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Hi I have been on here a few times asking different questions about my divorce I just want to make sure I don't sell myself short here. If I have 51k in debts that occurred during the marriage,and he has about 19k. We have 2 cars one with a loan of 330.00 dollars a month and the other is older but has no car payment. He has that one. When he left he took everything when I wasn't home. I was very sick for a year and he gave me nothing. I did get disability and was back to work but got fired. I am a travel nurse and will be working again in August. I have nothing left and had to borrow from friends and family to keep going. They offered me 25k (There is 80k in there from filing) from retirement fund his, but earned during the marriage and 3500 for attorney fees. I will get the cash of whatever is left after they with hold taxes. We have been to mediation and he will not budge on this. His income is 90k a year before taxes and additional 12k from a rental property he has before marriage. So he nets about 6700.k a month after taxes and money in retirement accounts. I make that much as well, however I haven't worked in 2 months and will only begin again at the end of August. I don't have the money to fight him, but my lawyer will wait and take the money after trail which will be about 10k more.He will ask if the judge to56k award that he pays attorney fees. What are the chances of that if I am making the same as he at that point. Also will the 19k and my 51k liabilities offset the assets so I would get 56k? Instead of 40k? thank you
Submitted: 6 months ago.Category: Family Law
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7/29/2017
Family Lawyer: Phillips Esq., Attorney-at-Law replied 6 months ago
Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 20,610
Experience: B.A.; M.B.A.; J.D.
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Hello: This is Phillipsesq. Welcome to JustAnswer! I am reviewing your post, and I will post my response very shortly. Thank you for your patience.

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Family Lawyer: S. Kincaid, Family Law Attorney replied 6 months ago
S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2,514
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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I need a few questions answered to be able to respond well. First of all, how much of his pension was earned during the marriage? Second, I assume there are no children since you didn't mention any? Third, I can't understand one of your statements because of a typo. What did you mean to say when you say, "He will ask if the judge to56k award that he pays attorney fees"? Fourth, please tell me the total value of all marital assets and all marital debts. I'm a little unclear on this.

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Customer reply replied 6 months ago
1) All of it 80k, #2 no children, #3 my lawyer is going to ask for him to pay my attorney's fees #4 goes with the 56k let me explain. I have 51k in debt accrued during the marriage, he has 19k, that is our debts. The assets are the 80k plus he took the car without the payment while I have the one with the payment. But I did include that in the above with the 51k in debt. The other assets are the furnishings which don't really amount to much I suppose maybe a couple of thousand dollars. Also He is in a class action law suit with his last company for over time that wasn't paid, however he was on a salary, so I do not know if this will be awarded. He would work sometimes 50-80 hours a week but was only paid his normal salary. What they want to give me is 25k minus deductions for taxes and 3500 to my attorney. What do you think? My attorney says I have to email him by 9am and make a decision. I really don't like my attorney, he is a nice man but I don't have the money to pay him and I think he just wants to be done with this....
Family Lawyer: S. Kincaid, Family Law Attorney replied 6 months ago

If all else is equal, the Court would normally divide the property and debts 50/50. However, the Court can do anything it wants with the marital property that it deems fair and equitable by dividing the property and debts based on the following factors:

  • (a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
  • (b) The economic circumstances of the parties.
  • (c) The duration of the marriage.
  • (d) Any interruption of personal careers or educational opportunities of either party.
  • (e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
  • (f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
  • (g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
  • (h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
  • (i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
  • (j) Any other factors necessary to do equity and justice between the parties."

You need to use these factors to decide whether the Court is likely to grant the assets/debts 50/50 or in some other fashion. My first instinct is that you are selling yourself short because you are getting less than half, but I have no information about the stated factors, so I can't be sure of that.

Also, if you each have the same income, why would either party pay the other party's attorney's fees? Is this in exchange for you getting more debt?

Does your attorney have any feedback? My instinct, without knowing more details, is that this is a small settlement for you. What justification does your lawyer give for taking so much less than half?

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Customer reply replied 6 months ago
d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
What does this actually mean? I did go back to school in 2010 for a year and 3 months to get my BSN but we had other money we saved from cashing in on other funds we had, he did take care of the bills but we also had money. one of my big debts are 25k in student loans, would that be my debt or both of us? He says if I don't except this he will spend all the retirement fund and there will be nothing to split, but you are saying he can't do this right? Can he spend it on attorney fees? If we go to court it will cost us 15k a piece which will have to come out of that fund for me as I do not have the money. Also another debt I have is personal loans from a friend of 21k and my lawyer says this would be hard to get into the debt column for marriage liabilities. But he left me nothing and I wasn't working.
My lawyer says there is no way to tell how the courts will go because FL is not a community state. He says I could come out with less then the offer of 25k. What do you think?
Family Lawyer: S. Kincaid, Family Law Attorney replied 6 months ago
d) refers to a situation where one spouse gives up their career (temporarily or permanently) to meet marital goals, such as when one spouse stays home to be a homemaker.
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Family Lawyer: S. Kincaid, Family Law Attorney replied 6 months ago
e) refers to a situation where one spouse support the family while the other spouse goes to school or otherwise prepares for career, and now the spouse who went to school is benefiting from their education while the other spouse is not.
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Family Lawyer: S. Kincaid, Family Law Attorney replied 6 months ago
Student loan is always the personal debt of the student.
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Family Lawyer: S. Kincaid, Family Law Attorney replied 6 months ago
You should give notice to his retirement fund that you are his wife and there is a pending divorce and the fund is in dispute. That will put them on notice. He's not allowed to take that money, but noticing the fund should prevent him from doing it illegally. With regard to the personal loan, it sounds like you got that after separation, in which case it is not marital debt. I think that even though you might get more if you fought it, it would take longer and cost you more in attorney's fees. And your lawyer is right, that anything can happen.
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Customer reply replied 6 months ago
I would like to call you as I am getting conflicting answers. My lawyer says that personal loans could be included if people are willing to testify, no guarantee, and yes I did get them after he left but before he filed for divorce. I wasn't working and he left me with no money. As far as the student loans are concerned I got them during the marriage so I could get a job and help out our marriage financially. It looks like now if I take this offer I will only get 18k after the taxes and 3500 for the attorney fees....Help
Customer reply replied 6 months ago
what would make it so that I wouldn't get half of the retirement fund? It is 80k , under what circumstances would I not get half of it? I think I told you as well that I lied on my marriage license about how many times I was married, but he knew that. How can this affect me?
Family Lawyer: S. Kincaid, Family Law Attorney replied 6 months ago

It's actually easier to explain online as I can show you references. Ultimately, your attorney may be right, depending upon the timing of the personal debt. I assumed you obtained the personal loan after the divorce was filed, but I shouldn't have assumed that. Under Florida Statutes Title VI, 61.075(7), debt incurred after the date of the filing of divorce would be the sole debt of the party who incurred it: "The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge’s discretion, the circumstances require." So if you incurred the debt before anyone filed for divorce or before there was any separation agreement, then your attorney is right, and I'm assuming your attorney has that information. If you acquired the debt after the divorce was filed, I stand by my statement that it would be your separate debt. Your attorney is definitely correct that personal loans can be marital property and you would need proof of the loan, either through a written agreement or testimony.

Any number of things could result in you not getting half of the retirement, as long as the judge uses the factors described above. For example, if the judge generally believes that people should keep their own retirement accounts, maybe because he earned his own account and does not want to share it with his wife, the judge is likely to reduce your portion and use the factors mentioned above to justify his decision. Many judges make a decision and then try to come up with a legally justifiable explanation for it. Because judges have so much discretion, there is no way to stop this. Your attorney would know better than I whether this particular judge would do that. But you can always make up a justification on any set of facts.

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Customer reply replied 6 months ago
What about me lieing on my marriage license? How could this affect me? Plus he is using the money now to pay the lawyers, is this right and it will just decrease what we would share? Now we are gonna gete into something weird here but he didn't tell me that he was a cross dresser before we were married. He didn't come out until 3 years later. Then he did it all the time and even bought himself fake boobs. I was disgusted and repulsed. Does this make a difference?
Family Lawyer: S. Kincaid, Family Law Attorney replied 6 months ago

If he can prove your previous marriages, he can file a police report against you for fraud or perjury in lying on your marriage certificate. The prosecutor could decide whether or not to prosecute you. If you weren't actually divorced from any of your prior spouses, he could seek an annulment instead of a divorce. An annulment is a declaration by the court that your marriage is invalid. You would likely not be able to collect alimony or benefit from marital property laws if the marriage was annulled based on your fraud/bigamy.

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