divorce or separation

Why Would a Couple Separate Instead of Divorce?

At some point, you may find yourself and your partner struggling in your marriage and relationship. While these struggles may be part of the bumps in the road all of us confront at one point or another when in a committed relationship, it may merit a marked shift in how you define and live in that relationship. For some, it may mean divorce. Divorce can be the best thing for everyone in some situations. It is the severing of the legal ties that bind you in marriage and can signal a much-needed new beginning. Other times, divorce may not be right for one partner or the other in a marriage. Instead, the couple may choose to separate. Here, we will discuss why a couple may choose separation instead of a divorce and what steps should be taken to help ensure legal rights and interests continue to remain protected while separated.

Why Would a Couple Separate Instead of Divorce?

There is a wide range of reasons why a couple may decide to separate instead of divorce. For starters, divorce can be expensive and the couple may feel it is not the right time for it (although it should be noted that not getting a divorce can carry its own expensive consequences). Other couples may not feel emotionally ready to confront the legal system and the stress court processes can be so notoriously known for (although these stressful court proceedings can be avoided through things such as utilizing the services of a mediator). A couple may not want to divorce because of religious reasons. In some cases, a couple simply does not want to divorce because they feel it is too final and they want to try separating first.

Whatever the reason for separating instead of divorcing, it is important to be aware of the fact that Florida does not actually recognize the legal validity of a separation. While a couple may, of course, choose to live apart without getting a divorce, there will be no legally recognized consequences of this separate living arrangement. If you choose to live separate from your spouse in lieu of getting a Florida divorce. You should be prepared to put legal protections in place that protect your rights, especially considering the possibility of divorce later on looms in the future.

When separated from your spouse, you can address many of the things that would be addressed in a divorce. You can use legal tools, such as a postnuptial agreement, to address things like division of the property and use of the marital home, which can help streamline the divorce process should it come to that as well as protect your rights to your assets. You can also petition the court to put a child support order in place. While official divorce proceedings may not be yet happening, Florida courts reserve the right to order child support even in the event that a couple is not legally divorced.

Orlando Family Law Attorneys

Are you considering separating from your spouse? Are you considering divorce? Talk to the team at Orlando Family Team about your options. Contact us today.

woman contemplating a gray divorce

Considerations for Divorcing When You Are Nearing Retirement

In recent years, the number of people getting divorced later in life has drastically increased. Sometimes referred to as “gray divorce,” these divorces can pose unique challenges to people who are nearing retirement. Here, we will go into more detail about some of the unique considerations you need to take into account when getting divorced as you near retirement.

Considerations for Divorcing When You Are Nearing Retirement

Regardless of the stage of life you are in, divorce can be, among other things, financially difficult. First, there is the fact that two people living in separate households will pay much higher cost of living rates than two people who share the expenses of one household. This alone can have significant financial impacts. There can also be the costs associated with getting a divorce, such as court fees and more, that can add up as well. 

When you near retirement age, these things can have an even bigger impact on your financial well-being. Think about it. Those divorcing at younger ages will have more time to overcome the financial setbacks experienced in a divorce. A steady salary during peak earning years can make a big difference in recovering from the financial impact of divorce. As a person nears retirement, he or she has less time to make up for this. 

In addition to the lower amount of time to recover financially from a divorce, there is also the impact of division of retirement assets in a divorce to consider. In a divorce, retirement accounts, either in full or in part, are likely to be considered marital assets. Sometimes, they are a combination of both if the account was opened and started to be funded prior to marriage and then continue into and throughout the marriage. Your spouse will likely be entitled to a portion of your retirement savings. This division can upend your retirement plans. Compound a division in retirement funds with the fact that a person will have less time to recover expenses resulting from the divorce and also has less time to pay off debt prior to retirement, and you have much less in retirement funds than you may have planned for. Women may feel the effects of this even more as their life expectancy continues to climb upwards and is now into the 80s. Because of the higher life expectancy, women will have to make retirement savings last even longer.

To help protect yourself financially prior to divorce, be sure to get a solid understanding of your finances and that of your spouse. Take an inventory of your marital and separate assets. Be familiar with how much there is in investment accounts, liquid assets such as cash, and the value of assets. It can also be a good idea to evaluate what assets may turn out to be more liabilities than anything. Unfortunately, many people discover this about the marital home, which can be a black hole in terms of the financial resources it takes to upkeep.

Orlando Family Law Attorneys

You can weather the financial impacts of divorce as you near retirement age. Getting trusted legal representation can be critical in doing so. The team at Bernal-Mora & Nickolaou is here to help set you up for a successful post-divorce life. Contact us today.

woman dividing pension

Are Pensions Divided in a Divorce?

One of the central issues to address in any divorce proceeding involves the division of the marital assets. Generally speaking, marital assets are considered to be those assets that were acquired over the course of the marriage. There are, of course, a few exceptions. The point is, however, that those assets categorized as marital will be divided by the court. In Florida, as an equitable distribution state, the court will try to divide the assets in a manner that is equitable, or fair. This does not mean that the assets will be divided 50/50. Instead, it means that the court will aim to divide the assets fairly upon considering a number of different factors. One major type of asset that may be subject to equitable distribution, either in whole or in part, includes pensions and retirement accounts.

Are Pensions Divided in a Divorce?

A pension or other retirement account can be considered a marital asset and subject to division in a divorce. Sometimes, a retirement account was opened prior to marriage and continued throughout the course of the marriage. In this type of case, part of the retirement account may be considered marital and the rest of it considered separate and, thus, belonging to the one spouse who opened the account prior to the marriage. That which is considered marital, however, will be subject to division in divorce.

When only a portion of a pension or retirement plan was built up over the course of the marriage, the court will determine what percentage of the amount held within the retirement account was earned during the marriage. Whatever value that percentage is will be subject to equitable division. Among the factors that the court will use in determining a fair division of the marital assets are:

  • The length of the marriage
  • The contributions of each spouse during the marriage to acquiring marital assets
  • The debts and liabilities of each spouse
  • The economic circumstances of each spouse

The majority of retirement accounts that are contributed to during a marriage will be considered marital property. In order to make sure the retirement plan is properly divided and significant tax consequences are divided, a Qualified Domestic Relations Order or QDRO is used. The QDRO must be properly prepared and executed. The order establishes a former spouse’s legal right to receive a portion of the balance of a qualifying retirement plan. It can also establish a former spouse’s right to benefit payments. The order itself should direct the administrator of the retirement plan to make benefit payments accordingly pursuant to the QDRO.

Orlando Family Law Attorneys

Division of marital assets and debts can have profound impacts on the finances of both parties to a divorce. Make sure that your best interests are protected throughout divorce proceedings by retaining trusted legal representation. The dedicated team at Orlando Family Team prides itself on always putting our clients first. We are here to pursue, preserve, and protect your best interests throughout divorce proceedings. Contact us today.

alimony

Can I Request Alimony After Divorce Proceedings Are Done?

Divorce proceedings can sometimes feel like they are going both too fast and too slow at the same time. There is a lot at play and a lot of important decisions being made. After the divorce is final, you may feel like you are playing catch up. There are some things that are decided during divorce that you may be able to modify later on. Other things, however, will be final. Is alimony one of those things that is final? Can you request alimony after divorce proceedings are done? We will talk more about that here.

Can I Request Alimony After Divorce Proceedings Are Done?

To be clear, if there is no alimony ordered at the time of the divorce, then you cannot seek alimony after the fact. There is no loophole or workaround for this. If your divorce case closes without an alimony award in it, then you will never be awarded alimony. In certain instances, however, such as if a spouse may lack the ability to pay alimony at the time of the divorce but his or her circumstances may change in the future, the court may incorporate an award of nominal alimony in the divorce decree.

Only a few states recognize nominal alimony and Florida is one of them. A form of alimony that differs from other alimony types such as rehabilitative, durational, or permanent, nominal alimony is only awarded as a kind of placeholder. It preserves the receiving party’s ability to later seek a modification of the nominal alimony award for a more substantial payment amount. The amount awarded for nominal alimony could be as little as $1 per month.

A court will award nominal alimony most often in cases where there is a strong claim for alimony, but the other party lacks the means to make the payments. If the court feels as though the payor spouse’s circumstances will change in the future and that the future change of circumstances would justify alimony for the receiving spouse, then the court can put a nominal alimony award in place. Without evidence that the payor spouse’s financial circumstances are likely to change in the near future, the court may forgo nominal alimony and order a more traditional form of alimony instead. Factors such as the length of the marriage will play a central role in such a determination.

To seek a modification of a nominal alimony award or an award of another type of alimony, in Florida you must be able to prove that there has been a substantial change in circumstances. Without proof of such a change, you will not be able to seek a modification of alimony. The change in circumstances must be material as well as involuntary and permanent. A substantial change in circumstance may relate to health issues, long-term employment issues, and other issues relating to the financial wellbeing of either spouse. 

Florida Family Law Attorneys

Do you have questions about alimony? It is an important issue that can greatly impact the financial well-being of a person after a divorce. Talk to the knowledgeable team at Orlando Family Team. Contact us today.

divorce papers

What Happens If I Do Not Sign the Divorce Papers?

Out of sight, out of mind, right? Not when it comes to divorce papers. If you receive divorce papers and just throw them away or put them in a dark drawer so you do not have to confront the reality of them, the issue will not be going away. What happens if you do not sign your divorce papers? Let us talk more about that here.

What Happens If I Do Not Sign the Divorce Papers?

Whether you have been surprised by divorce papers or knew they were coming, avoiding them can be a normal response. Like so many other things, you may want to ignore them under the misguided belief that the reality of the situation will go away as well. Regardless of what you may think or hear about this, not signing or acknowledging your divorce papers will not stop the divorce from happening.

Florida is what is called a “no fault” divorce state. This means that a party does not have to prove fault in order to seek and be granted a divorce. A mere assertion that the marriage is irretrievably broken will suffice. If only one spouse wants a divorce, he or she is well within his or her rights to pursue and receive a divorce without the agreement or assistance of the other spouse.

To file for divorce, a person needs to file a Petition for Dissolution of Marriage with the appropriate court. Once filed, a process server will be enlisted to serve the other spouse with the paperwork. The spouse will then have 20 days to file a response. If the spouse does not file a response, the court can unilaterally enter a default judgment and grant the divorce anyway. A default judgment can even be entered without a hearing. This means that, if you do not sign your divorce paperwork or acknowledge the divorce proceedings, the divorce will be resolved without you. You will not have an opportunity to give input or arguments as to important issues such as alimony or allocation of marital assets or debts. All of this will be decided without you although you will feel its impact, nonetheless.

When you do not sign your divorce papers, you are waiving your right to participate in the divorce process. It does not stop the divorce; it stops your participation in the divorce proceedings. While you may not want the divorce to proceed, ignoring it does you no favors. Protect yourself and your rights that are in play during the divorce process and acknowledge that it is happening. Retain trusted legal counsel to represent you and your best interests in the proceedings. This is an important step in protecting your future interests.

Florida Family Law Attorneys

Have you received divorce papers and are unsure of what to do now? Do not delay! The clock is already ticking and you stand to forfeit important legal rights should you fail to take action. The family law team at Orlando Family team is here to help. Contact us today.

divorce attorney

Does Divorce Have to Be Filed in the Same State as the Marriage?

Divorce can be both logistically and emotionally complicated. While working through the emotional aspect of divorce may seem like the real hard part, the logistics of getting through the divorce process can be a whole other set of daunting hurdles. What paperwork is required? What documentation is needed? Where can I actually file for divorce? These are all great questions and you will need the answers in order to successfully initiate and navigate the divorce process.

Does Divorce Have to Be Filed in the Same State as the Marriage?

The simple answer to whether or not a divorce has to be filed in the same state as where the marriage took place is, no. You do not have to get a divorce in the same state in which you were married. You will, however, need to meet state-specific residency requirements in order to file for divorce in a particular state and location. These residency requirements will be different from state to state and local rules may also apply. Before filing for divorce, you need to be sure that you meet both state and local residency requirements for filing.

In Florida, either you or your spouse must reside in the state for a minimum of 6 months prior to filing the dissolution of marriage petition. The petition can be filed in the country where either you or your spouse resides. Should you fail to meet the residency requirements set forth by Florida statutes, you have a few different options. You can wait until you have lived in Florida long enough to meet the residency requirements. Alternatively, if your spouse meets the Florida residency requirements, he or she could file the dissolution of marriage petition. You could also check to see if you or your spouse meets the residency requirements to file the dissolution of marriage petition in another state. If you choose to wait until you meet the Florida residency requirements to file in the State of Florida, be sure to start working on gathering the necessary paperwork and getting things in order to prepare for the divorce process so you are all set once you are able to file your petition.

You can prove residency in Florida in a number of ways. You may produce a Florida vehicle registration or Florida voter’s registration card. Alternatively, you may produce employment records or military orders showing that you have resided in Florida for at least the past 6 months.

You may have more than one option on where to file for divorce. If you and your spouse are living in different states, you both might satisfy the requirements of your state to file there. You may want to consider quickly filing in the state in which you reside to avoid the logistical difficulties of going through a divorce in another state. You may also want to gain a basic familiarity with the divorce laws of each state to see which one may have a more favorable set of laws and then you can choose accordingly.

Florida Family Law Attorneys

You do not have to go through the divorce process alone. At Orlando Family Team, we are here for you. Contact us today.

child care

How Will Child Care Expenses Be Divided After Divorce?

Facing a divorce, in and of itself, can be overwhelming. Along with confronting the big life change that is about to happen, there is a seemingly endless list of things you need to consider and plan for as part of the divorce process and set yourself up for the most successful post-divorce life you can. If there are children involved, there will be an added layer of complexity and more issues to consider. Especially when there are children, it will be critical to manage your finances before, during, and afterward, and through all of the changes that will come through these different stages. To most effectively manage your finances, however, you will need to know about things such as how childcare expenses will be divided after your divorce is finalized.

How Will Child Care Expenses Be Divided After Divorce?

Child support addresses the normal expenses that come with raising a child. This includes things like food, shelter, clothing, and some educational costs. Most states, like Florida, have guidelines and formulas in place to determine how much child support is to be awarded and to which parent payments should be made. Should there be childcare expenses that will need to be paid in order to accommodate the employment schedule of a parent, then this will usually be factored into the child support calculation. Each parent will be obligated to pay a percentage of childcare expenses based on their income.

While employment-based childcare expenses will be included in the child support award calculation, there are other childcare expenses that may not be. Expenses such as babysitting and extracurricular activities will not necessarily be addressed by child support. These are things that should be addressed when creating a comprehensive childcare agreement, or co-parenting plan, with the child’s other parent. Financial issues can often be a source of discord between divorced parents and so the more you can address with specificity in your plan, the better.

Think of all of the things that may not be covered by child support. It can quickly add up as it can include things like school supplies, sports and sports equipment, music lessons, tutoring, and much more. These expenses can be addressed during a divorce with enough foresight. You and your co-parent can even agree on things like what activities the child will participate in and allow for adjustments to be made as the child ages. You can decide how you are going to share these expenses. Most often, co-parents either split these expenses down the middle or make contributions based on a percentage of a parent’s income. An agreement on expenses should also specify how payments are going to be made and when.

Orlando Family Law Attorneys

While it can seem like a lot to deal with while going through a divorce, addressing details can be the key to a stronger post-divorce life. Talk to the trusted team at Orlando Family Team about how to protect your best interests during the divorce process and set yourself up for a successful and stress-free future. Contact us today.

taxes

Tax Consequences of Divorce

Divorce gets complicated on several levels. Personally, emotionally, and financially, it can take a toll. Among these layers are further sublayers that are important to be aware of. For instance, among the financial consequences of divorce lie tax considerations. Tax changes that come with divorce, for instance, can have a significant impact on post-divorce finances. While the potential for long-term tax consequences may be far from your mind, you should take care to keep these potential tax impacts in mind. Tax problems that develop incident to divorce can be complex, difficult to handle, and expensive to address.

Tax Consequences of Divorce

There are several issues incident to divorce that can have tax consequences. For starters, transferring property related to the division of the marital assets can have tax consequences. In general, a property transfer that results from a divorce is considered to be a non-taxable event for purposes of both federal income tax and gift tax. Under certain circumstances, however, you may want to consider waiving the tax-free treatment of these transfers. The creation of a taxable event means that it can be treated as a true sale after more than one year since the divorce’s finalization. This allows the purchasing spouse to share benefits from the increased cost basis on the property that has been sold/transferred.

You should also consider the value of tax carryovers when addressing issues incident to divorce such as division of the marital property. In negotiating the division of the marital assets and liabilities, there are things beyond the actual value of the asset or the amount of the liability that should be considered. There are capital losses, net operating losses, charitable deductions, and more to these transfers that have inherent value. Should you delay in discussing these windfalls, you may miss out on reaping the benefits of these tax carryovers.

One more tax consequence to consider in the division of the marital assets should arise if there has been a division of retirement assets incident to the divorce. Preparing required QDROs is essential. It will allow you to avoid tax consequences associated with early withdrawal of retirement funds.

If alimony may be awarded in your divorce, it can also be important to understand the tax consequences of alimony payments. Legislation passed in 2017 eliminated the ability to take a tax deduction for many expenses that were previously deductible, alimony payments included. Divorce agreements established in 2019 and going forward do not allow for tax-deductible alimony payments to be taken by the paying spouse. Furthermore, alimony payments are no longer taxable for the spouse receiving the payments.

If you have children resulting from the marriage, you and your spouse will also need to sort out who will get tax credits from claiming a child as a dependent. A child can only be claimed by one of you. While there is the presumption that the parent with primary physical custody of the child for most of the year is entitled to the tax credit, this may not always be the case. Sometimes, the non-custodial parent may be better situated to claim the credit. In some instances, a divorcing couple may want to alternate who gets the credit from year to year. If there is more than one child, one spouse may take credit for one of them and the other spouse takes credit for the other one.

Florida Family Law Attorneys

At Orlando Family Team, our team keeps in mind your best interests far into your post-divorce life. We are here to set you up for a successful future long after the divorce has been finalized. This includes taking things like tax consequences into consideration as we navigate your divorce arrangements. Contact us today.

divorce papers

What Papers Do I Need to File to Begin Divorce Proceedings?

Have you made the important decision to proceed with a divorce? A difficult and life-altering decision in and of itself, the road ahead can seem overwhelming. You may not even know where to begin. Here, we will go through some of the preliminary things you need to address at the beginning of divorce proceedings. Sometimes, getting started can be the most difficult part. We are here to help.

What Papers Do I Need to File to Begin Divorce Proceedings?

Divorce proceedings are initiated by one spouse, the “petitioner,” by filing the “Petition for Dissolution of Marriage. The other spouse will become the “respondent” in the action. The Petition sets forth the issues of the divorce that you want to and need to be addressed by the court. Issues incident to divorce include division of assets and debts, as well as child custody, child support, and spousal support. Should you and your spouse agree on division of the marital property and debt, neither of you are seeking spousal support, and you do not have any children under the age of 18, you may be able to file a “Simplified Dissolution of Marriage Petition.” Alternately, you may be able to go ahead and submit a settlement agreement to expedite the divorce process.

In addition to completing and filing the Petition for Dissolution of Marriage, a summons must also be completed and filed with the Petition. Check with your county to see if there are other required forms to file. Please note that the forms you use will vary based on your individual circumstances, such as whether you have children. Furthermore, you should be sure to verify that you are, in fact, eligible to file for divorce in Florida. Do you or your spouse satisfy the requirement that at least one of you have lived in Florida for a minimum of six months prior to filing? 

Be sure to wait and sign your petition and paperwork until you are in front of a notary as it is required that your petition be notarized prior to filing. There are often notary services available at a courthouse for a minimal fee. You will submit your signed and notarized petition and filing fee, or request for fee waiver, to the clerk of court. Service of process will need to occur. Your spouse may have accepted service and provided an “Answer and Waiver of Service” to be filed with the court. Should your spouse fail to do so, there are other ways of accomplishing service, such as having a local sheriff hand deliver the divorce petition to your spouse.

In addition to the petition, you will also need a significant amount of financial information and documentation to complete the financial affidavit. This usually needs to be completed and provided to your spouse within 45 days of the date of service. The financial affidavit should be completed in full and documentation regarding your income, assets, debts, financial accounts, and more should be provided along with it.

Florida Family Law Attorneys

As you prepare for your divorce journey ahead, the dedicated family law attorneys at Orlando Family Team are here to provide you with unwavering legal support. We are with you throughout the entire process, protecting your best interests every step of the way. Contact us today.

couple signing divorce papers

What Is the Difference Between Fault and No-Fault Divorce?

In the past, many states required a person to both assert and prove certain grounds in order to be granted a divorce. This is referred to as a fault-based divorce. Now, most states, including Florida, are no-fault divorce states. Let us take a look at the difference between fault and no-fault divorce and the consequences it can have on a person filing for divorce.

What Is the Difference Between Fault and No-Fault Divorce?

In contrast with a fault divorce, a person looking to obtain a no-fault divorce need not assert a fault-based ground for the divorce nor does he or she need to go through the trouble of gathering proof to substantiate the fault-based ground. Instead, the spouse filing for divorce need only assert that the marriage is no longer working and is beyond repair. In other words, the spouse is saying that the marriage is “irretrievably broken.” Florida does also allow a divorce to be granted when one spouse has been mentally incapacitated for a minimum of three years prior to the filing of divorce.

Some may feel that it is a kind of injustice that a fault-based reason is no longer front and center of the divorce. The spouse seeking a divorce may actually want that day in court to point a finger at a spouse and claim that his or her actions were the cause of the marriage’s downfall. No-fault divorce, however, was actually established and has grown in popularity among the states because it provides the spouses relief from not only having to rehash painful and deeply personal issues in court but also relieves the spouses of the burden of having to provide proof of such personal issues in order to obtain a divorce.

While a person seeking divorce need not assert and prove specific, fault-based grounds to obtain a Florida divorce, fault may have certain notable impacts on divorce proceedings. Adultery, for instance, may no longer be available as a fault-based ground for divorce, but it can still be relevant in addressing a number of issues during divorce proceedings. Did you know that adultery is actually considered a crime in Florida? Although it is very rarely prosecuted. Adultery can still have significant impacts on a number of important divorce-related issues. A spouse will, however, need to provide proof of such indiscretions. 

Adultery can actually impact child custody determinations. Judges are steered by the best interest of the child standard in rendering such decisions and will make decisions by weighing a number of relevant factors. While adultery is not specifically included as a relevant factor, a judge will be looking to evaluate and consider the relationship with another individual if there is any evidence of that person causing any detriment or harm to the child.

Adultery can also have potentially significant impacts on the division of marital property and debts. Florida is an equitable division state meaning that the courts will aim to divide marital property in a way that is fair but not necessarily equally. To do so, the court will again look at a number of relevant factors to make such a determination. One such factor will likely be whether either spouse intentionally wasted any marital assets. For instance, if a spouse misused marital assets in the pursuit or furtherance of an affair, then the judge may consider such a waste of marital assets and adjust the distribution of marital property debts and assets accordingly.

Florida Family Law Attorneys

Do you have questions surrounding the complex laws of divorce? Orlando Family Team has answers for you. Contact us today.