Divorce & Family Law Attorney Sean Smallwood Offering Skilled Representation in Orlando, FL. Sean Smallwood is a family law and divorce lawyer for the Law Offices of Sean Smallwood, P.A. where he represents clients in all areas of family law and divorce. 100% of the practice is devoted to family law. As an attorney, he has helped many families with a wide variety of family law cases including..
With very few exceptions, everyone loses financially in a divorce. Women who enrich themselves by marrying and divorcing rich men in succession are largely a fiction that exists only in tall tales exchanged at poker night gatherings. Almost all your divorced friends were poorer after their divorce than before, as they have probably told you at great length, but what they might not tell you is that their former spouses also came out of the divorce poorer. Starting a new life after a failed marriage costs money, and Florida family courts aim to divide couples’ assets in such a way as to keep each person’s standard of living after the divorce similar to what it was during the marriage. This is the basis of Florida’s equitable distribution doctrine, in which courts consider all relevant information available to them when determining which assets to award to which spouse. If you think that the court is failing to see your side of the story, contact an Orlando, FL divorce lawyer.
How Equitable Distribution Works
When a couple divorces, the court must decide which assets belong to the couple and which belong to just one spouse; the court then divides the jointly owned assets (known as “marital property”) between the two spouses. Florida courts almost always count all property obtained during the marriage as marital property, even if, on paper, it appeared to belong to only one spouse. For example, if the couple has two bank accounts at the time they file for divorce, both of which they opened after they got married, but one account is in the husband’s name and the other is in the wife’s name, the court will count both of them as marital property.
Remember that “equitable” is a closer synonym for “fair” than it is for “equal.” If the two spouses had similar incomes during the marriage, and they both worked the entire time they were married, the court might award them equal shares, especially if part of the divorce agreement involves selling the house they owned together. Of course, while all marriages are economic partnerships in some regard, in many marriages, one spouse earns less money than the other while contributing to the economic well-being of the family in ways other than depositing currency in a bank account. On that basis, Section 61.075(1), the section of Florida law that outlines equitable distribution, asks courts to consider the following factors when determining how much money to award to each spouse:
The length of the marriage
The income-earning potential of each spouse, based on each spouse’s age, health, and work history, as well as each spouse’s current income
Other factors that would limit one spouse’s ability to work, such as responsibilities like caring for young children or elderly parents
How much each spouse contributed to the other spouse’s current income or financial situation, such as by using pre-marital assets to pay for the spouse’s education during the marriage
Based on the above criteria, many details of the parties’ lives before and during the marriage are related to decisions about equitable distribution. These criteria are similar to the ones courts use to determine the amount and duration of alimony. Division of assets at the time of the divorce and spousal support paid out over a long period are two ways of reaching the same goal, ensuring that the more financially vulnerable spouse is not left high and dry when it comes to their economic situation.
If Your Spouse Is a Deadbeat
Conflicts over money are a major factor in many divorces. If your spouse squandered money or refused to work for long periods during the marriage, despite the need for income and despite your spouse’s ability to work, you may be able to increase the share of marital assets awarded to you by convincing the court of these facts. In the context of equitable distribution, “misconduct” means that your spouse used marital property to sabotage the marriage, for example, by financially supporting a romantic partner with whom your spouse was having an extramarital affair. Courts sometimes take misconduct into account and award more money to the spouse who was the victim of misconduct, but the burden of proof is on you if you allege your spouse engaged in misconduct.
Contact Sean Smallwood, P.A. About Divorce Cases
If you and your spouse cannot agree about how to divide your assets in a divorce, a family lawyer knowledgeable about equitable distribution can help. Contact Sean Smallwood, P.A. in Orlando, Florida for a consultation.
Couples who are in committed relationships but are not legally married to each other often respond to nosy questions from relatives about whether they plan to marry by saying that marriage is only a piece of paper. In many ways, they are right. It is possible for couples to form lifelong relationships with each other and each other’s families without being married to one other. Florida offers few legal protections to unmarried couples, however. Estate planning lawyers often field questions about how to bequeath property to an unmarried domestic partner, but Florida alimony lawyers are more likely to hear a different question, namely about how the rights of a former domestic partner compare to the rights of a former spouse.
Unmarried Partners Are Mostly Out of Luck
If you are a woman in a committed relationship with a man to whom you are not married, you are probably used to the vociferous chorus of your co-workers, aunts, and sorority sisters insisting that your partner put a ring on it. Family lawyers are likely to add their voice to those in favor of marriage. Florida does not legally recognize domestic partnerships between unmarried couples, especially when it comes to alimony-like support for former partners. Florida law does not care whether you and your ex lived together for 20 years; if you break up, you have no more right to a share of your former partner’s assets than you do to the assets of a summer fling that you dated for a few weeks just after high school graduation. In fact, it was technically illegal until 2016 for unmarried couples to cohabitate in Florida.
Yes, it is possible to specify in a will that your unmarried partner is to inherit a certain amount of money from you in the event of your death, but in that regard, there is nothing special about the fact that the person was your domestic partner. A will enables you to leave money to anyone, be it your unmarried partner, a favorite charity, or even your dog groomer. Likewise, you have the right to enter agreements to own property jointly, but your partner has no rights beyond those of a business partner or any other co-owner of the property. Consider how vague the discussion of palimony is in The Birdcage, which is set in Florida in the 1990s, and you will get an idea of how uncertain it is to try to formalize your rights as an unmarried partner.
In short, you are not entitled to spousal support from someone that Florida law does not recognize as your spouse.
What If You Have Children Together but You Were Never Married?
The picture changes dramatically when there are children involved, but the legal basis for the situation is that children are entitled to support from both parents. All couples who have children together but are not married to each other must file and abide by a parenting plan, whether they were previously married to each other or not. Parenting plans contain details about the decision-making rights of each parent regarding education, health, and other matters. They also specify where the children will be on weekdays, weekends, holidays, and school vacations, as well as who bears the responsibility of transporting the children to and from each visit. Importantly, parenting plans are just about time and decision-making; they do not deal with finances at all.
In almost every case, one parent will be required to pay child support to the other once paternity has been established. The amount of child support is determined based on the children’s needs and on each parent’s income. While some ex-partners grumble about it bitterly, child support is not alimony. It is for the children and is designated to be spent in the children’s best interest.
If you have a child but are not married to the child’s other parent, it is in everyone’s interest to establish legal paternity as soon as possible after the child’s birth. The easiest way to do this is by filing a Voluntary Acknowledgement of Paternity form, which becomes irrevocable 60 days after it is filed.
Contact Sean Smallwood, P.A. Regarding the Rights of Unmarried Partners
A breakup with an unmarried partner can be just as emotionally and financially disruptive as a divorce, especially if you have children together. A family lawyer can help you find a new normal. Contact Sean Smallwood, P.A. in Orlando, Florida for a consultation.
Despite the good intentions behind Florida’s child support laws, it can seem like a no-win situation when parents who can’t get along as a couple still have to make financial decisions about child support. Being required to pay for the raising of children during times when they are not with you makes many child support-paying parents resentful. Those lyrics that many of today’s parents grew up with still touch a nerve, from Outkast’s lament about child support payments being diverted so that the narrator’s ex-mother-in-law could pay her bills to Kanye West’s tale of an ex who spent child support money on cosmetic surgery for herself. Disputes over child support can prolong the bitterness between divorced couples, but it is important to keep the child’s best interests in mind. Here are some common child support-related problems and how to address them. An Orlando child support lawyer can help you if your ex is not holding up his or her end of the child support agreement.
Trying to Dodge Child Support Is Almost Always Futile
If you are frustrated by your ex’s inconsistent record of paying child support on time or, conversely, if you are grumpy about the fact that your ex is taking you to court about child support, know that you are not alone. According to data from 2017, there are 541,576 child support cases in Florida, including 38,830 in Orange County. Most of the Florida parents who pay child support are men, but 32,608 women in Florida also pay child support.
Why is child support so widespread in Florida? It is because Florida takes seriously parents’ financial responsibility toward their children. Whenever a couple with children younger than age 18 gets a divorce, the court makes a decision about how they will continue to support their children, which usually involves one parent paying child support to the other. It is easier for never-married couples to avoid the notice of the courts. If you were never married to your ex with whom you have a child, you must initiate a court case seeking child support. Likewise, if a never-married parent applies for public assistance, the court will require the ex to pay child support if the ex is not already paying.
The Consequences of Not Paying Child Support
If your social circle includes any single or divorced parents, then you have probably heard plenty of stories about what a struggle it is to collect child support from their exes. You have probably also heard tales of deadbeat parents who refuse to work or who lie about their income in order to avoid paying child support. Since it is virtually impossible to force someone to pay money they claim they do not have, Florida courts impose a variety of consequences on parents who fail to pay child support even after being ordered by a court to do so. These are some of the consequences parents who are delinquent in paying child support can face.
Losing points from their credit score
Driver’s license suspension
Professional license suspension (if the parent works in an industry that requires workers to be licensed, such as an electrician or a commercial vehicle driver)
Garnishing wages (taking a portion of the parent’s paycheck and putting the money toward child support payments)
Yes, it is possible for parents who do not pay child support to go to jail, but this consequence is only a last resort. Having a criminal record certainly does not make it easier for people to find gainful employment.
What to Do If Your Child Support Payments Are Too High
The amount of child support ordered by the court is based on both parents’ incomes at the time the order is issued. If you lose your job and cannot find a new job that pays as well as your previous one, you have the right to petition the court to modify your child support order. If your financial hardship is caused by having another child with someone other than the parent of the children for whom you are currently paying child support, though, the court is unlikely to lower the amount that you are being required to pay.
Contact Sean Smallwood, P.A. About Child Support Cases
If your ex is refusing to pay child support, leaving you alone with the financial responsibility for supporting your children, you may need the services of a lawyer to help you collect the child support payments owed to you. Contact our family law attorney in Orlando, Florida for a consultation.
There Is A New Epidemic That is Lurking Behind the Scenes And Has Become A Root Cause To At Least Half Of The Divorces Reported In The United States
The issue of porn addiction and its effects on the current divorce rates is an extremely serious issue that everyone needs to be aware of. In a 2006 study, it was found that 86% of individuals age 18 to 49 view porn. Marriage counselors, as well as divorce attorneys, have taken notice of this growing problem in recent years.
This is not an article that intends to shame anyone for their lifestyle choices or what they decide to do in their spare time, however, 86% of married people age 18 to 49 are viewing porn which is highly addictive and utterly destructive to the intimacy that is necessary to maintain a healthy relationship with a spouse.
If your spouse was experimenting with some other type of highly addictive behavior such as the use of crack or heroin you would sit up and take notice and in this writer’s opinion use of porn is not much different and requires everyone’s constant vigilance.
Divorce Lawyers Are Also Recognizing the Effects That Porn Use Has on Divorce
All the way back in 2002 the American Association of matrimonial lawyers questioned 350 divorce attorney members and discovered that about 60% of those polled had noticed that Internet porn played a significant role in divorces with excessive interest in online porn contributing to more than half of the divorces that they saw.
Now, I don’t know if you caught this or not, but the Internet itself, the number of websites, and everyone’s quick pocket access to the Internet have increased dramatically from 2002 until now. I believe that it would not be unreasonable to assume that these numbers discovered in 2002 would be significantly higher in 2019. This is a big problem.
In 2005 Dr. Jill Manning, a licensed family and marital therapist presented the results of her research to the Senate in the hopes of gaining some traction in addressing this looming crisis. Her findings suggested that as of 2005 56% of divorces were contributed to by one of the partners having an obsessive attraction to pornography. Again, the growth of the Internet and the ease of access to the web has exploded between 2005 and today leading to the realistic conclusion that these numbers have probably increased dramatically since then.
Dr. John Gottman, of the Gottman Institute, is another example of a well-known professional in this field whose experience and research has made him a staunch advocate against the use of porn by married individuals stating that it is destructive to intimacy.
As Dr. Gottman sees it intimacy is a vital component of a successful relationship and provides necessary emotional communication between spouses. However, when one of them is viewing porn they are obtaining that intimacy from an outside source and without even realizing it they are cutting their partner off from that intimacy connection. Over extended periods of time, this loss of intimacy is devastating on a marriage making it difficult for any marriage to survive.
Another destructive result of porn use according to Gottman, is the fact that the porn user becomes accustomed to being in complete control of the sexual experience. This leads to them having the unrealistic expectation, even if they don’t realize it, to be in complete control of the sexual experience with their partner.
Unfortunately, that is not a realistic view of healthy sex and can easily cause one or both of the partners to become disenchanted at the thought of sex with their partner and can lead to serious long-term consequences such as loss of intimacy and even divorce.
What Do I Do If My Partner Is Addicted to Porn?
There are many similarities between treatment for porn addiction and treatment for substance abuse. First, the partner with the obsessive attraction to porn needs to acknowledge that there is a problem that needs to be addressed. Until they admit to themselves and their spouse that this is an issue most people will not be able to emotionally and spiritually commit the necessary effort needed to effectuate a solution.
Next, there needs to be absolute admission to the other partner of all conduct to the point where there are no more secrets. When secrets or details of conduct are withheld from the other partner there is an open door to relapse as well as eternal suspicion and lack of trust on the part of the partner who was not engaging in the porn use. Complete and absolute admission to your partner is usually an important step in beginning the healing process and building trust for the future.
In many cases, sex addiction therapists even send their patients for monthly, quarterly, and yearly polygraph tests to ensure that they are not keeping secrets from their spouse and that there has not been a relapse.
Though this may sound extreme, the goal of this therapy is to save a relationship and a necessary part of saving that relationship is the non-porn using partner’s ability to trust again and that will be dependent on their confidence in the fact that their partner is no longer engaging in the obsessive porn use.
Of course, there must also be a strict cold turkey end to any and all viewing of pornography. This can be a challenge for many couples due to the fact that sexually suggestive material can be found everywhere in our society today. From billboards to magazines, and especially on television sex and sexually suggestive material is everywhere and is a huge potential trigger for the porn addict to relapse.
If you are facing a divorce due to a spouse’s porn addiction, then we normally recommend seeking intensive therapy for porn addiction in addition to couples’ therapy before you file for divorce. We have recommended providers that we can refer you to based on your individual circumstances.
If, however, the therapeutic process is unsuccessful and there is no other option but divorce then there will be a complex web of legal issues that will need to be navigated through in the divorce process. Our Orlando divorce lawyers can assist you through this process not only by providing zealous legal representation, but also having an awareness of the emotional path that you have been navigating leading up to this point.
A lot of people who have recently gotten divorced put on a smile and talk about what a relief it is to be rid of an unwanted spouse. A recently divorced man’s friends may congratulate him on finally being free of the old ball and chain, while a recently divorced woman may excitedly tell her relatives during a holiday dinner about how she finally mustered the courage to kick her ex to the curb. If you and your ex-spouse have children, together, though, your obligation to reach an agreement with your ex-spouse does not end until your youngest child reaches adulthood. Florida courts recognize that some divorced couples are on such bad terms with each other that it is not possible for them to agree between themselves on how to raise their children. Florida parenting plans are a formal way of ensuring that all children of divorced parents receive consistency in their upbringing, even if their parents are enemies. A parenting plan involves big decisions, and no matter how easily you can or cannot get along with your ex-spouse, it is a good idea to consult a family lawyer before you file a parenting plan with the court.
Q: What Is the Purpose of Parenting Plans?
A: The purpose of a parenting plan is to ensure the best interests of the children. The Florida family courts acknowledge that every family is unique, so it is not possible to apply the same rules to every family. For example, it would be a disaster for some families if the children were required to stay with the mother from Sunday evening to Friday evening and then spend the weekends with their father. What if the father is a DJ who works until 4:00 in the morning on Friday and Saturday evenings? What if the mother takes evening classes on weeknights? Likewise, parenting plans are flexible enough to be made to fit families where the parents behave in a civil manner toward each other, families where the parents have such a bad relationship that they are legally forbidden to be in the same room at the same time, and everything in between.
Q: What Guidelines Do Parenting Plans Specify?
A: Parenting plans include more specific information than just which parent has the children on which day. For example, they also include information about drop-off and pick-up of the child. This way, parents cannot make excuses to skip their parenting time because of lack of transportation, nor can they waste time arguing about whose turn it is to transport the children. They also specify how the parents will divide the authority to make decisions about the children’s education and non-emergency medical treatment. They also include provisions about how often the children will be required to communicate with one parent while they are spending time with the other parent. For example, the parenting plan can stipulate that, while the children are with their mother from Sunday evening to Friday evening, they must call their father once during that time. The parenting plan might also say that the children must send their mother one text message per 24-hour period that they are not with her.
Q: What Do Parenting Plans Say About Grandparents?
A: Parents may choose to include specific provisions about grandparents or other relatives in the parenting plan, as, in some families, these relatives play a major role in raising the children. They might say that the children will spend a certain number of nights per month at the grandparents’ house, or they might assign grandparents part of the responsibility to transport the children from one parent to the other. Designating a role for grandparents or other members of the children’s extended family can be very helpful in facilitating co-parenting when the parents have no contact with each other because of a history of domestic violence or other serious problems.
Q: What Does the Parenting Plan Say About Money?
A: Parenting plans are completely separate from child support agreements. In the parenting plan, parents may specify who is responsible for the costs of transporting the children from one parent’s home to the other. They can also specify which parent has the authority to choose daycare, extracurricular activities, and similar expenditures related to the child. In other words, they can prevent some conflicts about money, but their primary purpose is to prevent conflicts about time.
Contact Sean Smallwood, P.A. About Parenting Plans
A family lawyer can help you determine the implications of the choices you make in a parenting plan and help you choose what is best for you and your children. Contact Sean Smallwood, P.A. in Orlando, Florida for a consultation.
You might imagine that the stories Florida family lawyers hear about paternity cases resemble those paternity test-themed episodes that were so popular on daytime television talk shows in the 90s when DNA paternity testing first became widespread. However, there is much more to paternity law than what you see on TV. The stereotype about paternity cases is that a single mother falls on hard times financially and tries to prove that her ex-boyfriend is the biological father of her child so that he will be legally obligated to pay child support for the child. Meanwhile, the ex-boyfriend denies that he is the father; he attempts to cast doubt on the mother’s credibility, trying to cast her as greedy, financially irresponsible, dishonest, and sexually promiscuous. Here are some frequently asked questions about paternity laws in Florida. You can find out more by talking to an Orlando paternity lawyer.
Q: How Accurate Are DNA Paternity Tests?
A: They are more than 99 percent accurate. If you are not the child’s father, a DNA test can confirm this with close to 100 percent certainty. You may have heard otherwise, but DNA paternity tests were highly accurate when they first became available, and they are even more accurate now. When Steve Jobs told Time magazine in 1982 that the results of the DNA test he had taken showed that 28 percent of the men in the United States could be the father of his daughter Lisa Brennan-Jobs, this only indicated that Steve Jobs was better at designing computers than he was at evaluating the accuracy of DNA tests.
Q: How Do DNA Tests Work?
A: A DNA sample, usually in the form of skin cells obtained by wiping the inner cheek with a cotton swab, is taken from the child and the alleged father. The DNA samples are analyzed to see how much DNA they have in common. If the result is positive, then approximately half of the child’s DNA will match the father’s. If it is negative, then the child’s DNA and the man’s DNA will have little in common. The method of DNA analysis is similar to that used by genealogy services and in crime labs.
Q: Is It Possible to Establish Paternity Without a DNA Test?
A: Yes. In fact, the court only requires a DNA test if you are trying to deny paternity. Most of the time, the deciding factor that makes you a father is not your genetic relationship to the child, but rather your wish to claim the child as your son or daughter. If you are married to the child’s mother at the time of the child’s birth, Florida law automatically recognizes you as the father. You simply list yourself as the father on the child’s birth certificate, and no one will ever question your legal paternity. If the mother is not married at the time of the child’s birth, it is still possible to establish paternity without taking a DNA test.
Q: How Do You Establish Paternity If You and the Child’s Mother Are Not Married?
A: Both parents of the child sign a Voluntary Acknowledgement of Paternity form and file it with the court. 60 days after the form is submitted, it becomes permanent. The only way to revoke a Voluntary Acknowledgement of Paternity form if more than 60 days have passed since you signed it is to persuade the court that you signed the form under duress.
Q: What Can You Do If the Mother Refuses to Sign the Voluntary Acknowledgement of Paternity Form?
A: If the mother refuses to sign the form acknowledging that you are the father of her child, you can still petition the court to acknowledge your paternity and to grant you visitation rights or shared custody. Likewise, if the alleged father refuses to acknowledge paternity, the mother can have recourse to the same legal process. Whether you are the one trying to establish paternity, or whether the child’s mother wants to name you as the father, you should hire a lawyer who deals with family law cases. The process may or may not involve a DNA test.
Q: If the Court Declares You as the Father, Are You Automatically Entitled to Shared Custody?
A: No. You can request shared custody, which involves spending time with the child and having a say in decisions related to the child’s upbringing, but the court will not automatically grant it to you, especially if the mother was the one who initiated the paternity case.
Contact Sean Smallwood, P.A. About Paternity Cases
Sean Smallwood, P.A. is committed to helping fathers exercise their legal right to be part of their children’s lives. Contact Sean Smallwood, P.A. in Orlando, Florida for a consultation.
In the old days, alimony was a popular subject for aspiring stand-up comedians at local comedy clubs. More recently, it has become a topic for vitriolic blog posts in the less benign corners of the Internet. Then and now, alimony remains misunderstood. What really happens in the courtroom where a judge decides that you have to make monthly payments to your former spouse for a fixed period of time, or even indefinitely? Consider the following Florida alimony cases discussed below, and, if you are going through a divorce in Florida and are worried about how much spousal support you will be required to pay or how much you are entitled to receive, your first step should be to consult an Orlando spousal support attorney.
Why Do Courts Award Alimony?
Divorce courts regard marriage as a financial partnership. They assume that each spouse contributed to the survival of the family, regardless of how much or how little money he or she earned during the marriage. They also take into account whether the spouse is able to work. Therefore, a person in his or her 30s who was only married for five years is unlikely to be awarded spousal support, despite not working during the marriage. If this spouse receives any alimony, it will only be for a short period of time. Meanwhile, a 65-year-old who was married for 35 years and did not work but stayed home to raise the couple’s children is more likely to be awarded permanent alimony.
Famous Alimony Cases in Florida
The following cases in Florida illustrate how Florida courts arrive at the decision to award spousal support and which type to award.
Hua v. Tsung – The couple was married for 17 years and each party was in their 40s when they filed for divorce. The wife requested permanent alimony on the grounds that she had stayed home to raise the couple’s two children and had not earned an income during the marriage. The court determined that she would still be able to work for at least 20 years before reaching retirement age; therefore, it refused her request for permanent alimony. Instead, it ordered the husband to pay rehabilitative alimony, the amount of which was determined on the basis that it would be enough to enable the wife to become certified as a nurse.
Koscher v. Koscher – The couple was married for 30 years, and the wife did not work because of a chronic illness. Both spouses agreed that the wife should receive permanent alimony; the only disagreement was over the amount. For most of the marriage, the husband earned a salary that was sufficient for him to support the family, but when his job laid him off, he spent the next four years trying to start a business. During those four years, he earned little to no income. The judge determined that he was voluntarily unemployed during that time and that he could have found another salaried position. Therefore, the judge based the amount of alimony on the husband’s imputed income, in other words, what he would have earned if he had continued working in the same industry.
Dickson v. Dickson – The couple was married for 19 years and had three children, all of whom had special needs. At the time of the divorce, the wife was studying to be licensed as a surgical technician, and she had taken out student loans for that purpose. The court originally awarded bridge-the-gap alimony, but the wife appealed, saying that it would not be enough, given her student loans and the fact that her childcare responsibilities limited the number of hours she could work. The appeals court ruled to award the wife permanent alimony.
Gotro v. Gotro – The couple was married 39 years. The court awarded permanent alimony because of the length of the marriage, but the amount was less than what the wife originally requested. The wife alleged misconduct, citing the husband’s irresponsible spending. The court determined that the husband’s financial habits did not fit the definition of misconduct.
The above cases show that Florida courts sometimes award permanent alimony, but it is rare for someone who is younger than 50 or who was married for fewer than 20 years to receive it. They also show that the length of the marriage is not the only factor that determines the amount of alimony.
Contact Sean Smallwood, P.A. About Your Alimony Case
If you are in the midst of a dispute with your former spouse about spousal support, lies and ultimatums are not the solution. Instead, you should contact an Orlando family law attorney. Contact Sean Smallwood, P.A. in Orlando, Florida for a consultation.
Magazines about weddings often contain articles about potentially contentious issues that couples should discuss early in their marriage, or even before taking their marriage vows. Almost everyone, from magazine editors in the wedding industry to your long-married elderly aunt can agree that you can avoid many conflicts if you and your spouse can agree as early as possible on a game plan regarding issues, such as which holidays to spend with which relatives and what dollar amount qualifies a purchase as major enough to require discussing it with the other spouse before swiping the credit card. No one will call you cynical if you agree before your wedding day that, in odd-numbered years, the couple will spend Thanksgiving with the husband’s parents and Christmas with the wife’s parents, and the other way around in even-numbered years.
Why, then, do prenuptial agreements have such a bad reputation? Most people have only heard about prenuptial agreements in the tabloid news, but there is much more to this type of legal document than simply a plot point in a lurid celebrity drama. If you are considering entering into a prenuptial agreement before marriage, an Orlando prenuptial agreement lawyer can help answer your questions about them.
MYTH:Only Very Wealthy People Have Prenuptial Agreements
FACT: While prenuptial agreements are still the exception rather than the rule, they are not just for billionaires and celebrities. Three percent of married and engaged couples have a prenuptial agreement. Therefore, even if everyone in the top one percent of household income had a prenup, they would still account for only one-third of all prenuptial agreements. A news story published in Refinery 29 shows that prenuptial agreements are increasingly popular among people younger than 35.
MYTH: The Only Reason to Get a Prenup Is to Keep Your Spouse from Claiming Your Property
FACT: Prenuptial agreements are not just about keeping your assets separate, even though they do specify which assets belong to the couple jointly and which ones belong to just one spouse. Some couples choose to sign a prenuptial agreement because they do not want one spouse to become liable for the other’s debt if the couple divorces. In other words, if your fiancé is getting cold feet about marrying you because you borrowed tens of thousands of dollars to get a Ph.D. in art history or because you still have debts left over from your failed career as a professional poker player, a prenuptial agreement might help put his mind, or his parents’ minds, at ease. In more cynical terms, a prenup does not always mean that you are a gold digger; it could mean that you want to show that your spouse is not a chump.
MYTH: Prenuptial Agreements Only Matter If the Couple Divorces
FACT: Most prenuptial agreements specify what will happen to the couple’s assets and debts if the couple divorces. Some of them also state decisions that the couple has made about what will happen if one spouse dies or becomes permanently disabled. Specifically, if one spouse has children from a previous marriage, the prenuptial agreement may specify what the new spouse will inherit and what the children from the first marriage will inherit. The prenuptial agreement could spare the family a long and costly legal battle, plus years of bitter feelings.
MYTH: No Provision Is Too Crazy for a Prenuptial Agreement
FACT: Couples can specify almost anything in a prenuptial agreement. They can include provisions about who gets certain pieces of property that do not seem valuable to anyone except the couple. Some topics are off-limits for prenuptial agreements, though. For example, a prenuptial agreement is not the place to make decisions about child custody and visitation or about the religious education of the couple’s children. Likewise, if a court determines that a provision of the agreement, even if it is about property, is unconscionable, meaning that it is unfair, the court can refuse to enforce that provision. Courts tend to reject prenuptial agreements that arrange for the spouse who had much less wealth before the marriage to leave the marriage with as little wealth as before the couple got married. They see this as an abuse of power by the wealthier spouse, and it goes against Florida’s doctrine of equitable distribution. Equitable distribution means that the courts divide the assets between the spouses according to what is fair.
Contact Sean Smallwood, P.A. About Prenuptial Agreements
Prenuptial agreements are for couples who have already thought seriously about potentially difficult financial decisions. Contact Sean Smallwood, P.A. in Orlando, Florida for a consultation if you are thinking of signing a prenuptial agreement.
In the state of Florida when two people are getting divorced and they have been married for longer than 14 years there is a presumption in favor of permanent alimony. Whenever a claim for permanent alimony is sought by a spouse and their divorce attorney the level of conflict in the case usually escalates due to the strong opposition that the other party will usually have against the idea of paying permanent spousal support.
There are several different types of alimony in Florida and the type of support that is appropriate for any case usually depends on factors such as the length of the marriage, the financial positions of the parties, and the ability for both people to support themselves after the marriage ends.
Currently, in marriages that last longer than 14 years, the courts will presume that permanent periodic alimony would be favored if the case also meets certain other criteria.
When will permanent alimony be appropriate?
First, the requesting spouse would need to show that they have a need for support and that the other party can pay. It is important to note that this analysis is subject to the standard of living established during the marriage. Many lawyers and their clients forget about this third part of the analysis and completely ignore the standard of living established during the marriage when they are preparing their arguments for court.
Permanent alimony becomes much more of a possibility in cases where the parties were married for a long time as defined by the statute, where one party substantially outearns the other, and where the lesser earning party made sacrifices of their own education and career opportunities in order to further the education and career opportunities of the higher earning party.
In cases such as these, the courts understand that it is going to be very difficult for the lesser earning spouse to ever reach an earning capacity where they will be able to support themselves as well as their spouse after the marriage. Thus, permanent alimony awards become appropriate.
So, if I have not been married that long I don’t have to worry about permanent alimony, right?
Permanent alimony is not only ordered in long-term cases but there are some special circumstances where permanent alimony could be awarded in even a very short-term marriage.
When researching appellate court case law in Florida for a trial on spousal support that we had a few years ago we came across a plentiful number of cases where the parties had only been married for two or three years, but one of the parties had developed a serious disability during that short marriage that impacted their ability to work and provide for themselves in the future. The case law is very clear that in situations such as this permanent alimony can be awarded even in a very short-term marriage. It is important to note that such a disability did not necessarily have to be a physical disability, but there were several cases where the disability was mental.
There are several strategies that must be employed in any divorce action where permanent alimony is being sought. Whether you are the petitioner or the respondent there is a set of tactical maneuvers that must be taken in the case in order to either increase or reduce exposure to permanent spousal support. These include the use of vocational experts in some cases who can examine a party and provide an assessment to the court of what that person’s earning capacity is now and will be in the future.
In other cases, it will be important to rely on medical experts and in some situations, forensic accounts are effective tools in the alimony litigation.
If you are going through a divorce and alimony is at issue, then contact our office today to discuss a strategy for your particular case.
In every divorce case that moves through the court system, the parties to the divorce must submit certain minimum mandatory financial discovery documentation either to the court or to the opposing party or their divorce attorney. The purpose of this exchange of discovery is to ensure that everybody is being honest about their income, their assets, and their liabilities as these are all issues to be handled inside the divorce action and can be verified by the divorce attorneys.
The most common piece of financial divorce discovery is called the financial affidavit. The financial affidavit is a multipage document that collects detailed information regarding a person’s income, withholdings from pay, monthly expenses, assets, liabilities, and contingent assets.
What Is A Financial Affidavit and Why Does My Divorce Attorney Want One?
The financial affidavit is probably the single most important piece of financial discovery that can be collected in the divorce action by the lawyers. This is because the financial affidavit is essentially an affidavit of the author’s exact financial situation at that point in time.
This begins with the income section. The opening section of the financial affidavit will identify a person’s employer, their job position, and their income. The income section of the financial affidavit also provides available checkboxes for all sorts of incomes ranging from public assistance to alimony from a prior marriage. It is very important for the lawyer in the divorce to be aware of every single source of income or the opposing party especially in cases that involve child support and spousal support.
The next section of the affidavit requires that the party to the case disclose what all the withholdings are from their paycheck. These withholdings can include Social Security withholdings, state and federal taxes, Medicare withholding, as well as any cost of that person’s health insurance that is paid from their income. Though this information is not glamorous, it is also very important for the attorney to include into any financial summary to be presented in court, or to be included in child support guideline calculations.
The next portion of the financial affidavit will list out all a person’s monthly expenses in detail. These expenses will include rent or mortgage, utilities, groceries, meals outside the home, repairs on the home, auto expenses, child-related expenses, personal grooming, religious activities, payment to creditors, and other miscellaneous monthly expenses. This section is extremely relevant in divorce cases that involve claims for alimony and are beneficial in helping lawyers pinpoint whether a person has additional sources of income that they are trying to conceal.
The remainder of the affidavit requires people to list out all their assets and all their liabilities. Since in divorce litigation distribution of assets and liabilities is a foundational issue of the case, the asset and liability section of the financial affidavit is of the utmost importance.
Here Is A List of Other Financial Discovery Needed in Divorce Cases
In addition to completing a financial affidavit, a party to a divorce case will usually also need to provide a laundry list of other financial documents that will be compared to the data provided in the financial affidavit to ensure that person is being honest about the information provided in the affidavit.
These other documents include three years of tax returns, three months of pay stubs, three months of personal checking account statements, 12 months of personal savings account statements, the most recent three months of credit card statements, a copy of a deed to any real estate owned within the last three years, copy of any residential lease, and a copy of that person’s health insurance card and a copy of the health insurance card of any minor child who is also involved in the divorce case.
The list above summarizes the typical items required in order to satisfy the minimum mandatory discovery requirements in a divorce case. Of course, where one or both of the parties to the divorce action are self-employed business owners then there is an even longer list of financial documentation that must be requested and turned over in order to allow the lawyers to pinpoint an accurate personal income for the self-employed individual.
Because of the highly complex nature of financial discovery in divorce litigation, it is always recommended that you utilize the assistance of an experienced divorce attorney in Orlando Florida. It is extremely common for divorce advocates to be approached by individuals who have attempted to represent themselves but only created bigger problems in the case. The issue here is that if someone attempts to represent themselves and creates problems in their case going and hiring a lawyer later is not always going to solve the problem created by the self-represented litigants who did not understand the discovery requirements.