“DIY” or Do It Yourself Divorce is a great way to punish yourself.
By Kristin R. H. Kirkner, BCS
A portion of my practice is helping people who have done a “DIY divorce” or who have tried to file pro se and get in over their heads. It is much easier (and cheaper!) to do things right the first time than it is to fix it later. I have never heard a truer statement than from Henny Youngman, who said, “You know why divorces are so expensive? Because they’re worth it.” This week, I am going to share some of the reasons why hiring a divorce lawyer is essential to the outcome of your case:
1. You don’t know what you are doing in court. You don’t know how to address the judge, what the procedure is, or when to object. You don’t know what evidence can be considered or what will be excluded. You don’t know the case that was decided last month that could change the course of your case. You wouldn’t dream of doing your own root canal, you would hire a dentist. Same idea.
2. As a follow up to #1, you don’t know how to file a motion or, let’s be honest, what the motion should say. You don’t know when it is due or which documents need to go to the court and which are exchanged only between the parties without sending copies to the court. This is (hopefully) your first and last time in divorce court, but this is what my staff and I do all day, every day. The documents required by the court are daunting and numerous. Don’t have your case compromised because you failed to properly plead for something or because you didn’t file a motion correctly.
3. Do you know what property and assets you are entitled to in a divorce? Do you know what would change your entitlement? Do you know the difference between non-marital property and marital property? What happens if you have commingled the property? What if one party wasted assets or incurred debt prior to filing? The division of property can be a very fact specific and nuanced area that requires a wealth of knowledge and experience. Trust me, you are not up to the task unless you went to law school, passed the Florida Barand actually practice in the area of marital and family law, which I am guessing is not the case.
4. What do people usually do for parenting time? What options work (or don’t) for rotating parenting time? Can’t we just agree that parenting time will be “as agreed by the parties”? I have seen hundreds of families and have seen what does (and does not work) in the long run. Also, if the two of you could always agree on things, chances are good you wouldn’t be getting a divorce. Add new relationships, new jobs and children getting older to the mix (all of which are not “unanticipated” and thus not a basis for a change) and you have the makings of a messy post judgment case. Getting a good parenting plan from the start is difficult and sometimes painful, but it is worth the effort and having an experienced attorney to guide you through the process is worth every penny.
5. You could end up paying attorney’s fees anyway. Yes, you heard me right. The court could order you to pay your spouse’s attorney, even if you don’t have your own attorney. I was recently awarded fees in a case where the other side was trying to represent himself. The fees were awarded because he was so difficult and unfamiliar with the court process that he forced my client to incur unnecessary fees as a result of his shortcomings. I am sure that in hindsight, he would have been better served taking that money and paying someone to represent him than to pay me to represent his ex-wife!
The reality is that a sizeable portion of my practice is fixing mistakes made by people who represented themselves or by lawyers who weren’t experienced in family law. Although this is profitable for me, I’d rather have you avoid the headache and heartache that can come from a divorce that wasn’t done correctly and do it correctly for you from the beginning. The bottom line is, if you are thinking about doing your own divorce, or representing yourself, or even “getting it started and seeing how it goes”, please just don’t. If you are already there, give me a call or fill out the form below and let’s fix it together before it is too late.
Who has jurisdiction over my divorce? What if I’m deployed during my divorce proceedings? Answers to all your Military Divorce FAQs.
By Kristin Kirkner, BCS
Can the JAG office handle my divorce?
The Judge Advocate General (JAG) office can give general information, but JAG officers are not able to represent you in a divorce. In addition, this isn’t criminal court so there is no right to a free attorney in a divorce case. You will need to retain a private attorney to represent your interests in the divorce.
Does Florida have jurisdiction over my divorce?
Jurisdiction has three basic components: 1.) Subject matter jurisdiction, 2.) personal jurisdiction and 3.) jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is jurisdiction over the child. In some dissolutions, particularly involving service members and their families who may have PCS’d one or more times during the marriage, Florida may not have jurisdiction to divorce you, even if one of the spouses is living in Florida. Ideally, both parties presently reside in Florida and/or are Florida residents, and the minor children will need to have been living in Florida for six months prior to filing for the divorce. Jurisdiction is a very complicated and fact specific issue and one that needs to be addressed first in any divorce case.
Can I get divorced in Florida if I am on a deployment or have PCS’d overseas?
In some circumstances, yes. If Florida otherwise has jurisdiction in your case, you may proceed with a dissolution while residing outside of the State of Florida if you’re on military orders. If you are living overseas and do not want to proceed with the dissolution during a deployment or when living OCONUS, the Service Member’s Civil Relief Act will, in many circumstances, allow you to get a stay for the divorce during the time that you are unavailable due to military service.
Can I participate in a court proceeding if I am not physically present in Florida?
Yes! Most judges allow telephonic or video conferencing for hearings, depositions and mediations, provided that the correct procedures are followed prior to the court proceeding. If you are not here in Florida, it is especially important to have an attorney physically present to represent you in court. I regularly communicate with all of my clients via email, phone and videoconferencing. The courts have moved to an electronic filing system, so participating in your case from a distance, whether the distance is due to a PCS, a deployment or a TDY, is something that our firm is experienced in handling.
Will I still receive my Basic Housing Allowance (BAH) with dependents after I get divorced?
If you have minor children that you are legally obligated to support, you are eligible for BAH at the “with dependent” rate even if you are no longer married.
Can my spouse keep TriCare after we get divorced?
Eligibility for TriCare depends on the length of the marriage, the length of the service and the overlap between the marriage and the military service. A 20/20/20 spouse (20 years married, 20 years of service, 20 years of overlap) is eligible for TriCare on a long term basis in most circumstances. A 20/20/15 spouse (20 years married, 20 years of service, 15 years of overlap) is eligible for TriCare for one year after the divorce is final. With the rising cost of health insurance, TriCare can be a valuable asset in a marriage for the spouse who does not otherwise have insurance available, however; the member can neither grant nor deny the spouse the insurance, it is wholly a decision made by DFAS based on the length of the marriage and the length of the service.
Will my spouse get a portion of my military retirement?
This is one of the biggest and most important questions I get. The Uniformed Services Former Spouses’ Protection Act (USFSPA) grants the state courts express authority to distribute “disposable retired or retainer pay” in dissolution proceedings according to state law. See, Pub. L. No. 97-252, § 1002(a), 96 Stat. 730 (1982) [codified at 10 U.S.C. § 1408(c)(1)]. In Florida, military disposable retired pay is a divisible asset, and the court will divide the portion of the retirement that was earned during the marriage, regardless of the length of the marriage, to the spouse. In order for DFAS to honor that division, the court dividing the property must have jurisdiction over the member by reason of (A) residence, other than because of military assignment, in the territorial jurisdiction of the court; (B) domicile in the territorial jurisdiction of the court, or; (C) consent to the jurisdiction of the court. DFAS will make direct payment to the spouse if there is ten years of overlap between the marriage and the military service. If DFAS won’t make direct payment, the service member must pay the spouse the funds directly, as they are received by the service member.
Kristin R.H. Kirkner 1 of 8 in Florida to earn BCS in Family & Marital Law
We were pleased to announce that our very own Kristin R.H. Kirkner earned the Board Certification in Family and Marital Law at the end of May, however; it has now been released that only 73 attorneys in the entire State of Florida who were awarded this elite certification, and only 8 attorneys were named Board Certified in Family & Marital Law. There is no official count on how many attorneys took the exam but it is estimated that approximately 100 attorneys took the exam for the Family & Marital Law area of expertise. Check out the full article as posted on the Florida Bar’s website.
Kristin is an expert in divorce, military divorce and family law in the Tampa Area of Florida. With situations as sensitive as divorce, paternity, child support, child custody and more…don’t you want a Board Certified legal expert working for you?
In late May, 2014, Kristin R.H. Kirkner received notification from The Florida Bar that she passed the Board Certification for Marital & Family Law. Board Certification is the Florida Bar’s “Legal Expert” status and is the highest level of evaluation in the State of Florida. In order to become board certified, candidates are thoroughly evaluated for professionalism using a system of peer review in the areas of competence, character, ethics and professionalism in the practice of law, and then tested for expertise through a rigorous written exam. Once an attorney becomes a Board Certified Specialist they are able to use the term “Legal Expert”, and are the only attorneys viewed as such in Florida.
Established by the Florida Supreme Court in 1982, Board certification helps clients identify specialists in various areas of the law. Only six percent of lawyers in Florida are board certified in any area, and less than 300 of Florida’s 93,000 lawyers are Board Certified in Marital & Family Law. Only board certified attorneys may correctly use the term “Expert”, “Specialist”, or “Board Certified Specialist” (B.C.S.).
We are so proud of Kristin for earning her status as a legal expert in the State of Florida in Marital and Family Law. If board certification isn’t enough, she was also recently named as a 2014 Rising Star in the area of Marital and Family Law by Super Lawyers, an attorney rating service, an honor which she also achieved in 2013.
Need a Board Certified Specialist in Marital & Family Law in Tampa? Call today to set up an appointment with Kristin R.H. Kirkner, B.C.S. (813) 254-0156.
In today’s economic climate, it may be tempting to try to complete a dissolution of marriage on your own. You know your family, your assets and debt, and you know how you want it divided. Sounds easy, right? Not so fast…
In the years I have been practicing, I typically earn more fees in a case where I am fixing the mistakes that people made in the initial case than I would have made had I just represented the party when the divorce was initially filed. There is a reason that lawyers have to go to school, pass the bar and gain valuable experience before they are able to competently represent someone — the law is complicated! One small error could cost thousands of dollars over a lifetime.
Take for example a military pension. If the coverture fraction is incorrect, the final judgment doesn’t provide for COLA or SBP, or the retirement is ordered as of date of retirement and not as of the date of filing, the difference could be several hundred dollars per month, which adds up over a lifetime. It is critical to hire an attorney who is familiar with the specific issues in your case so that you can get the best outcome for the long term.
If you would like more information about the Florida divorce process and dissolutions for military members and their spouses, please contact me at 813-254-0156 or visit my website at www.decortkirknerlaw.com .
A marriage by definition is a union between a man and a woman. Every state has different requirements with respect to becoming legally and statutorily married. For example, in Michigan a couple is required to obtain their marriage license prior to their marriage date because there is a three-day waiting period from the time that the couple applies for the license and when it is issued. Some states require the couples to take health or HIV awareness classes, a blood test, or have certain residency requirements.
Plural, Bigamous or Polygamous Marriage
A bigamous marriage is one in which one or both parties enter into another marriage although one or both of the parties are legally married. Bigamy is a criminal offense in most states. The party committing the bigamous act may be criminally prosecuted. When more than two husbands or wives are involved the parties have committed polygamy. Bigamy is a more frequently used term.
Same Sex, Proxy, and Incestuous Marriages
In most states a same sex marriage is not recognized as a legally valid marriage. Some states are beginning to change their view on same sex marriages and have permitted civil ceremonies to occur between same sex partners. A proxy marriage is one in that the parties were not physically present at the time their union took place. This type of marriage is contracted or celebrated through agents acting for one or both of the parties involved. An incestuous marriage is one a marriage between two close blood family members. Most states prohibit such marriages and one may be a prosecuted for a crime in some states.
Void vs. Voidable Marriage
A voidable marriage is one that is valid when it was entered into and which remains valid until either party dissolves the marriage. A void marriage on the other hand is a marriage that was not valid from its inception. Both a bigamous or incestuous marriage constitutes a void marriage. A void or voidable marriage can be annulled.
Types of Voidable Marriages
There are various types of voidable marriages. Depending upon the jurisdiction, some types of voidable marriages include:
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• Underage marriages.
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• Lack of necessary consent to marry.
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• Lack of mental capacity to contract to marriage.
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• Intoxication.
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• Fraud.
Putative Spouses
A putative spouse is a spouse who in good faith believes that their marriage is valid. Often times a putative spouse has rights afforded to parties in a valid marriage because they were unaware that the marriage was not valid, although the other party was aware that the marriage was not valid.
