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 a guarantee in a divorce.
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:
- Temporary alimony
- Bridge-the-gap alimony
- Rehabilitative alimony
- Durational alimony
- Permanent 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 not always 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.
That being said, if you are going through a divorce I would highly recommend using The Helen Gordon Davis Centre for Women, Inc. as a resource through your divorce.
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.
Legal Profession’s Most Prestigious Rating Service Recognizes Kirkner Family Law Group, P.A. Principal, Kristin Renee Hayes Kirkner with AV.
Tampa, FL – June 8, 2015 – Kirkner Family Law Group, P.A. today announced it has received notification from Martindale-Hubbell that Kristin Renee Hayes Kirkner has received a Martindale-Hubbell® Peer Review RatingTM.
Kristin Kirkner was given an “AV” rating from her peers, which means that she was deemed to have very high professional ethics and preeminent legal ability. Only lawyers with the highest ethical standards and professional ability receive a Martindale-Hubbell Peer Review Rating.
The Martindale-Hubbell Peer Review Ratings evaluates lawyers based on the anonymous opinions of members of the Bar and the Judiciary, including both those who are rated and those who are not. The first review to establish a lawyer’s rating usually occurs three years after her first admission to the Bar.
Martindale-Hubbell conducts secure online Peer Review Ratings surveys of lawyers across multiple jurisdictions and geographic locations such as Tampa, Florida, and in similar areas of practice such as divorce lawyers and family law practices. Reviewers are instructed to assess their colleagues’ general ethical standards and legal ability in a specific area of practice.
The Martindale-Hubbell® Peer Review Ratings™ help buyers of legal services identify, evaluate and select the most appropriate lawyer for a specific task at hand. The confidentiality, objectivity and complete independence of the ratings and attorney reviews process are what have made the program a unique and credible evaluation tool for members of the legal profession. The legal community values the accuracy of lawyer peer review ratings because they are determined by their peers – the people who are best suited to assess the legal ability and professional ethics of their colleagues.
The Ratings Explanation
Martindale-Hubbell® Peer Review Ratings™ reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. A threshold number of responses is required to achieve a rating.
The General Ethical Standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities. Those lawyers who meet the “Very High” criteria of General Ethical Standards can proceed to the next step in the ratings process – Legal Ability.
Legal Ability ratings are based on performance in five key areas, rated on a scale of 1 to 5 (with 1 being the lowest and 5 being the highest). These areas are:
- Legal Knowledge – Lawyer’s familiarity with the laws governing his/her specific area of practice(s)
- Analytical Capabilities – Lawyer’s creativity in analyzing legal issues and applying technical knowledge
- Judgment – Lawyer’s demonstration of the salient factors that drive the outcome of a given case or issue.
- Communication Ability – Lawyer’s capability to communicate persuasively and credibly
- Legal Experience – Lawyer’s degree of experience in his/her specific area of practice(s)
The numeric ratings range may coincide with the appropriate Certification Mark:
- AV Preeminent® (4.5-5.0) – AV Preeminent® is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.
- BV Distinguished® (3.0-4.4) – BV Distinguished® is an excellent rating for a lawyer with some experience. A widely respected mark of achievement, it differentiates a lawyer from his or her competition.
- Rated (1.0-2.9) – The Peer Review Rated designation demonstrates that the lawyer has met the very high criteria of General Ethical Standing.
Martindale-Hubbell Peer Review Ratings were created in 1887 as an objective tool that would attest to a lawyer’s ability and professional ethics, based on the confidential opinions of other lawyers and judges who have worked with the lawyers they are evaluating.
Martindale-Hubbell’s (www.martindale.com) 140-year-plus history began in 1868, when lawyer and businessman James B. Martindale first published The Martindale Directory. Its stated purpose was “to furnish to lawyers, bankers, wholesale merchants, manufacturers, real estate agents, and all others…the address of one reliable law firm, one reliable bank, and one reliable real estate office in every city in the United States…”
By 1896, The Martindale Directory included the basic information that still appears in our lawyer and law firm Profiles, as well as ratings and a section on foreign lawyers and firms.
In 1930, the Martindale Company purchased the publishing rights to Hubbell’s Legal Directory, which contained a digest of state laws, court calendars and a selective list of lawyers and firms. The following year marked the first edition of the Martindale-Hubbell Law Directory; a two volume set that combined the features of both predecessor publications.
Today, Martindale-Hubbell offers solutions for both professional and consumer markets. Our online destinations contain profiles for over one million lawyers and firms in the United States, Canada and 160 other countries, serving as a fundamental legal resource and marketing tool.
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It’s April 14th and if you haven’t yet filed your taxes, chances are you may still be looking for some final deductions. While we are not CPA’s–and would refer you to a CPA for any real tax advice–we often are asked the question, “Are your fees tax deductible?” Below is an article from Lawyers.com with general rules and deductions when it comes to attorney fees.
If you haven’t been there yet, and without jinxing your luck, the odds are good you’re going to need legal advice some day. Maybe you’re thinking about a divorce, or you need help writing a lease for the house you want to rent.
Regardless of why you need an attorney, you’re going to have to pay for?the lawyer’s legal services. Can you take a tax deduction for those attorney’s fees? Usually not, but there are some exceptions.
The general rule is simple enough: You can deduct attorney’s fees you pay for:
- Trying to produce or collect taxable income, or
- To help in determining, collecting or getting a refund of any tax
In simple terms, you can take a deduction if you need an attorney’s help to make money you have to pay taxes on, or if an attorney helped you with a tax matter, like representing you in an IRS audit. If the legal fees are somehow connected to taxes or taxable income, you can take a deduction.
Is There a Deduction?
There are all kinds of situations that qualify for the tax deduction, such as fees you may pay for:
- Tax advice you may get during a divorce case, such as how you and your ex-spouse will take deductions for home mortgage interest or child care, or whether alimony is tax deductible by the payor spouse or taxable income to the recipient spouse
- Trying to get your ex-spouse to pay past-due alimony
- Defending a lawsuit filed against you on work-related matter, such as an unlawful discrimination claim filed by a former employee that you fired
- Receiving your share of a class action settlement in a lawsuit against your employer or former employer. For example, your former employer settles a class action claiming that it didn’t pay overtime wages. You get a $1,500 check for your share of the settlement, but $2,000 is reported to the IRS as income because you’re charged $500 as your share of attorney’s fees. Because the income is work-related, you can take a tax deduction for the $500 in fees
Generally, you can’t deduct fees paid for advice or help on personal matters or for things that don’t produce taxable income. For example, you can’t deduct fees for:
- Filing and winning a personal injury lawsuit or wrongful death action – the money you win isn’t included in your gross income and so it’s not taxable
- Settling a will or probate matter between your family members
- Help in closing the purchase of your home
- Defending you in a civil lawsuit or criminal case that’s not work-related, such as defending you on a drunk driving charge or against a neighbor’s claim that your dog bit and injured her child
How and How Much?
Generally, you deduct attorney’s fees as an itemized miscellaneous deduction on Schedule A of your Form 1040 tax return. You may not be able to deduct all of your fees, though. Miscellaneous deductions are limited by the two percent rule: You can deduct only the amount of your miscellaneous deductions that’s more than two percent of your adjusted gross income (AGI) – the amount you entered on line 38 of your 1040.
Have a Business?
As a business owner, you can take a deduction for the same things discussed above. If you pay an attorney to prepare your taxes or to help the business make money, you can deduct the fees. For example, you can deduct fees paid for:
- Collecting money that’s owed to you by a customer
- Defending you or an employee in a lawsuit over a work-related claim, such as a discrimination lawsuit filed by a former employee
- Negotiating or drafting contracts for the sale of your goods or services to customers
Also, you can usually deduct attorney fees you paid in connection with starting up your business or buying an existing business.
Generally, you deduct these business-related expenses the same way you deduct other ordinary and necessary business expenses. You need to file Schedule C with your 1040 tax return.
Again, we are not CPAs or Tax Attorneys but wanted to provide this information as a resource to our clients as questions about deductions and attorney fees often arise this time of year.
Need an expert in family law in the Tampa area? Please call our office to schedule your consultation today! (813) 254-0156 or fill out the form below.
Military Divorce laws don’t actually exist, but the military does have standard regulations commonly applied to divorces.
By Kristin R.H. Kirkner, B.C.S.
The state courts have the sole and exclusive jurisdiction over divorces, so the term “military divorce laws” is somewhat misleading. However, the military does have some regulations or rules that are commonly applied to divorces:
1. Service member’s Civil Relief Act (SCRA): If the member’s military service prevents the member from participating in the divorce proceeding, the member can ask the court for a “stay” or to essentially delay the proceedings until the member is available.
2. Family Support: This will be addressed more in depth in a subsequent post, but each branch has family support regulations in the absence of a court order. It is possible that the member’s chain of command would be called upon by the non-member spouse or the spouse’s attorney to enforce these regulations either before, or in lieu of, temporary relief.
3. Conduct Unbecoming: Extramarital relations, fraternization and failure to support the family during a separation or dissolution can be reported to the chain of command and may have consequences including loss of rank, loss of pay or forced retirement. While it may seem tempting to report every misdeed, remember that if there is no source of income, it is difficult to get child support and alimony payments on time. Talk to an attorney who regularly deals with cases involving military members before taking this course of action.
4. Military Protection Order: In some situations, particularly when there are allegations of abuse, the military may impose a military protection order. A military protection order is the military equivalent of a no contact order or a restraining order, but it can be enforced through UCMJ. The requirements for a military protection order (MPO) are different than the requirements for an injunction in civil court so if you believe that you are in danger or need protection, it is important to explore your options with an attorney who is familiar with all of your options, both through the court and through the military.
5. Direct payment of Retirement from DFAS: DFAS will make direct payment to the former spouse when 10 years of service overlaps 10 years of the marriage. The State Court will divide the retirement regardless of the length of the marriage, it is only the direct payment that requires a 10 year overlap.
6. Jurisdiction: Military regulations allow a member’s home state to be different from the state of driver’s license issue, which is likely different from their duty station. These military regulations result in members having exposure to jurisdiction in multiple states, based on “home of record, state of driver’s license issue, physical location and proximate residency. The Jurisdictional issues in divorce cases involving military members and their spouses are complex and require someone who is well versed in navigating the logistics of jurisdiction to make sure that you are proceeding in the best state for you and your family.
If you would like a consultation, please fill out the form below and my office will contact you shortly to schedule an appointment. Military divorce “laws” can be complex; work with someone who is extremely knowledgeable in both military and divorce matters.
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