Divorce in Florida.
Do I really need a lawyer? People generally have a lot at stake when they get divorced: financially and emotionally. The laws and rules which are used by lawyers and the Court are often complicated and it is probably not worth trying to represent yourself. You would need to learn in a short period of time what competent attorneys have spent years learning. Unfortunately if you don’t do well in representing yourself you may lose many times over the money you thought you were saving in attorney fees.
There are basically two types of divorces, contested and uncontested. Uncontested means that everything is agreed to by the parties, including but not limited to child support, timesharing with minor children, who's going to pay for health insurance and uncovered medical expenses, life insurance so that there will be money for children if a parent dies, division of property, division of debts, alimony, (or waiver of alimony) and all other issues that pertain to a particular matter. A contested divorce is where one or more issues cannot be resolved between the parties and the Court has to decide these issues in a trial without a jury.
We provide families with structure during this unpleasant time. There are many considerations in a divorce proceeding:
- One party must be a Florida resident for at least the six month period immediately preceeding the filing of the divorce petition.
- Custody of children (the concept of custody is no longer part of the statutory scheme in Florida, timesharing is the ultimate issue).
- Visitation with children.
- Shared parental responsibility (that is both parents take part in the decisions affecting their minor children).
- Child support (including health insurance and day care expenses) can be dependent on a number of factors including how much time a parent spends with the children.
- Division of property acquired during marriage (including pension/401k type programs, and businesses) and division of debts. Note that the assets to divide would usually not include inherited property, property brought into the marriage by one spouse, or property acquired via a gift from a third party solely to one spouse (even if such gift is during the marriage). But one exception to this principle may be where the property has been put into both names.
- Disposition of marital home.
- Relocation issues (that is should a parent wish to permanently leave the area with the minor children).
- College expenses for children - Courts cannot order a party to pay for a child’s college, but if the parties come to an agreement that one party is to provide such support, then the Court can enforce the agreement.
- Restoration of maiden name.
- Must be full financial disclosure of income, assets, liabilities and expenses by each party to the other. At a minimum under the rules each party needs to provide the other with a sworn financial affidavit. Also, a child support guidelines worksheet needs to be submitted to the Court where kids are involved.
- Issue of whether your spouse is in such superior financial shape compared to you such that your attorney fees should be paid by him/her (assuming you can't afford the fees).
How do I proceed with a dissolution of marriage (divorce) in Florida?
In general one party needs to testify that the marriage is "irretrievably broken" in other words it cannot be put back together through marriage counseling or any other means. Generally speaking, few people ever contest whether the marriage is irretrievably broken. Thus, in general you can get a divorce simply by asking for one and there is little that your spouse can do about it. Also, one party to the marriage must be a Florida resident for the six month period immediately preceeding the filing of the petition for divorce. There is nothing else that you need to prove to get a divorce in Florida. This is different than some states where for example you have to prove adultery or violence or some other grounds. Contact us for a free consultation.
How long does a divorce take in Florida and does it matter who files first?
It doesn’t matter who files first. As to how long the case will take, that depends on whether it is contested or uncontested. An uncontested divorce means that both parties agree on absolutely everything such as child support, timesharing with minor children, division of property and debts and alimony, if any. An uncontested divorce can take as little as four to five weeks if all of the necessary paperwork is completed. If the matter is contested, that is there are one or more issues which the Court has to decide, such as child support or alimony, etc., the case can take about 4-6 months or more to be heard. In the Florida counties where the Courts are extremely busy it can take a year or more. Hopefully at some point short of a trial the case can be settled through compromise by both parties or through the mediation process.
If I am a Florida resident but temporarily reside out of state, can I still consider myself a resident for purposes of getting a divorce?
That issue will be up to the Court but if the Judge decides that you are truly a Florida resident who is for example working for a corporation outside the state, or visiting elsewhere for a short period, etc., you will probably still be considered a Florida resident and can get a divorce. On the other hand if the Court determines that you really have no intention of coming back, or that you realistically are permanently living elsewhere although you may travel back and forth to Florida from time to time, you probably will not be considered a Florida resident. Also, if you are in the military, the fact that you are stationed outside of Florida does not detract from your Florida residency.
What is the first step towards getting divorced in Florida?
If you meet the residency requirements and your marriage is irretrievably broken, a Petition for Dissolution of Marriage is filed which outlines any claims that you have for things like child support, timesharing with minor children, alimony, division of property and debts, etc. In general, the other party has to be served with the papers by a process server and then the requirements of various court rules and procedures come into effect. Also, where children are involved, Florida law now requires that the parties attend a "Children and Divorce" type seminar, although they need not attend together.
What if I do not want a divorce but do want the Court to determine child support and/or alimony?
A Petition can be filed to accomplish this.
Can one lawyer represent both parties and does each party always have to have a lawyer?
One lawyer should not represent both parties. In general it is impossible to represent the interests of two people who may in fact have different goals. Do not rely on your spouse’s attorney to protect your interests as that lawyer is getting paid to be your adversary. On the other hand, if an agreement can be reached, then the spouse who does not have a lawyer can still communicate with the other party’s attorney to work out details and hence avoid hiring a lawyer (as long as they recognize that that attorney is their adversary).
What is the best route to take?
You will save a lot of time, money and aggravation if you can get an agreement with your spouse on all issues such as child support, timesharing with minor children, division of property and debt and alimony if any. Obviously this is easier said than done but if you can do it, a lawyer can draw up a settlement agreement and the matter will be fairly inexpensive compared to a contested Florida divorce. If you cannot agree on one or more issues you will need to go to Court for the Judge to decide these issues. Try and sit down with your spouse and work out details. It may take several meetings to conclude matters. If you have a spouse that thinks they're going to run the show, remind them that only the Judge runs the show. And without threatening, remind them that this matter can be done the easy way or the hard way.
What if my spouse is violent or harrasses me?
In an extreme situation of course the police must be called. Aside from that, in Florida there is a procedure for getting a restraining order if your spouse is guilty of certain conduct, without notifying your spouse of your efforts to get one (consult the clerk of court or a lawyer). If the Court does issue a restraining order on this basis ("ex parte") there will be a hearing within a number of days after issuance of the restraining order where your spouse can come in to Court and defend themselves. This procedure can be used even before the divorce process begins. Once the divorce process begins, the Court can order your spouse out of the house if things are bad enough (especially where children are involved) as well as order your spouse to stay away from you. These matters have priority in the Court system and do not have to wait until the absolute end of the case.
What if I need temporary alimony or child support, or a distribution of assets before the final hearing in my case, but my spouse will not pay?
There is a procedure for going into Court almost immediately after the case is filed to get an order of temporary child support, alimony, or other relief, such as timesharing with minor children until such time as the case can be fully heard. Also, you can apply for a distribution of some of the marital assets while the case is pending, if there are extraordinary circumstances.
What if I cannot afford a lawyer to represent me?
Aside from the possibility of Legal Aid representation if your income is such that you qualify for their help, there may be a chance that the Court will order your spouse to pay your attorneys fees. This can occur if your spouse earns substantially more than you. If this is the case, you should talk to an attorney about getting paid if and when the Court orders your spouse to pay your fees. Be aware however, that if you have money for a lawyer, although your money may be less than your spouse’s, that the attorney is unlikely to agree to this as the court may well not order that you get reimbursed for fees. Also, attorneys like everyone else don’t like to do work unless they get paid quickly. The chance that a lawyer will agree to wait for their money increases if there’s money or assets which they can place a lien on or if your spouse has a longstanding job with a healthy paycheck and you have no money for fees.
Are divorce cases heard by a judge or jury?
How do I get child support, alimony or timesharing with minor children modified once it is set?
As to child support and alimony one must show a "substantial change in circumstances". What this often means is that your spouse’s income has increased markedly, or that your income or financial situation has changed substantially. It should be noted however that where alimony is terminable upon remarriage, that a court may reduce or terminate the alimony when the recipient is residing with someone in a "supportive" relationship. There are numerous factors that the court will consider in deciding whether a "supportive" relationship exists, such as whether the couple hold themselves out as husband and wife, and the nature of their financial dealings. A modification of timesharing with the minor children will probably require showing a substantial change in circumstances.
How can mediation help my case?
Many many cases are resolved at mediation. It is much cheaper to have a mediator involved with a case than to pay lawyers to do the great deal of work necessary to prepare for trial before the Court. Mediators cannot force a settlement on anyone but they can certainly use their skills to show people what would be a reasonable settlement, and further advise them as to what the Court may do if their is a trial. Sometimes it is just good to have a neutral party that both sides will listen to assist with the settlement negotiations. You often shouldn’t go to mediation though until the discovery process (depositions and the exchange of financial documents) has provided you with a complete picture of your family finances (including your spouse’s) and all aspects of, and the strengths and weaknesses of your case.
Should I represent myself?
Unless you have legal training or the case is extremely simple it is best to have a lawyer advise you. Without legal training it is difficult to know what your rights and responsibilities are. If you do not know what your rights are, you may not ask for them or you may agree to things that you don't need to agree to. Also, without a complete knowledge of the rules of evidence, you may not be able to get certain testimony or evidence admitted into Court and you may therefore lose on a particular aspect of your case, despite the fact that you were "right". Judges cannot help people practice law, and cannot relax the rules of evidence in Court just because you are not a lawyer.
Can I use my maiden name after the divorce?
You need to put in the petition for divorce in Florida that you wish to be restored to your maiden name. The Court can order that as long as you are not changing your name to avoid creditors.
What if I cannot find my spouse? Can I still petition for a divorce?
Yes. After you conduct a diligent good faith search which is required by Florida law. There is a standard list of reasonable steps that you need to take to find your spouse such as writing to the Department of Motor Vehicles and talking to family and friends who may know the whereabouts of your spouse. You also have to publish the matter in an appropriate newspaper for the appropriate period of time and then you will be able to petition for a divorce. However, the Court will not have the ability to order any division of property or alimony for example, until such time as your spouse is found and served with the papers.
How is child support calculated in Florida?
There is a formula in the Florida statutes which is known as the Child Support Guidelines. Basically the parties’ combined net income is considered along with the number of children. The statute then gives a figure for the total support needed for the children. From this it can be determined how much support a parent will pay. The living expenses of the paying parent are not in general considered except in extreme circumstances.
Can the Courts deviate from the Child Support Guidelines?
In general the Courts have the discretion to deviate upward or downward five percent and if they want to deviate more than that there needs to be legally sufficient reasons put forth by the Court. It’s relatively rare that the Courts deviate more than five percent from the guidelines, although it can be done in exceptional circumstances. One example of this may be where a child has special needs such as the need for costly medication.
Other examples of when a deviation can occur are when a parent spends a "significant" or "substantial" period of time with the children, or conversely, when that parent does not spend much time with the children. There is also the question of whether the existence of "subsequent" children (that is, children living with a parent who were born or adopted after the support obligation arose) is justification to deviate from the child support guidelines.
Do the Child Support Guidelines take into account such things as health insurance and day care needs for the child?
Yes. The statute describes how these items are to be factored into the child support equation.
What if my spouse does not report all of his income or is not earning as much as he/she could with regard to calculating child support and alimony?
Courts can "impute" income to a spouse. What that means is that if it is shown that they are capable of making more than they earn, the Court will calculate the child support or alimony as if they made the higher amount. Also, if the spouse is making money under the table or otherwise not reporting all income, it will be your burden to show that this is occuring so that the spouse will have to pay the proper amount of child support or alimony.
I have many other questions, can I call the judge or the court for advice?
No. Judges, judicial assistants, court clerks and the sheriff’s department cannot practice law or give you legal advice. They can only point out the existence of certain procedures, but cannot tell you how to follow them or how effective they will be.
If you’d like to find out more about working together, please contact us. We’ll have a conversation and see if we are the right attorneys for you, and if you’re the right kind of client for us. We hope to hear from you soon.