You Asked, We Answer: Listener Questions
Divorce Questions Answered: Navigating the Complexities
In this episode of How to Split a Toaster, Seth and Pete dive into listener questions, addressing a wide range of divorce-related topics. From the financial implications of staying married on paper to the impact of alcohol consumption on custody, Seth and Pete provide insightful guidance to help you navigate the complexities of divorce.
Throughout the episode, Seth and Pete tackle real-life scenarios submitted by listeners, offering practical advice and legal perspectives. They discuss the pros and cons of staying married for financial benefits, the factors considered in relocation cases, and the potential consequences of winning the lottery during a divorce. Seth and Pete also address the emotional challenges of dating during a divorce and the importance of focusing on your children's well-being.
Some questions we answer in this episode:
• What are the financial pros and cons of staying married on paper?
• How does alcohol consumption impact custody decisions?
• Can a judge force a parent to return after relocating without filing?
Key Takeaways:
• Timing and legal nuances play a crucial role in divorce proceedings.
• Prioritize your children's well-being and seek legal advice before making decisions.
• Be mindful of the long-term consequences of your actions during a divorce.
Whether you're considering a divorce or currently going through one, this episode provides valuable insights and guidance. Seth and Pete's expertise and relatable approach make complex legal concepts accessible, empowering you to make informed decisions. Tune in to gain a deeper understanding of the divorce process and discover strategies to protect your interests and maintain healthy relationships.
Links & Notes
Got a question you want to ask on the show? Click here!
-
Pete Wright:
Welcome to How to Split a Toaster. A Divorce Podcast About Saving Your Relationships. From True Story FM, today, Seth your toaster's got some questions.
Seth Nelson:
Welcome to show everybody I'm Seth Nelson and as always, I am here with my good friend Pete Wright. And today, as Pete just alluded to, is listener question day, favorite day.
Pete Wright:
Oh, it's the best.
Seth Nelson:
Always my favorite.
Pete Wright:
It's the best. It should have a custom theme song. We'll have to commission that.
Seth Nelson:
Yeah, I'm out. You guys figured that out. I got two trials coming up, man. I got other things to do.
Pete Wright:
You're not going to do any commission music yourself? All right? Yes. Our questions have been dutifully organized by producer Andy, who you will see hopefully soon, should not have been allowed to do that, but he did it anyway and leaves his fingerprints on the show everywhere he goes. God, that guy.
Seth Nelson:
Start with the second one, because we'll point out how his fingerprints are on the show.
Pete Wright:
Okay. First question comes from Married-ish in Malibu.
Seth Nelson:
Andy did that.
Pete Wright:
Andy did that.
Seth Nelson:
Here we go.
Pete Wright:
You just wait. "My co-parent and I have been separated and living separately for about three years. I have the house and she is in a nearby apartment and we co-parent our two sons age eight and 10. Well, we actually get along better than when we were together. Neither of us seem to be in a rush to initiate a divorce because of the financial benefits of staying married in California. Tax write-off on the house since I haven't had to buy her out of her share yet. Being able to claim both children, bundled insurance. Are there any financial pros and cons to actually going through with the divorce? She's been in a new relationship and I'm not in one, so I'm sure things will change eventually, but in the meantime we're taking advantage of any financial perks of being married on paper while we can. This sounds kind of silly now that I've written it out, but wanted to get your insight. I love listening to your show by the way. Thanks."
Seth Nelson:
Okay, so...
Pete Wright:
There's a letter of the law and the spirit of the law question here, Seth.
Seth Nelson:
Well, there's a lot here. And first off, one of the pros is you don't have attorney's fees. So if we're looking from a financial perspective, right?
Pete Wright:
Yeah, that's a win.
Seth Nelson:
So the problem with staying married for financial benefit is these are all short-term issues that you're dealing with. You never know how things will change. So by way of example, in Florida, this is California, but check your local jurisdiction. In Florida, if you've been putting money away in your IRA during this past three years, there's an argument to be made that on the date of filing your IRA was a hundred thousand dollars. You're going to say, "Yeah, but three years ago it was only $70,000." And now the law says in Florida that you start on the date of filing, so that's a $30,000 swing, which in equitable distribution you get half anyway, but that's a $15,000 issue. Maybe the house value has gone up over the last three years and it's going to cost you more to buy her out of the house now than it would've three years ago.
Of course, the market could tank. I mean, so there's so many unknowns, but whenever anyone talks to me about, "Look, there's a lot of benefits financially." I'm like, "Yes, current benefits. But you got to consider the long term on how that may or may not play out and how things change and people sometimes change not for the better." You guys are getting along now, money's flowing whichever way it's flowing, but right when you start to say, "All right, it's time." It's a change for people. Maybe they're not going to get the support that they thought they were going to get. Maybe you're going to stop paying some bills because you don't have enough money because you're buying her out of the house.
So it can be a little dicey when things change. The sentiment is correct. Let's try to save every dollar we can. But if you have two kids, on your taxes, if you each have one kid more than 50% of the time and you can qualify this head of household, that's one way to save money on the federal taxes. I don't know about state tax, but check with your accountant on how you can both be head of household. So there's other ways to save money in the future.
Pete Wright:
Follow-up. Counselor, how does the law, like a judge is sitting there listening to this story, what is a judge going to say about you taking advantage? I'm saying "Advantage" in quotes of being married financial benefits for three whole years without really being married?
Seth Nelson:
Judge will not care. The only time the judge is going to care is when one of you says, "Well the house was only worth $200,000 three years ago, but now it's worth 350. Judge, I want to buy out at two." They're like, "Uh-huh. It's the value today."
Pete Wright:
But I hear you and I just want to get to this question. Somebody at some point sat down and made a bunch of laws that indicated if you were married you would get certain benefits.
Seth Nelson:
Yeah.
Pete Wright:
Do they care-
Seth Nelson:
No, you're married.
Pete Wright:
... that you're not really married?
Seth Nelson:
It's called the IRS, the tax code. It either you're pregnant or you're not. It is you're married or you're not. And if you're married you get a benefit. They don't care if you're living together.
Pete Wright:
This is maybe one of the most bizarre conflicts that I've had to wrestle with.
Seth Nelson:
Yeah, you're really struggling with this. I find this very interesting.
Pete Wright:
I'm really struggling with this. Yeah. You don't find it... You're an attorney, man.
Seth Nelson:
Yeah, and I think that's the difference, is I'm like the law says you're married, you're married. Boom. And you're saying we're married on paper only, but we've separated everything, we have different bank accounts. So to you that isn't what marriage is defined as. Right?
Pete Wright:
Right. Because I'm green carding it. You know the movie Green Card, right? Gerard Depardieu. Right?
Seth Nelson:
I do. I'm so fortunate that every now and then you mention pop culture that I know. This is one of them.
Pete Wright:
Not that I would call Green Card pop culture. But okay, I'll give it to you. Look, the question is if they're going to come in, immigration's going to come in and ask you if you know your spouse's toothpaste. They care about those laws around marriage. Why does nobody care really about the tax laws?
Seth Nelson:
Because that's not a law about marriage, that's an immigration law. Are you're trying to beat the system to get someone a green card?
Pete Wright:
Aren't we doing the same thing?
Seth Nelson:
No, you're already married. You're just saying I'm staying married.
Pete Wright:
They already beat the system is what they're saying?
Seth Nelson:
Yeah, right.
Pete Wright:
They already beat the system. Okay, I'll let it go. That's fine.
Seth Nelson:
Yeah. Interesting.
Pete Wright:
It is fascinating to me, fascinating.
Seth Nelson:
And here's another benefit for this guy if he gets divorced, I'm assuming it was the guy, I don't know why. Because she's been in a new relationship but could be same sex. So here we go. You could stop listening to this show. I mean, you'd be divorced. I mean, if you want to keep listening, we're welcome to have you.
Pete Wright:
That may be the best reason of all. So thank you Married-ish in Malibu.
Seth Nelson:
Where are you going next, Pete?
Pete Wright:
I think the only one that doesn't have an Andy fingerprint on it is the first one in the list. This is from Julia that I feel like we should answer. Are you ready?
Seth Nelson:
Let's do it.
Pete Wright:
"Alcohol and custody. At what level of alcohol consumption would a court consider it an issue for custody? My husband is most likely alcohol dependent. He drinks about four plus 16 ounce IPAs, 7% alcohol every night and possibly more. Plus he enjoys several shots of hard liquor at least several times per week on top of that. I am not closely keeping track so it might be more. He never skips a day. He also smokes weed daily. He's been doing this for a long time. He is high functioning, doesn't drink during the day and is successful at his job. He gets verbally abusive when anyone irritates him or contradicts him, more frequently when he drinks. He also isn't very present as part of the family. Once he starts drinking, he mostly retreats to the patio for a large portion of the evening, drinking and smoking by himself. I have been contemplating divorce because we are not on the same page on many things, but I don't feel comfortable leaving the kids in his care because of the drinking and smoking because he can get mean and impatient when he drinks and because he will pass out or fall asleep and he is hard to wake up and be unavailable. We have two kids, 14 and 11 years old. Would his drinking and smoking impact custody in some way? We are in California." Another from the Left Coast.
Seth Nelson:
I know we're out West, right. Okay. So there's two questions here with a lot of information. And remember I always say information because I don't call them facts because a fact is what I view as what a judge believes in court. So one question is at what level of alcohol consumption would a court consider an issue for custody? The second one, which obviously is tied to it, would is drinking and smoking impact custody in some way? I have never seen a court base anything on level of alcohol consumption. I don't go to court and say four plus 16 ounce IPAs. Now that might be relevant information that I would try to get into court and say, "Judge, we have a problem." But the reason I would be bringing that up is to try to get, and there's another question later on which I'm sure we'll hit on this too, is talking about alcohol monitoring.
So this is a prime case for Soberlink, right? Blow, make sure that you are not intoxicated, that you can care for your kids. And that answers the second question, would his drinking and smoking impact the custody in some way? Yes, it's going to impact how you litigate this case. It's going to say you're going to go to court and say, "Here's the problem, this is what I see." You're going to talk to your lawyer saying that, "Hey, how do I get the information to you that you can then bring to court to prove?" And there's a lot of ways to do this without going out there and filming. I would not recommend that. Look at the receipts from the grocery bill. That's a lot of alcohol being consumed.
Pete Wright:
Yeah, it's expensive habit.
Seth Nelson:
Right. And talk to your lawyer about how you can get this in front of a judge to get some alcohol monitoring. Good news in your case, 14 and 11, not four and one. Because at 14 and 11 they're old enough where they can speak to you, they'll talk to you what's going on. Okay? Yes, you want a parent to be sober and present and focused on children, but at least at this age you'll talk to them about, "Don't get into the car." It doesn't sound like there's any drinking and driving. It's more come home after work. Here's what happens every single night. Legitimate concerns, that's how I'd approach it.
Pete Wright:
Okay. We've got one I Muddled by Moving has written us. Muddled by Moving says this. "How does relocation work? What happens if your spouse leaves without filing for relocation? What if the judge rules against relocation and they choose to leave without the kids anyway? Will they still get a long-distance parenting plan? What are the factors considered for relocation? Can a judge force a parent to come back?"
Seth Nelson:
Can I answer the last question first? Can a judge force a parent to come back? The answer is no. A judge cannot force a parent to actually see their children. So if they move without filing for relocation and take the children and you're married, I would be jumping on that right away. It depends on when they moved. If you filed for divorce and then moved, that's different than if you didn't file for divorce, moved and then filed for divorce. Because timing is a big factor here. There are about eight different factors in Florida regarding relocation, and some of them are like, can the other parent get a job there? What's the reason for relocation? Is it sought in good faith? There's a whole... 61.13001 is the statute. The very last one is, anything found in 16 or 61.13 subsection 3, which is the 20 factors in a regular case without relocation.
Some of them overlap. So we live in an open free society. You can live anywhere you want. So that's why a judge can't force you to come back. But what the judge can do is say where the kids are going to go and where the kids are going to spend time with what would now be the long distance parent. And that's how that gets played out. But look at those statutes that will give you the outline of what a court would consider and the very first question they ask was how does relocation work?
It's different than a regular divorce case because when you file for relocation, when you file for divorce and you ask for relocation, if you do a motion for temporary relocation, the court procedurally is supposed to hear that within 30 days. So you got to get your discovery in quick, you got to get a quick case management conference and say, "Here's what we need. We need discovery on X, Y, and Z on an expedited basis because we are supposed to have this per the statute." Now the judge might say, "I don't have anything in the next 30 days. I'll give you 60 days." But get into court as quickly as you can on this. And that would be a temporary ruling that then could be redone at the end.
Pete Wright:
Okay. Lucky Lotto Limbo writes, that may be my favorite one yet. "What happens if you win the lottery while your divorce is in process but not finished?"
Seth Nelson:
Your legal fees are going to go dramatically up.
Pete Wright:
It was only $12.
Seth Nelson:
So it depends on how much the lottery is. So this is a depends question. So in Florida on equitable distribution, on the date that you file for divorce, there is a Polaroid picture, a snapshot taken of your finances. Any money that is there at the time is marital money. Joint bank account. If you take $10 from the joint bank account and you buy a lottery ticket, I'm going to say you won, that's marital money.
Pete Wright:
Got it.
Seth Nelson:
If you wait a month, you open a new bank account, you take earnings that you earned after the date of filing. So your paycheck two weeks every, let's say you get paid every week. Friday goes by, Friday goes by. Now you're well past anything that was earned during the marriage by a few weeks. You take your new paycheck, you put it in your new bank account. It's not co-mingled, that's non-marital money. You buy the lottery ticket with the non-marital money and you win. I am going to argue that's non marital, it's all yours.
Pete Wright:
All yours. And this answers the lotto question, right? It answers the question, if you bought a ticket with marital money and didn't get the answer for a month or two later till the drawing, that's still marital money.
Seth Nelson:
Right. But how are you tracing that dollar? Literally, are you going to the ATM machine and taking a picture when it comes out, the serial number and you take that 20 bucks and you take a picture when you hand it over? I mean, there's a lot of what-ifs here.
Pete Wright:
Yeah, there's a lot of what-ifs.
Seth Nelson:
What do I know? So really interesting question and congratulations if you've won the lottery. And here's the worst thing that happens, you only have to give half of it away.
Pete Wright:
Yeah, that's I guess, a small sacrifice.
Seth Nelson:
Depends how big the lottery is.
Pete Wright:
Depends on how big the lottery. Longing for Love writes, "My divorce has been going on for years due to a very unreasonable, difficult and wealthy ex who is demanding full custody. I don't see an end in sight. Is it okay for me to move on with my life and start dating?"
Seth Nelson:
Okay, my perfect world, which there is no such thing as a divorce attorney, is my clients want to date during a divorce. It just adds unnecessary complications and emotional stuff that comes in. So check with your lawyer. I imagine they're going to tell you the same thing. Here's the other option, date on the down low. Nobody knows. Don't get on the apps. Because your ex will have friends on the apps, so they'll make up false accounts just to see if you're on the apps. So don't get on the dating apps. If you want to meet someone or a friend wants to introduce you and it's really on the down low, don't spend any money on them during the divorce because that could become an issue.
You can tell them, "I'm going through a divorce, I would normally take you out for dinner, but I don't want you getting dragged into this and your finances. So once I'm done, I'll pay for stuff." But there's a lot of ways to fall into pitfalls. Now, some judges just don't care and it's really not about what happens in court once you start dating afterwards, it's how does it impact your, in this case, wealthy ex who's demanding full custody. Certainly if you start dating, don't bring them around the children. Your kids need you, right? Focus on them.
Pete Wright:
The trick for me with this question is the length, like the fact that it's been going on for years, so by the time you get out multiple years, is there no sort of emotional statute?
Seth Nelson:
I get it, this person's going to start dating.
Pete Wright:
Yeah, they're [inaudible 00:18:58].
Seth Nelson:
So what my job is, I would prefer you not to. There's no law against it. I'm just trying to get you to the end. I'd be trying to set this case for trial as soon as possible and go. But the reverse side of that is if you're going to, then please do it on the down low, be smart about it.
Pete Wright:
Got it. Fair enough. Fair enough. Next question...
Seth Nelson:
Andy's crushing it.
Pete Wright:
Crushing it. Next question comes from Pregnant and Perplexed. Alliteration for the win. "Is it true that if your husband divorced you while you are pregnant, he will immediately get 50/50 custody of a newborn as soon as they pop out? This seems inhumane. They don't even force puppies to spend a night away from their moms for 12 weeks. Is this really true for the new 50/50 law? What about breastfeeding? Is this considered, can they really take a newborn away from mom overnight, immediately?"
Seth Nelson:
Okay, this is a Florida question. It's new law. First off, I am going to use in court the next time, I have to argue this, the puppies for 12 weeks.
Pete Wright:
Puppies. Absolutely, the puppies.
Seth Nelson:
Brilliant argument. "Judge-
Pete Wright:
It is a great argument.
Seth Nelson:
... Your Honor. We don't even make puppies leave for 12 weeks."
Pete Wright:
So good.
Seth Nelson:
So the answer unfortunately for this mom could be, yeah. Now here's the truth of the matter. Baby's born, you're not getting into court on day one.
Pete Wright:
So the 50/50 law, when we say the 50/50 law, that can be a terrifying thing, but what it seems like you're saying is you don't have to worry about it until your case meets judge and they apply that law?
Seth Nelson:
That's right. And it is a presumption of 50/50. On a temporary basis, if I was in there, what I would be doing is saying, "Judge this law on a presumption of 50/50 is a rebuttable presumption. And here..." And this is only a temporary basis, we are not divorced yet. Right now it says, is it true if your husband divorced you while you're pregnant, he'll be immediately get 50/50? So timing again is important. If you are already divorced and the child's not born yet, then after the child's born, he's going to have to come back and do the parenting plan.
So are you currently pregnant? Yes. Am I pregnant? Okay, well, I'm going to get you guys divorced and divide up the money and alimony and everything else, but I'm not doing child support because the child isn't born yet and I'm not doing a parenting plan because the child isn't born yet. Come back to me when that happens. And then you come back. Okay. So I don't think this is going to happen immediately as the question is written overnight immediately. Now remember this is a presumption of 50/50. I would also go into court and argue, judge breastfeeding best for the child. I would bring in a medical professional and give mom overnights.
Pete Wright:
Okay.
Seth Nelson:
But give dad during the day. And say, mom, you got to pump. You got to get the milk ready. There's all these things. I would really make an argument that we can do 50/50 a different way. Now here's the other thing I would also advise my client is "Hey, what we should do is just offer makeup time. Okay? Let's just be really reasonable about this. See if we can get some agreements."
Pete Wright:
Mom gets puppy time for the first 12 weeks.
Seth Nelson:
Right.
Pete Wright:
And then you start doing maybe instead of 50/50, you do 60/40 or 70/30 until you get back to square.
Seth Nelson:
Yeah, or whatever the case may be. Or you start saying, yeah, you can have some overnights and I'm going to pump and I'm going to give you an overnight and here's the milk and everything and you want to get up every two hours, have at it. Maybe that's dividing and conquering a little bit. Everyone's getting some sleep. Hope things work out for you.
Pete Wright:
Pension Ponderer says, "Is there a way to equitably split pension and social security benefits?"
Seth Nelson:
Yes. In fact, pensions are exactly this. They're equitable distribution. That's where they fall in. They're an asset earned during the marriage that has just yet to be distributed by the pension holder, the company. So if it was earned during the marriage, you can get what's called a QDRO, a qualified domestic relations order, which says when the pension starts to get paid, you will receive your marital portion. Social security benefits are different. Those are tied to the person. What the law is at the federal level, if you are married more than 10 years, you only get this for one spouse, Pete, you don't get it if you're married for 10 years and married to someone else for 10 years and...
Pete Wright:
We're just going to do 10 plus one day.
Seth Nelson:
Right. [inaudible 00:23:52].
Pete Wright:
In time. Yeah, write it out.
Seth Nelson:
So what you get is you get half of your spouse's pension, but your spouse will still receive their full pension. One of the reasons why social security is in trouble.
Pete Wright:
Because you saw what my face did. So if I divorce, let's just say I divorce, I'm not going to, but I do and I get my full benefit.
Seth Nelson:
Let's just use basic numbers. You get $3,000 a month, that's your full benefit. Your spouse has a choice. She can accept her social security or get half of yours value, whichever one is-
Pete Wright:
Okay.
Seth Nelson:
Okay. So if she is getting $3000 as well, she's keeping her own because she's only going to get 1500 from you, but if she only gets a thousand, just think stay at home mom, she only gets a thousand. She gets a bump up of 500 bucks a month, it doesn't cost you a thing.
Pete Wright:
Wow.
Seth Nelson:
Okay.
Pete Wright:
Wow. It's kind of like the survivor benefit choice.
Seth Nelson:
A little bit.
Pete Wright:
But with all the financial downside of not having the actual person pass away,
Seth Nelson:
But check with your account and check with your financial planner. But yes, that's how you do that.
Pete Wright:
Economics are hard on that for me to wrap my head around. The next question is a teaser. So I'm going to tell you what the question is and you are not going to get to answer it. Ask me why, Seth?
Seth Nelson:
All right, I'll bite. Why?
Pete Wright:
Because we're going to do it on Instagram and we're going to have one of our fantastic attorneys at the firm answer this question on Instagram. So you've got to follow us on Instagram, NLG_Divorce & family. It's the underscore, gets you every time. Here is the question. "I am divorced. Have been since 2002. He was in the military. We were married for over 20 years. This year, my tax preparer said that my ex-husband who gives me a percentage of his retirement is claiming that it's alimony on his taxes and that I should have paid taxes all these years. The word alimony is not in my filed divorce paperwork. Is this true? I owe taxes after all these years? My ex never told me he was claiming alimony. We both live in Florida. Love your podcast. Thank you. Ginny." Ginny, thank you. This is so important. We're having our military expert answer this question for you.
Seth Nelson:
Yeah, so Kristin Scully, I spoke to her about this literally today. She came in and said, "Hey, Hope came to me and she wanted to know if there was a good question that I could answer for Instagram?" Because Monday we're answering questions on Instagram. I said, "I have the perfect question for you and it's in our listener questions." So Ginny, sorry that we're going to make you wait a little bit, but it's going to be out there on Instagram. And find it there and if you have any questions on it, give us a call
Pete Wright:
One more time. NLG_Divorce & Family Law. Follow us there. Our next question comes from Dissolution Deliberator. Who we found on the set of Mad Max. The next Mad Max movie.
Seth Nelson:
You see why we don't let Andy on talk on the show.
Pete Wright:
He's crushing it today. "I am looking into a divorce, but saw several other options on the paperwork, a legal separation and an annulment. What is the difference?"
Seth Nelson:
Okay, so you got to really check your local jurisdiction and call your lawyer. So let me just start with annulment. Annulment is if you get an annulment, it's as if you were never married, okay? If you get divorced, it's as if you were married and now you're not. You're divorced. Okay? And we've talked about this, Pete on previous shows where I really annoyed people at the doctor's office when I fill out the form and they say marital status, single, married, divorced, and I check now married and divorced and they get very confused.
Pete Wright:
They don't know what to do with it.
Seth Nelson:
Right. I'm like, I am divorced, but I'm currently married. So I don't know what you're really asking or why it matters when you're looking to see if I have skin cancer.
Pete Wright:
And then you go home and watch the paper chase again.
Seth Nelson:
That's right. Of course.
Pete Wright:
That's okay. We get it.
Seth Nelson:
So exactly. So that's the deal with annulment. Actually in Florida sometimes it's really, really hard to get an annulment. It's just easier to get divorced. Because what you have to prove in court is much different.
Pete Wright:
Whoa. Why is it different? What is it different?
Seth Nelson:
It was never consummated.
Pete Wright:
Seriously?
Seth Nelson:
So think about this, you have to prove the negative.
Pete Wright:
In court.
Seth Nelson:
In court. Yeah.
Pete Wright:
That is another one that just changed my world.
Seth Nelson:
There we go. Now, legal separation. This is only, I think if I have this right in my head, legal separation is only mentioned one place in Florida, statutes under divorce. But it's not really a thing. It's just in there and I think the nomenclature just never got picked up when they changed the statute. So be very careful if someone's saying you're legally separated, because that goes back to at the beginning, Pete, you're either married or you're not. So be very careful with this.
I don't deal with legal separations. If someone comes to me and says, "Well, we want to get separated." I said, "Okay, so what we should do is draft a temporary parenting plan or a temporary marital settlement agreement, or I mean temporary financial arrangement that will be filed in court if you guys decide to move forward or if someone doesn't hold up their end of the bargain." But without having it in court signed off by a judge, it's not enforceable in family law, then you'd have to argue it's enforceable in contract law and now you're in a different courtroom and it gets very complicated. So annulment is if you've never, it's as if you've never been married, divorced, we know you were married, now you're divorced. Legal separation can get really tricky. Be careful with that one.
Pete Wright:
Okay. Legal separation, just to your knowledge, that is a jurisdiction, is that heavily a jurisdictional thing?
Seth Nelson:
Check your local jurisdiction. Absolutely. Thank you for that.
Pete Wright:
Okay. Yeah. Okay. Sam writes, "My wife and I have decided we're going to get a divorce. We have only been married for about two years and we don't have kids. I hear that if you've been married for less than five years and don't have kids, that you don't really need a lawyer. Is that true?"
Seth Nelson:
We know the answer to this question. The answer is no.
Pete Wright:
Of course.
Seth Nelson:
Of course you need a lawyer. Okay, so Sam, here's the bottom line on this, is in a situation like this, it's very common for everyone to say, "Okay, you keep your financial stuff, I keep my financial stuff, you keep your financial debts, I keep my financial debts. Anything that we have together, we're just going to split and we're going to be done." Totally get it. In Florida it's called a simplified dissolution of marriage, that you both have to show up at the final hearing. You don't have to do financial affidavits and you can get it done lickety-split.
Do I think you need a lawyer? Sure. I think you need a lawyer because one, we know the legal system to get you through the process quicker, and two, maybe there's something there that you're entitled to that we can tell you you're entitled to this. It's not our job to tell you whether you should go fight for that, but you might be giving up some serious financial benefits that you didn't realize you had. You might not care, which is absolutely acceptable, 100%, but I think you should at least know what if anything you're giving up.
Pete Wright:
Okay. Next question. Family Law Fixer writes to us, "What is your experience with vexatious litigation and legal system abuse? Florida's vexatious litigant statute doesn't include family law cases in their consideration of barring a pro se litigant from filing new pleadings or cases. Other states have passed some specific family law, legal system, abuse statutes, Tennessee, but Florida is far behind in its use of this kind of sanction. My dissertation was on vexatious litigation in Florida courts, and I interviewed, surveyed judges about their experiences with difficult pro se litigants. There were a lot of comments about family law bringing in its own set of issues from the judges. Also, OSCA and the Working Group on Vexatious Litigation report has some great details about family law being a space it's a problem. I'd love to hear you all cover vexatious litigation and family law. I have some law review articles and empirical articles that could be informative."
Seth Nelson:
Okay. First off, please send those articles in. I would love to read them, and I think this is something I live every day though, because vexatious litigation-
Pete Wright:
What is it? Just first lay it down for me.
Seth Nelson:
It is where everything is a problem. Setting a hearing, you have to ask for three dates from the judicial assistant on the judge's calendar. You send those three dates over to the other party and they have three days to respond. On the third day they say none of those dates work. So then you get three more dates. And you do this two or three times and you can never get them to clear a date. So now what do you do? I again get other dates for case management conference. They say they're not available. I just set it. And even though the law, the rules say I have to clear it, I am now setting it because I'm going to go to court with my little file of everything we've tried to do to set a hearing. And the judge won't take kindly upon them for doing that and maybe sanction them.
But the problem is, maybe they just keep throwing stuff at us and keep running up the bill. And this happens all the time in cases where there'll be a lawyer on the other side, the lawyer will get off the case. When the lawyer gets off the case, I have to deal with a pro se, a person who is not represented, they're representing themselves who doesn't know the legal system. And the big fear my clients have is, "How do you have to communicate with them? Are they going to call you and run up my bill?" I'm like, "No, I'm not going to talk to them unless the court orders me to talk to them. I'm going to put everything in writing." But sometimes that takes longer.
Pete Wright:
Sure.
Seth Nelson:
Right. So it is just constant, constant litigation, litigation, frivolous motion, frivolous motion. And it's a nightmare.
Pete Wright:
One of the assertions in this question is that other states have passed some specific legal system abuse statutes and Florida is behind. Do you have any commentary on that?
Seth Nelson:
Well, we've talked about this before. I think we had a guest from another jurisdiction that was an attorney. It's just kind of ringing a bell for me. But what has happened in other states is, you can be barred from filing things in court when you're just using it as a sword all the time. And it's frivolous. If it's legitimate, that's one thing. But once you've shown a pattern in practice of constantly filing frivolous motions and taking up the court time and causing fees for the other side, they can just bar you from doing it. And that would be extreme, that's probably in those law review articles that we were asking them to send in.
Pete Wright:
Interesting. Interesting. Okay. Definitely send those. How do you want to receive them?
Seth Nelson:
Just send it to seth@nelsonlg.com.
Pete Wright:
There you go. You're headed here first. All right, Saddled with Spousal Support writes, "We have... I get it now. "We have horses." Saddled with Spousal Support writes, "We have horses and my future ex wants to keep them and I'm absolutely 100% on board with her keeping them. However, there is the case of costs and who pays for them? I will be the higher earner. So alimony and child support are going to be on my side. My question, how can horse case and boarding costs factor into the alimony aware in Florida? Here in Florida? My spouse does not have a job and I make good money just not enough to support two households and horses."
Seth Nelson:
Okay. So great question and we can expand this beyond horses. So under the new statute, and we say the new statute, it's the statute that was the alimony reform bill that passed or became effective July 1st, 2023. So a little over a year old now. In that statute it says, one, if you're paying alimony, there has to be a need and the ability to pay. In this question, the writer says there's a need, kind of concedes that within the question. The issue is ability to pay. I just can't handle all these expenses. Now I'm taking child support aside for a moment, we're just talking about alimony because this type of expense would, if it's for your former spouse, it would be an alimony expense. If the horses are for the children and it's an extracurricular activity, then it might slide over into child support and they would have to ask for a deviation from the child support guidelines, which is hard to get.
Okay. On the alimony front, if there's a need and you have an ability to pay, then it goes into how much. But under the new statute, generally speaking, this is the shorthand, it's not the full answer. It is 35%. We're talking about how much. 35% of the difference of your net incomes is the ceiling. So if you make $10,000 a month net after taxes and they make zero, 35% of 10,000 is $3,500, that would be the max you would have to pay. Then your former spouse is going to have some decisions to make on how many horses are we keeping?
Pete Wright:
Yeah, suddenly we can put a value to the horse, the entire horse case.
Seth Nelson:
That's right. So that's really how that plays out. But if it's child support, if it's activities for the kids, what I would argue is, "Judge, when you do the child support, the guidelines, my client makes $10,000 a month net." Let's just say the spouse makes $2,000 a month. I'm going to put my guy at eight, $8,000 a month, spouse makes $2,000 a month total of 10. He should have to pay for 80% of the boarding costs. She should have to pay for 20%. Okay. "But judge, they don't need two horses. They need one." You can make these arguments and it's only if it's agreed upon. And you can say, "I just can't afford it." Right. "We have two houses now. Everybody's standard living is going to change." And that's part of the alimony statute that people realize now. So that's just another way to look at this too.
Pete Wright:
Okay. Reconciliation Roller Coaster writes, "We attempted a reconciliation after a divorce filing. We went as far as selling the house and buying a motor home. However, we've decided that the reconciliation isn't going to work and the divorce will continue. We shared expenses during the reconciliation period and recombined accounts and purchase the motor home as a joint purchase, paid in cash, paid cash in full and split the remaining proceeds of the home equally. How will these financial changes make an impact on equitable distribution since they are after the filing date?" Somebody's been doing their homework.
Seth Nelson:
Yes, or listening to the show. So if I'm reading this right, you filed, decided to reconcile, during that period, you sold a bunch of stuff, you split the money. Now if you've kept that money all separate, I would argue you've actually accomplished equitable distribution through your actions. And now we just have a motor home to sell. Or if one of you wants to keep it and buy the other one out, you can value it and do that. So check with your lawyer or your local jurisdiction. It sounds like, I'm assuming it's a Florida question, but I could be wrong on that. But it looks like you've already just done it through your behavior as opposed through the court system and then divide it at the end. I'm assuming if you were on a motor home traveling, this is an assumption, maybe you weren't working, so we don't have post filing income that I'm worried about or if you did, you might've commingled it and that will be divided as well. But some nuances are in here, but it might be simpler than you think.
Pete Wright:
Falsely Accused Father writes, "I'm being falsely accused of having a drinking problem by my former spouse. We've already filed for divorce, but it's early in the process and she has stated she will not agree to 50/50 custody if I do not participate in an alcohol monitoring system while the kids are under 18. There are no prior alcohol-related incidents. She did file for an injunction claiming the same, but the injunction was denied. We've been sharing the kids approximately 50/50 since the injunction was thrown out. Will her current behavior of allowing me with the kids without an alcohol monitoring system factor into a judge's decision to force me into an alcohol monitoring system?"
Seth Nelson:
I can never tell you what a judge is going to decide. I can tell you what I think a judge would use or what their analysis should be because that's what the law is. But yes, if I'm your lawyer, "Judge, we've been doing 50/50. There's no information or evidence that's been brought into court that there's been anything related to this that I've done or even if I did that has negatively impacted the children. There's no nexus between the two." Okay. That'd be one. Pete, we've talked about this before. You know exactly what I would do if I represented this guy.
Pete Wright:
You want me to give it a shot?
Seth Nelson:
Yeah, go for it.
Pete Wright:
You're going to say yes, you're going to do it and by you're doing it, you're going to prove that you have no alcohol problem.
Seth Nelson:
Right. And you're not going to do it necessarily in the court system. What you're going to do is you're going to have your lawyer pay for Soberlink because then it's protected. There's some evidentiary protections there we don't have to worry about in this call, but what you're going to do is, go test, and I'm going to tell you as your lawyer, if there isn't a problem, let's do it on the down low and you're going to blow three times a day every day when you have those children. And then when we get to court, I get to say, "Judge, I've got six months, I got eight months, I've got a year of clean Soberlink tests. What more do you need?" Nothing.
Pete Wright:
What does it cost you to prove the truth if the accusation is truly false?
Seth Nelson:
That's right. Now look, you don't have to take my advice, and you're going to have 50/50 and you're going to use that and if that's the way you want to go, you're the client, you make that decision, but that's one of the benefits of Soberlink.
Pete Wright:
Got it. How about this. Endless X Entanglement writes, that's going to be the name of my band, by the way. "Is there a limit for how long a divorce can last? Mine has been ongoing for two years. My ex will not agree to anything reasonable and is asking for extreme things that my lawyer says he will most likely never get in court. Sole legal custody, majority time-sharing, et cetera. I'm just so sick of this divorce and I want to move on. If it was just money, I would give it all up to be done with my ex, but I feel like there is no way out and I'm trapped. Because there's no limit for what I would give up for my children and I will never abandon them. Is there any remedy for this? I'm tired of being falsely accused of everything under the sun and spending my life savings on attorneys.
I can't date or remarry. I can't change my name. I can't save for a home or ever be financially secure until this is over. I can't even make vacation plans because the visitation and time-sharing requests are always changing. And if I don't agree, I'm alienating. My ex was manipulative and emotionally abusive during our marriage. I feel he is allowed to continue to hurt me emotionally, financially, and through our children via the legal system, especially since there was no physical abuse. Is this what my life will be until our children are 18? Does the court offer any remedy in this situation?" That is so sad.
Seth Nelson:
First question. I love all this information people are giving us. It's very kind of them to share to help others. Is there any remedy for this? The answer is yes. Get your lawyer to set this case for trial. It's been going on for two years. Just go to your lawyer and say, "What do we need to do to get a case to trial?"
Pete Wright:
Let me ask you though, Seth, I think this is a great question. Because as an attorney, why wouldn't you have done that already?
Seth Nelson:
Yeah, I can't Monday morning quarterback this. I don't know what's been going on for the last two years. I don't know if this client got rid of one lawyer and got another one, because one wasn't moving it forward. I don't know if there was a social investigation that was ordered that's not complete. But because they're both supposed to pay half and the other side isn't paying their half, so the case is stalled. I don't know if it was set for trial and a freaking hurricane came through on trial day and now you got to push it out six months. So I don't know why we're at two years and it's not. Okay? So with all that said, yes, there's a remedy. Get it set for a trial, move it forward. Second question that they asked is, "Is this what my life will be until our children turn 18?" Depends how old they are.
Pete Wright:
I guess that's true. Sad reality.
Seth Nelson:
Sad reality.
Pete Wright:
Are they 17? Maybe The answer is yes.
Seth Nelson:
Yeah. Okay. So what typically happens is cases that go to trial. Unfortunately people are not worried as much about going to trial. It's not the unknown, they've been there. So sometimes yes, there will be a lot of-judgment after the final judgment, post-judgment, arguing, wrangling, manipulating the kids. Zebras, don't change their stripes. That's what you're dealing with. Does the court offer a remedy in this situation? The remedy, there isn't a remedy for that it went on so long. The court's not going to compensate you for that. That's why you got to get it for trial, that's why you got to just move your case forward and push and push and push to get a trial date.
And make sure that you're prepared. Whatever your lawyer is asking you to do, get it done. You don't want to be the slow person here. So your lawyer can only go as fast as the slowest person or entity. It could be the court system, it could be your lawyer isn't getting back to you. It could be the other side likes dragging this out. Push and push and push. But here's the thing, you can't date. You can't move on with your life. You got to look up that earlier question or that we had because he's looking to date too,
Pete Wright:
Maybe if you remember the down low part-
Seth Nelson:
That's right
Pete Wright:
... of that question. Yeah,
Seth Nelson:
That's right.
Pete Wright:
Back it up a little bit. "We delayed our divorce and mixed finances. How do we split now?"
Seth Nelson:
It's equitable distribution. You're going to have to file and start all over.
Pete Wright:
Oh. You got to start all over.
Seth Nelson:
Yeah.
Pete Wright:
Oh, that's disheartening. It's disheartening even for you.
Seth Nelson:
Yeah. Now listen, yeah, because it sounds like, "Hey, we were thinking about it, but then we put our money back together." And I'm like, okay, well if you guys want to just split it, split it, right?
Pete Wright:
Yeah.
Seth Nelson:
So
Pete Wright:
All right. And finally, another quickie. "What evidence needs to be provided to force a spouse to use a breathalyzer?"
Seth Nelson:
Can't force them. Judge can order it. And we kind of talked about it in that other one. Hey, where are they spending their alcohol? Do they have any DUIs? Are they getting fired from work? You got to bring that information. What incidences are there? Are they showing up to school with alcohol on their breath? I really go look through receipts on how much alcohol is being bought and consumed. Be very careful about taking pictures of your spouse drinking or passing out in the house because there's an expectation of privacy there and sometimes it's an offense, a criminal offense. So check with your lawyer on that.
But yeah, sometimes it's he said, she said so to speak. So you got to kind of come with other information. Now remember I said judge can't force them to do it. A judge can lock them up if they don't comply with court orders. The judge can say, you're not getting the children if you don't blow into Soberlink. But yeah, you want to gather as much as you can information to show to your lawyer to see what would be right to bring into court.
Pete Wright:
That's it. Seth, we did it. That was our marathon.
Seth Nelson:
Wow.
Pete Wright:
Yeah, we did it.
Seth Nelson:
Great questions with a lot of information. Because other people are having these same issues. You're not out there alone.
Pete Wright:
Absolutely. And keep them coming. We love these questions. We hope that they help you in navigating your own divorce process. If you've got something to share, a story to share, something you want to, that you think might help others, please share it. Let's get set talking about it. Visit howtosplitatoaster.com. Just hit the button that says, "Submit a question." And you know what? Maybe that's a misnomer. Maybe you submit a story for some commentary. You don't even have to have a specific question. I mean, don't go on too long, let's be reasonable about the whole thing, but tell us your story. We'd love to hear it, and we'd love to help share in support of others. Howtosplitatoaster.com. Thank you so much everybody. On behalf of Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we'll see you back here next week 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 & The Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce & 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 & Family Law. Seth Nelson is licensed to practice law in Florida.
