5 Common Mistakes to Avoid During a Divorce
Tensions can often be high during a divorce. It’s important to tread carefully and be aware of your rights and responsibilities during this difficult time. Speaking with a family law attorney can help you choose the best course of action and avoid these common pitfalls.
Sending Disparaging Texts or Emails:
Hold the phone! Text messages, emails and social media posts can be used against you in Court by your ex, to attack your credibility and character. Your words and actions are a huge factor in the Court's consideration of the best interests of any child or children involved in a Family Law matter.
Going Pro Se:
Understanding your rights and obligations is key. A Family Law attorney will guide you through this process and ensure you reach a fair separation agreement or court settlement.
Not Putting the Kids First:
In all Family Law matters involving minor children, the Court will look to the best interests of the child in making decisions regarding time sharing and parental responsibility. Making decisions based on resentment toward the other parent is never in the best interests of the child and will not work in your favor in the eyes of the court.
Moving Out of The Marital Home:
While you should not stay in the marital home if you fear for your safety, moving out could complicate your claim to an interest in the home. If possible, before moving out of the home you should consult an attorney and ensure there is a parenting schedule in place, where there are children involved, to make sure you have continuing access to the children.
Hiding or Depleting Marital Assets:
In every dissolution of marriage, the parties to the dissolution will make a full financial disclosure. The court will review and determine the marital and non-marital assets. In doing so the court can look at transactions after filing for dissolution and up to two years prior to the filing, for any intentional dissipation, waste, depletion or destruction of marital assets.
Contact Cody Law to schedule a consultation if you need help navigating divorce or any Florida family law issue.
The Unresponsive Spouse: Default in a Dissolution of Marriage
When you initiate a divorce by filing a Petition for Dissolution of Marriage with the court, the initial pleadings must be served on your spose via process server. Timing is crucial when it comes to responding to the petition. In Florida the responding party has 20 days from service to file their response. But what happens when your spouse fails to participate in the divorce? If your spouse fails to respond to your divorce petition, you may be wondering what happens next. At Cody Law, we aim to guide you through each step in the process and keep you informed and educated along the way.
When you initiate a divorce by filing a Petition for Dissolution of Marriage with the court, the initial pleadings must be served on your spose via process server. Timing is crucial when it comes to responding to the petition. In Florida the responding party has 20 days from service to file their response. But what happens when your spouse fails to participate in the divorce? If your spouse fails to respond to your divorce petition, you may be wondering what happens next. At Cody Law, we aim to guide you through each step in the process and keep you informed and educated along the way.
What Happens Now?
The first step, after the 20 day period has elapsed with no response, is to obtain a Clerk’s default. From there, once defaulted, the case will proceed without your spouse’s input. The court will require a final hearing in order to enter the Final Default Judgment. The relief you requested is not automatic, just because your spouse has been defaulted however. The court will not grant any requests that are unreasonable, even without the other party’s participation. Even if your spouse does not participate, you will still need to present evidence to the judge and testimony in support of your requests for relief. Depending on your individual situation, the court will need to determine each of the following issues, without your spouse’s input. :
Division of Assets and Debts: Under Florida’s equitable rules, marital assets and debts are divided “fairly” although not necessarily equally. If you proposed a division of assets in your petition, the judge may follow your proposal as long as it is reasonable. The judge however has discretion to modify the proposed division if it is unfair or does not meet requirements under the law.
Alimony: If you requested alimony in your petition, you will need to present evidence to the judge showing that you have a need for alimony and that the other spouse has ability to pay. The court can award alimony without the other spouse’s input so long as sufficient evidence is presented showing that alimony is necessary in your case.
Parental Responsibility, Timesharing and Child Support: Even in a default situation, where there are minor children involved, the court must determine parental responsibility, timesharing, and child support based upon the best interests of the child. Child support is calculated under the Florida child support guidelines contained under Florida Statute 61.30, using the spouses’ financial information and the amount of overnights awarded to calculate the support amount. You should provide your financial affidavit to the court. If your spouse fails to provide financial information, the court may estimate their income based on available evidence.
Does Not Responding Mean We Stay Married?
A common misconception is that if a party just doesn’t respond then the divorce can’t happen. Florida is a no-fault divorce state, which means that the court only requires proof that the marriage is irretrievably broken in order to grant the divorce. As long as all procedural requirements are followed, the judge will enter the divorce, even without the other spouse’s participation.
Even if your spouse is not participating in your divorce, you still need to present your case to the judge and ensure that your requests align with Florida Law. If you have questions about divorce or obtaining a default divorce in Florida, contact our office to schedule a consultation.
Squandering the Nest Egg: Dissipation of Marital Assets
What can you do if your spouse is gambling, spending, going into debt, drinking away, or hiding away marital assets during your divorce? Dissipation of marital assets, or intentional waste/depletion of marital property in Florida is a serious concern. It can include excessive spending (outside of what was typical during the marriage), spending related to an extramarital affair, mismanagement of finances (accumulating credit card debt etc.), intentional waste of marital funds or assets, such as through gambling, and asset devaluation (for example destruction of property, withdrawing money from a 401K or withdrawing large sums in cash), diverting funds to friends or family members to shield it from the divorce process.
What can you do if your spouse is gambling, spending, going into debt, drinking away, or hiding away marital assets during your divorce? Dissipation of marital assets, or intentional waste/depletion of marital property in Florida is a serious concern. It can include excessive spending (outside of what was typical during the marriage), spending related to an extramarital affair, mismanagement of finances (accumulating credit card debt etc.), intentional waste of marital funds or assets, such as through gambling, and asset devaluation (for example destruction of property, withdrawing money from a 401K or withdrawing large sums in cash), diverting funds to friends or family members to shield it from the divorce process.
Florida Courts typically equitably divide all assets and debts acquired during the marriage. However, if it can be proven that one spouse dissipated assets, the court may adjust the division of assets to create a more fair result. The party proving dissipation of marital assets must establish that the assets in question were part of the marital estate; that the actions taken to deplete the assets occurred without the other spouse’s knowledge or consent; that the spending did not benefit the household/marriage; and that the wasteful behavior occurred during the marriage (particularly close to the time of separation). Florida courts can consider dissipation of assets that occurred after filing and within two years prior to filing for divorce, however in limited circumstances the court can look back further.
Potential Remedies
If dissipation is established, there are several potential remedies the court may consider:
Unequal property division
An award of 50% of the dissipated amount
Allocating assets/debts as separate property
Penalties
Issuance of an Injunction
If the dissipation is ongoing, it may be necessary to request that the court freeze certain marital assets during the pendency of the divorce.
In proving dissipation, having the proper evidence is pivotal. Having the proper legal representation is important. You should monitor all accounts closely and document any questionable transactions. Your attorney may need to conduct further discovery to get a full financial picture and it may be necessary to utilize a forensic accountant to trace hidden assets. Contact Cody Law, PLLC to discuss your specific situation and whether an unequal division of marital property may be appropriate, as well as other remedies, due to dissipation of marital assets.