Divorce when 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. You can even file divorce from out of state by mailing in your paperwork.

Splitting the house

Today, someone sent in a question asking if the spouse gets the kids, will she also get the house?

It's quite possible.

Judges try to be fair in splitting up the property. The split should be "equitable," and that's why we call it "equitable distribution."

Theoretically, then, since things are supposed to be "equitable," the spouse who gets the house should have to buy out the spouse that doesn't get the house. (This is assuming the house was purchased after the marriage. Property purchased before the marriage is treated in a completely different way.) How does the spouse keeping the house "buy out" the other spouse? Usually it means that the spouse keeping the house gets less of the other property than the spouse who is not getting the house. For instance, if the house has no mortgage and is worth $200,000, maybe the spouse who is not getting the house would get an extra $100,000 worth of stock that was purchased during the marriage. The $100k would be considered the buyout. One spouse gets the other spouse's half of the house--that half being worth $100,000--but the spouse getting the house gives up $100,000 worth of stock.

But what if there isn't any other property? What if the house is all the couple owns? That happens a lot. Usually, when this happens, judges will then order the buyout to be made in payments over time. The spouse keeping the house would make monthly payments until the other spouse was bought out.

But what if the spouse keeping the house can't afford the payments to be made over time to the other spouse? This is where it can get ugly. Occassionally, if the judge really wants the kids to be in the house and doesn't want to force the sale of the house, the judge will simply give the house to the spouse who is getting the kids. This means that the spouse who is not getting custody of the kids just plain gets ripped off. It's rare, but I have seen it happen.

What if my spouse won't let me have a divorce?

At last, a legal question with an actual answer, not the usual, wimpy "it depends"!

What if your spouse objects to the divorce? They lose. That's it. In Florida, there is no separation requirement and you don't have to "prove" grounds for divorce. You just have to swear to the judge that the marriage is "irretrievably broken." That is, at least one of you doesn't want to be married anymore. Nothing more to it.

Keep the easy questions coming!

When is a marriage considered "long term"?

In order to get permanent alimony, you usually have to have a "long term" marriage. So how long is that?

Well, in Florida, that depends on where you live. In most places, the marriage must have lasted at least 17 years to be considered long term.

The Tampa Bay area is an exception. Most judges here believe that 14 years is enough time for a marriage to be considered long term.

When can you get alimony?

The usual question goes like this: "I cannot afford to live on my own. Is there a way to get spousal support (alimony)?"

This is a tough question. (I seem to be saying that a lot lately.)

There are no hard and fast laws about when a judge should order alimony, and there is more than one type of alimony (four, in fact). Sometime, I'll write a really long and boring explanation of the four types. But for now, let me just cover the usual ways you can get alimony.

Of the four types , the most common type of alimony is "permanent." Guess how long it lasts? That's right, permanently! Or at least until death or remarriage of the wife. Permanent alimony is usually granted to allow a spouse to maintain the standard of living he or she was accustomed to during the marriage. In other words, just because one spouse is a gazillionaire doesn't mean the other spouse has to live broke for the rest of his or her life.

The catch to this type of alimony is that, to qualify, the marriage must be "long term." What's "long term"? Good question. I think I'll put that in the next post.

Child support for same-sex parents

I see that the California supreme court ruled today that same-couples could be forced to pay child support. Ineveitably, I'll get some calls from people in now-defunct same-sex relationships in Florida asking what their rights are.

This seems like a no-brainer. On these types of issues, California and Florida are about as far away legally as they are physically. As the law stands, there is no chance, in my opinion, that a Florida court would grant child support, visitation, or other child-related rights where the children were born (or adopted) by a same-sex couple. Remember, Florida is the only state that, by statute, prohibits gay couples from adopting.

Also, the California case was based on previous California law that said that, when a man holds children out to be his own (he tells people they are his kids, pays for their food and cloths, etc.), even if they are biologiocally not his children, he still may be required to pay child support. This is not at all the case in Florida, where there is a strong movement against forcing men to pay for children that are not their own.

So, I think the odds of child support or visitation resulting from a same-sex relationship in Florida are pretty much nil.

Premarital Property

Here is a question I got from a woman a few days ago: "We purchased our home before we were married. I put the down payment on the house. Can I get that money back?"

I get questions about premarital property a lot. This version is a little tricky, though, since the couple bought the house together. When one person owned the house before the couple met and married, the answer is pretty easy: the person who bought the house alone gets to keep what that person "had in" the house before they were married. After the couple gets married, whatever goes into the house will probably be considered joint property. The tricky part of her question is that I can see the husband claiming that the down payment was a gift, and therefore he's entitled to half of the down payment. After all, they bought the house together, even though it was before they were married.

Personally, I'm pretty confident that she'll get her money, mostly because the husband has the almost impossible chore of proving that the downpayment was a gift, but we'll see. Sometimes I get questions that just don't have easy answers.