Working the System! Motion for Continuance

Working the System! Motion for Continuance.

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Who Has To Move, Him Or Her?

By Robin Roshkind, Esquire, West Palm Beach, Florida

Many couples going through a divorce  just don’t have the funds for separate residences.  It is cheaper (not easier) to stay under one roof, until the divorce is final and the issue of the marital home is decided by the judge or agreed to by the parties.

For those couples  lucky enough to have assets, or those in two income families, it is easier (not cheaper) to live separately and apart pending divorce proceedings.  So how do couples decide who shall stay and who shall go?

First, you don’t lose your marital rights to the marital residence merely by moving out, if your name is on the deed or on the lease.  The remaining party has no right to change the locks unless by agreement of the parties or court order.

Secondly, if there are children, it is understandable that they are going through enough changes during divorce.  They should remain, if at all possible, in a stable home environment.  So who is going to be the parent who will be or continue to be the major caregiver?    It is that parent who should stay, as it is in the best interests of the children.

On the other hand, there are cases whereby only one of the parties can afford to pay the mortgage, maintenance, insurance and taxes.  That is the party who should stay.  The other should go, with or without children in tow.

In cases where neither party can afford the mortgage or expenses of the marital home,  both should move out and rent the home or keep it as an investment property, or you both agree to list the house for sale and stay until it sells.

Lastly, where a home is in foreclosure or short sale status, you both should work it out to stay, because that is in both  your best interests.

In some cases, both parties want the home or neither husband nor wife wants the home.  Every case is different.  If the spouses cannot agree, the divorce court judge will decide for you both.

 

 

“He Said She Said” Not Enough In Divorce Court

by Robin Roshkind, Esquire, West Palm Beach, Florida
After filing for divorce in Palm Beach County, it is mandatory that the parties exchange financial information by way of proof.  This helps to settle divorce issues like alimony and attorneys fees, child support and division of marital assets and debts.

Each party must provide to the other things like tax returns, bank statements, credit card bills, pay check stubs or income statements, mortgages, investment and retirement accounts and the like.  Both parties are required to disclose this information under Florida Family Law Rule 12.285, which is commonly referred to as the mandatory disclosure rule.  In most cases, the court requires going back one to three years with these statements.

The court views these statements as the back up data to a parties’ sworn financial affidavit, perhaps the most important document in any divorce.  A divorce cannot be granted without one.  Proof of income is used for child support calculation purposes; to show need or ability to pay alimony and attorneys fees.  Credit card and other billing statements show debt.  Investment accounts, mortgages, and deeds to real estate show lifestyle of the marriage and determine equitable distribution schemes.

The paper pile tends to grow but merely standing in court and testifying as to your need, or lifestyle or debt is just not enough for the divorce court judge.  Your allegations must always be backed up by proof.  For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com for more information.

Meddling In Laws and Your Divorce

Meddling In Laws and Your Divorce.

Does It Matter Who Files For Divorce First?

by Robin Roshkind, Esquire, West Palm Beach, Florida

Clients who come in to see me for a divorce consultation often ask if there is any advantage to filing for divorce first and before their spouses do.  As far as substantive facts and law, there is no advantage or disadvantage as to whether you are the petitioner, asking for the court to grant a divorce, or the respondent, the spouse who is served with the petition and has to respond.

However, strategically, there is an advantage to being the petitioner and filing for the divorce first.  In terms of going to trial, if you are the petitioner, you get to present your case to the judge first.  You make the first impressions on the judge.  You get to present the facts of the marriage from your perspective first.  You make opening statements and closing arguments first.

The disadvantage of filing for divorce first, is you have to pay the filing fee to the court.  You have to pay to have the other spouse served with your petition.

Often times, there is a “race to the courthouse” when spouses live in two different states.  Here it would matter who files first because of convenience.  For example, if the parties have been separated, and Husband lives in Connecticut and the Wife lives in Florida, and they own a home in each state, whoever gets to file first generally will have the divorce take place in their state.  There are extenuating circumstances and time frames, but generally whoever filed first will prevail with having the divorce proceedings in their jurisdiction.  For more information about this or other hot topics in divorce, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com for more information.

Liars, and Cheaters and Fraud…Oh My!

by Robin Roshkind, Esquire, West Palm Beach, Florida

I once heard a divorce court judge address a courtroom full of lawyers, husbands and wives, court reporters and spectators, and what he said will never leave my memory…he said something to the effect that, this is divorce court.. everyone is lying.

Appraisers can place valuations of heirlooms to real estate to benefit the party who hires them…accountants can make the numbers say anything they want to…lawyers can interpret statutes and case law from their ownone sided  perspectives…financial affidavits of husbands and wives generally and regretably leave something off the asset column.  One can conclude divorce court is not an exact science.

So how do you reconcile the difficulties of litigation?  The first and best answer is to stay out of court.  At least in settlement talks the parties can determine their own destinies, like it or not.  The next best step is zealous advocacy.  Hire professionals who really on are your side and are dedicated to doing the best job possible for you.  This includes the accountant, the lawyer, the appraiser, the shrink, and private eye and anyone else you need to rely upon for zealous advocacy.

Lastly, you must not have personality conflicts involved in your case.  If you are not comfortable with your “team” do something about it before it is too late.  You can always change attorneys, CPAs, shrinks, etc.

For more information about this or other hot divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at www.familylawwpb.com for more information.

Can You Change A Marital Settlement Agreement Once It Becomes A Court Order?

by Robin Roshkind, Esquire, West Palm Beach, Florida

Yes.  A marital settlement agreement and court order of divorce can be changed by AGREEMENT OF THE PARTIES or by COURT ORDER.  A court order will be the result of a PETITION FOR MODIFICATION OF FINAL JUDGMENT.  It has to be based upon a substantial, material change of circumstances.  You would have to prove such a change requires a modification at the POST DISSOLUTION TRIAL.

However, there is an EXCEPTION…once property and debts are divided in divorce court, or even by agreement of the parties, that part of the final judgment is a done deal.  Spousal support (alimony) and children’s issues (time sharing, child support) can be modified.  Division of assets and debts cannot.

For more information about this or other divorce topics, call one of the divorce lawyers at ROBIN ROSHKIND, P.A. at 561 835 9091 or click on the Firm’s web site at http://www.familylawwpb.com.