Category Archives: Divorce

More on asset protection in divorce

Lately I have had a few divorces where “family money” is involved. The issue in those cases is whether the family/nonmarital funds are commingled with marital funds thereby making them marital . Most of the time these situations are reactive, not proactive. We don’t do anything on them beforehand, so I have given some thought to how to really protect the family money.

The solution I have come up with involves a prenuptial agreement in addition to an LLC where the protected spouse owns 51% and other family members own smaller percentages. The protected spouse would be the managing member of the LLC. All of the “family” money would go into the LLC and the prenuptial would have a provision that specified that any marital money that went into the LLC would be nonmarital.

These and other questions can be answered at the Orsini & Rose Law Firm.


Asset Protection in Divorce

If  you are past your mid-thirties and going on your second marriage, it’s a pretty good idea to look at asset protection.

Strangely, I get a lot of questions about asset protection from people who don’t have any assets and aren’t planning on marriage. Well, first, get the assets.  There’s not much point in speaking with a family lawyer about asset protection until you actually have assets to protect.  But once you have assets, consider putting them into an irrevocable living trust. Then meet the new spouse.

The next step should be prenuptial agreement, then the marriage.

Sounds simple doesn’t it?  The nuts and bolts are that the irrevocable living trust protects your assets from non-purchase money, third party creditors.   A “non-purchase money, third party creditor” is someone who doesn’t have a lien on something you own.  For example, a hospital debt: the hospital is a third-party (not you or someone you signed off with on the loan), non-purchase money (they don’t have a lien) creditor (someone you owe money to).

But an irrevocable living trust does not protect your house from a mortgage holder.  They’re a purchase-money creditor because they have a lien on the house.  They gave you money to purchase the house.

The trust is basically an artificial person that you control. So when you get married, if your assets are in a trust, you don’t technically own anything.  The “artificial person” does.  (Actually, Brent says his ex-wife was pretty artificial, but that’s another story.)

The prenuptial agreement is basically icing on the cake so that if you contribute to the trust during your marriage, the trust doesn’t become comingled and a marital asset.  (Your new spouse can’t say, “Marital money was put in to the trust during the marriage, so I want half of the trust when we divorce.”)

For a more detailed explanation or if you are interested in protecting your assets, contact us directly.


A piece of the action: how much of your spouse’s injury settlement can you get in a divorce?

There are a couple of ways that one can be entitled to a portion of the proceeds of spouse’s lawsuit or recover from a spouse’s negligence claim or malpractice injury in Florida.  One is that you could sue for “loss of consortium” (companionship, sex, etc.) because of the negligence.  But my friends who are medical malpractice and personal injury lawyers tell me these lawsuits aren’t often filed because they don’t result in good recoveries (that is, you can only get crappy money from them) and they cause conflicts in the lawsuits (one spouse wants to settle and the other doesn’t).

Another means of recovery from a spouse’s injury happens in a divorce.  In a divorce, a spouse of an injured person is usually only entitled to half the portion of the money recovered that would be a “marital asset.”  The “marital asset” part of a recovery would be things like lost wages, lost contribution to a 401(k), etc.  The spouse doesn’t usually share in the “big money” part of the lawsuit, which is the money for things like pain and suffering and loss of enjoyment of life.  And, of course, when they hand out settlements, they just give one big check to the law firm; they don’t divide the money up or demarcate it into “lost wages,” “pain and suffering,” etc., so sometimes we have to fight about how much a spouse is entitled to.

So it works like this: Dick and Jane are married.  Jane is in a horrible car accident and is out of work for a year.  She normally makes $100,000 per year and her company normally puts $10,000 per year in her 401(k).  She settles with the insurance company for $300,000, of which her personal injury lawyer takes $100,000.  She gets a check for $200,000.

Dick’s divorce lawyer (of course they filed for divorce after the horrible accident and the year they’ve had) is asking for half of the $200,000 check.  But we know Dick’s not entitled to half.  Most of that money is “pain and suffering.”  How do we know?  Well, we don’t.  We’re just guessing because we know that most of an injury settlement or verdict is usually pain and suffering.  The lawyers will just have to argue it out.  But, well, that’s what lawyers do.

The Rules for Holiday Visitation

The holidays are almost here again, and it’s time to look at some of the rules regarding holiday timeshare, and how you should handle things with the kids:

1. Traditions must change

I firmly believe that it’s important for families to have traditions.  It’s part of what brings us together and builds a bond between us.  But once a divorce or separation occurs, the previous “family” no longer exists.  Step-families may form.  New relatives may enter the picture.  While it may have been true that Christmas Eve was always spent at Grandma Betty’s, that probably can’t happen anymore, at least not every year.  And it probably shouldn’t.  Maybe it can only happen every other year.  Maybe it won’t happen ever again.  Things must change.  Worse, parents will often use traditions as weapons: “The kids have spent Christmas Eve at Grandma Betty’s for the past five years, so I have to ‘get’ them on Christmas Eve every year.”  Divorce and separation are times of change.  Traditions must change, too.  Start making new traditions.  Introduce them slowly, but allow the children to know that, as the family changes, traditions will change.  And make sure you let them know that they can be part of the change.  Allow the kids to help you think of new traditions.  Make it an exciting time for them.

2. It’s about the kids, not you

I hear so often that “it’s important for the kids to wake up at my house on Christmas morning,” but do you think it’s so important to the kids?  Realize that kids just want to wake up and play with toys, and it’s a whole lot less important to them where they wake up after Santa has come than it is to you.  Brace your self for this, but for kids, at least younger kids, Christmas is about Santa, and a whole lot less about you.  And don’t be so quick to rush them over to your house on Christmas day if they wake up at the other parent’s house on Christmas morning.  You want to pick them up by 10 a.m. or so so that you get “your fair share” of the time, but what they really want is to play with their toys.  Give them a little time with the other parent and their new toys before you wisk them away.  Consider delaying the pickup until mid or late afternoon.  Or, if it’s a long drive to your house, here’s a radical thought: maybe just alternate Christmas with the other parent altogether.  That’s a tough way to go because you wouldn’t see the kids at all every other Christmas, but think about what’s best for the kids.

3. On the other hand, the kids are not in control

Don’t ever ask the kids where they want to spend their holidays or who they want to spend them with (or, for that matter, if they want to spend timeshare–holiday or otherwise–with the other parent).  It’s not their decision until they turn 18.  You’re the parents.  The two of you will decide and will tell them where timeshare will be spent, and children should never be put in the position of having to decide between parents.

4. Coordinate gifts with your ex

If the gifts aren’t of the type a child would normally have at both parents’ houses, like a bicycle or a computer, check with your ex to make sure the two of you aren’t duplicating gifts.  Nothing is more disappointing to a child than to receive the exact same dollhouse or guitar from both parents just because that’s the gift the child has been asking for.  Actually, there is a bigger rule here: get along with and communicate with your ex.  I know this can be a tough one, but it makes life so much easier on you and the kids.


I know this is easier said than done for a lot of people, especially people who are recently divorced.  You’ve spent the past twelve or so holidays as a complete family, then this year you have no one.  In the meantime, your recent ex is dating your boss because “he makes double what you make” or a stripper who is twenty years younger than you, and they’re going to Aruba for Christmas (and yet the child support is three months late).  But, somehow, make this the best holiday ever for the kids.  Make this the year you finally go back up north to visit the family.  Make this the year you go all out on the tree.  If money is tight (like it is for everyone), then spend lots of time with friends who have kids, buy a cheap camera and take your kids on a nature walk, buy a bunch of inexpensive crafts or a cheap gingerbread house at Wal-Mart and make those with the kids.  If you live in a city in Florida like me, there are tons of free outdoor movies, symphonies, rock concerts, and all kinds of things to do in December.  You have children!  What could be more wonderful?  Make your kids happy, and how can you possibly be sad?

My take on the Hulk Hogan divorce

Here was my take on the Hulk Hogan/Linda Bollea divorce, quoted in this national news article:


A recent court filing spilled the beans on Linda Bollea’s 2009 divorce settlement with wrestling superstar Hulk Hogan, and it’s a whopper.

The WWF icon, whose real name is Terry Bollea, was taken to the mat by his ex to the tune of 70 percent of their couple’s liquid assets, $3 million in property settlement plus half the income from the sale of their two Florida homes, in addition to 40 percent ownership in companies who manage sales and licensing of various Hulk-brand products.

Linda Bollea also got to keep at least four of the former couple’s cars, including a Mercedes, Escalade, Corvette and Rolls Royce.

“I was extremely happy” with the settlement, says Raymond Rafool, Linda Bollea’s attorney. “Apparently [Hogan’s lawyers] thought they were doing pretty well.  I thought we were doing better and it turns out we did do better.”

Linda Bollea’s total haul should be somewhere in the neighborhood of $7.5 million cash, $3 million from property plus another estimated $5 million once their second home is sold, along with the cars and the ongoing company income.

The settlement surpasses the 50 percent of assets that Linda Bollea was entitled to by law, says Brent Rose, a partner at Orsini and Rose Law Firm. “Florida is an equitable distribution state, which means it works exactly like a community property state—any assets acquired during the marriage are split 50/50,” Rose explains. In rare cases, judges can alter the 50/50 ratio.

However, most divorce cases—Rose estimates up to 90 percent—settle out of court to save the money, time and stress involved in a trial.

Hold onto Your Pocketbook

The Daily Beast has compiled a slideshow of expensive celebrity divorces, and while Hulk might be hurting, he got off easy compared to what some wealthier actors, athletes and moguls shelled out. Among the largest:

  • Harrison Ford’s second divorce, from Melissa Mathison, cost him a rumored $90 million
  • Tiger Woods settled for $100 million with his ex, Elin Nordegren
  • Michael Jordan paid Juanita Jordan $168 million when they split in 2007
  • Rupert Murdoch’s 1999 divorce from longtime wife Anna looks to be the record, costing the News Corp emperor a stunning $1.7 billion


In the Ring: Gross vs. Net Income

The Hogan settlement came to light over a dispute about the companies that handle Hulk products and marketing. Both parties agree that Linda Bollea should receive 40 percent of the net revenues—essentially, any money Hogan makes off the “Hulk” brand that he made famous during their marriage. The only exceptions are for personal appearances, acting and book sales. However, Rafool claims that Hogan has been hiding income, and judges have ruled that he pay an additional $126,000.

“The reason to come through the company is so we can keep track of what he’s doing,” Rafool says.  “We’re entitled to 40 percent. He didn’t do this. He pocketed all the money.”

Payouts based on net revenue are dangerous, Rose says, because accounting gimmicks can sharply reduce or eliminate company profits. “Good lawyers know net is always zero,” he says. “You have to be careful with these celebrity cases. You always end up with 50 percent of zero.”

The safer route is to ask for a percentage of gross income.  According to the St. Petersburg Times, Hogan’s lawyer David Houston is resisting the payment because he claims it demands 40 percent of gross revenues. Rafool says that’s not true; they just want to see the whole pot of money so they can verify how much they’re owed.  “You have to give the gross before you get the net,” he says.

Ongoing Legal Difficulties

For three years, the couple and their two children starred on the VH1 reality show Hogan Knows Best, which was canceled in 2007 due to the deterioration of the marriage as well as legal issues surrounding John Graziano, who suffered serious brain damage after a crash in a car driven by their son Nick Bollea. Since the split, the crash has resulted in years of legal action. At one point Hogan sued his ex-wife  as part of a suit against Wells Fargo for not providing him with adequate insurance against personal lawsuits. The lawyers have been part of the theater: Rafool once reportedly offered to wrestle Hogan during an altercation outside the courthouse during the divorce case.

However, both are moving on to other projects: Linda Bollea has penned a book about her life with the Hulk, and is working on some potential T.V. productions, according to her lawyer. Hogan is focusing on promoting micro-wrestlers—none over four feet tall—in the TruTV offering Micro Championship Wrestling, which debuted this year.  Hogan also remarried, to Jennifer McDaniel last year in Florida.

Of Hogan’s marriage, Rafool says “[Linda] is happy for him, and wishes he would just move on with his life and agree to abide by the agreement.”

Reported by Aaron Kase of

Happy holidays? Or are they?

One of the most stressful times for separated parents is the holidays. There is always a battle with “who drops off when” and “we have to drive here” and so forth. The scary part is that many people actually believe this is for the benefit of their children and not their own schedules. I mean what 5-year-old would not want to go to four different houses on Christmas day when that child could be playing with his or her toys instead?  One of my most heinous examples was the parent that decided that, because the father got an extra day or so in October that, despite the court order, she was keeping the child
for a few extra days.  Including Christmas and Christmas Eve!  The judge came out of her chair on that one.  And, believe me, judges just love those just-before-the-holidays emergency visitation motions (hear the dripping sarcasm there?).

Just remember, holiday visitation is about your children, not your schedule.  I guarantee you the kids are a lot less worried about schedules than you are.

Florida, is it time to relocate?

If you’re looking at this post, you probably know that the Florida legislature changed the rules for permanently relocating children a few years ago.  Now, the parent wishing to move the child has to follow a strict set a rules, give notice to the “noncustodial parent” (I know we don’t use that term now, that’s why I put it in quotes) and file a lawsuit in order relocate a child’s residence more than 50 miles.  You can look in Florida Statute 61.13001 for that rather complicated and technical procedure.

And even if you followed every tiny little procedure under the statute–which you better do, because missing even a little technicality can cost you your relocation–then very few of these cases were ever won, especially if the noncustodial parent was regularly exercising timeshare and was up-to-date on child support.

But along comes the Miami appellate court who may have changed everything.

In a case this past August, Dad had rotating custody (“week on/week off,” or pretty close to it), both parents were found to be excellent parents, child support was not an issue, the Guardian ad Litem (the child’s representative) recommended against the move, and the Dad’s new wife was great at helping the child with homework since the child had ADHD.  Mom wanted to move because her new husband, who was in the Coast Guard, got transferred to California.

That’s what we would call an automatic “no-mover.”  In fact, most relocation cases are automatic no-movers, especially when someone has to move because because of a spousal military transfer.  (Why marry a military person when you know you’ll have to move the kids away from your ex?)  Judges just don’t want to break up kids and parents.  It almost never happens.

But the appellate court said that it was in the child’s best interest to move, essentially because Mom would have a better financial life in California.  Interesting.  Rarely does an appellate court shock me, but this one sure did.  It’s certainly changing the way I advise clients on whether they’ll be able to move.

Divorcing While in the Military

Question: I’ve been in the Army, stationed in Japan, for two years. I’m from Florida, my husband is from South Dakota, and we were married in San Diego. I’ve always kept my legal residence as my parents’ house in Tampa. My HOR (Home of Residence) in the Army, is declared as Florida. Can I file divorce in Florida?

Answer: Yes, you can file here. You don’t lose your Florida residence or citizenship by virtue of being in the military.  There is a catch, though.  Make sure you have a Florida driver’s license of voter ID.  That’s how you’ll prove to the judge that you are really a Florida citizen and “resident.”  Many (probably most) judges will allow you to do your divorce hearing, which takes about five minutes if niether of you is disputing property, debt, alimony, or child issues, by telephone.  To do your hearing by telephone, you’ll have to get permission from the judge’s office first, and schedule it well in advance.  You’ll also have to have a notary present on your end of the line, and make sure a copy of your driver’s license or voter ID has been filed with the clerk so that the judge can look at it while you testify over the phone.

What constitutes “marital property” that gets evenly divided in a divorce?

That’s a complicated question, but it’s an important one to know the answer to in a contested divorce.

Generally, the only things that are non-marital are funds or items that were acquired prior to the parties being married, though there are many exceptions to that rule. For instance, if, after marriage, a person puts his or her spouse’s name on the title or deed to premarital property (like putting money in a joint checking account or adding a spouse to a deed on a house owned prior to marriage), the non-marital property becomes marital. On the other hand, some things that are acquired after the wedding day are still considered non-marital. Inheritance is an example of a type of property that is non-marital, even if it’s acquired after marriage.

Of course, if the spouse puts the inheritance into a joint bank account, the non-marital inheritance would suddenly become marital cash.

Told you it was complicated.