Thinking of a “No Court Divorce in Florida”? – Think Again.

I've seen some nonlawyer document preparers marketing their services for a No Court Divorce. A No Court Divorce is possible when the divorcing parties agree on every facet of their divorce, including division of assets and debt; child support; and child custody. While a divorce in Florida is possible and even legal without either party ever appearing in court, it may not be the best idea. And here's why:

Most importantly, the lack of legal assistance and judicial oversight could lead to disastrous results. By definition, nonlawyer legal document preparers may not advise consumers [pro se litigants] about their specific legal rights or remedies; advise about legal strategies; or represent anyone in court. Pro se litigants may not be aware of rights they are giving away, and without a court hearing, their lack of knowledge could be reflected in the Final Order of Dissolution. Many of the nonlawyers preparing the forms for No Court Divorces, do not rely on mediators to ensure that the parties are in agreement. Rather the document preparer may act as the de facto mediator and is unlikely to be certified as a Florida Family Court Mediator.

One of the parties may be going along to get along, and believe that they have no choice.

The usual Florida divorce process is that one party, the Petitioner, prepares the required documents with the help of a document preparer, an attorney, or without help, and then serves the other party, who is called the Respondent. The Respondent has an opportunity to file an Answer and can agree or disagree with the documents prepared by the Petitioner. The No Court Divorce process requires that the parties are in full agreement on all issues.

I have prepared Florida divorce documents for pro se litigants for over twenty years. Very few of these divorces were completely without disputes. After all, if a couple were in complete agreement about everything, then they probably wouldn't need a divorce to begin with. When there are disputes, the court will refer the parties to a mediator to help them find a resolution.

Examine why its important to you to not appear in court.

Are you in the military and stationed overseas?

Even if you are the Petitioner in the divorce, you can request to appear telephonically. You make this request through a motion to the court.

Do you simply want to avoid the inconvenience?

If your reason for not wanting to appear in court is mostly due to convenience, you may need to consider your priorities. A divorce is a life changing event, not taking the time to attend the court hearing, and taking the chance that something goes wrong which could have been avoided is a chance that you should carefully consider.

Are there other legal issues that may come out? Outstanding warrants? A deportation order?

My first suggestion is that perhaps those issues need to be addressed prior to filing for divorce at all. But, if the divorce wasn't your idea, then you may not have that choice. However, only the Petitioner is generally required to appear in court anyway. The Respondent can waive his/ her appearance.

If your other issues are ongoing and cannot be easily resolved, you still have some choices. As the Respondent, you can waive your appearance or request to be heard telephonically. As the Petitioner, you can request to be heard telephonically, but that may or may not be allowed depending on your specific reason and the judge's discretion. Florida attorneys are specifically allowed under Florida Bar rules to offer limited services for family law. This is often called “unbundled services”, and can mean anything from a review of documents to an appearance at a court hearing.

I believe that some document preparers who aggressively market the No Court Divorce process prey on the fear of undocumented immigrants who are already afraid to appear in court. Florida family courts do not have jurisdiction over immigration matters. However, a deportation order or deportation of a parent would have an effect on the best interest of a child. So a divorce with children where one or both of the parents are undocumented, should be handled with extreme care and caution. A document preparer may not have the knowledge and expertise to know how to proceed. And, even if that document preparer has both knowledge and expertise is prohibited from offering legal advice. Parents in this situation need legal advice, not simply a way to avoid a court appearance.

An unintended consequence of a No Court Divorce can be that the divorce documents are filed in a distant Florida county. Not all Florida counties allow No Court Divorces, and it isn't necessary to reside in a certain county to file for divorce in that county. However, if there are subsequent proceedings, perhaps enforcement of child support or a modification of time-sharing, the parties would need to file these documents in the county where their divorce was filed, which may be where neither parent resides.

So, if you were thinking of filing a No Court Divorce – Think Again. You might be creating ongoing problems, by trying to avoid a court appearance.

What IS Medicaid Planning? Part II

As of October 2018, the income cap to receive Medicaid was $2250. For a single person, the asset ceiling is $2000. In my mother's scenario she automatically qualified because her circumstances neatly fit the criteria, but what about people whose income is too high, or have assets valued at more? And what about married couples?.

In Part I of this series I explained my mother's situation and how she (more or less accidentally) received Medicaid coverage that paid for her long term care. I think some of what she did, like not owning real property, was by design, but by the time she really needed Medicaid she would never have been able to think through strategies to put herself in the exact right position to receive it.

In Part II, I'm adding to Mom's situations some hypothetical examples to show how people can successfully plan ahead. First, we'll address assets. The asset ceiling for Medicaid eligibility is $2000. for a single individual. But, you must be aware of how assets are actually counted. There are countable assets and non-countable assets for Medicaid purposes.

Mom met the criteria for assets (less than $2,000), income (less than $2250. per month), and medical need (glaucoma even though it was controlled and she could see). But suppose she owned a house or maybe even two houses; or had money in the bank.

If she owned the house she lived in and it was homesteaded, then that house would not be considered a countable asset. The value of the house would be completely exempt. As of 2018, a homestead property valued up to $572,000. would be exempt. Value ceilings change, so use this as a guide, but do your research.

And, if she owned a second home its value can be exempt as well. There are two ways this can happen. If its only in Mom's name, she'd either need to rent it out at fair market value or add the names of others onto the property deed.

If its rented at fair market value, then reasonably it would generate income, which then could affect her income enough to be above the $2250. allowed per month. The asset would not be counted as an asset, but the income could be problematic, so take care. As it happens, expenses related to a rental property can be deducted from the rental income and reduce the net income. Which will in turn reduce the impact on the Medicaid recipients overall income Expenses like property management costs, taxes, insurance, necessary repairs, and advertising costs can be deducted from the rental income, before rental income is considered as overall income and puts the Medicaid recipient's income above the ceiling, making her ineligible. Remember, the property must be rented at fair market value for the asset to be considered non-countable for Medicaid eligibility.

The second way a second property can be considered non-countable for Medicaid purposes, is if the Medicaid recipient is not the sole owner. Suppose Mom owns a cabin on the lake which the family used for years as a vacation property. If there are other owners, then the cabin on the lake is not considered a countable asset. Its value is exempt. Medicaid considers a jointly owned property as non-countable because it is not in the sole control of the Medicaid recipient. If Mom plans well ahead she can add her adult children onto the deed. Remember, in our scenario, Mom is single, so at this point we're not addressing any hypothetical example in which Mom owns property with a spouse. Adding adult children onto the deed of a property is a reasonable thing to do, assuming that the children will eventually inherit it anyway. But, keep in mind, Medicaid eligibility is very strict when it comes to giving away assets to qualify. There is a five year look back rule, which is why Mom needs to plan well in advance. If she were to give away ownership interest within the five year look back period, she would be penalized, but may still eventually qualify for Medicaid. Better to think ahead and plan ahead.

In another possible hypothetical example, suppose Mom has a substantial amount of money in the bank, say $100,000. She can spend down her liquid assets. This strategy is based on the idea, that people are allowed to spend their own money. She might want to remodel her house to make it more accessible for her as she ages, like the new walk-in shower, or a more efficient kitchen. Either or both of these home improvements can put a substantial dent in $100,000. She can also buy a new car. Medicaid recipients can have one vehicle of any age or value, and it would be considered a non-countable asset. There goes another substantial dent in the $100,000.

What Mom can't do is give away her assets, unless she does so at least five years before applying for Medicaid.

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What IS Medicaid Planning? Part I

If you're confused, you're not alone. Most of us know that Medicaid is a federal health insurance program for low income people. Ok. But how are you supposed to plan to have Medicaid? Or worse, does Medicaid Planning mean planning to be low income? The short and confusing answer is – yes and no.

First, let me make clear that I am not any sort of attorney, let alone an Elder Law Attorney. Yet, I think I have knowledge and insight into all of this from my personal experiences with my mother. My mother was on Medicaid the last two and a half years of her life, and if she had not qualified for Medicaid her last years would have been much different. Without Medicaid she literally could not have been able to afford to live in an Assisted Living Facility. Mom had no assets. She had sold her house years before, did not own a car, had no investments – she only owned her furniture and personal items. Some of this was likely purposeful on her part. She had rented a condo from me at least 10 years earlier and when I asked her if I could add her name to the deed so that she could homestead the property, she refused. She said no, that in case she had to go in a nursing home, she didn't want them to be able to take the property. That's really not the rule. She was wrong on that. But, I know now how she was thinking and probably why she didn't own a house or condo anymore.

I am a Florida legal document preparer and strictly forbidden by the Florida Supreme Court and the Florida Bar to assist anyone with Medicaid Planning. However, I think, and hope, the right to free speech, First Amendment to the U.S. Constitution is still in place and on my side in trying to explain how Medicaid Planning works. This article only speaks about Medicaid Planning in Florida. Because, although Medicaid is a federal program each state has different rules as to how they administer the program.

This is Part I of a series, and first I'll explain my mother's financial situation and why she qualified to begin with. Mom was 96 years old when she applied (rather we applied for her), she was in relatively good health, and her only income was her social security income. She received around $1800. per month in social security.

For a time, she actually could and did manage financially to live in an apartment on her social security income alone. But with age she became forgetful. When we found out that Mom wasn't paying her utility bills on time, my sister asked Mom to sign a Power of Attorney and took charge of her finances. Looking to Mom's future needs, my sister and I started looking around for an Assisted Living Facility. Mom had glaucoma for many years which was controlled by using daily eye drops. She could see, but as she grew older her eyesight diminished. When she couldn't safely cook her own meals anymore, she came to live with my husband and me.

Having Mom in our house was difficult. I was happy to be able to help, and thankful that she didn't need any personal care. But, I cooked, cleaned, washed her clothes, took her to her doctors, and set up social activities for her. The social thing was the hardest for my mom, she liked being around people. I think she found my husband and I boring. Our company wasn't enough to entertain her. I was exhausted.

I was aware that Mom was entitled through her Medicaid to receive 10 hours per week of home health care. I called an agency, but they never returned my call so I just kept doing what I was doing. By now Mom had a caseworker through her Medicaid and besides knowing that Mom was entitled to home health care, I learned that she was also entitled to long term care because of her Medicaid.

So we looked around for an Assisted Living Facility that was affordable and that fit her criteria. She requested that the facility be at the beach and that she have a private room. We found one that fit the bill. If she were to self pay the cost would have been around $2400 per month -- $800. more than her monthly income. But, since she had Medicaid long term care through United Health Care, Medicaid picked up the difference. The various facilities that accept Medicaid have contracts set up with the long term care insurance providers and subsidize the costs. About a year later, when I noticed that the ALF was going downhill we moved her to a different one. The second one was slightly more expensive. Self pay would have been $3000. per month. But the difference in the self pay cost made no difference in my mother's finances. She handed over her $1800. and she received the same services as if she had paid entirely out of pocket.

My mother was able to live in an Assisted Living Facility with absolutely no out of pocket expenses. By law, she was entitled to keep $54 per month of her social security income for incidental expenses, like haircuts, and snacks. The amount sounds excessively paltry until you consider that she didn't have anything to spend her money on anyway. She was happy and comfortable with activities to engage in, and a staff to help her. The medical staff at the ALF gave her eye drops twice a day as prescribed, and gave her other pills or medications as needed. The structured environment suited her as the meals were at a set time everyday and she had menu choices. The few times that she was late for a meal, someone would knock on her door to make sure she was alright. I was close enough to the facility so that I could visit as often as I liked, and tried to go see her at least a couple of times per week. And, most importantly to her, there was always someone around to talk to.

As of October 2018, the income cap to receive Medicaid was $2250. For a single person, the asset ceiling is $2000. In my mother's scenario she automatically qualified because her circumstances neatly fit the criteria, but what about people whose income is too high, or have assets valued at more? And what about married couples?.

In parts II, III, and maybe IV, I'll try to explain these other scenarios. Both my sister and I are college educated, but finding the information, keeping up with the paperwork, and understanding the options was still daunting. Whether you're reading this for yourself, or for mom, dad, grandma, or grandpa – educate yourself as much as possible. You may ultimately need to see an elder law attorney, but having the information in advance, may save you time and money in the long run.