Am I required to prove my spouse did something wrong in order to get a divorce?
No. Florida has adopted a no-fault divorce standard. Generally, the court will grant your request for a divorce upon a showing that the marriage is irretrievably broken. back to top
How long must I live in Florida before I can get a divorce?
You must be a Florida resident for at least six months prior to filing for a divorce. back to top
What can I expect during the divorce process?
Although some divorces are very simple and can be handled with a minimum amount of delay (i.e. when there are no children and very little real and personal property to be divided), most divorces are far more complicated and can follow diverse paths. A basic outline of the divorce process is as follows:
• One spouse contacts an attorney who prepares a petition (complaint), the legal document that sets forth the reasons why the divorce should be granted and requests the relief sought by the petitioner.
• The petition is filed with the court and served on the other spouse, together with a summons that requires an answer to the petition within 20 days of service.
• The served spouse must file an answer within the prescribed 20 day period or it will be assumed by the Court that he or she does not contest the petition, in which case a default will be entered and the petitioner will be granted the relief sought in the petition. The answer must set forth the relief that the answering spouse is requesting.
• The parties, through their attorneys, engage in a process known as discovery whereby the parties exchange documents and information that is relevant in deciding the issues in the divorce such as child custody, amount of child support, division of assets, alimony, etc.
• The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be voluntary, facilitated by only the parties' attorneys (as in collaborative family law), or by a neutral third party such as a mediator.
• If a settlement is reached, a Marital Settlement Agreement encompassing the terms of the settlement is submitted to the court at an informal hearing. The judge will ask a few basic factual questions and ensure that both parties understood and entered into the agreement freely and voluntarily.
• If the judge approves the agreement, a Final Judgment will be entered incorporating the terms of the parties' agreement. If there is no settlement agreement, the case will go to trial.
• At trial, the attorneys present the evidence and arguments for both sides and the judge makes a determination on all the unresolved issues, including child custody and visitation, child and spousal support, and property division, then enters a final judgment.
• Either or both parties can appeal the judge's decision to a higher court.
The entire process can take from as little as a few weeks to as long as several years. The determining factors in how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise. back to top
How much will it cost?
The fees for a divorce vary depending on the time required to achieve a final judgment. In cases where the parties are willing to cooperate to achieve a settlement of issues, the attorney' fees would be affordable. If the parties are far apart and unwilling to resolve the issues amicably and/or the case must go to trial, the costs can escalate rapidly. Every case is unique and few attorneys can predict with certainty the total cost of any case, particularly when there are several contested issues. back to top
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What is family law mediation?
Family law mediation is an informal, non-adversarial process whereby the parties, through the assistance of a neutral third party (the mediator), attempts to resolve all outstanding or contested issues in their case with the goal of creating a formal written agreement that can be incorporated in a final judgment of dissolution of marriage. back to top
What kind of assets are divided in a divorce?
The parties in a divorce can agree to the division of the parties' jointly owned property, or a judge can make that decision. Generally speaking, the property in question includes most of the property (both real and personal) that the parties have acquired during the marriage, including the marital home (and any other real property), home furnishings and fixtures, artwork, vehicles (including cars, boats, airplanes and motorcycles); money, stocks, bonds and other investments; pensions; retirement accounts; and privately owned businesses.
The value of other, more intangible property is also often divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse, and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly, such as by supporting the spouse to whom the asset is more directly attributable.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where the parties' lawyers can help. Through the legal process called discovery, the parties' attorneys exchange documents that reveal each party's income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account and credit card account statements, brokerage house records, real estate records, loan applications, and business records give a clear indication of each party's financial position. In addition, each spouse is usually deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income.
If necessary, additional parties may be deposed, such as employers, bankers, or business partners. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.
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What happens to the property that each spouse owned before the marriage?
The property that each spouse owned before the marriage, as well as any property given to or inherited by one spouse during the marriage (unless it has been co-mingled or gifted to the other spouse) usually remains that spouse's separate property. If non-marital property is not kept separate from marital property, it may lose its non-marital characterization and become subject to division. back to top
If I bought a boat with my own earnings and titled it in my name alone, it belongs only to me, right?
Any asset that is acquired during the marriage by either or both of the parties is considered to be marital property regardless of how it is titled or who pays for it. The only exceptions are those items acquired through inheritance or a gift and that are not co-mingled or gifted to the other spouse or those items purchased with traceable non-marital funds. back to top
Do I have to pay my spouse's attorney fees?
You may have to pay your spouse's attorney fees if the judge determines that your spouse has a need for such assistance and you have the ability to pay those fees. back to top
What is shared parental responsibility?
This principle provides that both parents have equal responsibility and input into their children's lives even after a divorce. Shared parental responsibility does not necessarily mean that both parties will have equal amount of time with the child (that is often referred to as rotating or joint custody). back to top
How does a court decide which parent will get custody of a child?
When the parents cannot agree on a custody arrangement, the court will make that decision for them after considering the particular circumstances of those parties, with the overriding consideration being the child's best interests. The things that the court considers when making this decision include: the child's age; the child's gender; the child's physical and mental health; the parent's physical and mental health; the parents' lifestyles; any history of abuse; the emotional bonds between each parent and the child or children; the parents' ability to give the child guidance; the parents' ability to provide the basic necessities, such as food, clothing and shelter; the child's routines, including home, school, community, and religious activities; the willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and the child's preference (if the child is old enough). In many cases, a consideration of these factors results in awarding custody to the parent who has been the child's primary caretaker. Although this is often the child's mother, any preference for the mother strictly on a gender basis is outmoded. back to top
How much child support will I have to pay?
The amount of child support a nonresidential parent will have to pay is determined by statute. The income of both parties is added together and the amount of support required for a particular child or children is determined in accordance with the child support guidelines worksheet http://www.myflorida.com/dor/childsupport/guidlines.html. Each party has a percentage of obligation for the monetary support of their child or children based on that parent's income. For example, if the combined income of the parties is $6,000 a month, the child support for one child will be a total of $1,121 a month. If one parent earns $2,000 and the other parent earns $4,000 a month, the parent with the lower income will have a child support obligation of one third of $1,121 a month or $374 and the parent with the higher income will have a child support obligation of two thirds of $1,121 or $748 a month. The non-residential parent pays his or her percentage of the child support obligation to the residential parent. There are other factors that are calculated into the equation such as the cost of child care or health insurance for the child and who pays these expenses.
The court has the discretion to deviate from the guidelines support where the children has special needs or the non-residential parent has the child for a substantial amount of time. back to top
Can child support be increased or decreased after the divorce is final?
Either party may petition the court for modification of child support when a modification would be in the best interests of the child, when the child reaches the age of majority or when there has been a substantial change in the circumstances of the parties. back to top
Can I relocate with my child to another state?
You can move to another state unless there is a specific restriction in your settlement agreement limiting relocation or your agreement provides that you must get court approval or approval from the nonresidential parent in order to move. back to top
Can I get alimony before the final judgment?
Yes, both alimony and child support can be awarded on a temporary basis prior to the final judgment if the court finds that a spouse has the need for such award and the other spouse has the ability to pay.
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Under what circumstances will the court award alimony or spousal support?
The obligation of one spouse to support the other often does not terminate when they divorce. If the divorce will leave one spouse with very little income and the other spouse will have enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily. back to top
There are no statutory guidelines for alimony. Alimony can come in various forms: permanent, rehabilitative, “bridge-the-gap,” or lump-sum. In the case of a long-term marriage, fifteen years or longer, permanent periodic alimony may be required where there has been a disparity of income during the marriage. The court may require the spouse with the superior earning capacity to pay alimony to the other spouse on a periodic (usually monthly) basis until the death of either party or the remarriage of the receiving spouse. Where a spouse has a plan to rehabilitate him or herself by attending college classes or receiving some special training with a specific career goal in mind, then the spouse may be entitled to rehabilitative (temporary) alimony to assist them until they achieve their goal. “Bridge-the-gap” alimony is a form of temporary alimony paid to a spouse to ease the transition from being married to being single. Lump sum alimony is the payment of a definite sum by one spouse to the other. It may be in the form of cash or property and may be paid in a single payment or in installments.
The type, amount and duration of alimony depends on several factors including: the length of the marriage; the age of each spouse; the health of each spouse; the ability of each spouse to be self-supporting, including a consideration of responsibilities to the parties' minor children, if any; the income of the primary bread winner; and the standard of living established during the marriage.
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