Frequently Asked Questions by Divorce Clients
Can my spouse make me move out of the marital home if my name is not on the title?
No. Your spouse cannot make you move from the marital home because your name is not on the title. Even if your name is not on the title, the house would be considered marital property if it was bought during the marriage. Sometimes a court will, on a temporary basis, order one of the parties to move out of the marital home if there are children and exclusive possession is determined by the court to be desirable. This is true even if your spouse owned the home prior to the marriage. You can normally occupy it until the case is decided or a spouse is awarded temporary exclusive possession as described above.
If I leave the marital home, is it abandonment and will I lose my rights in the home?
No. Sometimes it is necessary for a spouse to move out of the home if the spouse is a victim of abuse or feels threatened. Even if that is not the case, it is okay to move out of the marital home without losing any rights. A party's rights in the home are determined by the definition of what is marital and non marital property. Simply stated, marital property is property acquired by either or both spouses during the marriage. At the conclusion of the case the court through the process of equitable distribution will distribute marital property (and marital debts) as close to equally as possible to both spouses. Equitable distribution was fashioned by the courts and the legislature to eliminate the history of courts favoring one spouse by awarding most if not all of the assets that spouse.
If we own out of state real property can the Florida court make a decision about it?
Yes. As part of the process of equitable distribution, the court can distribute out of state real property as part of the equitable distribution plan. This is true even if the real estate is in another country. The court would not have the power to order the out-of-state real property to be sold in order to divide the proceeds. When considering a divorce it is very important to discuss any and all assets with your attorney to ensure that the court has the opportunity to consider all property in its equitable distribution plan. Even if it out-of-state property is titled in your spouse’s name, the court can still distribute the property as part of the equitable distribution plan.
If my spouse and I have agreed to everything, can we both come in to talk to the attorney together?
Generally speaking, it is not a good idea for you and your spouse to both speak to the attorney even if you have agreed to everything. The ethical rules require an attorney to only represent one party to a controversy. An exception would be if both parties agree to be represented by the same attorney. However, it is the author's opinion that such "dual" representation is not a good idea because it places the attorney in the position of having to decide what is best for both parties. This creates an obvious conflict of interest. The better practice would be for the attorney to represent one of the parties, draft a proposed marital settlement agreement and allow (if not encourage) the other party to obtain his own legal advice. Moreover, having each party be represented lessons the possibility that one party can effectively challenge the marital settlement agreement in the future.
If I want to file for divorce, should I be represented by an attorney?
It is always advisable to be represented by an attorney when considering filing for divorce. An exception would be where you and your spouse have no children together and have accumulated no marital assets or debts. There are forms available for "simplified divorces" and the courthouse maintains a self-help center to assist parties with filling out the court forms. However, in situations where there are children involved or the parties have assets and debts to be divided by the court, it is advisable to be represented by an attorney. When children are involved, a lengthy parenting plan must be established and approved by the court. Where there are financial issues a financial affidavit must be filed by each party and the parties must, through the procedure known as mandatory financial disclosure, produce a lengthy list of financial documents. An experienced divorce attorney can assist you with this process and ensure that you rights are protected.
The law offices of Palm Beach County divorce attorney, Stephen J. Press takes pride in its professionalism and is passionate about defending the rights of its clients. If you are ready to start divorce proceedings or would just like a consultation please call our office at 561-833-2772 or contact us online.