This is an extremely complicated question these days.  Most people, even wealthy people, are “upsidedown” on their mortgage–meaning that because the housing  market crashed, they owe more on their house than what it’s worth.  However, during a divorce it’s not infrequent for one of the parties to want to keep the house for a variety of reasons:  sentimental value, to keep the children in the house they grew up in and keep them from changing school zones, and perhaps the mortgage is cheaper than it would be to rent an apartment of a comporable size.  The problem is that the spouse that’s leaving the house doesn’t want his/her name left on the mortgage (specifically, the note) because he/she is still financially liable if the party who remains in the house stops making the payments and he/she would also have a difficult time obtaining other loans while still being listed on the mortgage.  Many people think it’s as simple as one party signing over a Quit Claim Deed to the other party to get someones name off the mortgage, but the deed just affects the ownership.  No one ever wants to relinquish ownership in property while they’re still financially responsible.

There are really only two ways to get someone’s name off the mortgage and the note:  to sell the house, or for the party remaining in the house to refinance it into his/her own name, thus removing the opposing party’s name.  Refinancing is difficult, however, and essentially impossible unless there is a significant amount of equity in the house.

People can also work with lenders and seek loan modification programs, but from my experience, those haven’t been too successful.  And, of course, it’s important to do the best you can to keep your credit as good as possible, which is very difficult in times like these.

Unfortunately, many people have to sell the house because they owe more on the mortgage than what the house is worth.  In this scenario, the best option is a short sale.  If foreclosure is imminent, many people stop making the mortgage payment because they feel as though they’re wasting money if the house is going to be foreclosed on.  I recommend people in these situations to talk to a real estate attorney.

There are times that even after a foreclosure and short sale the lender may sue the lien holders.  If this were to be the case (and I should mention this is quite rare), it would be in civil court but the family law judge would more than likely order that each party be equally responsible for any deficit.

Before you hire a Tampa divorce attorney, make sure he/she has experience in handling real estate issues and can advise you the best way to separate all liabilities with your ex-spouse while preserving your credit as much as possible.

In a divorce case, many people are under the misconception that if one party lives in Florida for at least six months that he/she can get divorced in Florida. While there is a six month residency requirement to become divorced in Florida, that only allows Florida to have subject matter jurisdiction of the case.  Florida also needs to have personal jurisdiction of both parties, which means that the opposing party must have some contact with the state of Florida.  While a party may still get a divorce in Florida, the Florida court does not have jurisdiction to equitably divide property or order child support without personal jurisdiction.  Jurisdiction is a very complicated issue and you should consult an experienced family law attorney for more information.

I’ve met with several people who have relocated to Florida and lived in Florida for six months just so they can get divorced in Florida, and they are always disappointed to find out that Florida lacks personal jurisdiction over the other party and therefore they aren’t entitle to the distribution to the assets and debts.

Jurisdiction regarding a paternity action is different.  A non-resident submits himself to the jurisdiction of the state of Florida by engaging in the act of sexual intercourse within the state of Florida with respect to which a child may have been conceived.  However in Paternity cases, jurisdiction is a difficult topic that must be discussed with an experienced paternity and family law attorney.

Like jurisdiction, venue is also a difficult subject.  Venue relates to which circuit in the state of Florida a cause of action should be brought, and venue depends on the type of case filed and the location of the parties.  Before filing a Florida divorce, paternity or any family law case, be sure to talk to an experienced Tampa divorce attorney to ensure that Florida has jurisdiction over both the subject matter of the case and personal jurisdiction of the other party of the case; and be sure to inquire of your attorney which venue would be appropriate in your case.

Florida military divorces can be extremely complicated for a number of reasons, the most obvious being the division of the military pension.
The Uniformed Services Former Spouse Protection Act is a federal law that allows Florida courts to treat military retirement pay according to the laws in Florida. Florida therefore has jurisdiction in determining what portion, if any, of the military pension is a marital asset subject to property distribution.

The military pension is divided using a formula—called a coverture fraction—which establishes the marital portion of the pension and equitably distributes it between the parties in the form of a percentage. It’s extremely important for both the service member and the service member’s spouse that this formula be applied correctly. Likewise, it’s imperative that the language used in any settlement agreement (often called a Marital Settlement Agreement) or Final Judgment (the order that ratifies the divorce) be specifically tailored to meet the detailed requirements of the Department of Defense. If the settlement agreement or order is not done properly, the Department of Defense may not properly distribute the pension.

Military divorces also require the filing of other documents with the Department of Defense to effectuate the terms of an agreement or Final Judgment, such as an order requiring the Department of Defense to make the pension payments directly to the service member’s spouse (when applicable) and the election and designation of beneficiary of the Survivor’s Benefit Plan.

In summary, Florida military divorces require a detailed understanding of applicable federal law and Florida divorce law. Not only is it extremely important for the coverture fraction to be applied correctly to determine the marital portion of the military pension and distribute it accordingly, but the wording of the legal documents is equally important to ensure the Department of Defense adheres to the agreement by the parties or the order of the court.

If you are a service member or the spouse of the service member seeking a divorce, be sure to contact an experienced Florida military divorce attorney to ensure your divorce is done properly and your interests are protected. Please contact the law offices of Mindi Lasley, P.A. to consult with an experienced Tampa military divorce attorney.

Divorce Modification Tampa

At Mindi Lasley, P.A. we’ve handled numerous modification cases.  I’m often asked what provisions of a divorce decree (also known as a Final Judgment of Dissolution of Marriage) are subject to modification.  Unfortunately, there are many provisions of a Final Judgment that cannot be modified.  Furthermore, when a provision is modifiable, it’s not easy to do.  Your Final Judgment can’t be modified simply because you had a change of heart, made a mistake or didn’t have an attorney at the time of your divorce.  Because of the difficulties in modifying a Final Judgment, it’s important to have an experienced family law and Tampa divorce lawyer to advise you and protect your interests, both now and in the future.

If alimony is waived in the Final Judgment, neither party may try to request alimony in the future.  If alimony is awarded in the Final Judgment, it may be subject to modification depending on what time of alimony is awarded.  The standard for modifying alimony is a substantial, material and unforeseen change in circumstances.  An example of a circumstance in which a modification of alimony may be warranted is if one party loses his/her job.  Another example of when alimony may be reduced or terminated is if the party receiving the alimony co-habitats with another individual of the opposite sex.  The courts have also stated that the spouse that was ordered to pay alimony may retire at 65, which would provide for the substantial change in circumstances necessary to modify or terminate alimony.

Modification of alimony can be a complicated process with many hurdles to overcome.  There are many forms of alimony and they differ as to whether or not the amount can be modified, the duration of the alimony payments and when the alimony can be terminated.  When handling an alimony case, I consider the implications of each form of alimony and how it will affect my client in the future.  It’s important to plan in advance for a possible petition to seek a modification of alimony and you want to ensure your interests are adequately protected both during your divorce and years down the road.

Property distribution (legally called equitable distribution) is another aspect of a Final Judgment that cannot be modified.  After the judge distributes assets and debts between the parties, that issue is concluded and cannot be revisited.

Because there are many aspects of the Final Judgment that are non-modifiable, and the provisions that are modifiable are associated with many hurdles, it’s important to have an experienced divorce attorney on your side.

Please visit the divorce modification Tampa page for more information on the issues that can be modified.

I’m often asked what the difference is between a divorce and an annulment.  A divorce dissolves the marriage between the Husband and the Wife.  An annulment is to judicially declare that a valid marriage never took place.  For an annulment to take place, the marriage has to either be void or voidable.

There’s no specific Florida Statute regarding annulment and an annulment is granted only in rare circumstances.  An annulment is an appropriate method of terminating a marriage when one of the parties lacked the capacity to enter into a legal contract (the marriage itself) because of the lack of mental capacity, extreme intoxication or because of a prior existing marriage.  The most common reason for an annulment is when a marriage is void because one of the parties is already married to someone else, even if that marriage took place out of state or in another country.  The law in Florida is that a marriage is not valid, and thus void, if one of the parties has a legal spouse at the time of the marriage.  It’s important to note that Florida law permits a third party, including a family member or the prior spouse to the first marriage in this example, to challenge the validity of a marriage.

A marriage is voidable and therefore has the possibility of being annulled based on fraud or duress.  In one instance, a party lied both to her finance and on the marriage application as to how many times she had been married and why those marriages had ended.  Subsequent to the marriage, her husband testified that he would not have married her had he known how many times she had been married.  However, the appellate court determined that their marriage could not be annulled because it had been consummated (meaning completed by sexual intercourse).  It is established law in Florida that one who has become a party to a wedding ceremony by fraud committed by the other person may be awarded an annulment if the marriage has not been completed by sexual intercourse.  Consummation of a marriage is an important factor for the court to consider in determining whether an annulment can be granted and appears to operate as a ratification of a marriage that is otherwise voidable.  It is important to keep in mind that if at the time of the ceremony the fraudulent conduct is known to the other party, then that marriage cannot be annulled.

Another example of a marriage that may be annulled based on fraud is when the parties marry and plan to start a family.  Both parties specify and discuss before the marriage that they want to have children.  Subsequent to the marriage, one of the parties finds out that the other party had himself/herself sterilized a year prior to the marriage.  In this case, there is an extremely good chance that the marriage could be annulled based on fraud.

Although fraud is a basis for an annulment, Florida courts have held that misrepresentation as to a pregnancy is not sufficient to be awarded an annulment.

If an annulment is granted, the court has the same ability to divide assets, award alimony, custody (now called timesharing in Florida) and child support as if the case were a divorce.

I meet with many people who would like to have their marriage annulled but it’s important to realize that there’s no established law or procedure for an annulment in Florida and it is very difficult to satisfy the requirement to obtain an annulment.  A divorce, however, definitely will be granted and terminate the marriage based upon the request of only one of the parties to a marriage.  To find out if you qualify for an annulment and to speak to a Tampa divorce attorney, please feel free to contact my office in Tampa, Florida and schedule an appointment.

Many people are under the misconception that there is a formal “legal separation” that can be filed with the courts instead of filing an actual divorce.  There is no formal legal separation in Florida, unlike many other states, even if one spouse moves out of the marital residence (marital residence is generally defined as the last place both spouses lived together).  There is, however, a Petition for Support Disconnected with Dissolution of Marriage that may be filed which can enable one spouse to get child support and alimony (if applicable) from the spouse that moved out of the marital residence without actually filing for divorce.  When there are children involved in a marriage, if one spouse moves out of the marital residence then that spouse is responsible for contributing to the financial support of the minor child(ren) left with the other spouse.  Furthermore, even if one spouse moves out of the marital residence, that spouse is still entitled to visitation (now called “timesharing”) with the children along with frequent communication.  Please note that one of the worst things a spouse can do as far as the courts are concerned is withhold visitation with the child(ren) from the other spouse, even if that spouse moves out of the marital residence.

As a Tampa divorce lawyer, one of the questions that I’m frequently asked is what can be done to keep one spouse out of the marital residence.  Unfortunately, until ordered by the court or otherwise agreed to, both parties have the right to live in the marital residence and neither party can force the other party to move out, regardless of whose name is on the deed or lease, and regardless of whether a spouse isn’t contributing to marital bills (such as the mortgage/rent payment, utilities, etc).  Even if one spouse vacates the marital residence for a period of time, that spouse is still able to return to the residence or even move back in the marital residence.  It’s not unusual for two spouses to both live in the marital residence together during the pendency of a divorce.  It’s difficult for a married couple to be able to support two households, especially when children are involved.  Furthermore, if the marital residence is property that is owned by the couple, the spouse moving out is still required to financially contribute to the mortgage payments in order to maintain the house as an asset.  Just because one spouse moves out of the marital residence doesn’t excuse that spouse from marital bills.  Because of this, it is often more economical for a married couple to live together during the divorce until it is established what will be done with the marital residence and who will take possession of it or decide whether or not it is to be sold.

Another option that can be used instead of filing for divorce is signing a post-nuptial agreement.  A post-nuptial agreement is essentially the same type of agreement as a pre-nuptial agreement except it is entered into after the parties are married.  This can specify how assets, debts, alimony and other issues will be handled in the event of a divorce in the future.  Please note that post-nuptial agreements can be very technical and not all issues can be specified in these agreements.