Getting a copy of your divorce decree

So you got a divorce a few years ago and, maybe because you now want to get re-married or something, you need a copy of your divorce decree (which, in Florida, we call a "final judgment of dissolution"). No problem. All you need to know is what county you were divorced in.

Just call the clerk's office of the county in which you got divorced and give them your case number, if you have it. If not, they can look it up. Tell them you need a copy of your final judgment of dissolution, and they'll tell you how much it will cost. Cost is done based on the number of pages.

Once you get the information on how much it will cost, you write the clerk's office a letter giving them the case number, telling them you need a copy of the final judgment, enclosing a money order for the correct amount to "Clerk of Court," and enclosing a stamped self-addressed envelope. They'll send it to you within a few days.

You may want to ask for a certified copy. It costs an extra couple of dollars, but it's worth it because some agencies may accept only a certified copy. When you call them, ask the clerk how much extra it will cost you for a certified copy. They may call it a "true copy" or a "conformed copy." Same thing.

Easy to do. No lawyer required. For once.

Increase in value of assets after divorce is filed

Just got this question a minute ago, and, for some reason, it's one of my favorite subject areas:

Is your net value of marital assets determined once you file a petition for divorce? For example, let's say a stock is worth $10,000 when you file for divorce and the next day the stock is worth $20,000. If the stock is in my name only, how much does my spouse get?

Answer:

Very good question. The simple answer is: it's up to the judge. Sometimes assets are valued at the time of filing of the petition, sometimes they are valued at the time of trial. The appellate courts say that a judge should look at whether the increase in value of the asset is due to active or passive activity. If the increase is due to passive activity, the asset is valued at the time of trial. If the increase is passive, the asset is valued at the time of the trial.

Here's why:

If the asset increases in value between the time of filing and the time of trial through no activity of a spouse, it's only fair to split the asset at the time of the trial; both parties should get the benefit of the increase.

On the other hand, let's say the husband stays in the marital home after the divorce is filed. Between the time of filing and the time of trial, the husband adds a room on to the house. Obviously, the increase in value of the house is due to the husband's active work. Therefore, it's only fair that he receive the value of the increase. The house would be given the value that it had when the divorce case was filed, which was before the husband added the room. The husband would receive all the value of the added room.

So, if stock is worth $10,000 at the time of filing, and increases to $20,000 the next day, we have passive increase, and the judge should give both parties the benefit of the increase. The $20,000 would be split.

Alimony, child support, and taxes

Been a busy day, so I only have time to write a quick note.

Don't forget that, when drafting your marital settlement agreements or when in mediation, alimony is considered income and is taxable. Child support, on the other hand, is not considered income. So, if given the choice of whether you want a lot of child support or a lot of alimony, and all else being equal, go for the child support. You won't have tp pay taxes on it.

Of course, all else is never equal. Alimony may end when you re-marry, and you might be planning to re-marry soon. (About 75% of men and almost as many women re-marry within a year after divorce.) Child support may end when the kids graduate high school, for example. Bear these kinds of things in mind when deciding how to structure a settlement.

But definitely don't forget the tax man, either.

Inheritance - marital property?

Uh, oh. That rich uncle is about to die and leave you a huge pile of cash. Should you divorce in a big hurry to make sure your spouse doesn't get any of the inheritance?

Nah, as a general rule in Florida, inheritance is considered nonmarital property, so that money remains all yours, and none of it goes to your spouse.

Rotating custody agreements

One of the things I've written about on our website is the shock that comes when a parent learns that, in divorce, the noncustodial parent usually loses his or her kids. That is, seeing you kids every day, attending all sports practices, going to church with the kids, etc., all may end because time with the kids is reduced to every other weekend or so. And if the noncustodial parent shows up at the practices or goes to church where the kids are on the non-timeshare weekend, this is often called "overparenting," and may subject the noncustodial parent to sanctions.

One attempt made to alleviate this problem is called "rotating custody." Rotating custody is where the children spend, say, one week with one parent then the next week with the other. The days aren't constant. This allows for a 50/50 split of the children's time.

I think it's a great idea, and many child psychologists are now agreeing.

But judges aren't agreeing. In fact, I'm told that, at judges' conferences, judges are instructed that rotating custody should only be allowed in rare cases. The reason, they're told, is that children need stability, and switching time back and forth between parents breaks that stability.

Ridiculous. Kids need their parents a lot more than they need this so-called stability. They need to spend time with both parents, not just one parent most of the time, and the other a little bit of the time.

You should consider rotating custody when you are trying to settle your custody issues, but realize you'll probably have an uphill battle with the judge.

Divorce and personal injury settlements

Q: "I have just filed divorce and I'm due a personal injury settlement next week. Is my spouse entitled to any of the money? I'm the one who suffered!"

Your spouse may indeed get a portion of the money. A settlement from an accident may include compensation for lost wages, loss of earning ability, loss of enjoyment of life, and many other things.

The problem is that the wages you lost due to the accident would have gone to both you and your spouse had you not been injured. In other words, you'd have been making money that would have gone to both of you. The same is true for loss of earning ability: you would have been making more money were it not for the accident and that extra money would have gone to the marriage.

Therefore, your spouse does have a claim for a portion of your settlement.

But when you get a settlement, they don't break it down into how much is lost wages, how much is loss of enjoyment, etc. They just give you a check.

This makes it very tough for a judge to determine how much money your spouse is entitled to.

If you are in the position of divorcing and also expecting a settlement, run, don't walk, to your nearest divorce lawyer's office. Otherwise, you may lose a whole lot of money.

Voluntary surrender of a car - no such thing

This probably isn't the exact right place for this post, but I thought I'd bring it up anyway, since I have so many clients ask me about it.

So many clients say to me, "We didn't want to let our car be repossessed, so we 'voluntarily surrendered' it back to the dealership."

There is no such thing as "voluntary surrender"! While it might be a nice thing to do for your creditor, since they won't have to come and find the car and tow it away, it does nothing for your credit. The same thing will happen to you whether they take it from you or you give it back: they will sell the car and sue you for whatever is left on your loan minus what pitifully small price they sell the car for. And your credit report will say, "Repossession," not "voluntary surrender."

Your spouse's effect on your credit

Today's question:

"I'm separated from my spouse, and I'm worried that my husband's bad spending habits will ruin my credit. Should I divorce him right away?"

Doesn't matter. Any co-signer, whether spouse, ex-spouse, or deadbeat brother, can ruin your credit through non-payment. If payments aren't made on time, your creditors don't care about your marital status. They'll just put the lateness on your credit report anyway.

So divorce won't help you at all. Be careful who you co-sign with.

On the other hand, in Florida (and other non-community-property states), you can't be liable for the debts you don't sign on, even if were married when the debt was created. So, once again, your marital status is irrelevant.

Amendments to a divorce agreement or judgment/decree

Hurricane Katrina continues to touch us all. I have completly lost touch with several of my clients who live in the Mississippi and New Orleans areas. I can't even reach them on their cellphones. The messages says something like, "Due to the hurricane in this area, service is not available for this customer." Pretty scary. I'll continue to pray for them.

On to today's question: "My ex-wife wants to change a provision in our agreement. Can we do this or do we have to go back to court?"

It depends on the change. You can't change child support amounts without having your amended agreement go back to the judge, but you can change most anything else. It's always best to have your amendment reviewed by and signed by the judge, but it's your life, and most judges would rather have you run your life rather than them running your life.

Just remember to put your change in writing signed by both parties. Otherwise, the other person may claim the change was never made.

Desertion - when can I get out of here?

The spouse is driving you nuts, huh? You want to bail and get out of Dodge, but you're afraid you'll be sued for desertion?

Well, if ya gotta go, ya gotta go. In some states, it's true that you can be sued for desertion, but not in Florida. As I've said many times before, in Florida, you can divorce only when the marriage is "irretrievably broken," which pretty much means any reason at all. (You can also get a divorce when a spouse is mentally incapacitated, but that's pretty rare.)

Now, don't get me wrong, desertion is probably a really bad idea if you're seeking custody, but otherwise, don't let fear of being sued for "desertion" hold you back.

Service by publication

Question:

"I haven't seen my spouse in over three years, and I can't locate him. I've called his family and they claim they haven't seen him. How can I divorce someone I can't find?"

By publication. In Florida, you can divorce someone by publishing your divorce summons in the classified, legal section of the local paper or by sending a certified letter to the last known address. Since no one ever reads the legal section, you'll win your divorce by publication pretty much automatically. Your spouse won't know that you've divorced him or her, won't show up to fight the divorce, and you'll win everything that the judge will give you.

Sound pretty cool? It is, but there's a catch. Before you can divorce by publication, you have to swear that you've looked pretty hard for your spouse. How hard should you look? Well, Florida law suggests that you at least ask around, including asking family and former employers. You should also check arrest records for your location, the Florida DMV, utility companies, the white pages, the internet, occupational licensing agencies, the IRS, hospitals near where your spouse last lived, the coroner's office, the military, the USPS for an address change, and anywhere else you can think of to find him or her.

Yeah, I know it sounds like an awful lot of work, but it may be worth it to get your divorce.

Temporary support and custody

One of the questions I got today involves temporary support:

"I don't have a job yet because I've been a homemaker for ten years; if I file for divorce, how will I survive until the judge awards alimony and child support?"

Florida law allows for temporary custody, visitation, alimony and child support. In other words, the judge can allow for temporary money to be paid to you as alimony and child support during the pendency of the divorce. The judge can also temporarily assign custody and visitation. Each of these things requires a motion, and you can put all of your requests for temporary things (we lawyers call them "temps") in one motion.

Many counties and judges require that you attend a mediation before they will agree to temporary awards.

Usually, an award of temps has no bearing on what the final ruling will be on permament alimony, child support, custody, etc.

Temorary Injunctions for Protection (Restraining Orders)

This is less of a question than a vent on my part.

I got a call today (Saturday) from a client who was on his way to his son's first football game. He and his wife separated about a year ago, have not gotten along that well since the separation, and have finally decided to divorce. She got a lawyer, and he hired me. They haven't gotten along well since the separation, but they have always agreed on issues regarding the kids.

She just received our answer to her petition for divorce, and, in our answer, we've asked for custody of their two kids. This isn't an idle request or a threat to gain leverage in the divorce; it really is in the best interest of the kids to live with their dad. I hear this really ticked her off.

Back to today. As he's walking out the door to go to the football game, something he's looked forward to for months, he's served with an Injunction for Protection. Most states call it a "temporary restraining order." As in most states, an Injunction for Protection is issued on the word of just one of the parties, almost always the wife. In this case, she swore before a judge in a written affidavit that he had hit her about five years ago, and she's still afraid of him because he got mad at her for picking up the kids five hours late last Sunday.

The result of the injunction is that he must now move out of the marital home and she can move in. She moved out a year ago and moved in with her dad and, he, having nowhere else to go, has remained in the house. He doesn't know where he'll go, especially on this short notice.

The next result is that he is denied his visitation this weekend, Labor Day weekend.

And, most importantly, and poignantly, he can't attend his son's first football game.

On Tuesday, we'll get to be heard by the judge. Based on her affidavit, I have little doubt we'll win.

I'm not against Florida's laws allowing for these injunctions. I've used them to help keep violent men away from women on many occassions. I've seen tremendous good come from these laws, and I'd oppose their repeal.

But that first football game will never be played again.