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When Is It Too Late to File for or Modify Child Support?

In just about every divorce involving children, some child support arrangements will be made. But not every divorce is the same, and not all go as planned. And even if a child support agreement seems perfect at the time, circumstances can change.

Whatever the reason, you may find yourself trying to file a child support agreement, enforce or modify an existing one, or end your current child support obligations. But when is it too late? Here's a look.

Too Late to Create?

It's generally never too late to create a child support agreement. While most arrangements are negotiated during the divorce process, there's nothing that can prohibit exes from handling other issues first and hammering out child support later. You will want to be careful about waiting too long, though, because child support determinations are often made with each party's financial situations in mind, and the sooner those arrangements are made, the more accurate they can be and the sooner you'll receive the money (or, conversely, the sooner you'll know what you need to budget).

There are two ways you can go about creating child support arrangements: you can either go to family court and request a child support order from a judge (which may require multiple hearings, filings, and financial evidence), or you and your ex can negotiate a child support agreement on your own. Even if you come to your own agreement, however, you'll want to file it with the court, so it will be enforceable against both parties.

Too Late to Modify?

Child support agreements are not always set in stone, and as personal circumstances change, the amount a parent must pay or is owed can change as well. Obviously, these kind of life changes don't occur on a specific timeline, so there are no hard deadlines for child support modifications. Some child support agreements may have clauses that invite both parties to renegotiate payments at certain intervals -- otherwise you'll need to request a child support modification from the court or your ex. Courts will normally modify a child support order if there is a substantial change in your or your child's circumstances, so requests should be made as soon as possible after those changes.

Too Late to Collect?

Everyone wants to know when child support obligations end. Generally speaking, it's when the child turns the age of majority in your state, usually 18. But some states tie child support to high school graduation, and some child support agreements can cover college tuition as well. It's important for both parties to know, however, that it's never too late to collect back child support payments. While a child turning 18 may end child support obligations going forward, if a parent missed payments before the child turned 18, they are still on the hook for those payments.

States and the federal government are pretty serious when it comes to enforcing child support orders and non-payment can result in seized or revoked driver's licenses, passports, wages, tax refunds, or even jail time. Enforcement measures can continue after the child turns 18, although states may have varying statutes on the time a parent has to collect after the child turns 18.

Child support issues are often complicated, both legally and emotionally. If you have questions regarding child support obligations, you should contact an experienced family law attorney in your area.

By Christopher Coble, Esq.

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

5 Legal Tips for Uncontested Divorces

 

When it comes to divorce, there are two basic kinds: contested and uncontested. In the former, the parties seeking to dissolve their union fight out their issues over who gets what in court. In an uncontested divorce, the parties still have to go to court, but there is no fighting involved. Rather, in an uncontested divorce, the parties simply ask the court to approve the divorce agreement they have come to on their own.

 

Typically, while courts will ensure that uncontested divorces meet minimum state requirements and that the parties are aware of and agree to the terms they set forth, that might be all the courts do. As such, divorcing parties trying to utilize the uncontested process may want to consider the following five legal tips.

1. Don’t Trust Your Soon-to-be-Former Spouse

Even though the decision to get divorced may have been reached amicably, trusting your soon-to-be-former spouse is not necessarily recommended. Do your own research and investigation to ensure that all assets and debts have been disclosed. The last thing you want is to agree to take on debts you don’t know about, let alone not get your fair share of community assets.

2. Retain Your Own Lawyer

Even when there may not seem to be anything to fight over, hiring your own lawyer to represent your interests is highly advisable. Apart from looking over, or potentially even drafting, the divorce agreement, your own attorney will be able to advise you about specific concerns that you may have never even considered. Remember, during divorce, debts are also divided. So even if there are no assets, you may need some help dividing debts.

3. The Personal Property Trade

When negotiating the division of personal property, it is common for separating spouses to negotiate over costly community personal property items like cars, furniture, electronics, and even collectibles. However, the value of these items can often be exaggerated. If there are hard to value items, it can be useful to hire a third party appraiser to assess the value so that a fair division can be made.

4. Early Mediation

If contested issues are discovered while working on the divorce agreement and division of property, rather than let the whole uncontested process blow up into a full blown contested divorce, the parties can engage a mediator to help them resolve their issues. While engaging a mediator is likely to increase the costs, compared to going through a contested divorce, mediation will be a drop in the bucket.

5. Measure Twice, Divorce Once

Because of the way an uncontested divorce works, it is important to really make sure that the divorce truly is uncontested. While an uncontested divorce can save parties considerable money, if it comes out during the hearing to approve the divorce agreement that there are contested issues, the costs savings can quickly vanish as the court rejects the uncontested divorce.

By George Khoury, Esq.

- See more at: http://blogs.findlaw.com/law_and_life/2017/03/5-legal-tips-for-an-uncontested-divorces.html#more

Best Practices To Handling Real Estate in a Divorce

In many divorces, the biggest single assets are the retirement funds and the residential real estate. Sometimes, the only issue preventing an agreement is what to do about the house.

Some of the options for dealing with the marital residence are:

Award it 100% to one spouse;
Sell it and divide the sales proceeds;
Keep it as a joint asset after the divorce; or
Award it to one spouse but allow the other to reside in it for some specified period after the divorce.

Award 100% Of The Residential Real Estate To One Spouse

The most common means of dealing with the house is to award it to one spouse. There are a variety of reasons for this:

1. It can be the least disruptive for children.
2. It makes more sense to award the home to the lower-earning spouse if he or she is unable to purchase a home after divorce.
3. One of the spouses might have a strong sentimental attachment to the home.
4. The mortgage payment could be less than is now available to either spouse.
5. The mortgage payment might be less than the rent for an equivalent residence.

Residential Ownership And The Mortgage Are Separate

People sometimes assume that when a divorce decree awards the residential real estate to one spouse, the mortgage automatically changes so the one who wasn't awarded the house is no longer responsible for the loan. This is erroneous. The mortgage company has two signatures on a loan. Simply because those two people divorce and one of them no longer owns a part of the house does not change the loan. It is analogous to a co-signer who is not a part owner but co-signs the loan. The only way to take a person’s name off of a mortgage is to pay off the loan, sell the property, or refinance it. Refinancing requires the spouse who will receive sole ownership of the house be able to qualify alone based solely on his or her income.

In Florida, A Deed of Trust to Secure Assumption can be used when both parties will remain liable for the mortgage after the divorce.

In most cases, awarding the home to one spouse in a divorce decree is not sufficient to convey ownership. Although a divorce decree can be sufficient, most do not usually contain all of the language used in a deed. Years after the divorce, the spouse who received the home could have problems with a title company when he or she tries to sell it. Usually, the spouse who will no longer own part of the house signs a Special Warranty Deed. A Special Warranty Deed’s primary purpose is to aid with the sale of the real estate by the spouse to whom it is awarded. It is recorded with the county’s real property records and shows a clear chain of title from the original seller to the spouses jointly, and then solely to one spouse after the divorce.

Sell The House And Divide The Proceeds

This is relatively simple. The parties simply agree, or the judge orders, the property will be sold and the proceeds divided according to a percentage. The details of who will have authority to choose the realtor, set the listing price, and accept an offer must be worked out in advance, as well as who will live in the house and how the mortgage will be paid while it is on the market. As with everything else in divorce, if the spouses cannot agree about this the judge will decide.

Keep The House As A Joint Asset After Divorce

It is not generally a good idea to be in business with your ex-spouse. With all of the emotions involved, and the need to move on with your life, try to avoid joint ownership of real property after divorce. Occasionally, it is the best option under particular circumstances.

Award The Home To One Spouse But Let The Other Live There

When the children will live with the parent who cannot permanently afford the house, it is sometimes good to award it to the one who can afford it. Then let the other live there until the children graduate high school. This might require the parent who will ultimately receive the house to pay more than the child support required by law. The paperwork required for this arrangement includes the two deeds described above, and then the parent who will remain in the house temporarily leases it from the other after the divorce.

Seek Legal Advice

A house is just one part of a divorce. It can be more complicated than most people realize. Few try to sell or buy a house without a realtor and a title company. If you are in a divorce or thinking about one, and you own a home, it may not be a good idea to try to complete the legal process without the assistance of an attorney.

Creating a Prenuptial Agreement

Getting married can be exciting, but it can also lead to a loss of good sense. It is easy to become wrapped up in the excitement of love and a wedding and to forget about what exactly could be at stake should things go wrong. It may not be terribly romantic, but it could be very wise to think through both the good and the bad of a marriage.


Part of that analysis should include what you and your future spouse will do should irreconcilable differences arise between you. Beyond simply asking whether the two of you would be able to remain amicable after a disagreement, having a plan for dispensing with assets and liabilities may be much easier to dispense with while things are at their best. This can be accomplished through an antenuptial agreement, more commonly referred to as a “prenuptial agreement” or simply a “prenup.”

A prenup is a contract made between prospective spouses prior to the wedding which become effective upon marriage. A properly prepared prenup will address all or most of the issues that would foreseeably arise should a divorce occur. For example, the prenuptial agreement should address both spouses' rights and obligations to marital and premarital assets, regardless of when and where acquired or located, including the right to buy, sell, use, transfer, exchange, abandon, lease, assign, dispose of, or otherwise manage and control the property. It should also address how that property will be divided upon separation, divorce, death, etc. 

Other common provisions for a well-designed prenuptial agreement include the modification or elimination of spousal support (alimony); provisions for handling the spouses' respective estates in the event of death or disability; a choice of the laws governing the interpretation of the agreement; and any other matters that might be relevant to the rights and obligations of the spouses upon divorce so long as they are not against the law or violate public policy (an example of a provision that would violate public policy would be one that would forbid one spouse from taking any marital assets after divorce).

One common provision in prenuptial agreements which is, perhaps, well-intentioned but unenforceable is a predetermination of child support or custody arrangements. These matters must be decided by a court based on what is in the best interests of the children, not necessarily the parents' wishes. Obviously, any other policy could result in unfortunate outcomes for any children, particularly if the parents had no children at the time of creating the prenuptial agreement and then later discovered they were not very good at being parents. Those who developed alcohol or drug problems, became abusive, etc. could end up with custody rights if a prenuptial agreement had the final say on such matters which is why public policy disallows such situations.

Every jurisdiction requires enforceable premarital agreements to be in writing and signed by both spouses. Most jurisdictions also require a written disclosure of all assets owned by each spouse at the time of entering into the prenup in order to reduce disagreements about which properties came into the marriage before or after the wedding. Perhaps more importantly, such disclosure also helps identify what liabilities each party brings to the relationship, as well. Generally, after the wedding, the premarital agreement can only be amended or revoked through a written agreement of both parties. Tearing up an agreement may be dramatic and make proof more difficult, but it does not revoke the prenuptial agreement. 

Although not required, both spouses should strongly consider consulting with an attorney before entering into a prenuptial agreement or even getting married. The attorneys at DSA Legal Group can assist with drafting and executing prenuptual agreements.  Contact us today for more information.

About Stefan McHardy: Stefan is a Florida licensed attorney, real estate agent and a foreclosure auction investment specialist.  He practices in the areas of real estate, foreclosure, business litigation, and contract law from his Pembroke Pines and Miami Beach offices.  He frequently consults on general real estate and investing matters.  You can find out more about Stefan at DSALegalGroup.com/stefan or by visiting StefanMcHardy.com

The Pros and Cons of an Uncontested Divorce

Ending a marriage is never a simple process. However, it can be simpler in some situations when the spouses are able to remain civil and agree between themselves how to divide the marital assets, deal with custody and support issues, and handle any other matters. Also known as an uncontested divorce, it may be hard for divorcing couples to accomplish in many instances, but the benefits can be great under the right circumstances.

The Pros

Uncontested divorce offers divorcing spouses the chance to end their marriage quietly and with dignity. 
The most obvious advantage of an uncontested divorce is its cost. An uncontested divorce that stays uncontested is almost always the least expensive way of getting divorced. The low cost is not, however, the only advantage of uncontested divorce. If the level of conflict between the two spouses remains low, an uncontested divorce offers a way to keep it that way. It is more private, more cooperative, and likely to keep more of your assets in each of your pockets and out of the hands of lawyers, accountants, process servers, and others required to put on a full divorce proceeding.

The Cons

Uncontested divorce is a bad idea when one spouse is beating up on the other. If there is a history of domestic violence, emotional abuse, or some other disparity in power in the relationship, it almost always leads to one spouse having an unfair advantage over the other. That disadvantaged spouse probably needs an attorney to advocate for them in a difficult situation. 

Uncontested divorce is also a bad idea when the parties are not able to talk with each other without fighting. If your spouse refuses to have any discussion with you about divorce, or every conversation ends in a screaming match, but you are determined to move forward with divorcing, you will likely need to move forward with a contested divorce and probably should hire an attorney. Similarly, if one or both of you are vested in keeping certain items of property or taking a larger share of the marital assets, then this could lead to an intractable disagreement that may not be easily resolved in an uncontested divorce proceeding.

Finally, uncontested divorces are a bad idea if you and your spouse are not comfortable with the law or do not believe you can work through the paperwork on your own. Uncontested divorces are relatively straightforward, but still require you to read and understand a number of different forms which will probably include fairly in-depth financial disclosures by each party. If this idea is intimidating, it may be wise to contact an attorney to assist with the process. 

How It Works

The first thing you need to know about uncontested divorce is that you can do it alone or with the assistance of a divorce attorney. If you use an attorney, the attorney you get to do your uncontested divorce cannot represent both of you. Because each spouse will have their own unique interests, the ethical principles for lawyers will require that a lawyer represent only one of the parties, not both of them. The lawyer must represent one of you and not the other. The lawyer will need to know at the outset which of you is his or her client and which of you is not.

Generally, every jurisdiction will require you to prepare similar documents to initiate a divorce: a petition for divorce, documents proving both parties are aware of and participating in the case, financial affidavits disclosing everything each spouse has, a settlement agreement, and a proposed judgment. Some jurisdictions may also require you to attend couples' therapy prior to granting the divorce.

After you produce the documents, and both spouses are satisfied with the papers, you sign and file them. In some jurisdictions that is it; your case will be handled based on the paperwork and you will receive your divorce judgment in the mail. In other jurisdictions, you are required to attend a hearing with your spouse to swear that everything in the divorce paperwork is true and correct and that you were not pressured into signing it.

How Much It Costs

The prices for uncontested divorces vary widely. At a minimum you will have court filing fees. Additionally, you may have attorney fees if you require assistance with your paperwork. Still, at the end of the day, you will likely have fees of less than $2,000, even with an attorney.  Every competent divorce attorney should offer some kind of uncontested divorce services package.  You should always discuss your matter with a competent divorce attorney to determine whether you are actually a candidate for uncontested divorce.

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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