Family Law and Divorce FAQ

1. In Florida, is there a difference between divorce and dissolution of marriage?

In Florida, there is no real distinction between the two terms. Divorce is the more commonly used term among laypersons while dissolution of marriage is the most frequently used in the Florida legal system. Chapter 61 of Florida Statutes, which governs this subject matter, uses the term "dissolution of marriage." Most Florida attorneys and judges recognize that this statutory section is inclusive of the term "divorce."

2. In Florida, do I have to prove my spouse is at fault in order to get divorced?

By statute, Florida is a "no-fault" divorce state. This means that either spouse may request a divorce by proving to the court that the marriage is "irretrievably broken." As a result, in seeking a divorce you do not have to prove that your spouse has committed adultery, domestic violence, spousal abuse or otherwise acted in a way justifying dissolution of the marriage. Before a family law judge can dissolve a marriage, he or she must know that you or you and your spouse believe the marriage is irretrievably broken. The reason for this belief may be asked for by the judge but the reason is not really determinative whether to grant the dissolution so long as the requesting party genuinely believes it to be true.

3. Can I file for a legal separation while we try to work out our problems or await a divorce?

There is no formal legal status in Florida known as a separation. In simple terms, you are either married or you are not. Once legally married, you remain married until a court with jurisdiction dissolves the marriage. This is done when the court enters a court order known as a "Final Judgment of Dissolution of Marriage." While there is no legal status of separation in Florida, parting spouses may enter into a legally enforceable separation agreement. This can create a contract which will govern every detail of the spouses' legal relationship during the period leading up to divorce. The agreement may cover topics such as division of assets and liabilities, child custody, visitation, child support and alimony. Separation agreements are complicated legal contacts which should be prepared by an experienced Florida family law attorney.

4. What should I do to prepare myself if I am contemplating a divorce?

In Florida, as in most states, if you are considering a divorce, you should first think about your safety and well-being as well as that of any minor children. If there is a history or threat of domestic violence or spousal abuse, you need to take steps to protect yourself and your children before any harm occurs. If necessary, you may seek a domestic violence injunction from a court. This injunction is a court order directing your spouse to stay away from you and it gives law enforcement the right to take action if the injunction is violated. Next, you should focus on being prepared before initiating divorce proceedings. This includes gathering relevant documents and information to support your claim and familiarizing yourself with all marital assets and liabilities. Often spouses do not gather this information until their circumstance becomes desperate and by that time the important documents and information may be difficult to access or may even "disappear." Preparation also involves having a support network of family and friends in place to help you during the divorce proceeding. Finally, preparation also involves having available the funds necessary to pay a divorce attorney's retainer. You will also need funds to live on during the divorce. Finally, before taking steps toward a divorce, get legal advice from an experienced Florida family law or divorce attorney.

5. What kinds of issues will be addressed in the divorce proceeding?

Divorce proceedings address different issues depending on the couple's circumstances. These issues can involve division of marital assets and liabilities, alimony or spousal support, parental responsibility/custody, primary residence of the children, visitation, child support and attorney's fees.

6. When is a divorce considered "uncontested?"

During a divorce, multiple issues will need to be resolved. These include issues such as custody of minor children, visitation, division of marital property and marital debts, alimony/spousal support, and child support. At the end of the divorce proceeding, the court will enter its "Final Judgment of Dissolution of Marriage." This is a court order that will set forth the court's resolution of all issues applicable to the dissolution of the couple's marriage. An uncontested divorce is one where the spouses are able to reach an agreement on all of these issues, usually prior to filing the divorce proceedings. If the parties are able to reach agreement on these issues, their agreement should be reduced to writing in the form of a "Marital Settlement Agreement" (this is sometimes referred to as an "MSA"). The MSA will then be presented to the family law court and will form the basis for the Final Judgment of Dissolution of Marriage. Because the Marital Settlement Agreement will govern so many important issues and will be binding on the parties, it should be prepared by an experienced family law attorney.

7. How does the court decide division of marital assets and marital debts?

In a dissolution of marriage, family law courts are considered courts of "equity." This means that the court bases its decisions on what it determines to be "fair." During the divorce proceedings, the court will make what is called an "equitable distribution" of marital assets and marital liabilities. In determining equitable distribution of assets and liabilities, the court will look to statutory provisions in Chapter 61, Florida Statutes as well as applicable Florida case law. The statutory provisions and case law demonstrate that the court must first determine which property and which liabilities are marital and which are non-marital. In simple terms, assets or property obtained during the marriage are usually considered marital assets regardless of how these assets are titled. Similarly, debts arising during the marriage are considered marital liabilities regardless of whose name they are in. There are some exceptions to this general rule. For example, if one spouse receives an inheritance and after receiving it, does not commingle it with marital assets, then that inheritance will be a non-marital asset and will not be subject to division by the divorce court. In addition, the determination of marital property and liabilities may be resolved differently if the parties have a Pre-Nuptial Agreement (also known as a Pre-Marital Agreement). Once the determination is made of whether property is marital or non-marital, Chapter 61 requires the court to start with the premise that the division should be equal. However, the court may make equitable adjusts to this premise based on considerations set forth in Chapter 61. Some of these considerations include the length of the marriage, the economic circumstances of the parties and the contributions to the marriage by each spouse. Notwithstanding these statutory guidelines for distribution of marital assets and liabilities, ultimately the court has significant discretion in how to make an equitable distribution. For this reason, in contested divorce proceedings involving significant property or liabilities, a spouse should retain an experienced family law or divorce attorney to protect his or her rights in obtaining an equitable distribution.

8. How does the court determine custody of children?

First of all, in Florida, applicable family law statutes use the terms "parental responsibility" and "primary and secondary residence" in describing what is commonly referred to as "custody." Parental responsibility contemplates how major decisions involving minor children will be made. Typically, shared or joint parental responsibility is most commonly awarded to both parents. Under shared parental responsibility, major decisions such as those involving education, medical care, religious upbringing, etc. for minor children are supposed to be made jointly by the parents. Florida courts will normally only award sole parental responsibility to one parent under extreme circumstances such as those involving abuse or significant neglect of the children. In Florida, awarding one parent sole parental responsibility for minor children (or what some laymen would call "sole custody") is the exception rather than the rule. By law, a family law court should only award sole parental responsibility if the court determines that ordering shared parental responsibility would be detrimental to the best interests of the children.

Primary residential responsibility describes the parent with which the minor children will primarily reside. The parent not awarded primary residential responsibility will have visitation with the children and the children will secondarily reside with that parent as ordered by the court. To determine primary residential responsibility, the court once again looks at what is in the "best interests of the children." To make that determination, Chapter 61 Florida Statutes sets forth criteria which the court may consider. This criteria includes factors such as which parent is more likely to allow frequent and continuing contact with the nonresidential parent, the love and affection between the parents and the children, the capacity of the parents to provide for the children, the moral fitness of the parents, and the mental and physical health of the parents. Determination of residential responsibility is particularly important in a divorce as it relates to the payment of child support. Most often, the nonresidential parent will pay child support to the parent awarded primary residential responsibility.

In some less frequent situations, a court will consider a shared parenting arrangement known as "rotating custody." Under this arrangement, the parents usually share parental responsibility. Residential responsibility is then rotated between the parents as determined by the court.

Effective October 1, 2008, there must be a "Parenting Plan" established in connection with every dissolution of marriage involving minor children. These plans will cover much of what has been discussed above and are specifically intended to assure the involvement of both parents in the decision-making on major issues such as education, medical care, religious upbringing, etc.

9. How does the court determine visitation with minor children?

Because family law courts in Florida are courts of equity, they can award visitation based on what the court determines is fair and is in the best interests of the minor children. Florida courts favor minor children spending as much time as possible with both parents. However, the court's determination of how visitation will occur varies depending on the circumstances. By way of example, if the minor children reside primarily with one parent, the nonresidential parent might have overnight visitation every other weekend and on one or two nights during the week. Provision may also be made for visitation on holidays, with major holidays usually being alternated or at least divided between the parents. Each parent may also be given a continuous period of time during the summer. Visitation may vary significantly from this example if one parent lives at a location distant from the minor children. For example, if one parent lives in Tampa and the other in Miami, the parent not having primary residential responsibility might have visitation on holidays and for an extended period during the summer (sometimes as much as the majority of the summer).

10. How is child support determined?

In Florida, child support is among the few areas of divorce law that is determined according to strict statutory guidelines. In calculating child support, the court looks at the total available income of both spouses, then determines the percentage each spouse's share bears to the total income of the parents. The percentages are then multiplied by the child support guideline amount found in the schedules listed in Chapter 61, Florida Statutes, thereby determining the amount for which each spouse is responsible. In addition to basic child support, the court will also determine responsibility for medical and dental care, day care and for special expenses applicable to the couples' minor children.

11. When does the court award alimony or spousal support?

The award of alimony, also called "spousal support," is determined in the court's discretion taking into account certain specifically enumerated factors set forth in Chapter 61, Florida Statutes. Some of the listed factors include the standard of living established during the marriage, the duration of the marriage, the age and health condition of the parties, the financial resources available to each party, the contributions of each party to the marriage, the time necessary for either party to acquire sufficient education or training to enable the party find appropriate employment and all sources of income available to each party. Alimony may be either temporary (often called "rehabilitative alimony") or permanent. Rehabilitative alimony is awarded for a temporary period of time to facilitate a spouse receiving necessary education or training in order to get back into the workforce. Permanent alimony continues throughout the life of the party awarded it or until otherwise ordered by the court. Permanent alimony is usually awarded in circumstances where there has been a long-term marriage, often involving one spouse being out of the workforce for a significant period of time.

In determining the amount of alimony to be awarded, a family court may take into account the adultery of either party and the circumstances thereof. This is true even though Florida is a no-fault divorce state and adultery would not be an issue with regard to the court determining whether to grant a petition for a dissolution of marriage.

12. What is "mandatory disclosure" in a dissolution of marriage case?

In order to assure that the parties and the court are fully informed on all issues regarding assets, liabilities and income, the Florida Family Law Rules of Procedure set forth requirements for mandatory disclosure. In a divorce proceeding, the parties are each required to complete a family law financial affidavit which sets forth income, expenses, assets and liabilities. This document often plays a major role in the dissolution proceeding and each party should prepare it under the careful advice and counsel of an experienced divorce attorney. The parties are also required to exchange other financial information including past tax returns, pay-stubs, deeds, loan applications, financial statements, bank account and brokerage statements, pension plan statements, insurance certificates and documents supporting a special equity claim or a claim that property is non-marital. The mandatory disclosure must be served within 45 days from the date of service of the initial court document seeking family court relief (which is usually in the form of a "petition" seeking court action).

13. Who pays for the attorneys' fees and costs in a divorce case?

A Florida divorce court may order one party to pay the other for the expense of reasonable attorneys' fees and costs incurred in the dissolution proceeding. The award of attorney's fees and costs is within the discretion of the court and a party cannot always count on receiving an award. This is an important consideration given the fact that divorce and family law litigation can be very expensive. Most divorce attorneys require a "retainer" which must be paid up front before the attorney will take your case. The amount of the retainer depends on the location of the divorce case and on the requirements of the attorney involved. Divorce attorneys in the Tampa Bay area (Hillsborough, Pinellas and Pasco counties, including Tampa, Brandon, St. Petersburg, Clearwater, Dunedin, Palm Harbor, Wesley Chapel, Zephyrhills, Dade City and New Port Richey) typically require retainers ranging from $2,000 to $5,000 in basic contested divorces and more in complicated cases. In a contested divorce, most attorneys charge for representation on an hourly basis. In the Tampa Bay area, attorney's fees rates vary widely depending on the attorney's experience and qualifications. These rates typically may range anywhere from $150 per hour to $350 per hour. For uncontested cases in Hillsborough, Pinellas and Pasco Counties, divorce attorneys sometimes charge a flat or "fixed" fee which may range from $1,000 to $2,000.

14. Will my divorce case go to mediation before it is heard by the court?

Essentially all divorce cases and most other types of family law disputes are required to go to mediation before being heard by the court. Family law mediation is a process where the parties meet together with a mediator who has been certified by the Florida Supreme Court to mediate family law cases. The mediator's objective in the mediation process is to assist the parties in reaching an amicable resolution of their disputes. The mediator does not hear evidence nor does the mediator "decide" or "rule on" the case. Instead, the mediator covers some or all of the issues in dispute and tries to assist the parties in reaching some common ground on which they can agree. On those issues resolved in the mediation, the mediator or the attorneys for the parties will prepare a written agreement to be signed by the parties and to bind them on the issues on which they have agreed. Mediation is often a very successful way to resolve part or all of a divorce case without the significant cost of having a formal hearing before the family law judge. Although having an attorney accompany you to mediation is not required, because the issues can often be complex and can have a far-reaching effect, it is usually advisable to have a divorce attorney attend with you.

15. How Does The Florida Divorce Process Work?

A divorce proceeding formally begins with the filing of a Petition for Dissolution of Marriage. This document sets forth certain essential allegations upon which the dissolution will be based. These allegations first establish the grounds for the court to assert jurisdiction. For instance, at least one of the spouses must have been a resident of Florida for at least six months prior to the filing of the Petition. The allegations must also include such factual matters as the date and location of the marriage, whether there are minor children, that the marriage is irretrievably broken, the desired division of assets and liabilities, the desired responsibility for the minor children, payment of support and alimony, etc. Generally, accompanying the filing of the Petition are a Family Law Financial Affidavit and a Uniform Child Custody Jurisdiction Act Affidavit.

After being filed with the court, the Petition is served on the opposing spouse by a Deputy Sheriff or by a private process server. That spouse then has 20 days within which to serve his or her Response and Counter petition. The spouse must also file a Financial Affidavit. During the first 60 days after the filing of the Petition, both parties are required to serve certain mandatory disclosure on the other party. This includes exchange of an array of financial documents including tax returns, bank statements, loan applications, deeds, titles, and other related financial records.

Early in the divorce process, the court will schedule a Case Management Conference where preliminary issues will be addressed. The timing of this conference will depend on the county and the court involved but is usually in the first 60-120 days. If there are minor children involved, most courts will require each parent to attend a mandatory course entitled " Children, Parents & Divorce." In many Florida counties, this 3-4 hour course is offered several times a month, often at a local hotel conference room. At the end of the course, each participant receives a certificate which must be filed with the court.

At the first or second case management conference, the court will often order the parties to attend mediation. At mediation, the parties and their attorneys meet with a third party mediator. The purpose of the mediation is to try to resolve some or all of the issues in dispute. The mediator's role is not that of a judge; he or she does not "decide" the case. Instead, the mediator tries to help the parties reach an agreeable middle ground. If issues are resolved, they are reduced to a written agreement which is later presented to the court as binding on the parties as to the issues addressed. If the case does not resolve in mediation, then the case may proceed to a final hearing or trial before the court. Under Florida family law, trials are always before the court and not with a jury.

16. How do I find an experienced family law attorney?

The name and contact information of an experienced family law/divorce attorney can be found much like finding other professionals, including by asking friends and family, doing research on the internet and elsewhere and through lawyer search sites such as http://www.findlaw.com/, http://www.martindale.com and http://www.lawyers.com. Most importantly, in hiring an attorney, meet with the attorney in person and make sure that you are comfortable with the experience and approach and demeanor of the attorney who will be representing you. The relationship you have with your attorney during this difficult time will be important to you and should be based on a mutually good rapport between client and attorney.

Free Article "Understanding Florida Divorce-The Basics" Contact us at mike@linslawgroup.com to request this valuable free article.

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