Author: WB Admin

Long Separations Before Divorce: When Do New Assets and Debts Become Separate in Florida?

Posted on by WB Admin

Couples who live apart for years often assume their finances split the day someone moved out. Florida law says otherwise. The line between marital and separate property is drawn by statute, not by a change of address.

The Date That Actually Divides Property

Florida’s equitable-distribution statute treats assets acquired and debts incurred during the marriage as marital, whether they sit in one spouse’s name or both. The law even presumes property gained after the wedding is marital unless a spouse shows otherwise. The classification cutoff is narrow, landing on the earliest of three events:

  • The date the spouses sign a valid separation agreement;
  • Another date that agreement names; or
  • The day one spouse files the petition for dissolution of marriage.

Physical separation is not on that list. If a couple splits in 2023 but no one files until 2026, what each spouse earns, buys, or owes in between can still fall inside the marital estate.

How Florida Courts Have Applied the Rule

In Dove v. Freer, a wife ran up $35,570.06 in credit-card debt on living expenses after separating but before filing. The trial court called it nonmarital because it arose after the couple parted. The appellate court reversed, holding that without a valid separation agreement, the filing date controlled and the debt was marital.

Earlier rulings point the same way. The Fourth DCA reached the same result in Fiala v. Fiala, where about ten years apart did not shift the cutoff off the petition date. In Yon v. Yon, the First DCA rejected the argument that a marriage being “effectively over” set the date.

How to Protect Your Finances Before You File

If you are separated but not yet divorced, the following few habits can help:

  • Note when you physically separated, but do not treat that day as the legal cutoff.
  • Consider a written agreement to set financial boundaries before filing.
  • Keep records showing the source of any inheritance or gift you view as separate.

Assets gained during the gap may still be nonmarital when they come from an inheritance, a nonspousal gift, a premarital asset, or a valid agreement. And a marital debt does not mean each spouse pays half, since courts weigh factors like each person’s finances and any waste of marital funds.

At Wickersham & Bowers, we can pin down your classification date, trace which assets and debts belong in the marital estate, and shape a filing strategy on your timeline. Reach us or call 386-252-3000.

Reverse Mortgages and Estate Planning in Florida: What Happens to the Home After the Borrower Dies?

Posted on by WB Admin

A reverse mortgage lets an older homeowner draw on home equity while staying put, but the loan does not vanish when the borrower dies. Families are often surprised that the home and the debt must be resolved on the lender’s timeline. 

How a Reverse Mortgage Comes Due at Death

Most reverse mortgages are federally insured Home Equity Conversion Mortgages, or HECMs, and HUD and FHA rules decide when repayment is triggered. A HECM generally becomes due and payable after the borrower dies once the property is no longer the principal residence of another surviving borrower, subject to deferral rules for an eligible non-borrowing spouse (24 C.F.R. § 206.27).

Federal law also makes an FHA HECM nonrecourse, so no one is personally liable for a shortfall between the debt and what the property recovers. Heirs do not inherit that gap, but the loan still must be addressed. When two spouses are co-borrowers, one spouse’s death usually does not trigger repayment while the other stays.

What Florida Homestead Law Adds

Florida treats a mortgage as a lien on the property, not a transfer of title. An heir may inherit the house, but the reverse mortgage lien rides along, so the inheritance and the debt are analyzed separately. 

Homestead rules also limit who can inherit at all. Where an owner dies leaving a spouse or minor child, section 732.4015restricts how homestead may be devised and generally bars leaving it away from that spouse or those children. Several people can gain interests in the home just as the loan is coming due.

How to Plan the Home Transfer Before It Becomes Urgent

A little preparation spares heirs from guessing later. Useful steps include:

  • Confirming whether the loan is an FHA HECM or a proprietary product, since protections differ.
  • Identifying every borrower and any non-borrowing spouse named in the loan papers.
  • Aligning your will or trust with how the homestead is titled and with Florida’s devise rules.

A record owner or authorized person can also request the payoff figure, which the servicer generally must provide within 10 days of a compliant written request. That number shows whether equity remains.

At Wickersham & Bowers, we can review your reverse mortgage documents, check how your homestead is titled, and coordinate your will or trust so your heirs are not left scrambling. To begin, contact us or call 386-252-3000.

When a Child Refuses Visitation: How Florida Courts Look Beyond the Child’s Stated Preference

Posted on by WB Admin

A child refuses a scheduled exchange, and the other parent assumes that settles it. Florida law does not work that way. A judge treats a child’s stated wishes as one factor among many, weighed only after asking why the child is resisting. 

Here is how Florida courts weigh that preference, what happens when an exchange falls apart, and what a parent should do while the current order remains in effect.

A Preference Is a Factor, Not a Veto

Florida Statutes section 61.13 makes the child’s best interests the controlling standard. A court may weigh a reasonable preference, but only if the child has sufficient intelligence, understanding, and experience to form one. Florida sets no fixed age at which a minor can cancel court-ordered time-sharing.

The weight a preference receives varies. A mature teenager’s longstanding, reasoned concern is treated differently than a younger child’s reluctance after one bad afternoon, and neither is automatically controlling. Courts also weigh whether the child reports anything unsafe and whether either parent has discouraged compliance.

A Failed Exchange Is Not Automatically Contempt

Florida appellate decisions separate a child’s own resistance from a parent’s willful interference. In Pearson v. Pearson, the child was brought to the exchange location but refused to leave the car. The court reversed the resulting contempt finding because no evidence tied the child’s conduct to the mother.

Wolf v. Wolf reached a similar result involving a comparable refusal, although the court upheld contempt over the mother’s separate failure to participate in court-ordered family therapy. A contempt finding generally requires a clear order, present ability to comply, willful noncompliance, and competent evidence, so one difficult exchange rarely settles the matter alone.

Respond to Refusal Without Taking Matters Into Your Own Hands

The existing plan stays enforceable until a court says otherwise, and section 61.13(4) gives judges remedies for an unjustified denial of time-sharing, including make-up time, attorney fees, and contempt. Parents are generally better served by continuing to follow the plan, documenting each exchange neutrally, and avoiding pressure directed at the child.

At Wickersham & Bowers, we work with Florida parents facing this kind of standoff. We can help evaluate whether enforcement or modification fits your situation. Call us at 386-252-3000 or reach out to talk it through.

Florida Timeshares in an Estate Plan: How to Avoid Passing an Unwanted Obligation to Heirs

Posted on by WB Admin

A timeshare can seem like a minor detail in an estate plan, but its assessments do not stop when the owner dies. Heirs who never wanted the property can end up owing fees or facing a lien. This article covers why a timeshare needs planning, what Florida law says about the assessments, and steps that help keep the obligation off the wrong person.

Why a Timeshare Does Not Disappear at Death

The right to a devise generally vests at death, so a timeshare passes through the estate like any other asset. The personal representative must manage and protect it until it is sold, distributed, or resolved.

A will that leaves “all real estate,” or the residue, to the children can quietly place a timeshare in the same stream as far more desirable property. Naming a beneficiary does not make the assessments disappear, and an owner cannot avoid them simply by not using the property.

What the Law Says About Assessments and Disclaimers

Florida’s timesharing statute requires disclosures explaining that assessment obligations continue while an interest is owned and that an heir who inherits it becomes responsible for the payments. A successor is also jointly and severally liable with the predecessor for assessments unpaid as of the transfer date. 

A beneficiary who does not want the timeshare may consider a disclaimer, but this redirects the interest rather than erasing it. Unless the will or trust says otherwise, the disclaimed interest passes as though that beneficiary died first, which can send the timeshare to that person’s own children instead.

Address the Timeshare Before It Becomes a Problem

Bring the deed, purchase contract, current assessment statement, and loan documents to the planning conversation, and ask beneficiaries whether anyone wants the timeshare. Resolving it during the owner’s lifetime is often more manageable, since a developer is typically more willing to process a surrender while the owner can sign directly. If the timeshare stays in the plan, a specific, conditional gift, paired with authority for the personal representative to sell or negotiate an exit, works better than a silent fall into the residuary estate. At Wickersham & Bowers, we help Florida families think through these choices before an unwanted obligation becomes the next generation’s problem. Call us at 386-252-3000 or contact us to talk through your options

When One Parent Controls School, Medical, and Activity Decisions After Separation

Posted on by WB Admin

After a separation, disagreements often surface over who gets the final word on school choices, medical care, or extracurricular activities. Florida law generally favors shared decision-making between parents, so when one parent starts making these calls alone, it can raise real legal questions.

Shared Responsibility, Specific Authority, and Records

Florida no longer uses the word “custody” in its statutes. Instead, parents share parental responsibility, meaning both retain rights and must confer on major decisions affecting the child, unless a court finds that the arrangement would be detrimental. Even within shared responsibility, a judge can still give one parent ultimate say over a defined area, such as education or nonemergency health care. 

Florida appellate courts distinguish between narrow, evidence-supported final decision-making authority and broad, catch-all control. Courts have reversed orders that effectively gave one parent sweeping authority inconsistent with shared parental responsibility. 

Recent Florida case law also stresses due process: Before a parent loses decision-making power over an issue such as schooling, that parent must receive clear notice and a fair opportunity to be heard. Separately, access to a child’s medical, dental, and school records generally cannot be denied to either parent unless a court order says otherwise, even when one parent has less say over the underlying decisions.

Document the Pattern and Ask for the Right Remedy

A parent who feels shut out should start by rereading the parenting plan, since it may already spell out who decides what. From there, it helps to keep a simple, dated record of ignored messages, missed appointments, unilateral school or medical choices, and any denied access to records or providers. 

Retaliating by withholding time-sharing or records tends to backfire and can expose a parent to sanctions. Depending on the situation, the right path forward may be enforcement of the existing order or a modification request, which requires showing a substantial and material change in circumstances along with the child’s best interests.

If school, medical, or activity decisions have become a one-sided fight, we at Wickersham & Bowers can help you understand your options under Florida law. Call us at 386-252-3000 or contact us to talk through your parenting plan and next steps.

When a Beneficiary Is Also a Caregiver: How to Build Safeguards Into a Florida Estate Plan

Posted on by WB Admin

It is common for a family caregiver, whether an adult child, a friend, or a hired aide, to also be named in a will or trust. Florida law does not forbid this. But when a caregiver is closely involved in preparing or storing an estate plan, other beneficiaries may later question whether the gift reflects the client’s true wishes. Understanding how these disputes arise and what steps can reduce the risk of a challenge helps protect both the client’s intentions and the caregiver.

Why Caregiver Gifts Draw Extra Scrutiny

A confidential relationship, one where a person trusts and relies on another, can exist between a client and caregiver, whether the arrangement is formal or informal. Florida courts examine whether the caregiver was actively involved in procuring the document.

Relevant facts include whether: 

  • Caregiver was present when the will was signed
  • Recommended the attorney
  • Knew the plan’s contents beforehand
  • Kept the original after execution

Florida appellate courts have recognized that a close parent-child relationship, routine assistance, and transportation are not enough by themselves to prove undue influence when the conduct is consistent with a dutiful adult child helping an aging parent.

What Florida Law Requires and Allows

A valid will requires a testator of sound mind who signs in front of two witnesses. A will or trust provision can be voided if procured through fraud, duress, mistake, or undue influence, and in a contest, the burden can shift once a presumption of undue influence applies. 

Florida also gives little weight to no-contest clauses; a provision meant to penalize someone for challenging a will or trust is generally unenforceable. Where a caregiver also controls an elderly or disabled client’s funds or documents, the concern can extend into Florida’s elder exploitation statute.

Build Safeguards Into the Plan

Clients who want to leave assets to a caregiver can take practical steps to help the plan withstand later questions. These may include: 

  • Meeting privately with an attorney
  • Documenting the reasons for the gift
  • Using neutral witnesses
  • Keeping caregiving compensation separate from inheritance
  • Considering a neutral trustee or personal representative when appropriate

At Wickersham & Bowers, we help Florida clients think through these details, so their estate plan reflects their actual intentions and holds up to later scrutiny. If you are weighing how to include a caregiver in your estate plan, call us at 386-252-3000 or contact us to schedule a conversation.

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