Change is inevitable. Things comes together, and many times, very naturally, things come apart. This is not to say that change is not complicated, and we all know that those processes can be as intricate and arduous as we see fit. Many times, it is about beginning with the right perspective, and regarding divorce, the way you begin can truly set the tone for the journey ahead.
That is why it is crucial to consult with someone who has experience helping others make divorce work for their life. Marsha Summersill has spent years helping others through the journey, and in this blog, we will take a deep dive into the most asked questions regarding divorce, and how being creative plays a role in the process.
When going through a divorce, what would you say is the top concern for your clients?
It is equally money and kids. If they have minor children that usually would be the big topic of how they are going to work that out. Obviously, if they can work out something ahead of time that is good, but if there is a dispute it can get a little dicey. The finances are comingled with the responsibility of the kids, so they come together in certain aspects. The equitable distribution of the divorce, of the financial piece, might or might not be considered income and can become enmeshed with balancing factors within the divorce. You need to be sure this is the direction you want to go.
What are some determining factors to take into consideration when beginning the divorce process?
Each state has its own laws, and we exist in our own pocket of laws when it comes to divorce. I would say what to consider is exactly how your stuff is going to be split. Really consider the best interests of your kids. If they are elite athletes or a super scholar, really put their needs first with respect to their activities and life. Be flexible and maintain the objective of communicating well throughout the process.
What does the timeline look like for someone filing for divorce?
If you truly do not need to litigate all your issues, then it potentially could take a handful of months. If there are many items to litigate, then it could take years. The more the parties know that is real and legally sound, the faster they will get to a realistic compromise. I think the issue we encounter as family law attorneys, many times, is the friend that wants to chirp in their ear or even the information google gives them. That sends them down an illogical path that does them no favors.
Other determining factors will be the party’s cooperation, compromise, and realistic views on how to get the sorting solved, and then other times it could be their legal counsel. There absolutely has been times when the opposing attorney continued the battle, even when both parties could have solved the situation and walked away.
What are some factors that could prohibit me from retaining rights to my children after the divorce?
You always have rights to your children. The only agency outside of you signing over your rights is the Department of Children and Families. In the state of Florida our public policy is both parents have equal rights to enjoy raising their kids. The judge has about 25 factors that they can consider. They do not have to consider all of them, but what is important to understand is that those factors are common sense stuff. There is no one-size-fits-all approach, and many times I have clients that get super creative. Sometimes they have jobs where they travel, so the family must maximize and divide their time. When thinking about the child first, a two-year-old does not need to go seven consecutive days without seeing their parent.
To establish that bond, it is important that the child spend time with both parents. For older kids, they usually do not like going back and forth. Dicing up a week for a high schooler can be tough, so that is a situation where we may want to divide time differently depending on the needs of the children. Even though you are getting a divorce, you still must be a team when it comes to how you parent. It serves as a great example to other individuals who want to waste time and energy battling each other.
Let us say that I started a business while we were married, and it became successful. Is my spouse entitled to any of that business?
Probably. There are so many factors that we must consider, but the reality is that spouse is going to get something. I had a case where this person worked and worked and grew their business to a highly successful endeavor. The offset of that is really determining what is the marital portion of the business. That is where the fighting can start. The definition of what is marital and what is non-marital, what’s personal good will and what’s enterprise good will can really determine the outcome. Once we discover the amount of money that is the business and then the value that you bring to that business, we can achieve that number but, of course, every business is specifically different.
My recommendation: marry your equal. Then, if they did not earn it, they will not want it. That will simply be their personality type, but of course sometimes it is a complicated, intricate scenario. That is why a prenup can be a completely fair thing. If you do something together, that can become marital property. A prenup does not state that, “You don’t get anything.” What a prenup does say is, “I don’t want to be punished for working hard and achieving a lot of things.” There should be no issue with signing it because it is just being fair.
What about social security benefits? Is there a way I can take advantage of their Social Security benefits if they have always earned a greater amount of money?
Yes. The common law knowledge we operate under is that, if your marriage is ten plus years and the one spouse is not remarried at the time that they decide to select social security and their social security is less than what their spouse’s was, then they will either be able to offset it or get one that is a little bit higher than it would be on their own.
How does mediation play a role in the divorce process?
Mediation honestly saves so much financially, emotionally, and in many other areas. It is a huge benefit. In our location, it is required. Not in all statutes, but in family law, it is. You cannot even go to court without mediating. The question is, “Do you have a qualified mediator working with you?” It is a task to get certified in areas, but it does not take any specialization, so if you are looking at a divorce, post-divorce, or paternity case, it is best to work with someone who has good experience or someone like me, who is a family attorney.
What if I want to move to another state with the kids after the divorce?
No. This is about getting your mindset right from the very beginning. We do have a relocation statute that is automatically the law. If you get a divorce and decide to move later, the best option is that you and the other parent get to an agreement to see if that is something that will work for the kids. It cannot be, “I want to move to live closer to someone I met on the internet,” which has happened before.
Moving is a tough one because it must be looked at from the child’s best interest. That is how the court looks at it and that is how the law looks at it. If the parents can get to an agreement and have a long-distance parenting plan, then we file with the court. If one parent says no, then you will be required to litigate that. How our law works to calculate maximum distance is – 50 miles as the crow flies. If you go over 50 miles, then you have opened the relocation statute. This is all why it works best when both parties can retain a cordial relationship with each other. Odds are that you will indeed have to work with that person in the future to handle these scenarios. It is all about compromise for both parties involved, and always about what is best for the children.
What are some determining factors when it comes to who will pay child support – and what does that support entail?
That is written in the law. It is how much money your gross income is, accounting for all your deductions, taxes and insurance, mandatory pension, and unions. You do get those credits and deductions. It is important to clarify that you do not get credits and deductions to account for your spending habits. The way time-sharing factors in is that it cost money to take care of kids. Timesharing is based on income incorporated with the amount of overnights, plus the proper credit for child expenses. If the child goes to an expensive school, and they are paying 100% of it, they need some sort of credit for that.
Define equitable distribution and how does it play a role in the outcome of the divorce?
It is huge. A lot of people jump to marital assets, but you also have marital debt. All of that is incorporated, and we do a specified spreadsheet. In cases where I am dealing with a lot of assets and/or a lot of debt, I am going to get the one-sheet, and we go back and forth until there is an agreement. We look at a number that aims at equalizing or offsetting payment or equalizing or offsetting debt.
What determines marital property?
Many times, those are the big items that we will argue over. If you acquire anything during the marriage, then there is a high likelihood that it is going to be considered marital and will be subject to an equal split. There is pre-marital, meaning you had a house before you were married. There is this belief that if you do not put your spouse’s name on the house, then it is not marital. This is not necessarily the case. The equity you have in the house at the date of marriage is yours, but as you make improvements over time, the house becomes marital. Whether or not your spouse’s name is on it is irrelevant, so that is something we would caution someone on.
Inheritance is another item people need to be careful about. Inheritance is technically non-marital until it is deposited into an account that is sharable. You cannot comingle the money or use it for marital needs if you want it protected. If you need to take a portion out, take it out at the time that you receive the inheritance, but make sure to put the rest into an account where it is clearly not being used for marital purposes.
How can a CPA (Certified Public Accountant) be of benefit during the process?
CPAs are highly valuable – I work with two that are amazing. Obviously, as lawyers, we have limits. CPAs know so much about values, stocks, and constructing an in-depth chart that considers all the angles of value for a certain item or category. The CPAs we work with are usually forensic accountants, and they know how to calculate enterprise and personal good will on a high level. I get my spreadsheet, opposing counsel gets their spreadsheet, and we compare to see how close we can get to meeting in the middle. When you find a good CPA, they are literally such a valuable piece of the puzzle.
If someone is thinking about divorce right now, what would you want to be able to tell them?
If you have the resources, always seek therapeutic guidance. Sometimes religion plays a role in helping you be certain, but the point is to find resources to make sure that you feel very secure in the decision you are making, especially if you decide to pursue a divorce. When I do my consults, we talk and make sure that you are confident in the decision that is being made and gain that acceptance before the process begins. That can truly help.