Divorce and Bankruptcy: What Happens First (And Why It Matters)

What comes first, divorce or bankruptcy? Finding yourself faced with deciding about one of these can be devastating, but when facing the prospect of both, the stress can be overwhelming. Divorce is often cited as a reason for filing bankruptcy. However, filing for divorce and bankruptcy simultaneously may not be a good idea. Before deciding about how to proceed with one or both you need to know the facts.

FACTORS TO CONSIDER BEFORE FILING DIVORCE AND BANKRUPTCY.

One of the biggest factors in making the decision about when to file divorce and bankruptcy is the type of bankruptcy you anticipate filing.

Type of Bankruptcy:

  • Chapter 7 (liquidation) bankruptcy can be completed in several months. If you qualify you and your spouse can file together, have your debts discharged and then proceed with the divorce.
  • Chapter 13 (reorganization) bankruptcy may not be good to file before the divorce. This type of bankruptcy can last several years and if divorce happens during this time you will have to go through an additional process of separating or closing the bankruptcy before you can get divorced.

Income, Debts, and Assets:

If your spouse is hostile to you and your financial interest filing bankruptcy before divorce may be more harmful to you than good. If you and your spouse are on friendly terms filing for bankruptcy first may work. This is because:

  • Filing for bankruptcy allows you to share filing fees, legal expenses, and a bankruptcy attorney. However, if your combined income is too high you may not be able to file under Chapter 7.
  • Filing together allows for all debts to be addressed under one proceeding.
  • Jointly held debt can be eliminated, and your exemption amounts may be increased. On this matter, it is best to consult an attorney to get council about the exemption laws in your district.
  • Additionally, contracts like mortgages that are more than the value of the home and car loans can be dissolved.

CAN BANKRUPTCY AFFECT YOUR DIVORCE PROCEEDINGS?

Having both legal matters proceeding at the same time can delay a divorce and any distribution of assets and liabilities. The courts will want bankruptcy to be completed before the divorce can be finalized. In a bankruptcy proceeding, the debts are tied to each person’s name and social security number so this will affect how any liabilities are handled in a divorce.

Why Is It Important to File Bankruptcy First?

Once bankruptcy is filed, either Chapter 7 or Chapter 13, an automatic stay “freezes” your property and assets. The bankruptcy court then sorts through what debts are owed and what asset is available to pay these debts. The freeze will stay in effect throughout the bankruptcy. In a divorce, a major part of the proceedings is to divide the marital assets. If these assets are tied up in bankruptcy, the divorce court cannot make any asset division decisions. This leads to unnecessary emotional drain and wasting time.

Are There Exception to Filing for Bankruptcy First?

Reasons to wait to file bankruptcy until after divorce:

  • You and your spouse’s joint income is too high to qualify under Chapter 7 rules.
  • One spouse earns most of the money so the other spouse may qualify individually under Chapter 7 after divorce and avoid any repayment plans.
  • After divorce, both of you may qualify for Chapter 7.
  • Certain assets such as a home can move to one spouse and this protects the other spouse from creditors.
  • Filing divorce first gives a clearer picture of funds available for any type of support orders.

NOT ALL DEBTS WILL BE DISCHARGED BY BANKRUPTCY.

If you decide to proceed under the Chapter 7 bankruptcy rules, you need to know that not all your debts will be discharged. Certain debts can be determined to be “non-dischargeable” and these will not be forgiven in bankruptcy court. Types of debts that you will still be responsible to pay are:

  • Child support.
  • Spousal support.
  • Student loans.
  • Court penalties and fines.
  • Attorney fees from support and custody cases.
  • Other government agency fines.

Dischargeable debts under Chapter 7 are considered a “privilege” not necessarily a right. Because of this, the debtors must follow the rules laid out in the Bankruptcy Code. If these rules are not followed, the debtor risks denial of debt discharge. To avoid denial make sure to:

  • Proved all requested tax documents
  • Do not try to defraud creditors by hiding property.
  • Never destroy any financial records.
  • Do not lie in bankruptcy documents or court.
  • Avoid violating a court order.
  • All finish mandatory credit counseling.

WHAT TO KNOW IF YOU DECIDE TO FILE BANKRUPTCY DURING DIVORCE.

In an amicable divorce often, the spouse will share an attorney. If that is true in your case and you decide to file bankruptcy during divorce you will have to hire a new divorce attorney. Attorneys are barred from representing clients that have any type of conflicting interest so each party in a divorce and bankruptcy need their own attorney. This will create an extra burden for all parties because once the parties in the proceedings find new attorneys they need to be updated about the case. Additionally, there will be added legal fees and costs that add additional hardship to the spouses.

Whatever the reason that you are deciding to file for divorce and bankruptcy always consult an attorney. Both processes can be extremely complicated, and they will be stressful. Visions of starting over in your new life are wonderful but if the details of your court filings are not handled appropriately your new life may not be so grand. Know the facts and make informed decisions.

WHY FLORIDA LAW ADVISORS ARE THE BEST FOR YOU.

You won’t find any better attorneys than those at Florida Law Advisers, P.A. Florida Law Advisers are nationally and locally recognized for their excellent legal counsel. The firm has been featured in numerous publications throughout the country and has been rated as A+ by the Better Business Bureau. The goal at Florida Legal Advisors is to “deliver high-quality legal representation at a reasonable cost.”

Contact us today and schedule a confidential consultation with one of our divorce or bankruptcy attorneys. The first consultation is always no cost to you. We will carefully review your case and help you to determine the best course of action for your unique circumstance.

uncontested divorce

Generally, there are two types of divorces in Florida, uncontested and contested divorce. Florida is a “no fault” state, therefore; you won’t have to litigate, provide evidence of adultery, or other reasons to file for divorce. See Florida divorce law. However, there can be extensive litigation over alimony, child custody, and other issues as part of a no-fault divorce in Florida. If you need assistance with a contested or uncontested divorce contact a Tampa family law firm for assistance.

What is an Uncontested Divorce?

In an uncontested divorce, the two parties reach an agreement on all of the issues prior to filing the case. The major issues that come up in a divorce include division of assets, division of debts (See Florida Statute 61.075), Parenting Plan (including parental responsibility and time sharing, formally known as custody;) child support; alimony; name changes, and other issues.  It is recommended to have a divorce lawyer assist with the case, but it is not required. There are so many complex issues to negotiate, it is best to work with an attorney to ensure everything is addressed and your rights are protected.

Normally, an uncontested divorce will be a lot less expensive and time consuming than a contested case. Most divorce attorneys in Tampa charge $250 – $450 per hour. The more time spent having to negotiate with the other side, attend court hearings, and file documents with the court the more it will cost you. A flat fee divorce can eliminate the need for all of these extra costs. Additionally, it can streamline the divorce process and allow the court to enter the dissolution of marriage much sooner. In many instances, a flat-fee divorce can be completed in as little as 30 – 45 days. For more information about our flat-fee divorce click here.

What is a Contested Divorce?

In a contested divorce, the two parties are unable to reach a full agreement among themselves. If the parties agree on 99% of the issues it will still be considered contested because there is 1% left for the judge to decide. If a Judge needs to get involved, the divorce is classified as contested. The same issues as above will arise, but the Judge will decide the division of assets and debts, the Parenting Plan, child support, alimony, name changes and any other issues that may arise. For more information on the differences between a contested and uncontested divorce contact a family law attorney in Tampa.

Flat -Fee Divorce Law Firm

Florida Law Advisers, P.A., offers a low cost, flat-fee for uncontested divorce cases. The flat-fee amount will vary based on the circumstances of each individual case. Therefore, to get a quote and speak with a  divorce lawyer in Tampa please call us at 800 990 7763. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help!

rehabilitative alimony

There are many types of alimony (spousal support) available under Florida divorce law.  See Florida divorce law 61.08.  Two easily confused types of alimony are Bridge-the-Gap and Rehabilitative alimony.  Bridge-the-Gap alimony is designed to help a person transition to become a head-of-household. On the other hand, rehabilitative alimony is to financially support a specific plan to obtain financial independence. This area of the law can be confusing, please contact a divorce law firm in Tampa for assistance.

Purpose of Florida Rehabilitative Alimony

The purpose of rehabilitative alimony is to help a spouse who served in a supportive role learn or develop new skills, so that they can live a fruitful life on their own. See Florida divorce case Canakaris v. Canakaris. Some common examples of rehabilitative spousal support are attending college, trade school, or assistance with obtaining a professional license. In order to receive this form of alimony, you must have a specific plan and intent to execute that plan.

Modifying or Terminating Rehabilitative Spousal Support

Rehabilitative spousal support can be modified or terminated based on the fulfillment or lack of fulfillment of the rehabilitative plan.  For example, if the rehabilitative plan was to go to cosmetology school and the recipient drops out, the rehabilitative alimony may be terminated by law.  Conversely, if one determined that cosmetology school was not for him or her, the rehabilitative plan could be revisited (with the assistance of a divorce law firm ideally) so that a new plan can be established or modified.

Divorce Law Firm in Tampa

Rehabilitative alimony is a complicated topic and there are many types of alimony in the state of Florida.  You should speak with an experienced divorce attorney in Tampa to ensure that you are receiving or paying the right type and amount of alimony for your situation. Florida Law Advisers, P.A. has years of experience in both advocating for and against alimony. Our attorneys know what factors are important to Florida family law judges and can aggressively fight for your rights. If you would like to speak with a divorce lawyer in Tampa call us today at 800 990 7763.

 

divorce in Florida

For many, filing for divorce in Florida can sometimes be a long and tedious process. Florida divorce law has a complex web of statutes  which must be successfully navigated. However, a divorce case in Florida can be summed up in many ways by using the PEACE acronym. The PEACE acronym represents all major parts of a typical divorce in Florida and can help guide you through the process. Each part of the PEACE acronym is important, so if you need assistance contact a divorce law firm in Tampa for assistance.

P:  Parenting Plan

If the parents are able to reach an agreement on the terms of child custody among themselves a judge will typically ratify the agreement, so long as the terms do not conflict with Florida child custody law or policy.  If there is no acceptable agreement, the judge will decide the terms of the parenting plan based on what the judge considers to be in the best interest of the child. Florida law does not give any preference to mothers or fathers when deciding child custody matters. Instead, the custody arrangement will depend on the specific facts and circumstances of each case. See Williams v. Williams.

E:  Equitable Distribution for Divorce in Florida

In a Florida divorce case, marital assets and liabilities are subject to an equitable distribution. Generally, the court will start with the premise of dividing marital assets and debts 50/50. In Florida, the law requires that a court equally distribute a marital asset unless a “legally sufficient justification for an unequal distribution is given based on the relevant statutory factors.” See Hitchcock v. Hitchcock. For advice on how to unequally divide marital assets contact a Tampa divorce attorney to schedule a consultation. Obtaining an unequal distribution of a marital asset in Florida can be difficult without legal counsel.

A:  Alimony

Alimony, which is also frequently referred to as spousal support is payment from one ex-spouse to the other. The fundamental principal guiding an award of alimony is the disparity in financial resources of the two parties. Under Florida divorce law, there are five types of alimony a judge can order as part of a divorce in Florida. The forms of alimony are; temporary, bridge the gap, rehabilitative, durational, and permanent alimony. See Florida divorce law 61.08. A judge may award any combination of these types of alimony. Further, alimony payments can be made periodically or as a lump sum.

C:  Child Support with Divorce in Florida

In a case involving minor children, Florida courts will defer to the Florida Child Support Guidelines for determining child support. The Guidelines outline how much child support will be required by each parent based on their net income, the number of children involved, and the custody arrangement. In a Florida divorce case, the judge will strictly follow the Florida Child Support Guidelines. However, the court does have some discretion to deviate from the guidelines, when it is appropriate to do so.

E: Everything Else

Do you want your name changed?  Do you need to file bankruptcy in addition to divorce?  There may be parts of your family law case that you didn’t know existed. Contact an experienced divorce lawyer for a comprehensive strategy on how to best handle your case. If you need assistance with divorce case in Florida contact Florida Law Advisers, P.A. to schedule your free consultation with a family law attorney in Tampa.

 

child custody case

One of the most difficult aspects of a divorce or child custody case is the development of a Parenting Plan. The Plan governs the time-sharing and custody rights for each parent.  Florida law is gender neutral, meaning there is no preference for or against the father or mother, or for or against any specific time-sharing schedule in a child custody case. Thus, if you need assistance with a child custody case you should contact a child custody law firm in Tampa for counsel. Many law firms in Tampa will offer a free consultation for these types of matters.

Best Interests of Child

In creating a Parenting Plan, it is important to know that Florida favors frequent and continuing contact between both parents and their child after they separate or divorce.  This includes encouraging parents to share the rights, responsibilities and joys of child custody.  In creating a Parenting Plan, the court’s primary concern is the “best interest of the child.”  The court will determine the best interests of the child by evaluating all of the following factors affecting the child and the circumstances of the family:

Factors a Judge Will Consider in a Florida Child Custody Case

The factors considered by judges in a Florida child custody case are located at Florida Statutes section 61.13(2)(c)2 and include the following:

  • Whether both parents have demonstrated an ability and willingness to facilitate and encourage a close and continuing parent-child relationship, to honor a time-sharing schedule, and to be reasonable when changes are required.
  • Whether both parents have demonstrated an ability and willingness to determine, consider, and act upon the needs of the child as opposed to their own needs or desires
  • The length of time the child has lived in a stable and satisfactory home environment, and whether it is the child’s best interest to remain in that environment.
  • The moral fitness of the parents. When considering a parent’s moral fitness, the court will focus on whether the parent’s conduct has had or is reasonably likely to have a direct adverse impact on the child.  The mere possibility of an adverse impact is not enough., see child custody case McKinnon v. Staats.
  • The reasonable preference of the child, if the court believes the child is reasonably able to express a preference. A child’s preference, however, cannot be the sole factor for the court to determine a parenting plan.  See Florida child custody case, Garvey v. Garvey.
  • Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
  • The particular parenting tasks and division of parental responsibilities customarily performed by each parent before and during the court case, including the extent to which persons other than the parents have exercised parental responsibilities.
  • Whether both parents have demonstrated an ability and willingness to participate and be involved in the child’s school and extracurricular activities.
  • Any other factor that is relevant to the case and best interests of the child.

Child Custody Law Firm

Your Tampa family law attorney should discuss each of these factors with you in detail so that he or she can present the court with evidence regarding those factors that may apply to your case.  If you would like more information, please contact us to schedule a consultation with a child custody lawyer in Tampa. The Tampa child custody attorneys at Florida Law Advisers, P.A. know what judges consider when determining the best interest of the child and use their knowledge of the law and litigation skills to aggressively represent our clients. To speak with a family law attorney call 800 990 7763, we are available 24/7.