May 2020 - Law Office of Philip A. McLeod, P.A.

Relocating with the kids

May 20, 2020/in Divorce/by

Americans, in general, are a people on the move. This is especially true of Floridians. Indeed, while the website Moving.com lists Florida as the top state most Americans are moving to, it also ranks among the top five states people are moving from.

Relocating becomes much more difficult when one shares a custody agreement with another. They no doubt want their kids to move with them, yet taking them along means drastically impacting the other parent’s custodial or visitation time. The question then becomes what is legally required when a divorced or separated parent wants to relocate.

Meeting the state’s standards for relocation

Section 61.13001 of Florida’s state statutes says that if both parents submit a revised custody agreement to the court to accommodate for a move, the court presumes the move to be in the best interests of the children subject to it. However, if the non-relocating parent wishes to challenge the basis of the relocating parent’s reasons for moving, the relocating parent only needs to notify them (in writing) prior to moving stating their intentions. Such notice should include the following information:

The location where they wish to relocate to (including the specific physical and mailing addresses, and telephone number, if known)
The date they intend to move
The reason(s) for the relocation (including a copy of a job offer from a new employer, if due to employment)
A revised custody schedule
Notice that the non-relocating parent can petition for a hearing

If the non-relocating parent does not petition for a hearing in a timely manner, the court assumes they consent to the move.

Defining a relocation

Per Florida law, the aforementioned steps are only required if one wishes to relocate a child further than 50 miles from their current address for a period of at least 60 consecutive days.

Premarital Agreements (Prenup)

May 8, 2020/in Firm News, Prenuptial Agreements/by

In Florida, Florida Statute 61.079 controls what most people call a prenuptial agreement or prenup. However substantial case law also controls some issues.

If the prenup is signed by both parties then the Court looks to whether it is enforceable or not. The Statute defines how it can be set aside as:

Was it executed voluntarily.

The one area this usually comes about is that it is signed too close to the wedding! While no case or statute defines what is or is not “too close”, you should have it reviewed and approved well before you ever get close to the marriage date. I normally suggest no less than 30 days. Obviously if the party were forced to sign or was told there would be no wedding while guest are already on their way for it, then this would be indicia of involuntary.

Was the agreement a product of fraud, duress, coercion, or overreaching.

This is more difficult to define. Duress and coercion can take many forms. Legal duress is more than telling someone they will not marry them without a premarital agreement. Fraud is much clearly and is based n the facts surrounding its signing and leading up to signing.

If the agreement is unconscionable when signed and before signing, the other party was (a) not provided a fair and reasonable disclosure of the property and financial obligations of the other party and (b) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond what was disclosed (paraphrased) and © did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

This is why I normally require a full disclosure attached to the agreement as Exhibits of what each party is bringing into the marriage that may be worth in excess of $500. Then it is difficult later to say the other party did not know what each had.

The statute also defines what can be included in premarital agreements.

Clients normally want to protect what they bring into the marriage, however current law provides that assets brought into the marriage are nonmarital, thus their value as of the date of marriage and any passive appreciation remains nonmarital. Without a premarital, the issue(s) becomes if the asset is improved during the marriage through “marital efforts” then the increase is marital. Also if it is an intangible asset such as bank accounts, then if you mix marital funds (earnings or other funds gained as a result of marital efforts) into the nonmarital funds, then they become marital in their entirety. The one exception to this are retirement accounts. There the Court will value it as of the date of marriage then calculate what that value would have done invested as it was during the marriage and that is set aside as nonmarital. Any monies deposited during the marriage from earnings and appreciation or depreciation will be marital. This can be changed by the terms of the agreement so that all is nonmarital. For Estate purposes, any ERISA account (usually 401k, 403b, but there are others) is subject to a spouse’s entitlement whether acquired before or during the marriage. Thus if you want to be able to designate it to someone other than the spouse, then you must file a waiver after marriage or it will go to the spouse.

Also the mere fact that you marry, permits one spouse to claim 30% of the other’s Estate (Elective Share). This can be waived in the agreement.

One case has held that where the Elective Share is waived by the premarital agreement and the spouse later provides in their Will for a Trust to be created for their spouse equal to the elective share, that this provision in the Will is void as an attempt to modify the premarital as it was not signed by both parties (which the premarital Statute requires) and the Wife, in that case, lost the value of the Trust.

If you plan on living in one party’s home and it will remain titled solely in that spouse’s name, then this “homestead” comes with statutory rights. That right is for the non-owner spouse to receive either a life interest in the house or one-half of its value should the owner die. This too can be waived. In the case of divorce, the case of Kaaa ruled that any passive appreciation, improvements and mortgage paid down during the marriage using marital funds are marital. There is a statutory formula for determining how much the non-owner receives.

By law, gifts by the parties to each other during the marriage (note, engagement rings are before the marriage thus the receiving party keeps them as nonmarital) are treated as owned one-half by each party. This can be modified so that the receiving party is entitled to it. Gifts from third parties (so long as not improved or commingled with marital funds) remain nonmarital as would purchases made from them.

While this is not intended as an exhaustive analysis of premarital agreements, we hope it has helped you understand them better.

Tips to Save Money with Divorce

May 8, 2020/in Firm News/by

All clients want to know how to save money! Heck, I want to save when I buy something, without being stupid about it. First if there are no children and you have agreed on everything, then you can do it by Simplified Divorce. The Clerk has the forms in a packet that costs very little. Understand this requires that you both appear when it is filed, so the Clerk can swear you in to say this is what you want and then again, when the Final Hearing is scheduled about 7-14 days down the road. The Clerk gives you this date when you file. Failure of either party to show up will preclude getting the divorce finalized. You can find the instructions and initial forms at: https://www.flcourts.org/content/download/403028/3456502/901a.pdf.

Your only cost (unless you qualify as “indigent” which the Clerk can help you define and apply for) will be the filing fee which is $408.00 in Pinellas County as of 2020.

Be careful! If you are dividing any asset that requires title transfer or sale, then you must include language in the agreement and Final Judgment that permits the Court to help with it later! By this I mean, if you are to get the 2019 car and it is jointly titled, then you must put language in on when the other spouse will transfer title into your sole name and what will happen if they do not do so. An example only is “The Husband shall transfer title to the 2019 Dodge Ram into Wife’s name concurrent with entry of the Final Judgment or the Final Judgment shall act to transfer title to Wife or permit Wife to sign for transfer as Husband’s attorney in fact.” Similarly, if the house is to be sold, then by example only you might say “The house located at 0000 Oak St., City, shall be listed for sale with XXX Realtor, at a price of $YY concurrent with execution of this Agreement. Any offer at or above YY-10% shall be accepted by the parties. If they are unable to agree on a sales price, list price or any other matter regarding sale, then the Court shall retain jurisdiction to insure sale and all aspects of sale.” If you were to only say, “We agree to sell 0000 Oak St.” and then get the Final Judgment, the Court would not have any authority to do anything with it later.

A Court can only do what you permit it to do by retaining jurisdiction (authority) over any asset/liability. Think long and hard on what you might want the Judge to do down the road for you! Thus if you think the other spouse might not transfer title, give you $YY amount of money called for or to pay their half of the credit card(s), then put language in that permits the Court to make them do so later!

In Pinellas County, as in many other Counties, there is a Self Help Center in the Courthouse where you can get some assistance in filling out papers, but they cannot give you legal advice.

This is not an exhaustive Simplified Dissolution explanation but just an overview. Hope it helps. Phil

Therapy before starting a Divorce? Why?

May 8, 2020/in Divorce, Firm News/by

For years I have told potential clients “Whether you are not sure about getting divorced or you are the one absolutely sure it is necessary, get as much therapy as possible, especially if the other spouse will attend.” I am a firm believer that it is human nature to want to have a partner in life. Admittedly humans do not always choose the right one and there are times that no amount of therapy would or should put a relationship back together. The great part about therapy is that it can show you if this is the right type of relationship or the wrong one too!

If the relationship should stay together or can be helped back into a better place, Great! If not, then you will have spent lots less money than just hiring an attorney and especially if one partner did not want the divorce, the therapist can assist in helping them see why this may be a better option. If you think attorneys and traditional divorce are expensive, then have one partner wanting to keep the marriage alive and they will do anything to make it last longer and thus be more costly under the belief that “we can stay together if the other spouse just sees how much I love them!” This is not a good place to start the divorce.

Conversely if both parties can see that it is over or should be over, that they can both save lots of money and get out with as little emotional strain and pain as they can, then it will usually settle more quickly. This equates to less money to lawyers and other professionals in their case.

If there is/are minor child(ren) then a good therapist can really help guide the co-parenting partners into better communication, better co-parenting skills and guide you through a very rough time in your lives. If both parties will access therapy then the emotional toll on the family will be greatly reduced, if not eliminated. Let’s face it we all had kids with the sole intention of protecting them at all costs. Hey, that’s what parents do. So why not protect them in what could be their toughest times? Don’t deceive yourself that “they’re too young to know what is going on with their father/mother and me.” Kids have that insane quality to see everything, no matter their ages.

There is the additional benefit from therapy that most humans have a rather innate characteristic to actually get out of one bad relationship and then, no matter how much they insist (if not yell to the heavens!) they will never be with that type of personality again, they will walk right back into the same type of relationship as they had before. Believe me no one wants to admit that they will do so, but it is a know fact that we all have this tendency. Therapy will help guide you out of this trap!

So let’s save the family dynamic, help hold down costs and, if kids are involved, have the added benefit that it may just help them through this time regardless of how we handle it. I hope this gives you some insight to what we as divorce professionals try to see families do to benefit the process and help themselves and their families through this very difficult time in their lives. Hey divorce is tough enough, if you can ease the strain and pain (and save some or a lot of money) just do it!

WHAT THE “A”!

May 8, 2020/in Firm News, Prenuptial Agreements/by

You may say WTF and this is a case that highlights why words, no matter how small, mean so much in the law. Clients sometimes ask why prenuptial agreements cost so much. Well, here is a case that highlights the pitfalls of drafting these very dangerous documents.

In the recent case of Famigilo v. Famiglio, 2019 in the Second District Court of Appeals (binding on Courts from Crystal River to Marco Island), the Court considered that smallest of all vowels “a” vs. “the.” Seems of little consequence right! Well what if the difference between these two very small words would eventually cost you $2,400,000! Yes, that’s right, I said $2,400,000!

In this case, the parties entered into a prenuptial agreement which said that any lump sum alimony benefits the Wife was to receive would be based on the number of years they lived together “at the time a Petition for Dissolution of Marriage is filed.” This is a very common concept in prenuptial agreements and not an isolated event!

Here the Wife initially filed for her divorce in 2013, it was never served on Husband and it was dismissed. In 2016 the Wife then filed a Petition for Dissolution (for divorce) and this resulted in their divorce being finalized. During the period from the Wife’s initial filing and the Wife’s second and final filing, the increase in what the Wife would receive had increased $1,500,000. So, the Appellate Court had the issue of whether her 2013 filing was the filing of “a” Petition for Dissolution or was her second filing in 2016 was the filing of “a” Petition. The Court goes through a lengthy analysis of the use of the word “a” and came to the conclusion that her filing in 2013 was a filing, thus she was entitled to $1,500,000 less than what she would have received had her 2013 filing controlled! Had her attorneys said that she was entitled to receive an amount certain upon the filing of “the” Petition that results in their divorce, she would have received $1,500,000 more than she did!

Now when you ask your attorney why it costs to obtain a prenuptial agreement, it may make absolute sense that protecting you from a $1,500,000 mistake is well worth it!

Attorney’s Fees in Divorce

May 8, 2020/in Divorce, Firm News/by

I just returned from two days of Family Law seminar by myriad speakers in Orlando. Some good thoughts ere given on multiple subjects. One of those subjects is attorney’s fees in family law litigation.

The standard Rule is found codified in F.S. 61.13 of the Florida Statutes. Essentially it says that the party with the better ability to pay from all sources is responsible. Now, virtually all Judges will tell you that unless there is a huge discrepancy in the assets and income of one party, then each party will be responsible for all or a portion of their own fees. Similar to the fact that most Judges will never have one party pay 100% of the mediation fees, as they want each spouse to have “skin in the game”, Judges also believe that having one spouse responsible for even a portion of their own fees, will help hold down costs.

Also while talking about holding down costs, there are numerous cases where the Court has refused to grant fees to an attorney seeking them from the his/her client’s spouse when the time expended was for “hand holding” and not essential legal actions. These “hand holding” time entries were held not to be to forward the legal issues for the client and therefore the other spouse was not required to pay for them.

I have told clients for decades that the best money they may spend in a divorce is to obtain counseling from a mental health professional. Not necessarily to put their marriage back together but to learn how to handle the divorce, family issues, children co-parenting (if children are involved), how they can assist themselves with future relationships and so many other areas of their personal lives. This also would preclude the “hand holding” issues the Trial Court had to consider because these concerns would have been dealt with by the mental health professional, who usually charges far less than their attorney and frankly is better trained to assess their needs for such “hand holding”!

Consider who is better suited and who can handle your issues much less costly! I do not say this so that you will not share your thoughts, concerns and helpful input, but when it comes to those items that could be better addressed by a mental health professional, hire them and don’t ask your attorney to handle those.