West Palm Beach Divorce Lawyer

The dissolution of a marriage can be one of the most devastating and emotionally taxing experiences of your life. Among the few things that can make this time of transition easier is having the assistance of a skilled West Palm Beach divorce lawyer to help you through the process. I am William Wallshein, and I have been practicing family law in Florida since 1990. I have helped countless clients come to favorable solutions in their divorces.

Common Issues in Florida Divorces

Every divorce is different. Some dissolutions can be amicable, in which both spouses come to an agreement on the issues. Others need the intervention of a judge. However, several issues are common to many divorces across the state. For example, property division is something that must be determined by a judge in most cases.

Florida is an equitable distribution state, meaning that upon the dissolution of a marriage, the marital assets are not necessarily divided up evenly. Instead, the assets are divided up according to a judge’s order. In making this determination, a judge must consider several factors.

In Florida, all marital assets are subject to equitable distribution. A marital asset is anything that is the property of the marriage. This could be money in a bank or investment account, a primary residence or vacation home, a car, boat, or any other tangible or intangible asset. Almost anything can be a marital asset, so long as it was acquired during the marriage.

Property that is not subject to equitable distribution is the individual property of each of the spouses. This can include:

Property excluded by a valid prenuptial agreement;
Property acquired by a spouse prior to entering into the marriage;
Property acquired by exchange of non-marital assets
Assets acquired after the spouses separated;
Any gift, other than a gift between spouses; and
Property acquired through inheritance.

In some cases, a non-marital asset may be converted into a marital asset. Generally speaking, this occurs when a spouse comingles non-marital assets with marital assets. For example, if a spouse deposits non-marital assets into a joint checking account, and the funds become indistinguishable, the non-marital assets may be converted into marital assets.

Another common issue in Florida divorces is spousal maintenance, or alimony, as it is often called. Alimony is a one-time or repeated payment from one spouse to another. The purposes of alimony vary from allowing the receiving spouse to further develop his or her career and become self sufficient, to allowing the receiving spouse to maintain the same quality of life he or she had during the marriage. Depending on the type of spousal maintenance payments, they may last for only a few years or for the receiving spouse’s lifetime. Generally speaking, if the receiving spouse gets remarried or cohabitates, the payments will cease.

Grounds for Divorce

Florida has been a no-fault divorce state since 1971. In a traditional fault divorce, a spouse had to prove misbehavior on the part of the other spouse, such as adultery, desertion, abuse, alcoholism, etc., in order to obtain a divorce. Under Florida’s no-fault divorce laws, a person may obtain a divorce, called “dissolution of marriage,” without proving fault. Consulting a dedicated West Palm Beach divorce lawyer can help you come to a satisfactory resolution in your divorce.

The Grounds

There are two grounds for divorce in Florida:

The irretrievable breakdown of the marriage; or
One spouse’s mental incapacity.

Thus, instead of proving fault, a spouse seeking a divorce in Florida must instead prove that the marriage has broken down, or that one spouse is mentally incapacitated.

Irretrievable Breakdown

The grounds of irretrievable breakdown are used much more commonly than mental incapacity. To divorce based on these grounds, a spouse must prove that the marriage has broken down such that it can no longer function. The couple’s disputes cannot be resolved and are serious enough that they have caused the marriage to disintegrate. The court will grant a divorce if either spouse believes that the marriage has broken down, even if the other spouse disagrees with this assessment. This is because a marriage cannot function without both spouses working together.

Though proving fault is no longer required in a Florida divorce, instances of spousal misbehavior, such as carrying on an affair, may be relevant to show that the marriage has broken down. They may also sometimes influence other areas of the divorce, such as the property settlement or child custody.

If the divorcing couple has minor children, or if one spouse denies that the marriage has irretrievably broken down, the court may:

Order either or both spouses to attend counselling with a marriage counselor, psychologist, religious leader, or other qualified person;
Continue, meaning postpone, the proceedings for up to three months to allow the couple time to reconcile; or
Take other action in the best interest of the couple and the minor child.

Mental Incapacity

Divorce based on the grounds of mental incapacity is quite rare. The spouse seeking the divorce must prove that one spouse has been adjudged mentally incapacitated for at least the three years immediately prior to the divorce. To have a person adjudged incapacitated, a panel of three qualified examiners must find that the person lacks the ability to:

Manage at least some of his or her property; and
Meet at least some of his or her essential health and safety requirements.

The examiners on the panel may be doctors, registered nurses, psychiatrists, gerontologists, social workers, etc.

If a spouse files for divorce based on incapacity, he or she must serve notice of the petition for dissolution on the guardian of the incapacitated spouse, or on a close blood relative. If the incapacitated spouse does not have a guardian, or if the only guardian is the divorcing spouse, the court will appoint a guardian ad litem. A guardian ad litem is a third party who advocates for the incapacitated spouse’s best interests. The guardian may appear and be heard in the divorce proceedings.

Cost of a Divorce

Divorce can often be expensive. In Florida, a divorce generally costs anywhere between $4,000 and $30,000. It is difficult to predict how much a divorce will cost because the expense depends on several factors, including whether there are minor children involved, the amount of property to be distributed, and each spouse’s willingness to communicate and compromise with a minimum of contention. If you are considering a divorce, it is important to contact an experienced West Palm Beach divorce attorney to help you through the process and promote your interests.

Court and Filing Fees

The first step in a divorce is to file for dissolution, which means paying a filing fee to the court. Other fees will also be imposed during the course of the divorce process, including fees to file documents or court fees.

If one spouse is uncooperative in resolving the points of dispute in the divorce, the other spouse may incur fees to file contempt charges or to modify court orders, increasing the cost of the divorce. Additionally, a divorcing spouse must pay a process server to serve the summons and other important documents on the spouse.

Attorney’s Fees

The total expense of attorney’s fees varies widely, and changes depending on the lawyer’s experience, specialization, location, and reputation. Generally, most family law attorneys charge an hourly rate, so more time the attorney spends on the divorce, the more money he or she will charge.

In a contentious divorce, the attorney must spend more time working on the case, negotiating with the other spouse and litigating in court. If the spouses cannot reach a compromise, they will have to spend more time in court. Preparing for litigation is time-consuming and thus expensive, and also means incurring additional court fees.

Experts

Sometimes in a divorce, the spouses will need to hire experts. Experts can value property, such as a home or business, to be divided between the spouses. An expert may also be required in divorces involving custody disputes, to help to determine the best interests of the child. Experts charge fees, and the more complex issues will result in higher bills.

Keeping Costs Down

The best way to control costs in a Florida divorce is to be amicable and willing to compromise. The more the spouses can agree with each other, the less time they will have to spend with lawyers and in court. So try to compromise rather than taking every dispute to court. Negotiations and compromise outside of court mean lower attorney’s fees and court costs, and mean that the spouses can control the outcome of the divorce.

An uncontested divorce is faster and cheaper than a traditional divorce because it streamlines the divorce process. To obtain an uncontested divorce in Florida, a couple must meet certain strict requirements. There must be no children involved, the spouses must agree on asset division, and there must be no requests for alimony.

Alternative dispute resolution methods are another way to keep costs down. In mediation and arbitration, a neutral third party works with the spouses and acts similarly to a judge, resolving disputes. In a collaborative divorce, the spouses work with a facilitator to reach a compromise. These third-party professionals must all be paid, but the cost of paying them is much less than settling disputes in court.

Dividing the Marital Home

Dividing the couple’s property is one of the most important issues in a Florida divorce. Often, the most valuable asset that a couple possesses is the marital home. Deciding who keeps the home, or whether to sell it, is a significant decision, and dividing the home is often difficult. If you are considering divorce and wondering what will happen to your real property, you should consult an experienced West Palm Beach divorce law firm to review your options.

Marital Property

Florida’s equitable distribution statute provides that only marital property is divided in a divorce. This means that a couple’s house is not always subject to distribution. If the property is held as a tenancy by the entirety, it is presumed to be marital property, subject to distribution. But if the house was purchased before the marriage, it is presumed to be separate property, and will not be divided. However, if a spouse can show that the home was purchased with joint funds, that overcomes the presumption, and it will be treated as marital property.

In some cases, a home may be deemed to be partly marital property. This happens if the couple used marital funds to pay a mortgage or if they used marital funds or labor to improve the property.

Valuing the Property

If the house is partly or all marital property, then its value must be assessed. If the couple cannot agree on the fair market value, they can get it valued by a third party:

Tax assessor: This valuation is often inaccurate and is generally lower than fair market value;
Real estate appraiser: Generally fairly accurate, but costs several hundred dollars; or
Realtor: This method is inexpensive or free, but because realtors price to sell, the valuation is often too high.

Then after the fair market value is determined, the value of any mortgages or liens must be deducted. The result is the actual value of the home.

Settlement Agreement

Ideally, the spouses will be able to reach a settlement agreement in which they agree how to divide the house. One spouse may buy the other out or the couple may sell the home and split proceeds. In some cases, the couple has enough other assets that one spouse can take the entire value of the home, while the other spouse offsets that by receiving other assets.

Court Order

If the spouses cannot agree on how to divide the property, the court will make that determination. The court may award the home to either spouse, or may order them to sell the home and split the proceeds. Courts will consider each spouse’s ability to afford the expenses associated with taxes, mortgage, and upkeep.

Often, the court will assign the marital home to the spouse with primary custody of the children, in order to preserve stability and avoid uprooting the children from their home. The court may also split the equity between the spouses, but order them to wait until the children have grown to sell the home.

Partition and Orders of Sale

Sometimes, one spouse wants to force division of the home. Either spouse may file a civil partition action, separate from the divorce proceedings. This will result in either partition in kind or an order of sale. Partition in kind is rare in marital homes because it means a physical division, which is often impracticable when dividing a house.

An order of sale is used when the land cannot be physically divided without injustice. Thus, partition actions for family homes usually result in orders of sale. In an order of sale, the land is sold at public auction and the court divides the proceeds between the spouses in proportion to their ownership interests.

Equitable Distribution Property State

When a marriage comes to an end, there are several pending issues that must be determined before the two individuals may walk away. Often, the most difficult issue a couple without children deals with during divorce is the distribution of marital assets and liabilities. “What once was mine is now yours” overnight becomes “what’s mine is mine and yours is yours.” If you and your spouse are considering a divorce, it is important to speak with an experienced divorce attorney who can ensure that you will achieve most equitable split of your assets and liabilities.

Florida is an equitable distribution state, and not a community property state. This means that the court will review the ownership of assets of each individual within the marriage and determine what is the most equitable when it comes to dividing the assets and liabilities. If there is a prenuptial or postnuptial agreement in place, this legal document will generally outline how the assets and liabilities should be split up between the couple. A divorce becomes more complicated when the couple has purchased property together or have indebted themselves jointly such as with a mortgage or creation of a family business.

Factors Considered in Equitable Distribution

When determining how to split up marital assets, the court will review the balance sheet and determine what will be the most equitable split for the couple. This assessment will depend on the following relevant factors:

The different contributions between the spouses to the household earnings;
The separate economic health of each spouse and the possible implications that the divorce will have on his or her economic stability;
The desire to maintain a specific asset, such as a beloved pet, property in a favorite city, or an interest/share in a company that is near and dear to one of the client’s hearts;
The marital home and who desires to stay within the home;
The duration of the marriage;
If there were any sacrifices between the couple for careers or educational opportunities, or if one of the spouses supported the other for a career or educational opportunity; and
If one of the parties intentionally wasted, destroyed, or hid any assets knowing that a divorce was pending; among other factors.

Value Added: Ensuring Justice Through Public Policy

In recent years, the courts have found value added for those clients who were homemakers during the duration of their marriage. For many states, including Florida, homemaking is considered to be a profession, with the understanding that if not for the spouse who was a homemaker, the professional spouse would have had to hire someone for those services. This is especially true when the professional and homemaking spouses have children that require daycare or any other type of raising. The costs that would have been attributed to hiring a babysitter or sending the kids to daycare everyday so that both parents could be in the workforce is instead attributed to the value and earnings of the homemaker. It would be against public policy to assert that only the person in the workforce brings value to the family, and should therefore get the larger slice of the assets earned at the time of a divorce.

Divorce FAQs

Florida is a “no fault” divorce state. This means that you do not have to go to court and show why you need a divorce. Proceedings to dissolve a marriage in Florida are not concerned with the reasons a couple wants to part ways. Instead, they determine distribution of assets as well as any child support, alimony, or other issues. Consulting a seasoned WPB divorce lawyer for legal guidance can guide you through this stressful time. My name is William Wallshein, and I will make sure to represent you with the care and compassion that you deserve.

What are the requirements for filing for divorce in Florida?

Either spouse may file for divorce. The person filing must show that there was a legal marriage, that one of the spouses resided in Florida for at least six months preceding the filing, and that the marriage was irretrievably broken.

What is the difference between a regular or simplified dissolution of marriage?

There are two alternative ways to seek a divorce in Florida: regular or simplified dissolution of marriage. In a simplified dissolution, both spouses agree to specific stipulations, including:

No alimony will be sought by either spouse
No minor children exist
Agreement regarding all property and debts
Agreement that the marriage is irretrievably broken

When a couple disagrees on certain issues or has minor children, they will file for divorce in court through a regular dissolution of marriage process. During this process, both parties must disclose all financial information as well as provide additional documentation to the court. Parties then present a settlement, participate in mediation, or go to trial for resolution.

How do premarital and postnuptial agreements factor into divorces?

Nuptial agreements establish rights and obligations of a couple during and after marriage in advance. Prenuptial agreements, or premarital agreements, are entered into before marriage, and postnuptial agreements are signed following a marriage, even if no divorce is planned. If a divorce is imminent, these agreements can be referred to as separation agreements. If the couple executed a valid prenuptial or postnuptial agreement, many issues will already be determined before dissolution proceedings begin. However, the enforceability of a nuptial agreement may be questioned in court, such as when there was a lack of proper financial disclosure between the parties or evidence of fraud.

Will I have to pay alimony? If so, for how long?

Reasons one spouse may have to provide spousal maintenance, or alimony, vary. Alimony is awarded when a spouse shows a need for it, and when the paying spouse has the ability to make payments. Need can be proven by showing alimony is necessary to maintain the same quality of life that the spouse had during the marriage. Spousal support may be court ordered for a period of time or permanently, but payments of alimony end when the receiving spouse remarries. Courts consider various factors in determining the amount of alimony to award. These include the standard of living enjoyed during the marriage, any adultery by either spouse, the marriage duration, the parties’ financial resources, and their earning capacities, education, and employability.

Contact a Skilled West Palm Beach Divorce Attorney

If you are in need of a West Palm Beach divorce lawyer, contact me to discuss your case. My name is William Wallshein and I have been practicing family law in South Florida for close to three decades. I give each case the individual attention it deserves. I understand that going through a divorce can be one of the most stressful and trying events you will ever go through. I can help you through this difficult time by providing you with the sound advice and dedicated representation you deserve. Call 561-533-1221 to schedule your free initial consultation today. I have an office in West Palm Beach, located off I-95 and PGA, and a second location in West Palm Beach. I take credit cards.

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