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LawTalk
LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 27888
Experience:  30 years legal experience. I remain current in Family Law through regular continuing education.
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I lived with someone for 5 years starting in 1997, then got

Customer Question

I lived with someone for 5 years starting in 1997, then got married in 2002. He 'left' me in 2009 (to a different country), but we were still trying to work things out for about two years, till 2011. The petition for divorce was filed in Aug. 2012. Just an aside - we lived apart in 2007 for work/school issues...so does this year also count as "not married"?!

My spouses lawyer is trying to say we did not co-habitat the whole time so the marriage is only 7 years.

What is right here?

Thanks, XXXXX XXXXX
Submitted: 8 months ago.
Category: Family Law
Expert:  LawTalk replied 8 months ago.

Good afternoon Darby,

I'm Doug, and I'm sorry to hear of the confusion. My goal is to provide you with excellent service today.

Under Florida law, for purposes of defining the length of the marriage, the separation date acts as a cut-off date, after which any assets or liabilities incurred are not considered part of the marriage.

While he may have left the country for employment purposes, so long as the two of you were working on the marriage until 2011, it will not be until that time that the separation, with no intention of getting back together, will be determined by the court as the cutoff date for the marriage.

And the suggestion that the one year period where he was living elsewhere for school and work, you were still married for purposes of divorce in FL.

Marriage is NOT determined by cohabitation, nor does the lack of cohabitation mean that you are not married. Your spouse's attorney is really trying to push the envelope of reasonableness, and this is not something that the judge is going to agree with.

While half of the debts accrued during the marriage should be paid by your husband, debt accrued after the cut-off date in 2011 would, under FL law, be yours to pay.

And, with 9 years of marriage, asking for spousal support of just 3 years is very reasonable, and if you push the issue in trial, it is possible that you could get support for a longer period of time---especially if your income is significantly less than his is.

If you are awarded the alimony of approximately $25,000---payable at $700 per month--the lawyer fees you are asking for would be ordered in addition to the support. When a court orders that one party pay the attorney fees of the other, that payment is always in addition to the division of debt, the distribution of assets and the payment of support.

When considering spousal support, a judge looks at the number of years of marriage, and on the difference in your respective incomes.Also relevant factors to be considered are:

1.The present respective incomes of the parties;

2.The education levels and earning capacities of the parties;

3.The ages and the physical, mental and emotional conditions of the parties;

4.The duration of the marriage;

5. Whether either party will be caring for children of the marriage;

6. The standard of living established during the marriage---but most importantly, the income and standard of living of the parties in the couple of years immediately preceding the filing for divorce or petition for separate maintenance when no divorce action is being filed yet.


Please keep in mind that, even though you have already paid your deposit money over to JustAnswer, until you rate me highly for my service, I will not be paid for having assisted you with your questions.

If you have additional questions, you may of course reply back to me and I will be happy to continue to assist you further until your questions have been answered to your satisfaction.

I wish you the best in your future.

Doug

Customer: replied 8 months ago.

There's something I'm not completely understanding in your statement:


 


"While he may have left the country for employment purposes, so long as the two of you were working on the marriage until 2011, it will not be until that time that the separation, with no intention of getting back together, will be determined by the court as the cutoff date for the marriage."


 


Does this mean if we lived apart but were working on the marriage, that time 'counts' as being in an active marriage?


 


My debts are from when we were living together...I am in collections...I have horrible credit now.


 


Also, even though someone had little assets and a lower salary...the judge doesn't look at their Savings right? Because monthly alimony can just come from monthly salary...? Or I suppose some people get a loan?


 


If I asked for alimony plus lawyers fees, would his lawyer fee's be a completely separate bill for him as well? Or will that eat into my settlement?


 


But his lawyer is asking why I "deserve it, or think I am entitled to it?"


 


I am asking for a decently lower alimony because I don't love doing it in the first place, but sometimes money does actually help to move you forward.


 


 


I'd like to stick with you here Doug. There's a couple intertwined questions I have. If you can charge me more? or do this another way?


 


Your above numbered notes is my concern here because I have issues in 1,2,3 & 6.


 


1. I am currently unemployed, worked hard to get back to a mindset to begin again - what I used to do...but I am living in a small town with no film/video production. (Thus is why I am trying to move).


 


2. I have 2 Bachelor's degrees, but they & I are older...and not very useful I'm afraid.


 


3. I had some emotional issues before we married. A bad marriage of course just increased this, so I suppose, this was known.


 


6. The 'standard of living' will be a sticking point I am sure. Because when he first left, it was a break up - but then we decided a week later to work on things. When he first left, we were just about to move out of the country together. Since he went alone, I was 'dropped off' at my mothers apartment in PA. When prior years I lived in Seattle & San Jose & made up to $42,000/yr myself, and owned a home. I have now been in her place for 4 years. The first 2.5, I had extreme depression and could not work/leave the house. Then, all I could manage was minimum wage jobs. I feel better now and ready to move on, but this two years prior 'standard of living' is not reality for me. Besides from being deathly ill & only my mother could care for me.


 


Any thoughts would be appreciated. I have been in such a horrible spot & just talking to someone highly competent means the world.


 


Let me know of any more charges.


 


Thanks, Darby

Expert:  LawTalk replied 8 months ago.

Hi Darby,

Your issues are quite diverse and questions quite numerous and would normally be better suited to multiple question threads. While I can’t charge you more for the question, when you are pleased with my assistance in addition to rating me highly you can leave a bonus for the additional assistance I gave you.

You wrote:

Does this mean if we lived apart but were working on the marriage, that time 'counts' as being in an active marriage? Yes, couples live apart for a variety of reasons---often including the fact that one works in another state or even country. if simply being away at work or school meant there was no marriage---then hundreds of thousands of soldiers, and other people would not be considered married. That is not how the law works in FL.

My debts are from when we were living together...I am in collections...I have horrible credit now. You should speak with a local bankruptcy attorney about the possibility of filing bankruptcy along with the divorce action so that you can get not only a clean start relationship-wise, but also financially. This is often what is needed to make a fresh start. The bankruptcy will not harm your credit any more if you already have a bad credit report---all it will do is get you out from under the debt.

Also, even though someone had little assets and a lower salary...the judge doesn't look at their Savings right? Because monthly alimony can just come from monthly salary...? Or I suppose some people get a loan? Spousal support is not based on a person's wealth, but their income and the lifestyle that the couple lived in the years before the marriage ended.

If I asked for alimony plus lawyers fees, would his lawyer fee's be a completely separate bill for him as well? Or will that eat into my settlement? If the court orders that he pay your attorney fees, then his attorney fees will be his separate bill as well and won't impact on the money that he owes you.

But his lawyer is asking why I "deserve it, or think I am entitled to it?" An award of Lawyer's fees are based on need---not on whether it is deserved or not. The attorney making those kinds of statements knows better and is trying to take advantage of your lack of knowledge of the legal system.

1. I am currently unemployed, worked hard to get back to a mindset to begin again - what I used to do...but I am living in a small town with no film/video production. (Thus is why I am trying to move). Being unemployed is one good reason for spousal support to be awarded.

2. I have 2 Bachelor's degrees, but they & I are older...and not very useful I'm afraid. The court will look at the usefulness of your degree, the amount of time which has passed since you worked in that career field, and how long you have been unemployed. The further distant the degree and employment in the field is, the less valuable the degree is. For many people, even a Masters degree from 15 years earlier, absent recent work in the career field---is almost worthless in today's job market, and the judges know this.

3. I had some emotional issues before we married. A bad marriage of course just increased this, so I suppose, this was known. This should not negatively impact your situation.

6. The 'standard of living' will be a sticking point I am sure. Because when he first left, it was a break up - but then we decided a week later to work on things. A one week tiff is not the end of a marriage and when the decision to work on the marriage was reached, that resulted in the marriage being present, and not in the past. When he first left, we were just about to move out of the country together. Since he went alone, I was 'dropped off' at my mothers apartment in PA. When prior years I lived in Seattle & San Jose & made up to $42,000/yr myself, and owned a home. I have now been in her place for 4 years. The first 2.5, I had extreme depression and could not work/leave the house. Then, all I could manage was minimum wage jobs. I feel better now and ready to move on, but this two years prior 'standard of living' is not reality for me. Besides from being deathly ill & only my mother could care for me. The judge will look at how you have been doing in the past couple of years and what your needs are today. The fact that you earned $40,000 a year 6 or 8 years ago is not indicative of your earning capacity today---and you are not in San Jose or Seattle now either, where jobs are more readily available.

You may reply back to me using the Reply link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug

Customer: replied 8 months ago.

Just one more thing...when you said "The judge will look at how you have been doing in the past couple of years and what your needs are today. The fact that you earned $40,000 a year 6 or 8 years ago is not indicative of your earning capacity today---and you are not in San Jose or Seattle now either, where jobs are more readily available."



So since I was mentally ill and could not easily move to a larger city to pick up my previous work again...I am condemned to live this life in a cave in a small town for minimum wage? And receive very minimal alimony? Literally, I go to the thrift store once a year & earn $8,000 a year + food stamps. I feel like there would be some mental health issues/laws that may come into play here because a blanket 2 years seems too general.



Before, when I was to go with him to Berlin, I moved and aligned my whole life towards this (for at least the next year). When he left me in PA, it was not my choice, I was left with no health insurance (which he would have covered) & was incapacitated. I had no means what so ever to move away & resume my prior lifestyle...so this, I don't quite get. I think this is the main crutch of my case & wonder if I should look for a lawyer who deals with divorce but is also up-to-date on all of the mental health issues & laws.



If I found a job in NYC, before the trial date, would this look to judge, that I am back on my feet - and maybe be awarded the higher rate of alimony?...Even though it's only a few months & not 2 years worth of a lifestyle change.


 


Besides, I need the money to move! What a catch-22!


 


Yes, Bonus & Thank You Doug*

Expert:  LawTalk replied 8 months ago.

Hi Darby,

You wrote:

Just one more thing...when you said "The judge will look at how you have been doing in the past couple of years and what your needs are today. The fact that you earned $40,000 a year 6 or 8 years ago is not indicative of your earning capacity today---and you are not in San Jose or Seattle now either, where jobs are more readily available."

So since I was mentally ill and could not easily move to a larger city to pick up my previous work again...I am condemned to live this life in a cave in a small town for minimum wage? And receive very minimal alimony? Literally, I go to the thrift store once a year & earn $8,000 a year + food stamps. I feel like there would be some mental health issues/laws that may come into play here because a blanket 2 years seems too general.


Your situation is a perfect candidate for what is known in FL as Rehabilitative Alimony. That is alimony to assist you in getting back on your feet---and so if necessary you can relocate to where you have a support system and get a job in other than a minimum wage industry. The FL law is as follows:

(6)(a) Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either:

1. The redevelopment of previous skills or credentials; or

2. The acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.

(b) In order to award rehabilitative alimony, there must be a specific and defined rehabilitative plan which shall be included as a part of any order awarding rehabilitative alimony.

(c) An award of rehabilitative alimony may be modified or terminated in accordance with s. 61.14 based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.
Here is a link to the FL code about alimony:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.08.html

Before, when I was to go with him to Berlin, I moved and aligned my whole life towards this (for at least the next year). When he left me in PA, it was not my choice, I was left with no health insurance (which he would have covered) & was incapacitated. I had no means what so ever to move away & resume my prior lifestyle...so this, I don't quite get. I think this is the main crutch of my case & wonder if I should look for a lawyer who deals with divorce but is also up-to-date on all of the mental health issues & laws. A seasoned family law attorney will have experience in dealing with mental health issues in clients as well. It is the Therapist, after all, who acts as the expert witness in these situations, and not the attorney. The attorney merely needs to understand the importance of the mental health evidence and how to go about presenting it to the court.

If I found a job in NYC, before the trial date, would this look to judge, that I am back on my feet - and maybe be awarded the higher rate of alimony?...Even though it's only a few months & not 2 years worth of a lifestyle change.

 

If you get a good job in another city shortly before the divorce, yes, the judge would have to look at this in terms of need---as that is a major criteria for alimony in FL. But if you have a good job, there is much less need for alimony. However, it is unlikely that you will find that job paying so well that you would not qualify for some alimony for a period of time based on your situation today and in the recent past.


You may reply back to me again if you have additional questions, and I will continue to assist you.

I wish you the best in your future,

Doug

 


LawTalk, Attorney and Counselor at Law
Category: Family Law
Satisfied Customers: 27888
Experience: 30 years legal experience. I remain current in Family Law through regular continuing education.
LawTalk and other Family Law Specialists are ready to help you
Customer: replied 8 months ago.

I've read about Rehabilitative alimony & it is way too rigid a plan for me...I do not have 1 main plan & if I veered, it would be null & void. It would be nice, but my two areas of work - Video/Film Production & also Horticulture...don't really have an organized path so that might get too hairy. I think I should stick with the Durational and hope that the judge understands a 'rehabilitative' aspect to it all.


 


And your right. With my big hole in work history, and huge need to re-educate myself in my said industry...I will be starting way at the bottom.


 


Thank You - Thank You - Thank You


 


Can I request you again sometime?


 


Take Care, Darby Smith

Expert:  LawTalk replied 8 months ago.
Good afternoon Darby,

Yes, of course you can ask for me in the future. Simply ask for me by name in the first sentence of your new question and I will be able to handle the question for you.

Thank you too for your kind words. They are greatly appreciated. Please keep in mind that even though you have already paid your deposit money over to JustAnswer, until you rate me highly for my service, I will not be paid for having assisted you with your questions.

Thanks again.

I wish you well in your future.

Doug
Expert:  LawTalk replied 8 months ago.
Thank you for your positive rating of my service, Darby. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise. I am generally available at least 6 days a week, and often 7, and it would be my privilege to assist you again in the future.

I welcome you to request my assistance in any future legal questions you may have, by simply placing my name in the first sentence of your new question.


Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It would be tremendously appreciated.

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