Military Divorce isn’t easy; these tips will help prepare you for the process.
By Kristin R.H. Kirkner, B.C.S.
I often find that the more prepared my clients are coming into the military divorce process, the more efficient and cost effective I can be for them throughout the divorce. A little bit of effort and pain in the beginning can pay dividends in the long run! If you are thinking about getting a divorce, and you are a service member, below are some steps you can take to put yourself in the best position possible to move forward and be proactive in the military divorce process:
1. Find a counselor or mental health professional: In all but the rarest of circumstances, I will ask and encourage my clients to get marital counseling and try to reconcile the marriage before proceeding, particularly if there are children involved. Even in cases where the marriage can’t be saved, divorce puts good people into one of the most difficult and stressful times imaginable. Divorce is devastating emotionally and financially and you need a support system in place from the beginning. Take advantage of the benefits available through TriCare or on base.
2. Get your financial affairs in order: One of the essential components of the divorce process is the division of assets and liabilities. I depend on my clients to tell me what they have, where it is located, and in whose name it is held. Get current statements for each account, pull a credit report and start by making a list of all assets and liabilities so we can figure out the most realistic outcome and develop goals and strategy for the dissolution. While you are at it, make a budget for after separation. The court looks at the needs and ability to pay of each spouse when determining spousal support, and that can’t happen without a realistic budget in place. Be sure to consider your retirement in this division of assets as Florida divides the marital portion of the military retirement equally between the parties and the marital portion is calculated from date of marriage to date of filing, which means that a long separation is not beneficial to the service member when it comes to division of their military retirement.
3. Encourage and assist your spouse to find employment if he or she is not working: The reality is that in most situations, both parties are going to have to work outside the home in order to support two households. If your spouse isn’t working, help him or her build a resume, seek employment and get the training needed to increase their earning capacity. The greater the spouse’s income, the lower their need for spousal support will be. Even though you will be divorced, their success is to your benefit because it will mean less financial support during and after the divorce.
4. Get involved in your children’s community: If you are not already doing this, get to know your children’s teachers, friends, doctors, tutors and coaches. You will need to develop relationships with these people separate and apart from your spouse after the divorce, and the time to start is now. You will need to decide how their daily lives are structured in each home after the divorce, and the only way to do that is to know the key players in their lives.
5. Talk to your spouse about the dissolution and expectations: At the end of the day, this is your family and you and your spouse are in the best position to make decisions for your finances and your children. The more agreements you and your spouse can reach, the less you will have to pay attorneys to do it for you in court. Don’t get into financial negotiations until after you have consulted with an attorney and have educated yourself about the likely outcomes in court, but you can, and should, discuss the logistics of living arrangements and parenting time with your spouse.
Still have questions regarding military divorce? If you would like to schedule an appointment with me to discuss your case, please fill out the form below and my office will be in touch with you for scheduling.
Only 2.5% of all Super Lawyer nominees are awarded “Rising Star” award
2014 has proven to be quite an incredible year for partner Kristin R.H. Kirkner. At the end of May she earned the Board Certified Specialist designation in Family and Marital Law, and is recognized as a Legal Expert by the State of Florida in said field. At the end of June, Super Lawyers came out with their official list of 2014 Rising Stars which included Ms. Kirkner.
The Rising Star award nominees are initially nominated by their peers. After all candidates have been nominated independent research is conducted by an attorney-led, third party research team who investigate each candidate based on 12 key categories. Once the candidates have been vetted, they are categorized by area of practice, then evaluated further against their peers. Final selection is the last step! Only 2.5% of all attorneys named Super Lawyers are awarded the Rising Star award.
It is an honorable award with an extensive evaluation process leaving only the best of the best attorneys receiving the award. If you would like to work with an award winning legal expert, contact DeCort & Kirkner P.L. today to help with your divorce, military divorce or other family law related challenges in Tampa, Florida.
Happy Anniversary to us! Yesterday was our 4th year anniversary as DeCort & Kirkner P.L. although we boast a combined 30 years of experience as attorneys. DeCort & Kirkner P.L. was formed by attorneys Donald DeCort and Kristin Kirkner on July 1, 2010. Their firm is located in downtown Tampa, Florida and focuses on Family Law, Marital Law (Divorce and we specialize in Military Divorce), Small Business Counsel and Mediation.
Don DeCort has been practicing law since 1994 after dedicating a career to the U.S. Army and retiring as a Colonel. He has earned the highest possible distinction for ethics and for legal ability, the AV® Preeminent™ Peer Review RatedSM by Martindale-Hubbell® award. Learn more about Don DeCort here.
Kristin Kirkner has been practicing law since 2004 and most recently received the highest legal certification in the State of Florida, the Board Certified Specialist (B.C.S.) designation in Family & Marital Law. By law, she is considered a legal expert in Family & Marital Law and was also a recipient of the 2014 Rising Star award, an award given by Super Lawyers (a peer review forum). To learn more about Kristin click here.
Together, Don DeCort and Kristin Kirkner create a powerful partnership that combines experience, knowledge, the highest ethical standards and excellence in the legal field. We look forward to another great year at DeCort & Kirkner P.L.
If you would like to learn more about us, or to become a client please get in touch today.
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.
Generally, child support is a noncustodial parent’s obligation to support a child until he reaches age 18, graduates from high school, or is otherwise emancipated. A child can be emancipated through a statutory process by entering the military service or by getting married. If a child is disabled or suffers from a debilitating disease, the support obligation can continue beyond those events. If a child attends college, there may be no statutory basis for child support but there may remain an obligation to provide post-high school tuition, costs, fees, and room and board.
When a child support award is entered, it is usually based on a statutory calculation that considers the number of children to be supported by the obligor, who is the person responsible for paying the support; the assets of the obligor; and the amount of income received by the obligor from all sources. Those factors are the background that existed at the time the support award was entered. Often, as the years pass, the needs of the children change; or perhaps the obligor’s ability to pay changes. All support obligations are modifiable in the future to take into consideration those changes. Either parent may petition the court for modification.
Generally, the petitioning parent may be entitled to a modification in child support when the parent can show evidence of a drastic change in the parties’ income and earning abilities, the assets available for support, employee benefits due each party, the costs of rearing the children, the health conditions of the parent or the child, and a change in custody. Some states will also accept as change evidence that a party has a new spouse with additional income or evidence that new family responsibilities have arisen. Generally, courts will not consider evidence of change that was created by the obligor, who seeks to reduce his child support obligation, as those courts believe that the obligor was aware of his responsibility to provide support and should not have undertaken new obligations that impaired that responsibility.
Written Order
Most states require a judge to approve an order that changes a party’s obligation to pay child support because a judge has a duty to act in the best interests of the child and to insure that the parties do likewise. All states recognize that a modification in child support must be reduced to writing in order to be valid and effective. No matter how well parties get along, no party is justified in relying on the other party’s oral acceptance of the oral modification. A court is not bound by the parties’ informal modification agreements and can hold a party in contempt of court if he or she fails to comply with the court order that is on file. Unless a modification agreement is reduced to writing and made a part of a court’s file, the modification may not be valid or enforceable.
A parent may be liable for a minor’ s torts. The parent may be found liable if the parent was negligent in their actions. The parent may be liable for an injury inflicted by the minor, if the injury was the natural and probable consequence of the parent’ s negligent act. The injury should be reasonably foreseeable due to the parent’ s negligence.
Annulment is the nullification of marriage, and most states allow it only on very narrow grounds. One such ground is mental incapacity at the time of marriage. The law expects that the parties entering the marriage contract should be able to understand the nature and consequences of marriage.
Mental incapacity can be described as the absence of the capacity to make decisions for oneself or the ability to express such decisions. As such, mental incapacity may be due to mental illness, stroke, Alzheimer’s disease, congenital disability, and brain injury, among other causes.
Under the law, a marriage is voidable in cases where either of the spouses is incapable of understanding the contract of marriage. Some states hold that if the party is incapable of understanding because of insanity or serious mental disorder, the marriage is void. Some state statutes provide that mental illness can be a ground for annulment if the defect prevents the afflicted spouse from appreciating the contract and conferring thoughtful consent to the marriage. Mere mental weakness alone cannot be a ground for annulment in some states. Moreover, mere variation from normal human behavior or human thinking is insufficient to justify adjudging a person as mentally ill.
In the case of a ward who has been declared mentally incapable before the marriage, the ward’s guardian can give consent on behalf of the ward for the marriage. Without such guardian consent, the ward’s marriage becomes void or voidable. Such a marriage can be annulled because it was without the consent of the guardian, and the ward was incapable of consenting to the marriage. In that situation, the guardian can bring an action to annul the marriage on behalf of the ward. A mentally ill person can enter a valid marriage if he or she is capable of understanding the nature and expectations of marriage. The ability to understand the duties and the responsibilities associated with marriage is the key factor for evaluating mental capacity to enter into marriage.
The foremost evidence to prove a spouse’s mental incapacity is adjudication of mental incapacity by an appropriate authority. That usually involves expert testimony by a psychologist or psychiatrist. A marriage with a person who is mentally incapable usually is valid and legally binding unless and until a court annuls it.
