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collaborative divorce

Should I Talk to My Spouse During Divorce?

Every divorce is different. Some separations are quaintly referred to as a "conscious uncoupling." Others are wars. There is no one-size-fits-all divorce, unfortunately, as every marriage is unique.

Some couples can calmly talk about their issues, even if it means divorcing. Some spouses may not feel safe in the same room as their soon-to-be exes. So how do you know when you should talk to your spouse during a divorce, and when it's best to maintain radio silence? Here are some factors to consider.

Anything You Say...

There are distinct advantages to a collaborative divorce, as well as some drawbacks. On the one hand, increasing communication and utilizing mediation and negotiations to settle your divorce can save money and time, and provide a resolution both parties are happy with. On the other hand, you may be unwilling or unable to work with your spouse, and without a judge's involvement, it may be harder to get accurate information regarding assets and custody.

There's a chance that communicating with your spouse during a divorce can make the process fast, cheap, and painless. Then again, your spouse may use anything you communicate against you later in the divorce proceedings. So, even if you choose to communicate with your spouse, choose your words (and actions) wisely.

Getting Social

Communication doesn't always occur face-to-face, and far too often we let our social media presence speak for us. Don't make that mistake. Whether it's ripping your spouse on Facebook to friends and family, or seemingly innocuous Instagram posts (3 a.m. selfies from the club on a school night), your actions on social media can speak louder than words.

Family Time

Obviously, kids complicate any divorce. Custody issues, child support issues, and communication issues can provide flashpoints for the most amicable divorce, and how you and your spouse co-parent during the divorce can speak volumes when it comes to resolving those issues. Communicating positively with both your spouse and your children (and not bad-mouthing your spouse to your children) can help matters. However, if personal safety, for you or your children, is at stake, don't sacrifice your own security for the sake of speaking to a dangerous spouse.

Whatever you decide, an experienced attorney can facilitate communication during a divorce. Contact one today.

By Christopher Coble, Esq

Can a Home Purchased Before Marriage Be Considered Marital Property at Divorce?

When a person buys a home before he or she is married, this property is usually considered his or her own separate property and not marital property. However, the other spouse may have a right to some of the home’s equity upon divorce despite this classification. Here are some of the many issues that may very well have an effect on how that property is treated by the courts.

By Agreement.  If the couple entered into a valid prenuptial or postnuptial agreement and this agreement specifies information about the property, the terms of the agreement will dictate how the property is divided, if at all.Common Law Divorce.  The vast majority of states use a common law system regarding property ownership. In these states, the deed, registration or other ownership document often indicates which party owns what. If both parties’ names are on the title, they each own a half interest in the marital property. Property that was owned prior to the marriage is usually considered non marital property, along with individual gifts, inheritances, personal injury awards, non marital property acquired in just one spouse’s name that is not used for the benefit of the other spouse and property agreed to be separate. Upon divorce, the court seeks to divide proper equitably, which means fair but not necessarily equal.

Community Property Divorce.  In community property states, spouses usually own an equal interest in all marital property acquired during the marriage without regard to whose name the property is titled in. Also, the spouses own an equal interest in the income owned by either spouse during the marriage and an equal interest in debts incurred during the marriage. Separate property includes gifts that are made to one spouse, inheritances and property acquired before the marriage and that is maintained separately.

General Rule.  A home that was purchased prior to the marriage and owned by one spouse is generally considered separate non marital property and is not subject to division. However, there are many exceptions to this rule.

Increase in Value.  If the value of non marital property increases during the marriage, the non-owner spouse may be entitled to a portion of the increased value. This can occur when the non-owner spouse’s efforts are used to help maintain or improve the property. This can also occur if a non-owner spouse’s funds were used to pay down the mortgage or improve the property. Courts may look at whether the increase in value was due to active rather than passive appreciation. Passive appreciation occurs when the property’s increase in value has more to do with the market or the lapse in time rather than the efforts of the owner. Active appreciation involves some type of actual effort. Some states allow the non-owner to receive a portion of the passive appreciation while others split only the active appreciation. Although the non-owner spouse may be able to receive compensation for a portion of the home’s equity, he or she will usually not receive the property itself outside an agreement by the parties to do so.

Some common law states begin with the premise that the marital property subject to division should be divided equally unless there is cause for a different distribution. Therefore, the increased equity in the home may be subject to being divided in half between the parties. However, other states use a number of factors to determine how marital property should be divided. These factors may include the length of the marriage, the separate property of each party, the age and health of each party, the earning capacity of each party, the education and skills of each party, whether the parties have children and other obligations or other factors that can help inform the court of what constitutes an equitable distribution.

Some states also consider whether the non-owner spouse’s funds were used to refinance the house. Additionally, if the owner puts the non-owner spouse’s name on the deed, the home may then be considered marital property and subject to division.

Legal Assistance.  Due to the complexity of this issue, individuals who believe that their spouse may have a stake in a premarital home may wish to consult with a family law lawyer for guidance. He or she can explain the rules that are followed in the jurisdiction where the divorce case will be held and the rights of the party. He or she may also help negotiate a fair settlement with the other party.

 
 

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Florida Becomes a Collaborative Divorce State

Florida has enacted HB 967, which is entitled “Collaborative Law Process Act,” into law on March 24, 2016. In doing so, Florida joins an increasing number of states who already have enacted legislation permitting collaborative divorces. 


Defining Collaborative Divorce

The collaborative divorce process is a form of alternative dispute resolution by which parties attempt to resolve all issues in their divorce outside of the courtroom. Each party must agree to the process, and each party has his or her own attorney, whose goal also is to reach an individualized agreement that meets the family’s needs. A team of professionals is assembled during a collaborative divorce, including a mental health professional or counselor, as well as a financial professional. The counselor will facilitate the discussions between the parties and engage the rest of the team as needed to help resolve any outstanding issues.

Collaborative Divorce and Confidentiality

At the beginning of a collaborative divorce, the parties and their attorneys enter into an agreement to participate in the process. Part of this agreement establishes a sort of privilege, which provides that the parties cannot disclose the negotiations that occurred during the collaborative divorce process, except under very limited circumstances. The attorneys who participate in the collaborative divorce also are restricted from acting as anything other than settlement counsel. In other words, they are prohibited from doing research or preparing for a court hearing in your case. These restrictions prevent those attorneys from later representing the parties in court if they fail to completely resolve their divorce through the collaborative process.

Elements of Collaborative Divorce

Most divorces center on decisions about children and money. With the help of a counselor or other facilitator, you can work with your ex to create a comprehensive parenting plan that best meets your family’s needs. From which school the children will attend to whom is responsible for providing child care during summer break, your parenting plan has to address all concerns that you have about your children and devise a way that both parents can share in everyday parenting aspects. With respect to deciding financial issues during a collaborative divorce, a financial planner or accountant is part of your team. This individual can help you work through dividing up property and debts, as well as establishing child support and spousal support, in a manner that protects the financial security of both spouses to the greatest extent possible.

Get the Professional Legal Advice That You Need in Your Divorce Proceedings

If you are considering divorce or separation from your spouse in the state of Florida, you need to explore all of the options that are available to you, including the possibility of going through the collaborative divorce process. An experienced family law attorney can guide you through the options for dissolving your marriage and help you make the decisions that are best for you and your family.

Courtesy of H.G.org