Cohabitation Agreements-The Gap Between No Commitment and Marriage

 

                One of the first things I ask when meeting with a new client contemplating divorce is the date of marriage.  What I often hear in response is, “Well we’ve been married ___ years (fill in the blank, it is usually under five) but we lived together for 10 years (or fill in the blank) before that.

                So I’m thinking, thanks for the information, but as it pertains to your rights and responsibilities in a divorce in Florida, it is not really relevant. You see, Florida is not one of the states that recognize common law marriage, at least not since 1968, when it was outlawed.[1]  Common law marriage, in those states that still recognize it,[2] essentially establishes that a man and woman who lived together and, for all intents and purposes, held themselves out as husband and wife, for a certain number of years (requirements vary by state) are deemed married as if they went through the legal formalities associated with nuptials.

                Well, let’s suppose that you are one of those folks who live in a committed (we hope) relationship but one or both of you do not wish to get that “piece of paper.”  Fair enough, but since you don’t want to even see the end of the (marriage) aisle, you probably are not looking down the real road either.  Here’s my suggestion….take a look.  And here’s my solution: a cohabitation agreement. 

                “What’s a ‘cohabitation agreement?’” you ask.  Glad you inquired.  Essentially, a cohabitation agreement, also sometimes referred to as a “domestic partnership agreement,” is a binding contract between two people that sets forth rights and obligations of the partners, particularly if there is a break-up down that proverbial road.  And while we are at it, these agreements are not only for a man and women living together, but also for (and more commonly used by) same sex couples who (don’t get me started) are still unable to legally marry in many (Florida) states.

                Some of the issues that can be addressed in a cohabitation agreement are:

                -division of joint debts, regardless of whose name the debt was incurred

                -who keeps the apartment lease, or the house purchased in only one name (but paid for  by the other or both)

                -who keeps (and pays for the car) that is jointly titled

                -what happens to the pets

                -does the inferior earning partner get any financial assistance if the couple splits (or just a swift kick out the front door-don’t laugh, I’ve seen it happen and without this agreement there is      typically no legal remedy)             

      Such an agreement may also include preparation of a health care surrogate form giving legal authority to one’s partner to make medical decisions on the other’s behalf in the event of an emergency, because, guess what, without it, no matter how many years you’ve lived as a couple, the partner has no legal right to do so.

   Some Florida counties, Miami-Dade, Broward and Palm Beach included, permit couples to register as domestic partners by filling out a simple form and filing it in the county of residency.  You can find Broward’s registry form at: http://www.broward.org/RECORDSTAXESTREASURY/RECORDS/Pages/DomesticPartnershipInformation.aspx

However, as of March 2013, 60 Florida counties had no domestic partnership registry.  Even with the registry, absent a well crafted document by a knowledgeable family law attorney, some of the other areas addressed above are, well, still not addressed.

                So, if two people care enough about each other to be together day in and day out, they should care enough about each other to commit enough to put a few things down on paper.  And if not….maybe it’s time to get out now, before it’s too late.

 

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[1] If you’re really interested (and have nothing else to keep you entertained, here’s a link for a list of states that recognize common law marriage or some derivation of it:  http://www.ncsl.org/research/human-services/common-law-marriage.aspx

[2] it may be relevant if the parties had a lawful common law marriage in a state that recognizes common law marriage and then moved to Florida and wanted to divorce, but I digress)

Want to find out more about "non-marriage options" Visit our website at www.vovalaw.com

Happy Holidays from Florida Law. The Gift that Keeps on Giving!!

  With the holiday season in full swing (yes, we all saw the Christmas displays in the department stores BEFORE Halloween), most of us are busy trying to get our shopping done, and find just the right gift for those on our list. So, when I read a recent case, I couldn’t help but think that this husband found the perfect gift. Not only could his wife (now ex wife) not take it back or exchange it, but she could re-gift it over and over and over.


  The case, recently decided by 4 District Court of Appeals is Kohl v. Koh.  Mrs. Kohl filed for divorce and also filed for damages resulting from assault by way of the transmission of HPV.


   The trial court, and thereafter, the appellate court dismissed Mrs. Kohl’s request for damages from the sexually transmitted disease. Notwithstanding that Mrs. Kohl alleged that her (now ex) husband "engaged in extra-marital affairs and hired multiple prostitutes and escorts during the course of their marriage," that just was not enough to pursue a suit against him.


   In fairness to the trial judge and the 4th District Court judges, they were only following Florida law (which…shout out there—that’s what the judges are supposed to do.) The law of this fair state requires that a party asking a court to recover damages as a result of getting a sexually transmitted disease from anyone (not just a spouse) must allege that the offending individual had actual knowledge that he/she "was infected with one of the sexual diseases set forth in Section 384.24, Florida Statute," and he/she "was informed that the disease could be communicated through sexual intercourse."


  So, apparently, when Mrs. Kohl found out her husband was fooling around, before she slept with her husband, she had a duty to inquire 1) whether he had knowledge he was infected with an STD and 2) whether he had he been informed that he could pass this on as the gift that keeps on giving.


  Because, I am sure that anytime one uses an escort service the first thing the escort tells her "customer" is that she has an STD, and thereafter, rather than fleeing, the customer then responds, "Oh, well, could you tell me whether your STD can be passed on to me and my wife back at home?" Are YOU kidding?


  Interestingly, the way the statute is drafted, it seems that a spouse (and, actually, anyone engaging in sex with another) would have a duty to inquire each and every time he/she engages in sex with his/her spouse because, if not, then the burden is on the gift recipient to allege (and later prove) that his/her lying, cheating spouse knew of the infection and, further, was informed (by who?) that it was transmissible through sex. Sort of kills the romance, doesn’t it? And as for the gift that keeps on giving, maybe she should have asked for a gift card instead. Visit Our Webpage for More Information

The Last Five of the Top 10 Things to Consider before Filing for Divorce

                So, I know you’ve been at the edge of your seat waiting to find out what the bottom five of the top 10 things are to consider before filing for divorce.  Here, for your contemplation, is the rest of the list.

6.            Get organized.  Surely, this helpful tip should not be confined to people considering divorce.  This is just good life advice. However, as this applies to divorce, this means getting all of your financial documents in order including pay stubs, tax returns, bank statements, brokerage account statements, information regarding real estate, credit card bills, loans, including mortgages, etc.  Now, if you do not know where to find these (because, as I often hear, “my spouse took care of all of this,”) now might be a good time to either “look harder” or ask some questions. If your spouse asks why, all of the sudden, you want this information, you can gently inform him/her that if he/she died tomorrow you’d not even know where to begin to look. (That person may advise that he/she has no intention of dying any time soon, and you might gently persuade them otherwise).  If you have a family accountant, you can also contact this person because, if you file joint taxes, that accountant is also your accountant and he/she has an obligation to provide you (the client) with information.  Equally as important is organizing the information for your attorney. Our office is happy to do it for you, but the more of the “easier” stuff you can do, the more time we have to do the “hard’ stuff, and that’s why you are hiring us to being with.

7.            Close joint accounts.  Okay, so that’s why these tips originally came from the financial analysts and not the attorneys.  There are times when this is good advice.  However, it all depends on the circumstances and the best thing to do is, in advance of taking this action, speak with a family law attorney so you can give the attorney all the facts of your particular situation and the attorney can give you sound legal advice.

8.            How’s your credit?  Do you even know?  Once yearly you can obtain, free of charge, your credit report from Experian, Equifax and Transunion, the three major credit reporting agencies. If it’s not-so-good, you might want to try to improve that before the divorce.  Once divorced, without good credit, it may be difficult to rent an apartment, obtain a credit card or, among others, get a car loan.   Bring your credit reports with you when you go to an initial consultation with an attorney.  If you don’t have a credit card in your own name, try getting one now before you file, even if the credit line is small.

9.            Hire the right team.  I LIKE the advice from the Institute on this one.  “Your attorney is not your therapist, and it will become very costly for you if you treat them this way.” I truly believe I practice family law with a heart. However, I have a BBA, an MBA and JD, NOT a PhD in psychology (not even an undergrad minor).  So although I care deeply about all of my clients, any therapeutic advice I give is solely from my years of hearing stories and not from any formal training.  Now on the other hand, in hiring the right legal team, don’t always look for the meanest and “sharkiest.” Time is money and the more you spend on vengeful fighting, the less you end up with and the more your attorney takes, (and yes, P.S, I’m still in the same house after 21 years, so that’s obviously not happening in my office) See, I can give some good therapeutic advice, after all.

10.          Take time for you.  Advice we should all live by.  And with that said, I’m off to the gym.         

 

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DIVORCE CORP....THE CONFERENCE THIS WEEKEND!

            So, it’s been quite a few months since my blog about Divorce Corp., The Movie.   It seems, however, that this documentary, which has done for the practice of divorce law what Reefer Madness did for marijuana, was such an astounding hit that the film’s director has found a way to continue profiting from the documentary’s success.

                Indeed, ladies and gentlemen (but let’s face it, mostly gentlemen), this coming weekend you have the opportunity to attend the Divorce Corp. conference in Alexandria, Virginia, just a stone’s throw across the Potomac to our nation’s capital.

                Yes, starting this coming Saturday, November 15^th, through Sunday, November 16^th, you and like-minded concerned citizens can, for the low price of $199.00[i] can hear seminars on the following (and I took this from the website) topics 

·         Child Support – Who Benefits? ·         The Constitutional rights of Parents ·         Do Our Family Laws Reconcile With Modern Social Trends? ·         The Impact of Domestic Violence and Parental Alienation on Custody ·         Mediation vs. Litigation for Family Law Matters ·         Are Family Courts the New Mafia?

·         RICO Suits Against the State Courts ·         Equal Parenting ·         The Science Behind Primary vs. Shared Custody ·         Alimony Reform Success ·         Revising Child Support Guidelines ·         Judicial Elections and Their Impact on Judicial Independence

            I would particularly like to hear the seminar on “Are Family Courts the New Mafia.”  I mean, heck, in Broward County, Ft. Lauderdale, Florida we only have one Italian family law judge so what’s up?  I would also like to hear the “RICO Suits Against the State Courts” seminar.  “RICO” stands for Racketeering and Corrupt Organizations" Act, a law designed to invoke criminal penalties  as well as a civil cause of action against entities engaged in ongoing criminal enterprises.  Hey, are they picking on the Italian judges again? 

 

         Well, there’s still time to register.  I bet they’ll even take walk-ins.  It’s at the Westin Alexandria, located at (I’m not making this up) 400 Courthouse Square.  How fitting.

 

            Seriously, our entire legal system is living and breathing.  Otherwise, how do we, in modern society, base our laws on a document that is over 230 years old?  I do not believe that the family law courts are  immune from the need for some changes as well.  But, as with anything else, when the changes are pushed from vigilantes, the changes are never designed to serve all people.

 

            I hope the attendees get something towards positive changes.  From the seminar topics I have my doubts.  One thing, their wallets will be at least $199 lighter.  But this IS America, and everyone is entitled to make a living, even lawyers.

 

            As for me, I’ll be at the University of Florida visiting my daughter and watching the Gators play the South Carolina Gamecocks (nice name).

 

 

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[i] It was $99 before September 1^st…sorry-I missed the update

Learn more about the Law Offices of Cindy S. Vova, P.A.

A Family Law Firm with a Heart

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www.vovalaw.com

TOP 10 THINGS TO CONSIDER BEFORE FILING FOR DIVORCE(But this Blog has Only the First Five)

As a family law attorney who has now been admitted to the Georgia and Florida Bars for over 30 years (!), I managed to, unwittingly, get on what seems to be every mailing list relating to divorce and family.  So when I received the Financial Analyst¸ published by the Institute for Divorce Financial Analysts, I was drawn to an article entitled Ten Things to Consider Before Filing for Divorce.

             Here, ladies and gentlemen, are the first “five things” to consider, per that article, with my “spin” on them.  You’ll have to wait for the follow up blog for the next five: 

1. Are you sure?  You darn well better be, because this is playing for not keeps in this game.  The first thing I ask prospective clients (unless they are subject to mental or physical domestic violence…in which case I say run!) is whether they tried counseling.  In their best case, they are able to work things out with their spouses and I lose a client (in which case they hopefully send me a neighbor who can’t work it out), and in the worst case, five years after the divorce they won’t ponder if they did everything to save the marriage and be burdened with that self doubt.
2. Do your research.  If this means checking up on an attorney you are contemplating hiring, by all means.  If this means asking for free consultations with ten attorneys, please don’t call my office.  As an attorney, the only “thing” I have to sell you is my time and knowledge.  As such, please do not expect an attorney to give you all the free advice you need to become a “do it yourselfer.”  Go to Home Depot for that.  Second, if your “research” is telling me what your friend, who is divorced, says the law is for your case, please go hire your friend as your counsel.  Besides the fact that (absent if the friend is a member of the Florida Bar) the unlicensed practice of law potentially subjects a person to a civil injunction or, in more extreme cases, indirect criminal contempt, you will get what you pay for…nothing.
3.  Set your goals.   If this means how you are going to go it alone after the divorce, yes, this is a good thing to think about. If, on the other hand, it means “how can I suck every last nickel out of my spouse, make my spouse’s life miserable, say such horrible things to my kids that they will end up hating both parents, then these are goals I will not help you achieve.  Though you may be angry and/or hurt in the beginning (understandable) not only are these bad goals, but they will drain a substantial amount of money from the marital pot into the lawyers’ coffers.  If you still want to do this, message me separately.  I can surely provide you with a long list of my colleagues who will be more than happy to take more of your money than is necessary.  I, however, am not one of those attorneys.
4. Keeping the home?  Yes, something you have to contemplate.  I read once, and tell my clients, that you can fit as much love in a little home as you can in a big house. Don’t convince yourself that your kids need to stay in the house if financially that is not a good move. Children are much more adaptable than we think.  Remember, two households (and that’s what will exist after the divorce) cannot live as economically as one household.  Don’t let emotions overcome practicality. (This from one whose parents sold her house when in her first year of law school and didn’t leave forwarding address…just kidding about the latter)
5. Consider custody.  Yes, that’s definitely a good idea of you have children.  (as opposed to putting them in foster care?)  By the way, divorce law in Florida has done away with “custody.”  We have “time sharing,” which is really a better description.  Parents should share time, not possess a child. But really, do you want ALL the time with your children?(because you never need any “down” time for yourself and want to be responsible for them 24/7)  Are you demanding more time so you can reduce your child support? (and then you will have them more and it will cost you even more to feed them) Will this “show” your soon to be ex that you are the better parent? (and where is the reality show that awards that trophy?)  In other words, stop thinking about what is good for you and really take a look at what will be best for your children. Remember…your children are entitled to both a mother and a father, even if they don’t live in the same house!
    
   Hang tight….then next five will be here soon.

Waiting to Divorce….Don’t Die in the Interim

     Sometimes, although not always, clients want to get their divorces settled, and then wait for “a while” until the final judgment of divorce is entered by the Court.  A myriad of reasons are offered; some that have true validity (I want to keep my spouse on my health insurance until he gets a job that offers those benefits); and some reasons are a little more, um, interesting (I just don’t want to get divorced yet…okay-so the past three, five, or 15 months of litigation was just foreplay?)

    Still, unless I have a judge breathing down my neck to get a case off of his docket, I typically tell the client, “There’s no rush on my part…I’ll still be here when you’re ready.”

    But what happens if, while the client is waiting to get the final judgment, the client, or the client’s spouse, dies?  I mean, after all, both parties entered into a settlement agreement intending to be bound by it, didn’t they? (Of course they did that with the marriage contract too,but that's ancient history)

    Oh no, my dear still married friends.  Death changes everything!  In fact, our very own appellate court (at least if you live in Broward, Indian River, Okeechobee, Palm Beach, St. Lucie or Martin Counties), in the case of Marlowe v. Brown, 944 So2d 1036 (4^th DCA 2006) said so!  In Marlowe¸ the husband and wife entered into a settlement agreement where they agreed to split all assets 50/50.  An order was entered ratifying the agreement, but, as luck would have it, the husband died before final judgment.  When the husband’s brother, as personal representative of the brother’s estate (and still brother-in-law of the surviving wife) tried to enforce the settlement agreement, the court said “no way,” and the divorce was dismissed! Too bad to that brother-likely all the assets of the deceased spouse (or at least those left pursuant to a will or the 33% left if there is no will) went to the almost, but not quite divorced spouse. In Topol v Polakoff 37 FLW D1330 (4^th DCA 2012), an IRA beneficiary had already been changed, but it was voided by the subsequent death of the spouse. So sad for the new “not” beneficiary.

    So, now, I make sure, when a client who has settled the case, wanted to wait, that I explain the potential “risk.”  Sure, it is not going to happen too often, but you never know.

     I guess, at least in Florida, those marriage vows should be amended to say “till death (or final judgment of divorce) do us part.” 

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THE WHOLE ENCHILADA, INCLUDING THE EX-WIFE

                On a recent Saturday night I decided to try a relatively new restaurant in the Broward Mall…oh, excuse me, that’s Westfield Broward (sorry, old habits die hard…it was only renamed about seven years ago).  The establishment is called The Whole Enchilada, a Mexican-style casual eatery with tacos, burritos, quesadillas and, you guessed it, enchiladas.

                So while my husband was up ordering our dinners (hey, it was the weekend…and I needed a break), I decided to read the rest of the menu.  Understand that I read anything and everything.  Yes, I was the kid who read the cereal boxes in my youth and, as I said earlier, old habits die hard.  Lo and behold, what did I find as a double star entrée on the back page? Glad you asked, because you were probably wondering at this point what The Whole Enchilada has to do with a family law blog.   Well, a featured menu item is none other than THE EX-WIFE.  The description, taken verbatim, is as follows:

                                “Because it seemed like a good idea at the time…”

Those willing to take on the ex-wife challenge will have 45 minutes during one sitting to complete the entire burrito and all of its accompaniments.  If successful-it’s free and you will receive a TWE shirt and a forever gift of remembrance at The Whole Enchilada Fresh Mexican Grill.

The $39.99 entrée is:

                A combined 6 pounds of Mexican Rice, black or pinto beans, jack and cheddar cheese, salsa,      guacamole, lettuce and sour cream with your choice of charbroiled chicken, ground beef, pork or     tofu along with a healthy side of chips.

                Steak, Shrimp or Mahi Mahi (and, as the immortal Dave Barry says…I am NOT making this up) add $8.00.                            

                Okay, besides the obvious “this is so gross just reading it makes me want to…..” one wonders (or at least I did), why this entrée is called THE EX-WIFE.  And whose “good idea at the time” was it? Was it the “good idea’ of the person who named it? Or are they referring to the thought process of the prospective patron who actually orders this massive remembrance of a prior wife and decides that, regardless of the free t-shirt he simply cannot finish it? And, more significantly, why not THE EX-HUSBAND?  And regardless, did the inventor chose this combination of ingredients because he had a fat ex-wife? Because she was gross? Because she would always order the more expensive menu item (8 bucks more for steak, shrimp or mahi)? Or was it simply because he had a little too many tequila shots the night he penned the menu.

                In reality, I think it’s a little sexist to call this item THE EX WIFE.  Let’s be fair here. As a divorce and family law attorney who represents husbands and wives, and, consequently, helps these folks attain the status of “Ex” husband and wife, I think it is only fair that TWE (it’s shorthand for The Whole Enchilada) should have a parallel entrée called THE EX HUSBAND.   Except instead of filling a burrito with the aforementioned ingredients, perhaps it should be filled with “the hundreds of meals made for him, the tons of laundry washed for him, the several times he forgot her birthday, anniversary, etc., and, a whole bunch of other crap that the individual restaurant patron gets to select from the restaurant’s Ex Bar. Yes, I am kidding, they do not have an ex bar.  In reality, I am sure that many ex husbands could fill their burritos with an equally unappetizing list of ingredients.  

                I had contemplated contacting the company directly to inquire about the choice of name for its signature kitschy item, but I figured maybe I’d send them a copy of this and see if they decide to reply.     

                Still regardless of the innovation or motivation for this menu item, wouldn’t it be much nicer if the Ex Wife (or, if they go with my suggestion, Ex Husband) was a dessert item?  I mean, who doesn’t love dessert.