appeals justices said in their 21-page opinion. “The present case will be treated no differently. “
The couple were married in a 2008 civil ceremony in San Francisco, during a short window when California recognized same-sex marriage.

Read more:  http://www.cnn.com/2012/05/18/us/maryland-same-sex-couple/index.html?iref=allsearch

Irreconcilable Claim: Facebook Causes 1 in 5 Divorces

Upon further review, Facebook and marriage aren’t incompatible.
In the past two weeks, the idea that the popular social-networking site plays a role in one in five divorces was reported by many news organizations. This wasn’t the first time that surprising number has surfaced—it has appeared in news reports periodically for the past year and a half.
Some lawyers do say that they see Facebook and other social media playing a role in divorce these days, as people rediscover old flames online or strike up new relationships that lead them to stray from their marriage vows. But lawyers and marriage researchers say there isn’t much evidence to support the notion that social-networking sites actually cause marriages to sputter.

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In fact, both the marriage and divorce rate in the U.S. have declined as Internet usage has risen, according to the Centers for Disease Control and Prevention’s National Center for Health Statistics. An annual survey of U.K. matrimonial lawyers by the accounting and consulting firm Grant Thornton has found that during the Facebook era, infidelity’s role as the primary cause of around one-quarter of divorces has been stable. In an email, a Facebook spokesman called the notion that the site leads to divorce “ludicrous.”
Yet the 1-in-5 number has thrived in part because it helps fill a vacuum: There isn’t much reliable research about what does cause divorce. Academic researchers don’t even agree on how to approach the question. Some have searched for predictive demographic factors, such as age and income. Others have studied married couples’ relationships to see which characteristics presage a split. Determining whether a couple is likely to break up, though, is different than identifying the actual cause.
To read more :  http://online.wsj.com/article/SB10001424052748703597804576194563288753204.html

Should You Remain Living With Your Spouse During The Divorce As Did NFL Great Deion Sanders?

Deion Sanders recently filed for divorce from his estranged wife Pilar Sanders and remained living in the marital home with his wife during the proceedings.  Mrs. Sanders alleged that her husband assaulted her during an April 23rd 2012 scuffle at their home, Deion Sanders defense is planning to have his children who witnessed the scuffle testify in his defense.  Both Mr. and Mrs. Sanders were charged with misdemeanor simple assault after the incident and both are were seeking protective orders against each other.  When asked on the Today show why he remained living at the residence, Mr. Sanders stated that it was his home with his name on the deed and he felt he did not have to be the one to leave.  Mr. Sanders stated in the Today show interview that he planned to call his children who witnessed the incident to testify on his behalf.  On Monday, May 7th, the Texas court ordered his estranged wife to stay at least 500 yards from the Dallas home and gave temporary custody of the couple’s children to Mr. Sanders and ordered that the children undergo psychological counseling.
In Deion’s case, the court has ruled in his favor saving him from possible further embarrassment or loss of employment as a football commentator, but one should be careful when making this decision of remaining in the marital home during the pendency of the divorce proceedings.  For one, the parties should be careful not to add any additional stress on the children who are the innocent party caught up in any divorce.   Mr. Sanders’ children are now being ordered into counseling no doubt as a result of experiencing this traumatic event between their parents and the simple fact of their parents going through a divorce is extremely stressful in and of itself.   Even if you feel that you generally get along with your husband or wife, the proceedings themselves often times make a rather amicable divorce into a heated contest as the parties discuss issues involving assets and liabilities of the marriage.
Often times, clients feel that if they leave the home they will be considered to have abandoned the marriage.  Most states and here in Florida are “no fault” states which preclude any party from having to find cause in order to proceed with a divorce, any party at any time can file for divorce regardless of the reason and moving out does not affect the outcome.  I understand that Husband and Wife sometimes remain together in the marital home due to economic reasons this recession in order to save money or to slowly transition and have their children grow used to the idea that the parents will soon be living apart.  The benefit to having one party move out of the marital residence is it avoids the ability of a party or party’s claiming physical abuse or assault as was the case with Deion Sanders.  Further it avoids heated altercations happening in front of the children or just making the relationship worse.  Whatever you choose, make your decision based on the facts, effects on the children and the cause of the divorce, if you grew apart and the divorce is truly amicable, you may want to risk living together through the divorce but if for instance one of the parties was cheating, its most likely that the divorce will be filled with heated emotion and the parties would benefit from living apart. 
If you have any questions, please feel free to contact us our website at www.grpllaw.com.  Nothing contained in this blog is to be relied upon as legal advice and some of the information was gathered from other news sources which may or may not have been accurate.  We will correct any information which is determined to be inaccurate.