Before you take any legal steps to end your marriage, you should make sure that you have tried allpossible ways to save it. Do you want professional helpin working out ways to save your marriage? Many communities and many social and religious organizationsoffer counseling services either free or on a sliding feescale. Or you may wish to consult with a marriagecounselor, psychologist, psychiatrist, minister, priest,rabbi or other qualified person. Your attorney may alsoknow someone who can counsel you and your spouse.
GENERAL
The official word for divorce in Florida is "dissolution.
Florida is one of the many states that has abolishedfault as a ground for divorce. This law lessens thepotential harm to the husband and wife and their children caused by the process of divorce. All that is required is that the marriage be "irretrievably broken."Either spouse can file for the dissolution of marriage.All that has to be proved is that the marriage is broken.(There is another, little-used ground: incompetency ofone's spouse). Fault, however, may be considered under certain circumstances in the award of alimony, anddetermination of custody issues.
Each divorce case is unique and therefore settlements vary. Even though fault is not an issue, thedivision of the marital assets may become a contestedmatter.
The divorce process is highly emotional and traumatic for everyone it touches. Marriage partners oftendo not know their legal rights and obligations. Courtclerks and judges can answer some of your basicquestions but are prohibited from giving legal advice.Only your lawyer is allowed to do that. Court procedures must be strictly followed or you may lose certainrights forever. It is recommended that you obtain theservices of an attomey concerning legal questions, yourrights in a divorce, your children's rights, your propertyrights, your responsibilities resulting from the marriageor tax consequences. A knowledgeable lawyer can analyze your unique situation, and can help you to makedecisions in the best interest of you and your family.
To obtain a dissolution of marriage in Florida, at leastone spouse must have been a Florida resident for sixmonths or more before the case is filed. There are twoways of getting a divorce, or dissolution, in Florida. Theusual way is called a "Regular Dissolution of Marriage".The second method is the "Simplified Dissolution ofMarriage".
REGULAR DISSOLUTION OF MARRIAGE
The regular dissolution process begins with a petitionfor dissolution of marriage, filed with the circuit courtby the husband or wife, which states that the marriageis irretrievably broken and sets out what the personwants from the court. The other partner must file anAnswer within 20 days maximum, which includes thematters within the initial petition on which the partiesagree or disagree as well as any issues the answeringparty wishes to raise.
Some couples agree on property settlements, childcustody and other post-divorce arrangements beforeor soon after the original petition is filed. They thenenter into a written agreement signed by both parties.In such an uncontested case, a divorce can becomefinal in a matter of a few weeks.
Other couples disagree on some issues, work outtheir differences, and appear for a final hearing with asuggested settlement which is accepted by the judge.
Mediation is a procedure to assist you and yourspouse in working out an arrangement for reachingagreement without a protracted process. Its purpose Isnot to save a marriage, but to help divorcing couplesin reaching a solution to their problems and arriving atagreeable terms for handling their dissolution. Manycounties have mediation procedures available. Someare mandatory.
Finally, some couples cannot agree on much of anything and a trial--with each side presenting its case--isrequired. The judge makes the final decision on contested issues.
The equitable dissolution process is designed tomake the divorce as fair as possible to both husbandand wife, which usually means negotiation--and compromise--by both partners.
Attorneys have learned it is unrealistic to expect bothpartners to be "happy" with their divorce. The experience can be emotionally devastating. The financial upheaval of supporting two households instead of onecauses hardship for the entire family.
SIMPLIFIED DISSOLUTION OF MARRIAGE
Certain Florida couples are eligible to dissolve theirmarriage by way of a simplified procedure. These dissolutions are "do-it-yourself" and were designed so theservices of an attorney may not be necessary. Husbandand wife are responsible, however, for filing all necessary documents correctly, and husband and wife arerequired to appear before a judge together when thefinal dissolution is granted. If you desire the servicesof an attorney for this dissolution process, it can usuallybe completed relatively inexpensively.
The simplified dissolution of marriage process is designed for couples with no dependent children and nodisputed property. Therefore, not everyone can qualify.A husband and wife can use the simplified dissolutionof marriage only if: (a) they both agree to the use ofthis form of dissolution proceeding; (b) they have nominor (under 18) or dependent children; (c) have noadopted children under the age of 18; (d) the wife isnot pregnant; (e) at least one of the parties has livedin Florida for the past six months; (f) the parties haveagreed on the division of all of their property (assets)and obligations (debts); and (g) both parties agree thatthe marriage is irretrievably broken and want to endtheir marriage because of serious permanent differences. Couples wanting to use the simplified processmust meet all these conditions. If not, they must usethe regular dissolution of marriage process.
There are substantial differences between a simplified and a regular dissolution of marriage. In a regulardissolution, each spouse has the right to examine andcross-examine the other as a witness, and to obtaindocuments concerning the other's income, expenses,assets and liabilities before having a trial or settlementof the case. With a simplified dissolution, financial information may be requested but it is not required to begiven. In a simplified dissolution there is no trial andno appeal. Also, with a simplified dissolution neither thehusband nor the wife can receive support from theother.
If the husband and wife agree on a dissolution, andprefer to use the simplified form of dissolution, thenthey should both contact the clerk of the circuit courtin their area and obtain a copy of the booklet titled"Simplified Dissolution Information" for more detailedinformation on this procedure.
DOMESTIC VIOLENCE
You may go to court yourself for an injunction toprotect yourself against assault, battery or sexual battery by your spouse (whether you are separated or not)or your former spouse. If you feel you are the victim ofsuch domestic violence, you should contact the officeof the clerk of the circuit court in your county for information and assistance.
PROPERTY DIVISION
One of the most difficult and complex areas of divorce is the division of marital property. Marital propertymay include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bankaccounts, personal property and other things of value.
Florida statutes and case law provides for an "equitable distribution" of marital property. In essence, themarital property should be divided fairly or equitably(not necessarily equally) between the parties regardless of how the title is held. The division is based uponall facts of the case and the contribution of both spousesto the marriage.
The division of marital property (any asset acquiredduring the marriage by the efforts of one or both parties)is considered in conjunction with all other awards ofalimony and interests in property.
There is no fixed way to determine how you or thecourt should divide the property. Liabilities as well asassets must be considered. Other factors include thenature and extent of the property and whether it ismarital property or non-marital property; the durationof the marriage; the economic circumstances of eachspouse. If you and your spouse can agree, and if youragreement is reasonable, it will be approved by thecourt. If you cannot agree, the court will divide theproperty after a trial.
ALIMONY
The court may grant alimony to either the husbandor the wife. Rehabilitative alimony may be for a limitedperiod of time to assist in redeveloping skills and financial independence or permanent alimony until the receiving spouse's remarriage or the death of either party,or the Court may grant some combination of the two.Also the court may order through lump-sum alimonyone party to pay the other party a lump-sum paymentof money or property. Although adultery does not baran award of alimony, the court may consider the adultery of either spouse and the circumstances of thatadultery in determining the amount of alimony to beawarded.
In awarding alimony, the court considers all relevanteconomic factors, such as: the parties' prior standardof living; length of the marriage; age and physical andemotional condition of both spouses; each spouse'sfinancial resources and income-producing capacity ofthe assets they receive; the time necessary to acquiresufficient educational training to find appropriate employment; and the services rendered in homemaking,child rearing, and education and career building of theother spouse. The court may consider any other factornecessary to do equity and justice between the husband and wife.
You have the right to find out about all your spouse'sincome and assets through the use of discovery procedures which your attorney will explain to you.
TAXES AND DEBTS
There are very important tax considerations to beaware of in any divorce, including the dependency deduction for children, taxability of child support and alimony in their various forms and property transfers. Itis important to find out how these laws affect you beforeyou get divorced. Afterwards, it may be too late tocorrect mistakes that have been made. Often this mayrequire the services of an accountant in conjunctionwith your attorney.
Any debts that the husband and wife may haveshould also be resolved at the time of the divorce. Thequestion of who should pay mortgage payments, income tax liabilities, credit card debts, personal loans,car payments, etc., should not be overlooked.
SHARED PARENTAL RESPONSIBILITY FOR CHILDREN
Custody and Visitation
It is the public policy of Florida to assure each minorchild frequent and continuing contact with both parentsafter the parents have separated or divorced, and toencourage parents to share the rights and responsibilities of child rearing. The father is given the same consideration as the mother in determining custody regardless of their child's age, sex or other factors.
In most cases, parental responsibility for a minorchild will be shared by both parents so that each retainsfull parental rights and responsibilities with respect totheir child. This requires both parents to confer so thatmajor decisions affecting the welfare of the child willbe determined jointly.
You and your spouse may agree, or the court mayorder, that one parent have the ultimate responsibilityover specific aspects of the child's welfare, such aseducation, religion and removal from the area, medicaland dental needs. If the parents have a substantialconflict over any of these areas the court will decide forthem. The court will also designate one parent's homeas the primary residence of the child. The other parentis usually entitled to frequent and continuing contactwith the child.
In rare cases, the court can order total parental responsibility and custody to one parent. To do so, thecourt must determine that shared parental responsibilitywould be detrimental to the child.
The court may award to the child's grandparentscertain visitation rights if it is deemed by the court tobe in the child's best interest. Thereafter, the grandparents have the right to seek judicial enforcement of thevisitation rights. The court may award grandparentsvisitation rights after the parents divorce, when it is inthe best interest of the grandchild or when one or bothparents of the child are deceased; or, when a parentof the child has deserted the child.
In considering issues between parents and their children, the best interest of the child is the primary consideration by the courts.
The Florida Bar has developed a consumer pamphlet entitled "Shared Parenting After Divorce" (available here at LawFlorida.net on the Consumer Information Page) whichdiscusses the subject and includes a model sharedparenting agreement.
SUPPORT
You and your spouse each have a responsibility tosupport your children in accordance with their needsand your financial abilities. Support may be by directpayment or by indirect benefits, such as mortgage payments, insurance, or medical and dental expenses. Ordinarily, the obligation to support your child ends whenthat child reaches 18, marries, or becomes financiallyindependent.
Some of the issues concerning child support whichmust be considered include: (a) the amount of support;(b) the method of payment; (c) ways to assure payments are made; (d) when child support may be increased or decreased; and (e) who gets the dependency deduction for tax purposes. Other questions mayneed to be answered, depending on the circumstancesof your case. Guidelines for support which apply tomany cases have been adopted by the state and willsoon be mandatory.
If you have a problem getting support payments fromyour spouse or former spouse, or visitation and accessto your child is denied, you should bring this matter tothe attention of the court. It is not proper to withholdvisitation or child support payments because of anyalleged wrongdoing by your spouse or former spouse.
APPEALS
After a regular dissolution of marriage, if you feel thejudge's decision was incorrect, you may appeal thatdecision, provided that certain procedural steps aretaken. An appellate court does not, however, frequentlyreverse a trial judge's decision because the judge hasbroad discretion in divorce cases. Just because youdo not like the judge's decision is not a reason for anappeal. If the trial judge makes an error of law, or hasabused his discretion, the decision may be reversed.
WHERE TO GET LEGAL HELP
A good place to begin is with your own lawyer whocan give you a quick review of your legal rights andadvise you how to proceed. If your lawyer does nothandle such cases, you will be referred to an attorneywho does.
If, however, your family lawyer has been retainedby your spouse, then the lawyer cannot represent youtoo. In fact, if the lawyer has been your family lawyerthere may be a conflict of interest and the lawyer cannotrepresent either of you. Do not attempt to consult withyour spouse's attorney to receive legal advice. It isunethical for an attorney to represent both sides in adivorce and to give legal advice to both husband andwife.
HOW TO SELECT A LAWYER
In Florida lawyers who specialize in family law canbecome board certified if they meet certain criteria andpass a comprehensive test in the area. Other lawyerschoose to designate family law as an area of theirpractice, but do not have to take any test to do so. Tomaintain certification or designation status, a lawyermust take certain continuing legal education courseson a regular basis.
If you do not have a lawyer, a lawyer referral service,usually operated by a local bar association, can put youin touch with a lawyer who handles such cases. Thelawyers associated with the lawyer referral service havean agreement to charge a very small fee for the firstconference. For just a few dollars, you can discussyour rights and obligations and determine if you areproceeding in the right direction.
ATTORNEYS' FEES AND COSTS
Divorce does not have to be expensive. The morecomplex your affairs and the more contested the issues, the more the dissolution will cost. At an initialmeeting, your attorney should be able to provide anestimate of the total cost of a dissolution based on theinformation you provide. To a great degree the costwill depend on how contested the matter becomes.
Your lawyer will expect you to pay a fee and thecosts of litigation in accordance with the agreement youmake. Sometimes the court will order your spouse topay part or all of your fee and costs, but such awardsare unpredictable and cannot be relied upon. You areprimarily responsible for the payment of your legal fees.
In a divorce, it is illegal for an attorney to work on acontingency fee basis; that is, where the lawyer's feeis based upon a percentage of the amount awarded tothe client.