HOW DOES DOMESTIC VIOLENCE AFFECT FLORIDA DIVORCE?

Many divorces are affected by various complex issues; however, they tend to get extraordinarily complicated when domestic violence is involved. In many cases, domestic violence incidents may be recent, and sometimes they are the very cause of the divorce filing. But, even if the violence was not recent, a history of abusive and violent actions may play a significant role in the divorce proceedings in Florida.

Domestic violence is against the law in Florida, and many violent spouses face criminal charges. However, a majority of the offenders are not aware of the impact their violent actions might have on divorce determinations.
You do not have to cite or prove domestic violence in Florida to have your dissolution of marriage because the state law recognizes “no-fault” divorces. However, if you have been a victim of domestic violence, you may want to bring up the issue as part of your case. Safety is always a concern and a priority. An experienced attorney will know how and when to use evidence of domestic violence to help you in the divorce proceedings.

Domestic violence may impact the following divorce determinations:

Child Custody
Domestic violence can play a significant role in child custody and time-sharing division. In some cases, the court can decide that it is not in the child’s best interest to spend substantial time with a parent who has a history of domestic violence and abusive behavior. The judge may even award full custody to one parent and require supervised visits for the other parent if judge suspects the child might be in danger when alone with the potentially abusive parent.
If a parent has a criminal conviction for first-degree domestic violence, Florida custody law requires the court to assume the child is in danger with this parent, unless the parent shows otherwise. For these reasons, parents with a domestic violence history or convictions need to have an experienced attorney who knows how to fight for a favorable time-sharing decision. If you are a victim of domestic violence your attorney needs to know this.

Property Division
When it comes to property division, Florida law favors an equitable division of all assets and debts. However, it doesn’t mean property division has to be equal – the court can distribute property in a manner they find fair and just. The law requires courts to consider a fair number of specific factors in making this determination. Domestic violence may be one of the factors considered in these determinations, and it may affect the court to order property division that is favorable to the victim, at the loss of the abuser.

Spousal Support
When figuring out the amount to award for spousal support in Florida, the judges can consider a large number of factors that they find relevant to reaching an equitable solution. Even though in most cases the judges do not consider the fault grounds, abuse included, there still are some situations where domestic violence impacts this settlement indirectly.
Because it is a no-fault state for divorce, Florida laws don’t require a petitioner to cite marital misconduct when filing for a divorce. But if there is a history of domestic violence, the court may consider it when ruling on several aspects of the divorce. Domestic violence is a serious issue for spouses and children. Please seek legal counsel if domestic violence is involved in your family law issue or divorce.

Know your rights. To discuss divorce or other family law matters call Debora A. Diaz at 727-846-1802.

Filing for Divorce: How to Prepare Yourself

What is Mandatory Disclosure in Florida Divorce?

Mandatory Disclosure is the process whereby financial information is supposed to be automatically disclosed by the parties when filing a divorce or other family law case.  The procedure is mandated by Florida Family Law Rule of Procedure 12.285.  The purpose of Rule 12.285 is to ensure that each party will be fully informed about the financial circumstances of the other party prior to settlement of the case through mediation, negotiation or trial.

Rule 12.285 specifically requires the exchange of financial affidavits, and this exchange cannot be waived.  There are two types of financial affidavits: a short form for those who have an annual gross income of under $50,000 (see Family Law Financial Affidavit 12.902 b) and a long form (see Family Law Financial Affidavit 12.902c) for those who have an annual gross income of $50,000 or greater. Rule 12.285 also requires exchange of additional documents, including tax returns, bank statements, credit card statements, mortgage statement, deeds, business information, vehicle titles, insurance policies, etc.  The parties can agree to waive the exchange of all of these additional documents. If the parties agree to waive the exchange of mandatory disclosure documents (except the financial affidavit), a waiver of mandatory disclosure must be executed by the parties and filed with the Court.

Under the rule, Mandatory disclosure must be exchanged by the parties within 45 days after the initial case is served on the respondent. There is a continuing duty to update mandatory disclosure (including the financial affidavit) whenever there is a material change in a party’s financial circumstances, and a party may object to mandatory disclosure anytime up to 5 days before disclosure is due.  You cannot complete the form and be done.  If there are financial changes an amended financial affidavit must be filed.  To comply with mandatory disclosure, a party must certify by notarized signature that all of the required records are being disclosed to the other party.

If a party does not comply with Mandatory Disclosure the remedy is to file Motion to Compel the Disclosure and/ or a Motion for Contempt for failure to disclose the required information.  A party can be held liable by the court for the other party’s attorney fees incurred to bring these Motions, if the violating party failed to provide disclosure that is within their power and control to provide.  The court also has authority to order sanctions against the party in non-compliance.

Divorce and Family law can be a complex process, with many factors and aspects to consider.  I can help you navigate through this process. With over 24 years of experience, I have the knowledge and skills to assist with even the most contentious of cases. Schedule your reduced fee consultation with Debora A. Diaz, Esq.

Know your rights.  To discuss divorce or other family law matters call Debora A. Diaz at 727-846-1802.

Written by Debora A. Diaz, Esq.

Practicing Divorce and Marital Law since 1995.  Serving New Port Richey, Trinity, Wesley Chapel in Pasco, Pinellas, Hernando and surrounding counties.

Be prepared.  The more information and documentation you can provide your attorney at your very first conference, the easier it will be for your attorney to represent you efficiently in your divorce. When you make things easier for your attorney by providing detailed information at the very beginning, your attorney will be able to be more efficient and streamline the divorce process.  Divorce attorneys bill on an hourly basis.  This article outlines the type of information and documentation that you should be prepared to provide your attorney at your first meeting.  If you are unsure about providing something to your attorney, bring it.  It is better to provide your attorney with too much information than to leave something out.

1. Bring A List of All Assets, Including Both Marital and Non-Marital Property (With Each Asset Clearly Labeled)
2. Assets include property that you or your spouse own that has value. Assets can be either real assets or personal property. A complete list of assets includes your pots and pans, your linens, your vacation home or time share, all collections, jewelry, cars, boats, power tools, etc. Assets are divided between the parties either by agreement or by court order. It is important that your attorney is aware of all assets of the parties.
3. Assets are either marital or non-marital. Marital property is typically any property acquired during the marriage. This property is subject to division. Initially there is a presumption that all property owned by the parties is marital property, subject to division by agreement or by a court. If one of the parties claims an asset is non-marital property they bear the burden of proving that status.
4. Property can be held to be nonmarital property under a number of circumstances. Property that one spouse acquired prior to the marriage can be nonmarital, but the party making claim must be able to document the timing of the property acquisition. Property can be found to be nonmarital even if it is acquired during the marriage if it is an inheritance or gift to one spouse but not the other. Any increase in the value of nonmarital property is typically also considered nonmarital property. Any existing pre-nuptial agreement can affect the status of the property.
5. The issue of marital or nonmarital property can be complicated, but it is also very important. Bringing any and all property documentation to your first meeting will save you time and money.

     6.  Bring A List of All Debts

You will need a complete list of all debts. Debts include not only your mortgage and car loans, but also credit card debt, student loan debt, and past due child support.

7. Next, provide details of all debts for both parties. Documentation is very important. Do not leave out a debt just because it is only in your spouse’s name. All debts should be listed. Debts can also be marital or nonmarital.
8. In addition to identifying all debts, it is very important to document the date or dates the debt was incurred.

With appropriate information and documentation, your attorney can achieve the most favorable division of any debt.

Reach Out to Us for Help

Call Florida Divorce Lawyer Debora A. Diaz, Esq., today to discuss your family’s needs.

Know your rights.  I can help.  For a reduced fee consultation on child custody or other family law issues please call my office at 727-846-1802 or email me at deboradiazlaw@gmail.com

Written by Debora A. Diaz, Esq.

Divorce & Marital Law

How to Make Changes to a Parenting Plan or Support Order

Oftentimes when a couple has parted amicably and are trying to show their child or children that they can get along with each other, modifications and changes to child support and custody will occur outside the courtroom.  It may begin with someone getting a new job and needing to work more or different hours, perhaps someone lost a job and they want to have a temporary reprieve from child support. These types of agreements between exes can be useful if they are sporadic or a result of an emergency situation, but when they are performed too often patterns get set, expectations fall into place and before long the cooperation fades to irritation. Usually by the time a lawyer is involved in a modification or a return to court, both parties are unhappy with the other making it more difficult to develop a new plan or modification.

Know When to Involve Your Lawyer

Changes to alimony, or child custody can be informal when they are temporary.  Changes that extend past a one-time occurrence or involve a child’s parenting plan must require a court’s order to be binding. It is a form of contempt to violate the original terms of your agreement even if both parties agreed that it would be “OK”.  This is why it is important to work through your child custody lawyer and return the issue to the court so that everything is in writing, legal and recorded.

It may be that your changes are minor enough that attorneys for both parties can agree to note the agreement and file it without anyone returning to court.  Most attorneys look for ways to avoid going back into a courtroom, and minor changes rarely require trials. When it comes to child custody, most family law attorneys will defer to the path that makes the most sense for the child.

Major Modifications

When there are major modifications to the parenting plan, child support, or even alimony because of a job loss or job requirements then you absolutely have to work with your family law attorney to have a judge approve them. Judges render decisions based on the laws of the state. Child custody and child support laws of Florida are very strict, and it would be easy to get on the wrong side of the judicial system if you were to try and work around the rules. The court may issue a temporary modification or a permanent modification, but you will have to make a good argument for it based on the statute because they guidelines set by law.

As a family law attorney that specializes in child custody I try to work for the most reasonable and optimal solutions that provide the maximum benefits possible for the child and client.  I will evaluate your situation and advise you as to whether a modification is likely to be denied or granted.  When I can provide quick, effective solutions that benefits both child and parent I have done my job.

Know your rights.  I can help.  For a reduced fee consultation on child custody or other family law issues please call my office at 727-846-1802 or email me at deboradiazlaw@gmail.com

Written by Debora A. Diaz, Esq.

Divorce & Marital law

Equitable Distribution
www.deboradiazdiazlaw

Florida Equitable Distribution|Divorce

What is Equitable Distribution in Florida? Equitable Distribution is the way your marital property is divided up. Marital property is divided into categories: assets and liabilities.  It is called “equitable” because each party should get an equal value of the marital assets and liabilities.  You and your spouse each should have approximately the same net worth after the divorce.

Why Equitable Distribution? As the Florida Supreme Court stated in Robertson v. Robertson, 593 So. 2d 491, 493 (Fla. 1991), “equitable distribution is premised on the theory of an equal partnership in marriage.” The court is directed to start with the premise that the distribution of marital property will be equal, but the statute does recognize that there may be situations that justify awarding a greater percentage of one or all assets to one party over the other.

Assets Example: For example, let’s say both your car and your spouse’s car (the ones you drive most often) are in your spouse’s name. Even though your spouse technically owns both cars by title, one should be distributed to you.  The court has the power to do this under Florida Statute 61.  This is for the purpose of equitable distribution.  If only one of you owns a car, the spouse who uses the car the most will most likely get to keep it.  The Court will award the other spouse an asset of equal value.

Liabilities: The same principle applies to liabilities. Unfortunately, this means that if one spouse accrued a lot of debt, both spouses will share the debt equally.  The court can order the parties to divide the debt.  Each spouse will settle their half with the creditor.  One issue here is that in the event of a default on the debt, the creditor will go after the legally financially responsible party.  You may, however, be able to negotiate different terms and payment plans with the creditors.  Of course, this is an issue to discuss with your attorney.

Possible Exemptions: Very little is considered non-marital property in Florida.  Thus, few things are exempt from the principle of Equitable Distribution. There are, however, a few possible exceptions Section 61.075(1) lists several factors that may call for an unequal division:

• items acquired before marriage
• an inheritance specific to you individually
• gifts specifically made to one party, but not the other.

There are also a number of factors that may influence how “equitable” the distribution of your property actually is. These are issues like the financial situations of each spouse, how much each spouse contributed to the marriage (for example, paying for the other spouse’s education), and how long you have been married.  Contributions to the marriage need not always be material.  The court may also consider one spouse giving up a career, taking care of an aged parent, the time taken to raise children or to manage the home.  I will explain how this will affect your case.

Once you provide me with all of the financial information and you answer any questions that I may have, I will prepare an equitable distribution worksheet based on different division scenarios. This will help us to prepare for the financial aspects of your case.

To schedule a consultation on this issue or other Family and Marital law matters please call 727-846-1802.  Know your rights.

Written by Debora A. Diaz, Esq.

Divorce Lawyer