I am divorced and I pay alimony. Can I stop paying alimony if I file bankruptcy?

Generally, no.  

Spouses must continue to pay alimony even if they file 
bankruptcy. This includes the payment of past due alimony.  
Section 523 is entitled “Exceptions to discharge.”  A person 
cannot discharge (or get rid) of the debts listed in that section. 
Subsection (a)(5) states that a spouse cannot discharge a 
“domestic support obligation.”

The bankruptcy code defines domestic support obligation at 11 U.
S.C. 101(14A), and it includes obligations that are in the nature of 
alimony, maintenance, or support of a spouse or former spouse.

Sometimes, parties will disagree with what is truly “alimony” or a 
domestic support obligation.  

For example, what if the state divorce court makes a spouse pay 
his or her spouses’ attorneys’ fees and costs in the divorce case?

If the bankruptcy court rules the a all or a portion of the alimony 
is not truly a domestic support obligation, then the spouse could 
possibly modify that obligation or get rid of it in the bankruptcy 
case.  

Bankruptcy courts look at the substance of the obligation as to 
whether it constitutes alimony, maintenance, or support, largely 
disregarding what the parties or the state court called the 
obligation.  

The question is whether the obligation is “in the nature of 
support.”  A debt is “in the nature of support” if, at the time the 
debt was created, the parties intended the obligation to function 
as support.  The key determination in whether a debt is non-
dischargeable alimony or a domestic support obligation under the 
bankruptcy code is the “intent” of the parties.

Whether a given debt is in the nature of support is an issue of 
federal law. Cummings v. Cummings, 244 F.3d 1263 (11th Cir. 
2001), citing In re Strickland, 90 F.3d 444, 446 (11th Cir. 1996).  

Although federal law controls, state law does “provide guidance in 
determining whether the obligation should be considered ‘support’ 
under § 523(a)(5).” Id.

In short, the bankruptcy code was written so that a person could 
not use “the protection of a bankruptcy filing in order to avoid 
legitimate marital and child support obligations.’” In re Proyect, 
503 B.R. 765, 773 (Bankr. N.D. Ga. 2013)(quoting H.R.Rep. No. 
103-835, at 54 (Oct. 4, 1994), reprinted in 1994 U.S.C.C.A.N. 
3340, 3363).  Instead, a spouse can retain a divorce attorney and 
apply for relief with the state divorce court that originally awarded 
the alimony in order to reduce or modify the spouse’s alimony 
obligations in light of the financial hardship.  

Bankruptcy and divorce issues are often complicated.  

It is important that you retain an attorney if you believe that you 
might have any bankruptcy or family law issues.

With questions about family law, please contact William S. Foley, 
Esquire, with William S. Foley, P.A., at 
www.wfoleylaw.com.  

With questions about bankruptcy law, please contact Alfred 
Villoch, III, Esquire, with Savage, Combs & Villoch, PLLC, at
www.savagelaw.us.

Guest Blog Written By Alfred Villoch III
of Savage, Combs & Villoch, PLLC - September 2014
All rights Reserved

What is Baseball’s Paternity List?

Many fans of America’s favorite past time were surprised to hear 
about this when it first surfaced in the news a few months ago – I 
know this author was – but it’s true, Major League baseball has a 
“Paternity List” which allows players to lawfully leave a team when 
their spouse is in the process of delivering birth to a child.

Pursuant to Major League Baseball’s 2011 collective bargaining 
agreement with the Player’s Union, major league baseball players 
are afforded three days of paternity leave. This provision came to 
light when New York Mets second baseman, Daniel Murphy, 
exercised his right to paternity leave in early April 2014 to join his 
wife and new son.

Murphy’s decision to take paternity leave was not greeted 
enthusiastically by many in the sports world. 
Boomer Esiason 
suggested that Murphy’s wife should have had a “c-section” before 
the season so that Murphy would not miss any games.

Not cool Boomer.

Additionally, New York radio host 
Mike Francesa on WFAN was 
equally upset with Murphy and went as far to say that Murphy’s 
wife really didn’t need him to be there in the first few days 
following birth.

The surfacing of Murphy’s case in the media raises some unique 
questions.

For example, should professional athletes be given paternity leave 
or is the obligation to their teams and fans too great to justify 
paternity leave?

Furthermore, is it time that the country in general starts a 
comprehensive dialogue on the subject of paternity leave for all 
Americans?

In the end, this case is yet another example of how the fields of 
family law and policy have become completely intertwined with 
multiple facets of American society.

It’s difficult to say with certainty how the concept of paternity 
leave will evolve but it seems likely that the topic will remain 
within the public discourse.

One thing is for sure, at least for now, paternity leave is here to 
stay in Major League Baseball.

Prenups: I do or I don’t


Why should we get a prenup?
No one should enter into a marriage anticipating
       failure but premarital agreements (aka prenup) protect both
   parties and their families should something go wrong.
       Advantages include:
       •      Avoiding Litigation Costs
       •      Protecting against Fears of Family Members
       •      Protecting Family Assets
       •      Protecting Business Assets
       •      Protection Against Creditors and debt
       •      Estate planning/Predetermined Disposition of Property

Such agreements also open the door to “full disclosure” 
concerning assets and debt.

What is the difference between a prenuptial agreement 
and a premarital agreement?
Nothing significant…A pre-nuptial, or premarital agreement, is 
an agreement between two prospective spouses made before 
marriage and becomes effective when you and your spouse 
marry.

In Florida the agreement is referred to as a “premarital 
agreement” which means an agreement between prospective 
spouses made in contemplation of marriage and to be effective 
upon marriage.

Are there specific requirements to make a premarital 
agreement valid?
Yes. Under Florida law, among other requirements, a premarital 
agreement must be in writing and signed by both parties and 
enforceable upon marriage. You can speak with William S. 
Foley, PA for other advice on ensuring that you premarital 
agreement is valid.

How does Florida handle premarital agreements?
Florida Statute §61.079 follows a version of the Uniform 
Premarital Agreement Act (UPAA) which governs premarital 
agreements entered on or after October 1, 2007. The UPAA 
follows Florida Family Law Rules of Procedure.

Can we do it ourselves?
In the eyes of the law, marriage is a contract between two 
people. A premarital agreement is also a contract, and if done 
incorrectly can be invalid or misconstrued to the original intent 
of the parties/couple.
*It is always best to have a professional look over any contract.

Do we both need lawyers?
It is a contract…the drafting attorney is doing what is best for 
his client. It only makes sense to have someone look out for 
your best interest as well.

What makes a premarital agreement unenforceable and 
who decides the enforceability?
An agreement is unenforceable if it was involuntary, the product 
of fraud, duress, coercion, or the agreement was 
unconscionable.

Courts occasionally invalidate premarital agreements, these are 
normally ones prepared without the help of attorneys, or ones 
where there was coercion in getting one partner’s signature.

If you have a properly drafted agreement, and there was no 
duress, there is a better chance that it will stand up in court

What should be included in a premarital agreement?
The specific needs of each couple will vary. But the Florida 
statute recognizes the need to contract on property, spousal 
support (you should speak to an attorney regarding the state of 
the Law in Florida on temporary support, as this is a tricky area 
of the law), creation of a will or trust, benefits from life 
insurance, the choice of law governing the construction of the 
agreement, and any matter including personal rights and 
obligations that does not violate public policy of this state or 
law imposing a criminal penalty.

Does it have to be done before we are married?
A premarital agreement must be completed and signed before 
the marriage to be a “pre-marital” agreement. Only premarital 
agreements fall under the UPAA guidelines.

But a “post-marital” agreement (or Postnuptial Agreement) can 
be drafted at anytime during the marriage and can accomplish
the same objectives as a premarital agreement.

Do you also draft Postnuptial Agreements?
Yes! Postnuptial Agreements are agreements entered into 
AFTER the marriage. We prepare those as well and they can be 
very helpful even if the premarital agreement was not entered 
into prior to the marriage.

How long before the marriage should we make a 
premarital agreement?
Depending on the complexity of the issues and the parties’ 
financial status, drafting the agreement should be done several 
months before the wedding but the signing of the agreement ca 
be done anytime before the ceremony.

Are premarital agreements expensive?
No. Compared to the cost of an average wedding or an average 
divorce, a premarital agreement is a bargain. The best way to 
think about it is like buying insurance: it’s a small one-time cost 
for something you never hope to use, but if you ever need it, 
you’ll be glad you have it, and it will save you a lot of money.

Can a premarital agreement be terminated or modified?
Yes, after marriage, a premarital agreement may be amended, 
revoked, or abandoned only by a written agreement signed by 
both the parties.

Call William S. Foley, a Tampa Prenup Lawyer at (813) 272-
2345 so that wcan set up an initial consultation on
your prenuptial agreement.

What is Mediation?

Mediation is an opportunity to get things done. 

What we mean by that is that litigation is time consuming, costly and many times results in an outcome that would be more advantageous if the parties were able to come to a settlement as it costs money to get to the judge. 

Mediation is that option to get the case moving in the right direction to come to a settlement. 

It takes a meeting of the minds. 

It takes restraint. 

It takes compromise. 

It also takes reason and sometimes what would seem like a little bit of luck but attorneys know that a lot of times through hard work, preparation and consistent contact with their clients prior to the mediation helps prepare them to better informed and more able to make a decision at the mediation. 

Mediation itself in Florida is confidential and privileged.  In family law and divorce cases, which is the subject of this article, the relevant rules provide for confidentiality of mediation and settlement negotiations that take place at mediation.  So if the parties do not enter into a settlement agreement, offers and counteroffers made in compromise should not be used against them later. 

Confidentiality is very helpful as sometimes parties may be more willing to offer more than they would be willing to offer when they go to court, so then they want to make sure that these offers of compromise and settlement are not used against them later if the mediation does not work out, so it gives a forum for parties to feel comfortable to make their best offer.

A mediator is neutral and works for the agreement. The mediator is NOT the Judge. The mediator does not make decisions for the parties; the mediator helps facilitate an agreement. If you can’t agree, that’s when you turn it over to the Judge for the Judge to decide.

If you are interested in mediation in Tampa, Florida, Saint Petersburg, Florida, Clearwater, Dade City, New Port Richie, Plant City, Sarasota, Bradenton, Bartow, Lakeland, Spring Hill, Hernando, please give our office a call at (813) 272-2345 to speak with a divorce and family law lawyer that deals with mediation and is experienced in settling and litigating divorce and family law issues.

By: William S. Foley, Esq.

Jurisdiction: Florida

 http://www.wfoleylaw.com

Is Florida a ‘No Fault Divorce’ State?

The concept of no fault divorce is one that has evolved over time as state legislatures attempted to redefine the legal rules surrounding the dissolution of marriages. Historically, states required parties to a divorce to prove ‘fault’ regarding the demise of the marriage. For example, New York required that a party prove cruel and inhuman treatment, adultery, confinement, or abandonment, in order to successfully dissolve a marriage. The policy reason behind this was that states wanted to protect the institution of marriage and encourage reconciliation amongst the parties.

So, what happened?

The simple answer is that state legislatures came to the realization that divorces often do not involve ‘fault’ in the traditional statutory sense. Instead, couples may often be incompatible, unhappy, and simply feel that their marriage is broken beyond repair. For this reason, states opted to introduce the concept of ‘no fault divorce.’

What is no fault divorce?

No fault divorce essentially means that the parties to a divorce only have to show that the marriage is irretrievably broken or there are irreconcilable differences between the parties.

How do I file for a no fault divorce in Florida?

In Florida, the process for filing for a no fault divorce is simple. First, a legal marriage must exist. Second, one of the parties must have been a permanent resident of the State of Florida for a minimum of 6 months prior to the initiation of divorce proceedings. Third, the parties must properly allege that the marriage is irretrievably broken or that irreconcilable differences exist within the marriage.

But what if fault exists?

Often divorces are precipitated through the fault of one of the parties. For example, adultery is a common catalyst for divorces.

So, what role does adultery or other types of fault play in divorce proceedings?

Surprisingly to most clients, adultery is not considered in the decision to grant a dissolution of marriage. However, adultery or other types of fault may play a critical role in the allocation of marital assets through equitable distribution. For example, if your spouse is engaged in an adulterous relationship, and makes expenditures on that relationship, than you may be entitled to receive a share of what your spouse spent on their adulterous relationship. While, adultery may not play a pivotal role in the decision on whether or not to grant a divorce, it can become a crucial factor in determining proper distribution of marital assets.

In Conclusion, Florida is a ‘No Fault’ State and William S. Foley, PA can help you in your divorce. Please call today at (813) 272-2345 to speak to an attorney about your divorce and family law questions.

 Click here to visit the William S. Foley, PA website for more information

Why Should I Retain a Collaborative Divorce Lawyer?

Some people think that a collaborative divorce is appropriate for 
their situation, when it may actually not be appropriate. But the 
greater percentage have never even heard of collaborative 
divorce, or if they have don’t know the benefits. So this is an 
article to go over some of the benefits of Collaborative Divorce:

Some benefits of Collaborative Divorce —-

A.        
Humane Divorce —- Some people feel that the normal 
way of litigation is a very impersonal stress-inducing, sometimes 
pretty traumatizing event that occurs in their life.  Collaborative 
divorce is not the easy thing to do and is still challenging, but is a 
much more humane way of dealing with such an emotional time 
in someone’s life.  

B.        Team Approach —- In a collaborative divorce everybody 
in the team, which would be the two attorneys, the two parties 
and two experts, one financial and one mental health expert, work 
together as a team to get to an agreement.  So, during team 
meetings where all six of the team members will sit around the 
table and try to make sure they can figure out what it is the 
parties and their children and their lives best interest.  

C.        No posturing  —- What makes this so much different 
than a normal divorce proceeding is that the aspect of attorneys 
posturing back and forth and other litigation tactics are not 
necessary and are not used as they are working towards a final 
resolution.  

D.        Carrot at the end of the stick —- The carrot at the 
end of the stick the parties to follow through to conclusion is that 
if the parties do not settle during the collaborative process, they 
must fire their attorneys and the experts and start all over to file 
for divorce.  So, this is much different than a normal divorce 
proceeding and it entices people to try to find a way, if at all 
possible, to settle.  There’s different statistics that we’ve seen, but 
it appears that somewhere between 90 to 95 percent of 
collaborative divorce cases ultimately settle and are successful.

http://www.wfoleylaw.com

The Gray Divorce: Divorce in the Golden Years of Life

            Coping with and managing a divorce at any stage of life is a difficult concept for most people to master. For some people, this may be the first time that they have had to get a job in order to support themselves. For others, it may mean that they are now single parents. The simple fact is that post marriage life can be extremely difficult to adapt to and can bring a whole list of financial and emotional worries. This is particularly true for those people who are at least 50 years old.

             According to a study by the National Center for Family and Marriage Research, the divorce rate for those aged 50 and over doubled in the United States from 1990 to 2010, and today, divorces of the 50 and older group account for approximately 25% of all divorces in the United States.[1]

            Handling and managing a “gray divorce” is something that must be done with extraordinary care. Often couples may have accumulated significant wealth at this stage in life which may have resulted in vast investment portfolios and property investments. In other cases, couples may be living on a fixed income. Whatever the individual facts of the particular case, divorces in the later stages of life involve factors that are not traditionally involved in divorces and special care must be afforded to them.

            These types of divorces can result in new, unforeseen obstacles and can cause great financial worry. As so, it is especially important that when considering an attorney, that you choose one who recognizes and has the ability to deal with the unique circumstances accompanying a divorce in a later stage of life.

           William S. Foley, P.A. has extensive experience managing and successfully resolving gray divorces. Whether you are a Fortune 500 CEO or a stay-at-home-spouse, William, S. Foley, P.A. will ensure that your rights and privileges are protected as our team helps to walk you through the divorce and settlement processes.

Do you want to change your name?

Petitions for a name change can be filed for either an adult’s name change, for a family, or for a family member such as a minor child.  There are other types of petitions for name change but the most commonly used are the name change of an adult where they wish to change either their first, last and/or middle name.

Of course, a name change can be changed back to a party’s former name within a divorce proceeding however sometimes parties do not change their names at the end of the divorce and they choose to at a later time or they choose to change their name for a whole host of other reasons.  There are many situations out there as we see in the media for celebrities and other public figures changing their names for various reasons. 

The procedure itself is not free.  You have to pay a filing fee.  In Hillsborough County, Florida it is over $400.00 for filing fee.  If you retain an attorney there would be attorney’s fees associated with the case, and if you’re changing the name of a minor child there are additional restrictions and obligations. As the primary focus of this article is changing the name of an adult for yourself, if you file for the name change, you would be filing a petition for name change and at the clerk’s office paying the filing fee. You would then would be required to set a hearing on your petition for name change, and then at that hearing in front of the judge, the judge would ask specific questions related to if you are using this name change because of any bankruptcy, criminal proceeding or any other type of nefarious activity to obtain the name change.  The court wants to make sure this is being done for no criminal or legal ulterior motives.  So at that hearing that is when they will ask the questions regarding the change of name and that is why it is necessary to have a hearing on the final name change.

Another aspect of the name change proceeding is that you will also have to be finger-printed and there is a very specific procedure for doing so, and this must all be done in most counties in Florida, at least the finger-printing portion prior to the filing of the petition.  So there’s not as many steps as some other family law proceedings, but there are still very specific steps and procedures to follow to change a name, but at that hearing when the court enters the final judgment if they are satisfied with your testimony, that is when your name would be officially changed.

By: William S. Foley, Esq.

http://www.wfoleylaw.com

Jurisdiction: Hillsborough, Pinellas, Pasco, Polk, Hernando,  Manatee, Sarasota, Orange counties - Florida

 

 

Florida Equitable Distribution of Property and Liabilities

Florida Statute Chapter 61.075 governs equitable distribution of property, assets and liabilities.  The courts take a stance that upon marriage, everything that is put into the marriage, including property, assets and liabilities, until the date that the parties file for divorce is all part of the marital pot.  Initially, the presumption is that the marital pot is to be distributed equally, therefore, 50‑50 equitable distribution.  However, if there are proven justifications that the marital pot should not be divided equally then it may be an unequal distribution.

Some of the circumstances where the parties would have an unequal distribution are if there was a depletion of marital assets for purposes of an extramarital affair, or other conduct which intentionally wasted, depleted or destroyed an asset. A few of the other factors the Court may look at is each parties’ contributions during the marriage, duration of the marriage, interruption of education or careers, or other factors to do justice between the parties.  The courts normally will take a presumptive 50‑50 stance with regard to property, assets and distribution of liabilities; however, there are circumstances where the parties might receive an unequal distribution.

By: William S. Foley

Jurisdiction: Florida

Unique Divorce Service in the Southwest

A unique service that has been offered for two decades in San Diego is now being offered in Las Vegas as well for those seeking information about a potential or pending divorce. An event titled “Second Saturday Divorce Consultation Service” hosts events on the Second Saturday of every month at different locations. So far, the events have only taken place in the Southwest. Bordering the unconventional, the purpose of these events is to inform women that divorce does not have to be as financially draining for the parties involved as is commonly understood.

Organizer Jacqueline Thornhill takes a “glass half-full” approach in educating women on the details of divorce, focusing on “moving a woman’s life forward in as positive manner as possible.” The event showcases financial planning, family therapy, mediation, and legal counsel. The event helps women to create both short and long term financial plans and provides access to expert advice and services related to divorce.

See Phelps, Laura. View. “Monthly Events Help Couples Navigate Divorce”. http://www.lvrj.com/view/monthly-events-help-couples-navigate-divorce-186041611.html