The P.E.A.C.E. Process
Divorce can be a complicated process, especially with children. The acronym PEACE can be used to remember the major points. We talk through each of the points on the show today. When filing for divorce, keep these in mind.
P – Parenting Plan: Required under Florida law and is split into parental responsibility (decision-making), child time-sharing (custody and visitation), and everything else that goes along with raising kids.
E – Equitable Distribution: How your assets (things you own) or liabilities (debts you owe) will be divided. In Florida, the starting point is that marital property is divided equitably.
A – Alimony: This is a payment one spouse makes to another spouse during or after the divorce. The main questions regarding alimony are: does one spouse have a need for alimony, and does the other spouse have the ability to pay alimony? If the answer to those questions is yes, then the question is how much and for how long.
C – Child Support: Child support is based on a mathematical formula. It typically lasts until the child turns eighteen or graduates high school.
E – Everything Else: This includes the divorce process and how attorney’s fees get paid.
This conversation goes back to the beginning for a refresher in the core elements to keep in mind when you’re going through a divorce.
Links & Notes
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Intro:
Welcome to How to Split a Toaster: A Divorce Podcast About Saving Your Relationships from TruStory FM. Today, your toaster finds peace.
Seth Nelson:
Oh, doesn't that sound nice?
Pete Wright:
It sounds pretty good, Seth.
Seth Nelson:
Welcome to show, everybody. I'm Seth Nelson. And as always, I am here with my good friend, Pete Wright. Pete, it's just time for a refresher.
Pete Wright:
I love this. I actually love this. We have been talking so much about all the different relationship things and the strategy and financials and all these kinds of things for this purportedly divorce legal podcast. It's been a long time since we've gotten back to basics.
Seth Nelson:
And I think that's what today's about. And it really comes about because there is so much coming at people when they're going through this divorce, and we deal with it on the show. Every week we talk about it. Obviously I deal with it daily at work. And it always takes a reminder to say, "Let's slow down. Let's talk about the legal process and the substantive issues that people will be dealing with," and make sure that they understand where they are in the outline.
And being able to break it down into an outline and make something that is truly a seamless web more linear can be very helpful for clients and anyone listening or going through a divorce.
Pete Wright:
Well, and that brings us to this acronym, this acronym PEACE, P-E-A-C-E. You're going to walk through the acronym and help everybody understand what it represents. When did you come up with it? How did you put this together?
Seth Nelson:
Oh, I don't get ownership in that. I wish I could.
Pete Wright:
This wasn't yours?
Seth Nelson:
It's been around for a long time. I think the first time I heard it was the first year that I was practicing family law and it was at a conference. And it was actually named PEACE for that year. They were doing a refresher because at the time a statute had changed and it touched a lot of stuff.
So, let's just start at the beginning. PEACE. P-E-A-C-E. That is the outline for the five potential issues in any divorce case. They will also apply, some of them will apply, to paternity cases, and I'll go through that, and some of it, the last E, applies to post-judgment cases.
So, depending on where you are, if you're going through a divorce or it's a paternity case or you're already divorced or your paternity case is over, but you have post-judgment issues, things aren't going well, we'll cover where that falls in the outline as well.
So, P is a parenting plan. The first E is equitable distribution. A is alimony. C is child support. And the second E is everything else. You always need that catch all.
Pete Wright:
That seems like a big bucket.
Seth Nelson:
It's a big bucket, but you really get stuck in the first four. Those are the tough ones. Now, listen, we get questions from all over the country. We got downloads worldwide. These are the concepts of a divorce case. This is not necessarily what it's called in every state or every jurisdiction. So there'll be nuances in just the way they approach it is different. So mainly all my examples today are going to be Florida Family Law. But if you're going through any of this, check with your lawyer and try to ask them if this is the outline, because it will help the communication between the lawyer and the client much better.
And when you're talking to your friends and they're going all over about it to your family and your family says, "Well, why don't you get this, or I heard a friend get that," you can bring the conversation back to the outline to practice and teach yourself, which gives you more ownership in the process.
Pete Wright:
Agency for sure.
Seth Nelson:
Exactly. Okay, parenting plan. In Florida, there are three parts that I've come up with in a parenting plan. The first one is parental responsibility, the second is time-sharing, and the third is all the other stuff that goes along with raising kids.
Pete Wright:
Everything else.
Seth Nelson:
That's the big bucket.
Pete Wright:
It's a nested everything else.
Seth Nelson:
Exactly. Everything else within everything else. Refer to three little (i) sub (c).
Pete Wright:
That's just mean.
Seth Nelson:
So parental responsibility in Florida is who and how are decisions made for the children. When you're married, you guys talk about it and, "Okay, I don't want this preschool. I want that preschool," and ultimately you come to a decision and it's done. Yes, I know someone out there who's listening is like, "I never get to make any of the decisions. My spouse does." I hear you, but ultimately the decision was made. Okay? So in Florida, you have shared parental responsibility and then you have sole parental responsibility or it's called sole decision-making. Okay?
And then you have something called ultimate decision-making. But it is shared, then you have ultimate, I should put that second because it's a subset of shared, and then you have sole. So shared is any major decisions that need to be made for the child or children have to be made together. So what constitutes a major decision? Education, where the kids go to school. Healthcare. Those are the big ones. People are like, "Well, what about extracurriculars?" It's actually not a major decision.
It is a decision that if you want to sign your kid up for soccer and you go on your days and dad doesn't agree, and then dad doesn't have to pay and you pay, but then dad signs the kid up for TaeKwonDo on his days and you don't agree and he pays, it's not the best for the kid, because what happens is the kid misses soccer practice due to the fault of his own and then he doesn't get to play on the weekend game or he misses the weekend game every other weekend because he is going to TaeKwonDo, right? So you try to work it out. Okay. But big decisions, healthcare.
Pete Wright:
This seems like this gets into ideological stuff, right? Parents have different belief systems as they split about how the child should be cared for.
Seth Nelson:
Not only belief systems, but what about a kid, Pete, that has ADHD? Do we medicate the child? Do we not? That medication is not, take an aspirin and make a headache go away.
Pete Wright:
It's take it every day at the same time. And whether you're at mom's house or dad's.
Seth Nelson:
That's right. And, as you know, you have to learn in the body changes and the doctors have to regulate how much, you got to figure it out. Everybody's different. Well that takes a lot of co-parenting, especially if one parent doesn't want to have the child on the medication. 'Cos how can you ensure that the child takes the medication if the child's at dad's house for a week, right? I mean, I've literally had to argue, "Judge, Mom needs to see the kid every day at four-thirty for two minutes."
Pete Wright:
Just to make that happen.
Seth Nelson:
That's right. That's right.
Pete Wright:
Then we get into also just so it's out there vaccinations too, right? I know that's a controversial thing.
Seth Nelson:
Huge vaccinations is huge. Okay. And the problem with all of these major decisions if you don't agree is the default by nature is that the child is not given a vaccination, is not given the medication because they're not on it. You have to take a physical act and there's a lot of kids with special needs and there's a lot of decisions to be made there. So it can be very difficult. So if you agree, great. If you don't, what happens? Well, if you can prove, very hard to do, that the decision a parent is making is detrimental to the child in Florida, then you can become the sole decision maker. So that is really hard to get detrimental decisions because they can get any fricking expert to come in and say, "No kid. It's not really ADHD, it's anxiety. And so the medicine you don't really need, you need to deal with the anxiety." So you're always going to have an expert saying one thing or another. Or vaccinations are a crock. They don't help, they cause autism.
Pete Wright:
Right. You'll find somebody to say that if you need to.
Seth Nelson:
I want to make ultimate decision making because she wants to give our child a vaccination that's going to cause the kid to have autism.
Pete Wright:
So you just dropped ultimate decision making after sole decision making. What's the difference between those two?
Seth Nelson:
So thank you for that. So ultimate is you have to talk to the parent, give them all the info. If you don't agree, you get to make the decision. Ty goes to the decision maker to mom in this case. Sole decision making, you don't even have to talk to them. Okay. Now this gets very nuanced, but I want to spend a little time here. You don't ever want to go to court and say, "I want ultimate decision making. I'll talk to them about education, but I make the decision and I'll talk to them about medical decisions and I'll make the decision and I'll talk to them about religion," though courts really don't like dealing with that. But I make the decision. Because ultimately if you're making the ultimate decision on everything, you erode shared parental responsibility in you're really at sole decision making.
So it's a slippery slope there. So if you're asking for something, it's better to be narrow in your focus. Where I've gone to court and said, "Judge, my client is looking for ultimate decision making on where the child goes to school for the next three years or for high school. That's it."
Pete Wright:
Really constrain it.
Seth Nelson:
"That's it, Judge. I'm not talking ultimate decision making on education. I'm not talking about whether they need a tutor. Just this school. I'm not even saying I get to make the ultimate decision on which classes they are enrolled in, in said school. I just need them in the school."
Pete Wright:
Okay.
Seth Nelson:
So you really got to narrowly tale of that.
Pete Wright:
Okay.
Seth Nelson:
Any questions or thoughts there before we move on?
Pete Wright:
Well, we're staying in parenting clan for a little bit, right? Because now we're going to need to talk about custody and visitation.
Seth Nelson:
Which we call in Florida time-sharing. Across the nation it's called different things. This is what people mainly fight about at first. This is what they think about. When am I going to see my kid? I want my kid more, right? And they'll have all these reasons why they should have the child more, which is basically I'm the better parent or the other parent's not involved and I've done all the heavy lifting over all these years, or the other parent doesn't know how to change a diaper, whatever the case may be. So, in Florida, let's get rid of a couple things right away. First off, there is a presumption now that we've discussed of fifty-fifty timesharing. That's the starting point. So when someone comes to me and says, "The baby is six months old and he doesn't know how to change a diaper," I'm telling them, and the judge is going to tell them you're about to learn. Okay?
There is a common theme, when the kids are little, they should be with mom. And when they're four or five or six and they're in grade school, then they can start spending more time with dad. That is called the tender years doctrine. And that is abolished in Florida and has been for a long time. Check your local state and jurisdiction. I don't know what it is in Wyoming. Okay? So it starts with fifty-fifty timesharing. So how do you get away from that? There, in Florida, are 20 different factors that you have to look at and the judge will say, "What is in the best interest of the child?"
The easiest factor in my view, to get something other than fifty-fifty, that is not bashing the other parent, is logistics. So if you have parents that are living geographically too far away from each other due to no fault of their own, this is where my job is, this is where your job is, and we have to pick a school that's close to one of us. So, someone has to make that decision. And logistically it just doesn't work and you can show that your school is better or your kid's been in this school for a long time and to get the child up at five in the morning to get to school by 7:30 ...
Pete Wright:
Brutal and unusual.
Seth Nelson:
... is not in your child's, exactly. Now I did this little tip years and years ago when I was first practicing family law and they were complaining that my guy lived too far away and the child had to get up too early. I subpoenaed the school district for their bus schedules and my guy's drive was less than a kid being on the bus.
Pete Wright:
Wow.
Seth Nelson:
And I said, "Judge doesn't work. Are you going to say any kid that has to take a bus should be with the other parent?" Right? That doesn't make sense.
Pete Wright:
Doesn't make sense. No, of course, of course.
Seth Nelson:
So there's a lot of different ways to prove this, right? As opposed to just saying, "Judge, 45 minutes isn't that long." It's an arbitrary number. Is 48 minutes good, not good? Right?
Pete Wright:
Right. Parental relativism can work in your favor here, is what we're saying. Right?
Seth Nelson:
Exactly.
Pete Wright:
Okay.
Seth Nelson:
Exactly. But then, of course, in the statute there are, I'm not going to go through all 20 of them. We could just do a whole thing on parenting, which we've done, but ...
Pete Wright:
I appreciate that.
Seth Nelson:
... it is literally abuse, drugs and alcohol, is the child old enough in sufficient age maturity to have a preference? Be careful with that. Nowhere in Florida law does it ever say the kid gets to decide. I get that question all the time. How old told my kid can decide what to do. I said 18.
Pete Wright:
18.
Seth Nelson:
Right. But be careful with that. One, when you bring your kid into court, you might not like what they say. They might be playing you, right? Two, there's another part of the statute that says who shields the child from litigation? Did you bring him involved in litigation? Were you talking about the litigation? That's not good for kids. I can't win on both. You want me to bring your kid in? You've now put your kid in the middle of litigation talking to the judge. I lose that factor.
So that's the concept, but think about where your kid stays. Fifty-fifty time-sharing. Is it week on, week off? For younger kids, is it always with mom on Monday, Tuesday, dad on Wednesday, Thursday, mom every other weekend. Dad, every other weekend. Or do you go Monday, Tuesday, mom, Wednesday, Thursday Dad, then mom gets the weekend. But then dad gets Monday, Tuesday and dad gets Wednesday, Thursday, switch the weekend. And you know what, Pete? For our show notes, I'll put up some parenting plans. People can look at week on, week off. It's a two-week cycle. Very handy.
Pete Wright:
Yeah.
Seth Nelson:
And then this is where you come into holiday schedules.
Pete Wright:
Sure.
Seth Nelson:
And we talked about this years ago, that I had a special holiday that's not a Hallmark holiday and it's called Hooky Day and we'd play hooky from school and work and go to a spring training baseball game since we live in Florida.
Pete Wright:
Yes.
Seth Nelson:
And I remember, Pete, and I did not use the AI bot, to look this up, to be clear. I remember what your special holiday was as a child. Your father would come in on a big movie release and say, "You don't feel so good, do you?" Right?
Pete Wright:
Absolutely. And he would have a little cough, too.
Seth Nelson:
A little bit like today that you have a little sick, I don't know if that was it.
Pete Wright:
It's a movie. Is there a release today I'm missing?
Seth Nelson:
And you guys would go see a movie.
Pete Wright:
Right.
Seth Nelson:
Those are important days. But other than that, you basically split holidays fifty-fifty. What's good for the goose is good for the gander. Week on week off or first half and second half, excuse me, of winter break. Whoever gets Christmas Eve, the other one gets Christmas day starting at noon or two, rotating over, or you just get Christmas Eve and Christmas day every other year. Same with Thanksgiving. Whoever gets Thanksgiving, the other one gets Christmas Eve, the other parent that got Thanksgiving usually gets New Year's Eve and New Year's Day.
Pete Wright:
Oh my gosh.
Seth Nelson:
Obviously Mother's Day is going to go with mom. Father's Day is going to go with dad. If you have two mothers or two fathers and you don't want to split the day, one gets it one year, one gets it the other. So there's a lot of ways to do holidays.
Pete Wright:
So these two things, right, talking about parental responsibility and time-sharing, custody and visitation, seem to me to be the stereotypical pain points in the relationship with your kids and the divorce process. And we still have this everything else, and I know everything else is going to be big, but can you give me some examples without going into all of them?
Seth Nelson:
These are less pain points. It's a great, great point you make. This is like, how often do you get to communicate with your kid when they're with the other parent?
Pete Wright:
Okay. All right.
Seth Nelson:
Is it a phone call every night? Is it text? What do you do about, if you have to work on a Saturday but it's your Saturday? Do you give the right of first refusal to the other parent?
Pete Wright:
I have to travel for work. It's bad, but will you take them or do you want me to find somebody else?
Seth Nelson:
You got it. And listen, something as simple as that, that sounds so easy and kind, like. "Look, it sucks. We both get half the time with our kid now. I'm unavailable." Why shouldn't they be with mom? Dad's unavailable. Or mom has to work. Why shouldn't they be with dad? Mom's unavailable. Same concept. It seems so easy to be like, "Hey, do you want the kid?" But what happens is people just use it against each other. "Where are you going?" "I don't have to tell you where I'm going. I'm just telling you I'm unavailable. I don't have to tell you I'm working. I'm offering time with your kid. Why are you asking me about my schedule?"
But it becomes like a hide and seek/seek and find type of deal. People don't abide by it like, "Oh, he was gone for this long. I didn't get the call. I should have gotten the call." Everything can be a problem. Okay. So those are the type of things, extracurriculars we talked about. That would be part of everything else. That can be a bit of a pain point sometimes.
Pete Wright:
What about sick days? What about sick days? Kiddo's sick.
Seth Nelson:
This is a pet peeve.
Pete Wright:
For you or the parents or the kid?
Seth Nelson:
For me on how it's drafted in agreements.
Pete Wright:
Oh, okay.
Seth Nelson:
So, here's the selfish move, when you're a parent, co-parenting. You wake up, your kid's sick, it's an exchange day. You drop your kid off at school and then by first or second period, someone's getting a phone call, kid's sick, come pick him up.
Pete Wright:
Oh.
Seth Nelson:
Now mom, let's say you're the dad. Mom has to go pick up the kid 'cos it's her evening.
Pete Wright:
Oh, that's sly.
Seth Nelson:
You can totally jam them up. This is what people do to each other.
Pete Wright:
Oh, people are the worst.
Seth Nelson:
So I like to draft my agreements that say the exchange time is at the end of school.
Pete Wright:
So if the call comes in, it goes to the parent who was on duty in the morning.
Seth Nelson:
That's right. It eliminates that problem of sticking it to them.
Pete Wright:
Okay.
Seth Nelson:
And I'm just telling you all the shit I pulled on my former spouse when Kai was little. No, not at all.
Pete Wright:
Okay, well, so I get that. That's good. That's P for parenting. We're 20 minutes in. We haven't even done another letter.
Seth Nelson:
I know, but that's always a big one. Okay, equitable distribution.
Pete Wright:
Equitable distribution. How are you even going to begin to talk about this without a spreadsheet?
Seth Nelson:
I know. My love language. It's hard, but I'll try. 'Cos I have my spreadsheets memorized.
Pete Wright:
Okay.
Seth Nelson:
That's right. Okay, we're going to start itself. 4 27 B.
Pete Wright:
Close your eyes. It's a guided spreadsheet meditation. You're going to love it.
Seth Nelson:
Okay. Equitable distribution. This is the division of assets and debts. Assets, as we all know, are things that you own. Debts, liabilities are things that you owe to people. Usually cash. And how will they be divided. In Florida, this is what you should be doing. Start with identification. Get a list of everything that you own in your name alone. Everything that you own jointly with your spouse and everything that you own with any third party or entity. If you own an office building and it's in an LLC and you have other members part of the LLC, that's what I mean by third party or entity. You own a bank account with your elderly parent, that needs to be listed. Your owner of it, it might not be a marital asset to divide, but your name is on it, so you got to disclose it. Okay? Identification.
Then you do classification. Is this item marital or non-marital? If it's marital, when you get to distribution, the other party is entitled to half the value. And when you get to distribution, if it's a marital credit card debt, half the debt is the responsible of the other party. If it is non-marital, let's take something easy. Student loans in Florida before you got married, that's debt that you accumulated before marriage, you get divorced? Your ex-spouse does not have to pay half of your student loan back. You're responsible for it.
Pete Wright:
Question?
Seth Nelson:
Yeah.
Pete Wright:
Bank account question. Bank and credit card. When you get divorced, this might be a inane question. When you get divorced, do you go to your, let's say you have $10,000 against you on the credit card at that given point. Do you go to the credit card and say, "Hey, American Express, we're getting a divorce. I need you to set up a second account that splits the debt that we owe and we'll both start paying it." Or do you just keep paying toward the marital account until it's gone?
Seth Nelson:
Credit cards usually won't do that. You can try, but that's putting the decision in the third party that you don't control. Credit cards inevitably have a account holder and a secondary.
Pete Wright:
The account holder is the primary.
Seth Nelson:
That's right. If my client is the primary, I'm always having them take that debt because I don't trust the other guy to pay it. But to your point, everyone's going to be like, "This is a joint card. We both use it or joint bank account. Who gets it?" The bank is easy. You can go and close the account and someone gets half, right? Debts are harder. So identification, classification, marital versus non-marital. Then valuation, how much is it worth? Some things are very easy to value. A bank statement, 10 grand in your hypothetical is on the statement.
Pete Wright:
Has a dollar value on it.
Seth Nelson:
Right. Pretty easy. Cars. Little harder but not much. You can take it to Carmex and get a quote to buy your car. Good for seven days. You can go to Kelley Blue Book. Houses, little harder appraisals. Market analysis.
Pete Wright:
Comps. Sure.
Seth Nelson:
Comps. You can just sell it. That will tell us the market. Right? Boats, same kind of thing. Okay. Closely held businesses. What is my law firm worth?
Pete Wright:
Yeah.
Seth Nelson:
Harder to value. Right? How much of my law firm in Florida is my personal goodwill? People are calling for me, Seth Nelson, first, one of the other partners or associates. Personal goodwill in Florida is not a marital asset. So if my law firm is worth a thousand dollars, but the personal goodwill is 80% or 800 bucks, my spouse is only entitled to a hundred bucks because 200 is marital, I get half and she gets half. So that's how equitable distribution works. Now, non-marital ring, engagement ring. Gift before marriage. It's hers. Wedding band, first gift given to each other while you're married. Marital property.
Pete Wright:
Really?
Seth Nelson:
Gifts between spouses during the marriage is marital property. So in the great state of Florida, you cannot give your spouse a full gift because if you get divorced, you get half that shit back.
Pete Wright:
Half of it back. Wow.
Seth Nelson:
Right?
Pete Wright:
That gets the wheels turning. I mean I'm happily married, but she's got a lot of good stuff.
Seth Nelson:
Exactly. And I'm thinking she does not want your old iPod that's on your wall back there. Right? So, absolutely. If you think about it, at one hand you're like, seriously, it was a gift. On the other hand, the judges don't want to get into an argument. Was it a gift, was it not? Right?
Pete Wright:
Right, right.
Seth Nelson:
What about joint gifts that you got for your wedding? That gets split.
Pete Wright:
Split? What about, okay, I don't want to nickel and dime this all day with what abouts, but I have one which is, okay, an inheritance of family property, antique furniture? Something like that, that came to you from one or the other set of parents, into the family.
Seth Nelson:
Well, I'm going to answer inheritance of property like you've described. I'm going to talk about inheritance of cash. Anything inheritance is a gift to one spouse, right? If it says, this antique table goes to my son, Pete, that's a gift to you. That's a gift from a third party to you. That is non-marital. Pete, when I give you a birthday gift, that is a non-marital gift to you, your wife doesn't get half of it upon divorce. I gave it to you.
Pete Wright:
But if it came to Pete and Keira ...
Seth Nelson:
Like your anniversary gift that I sent you last year ...
Pete Wright:
I'm still looking for that by the way.
Seth Nelson:
States Postal Service. But I gave you that gift for your anniversary to both of you. Marital property.
Pete Wright:
Marital property. So, grandparents pass down an antique table to Pete and Keira, marital property. The value of that either gets split or sold.
Seth Nelson:
That's right.
Pete Wright:
Okay, that makes sense.
Seth Nelson:
Okay. Now, you inherit cash, you keep it in a bank account, all your name, on your own, and you just let it grow and grow and grow. You don't touch it. Non-marital property. It's in an account by your name, alone. You've never commingled it with any marital money. You set it aside. You take that account and you deposit it into your joint checking account or you deposit it into account with your name only on it, but you've put marital money into that account from your earnings from all the money you're banking on the podcast.
Pete Wright:
Right.
Seth Nelson:
Right? You've commingled it. You've converted a non-marital money to marital.
Pete Wright:
And you didn't even know it.
Seth Nelson:
Exactly.
Pete Wright:
That's sneaky.
Seth Nelson:
When you pay off your student loans of your spouse, you're taking marital money or non-marital money of your own and you're paying off non-marital debt.
Pete Wright:
Okay, all right.
Seth Nelson:
Okay. The sheet never matches at the end because you try to divide up who gets the house and how do you pay off the mortgage. You do all that. And if it equals at the bottom or is equitable fair, then we're good. If someone owes someone some money, then you got to figure out how it's going to get paid.
Pete Wright:
Okay.
Seth Nelson:
Okay.
Pete Wright:
Well and we should say specifically, it either gets paid in, what? A cash payment or a sale of property to equalize?
Seth Nelson:
That's right. Those columns.
Pete Wright:
Okay.
Seth Nelson:
That's right.
Pete Wright:
All right.
Seth Nelson:
Okay,
Pete Wright:
So now we're on A, Alimony.
Seth Nelson:
Pete, as you know, alimony is the payment from one spouse to the other, either during the divorce process, temporary alimony, or after divorce. And there's different types in different jurisdiction. That's what alimony is. We all know. Somebody's paying somebody.
Pete Wright:
Somebody's paying somebody else.
Seth Nelson:
The question is how much and how long and how do you determine it? So, how much, in Florida, is defined by the lesser of the following two numbers. What is the need of one spouse and the ability of the other spouse to pay? So, someone has a job, they're making $5,000 a month after taxes, net. Their expenses are $7,000 a month. We all agree that everything's legit. That person's short two grand a month. That is the most in Florida that that spouse on the other side of the equation will pay. Assuming that they're making 10 grand and their expenses are only eight. If they can put away two grand in savings, two grand in their retirement every month they have enough to pay the alimony or 35% the difference of the net incomes.
Pete Wright:
That means what? If the difference is much bigger? It's essentially 35% is a soft cap?
Seth Nelson:
So, if the need is $20,000 a month, and we all agree that's the need, but the difference in their net incomes is 35% and that 35% is $11,000 a month? That's the cap. There's a little asterisk though. Because what happens if the person wants rehabilitative alimony to go back to school for four years? You can get the 11 grand at 35% and then you can get the other person to pay for school. So you can get over 35. It's a brand new statute. In January, 2023. It has not been litigated much. There's a lot of questions to it, but we're moving forward with that.
Pete Wright:
That's in Florida law. Check your local jurisdiction,
Seth Nelson:
Check your local jurisdiction, but the concepts are the same. Need, ability to pay. Now, how long? In Florida, there's different gaps. I'm just going to go through them generally, not specific because people are listening nationwide. But less than three years, it's basically don't even worry about it. There's some there, but don't worry about it much. Less than 10 years, but more than three, you can get half the length of the marriage. 10 to 20 years, you can get 60% the length of the marriage. Over 20 years. You can get up to 75% the length of the marriage.
Pete Wright:
Okay. All right. That actually is the first time you've said anything that actually kind of seems easy.
Seth Nelson:
Well it's easy to say, "Oh, I've been married for 20 years," and do the math, but then the statute says, that's the most and the person paying is allowed to retire. And what about this and what about that? And it says that the spouse that's getting it might be able to get more money in the future because their earnings, even though they're back in the workforce, are going to go up. So maybe you should limit the time. There's a lot in there.
Pete Wright:
A lot in there.
Seth Nelson:
Right. Okay. Child support.
Pete Wright:
Right. Alimony to be clear for people who are like I was is just what they pay to each other, has nothing to do with children.
Seth Nelson:
That's correct.
Pete Wright:
Child support is specifically for the care of the child.
Seth Nelson:
That is correct.
Pete Wright:
Okay.
Seth Nelson:
But in Florida it doesn't say exactly what you need to spend it on.
Pete Wright:
Okay.
Seth Nelson:
It's a mathematical formula. They don't want to talk about where is the money going. In rare cases you can, which we'll talk about briefly, but a couple things you should know, hopefully, at the beginning of your case and the child support calculation because here are the inputs. How many kids, that should be an easy one.
Pete Wright:
I hope you know that. Right.
Seth Nelson:
That should be an easy one. Then, ready for this? The number of overnights that each parent gets. We don't know that until we finish the parenting plan. Then what are their net incomes? We don't know that until we've done equitable distribution and alimony and here's why. An equitable distribution, if you are given in the schedule a rental property that's producing income, that's part of the analysis for your alimony. If you're given a bank account with a million dollars in it and you can get 5% interest off the million, that's $50,000 in income. So I can't do child support till I know your income. I can't do income till I know equitable distribution.
Pete Wright:
A philosophical question. In the spirit of the logic that you always put your mask on before you affix the mask to your child on a crashing plane. Why is child support after alimony? In the spirit of always put kids first. We're not doing that.
Seth Nelson:
Great question. Because child support input starts at the parent's net incomes, that's one of them, their net incomes. So alimony, when a spouse pays the two grand in alimony, that will for child support purposes in Florida, if they have 10 grand and they pay two, their net income is only $8,000, not 10. The other spouse that received the two grand, let's say they were making $5,000 net, they received two, now they're at seven.
Pete Wright:
Okay, so you have a spouse at seven and a spouse at eight.
Seth Nelson:
That's right. Now that $2,000 payment where I just said changes their income does not change their income for federal tax purposes. This is only a child support calculation.
Pete Wright:
Okay. Okay. So they're still claiming 5,000.
Seth Nelson:
They're claiming 5,000 on the one, and the other one is saying, I was making 10. Okay? So you pay child support and alimony with after tax dollars. So now you get their net incomes and that's where the child support calculation starts. What are your net incomes? That's why you can't do it till after alimony and after equitable distribution.
Pete Wright:
All right, so we have our seven and eight.
Seth Nelson:
Boom, it all gets popped - there's a couple others which I won't bore you with. Check your local jurisdiction. It spits out a number. Pete, I've been doing this a long time. No one has ever argued that two plus two doesn't equal four. If that was the child support formula, they argue the first two should be a 10 and the second two should be a five. And then child support should be 15, not four. You argue over the inputs, not the formula.
Pete Wright:
That makes sense to me. I can see getting riled up about that.
Seth Nelson:
Oh, they're hiding money. They have more money. They're a yard guy and they're running the business, but they get paid cash. And I'm like, no, they don't. And my client says, yes, they do. And I say, no, they don't. And they say, yes, they do. And I said, no one uses cash. Let's go check his Zelle. Okay? So I've actually been able to track more money now that there's the cash Apps.
Pete Wright:
Zelle and Venmo and Sure. Okay.
Seth Nelson:
I gave a 25-year-old adult child of mine a hundred dollars in cash and she said to me, I don't know what to do with cash. And I said, I do. Do you want me to take it back?
Pete Wright:
I have some ideas.
Seth Nelson:
Okay. Everything else. The divorce process. Attorney's fees, costs. How do we get from A to B? That's the big catch all. And this is the catch all for post-judgment cases. If you come to me and you're already divorced, my analysis will be different than you're getting divorced the first time because you're in a different stage of the process. So understanding where you are in the process, what are the next steps and what are your ultimate goals and whether your goals in your life match what the law is saying is really important to understand. I get more questions from my client. What's next? Where are we? And frankly, we can always improve. I need to slow down and tell my clients, here's where we are. Here's our goal. This is the next step. We are not at step 5, 6, 7, 8, and we've create now litigation plans. We're like checklists on, here's what's coming next. It's not the goal to litigate it and at any time my litigation plans, the remaining 27 item on this list can go away if we settle.
Pete Wright:
I mean, how often do you find your counsel is to litigate? Is there a trigger point or are there red flags that you're looking for where you think, okay, this is definitely going to go to court?
Seth Nelson:
Well, there's some cases I know are going to court. If someone wants to move across the country on a relocation post-judgment already divorced, they want to move because they got a job offer, that's going to trial,
Pete Wright:
It's going to court.
Seth Nelson:
Right? I find out fairly early on in cases whether it's going to end up really being litigated to either force a settlement or end up in trial based on the positions and how much information we're getting back and forth. I try to get offers out fairly early. Once I have all the information now on child parenting issues, I can get a parenting plan out in the first couple weeks if my client's going to come in and sit down and tell me the truth about what's going on with the kid and the other parent. We have all the information we need. If a kid has some mental health issues or something we have to dig into, that's a problem. Maybe we need more information.
Pete Wright:
Well, very useful Seth. This was a good reset. You know what, this is little reset. This is a great start here episode. We've got a lot of episodes in the queue now. I think we should probably put a big flag on this. It says start here. This is the how to divorce.
Seth Nelson:
That's right. That's just the outline of where you are in the process and some substantive issues.
Pete Wright:
Peace, peace, peace. This is really useful. Thank you Seth, as always, and thank you everyone for downloading and listening to this show. We appreciate your time and your attention. Don't forget to send us those questions, howtosplitatoaster.com. Any questions about the divorce process now that you've gotten through this episode, please head over to Howtosplitatoaster.com and submit your question and we will get it answered on an upcoming episode. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright and we'll catch you next time right here on How to Split A Toaster, a Divorce Podcast about saving your relationships.
Outro:
How to Split a Toaster is part of the TruStory FM Podcast Network, produced by Andy Nelson, music by T. Bless and the Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce and Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce and Family Law. Seth Nelson is licensed to practice law in Florida.
