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Complex asset division in a Florida divorce

The state of Florida is not a community property state. Instead, it follows an equitable distribution model, meaning that a court will ultimately decide what is a fair distribution of assets.

While divorcing parties may submit a proposed agreement, there is no guarantee that it will be granted. Further, there is no guarantee that any modifications or orders issued by the court will be considered "fair" by both parties. For this reason, there are a couple of things any divorcing couple in Florida should consider, but especially those in the throes of a high-asset divorce such as where there are businesses involved.

Alternative dispute resolution is not for everyone

The details of your marriage breakup are likely very different from those of other divorcing couples. While many spouses simply drift apart, others go through traumatic conflicts they can't resolve, and still others may experience a series of betrayals. Whatever the cause of your decision to divorce your spouse, you have numerous choices for the path you will take to dissolve the marriage.

Among those choices are mediation and collaboration. More couples are choosing these methods of divorce because they are less contentious and allow spouses to walk away with dignity and the potential for cooperating over common issues in the future. This is important for couples who have children or own businesses together. However, there are also circumstances where these alternative dispute resolution methods may not be appropriate and you need a strong litigator on your side.

My child is being withheld from me. What can I do?

Visitation interference is a serious matter. When parents are granted joint physical custody of a child, they must agree to abide by and respect the visitation time of the other parent. If one chooses not to do so, there are legal remedies available.

When one parent becomes angry or bitter toward the other it is often the child stuck in the middle who suffers the most. Forcibly alienating a child from one parent is not only emotionally damaging to the child, but is strongly frowned upon by courts across the nation. For this reason, a parent who is experiencing custody visitation interference can turn to the court for help.

The disappearing inheritance

Though a person may spend a lot of time in preparing a well thought out Last Will and Testament, things do not always go as planned. If that person does not update their will as ownership of assets change over the years, then those which are deemed to be the inheritance of another person may not always be available. In addition, if a person's financial situation changes, then upon their passing the estate may not hold enough funds to distribute money to a beneficiary. There are rules in place for these situations which determine whether a beneficiary is still entitled to anything.

Ademption is what occurs when property which was identified in a will is no longer owned or available at the time of death. In this scenario, the beneficiary to whom the property or gift was deemed will receive nothing. If the asset no longer exists then, in layman's terms, the gift no longer exists either. There are two exceptions to this rule. First, if insurance proceeds are payable to the estate due to the loss of property which a beneficiary was to receive, then that beneficiary is entitled to those proceeds. Second, ademption does not apply in cases where a person has left a cash inheritance to a beneficiary and specifically named the source or account from which it is to come. Even if that account is closed at the time of death, the beneficiary is still entitled to those funds from the estate.

The basics of alimony

Depending on the financial circumstances of a marriage, a court will sometimes award a former spouse alimony, otherwise known as spousal support. The purpose of this is to make sure both parties leave the marriage with the financial means of at least affording basic necessities to sustain a reasonably comfortable life.

For example, a couple has been married for 10 years. The husband is a physician, making a substantial monthly income. Because he works so much, the wife chose to forego her own career and stay home to take care of the kids. She is 100 percent supported financially by her husband. At the time of divorce, the court may order the husband to pay the wife monthly alimony for a set period of time. This will give her a reasonable period of time to get measures in place to financially support herself. This may include going back to school, conducting a job search or bringing some expired professional credentials up-to-date. It would be quite unfair for a judge to grant a divorce and award everything to one spouse, while leaving the other destitute.

What happens when someone dies without a will?

When an individual passes away without a valid last will and testament, they are said to be "intestate." This means that property will be divided based on the intestacy laws of the state in which they are located. For out of state property, the laws of the state in which the property is located will take precedence.

Property does not consist of only real estate. Property of an estate consists of real estate, vehicles, personal property, bank accounts, retirement accounts, life insurance proceeds and a multitude of other assets an individual may own at his or her time of death. The value of an estate is determined by the total sum of all of these, with a valuation based on present day markets.

Keep these things in mind when seeking full custody of your child

Divorce can be a stressful experience. If you and your spouse disagree about which of you should have custody of your child, things can get extremely messy. You no doubt want to avoid contentious, drawn-out courtroom battles. However, you know your ex is not going to cooperate or compromise when it comes to child custody issues.  

You may feel strongly that your child is better off living with you. What matters most is that you're able to convince the court to agree. If you have a friend or relative who has successfully sough full custody of a child, you may be able to glean some useful tips about how to win a custody case. You shouldn't be surprised if those who were successful credit their victories to strong support systems.  

Modifying a child custody agreement in Florida

Modification of a child custody agreement is not a matter taken lightly by any court. A party must be able to prove, beyond a shadow of a doubt, that changes have taken place which directly affect the well-being and safety of a child. The child's best interests will always remain the heart of any custody agreement. While the state of Florida has made it easy to file a modification petition, that does not mean that a Judge will easily grant one.

According to Florida law, a modification to a parenting plan or time-sharing schedule will only be considered when a substantial, and unanticipated change has occurred. This means that the change which has facilitated the need for a modification must not have been pre-planned, or even anticipated in any way when the original agreement was entered. This can include location changes, mental or physical health status, and living conditions, just to name a few. Further, the change must be substantial in nature, meaning that the best interests of the child are affected.

The responsibility of being the executor of a will

When a family member or friend asks someone if he or she would be willing to act as the executor of a will, most people will say yes, without hesitation. However, few are truly aware of the responsibilities that role entails. When agreeing to act as an executor, you are agreeing to do much more than simply clean out a house or disburse money.

An article published by Morgan Stanley wealth advisors in January, 2017 describes in detail the multiple responsibilities taken on by a named executor. Further, it highlights the fact that this is both an emotional as well as an administrative task. Many people who have been tasked with acting in this role one time will often make the statement that they would never agree to do it again. This is the result of a lack of understanding of the probate process prior to an agreement to act. Some of the responsibilities of an executor include locating and providing the probate court with an original will, securing and maintaining estate property throughout the entire process, locating and notifying heirs, notifying and paying creditors, paying taxes, and distributing assets. This is not an exhaustive list. Each step must be carefully documented and proof of every transaction filed with the probate court.

What should you put in a prenup?

Prenuptial agreements have gained popularity over the years. The misconception that this agreement means you expect to divorce is becoming a thing of the past. Soon-to-be spouses in all 50 states are hopping on the prenup train. You may be interested in completing your own, but you’re not sure where to start. What should you put in a prenup?

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