Stuart N. House, P.A.

Can I Get More than 50% Home Equity in a Divorce?

Friday, September 1, 2017

In Florida, divorcing parties may be awarded more than 50% of their home's equity in some instances. Whether a party living in Coral Springs is entitled to more than 50% of the home's equity — or any equity at all — is dependent on the factors set forth in Florida Statute 61.075(1)(a)-(j).

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Broward County courts begin with the premise that both parties in a divorce are entitled to an equal share of the marital assets. Often, but not always, the equity in the parties' house is the asset with the most value. Statute 61.075 provides for certain situations that may warrant an unequal distribution of assets. Some of the factors your divorce lawyer could argue to be considered include:

  • (a) The contribution to the marriage by each party, including child care and home making.
  • (b) How well each party is doing financially.
  • (c) How long the parties have been married.
  • (d) Whether either party had to change (or end) careers because of the marriage or forgo educational opportunities because of the marriage.
  • (e) Whether either party contributed to the career or college education of the other party.
  • (f) Whether it is necessary to keep an asset intact and free from any claim or interference by the other party.
  • (g) Whether and how much each party contributed to acquiring and enhancing the value of assets, marital and nonmarital.
  • (h) Whether it would be in the children's best interest to stay in the marital home until they are legal adults.
  • (i) Whether either party has deliberated wasted the value of any assets.
  • (j) Any other factor that the court feels is necessary to consider in order to be fair and just.

If a party desires to be awarded more than 50% of the Coral Springs home's equity, his or her family law attorney would first need to determine whether the home is a marital or non-marital asset. If the home was purchased during the marriage, with marital funds, it is a marital asset. If the home was purchased prior to the marriage, with non-marital funds, it may not be a marital asset. If the home is not a marital asset, it may still be possible to be awarded a portion of the home's equity, such as if one party contributed toward payment of the mortgage on the home or contributed significantly for renovations or improvements during the marriage.

Assuming that the home is a marital asset, a person desiring to be awarded more than 50% of the home's equity would need to plead for an unequal distribution of assets in the petition for dissolution of marriage, setting forth any factors that the court should consider. The party should be prepared to back up any claim for an unequal distribution of assets by cooperating with mandatory disclosure and other forms of discovery.

Determination of non-marital assets and distribution of marital assets and liabilities are complex issues. Each situation is unique. The bottom line is that a party can be awarded more than 50% of their home's equity, if their particular case meets the criteria for such an award. A highly-experienced Coral Springs family lawyer should be retained prior to filing a motion of this type.

Surname Changes after Divorce

Tuesday, May 30, 2017

In Parkland, a woman who adopted her spouse's surname during marriage has the right to change it after divorce. The easiest way to have a surname restored is in connection with the dissolution of marriage action. The change of surname should be pleaded for by the client’s family law attorney in a Petition (or Counter-Petition) for Dissolution of Marriage. Assuming that no credible objection exists, the restoration of the client’s prior surname would be incorporated into the Final Judgment of Dissolution of Marriage. Copies of the Final Judgment with the name change clearly specified therein can then be provided to all entities requiring notification of the name change. These entities include the Social Security Administration, the Department of Motor Vehicles, and any banks where accounts are held.

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As time goes by, the price and hassle goes up

If a client chooses to forego restoration of a prior surname during the divorce, the option still exists to change one's name at a later time, but the process is more complicated and costly after a divorce. The client is not limited to restoration of a prior surname but may request another name entirely if desired. The process for changing one’s name is outlined in 68.07, Florida Statutes. A Petition for Change of Name would be filed in Broward County. A filing fee must be paid to the Clerk of Court in connection with the Petition. If the client is only seeking to restore a former surname, fingerprints do not need to be submitted. If the client is not seeking to restore a former surname but is requesting a new name, the client must have fingerprints submitted for a state and national criminal records check. The fingerprints must be taken in accordance with policies set by the Department of Law Enforcement and submitted to that Department for a state and national criminal records check. This process takes several weeks and also involves additional costs.

Although it is simpler and less costly for a change of surname to occur upon entry of the Final Judgment, when and if a name change should occur is a deeply personal decision. The matter should be discussed with your counsel in Parkland. A divorce lawyer can help you make a more informed decision in y our family law case.

Name changes for children

When it comes to minor children, a divorced parent generally does not have the right to unilaterally change the children’s names without the other parent’s notification. The other parent must be notified and his or her consent obtained, if possible. This is often a delicate matter which requires a tactful approach. If amenable, the other parent should execute a consent document to be filed with the Petition for Change of Name for Minor Children. Unless both parents are jointly petitioning the court for the children’s name change, the parent seeking the name change should notify the other parent of the Petition for Change of Name via service of process. Once proper service is obtained, the parent seeking the name change may request a hearing on the children’s name change even if the other parent does not consent. Whether the court chooses to grant such a request will be based on whether the court determines that a name change is in the children’s best interest.

Divorce: Can A Private Investigator Help My Case?

Tuesday, March 7, 2017

The temptation to conceal select facts during a trying divorce proceeding is very common, and that dishonesty can have a resounding impact on the outcome of your case. If you believe your spouse is attempting to lie to or cheat the courts, your family lawyer may suggest hiring a Coral Springs private investigator to help ensure that the judge's ruling will based on all the facts – not just a select few that your spouse chooses to disclose.

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An investigator works to uncover facts that can result in a more favorable outcome for the client's case. The decision to hire a private investigator should not be made lightly. Investigator fees and costs are substantial, and an investigation is no guarantee that suspicions of wrongdoing will be confirmed to the extent that they will be addressed in a court of law. Yet many spouses – especially those involved in high stakes divorce cases – find that the up-front expense more than justifies the end result.

Is the parent fit?

Florida Statute 61.13 explains that minor children should have "frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved." Unfortunately, there are times when one parent's improper conduct may require that contact be limited or cease altogether. If a parent suspects conduct which would be detrimental to a minor child, that parent may choose to have the matter investigated. Examples of negative behavior which would likely affect a court's determination regarding shared parental responsibility and timesharing include:

  • alcohol and/or drug abuse (including prescribed medications)
  • driving under the influence (DUI) or other crimes
  • child neglect or abandonment

The complete list of factors considered by the court in cases involving parental responsibility and timesharing can be found in Florida Statute 61.13(3)(a)(t).

Investigation of assets

Florida Statute 61.075 provides that "the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal." This concept is referred to as "equitable distribution." One party might fail to disclose the existence of bank and brokerage accounts, real property or valuable personal property in an attempt to defeat equitable distribution. If you suspect your spouse of concealing assets, it may be possible for a private investigator to verify and locate those assets.

Investigation of employment

If a spouse suspects the opposing party is working "under the table" or otherwise lying about his or her employment to avoid the accurate determination of child/spousal support, a private investigator may be able to confirm such suspicions. If your spouse refuses to reveal his or her current employer, an investigator should able to find out. Locating a current employer is particularly important when an income deduction order is issued pursuant to Florida Statute 61.1301.

Spouses who are considering hiring a private investigator should discuss it with their a Coral Springs divorce lawyer first. A spouse may firmly believe that a suspicious situation warrants an investigator, when in fact the situation does not call for it. Conversely, some family law matters are serious enough to require the intervention of law enforcement rather than PIs. By discussing the matter with counsel first, the client will be able to make an informed decision about the effective utilization of a private investigator.

Frivolous & Excessive Motions in Divorce Cases

Sunday, January 22, 2017

A motion is a written request to the court for a certain ruling, order or action.

In divorce litigation, sometimes one party attempts to gain an advantage over the other party by filing frivolous or excessive motions. In this blog post, our divorce law attorneys discuss what makes a motion frivolous or excessive, and how such motions are dealt with Coral Springs & Parkland divorce courts.

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Frivolous Motions

A motion may be considered frivolous in Florida if the court finds that the moving party and the moving party's attorney knew or should have known that the motion was not supported by the facts or existing law. If a court finds that the motion has no merit and that the moving party should have known that, the moving party may ultimately be required to pay sanctions and the other party's attorney's fees.

For example, suppose that Spouse A's divorce attorney files a motion for change of venue (the location where the case will be heard). Upon review by Spouse B’s attorney, the motion appears to contain no valid legal basis for changing venue. In fact, it seems that the motion was filed solely for the purpose of delaying the divorce.

The procedure for defending against a frivolous motion is set forth in Florida Statute 57.105. In accordance with said statute, Spouse B's attorney would defend against Spouse A's motion for change of venue by preparing a motion for sanctions. A copy of the motion for sanctions would be provided to Spouse A's divorce lawyer, giving them 21 days to withdraw their frivolous motion. After 21 days, if the motion for change of venue had not been withdrawn, the motion for sanctions would be filed with the court and set for hearing.

At the hearing, Spouse B's attorney would need to prove that Spouse A knew or should have known that their motion was not supported by the facts or existing law, and was filed primarily for the purpose of unreasonable delay. If Spouse B prevailed at the hearing, Spouse A could be ordered by the court to pay some of Spouse B's attorney's fees as well as sanctions.

Excessive Motions

If the court has already ruled on a particular issue, filing another motion which essentially rehashes all of the arguments dealt with in the previous ruling is excessive. A motion also becomes excessive if the attorney filing said motion knows it is doomed to failure.

Let us return to the example of Spouse A's divorce attorney, who has just been defeated in the motion for change of venue described above. If Spouse A now files a motion for reconsideration, a motion for rehearing, and a motion for an award of attorney's fees, this would likely be excessive as well as frivolous. Spouse B's attorney may defend against such fruitless motions by using the procedure outlined in 57.105

An ethical attorney will not waste the resources of the client or the court by filing deliberately frivolous or excessive motions. Rather, the attorney will work closely with the client to ascertain the facts of his or her claim, determine whether that claim has legal merit and streamline any issues for the benefit of the client and the court.