I am up-side-down or have negative equity in my home, how do we divide the property?If you owe more than your house is worth, the court will typically agree with any agreement that you and your spouse may decide upon. Options that have worked are that the property is treated as an asset and the mortgage is treated as a liability and each item is divided accordingly. Other times the property is sold and each side will pay a portion of the loss at closing. More often than not, the property will be either paid by one spouse that will continue to live in the home, or the house will be sold via short sale, where the bank will work with the parties and cover the loss.
I.TAMPA DIVORCE LAWYER’S DIVORCE 101
I.Tampa Divorce 101
a. Equitable Distribution
i.How are assets and debts divided through a Divorce?Generally, all assets and debts purchase, acquired or created during the marriage, except inheritance or gifts, are equally divided between the parties. Assets and debts are divided regardless of which party’s name the assets are held in or which party created the asset or debt. This equitable Distribution of marital assets is often accomplished by completing an equitable distribution chart. If the parties cannot agree on a division of assets and liabilities, the court will use this chart to divide marital assets and debt so each party has a similar net amount. For example: If H takes a car worth $20,000 with a $30,000 loan, and W takes a $10,000 credit card bill, the parties each have a negative $10,000 distribution.
ii.Inheritance & GiftsGenerally, inheritance and gifts to one party from the spouse or a third party remain with recipient. There is a caveat that if the asset is co-mingled into the marital assets the asset may become marital property.Your Tampa Divorce Lawyer will meet with you for a free consultation and evaluation of your case. Each case is different and your Tampa Divorce Lawyer will explain the factors relevant to your case and the applicable law.
b.Child Custody, Time Sharing and Child Support
i.Can my Tampa Divorce Lawyer help me to obtain custody of my child?Possibly. Your Tampa Divorce Lawyer will meet with you for a free consultation and evaluation of your case. Your Tampa Divorce Lawyer will explain that the Court will likely evaluate three issues in regard to your child’s well being: Custody (or decision making ability), timesharing and child support.
ii.What is the difference between Child Custody and Time Sharing/Residence?Your Tampa Divorce Lawyer will explain that child custody is the parents control over the major decisions in the life of the child. These decisions include medical, educational and religious decisions. Time sharing is the breakdown of the time that the child will spend with each parent during the week. Typically the Court will assign a primary residential parent, or give the child a primary home, and by default the other parent will be the secondary residential parent or get visitation time. There was a significant law change in regard to child custody and timesharing that took effect on October 1, 2008, but that law does not necessarily translate to equal time. The Court is looking to remove the fight over primary residential rights and now wants people to focus on how they will share time with the child. This is different from mandatory 50/50 time. The Court must still look to the best interest of the child to determine how time will be shared between the parents.Moreover, the Divorce Court will want you to work with your co-parent to develop a time sharing parenting plan. To evaluate the specifics of your case contact your Tampa divorce attorney.
iii.Can my Tampa Divorce Lawyer get me sole custody of my Child?Possibly. Sole custody is only appropriate in the most extreme cases. Your Tampa Divorce Lawyer will meet with you for a free consultation and evaluation of your case. Your Tampa Divorce Lawyer will explain that sole custody generally is appropriate if the other parent is a danger to the child. The danger must be real and direct to the child, and not mere accusations that you are a better parent.
iv.How does my Tampa Divorce Lawyer prove that I am the best candidate to be the child’s primary residential parent?Each case is different, but your Tampa Divorce Lawyer will meet with you for a free consultation and evaluation of your case. Your Tampa Divorce Lawyer will explain how the facts of your case fit into the factors that the judge will review, and even how your particular judge has evaluated similar cases in the past. The Court is bound to look at the factors set forth in Fla. Stat. 61.13(3).3.
i.Can my Tampa Divorce Lawyer help me obtain Alimony?Possibly.Alimony is appropriate in many cases. Your Tampa Divorce Lawyer will meet with you for a free consultation and evaluation of your case. Your Tampa Divorce Lawyer will explain that alimony is a general formula based upon need and ability to pay. You may be entitled to alimony if you have a need for financial assistance and your partner has an ability to pay you alimony.
ii.When is Alimony appropriate?Alimony is appropriate in many cases. You may have heard that the legislature is changing the alimony rules to make it more difficult to recieve an award of alimony. First, this change has not yet happened. Second it is not a reason to change an award that is already in place by a final judgment. Third, the courts tend to be slow to change their ways and are likely to expand the new changes to follow an older rule. Since there is no case law and Florida is leading the way with this new alimony rule, it may be hard to predict what the divorce courts are going to do for a while. Our Tampa Family Courts tend strive to be consistent and will likely change slowly so there is not a big amount of uncertainty. Here is the current state of Alimony in Tampa: Generally, permanent alimony is only appropriate in cases where the parities were married for more then 10 years and you have a need for financial assistance and your partner has an ability to pay you alimony. This normally requires one person to make considerably more than the other party. There are cases where there is a presumption of alimony — typically if the marriage is more than 15-20 years and there is a strong difference in income the court should award alimony. Your Tampa Divorce Lawyer will meet with you for a free consultation and evaluation of your case.