A spouse can file a Petition for Dissolution of Marriage in Florida if either party has been a resident for a period of six (6) months prior to filing the petition. In Florida, as in most states, a person wishing to obtain a divorce from his or her spouse does not have to prove that the divorce is due to the misconduct or fault of the other during the marriage. This is commonly known as “no fault,” and the party seeking to dissolve the marriage must merely allege that the marriage is “irretrievably broken.” A judge will make a finding that a marriage is “irretrievably broken” if one party testifies that no manner of counseling can repair the marriage. Based upon that evidence alone, a judge will dissolve the marriage. Of course that is the easiest part of the process. The more difficult issues to resolve generally include child custody, child support, alimony, and the division of marital assets and debts..
Is your divorce contested or uncontested?
There are two types of divorces: a contested divorce (aka “the hard way”) and an uncontested divorce (a.k.a. “the easy way”). These are also known as the expensive divorce and the cheaper divorce, respectively. An uncontested divorce can be completed in a few weeks, while a contested divorce will take at least six (6) months. An uncontested divorce means that both parties have completely resolved every single issue of the marriage. A contested divorce is inevitable if the parties cannot negotiate a complete resolution of all issues. While you may think you have an impossible situation, an experienced lawyer can often develop creative solutions that are acceptable to both parties..
Our firm typically charges a flat rate of $1,500.00 (this dones not include costs like filing fees and service of precess fees) for an uncontested divorce. A contested divorce is billed at an hourly rate and can run as low as $2,500.00 or much higher depending upon the amount of time needed to complete the process. For example, a contested divorce with children is typically more expensive than without children. A husband and wife should use the expense of a contested divorce as a motivation to work toward an amicable dissolution.
If the parties agree on every issue, they can typically use just one law firm to prepare the paperwork. Keep in mind that the spouse that retains the law firm is the client. For a nominal fee (about $200.00), the other spouse can hire another law firm to review the uncontested divorce documents..
Should you use a paralegal or document preparation company to prepare your uncontested pleadings?
Once a judge enters a Final Judgment of Dissolution of Marriage, it is extremely difficult, if not impossible, to change the substantive provisions of the Final Judgment. Decisions made during a divorce are often irreversible, and anyone who does not seek legal advice proceeds at his or her own peril. Paralegals are not lawyers, and they cannot advise you about the law. Every divorce is as unique as a thumbprint, and it takes an experienced lawyer to arm you with the best advice to make an informed decision. Decisions about child custody, support, visitation, alimony, division of marital assets (including the marital home), the division of pension and retirement plans and military retirement benefits should not be made without the guidance of a lawyer. The short-term savings may be outweighed by the long-term loss associated with uninformed decision-making.
What is the general procedure in a contested divorce?
The process of a contested divorce begins with the preparation and filing of a Petition for Dissolution of marriage in which one spouse (a.k.a. “petitioner”) generally describes the allegations and issues to be considered by the Court. The other spouse (a.k.a. “respondent”) is formally served with the Petition, and he or she has twenty (20) days from the date of service to file a formal response, known as an Answer. If you have been served with a Petition for Dissolution of Marriage, contact an attorney immediately! If you call our firm, please advise us that you have been recently served with a Petition. Experienced attorneys are often very familiar with each judge and can give general insight as to your assigned judge’s philosophy. This is not to say that a lawyer can predict the outcome of your case, but a good lawyer knows that judges are unique individuals whose opinions are reflected in previous decisions.
As in every lawsuit, there is a discovery phase. Discovery is the process by which each party seeks information from the other. Discovery takes the form of Requests to Produce Documents, Requests for Admissions, Interrogatories and depositions. While most discovery is requested by one party from the other, Florida law requires each party to file a detailed Financial Affidavit, which discloses financial data like income, expenditures, debts and assets.
Once the Respondent has answered the Petition, the case is “at issue,” and it can be set for trial by the judge. In most jurisdictions, mediation is required prior to trial. Mediation is a process in which the parties meet with their attorneys before an impartial third lawyer well versed in family law. Mediators charge by the hour, and the cost is split between the parties. The Courts require mediation because most cases settle at mediation or shortly thereafter.
If the case fails to settle, it will proceed to a final hearing. Even though a final hearing is typically held in Chambers (the judge’s office) rather than in a courtroom, it still follows the same procedure as any other trial. Witnesses are called to testify, and all manner of evidence is submitted to the judge. The judge will rarely make his decision the same day. There are typically many issues to be decided, and the judge’s decision could take weeks..
What if you need an immediate help?
In many cases, when a husband and wife separate, one party may be placed in an extreme situation. For example, if a wife leaves behind her husband and two children, he may be placed in the economically impossible situation of supporting the household without the benefit of the wife’s income. In another example, the husband is physically abusing the wife, and he will not let her leave with the children. In such cases, the petitioning spouse can file a Motion for Temporary Needs, asking the Court for exclusive use of the marital home, custody of the children and financial support from the other spouse. A spouse may seek an emergency order preventing the other spouse from removing the parties’ minor children from the state or local area. A spouse may seek an emergency order preventing the parties from selling or destroying marital assets. The Court will hear the motion relatively quickly and enter a temporary order resolving the issues until a Final Judgment is entered.
When the emergency relief is due to domestic violence between the spouses, the injured spouse may seek an injunction against domestic violence, which may be obtained without the aid of an attorney. For more information, contact the Clerk of Courts in your county courthouse. The injured spouse can discuss the possible his/her options with an attorney.
How will marital debts and property be divided?
While “equitable” is usually synonymous with “equal,” it is not always the case. Other issues come into play, such as:
- unequal incomes
- destruction or disposal of marital assets
- unequal accumulation of debt
- contribution to the marriage by each spouse
- contribution to the care and education of the children
- contribution of one spouse to the career of the other spouse
- economic circumstances of the parties
- duration of the marriage
- existence of dependent child of the marriage
In the end, the judge will adjust the division of marital assets and debts in a manner that he deems fair.
Are there assets or debts that are not considered part of the marital property?
Assets accumulated prior to the marriage are generally not considered in the division of marital property. In addition, certain property, including inheritance, gifted to just one spouse during the marriage may also be excluded. Personal injury settlement proceeds are regularly excluded as well. However, a non-marital asset can become a marital asset if it is commingled with marital assets.
A common situation involves the marital home. For example, a husband purchases a $200,000 house prior to his marriage. At the closing he pays $50,000 and finances $150,000. On the date of his marriage, the house is worth $210,000, and he owes $140,000. On the date of separation, the house is worth $250,000 and the balance of the mortgage is $110,000. During the marriage, $70,000 of equity is created through an increate in value plus a reduction of mortgage principal. The wife will be awarded $35,000 of home equity, and the husband will be awarded $105,000 of equity. As a practical matter, the husband will be allowed to keep the house if he can pay the wife $35,000.00. Of course, this example is generalized, and other factors (marital children, alimony, etc.) could cause a different result. However, the Court would use this rudimentary analysis as a starting point.
While property issues can be complicated, a capable lawyer often achieves compromises through creative and persuasive negotiations.
Am I entitled to a share of my spouse’s retirement account?
Retirement account funds accumulated during the marriage are also marital assets. Typically (although not always), the amount an account grows during the marriage is subject to division. Funds can be paid out of a retirement account to a spouse without penalty pursuant to a Qualified Domestic Relations Order (“QDRO”). The Spouse receiving retirement funds in this manner can choose to deposit them into a retirement account or just pay the income taxes.
Am I entitled to alimony?
Either spouse may be entitled to some form of alimony in the State of Florida. Whether a spouse is awarded alimony depends on the particular facts of each case. A spouse seeking alimony must prove he/she has a need for the alimony and that the other spouse has the ability to pay alimony. The Court will take into account factors such as the parties’ standard of living while they were married to each other, the duration of the marriage, their ages, and the health of each party.
Both marital and the non-marital assets will be taken into account in determining each party’s need and ability to pay. One spouse’s income will be reduced by the amount of child support he/she is required to pay the other party, and the Court’s distribution of the marital liabilities of the marriage is also considered. In many cases, such adjustments place the parties in equal positions financially. For this reason, alimony is typically the last issue to be decided by the Court.
The most common types of alimony in Florida are rehabilitative and permanent. Rehabilitative alimony is implemented temporarily by the Court to allow the receiving spouse a transition to self-support. The idea is that the alimony will be used while this spouse redevelops of a previous skill or develops a new skill. Permanent alimony, on the other hand, is support paid to the spouse for an indeterminate period of time, usually until the receiving spouse remarries or one of the spouses passes away. While the Court sets the duration of rehabilitative alimony, the duration of permanent alimony is not set. Whether rehabilitative or permanent, the Court may order the alimony payments to be made on a periodic (monthly) basis or in lump sum or both.
Permanent or rehabilitative alimony can be changed or terminated depending upon what’s called a substantial change in circumstances. The change must be significant, involuntary (if a spouse is claiming loss of income) and not contemplated at the time the Final Judgment was entered. A significant change may be a receiving spouse’s increased income or a paying spouse’s decreased income.
Each divorce is different, and neither party should make assumptions about the issue of alimony without first consulting an attorney. Alimony tends to be the most complex divorce issue, and it is also the issue most difficult to predict.