How a Spouse Can Cash a Joint Tax Refund

When it is time again for taxes, filing a joint return with your spouse may save you cash. The reason that some couples decide to file together is to receive special tax credits that they would not get as an individual. This type of refund will come from the IRS in the form of one refund check. Both names will be on the check and both parties are technically required to put their signature on the check before it can be cashed.

Concerns with Direct Deposit

Lately, many men and women are having the IRS deposit their refunds directly into their bank accounts. Once the money is there, it can be used or taken out by either spouse. There is no law that states that your spouse cannot have access or spend the refund, even if you happen to be the main wage earner for that tax year. When filing a tax return, there is an option for sending the refund to an individual account rather than a joint account in order to protect the funds once they are deposited.

Exception for Deceased Parties

If the return has already been sent to the Internal Revenue Service and one spouse dies before the refund is sent back, the spouse who survived does have the ability to cash the refund check themselves. In most cases, the surviving spouse will need to have a copy of the death certificate on hand as proof in order to cash the refund check. In the event the deceased does not have a surviving spouse, the refund check will then be placed into probate along with the estate. After probate is cleared, the refund may then be cashed using the clearance of probate paperwork and a death certificate. The executer of the estate will be required to sign the check and then take it to be cashed in person.

Power of Attorney Exemption

A power of attorney will allow a spouse to cash a refund check in a few circumstances, such as when the other party is in jail, out of the country or not available. The spouse must sign off on the power of attorney for it to be effective. A specific or general power of attorney will be enough for the bank. For those couples signing off on a specific power of attorney, there must be language within it that covers signing IRS refund checks. Additionally, a power of attorney will allow the spouse to handle different financial aspects while the other party cannot do so.

What Happens if a Check Gets Cashed Without a Signature?

There are options in the event a joint refund check gets cashed without both signatures. If a name has been forged on the check and the bank cashed it, fraud charges may be pressed against the guilty spouse. Under the IRS laws, it is a crime to cash a check without the signature of both parties. If a joint refund check has been cashed without the signature of the other spouse, this person has the right to get in contact with the state attorney general’s office or the Internal Revenue Service to start an investigation.

Understanding How Sole Custody Laws In Florida Work

While someone may be able to get sole parental responsibility in certain situations in Florida, sole custody is no longer an option in Florida. To head this route, a person will need the services of a good custody attorney. Trying to get sole parental responsibility can be a lengthy process. If the other parent is unreliable or unstable, then this may be a realistic option.

Sole Parental Responsibility

Sole Parental Responsibility is closely aligned with time sharing. Time sharing is considered the time that parents actually spend with the child. To get rid of the custody battles over which parent was the primary, a new bill was established that started the concept of parental time sharing and responsibility instead of custody and visitation. The Florida Governor signed the bill to help make the concept sound more pleasant.

Parental responsibility explains who makes the decisions concerning the child, such as their medical care and schooling. Each parent should be informed of any issues in the child’s life. The courts may award sole parental responsibility in cases where parents are arguing over serious issues, such as a medical procedure. Some parents feel that sole custody is similar to trying to terminate the rights of the other parent. However, that is simply not the case. Even in the most extreme circumstances, both parents will be allowed supervised visitation.

The courts may use provisions to protect the best interests of the child. One parent would have the ability to make decisions over the other one. There is a push in the Florida House and Senate to mandate equal parenting time for each parent.

Other Strategies To Consider

Dependency Court is an option, with its own court. In dependency court, the majority of custody issues are taken care of. In most cases, Child Protective Services is involved, because there are parents who have abandoned or neglected their children. Dependency courts are known to award sole custody to a parent, and is one place where sole custody actually involves the other parent being totally cut off.

Parents also have the option of using a parent plan that uses principles similar to sole custody. There must be paperwork to show the courts if the parents agree to change the parenting plan at some point. Work with a custody attorney to create a good plan.

Terminating Parental Rights

Requests to terminate the parental rights of the other parents are risky and can be a lengthy process. Under regular circumstances, a parent is not allowed to consent unless there is a step parent adoption.

Getting Sole Custody

The Florida courts prefer not to deal with sole custody cases. Its important for parents to decide what their desires are, and how important getting sole custody is. Think about the financial outcomes of this situation and check to see if there are any reasonable alternatives.

Florida Alimony Law

Alimony is not a given in the State of Florida. Unlike child support during a divorce, there is no law that states a man or woman is required to pay or receive alimony to or from their spouse. However, it’s possible a man or woman could file for alimony and be awarded this monthly stipend from a judge. Florida law allows this depending on the length of a marriage. It’s unlikely anyone married fewer than five years will be awarded alimony. A marriage that’s older than five but younger than 10 years might be awarded alimony, and anyone ending a marriage older than 17 years is almost guaranteed alimony.

What is Alimony?

If a couple in Florida decides they no longer want to remain married, one spouse might ask for alimony from the other. This typically occurs when the spouse who earns less asks for alimony. It’s not uncommon for a stay-at-home parent or someone who doesn’t have a professional degree to ask for this from a spouse who makes more money.

If a court decides to award one spouse alimony payments, it’s done according to a specific standard of living. The court looks at the life this spouse lived prior to the divorce and bases their decision on this information. There is a stipulation to this instance, however. The person who is awarded this money does not get it forever. The court will come up with an end-date so the other spouse is free from paying alimony forever. Some of the common terms that end alimony payments include, but are not limited, to the following:

– The person receiving alimony remarries

– The person receiving alimony graduates college or trade school and goes to work

– The person receiving alimony is able to get back on his or her feet following the divorce

The only time the court will not allow alimony in Florida is when the purpose is to punish an ex for the sole purpose of financial pain. A person who cannot afford to pay alimony will not be required to do so, and someone who doesn’t need alimony will not be awarded this kind of financial payment even if they want it.

Types of Alimony

Florida law recognizes several types of alimony.

– Temporary – When payments end when the divorce is finalized.

– Rehabilitative – When one spouse needs time to finish a degree or go through training to return to a previous career or begin a new one.

– Bridge-the-gap – When one person needs money for a short time to get back on his or her feet.

– Durational – When bridge-the-gap is not enough and alimony payments are extended.

– Permanent – When alimony is paid until the person receiving it dies or gets married.

No court will award alimony to anyone not married long enough, not financially able to support it, or when one person simply doesn’t need the income. It’s personal, and no two cases are the same. There are many factors court consider in this situation, and an attorney can help anyone figure out whether they might be entitled to or required to pay alimony.

Who Should Pay the Attorney Fees?

Many people believe that the person who controls the money in the marriage should also pay the attorney fees when they are the one to ask for a divorce. However, this isn’t the case when it comes to divorce and divorce court in Nevada.

In Nevada, the laws of divorce court are very clear. Nevada is a no-fault divorce state, which means that the judge in charge of the case will not award any attorney fees to one party because the other one asked for the divorce. Nevada courts will not look for fault or blame when it comes to a divorce case. Even major issues, such as adultery, excessive gambling debts, felony charges and more are not grounds for having to pay all of the attorney fees. The court simply cannot award fees this way. However, while Nevada is a no-fault state, one may still come across certain circumstances that will get a court to order the other party to take care of all or at least part of the legal fees incurred during the divorce case.

Bad Faith Acts

In some cases, one party may cause the divorce proceedings to drag. They may refuse to respond to discovery, make false claims against the other, or make frivolous motions. These acts could cause the divorce proceedings to go on longer than they should, incurring more and more legal fees as they go. In this case, the court could order the party responsible for the delay to pay additional legal fees. Acting in bad faith, or being unreasonable, doesn’t have anything to do with who is at-fault for the split.

Income Differences

In many divorce situations, one spouse may make a lot more than the other at their job. If this is the case, the community property laws of the state will come into play. Under these laws, each spouse is entitled to half of the income the other party earns. For example, if the first spouse earns $20,000 and the second earns $80,000, the court recognizes that together they earn $100,000, which will come out to $50,000 each.

The spouse who makes less may ask the court to order the other one to pay the legal fees of the case. If so, the court will first examine the financial situation of each spouse and then make their decision. This usually involves living expenses and attorney fees. Sergeant v. Sergeant was the leading case for this type of action.

 

Harry Sergeant, who was 81 years old at the time, was worth $2,000,000 in 1972. At this point in time, the wife commonly stayed home while the husband went to work outside of the home. During his divorce to his wife Matilda, the court felt that she had the right to be able to hire an attorney that was on the same level as his. Matilda did not work and did not have any access to her husband’s money. Without this additional money, Matilda would not have been able to hire a lawyer who was competent in fighting for the spousal support she deserved, giving her soon-to-be ex-husband an unfair advantage in court.

What Happens When a Party Doesn’t Honor a Discovery Request

If court rules allow discovery in a case, the parties have a right to have the other side produce evidence and answer questions. This helps the parties learn about the available evidence in the case. Knowing the evidence often helps the parties reach a resolution outside of trial.

When the other side doesn’t respond to a request for discovery, the party that wants the information has to figure out what to do. There are multiple options. The best choice depends on the type of discovery that the party is looking for and the reasons for the noncompliance.

Motion to Compel Discovery

One way to enforce the discovery demand is by asking for a court order that says the other person has to respond. To get this court order, the person wanting discovery files what’s called a Motion to Compel Discovery. They prove to the court that they filed the discovery by showing them a copy of the proof of mailing. They tell the court that the person hasn’t responded.

The person who receives the discovery demand has a chance to tell the jury their side of the story. If they think the information the other party wants to discover is protected by a privilege, they can tell the court. They can tell the court that the information is personally invasive or irrelevant to the issues of the case. The court listens to both sides and decides whether to compel the discovery.

Sometimes, to file a Motion to Compel Discovery, the person seeking the discovery must first contact the other party. They must ask them why they haven’t responded to the discovery, and they must try to work it out. In some cases, the courts require this before they listen to a motion about compelling the response to the discovery request.

Ask for admissions

If the discovery request contains a request for admissions, the person that wants the response can ask the court to assume that the admissions are true because the other side didn’t reply. This is the equivalent of receiving a default on those particular questions. Since the other side doesn’t care to deny it, the court can treat the questions as though they’re in the favor of the person that’s asking for the answers.

Filing a motion

There are certain steps that a litigant must take in order to properly serve and schedule a court motion about discovery. They must prepare the motion either in the appropriate manner or using the appropriate court form. This includes a case caption that lists the names of the parties, the attorneys, the court and the case number.

They must also prepare a proof of mailing that shows that they served the document on the other party. This document must contain the date that they sent the discovery to the party that didn’t answer. In addition, the person who files the motion must properly notice a court date about the discovery. Usually this means getting a date from the court clerk. They must prepare a notice of hearing and send that to the other party along with a copy of the motion. They must also send a copy of the motion and the notice of the hearing to the court.

Cohabitation and Alimony: Is There a Link?

It’s not uncommon for people to make major changes to their lives after they get divorced. They might move to be closer to family. They might decide to take a new job.

Sometimes, former spouses move on quickly to new relationships. This can involve cohabitation. When a former spouse sees photos of the new smiling couple, they might start to wonder how the change can impact alimony payments. This can especially be the case where the new significant other has piles of cash. The paying spouse wants to know if cohabitation without marriage is enough to end or reduce alimony payments.

Florida law before 2005

Before 2005, the law in Florida was that alimony could change or end only when a spouse died or when the spouse getting the alimony remarried. It was even difficult to modify alimony because of changed circumstances. An attempt to modify the payments because of cohabitation was usually unsuccessful. One Florida lawmaker introduced a bill to change that.

Today’s law

Today, a paying spouse can move to terminate alimony when the spouse who receives support is in a “supportive relationship.” This includes when the recipient lives with a significant other. It might even exist when a person shares finances with a friend who offers financial support.

Existing family relationships don’t count. If a receiving spouse moves in with a parent, sibling or child, that doesn’t count as a supportive relationship. In addition, a supportive relationship doesn’t exist when a person has a roommate without sharing finances.

Proving the case

To win a case to terminate alimony, the paying spouse has to prove that the supportive relationship exists. That means presenting evidence to the court. The person that wants to end the payments has the burden of proving that the supportive relationship exists. The burden is a preponderance of the evidence. That means proving that the supportive relationship is more likely than not to exist.

The court can consider whether the person and their new partner tell other people that they’re married. They might use the same last name, the same mailing address, or the terms husband and wife. The court also looks at the length of time that these things have gone on.

One of the key components of a supportive relationship is that there’s financial support. The logic behind ending alimony payments is that the person who receives the support is now getting financial support somewhere else. The court looks at whether the alimony recipient is getting help with paying bills, groceries, child care or other support.

Combined resources is another key consideration. When the person shares a bank account or other property, that’s a key sign of a supportive relationship. Shared investments or large purchases are other ways an ex-spouse may be able to prove the relationship. Working together is another way to prove the relationship.

The purpose of alimony is to provide the recipient with a standard of living that’s similar to the standard of living during the marriage. A person who receives support should consider Florida law before they make decisions to cohabitate or mingle finances. A person who pays support can use cohabitation as a grounds to move to modify or terminate alimony payments.

An Overview on Divorce by Publication

While there are a few different reasons for divorce, they usually fall into two distinct categories: at-fault and no-fault. The legalities of these reasons differ from state to state, along with the required documentation, fees, and procedures needed to file for divorce. What happens if you want to file for divorce, but you are unable to locate your spouse? It’s possible you qualify for a “divorce by publication”, which is essentially a default divorce. Again, the legalities of this type of divorce will vary from state to state, but the general requirement is that you and your spouse must have been living apart for a certain amount of time and that you cannot locate him despite an exhaustive effort.

Divorce by Publication Process

For a traditional divorce, an attorney must serve your spouse with the action for divorce at his last known address, or hand it to him personally.

However, if you’ve made an exhaustive effort to locate your spouse and have failed to do so, you can request the court order an Order of Notice by Publication. Simply put, this means you’ll run a notice to divorce your spouse in the local newspaper near the area of your spouse’s last known address. You’ll run the notice for a certain length of time.

If your spouse does not respond, your attorney can then proceed to finalizing your divorce. You can divorce your spouse even if you’re unable to locate him as long as the judge overseeing the case believes your spouse was given ample time and notice of the pending divorce proceedings.

Keep in mind that you will have to follow certain documentation procedures as well. You’ll need an affidavit of marshal service that states the publication of the notice has taken place, which will be filed with your court. You may have to file an Affidavit of Military Service, which states that your spouse is not in the military.

 

The court can still enter orders regarding the dissolution of the marital estate, including the division of marital assets and debts, along with property division. The court can also order such things such as child support and visitation rights.

Dividing and Distributing Property After a Divorce

A divorcing couple must deal with a number of issues, one of which involves the distribution of property. Some couples are able to reach a satisfying agreement on their own, but others must seek outside help from attorneys or mediators. Occasionally, the resolution of a serious disagreement requires intervention by an arbitrator or a judge.

Florida law requires an equitable division of property between spouses who divorce, with the term equitable normally meaning equal. However, an intervening judge may determine that a precisely equal distribution of property may in fact in unfair to one side.

Determining Equal Distribution

There are a number of factors a Florida court will consider when distributing assets, including the ease by which they can be divided. A business begun during a marriage would normally awarded to the spouse who started and manages the firm, with the other spouse receiving some other type of compensation. In terms of such real property as a house, the proceeds from its sale could be divided. Under another set of circumstances, such as the presence of children, the house could be temporarily given to one spouse. These are some of the other factors that a judge will have to consider when dividing property:

  • How long the couple has been married
  • The economic standing of each spouse
  • The role of a spouse, including parental responsibilities
  • The contribution of a spouse in terms of income and assets
  • The liabilities of a spouse
  • The waste or destruction of marital assets by either spouse within a designated time frame
  • The affect on one spouse of the interruption of a career or education, or the contribution of one spouse on the other’s career or education

Marital and Separate Property

After a divorce, only marital assets and debts can be literally divided. Such assets will include everything that the couple acquired during the marriage. Florida law also requires the inclusion of funds legally accrued by one spouse during the marriage, such as retirement benefits or insurance proceeds.

Property is considered a separate issue if one party owned it before the marriage or acquired it through an inheritance or as a gift from someone other than the person’s spouse. Other assets can be considered separate if related to a separate piece of property, were purchased or exchanged separately or were previously defined through a written agreement. However, separate property that increases in value during the marriage and through the contributions of either spouse are defined as marital property. A spouse can convert separate to marital property by changing the title from individual to joint ownership.

Assessing and Dividing the Property

After identifying the marital property, either the couple or the intervening court can determine its value. This can also be done with the help of a professional appraiser.

Marital assets can be divided by distributing the items themselves or by determining the value of the assets and dividing the proceeds after they are sold. It is equally important for a divorcing couple to determine whatever debt has been accrued during the marriage and who will be responsible for its payment.

Googling Through Your Divorce

Yesterday someone sent me a picture of a mug that said, “Don’t confuse your Google search with my law degree.”  It is funny, but there is some truth in the statement.  This mug got me thinking about the role of Google searches in divorces.  When I first started practicing law there were no Google searches because there was no Google:  I have been practicing law for a very long time.  Clients were forced to rely upon their attorneys for all of their legal information and advice (notice I separated these concepts).   Now, any time an issue comes up in a divorce it seems the client or the client’s family member or friend has “Googled” the issue in an effort to find an “answer.”

I am all for Google searches.  I want my clients to have all the information they need to make a well-reasoned decision on each issue that arises in their divorce.  However, some of the information on the internet is either untrue, misleading or is fact specific.    I encourage every person going through a divorce to educate themselves on the law:  if alimony is an issue you should know the factors for alimony; if child support is an issue, you should know how it is calculated; if timesharing is an issue you should have reviewed a parenting plan as it will be required.

Below I have listed some of the relevant statutes (laws promulgated by the legislature) and how to find them.    I encourage every person going through a divorce or contemplating a divorce to read the statutes applicable to the issues that may occur in their divorce.  However, I also encourage every person going through a divorce or contemplating a divorce to seek the advice of a seasoned family law attorney so they can get advice as to how the statutes apply to their unique circumstances, advice on an appropriate strategy for using the statutes to their best advantage, and advice on how previous courts have interpreted the statutes or  advice as to whether there is additional “case law” which may be relevant to your circumstances (case law is defined as law established by the outcome of former cases).

RELEVANT STATUTES:

http://www.leg.state.fl.us/statutes/ :

DIVORCE ISSUES:

Title VI:  Civil Practice

Chapter 61: Dissolution of Marriage, Support and Timesharing

Statutes which may be of interest:

61.07:  Temporary alimony

61.075:  Equitable Distribution

61.08:  Alimony

61.13: Support of children, Parenting Plan, Timesharing and Parental Responsibility

61.13001:  Parental Relocation

61.14: Enforcement & Modification

61.16:  Attorney’s fees

61.30:  Child support guidelines

PATERNITY ISSUES: Title XLIII: DOMESTIC RELATIONS; Chapter 742: Determination of Parentage

SUPPORT PAST  18 YEARS OLD:  Statute 743.07(2): This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority or if the person is dependent in fact, is between the ages of 18 and 19, and is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19.

All relevant forms:  www.flcourts.org/Go to Family Law Forms:  Don’t  pay for these forms when you can download them for free.

 

Collaborative Law: A Different Perspective

On July 1, 2017 the Collaborative Law Act goes into effect in Florida.  Collaborative law is touted all over the internet as the best thing since sliced bread.  I think the jury is still out on collaborative law and from my perspective mediation is still the best option for a peaceful, non-adversarial, cost-effective resolution of disputes.

Both mediation and the collaborative process provide for confidentiality and there is a mediation privilege as well as a collaborative privilege.  The goal of both mediation and the collaborative process is the settlement of issues through a negotiated settlement in an effort to preserve the relationship between the clients.  In one article, the writer opined that collaborative was superior to mediation because the parties were in the same room, rather than in a caucus situation (in a caucus the parties are in different rooms and the mediator goes between the rooms).  Mediation does not preclude the parties from being in the same room and if the parties are willing, an open discussion/negotiation with all parties and their attorneys present is preferred since mediation has at its heart self-actualization.

The cost of mediation is similar if not less than collaboration: Collaboration involves multiple meetings, as well as discussions with only the professionals (more money) and discussions regarding the upcoming agenda and also involves time spent preparing for the multiple meetings.  Typically there is only one mediation (although there could be several continuations of said mediation) and the mediator essentially sets the agenda for the structure of the negotiation (generally, issues easily settled go first to keep the mediation moving and build confidence in the process).

Professionals are also welcomed into the mediation process, and oftentimes the parties will agree to use one professional during their divorce case and in mediation to save money.  However, there are times when a client is more comfortable with their own financial advocate and one financial professional may not always be productive; the key is to find two professionals who are fair and work well together.  Often times the professionals will work together to come to  fair resolutions which the clients accept because they trust their professional has their back.

As in collaboration, sharing of documents is encouraged prior to mediation or in mediation.  Again, if parties desire to save money they will cooperate whether or not they are in a formal collaborative setting.

Another advantage touted for the collaborative process is that there is no time pressure in collaboration.  This can be an advantage or a disadvantage as some clients may need some type of pressure to settle and the longer the case goes on, in collaborative or otherwise, the more money is spent on fees.  Finally, if both parties agree and the court is informed the parties are working toward settlement, often times a stay can be procured to relieve the time pressure of a looming hearing or trial. The courts also prefer settlement.

The major pitfall with collaborative, in my opinion, is that if the process fails or one party decides they are no longer in a collaborative mood then both attorneys must withdraw.  The client is now without their trusted advisor, a new attorney must be retained (read money), the new attorney must spend time learning the case and all of the nuances of the case relayed to the attorney by the client during the course of the former representation (read more money), the work of the professional may or may not be used by agreement and a new professional will most likely be retained and will do their own independent review (read even more money), and all of the money previously spent was essentially wasted.  On the other hand, in a mediation, if the process fails the attorney continues to represent the client and litigation proceeds with the same professionals in place that have been advocating for the client all along.