Expense and Costs of a Florida Divorce
Published November 29, 2010
All divorces are different but there are some basic costs and expense you can expect. These include:
1. Filing Fee – Will be paid to the Clerk of the Court, usually $410.00 (plus or minus). It is paid at the time you officially begin your divorce in court.
2. Summons Fee -Will be paid to the Clerk of the Court, usually $10.00 (plus or minus). It is also paid at the time you officially begin your divorce.
3. Service of Process Fee – Is paid to the Sheriff’s Office, usually $40.00 (plus or minus). It is also paid at the time you officially begin your divorce. A respondent who files a Counter Petition will pay a Filing Fee but will not pay for a Summons.
There is no reason to issue another summons and you do not need the sheriff of private process server to deliver the Counter Petition because you only need to mail the Counter Petition to the other party.)
4. Parenting Class -This is required if you have a minor child. The cost is about $40.00 (plus or minus) (These are typical Litigation expenses)
5. Court Reporter – Will attend a hearing, deposition or trial. You are paying for their time to attend, nothing more. This can be $65.00 per hour or higher.
6. Transcript - This is the testimony previously taken down by the Court Reporter that has been transcribed, printed and published. There is a charge for the time and service of a court reporter which is different than the attendance fee and an additional cost to you. You will be charged for the preparation of a
transcript.
7. Production – Reproducing documents ordered from third parties (spouses bank or insurance company). There is a cost for this process.
8. Witness Fees – (Non-experts) are paid to each witness you subpoena for deposition, hearing or trial. A witness (non-expert) gets paid a set amount plus
mileage.
9. Mediation Fee – All cases are required to Mediate before trial. Some courts require it before a contested hearing. Mediator’s charge about $250.00 per
hour, some more -some less. There is usually a two (2) hour minimum. Mediators expect to be paid at the end of the Mediation whether this is a
settlement or no settlement.
10. Expert Witness – Would be a doctor, accountant, psychologist, and mechanic (see Florida Rule of Evidence 701). They will be paid for their time
and knowledge. What an expert charges is up to the expert (although it can be brought to the judge to decide). It can be your expert charging
you or the other sides expert charging you when you take their deposition. Either way it is an expense.
Florida Child Support, When Will it End?
Published November 8, 2010
In Florida, the easy answer to “when will my obligation to pay child support end?” is as each child turns eighteen (18) years old, Florida Statute 743.07(1). Eighteen (18) is the magic number. But your obligation to pay child support for the child who is eighteen (18) or older may not end automatically because the child turned eighteen(18). You may need to take some action in court to end your obligation to pay child support. Or your obligation to pay child support in Florida may continue because of other legal factors.
You may need to return to court to officially end your obligation to pay child support. Your marital settlement agreement may require you to return to court to end your support obligation.
The words you used to describe your obligation to pay child support may not be clear that the amount you are paying will be recalculation as each child becomes an adult (18 years of age). Another reason, might be your employer wants instructions from the court in the form of a new Order and Amended Income Deduction Order directing the employer to deduct a new amount of money from your pay check for a less number of children. The state agency that collects and distributes the child support may need additional instructions from the Florida court to officially change the amount of child support.
So it may be wiser for you to get an Order, even without someone asking, because the date you file the Motion to Recalculate Child Support will likely be the the date the court uses to reset the new child support amount. The longer you wait the later to file the Motion to Recalculate Child Support only sets back the effective date of the modification. Example – your son turns eighteen (18) on June 30th, he graduated high school ten days earlier on June 20th. For all purposes he is emancipated and his child supportshould stop. Unfortunately, the martial settlement agreement doesn’t talk about what should happen when your child turns eighteen (18). Your employer wants a new Order from the Court to change the amount they deduct from your paycheck. The state agency keeps telling you that you didn’t pay enough support because you just deducted what you thought was the right amount. The state agency records show you owe the full amount of child support and the state sent you a notice your driver’s license will be suspended.
It is not a bad idea to get an Order ending the obligation to pay child support. Not only would it be official and binding on everyone connected with the case, provide you with protection but it is an opportunity to get the child support amount recalculated.
This is important to understand too! Eighteen (18) may be a magic number for ending your obligation to pay child support but there are other reasons set out in Florida Statute 743.07(2) that would continue your obligation to pay support beyond the age of eighteen (18). There are two (20 reasons. First, if the child is mentally or physically handicapped before his or her eighteen birthday. Second, if the child is in high school when he or she turns eighteen (18) and is “performing in good faith with a reasonable expectation of graduation before the age of nineteen (19)”, then child support may go beyond the 18th birthday.
In summary, in Florida your child support obligation for each child should end as each child reaches eighteen (18). But as you read, it is not automatically done. Your employer or state agency may need an Order from the Court to end and or change the amount of your child support for the children who are still younger than eighteen (18). You will need to file a Supplemental Petition for Modification of Child Support, attach updated Financial Affidavit and Minimum Mandatory Financial Disclosure documents.
Divorce & Bankruptcy in Florida
Published November 8, 2010
We are considering both; which should we do first? In today’s world, couples are under more financial stress than ever before. Unfortunately, a dire financial condition is often the final straw in a troubled marriage. Many couples today are considering not just a divorce, but also the possibility of a personal bankruptcy. While it is difficult for couples at such a stressful time to focus on long term strategy, it is important for them to consider timing of the divorce and the bankruptcy so that the already difficult process is not complicated by additional problems.
With divorce affecting half of all marriages, and bankruptcy losing its stigma, it has become common for couples to contemplate both at the same time. Bankruptcy has become simply a tool of financial survival and an option that makes good business sense in an era of great economic hardship.
Why Filing Bankruptcy Before Divorce Usually Makes the Most Sense
These days I see more and more situations where couples have resorted to using credit card debt to fill the gap during times of unemployment or illness. In many marriages, both husband and wife have credit cards where they are separately responsible and also credit card debt where they are jointly responsible for the payments. Couples discussing divorce sometimes make agreements regarding such debt which does not take into consideration which party originally signed for the debt. Whose credit was used to obtain the card?
While agreements like the one above might be binding on the parties in a divorce, such agreements are not binding on the lenders involved. For example, the husband agrees to pay the wife’s Mastercard bill, but fails to do so. The bank does not care that the husband agreed with the wife to pay the bill, they only care that the wife originally agreed to pay them, and they will come after the wife for payment.
It is important to remind yourself of the following:
- Debts incurred jointly during the marriage are the responsibility of both parties.
- If your ex-spouse fails to pay joint debts that he or she agreed to pay according to the divorce, you will be stuck with them.
- If your ex-spouse files bankruptcy and you do not, you will be liable for the joint debt, no matter who agreed to pay it in the divorce settlement.
- •If your ex-spouse agreed to pay one of your debts and does not pay it, the bank will come looking for you, no matter what the divorce settlement says.
Part of the strategy is trying to figure out if the couple can jointly qualify for a Chapter 7 bankruptcy, which is a liquidation. To determine eligibility for Chapter 7, a financial calculation is performed, which is known as the “Means Test.” If the couple is still living together, even if the divorce is imminent, the income of both spouses, will need to be included in the calculation of the Means Test to determine if a Chapter 7 bankruptcy is a viable alternative. Therefore, if the combined income is too high, it might be better to wait until you have separated before filing bankruptcy. You can be living separately, but still married, and should still file prior to the divorce.
To avoid a post-divorce financial mess, it is usually best to file bankruptcy before you file for divorce. There are a number of advantages to this strategy. First, it saves you money and makes your divorce less complicated and more straightforward. Filing jointly is less expensive than each party filing separately. Sometimes the difficult part of doing this is that it requires that you and your spouse cooperate. Dividing marital property after a divorce is a much easier task.
Advantages of Filing Bankruptcy
Figuring out who owes which debt, and negotiating with your soon to be ex-spouse as to who is going to pay those debts, can be a messy, expensive and frustrating process. One of the great advantages of filing bankruptcy before the divorce is to know how your debts will be handled. Another benefit is that the automatic stay connected to all bankruptcies will eliminate dunning calls and letters from bill collectors. There is nothing worse than trying to work through the frustration, pain and agony of a divorce and getting five calls a day from Bank of America asking when you can send that credit card payment. By the fifth call, you want to jump through the phone and rip the lender’s head off. When you file the bankruptcy, all collection efforts must cease, immediately. Banks and other lenders know that if they call you, it violates the automatic stay issued by the federal court, and they can, and will, be held in contempt of court if they continue. Rarely, if ever, do they continue to call, and those that do are very sorry that they were so stupid.
While bankruptcy will make things easier when you divide up the marital property, there are a number of things it will not do, including, but not limited to:
- Keep you from paying alimony;
- Stop you from having to pay child support;
- Eliminate student loans
Kinds of Bankruptcy
For individuals, there are two primary types of bankruptcies, Chapter 7 and Chapter 13 bankruptcies. The major difference between them is in the amount and type of debt that is discharged and what property the debtor is able to keep.
Chapter 7
This is also called a “straight bankruptcy” or “liquidation bankruptcy” since it eliminates all debt, with the exception of items such as alimony and student loans. All property that is not “exempt” is liquidated to pay off the debt. This kind of bankruptcy is available to individuals if they meet certain income levels, and as long as the court doesn’t determine that the filer is trying to abuse the system.
Chapter 13
This type of bankruptcy is a “reorganization”, and for strategic purposes can be entered into voluntarily, or can be required if the debtor’s income exceeds certain levels. Depending upon the circumstances, the reorganization lasts between three and five years.
Other Forms of Bankruptcy
If you have more than $1,081,400 in secured debt or $360,475 in unsecured debt, you cannot file for Chapter 13, but must file for restructuring like a business under Chapter 11. Farmers may file under Chapter 12.
If you are contemplating a divorce, and your financial situation is precarious, you need to check into a bankruptcy filing before the divorce. Too many times we see couples who go forward with a divorce and then contemplate a bankruptcy, when a filing before the divorce would have simplified their situation.
Alimony in Florida
Published November 8, 2010
Alimony is support paid by one spouse to the other. The right to claim alimony is found in Florida Statute 61.08. This specific Florida statute can be found on this website. There are a few types of alimony. Each type of alimony services a particular need for support and gives the judge flexibility in making a just decision.
Florida uses these several types of alimony: permanent alimony, temporary alimony, rehabilitative alimony, bridge the gap alimony and lump sum alimony to meet the economic needs of a spouse.
In Florida, if one spouse requests alimony then the spouse asking for alimony must prove that they have a need for alimony and the other spouse has the income or resources to pay the alimony. To state it simply the formula used in Florida is “need and ability to pay”. You just can’t claim a need or say the other spouse can pay. You must prove with evidence both parts of the formula-“need and ability to pay”.
If you are wondering where you can start to put the pieces of the formula together use the financial affidavits and the minimum mandatory financial disclosure. These documents will help you gather your information and are a great starting points.
In Florida, the court is required to use “all relevant economic factors” when it determines to grant a request for alimony. These “factors” include but are not limited to:
- Standard of living established during the marriage; and
- How long you were married; (the longer the marriage the greater the likelihood you can claim alimony, but each of the five (5) appellate districts differ on the magic number of years, so you must look to the appellate opinions in your district for guidance); and
- The age, physical and emotional condition of each party; (the older the person is the less likely the person is for rehabilitative alimony); and
- The financial resources of each of the parties, this includes assets and liabilities; and
- When the conditions are presented, the time necessary for either party to acquire sufficient education or training to enable the party to find appropriate employment (this is important to determining if rehabilitative alimony is the right choice.); and
- The contribution of each party to the marriage including but not limited to, services rendered in home making, child care, education and career building of the other party. (What does this look like: you go to work and support the family while the other spouse goes to school and gets a good job because the other spouse took care of everything while the other spouse was in school); and
- All the sources of income available to either spouse; and
- Any factor to justice between the parties. (This is a catch all that give the courtroom in case there is something which in fairness should be considered.)
In Florida, the court requiring insurance on the payer’s life can protect the future payment of alimony. You have to ask for the insurance in your petition. Also you should know that a Florida court could consider adultery and the circumstances of the adultery when awarding alimony.
Alimony can be made payable through the court by income deduction order or directly to the receiving spouse. The better way is through the court because you have an exact payment record that is nearly indisputable.
Except for temporary alimony, the types alimony first listed are usually awarded at the end of the case and are described as to amount payable, how often alimony should be paid and if it should be paid through the state by income deduction in the final judgment.
But what if you need alimony awarded at the start of the divorce?
You can ask for Alimony pendent lite. Take a look at Florida Statute 61.071. This statute also allows you to ask for “suit money” that means money to retain an attorney and pay for the costs and expenses of the suit. The claim for alimony pendent elite and suit money can be made in the petition, answer or by motion. Again be ready to prove the need for money and the other party’s ability to pay the money you are asking the court to award you. A court would award alimony pendent lite to help keep the playing field even, so the party with the money doesn’t take advantage of the party with little or no money.
Some of you may have a prenuptial agreement, and in the agreement it says you waive future alimony and attorneys fees. The language of the prenuptial agreement does not stop you from asking or a court from awarding temporary alimony and suit money.
Awarding Florida Attorney Fees
Published November 8, 2010CONTESTED DIVORCES ARE EXPENSIVE
In many cases, a party to a divorce will state that they have retained an attorney and must pay the attorney a reasonable fee AND then may allege they are not in a financial condition to pay for a lawyer and the other spouse has the financial ability to pay both lawyers’ fees. Sometimes attorneys fees can be awarded because one side to the divorce wants to fight over everything and become “litigious”.
When one party can’t afford an attorney and the other side has the money, the Courts do not want situations where one party can drives the other into submission by outspending them or choking them off from any resources to pay an attorney. In Florida the Court will “level the playing field” so both side have the ability to present their case.
An attorney can go into Court prior to the final divorce hearing (usually when seeking temporary alimony or child support) and indicate to the Judge how much time they expect to put into the case and what type of costs may be incurred by their client. (Costs like depositions, expert witnesses, investigations, etc). The Judge may then award reasonable attorney fees and costs if he finds need on the part of the requesting party, and the ability to pay by the other spouse. Or, a judge can award attorneys fees and costs at the end of the case too.
If child support, alimony or attorneys fees are sought early in the case that party seeking the relief will file a Motion for Temporary Relief but to do so the party seeking the temporary relief must be compliant with Florida Family Law Rule of Procedure 12.285(b)(1) Temporary Financial Hearings and have filed all the financial disclosure required by the Rule with the Motion for Temporary Relief.
Read the Rule carefully. The Rule contains some very important deadlines for compliance with financial disclosure. If these deadline for financial disclosure are not met the Court may decline to have the hearing for temporary relief.
IF YOU ARE USING THE PROGRAM TO FILE YOUR PETITION OR COUNTER PETITION, YOUR PACKAGE WILL CONTAIN THE SUPREME COURT FORM AND INSTRUCTIONS YOU NEED TO BE COMPLIANT WITH THE FINANCIAL DISCLOSURE RULE . IF YOU SERVE THE FINANCIAL INFORMATION UPON YOUR SPOUSE YOU SHOULD BE ABLE TO SEEK TEMPORARY RELIEF.
Florida Divorce Lawyers & Fees
Published November 8, 2010
Do I really need a lawyer? In general, people have a lot at stake when they get divorced; financially and emotionally. The laws and rules which are used by Judges and lawyers are sometimes complicated, and it is probably not worth trying to represent yourself. You would need to learn in a short period of time what competent attorneys have spent years learning. Unfortunately, if you don’t do well in representing yourself you may lose many times over the money you thought you were saving in attorney fees. You may also find the expereience to be quite aggravating. It’s the same as trying to repair your own TV or car. You may not do well and you’ve got a good bit to lose.
Most lawyers charge by the hour for divorce cases. If you are charged a set fee (ie. as opposed to paying by the hour) there could be problems. If the case requires more work than originally contemplated, the lawyer feels ripped off. (The more complicated the case the more difficult it is for the lawyer to estimate how much time must be put in) If the case settles quickly, the client may feel that the lawyer got too much money for the time that was put in. Sometimes it is difficult for people to understand why lawyers’ fees can be so high.
Many lawyers do not do a good job of communicating with their clients about the work that they are doing. A lawyer can be doing a tremendous job, but the client may not realize that because it is not communicated to them. They then feel confused when the bill arrives. As with anything else, you get what you pay for. If you hire the cheapest auto mechanic you may be in for trouble. If you hire a lawyer and are not realistic about what the case is going to cost, the relationship may sour quickly. The best course is to communicate regularly with your attorney to see how things are going and to see what the fees are amounting to. It is also highly recommended that before the lawyer even starts, that you both sign a written fee agreement which you clearly understand.
You are asking the lawyer to get involved in one of the most important things you will ever face. No lawyer can give you $10,000 worth of legal services for $1,900.00. The benefit of an experienced attorney, although possibly more expensive, is that they do not have to spend time learning things as they go along, as an inexperienced attorney might. That can be very important given the hefty hourly fees that many lawyers charge today.
Be up front with the lawyer about approximately how much you can afford. If a client has the ability to pay all reasonably incurred fees, the lawyer can be a lot more thorough in handling the case. If money is a real issue, they can allocate resources accordingly, but they need to know in the beginning what the situation is. It is not a question of the lawyer doing a bad job for the lesser amount, it is a question of choosing areas to concentrate on, given a limited budget. A reputable lawyer will appreciate honesty in terms of what your budget is.
The last thing that you want is the lawyer withdrawing from your case because their bill is unpaid. It is disruptive to your case and another lawyer will charge you just to get up to speed on matters. If you do not understand what is happening with your bill or the case, call, send questions in writing, or make an appointment to sit down with the attorney and straighten things out. When a lawyer sends a bill, you should also insist on a time sheet where each portion of work is listed with the time spent. You also need to clarify with the attorney what their policy is about phone calls. If you call and talk for four minutes, does the lawyer have a minimum charge? Some lawyers bill for no less than one-tenth of an hour which is six (6) minutes; and at $150.00 an hour that is $15.00!!
Feel free to ask your lawyer questions, but understand if you want to call and chit-chat, that you may well be “on the clock.” The lesson here is to have a good working relationship with your attorney, but get to the point in your communications, for the sake of your pocket book if nothing else. Also, if you present everything to the lawyer on an emergency basis, and insist on immediate action on everything, the bill may be adjusted accordingly. Most Judges in Florida are overwhelmed with cases and the Court system works very slowly, even with a dilligent lawyer.