It is a common situation to die without updating important legal documents. While this scenario is not unique to family law, it has significant implications for financial planning after a divorce. Consider what would happen if, after a divorce was finalized, a person died without having changed or updated the beneficiary status on his or her life insurance policy, or other financial asset. The former spouse would still be named as the beneficiary, but the life insurance company would refuse to pay the benefits to the former spouse by claiming that the likely intent was to exclude the former spouse because the parties were divorced. Ultimately, the death benefits from the policy or asset would have to go through probate, rather than simply transfer through the typical life insurance distribution process. To avoid this unintended consequence, the Florida Legislature amended the Probate Code to require affirmative designations of beneficiaries, particularly in the context of a former spouse after a dissolution of marriage.
Florida Statute, Section 732.703, in effect since 2013, voids the designation of a former spouse as a beneficiary if that beneficiary designation was: (i) made before the divorce was finalized and (ii) not updated to reflect the divorce or former-spouse status. The relevant language of the Florida Statute states:
A designation made by or on behalf of the decedent providing for the payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse is void as of the time the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order. The decedent’s interest in the asset shall pass as if the decedent’s former spouse predeceased the decedent.
In other words, if the beneficiary designation is not made or updated post-dissolution of marriage, Florida law treats the former spouse as though he or she does not exist. This scenario is incredibly important for parties who assume and intend that their death benefits will go to their former spouse, even though a divorce has been finalized. Often, child support and alimony are secured with a life insurance policy that was in effect during the marriage which named the then-spouse as the beneficiary. According to Florida law, in order for the benefits to actually go to the former spouse, the former spouse must be renamed as the policy’s beneficiary post-dissolution. If there are death benefits to be distributed, whether pursuant to a life insurance policy, a qualified annuity, a tax-deferred contract, an employee benefit plan, or an IRA, the designation of the beneficiary must be made after the divorce has been finalized. Parties can clearly convey their estate planning intentions by incorporating specific language in a divorce settlement agreement or final judgment.
Kristin Kirkner is board certified in marital and family law in the State of Florida and has focused her practice solely on family law since 2004. Kirkner Family Law Group is available to assist you in all of your Florida family law and divorce needs and can help safeguard your family with the specific language needed in your settlement agreement to distribute your death benefits as you intend. Contact us today or call (813) 254-0156.
Divorce proceedings involving parties that are members of the United States Armed Forces pose specific and often convoluted issues that must be handled by someone well-versed in the legalities of military divorce. For example, there are numerous requirements to complete when handling the division of a military retirement or pension, or preparations to consider when a parent is required to appear for military duty. A recent 2016 case in Vermont illustrates an example of how beneficial and necessary a skilled military divorce attorney can be when handling military matters within a divorce.
In 2016, a trial court judge in Vermont refused to divide the then-husband’s military retirement, stating that since the retirement was
not yet vested, that he “would not and could not distribute” the military retirement since the husband had, at the time of the final hearing, no entitlement to his retirement. The judge, in his reluctance to divide the retirement between the parties, pulled both attorneys aside to speak with them and, as a result, the then-wife entered into a stipulation to accept $15,000.00 in exchange for her waiver of any claims to the husband’s future military retirement.
It was later discovered that, in fact, the judge was wrong. Not only was the judge able to distribute the husband’s military retirement, as the law in most states (including Florida) does not require the actual vesting of marital assets as a precondition to those assets being divided upon divorce, but the wife’s portion of the retirement over her lifetime could have been worth nearly $500,000.00, which was lost as a result of the judge’s error and the attorney’s failure to recognize the error.
When the wife’s attorney later realized the judge’s misguidance and that the stipulation was inequitable for the wife considering the law on the matter, she sought to set aside the stipulation “on the ground that she entered into the agreement in reliance on an in-chambers ‘weather report’ in which the trial judge misstated the applicable law.” See Coons v. Coons, 2016 WL 1706665, a Supreme Court of Vermont case on appeal from the Vermont Superior Court – Family Division Docket No. 137-5-14. The Supreme Court of Vermont affirmed the lower court’s decision and did not overturn the stipulation, stating that a mistake of law does not establish a reason for setting aside a binding final stipulation.
Due to the judge’s assumption, and the wife’s attorney’s unawareness of the applicable law regarding military retirement benefits, the wife was unable to receive the benefit of her marital portion of the husband’s military pension. When any member or prior member of the military needs assistance in divorce proceedings, engaging the services of an experienced military divorce attorney is in their best interests. An attorney who consistently practices in the field of military divorce and is knowledgeable regarding the current laws, options, and information that encompass a military divorce proceeding can achieve an equitable settlement or be in the best position to advocate on these issues at trial.
Kristin Kirkner is board certified in marital family law in the State of Florida and has focused her practice solely on family law and military family law since 2004. Kristin has been accepted in the Thirteenth Judicial Circuit for the State of Florida as an expert in military divorces and division of military pensions. Contact us today or call (813) 254-0156 to discuss your military divorce needs.
5 Misconceptions About the Divorce and Equitable Distribution Process
Being involved in a family law matter can be one of the most trying times of a person’s life. Whether it is a divorce or a request for custody, a financial matter involving alimony, child support, or the division of a retirement account, the sale of a home or a car, and everything in between, emotions are high. Many people have misconceptions or assumptions about family law that, while they seem to work out on television, are not how judges apply Florida law in actuality.
PART 1 of our 2 part series on Misconceptions in Family Law is about Divorce and Equitable Distribution. Each and every divorce has a unique set of facts, and no 2 can be compared. Below are 5 misconceptions about the divorce and equitable distribution process that I hope will help educate you on the process and manage your expectations in the event you find yourself involved in a dissolution of marriage.
Alimony, is never a guarantee, but rather, it is based on a “need and ability to pay” basis. A spouse must have the need for an alimony payment, and the paying spouse must have the ability to pay. The need and ability to pay is determined upon a detailed review of financial resources as well as a variety of factors outlined in the Florida statutes including the standard of living established during the marriage, the duration of the marriage, the contribution of each party to the marriage such as child-rearing, and the earning capacity and skills of each party.
In Florida, there are several types of alimony:
The receipt of alimony is often tied to the length of the marriage.
The Mother automatically gets majority custody of the children after divorce.
While many years ago, this was actually the case, Florida law presumes that each parent should have 50-50 custody of the children. To establish a parenting plan or timesharing (“custody”), the Florida statutes outline 20 factors for a court to consider. These factors include items such as the capacity and disposition of each parent to act upon the needs of the child as opposed to the needs or desires of the parent, the moral fitness of the parents, the capacity and disposition of each parent to provide a consistent routine for the child, and in some cases, the preference of the child. Ultimately, in the eyes of the law, if deemed to be in the best interests of the child, both parents should be entitled to equal time.
If you bought something in your name only, it is yours, and it cannot be split in a divorce.
Names on property do not always equate to rights to property. During a divorce, all marital assets and liabilities are considered to effectuate what is called “equitable distribution.” While an asset such as a bank account or a house may be in only one spouse’s name, if the asset was purchased during the marriage, or if marital funds were used to enhance the asset in any way, it may be considered marital. This does not mean that the spouse who purchased the item or property is not entitled to their non-marital portion of the item, however, simply having their name on the property does not guarantee them full ownership upon the divorce.
Your spouse cheated, so you will “get more” in the divorce as punishment to them.
Florida is a no-fault state. This means that either party can seek a divorce, regardless of the reason. While it takes 2 people to get married, it only takes 1 person to begin the divorce process. In Florida, all that a court will require is the allegation that the marriage is “irretrievably broken.”
An inheritance is not a marital asset.
Often, it is believed that every cent in a marriage, and every dime one spouse receives, is subject to division upon divorce. While, the majority of the time, this is true of marital assets, an inheritance is notalways considered a marital asset.
Inherited assets normally remain in the possession of the person who received the inheritance. An exception to this would be in the case where the inherited asset is commingled with marital assets or placed into the name of both parties. If that is the case, it may be subject to equitable distribution unless agreed otherwise.
It is so important for people to get counseling during a divorce. As a lawyer, I am well versed on the legal issues, but I am not a mental health professional. If clients can get support and counseling, it makes the process easier and usually more cost effective because they are prepared for the changes and challenges of the divorce process.
The Counseling and Wellness program at The Centre for Women is able to offer affordable counseling to women, men, couples, teens and children. Our counselors are Masters prepared, licensed therapists with many years of experience. We are able to counsel clients in a variety of welcoming office locations and can accommodate flexible appointment times. They also offer counseling in Spanish. To inquire, please them call 813-571-1684.
Additionally, they offer monthly women’s support groups and are currently focusing on topics related to divorce. The daytime and evening groups occur at their Hyde Park location and are free of charge.
If you’ve never been through a divorce, this article touches on a few things that you may least anticipate when it comes to divorce.
As a divorce attorney in Tampa, I have witnessed the financial and emotional toll that litigation can take on a person. One of the items this article touches on is the toxicity of divorce court, and the author isn’t exaggerating. While the author is not suggesting unhappy couples stay married simply to avoid divorce court, I do advise my clients of alternatives such as mediation or collaborative practice that can save both parties money, time and emotional turmoil. In any case, if you’re preparing to file for divorce you may find this article informative so you know what could lay ahead of you in this process.
Let’s be real, divorce sucks. It’s a lot like childbirth, and if someone told you what it would be like, you might not ever do it. But then you’d regret it for the rest of your life. Sure, there are a few of those amicable divorces and the “conscious uncouplings,” but they are few and far between.
I was divorced in 2010. I asked for a divorce in 2008, but it took two years actually to get it done. And don’t think it’s because we were arguing over some tremendous fortune. Quite the opposite, we were arguing over tremendous debt.
It was ridiculous and took an emotional and physical toll on me. No one in my family had ever gotten a divorce, and my only friend who had divorced did it when she was in her early 20s, and there were no kids involved. I was in unchartered territory. While I never expected it to be easy, I had no idea of some of the issues I would face.
Below are a few other things that no one ever told me that I wish I had known before I filed for divorce:
1. Divorce court is a horrible, toxic place.
The greatest piece of advice I give to people is that at all costs, avoid going to divorce court. You’ll end up spending money that you could have saved for retirement or your kid’s college fund. On top of that, a courtroom is one of the worst places I can imagine. It’s kind of like a zombie apocalypse.
Seriously, I was in court about 48 days over the course of two years. I was on a first-name basis with the bailiffs. I witnessed the ugliest sides of people coming in and out of various legal cases. I would literally come home and take two showers after being there because I felt dirty. If you’re thinking of getting a divorce, visit a courthouse and see what it’s like. You need to steel yourself to the toxic environment.
2. The friends you’d least expect to abandon you, will.
You can assume you will lose some friends, but amazingly it’s sometimes the people you’d least expect. It’s hurtful beyond belief, and you’ll spend years agonizing over what happened. Ultimately, you need to accept that you might never understand why a friendship ended, but cherish the relationship you once had and lovingly let it go.
3. If you have kids, you’ll never be truly divorced.
The reality is that you’re going to have to deal with your ex forever. You will see him at every visitation pickup and drop-off. You will have to negotiate medical issues, school issues, and anything involving your underaged children.
As they grow up, you’re going to be at graduations, at weddings, and eventually interacting with grandkids. It will be a lot less stressful for you and your kids if you find a way to make peace. I’m fortunate that my husband and his ex-wife are good friends. In fact, we’ve had dinners together, and she’s taken my daughters shopping with her and my stepdaughter.
4. Material possessions become way less important.
Pre-divorce you’re worried about your kids having to move out of the house they’ve lived in and not being able to afford summer camp. You might be used to having a housekeeper, getting weekly manicures, and going on shopping sprees.
Then, you find yourself wrapped up with divorce attorneys, and your money gets wiped out. Suddenly you realize that none of the stuff being fought over matters as much as you and your kids’ happiness. I ended up declaring bankruptcy after my divorce. It was devastating.
If you are considering divorce in Tampa, FL and are looking for an expert in family and marital law, please contact Kirkner Family Law Group, P.A. to set up your consultation, (813) 254-0156.
For children coming from divorced families or soon to be divorced families it is important to give your child or children structure. Making a holiday schedule in advance will provide structure and set the expectation for the holiday season. In my experience, there tends to be turmoil and challenging situations when there is a lack of planning surrounding the holidays and how time with the children is to be allotted.
I recently came across this article with suggestions on how to spit up the holiday schedule and thought it might be useful for divorced parents, or people currently going through a divorce and think it could be helpful.
Holiday Season Approaching — What Divorcing Parents Need to Prepare for
It is that time of year again where we have a number of family traditions approaching.
We are coming up to Thanksgiving followed by the holiday season.
For families who are divorced or in the process of getting a divorce, it can be overwhelming trying to figure out what to do having two different households involved. The best thing to do is plan now, rather than leaving it to the last minute. This way everybody involved will have a plan so the children will know exactly where they’re going, when they are going and who with.
The great thing about this time of year is that there are two different holidays approaching so the children get to spend time with each parent sharing different and/or similar traditions. Here are a few tips for planning your upcoming holidays:
• Grab a cup of coffee with your ex. Sit down and plan out what’s going to happen over Thanksgiving and this coming holiday season • Talk to the extended family and see who is going to be in town or who is going to be having the family visit during the holidays so you can consider their plans as well • Ensure that you both consider who had the children last Thanksgiving and holiday season so that this year you can rotate if at all possible
For the Christmas / holiday season, there are a few different ways of splitting it up and here a just a few suggestion:
• Option #1: One parent cares for the children from the last day of school until the 26th and the other parent gets the children from the 26th to when they go back to school. In this way one parent gets Christmas and the holidays around that and the other parent get New Year’s Eve. Then next year you can rotate so that every second year you either have Christmas time or after Christmas time, which would give you enough time to usually travel and enjoy the New Year’s Eve together • Option #2: Share holidays around Christmas for example the 24th, 25th and 26th. Therefore, one parent cares for the kids Christmas eve and until noon on Christmas day and then exchange so the other parent can care for the children on the afternoon of Christmas day and Boxing day. With young children having them on the actual holiday celebration can be important to the parents and this way each parents has that opportunity. • Option #3: Split the holiday season into three segments such as the first part of the holiday with one parent, split the Christmas days like in option #2 and then the other parent for the remainder of the holiday season.
Regardless of which option you choose, having it set out in advance will save a ton of stress and last minute planning.
Kirkner Family Law Group, P.A. is a leading family law provider in Tampa, Florida. We are Peer Review Rated for Ethical Standards and Legal Ability by Martindale-Hubbell and have been providing exemplary marital and family law services since 2004. We specialize in divorce, military divorce, child support, child custody, qualified domestic relations orders, pre-nuptial agreements, paternity, step-parent adoptions and enforcement of parenting time.
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