I. Florida No-Fault Divorce
In Florida, a spouse does not have to prove fault in order to obtain a dissolution of marriage. Unlike some states, a party in Florida does not have to prove infidelity, neglect, abuse or other similar grounds. The only required element is that the marriage is "irretrievably broken." In addition, the reason the marriage is irretrievably broken does not matter as long as one or both parties testify to that fact. Most often, the reason given for the marriage being irretrievably broken is that the parties have irreconcilable differences.
The Divorce Court Has Discretion to Do Equity.
Florida divorce courts have discretion to do equity, i.e. to do what the court determines will be "fair" in applying applicable laws to specific facts of a particular case. This principle of fairness allows a family court more latitude in making decisions. While this principle of equity may ultimately produce mostly fair results, it poses a challenge for parties and their attorneys in trying to predict or anticipate the outcome in a given case.
II. 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 Counterpetition. 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.
IV. What Issues Are to Be Resolved in a Divorce?
While the disputed issues in each divorce vary, those which appear most frequently include:
- Equitable Distribution of Assets and Liabilities
- Parental Responsibility and Time Sharing-Parenting Plan
- Child support
- Alimony
- Attorney's Fees and Costs
In addressing each of these areas, a person needs the expertise of an experienced attorney. However, as a basic overview, the following discussion will help.
A. Equitable Distribution: Dividing the Assets and Liabilities
First, the court will need to determine whether assets or liabilities are marital or nonmarital. Although there are statutory provisions which provide some guidelines, this determination is not an exact formula. Typically, the courts look at whether assets were obtained prior to the marriage (nonmarital) or after the marriage (marital). While this may seem fairly straightforward, the determination can get difficult, especially when nonmarital assets are improved or enhanced during the marriage. This enhancement can be marital even though the asset itself is nonmarital. Once having determined assets or liabilities as marital or nonmarital, the court will determine a fair way to divide the assets and liabilities. Marital assets and liabilities usually are presumed to be divided equally but once again the court has discretion in making adjustments allowing disproportionate division in order to achieve a “fair” outcome.
B. Minor Children
When a married couple has minor children, two primary issues arise. First, how will parental responsibility be assigned? Parental responsibility involves who will make major decisions regarding matters such as education, religious upbringing, discipline, and medical care. The presumption in Florida is that parents should have shared parental responsibility. This means the parents should each participate in decision-making in these areas. For a court to award sole parental responsibility, the court will usually require there to be some extraordinary circumstance (such as abuse, neglect, substance abuse, etc.) The second issue involving the children is “timesharing.” This concept covers when and where the children will spend time with each parent. Effective October 1, 2008, all divorces must include a parenting plan which covers timesharing and other related issues such as transition (pick-up and drop-off), vacations, holidays, transfer of belongings, and notice of whereabouts of the children.
C. Child Support
Perhaps the most predictable aspect of a contested divorce is the determination of child support. The reason child support is fairly predictable is that there are statutory guidelines for the amount and method for calculating such support. In simple terms, the court will use the net income of the parties and calculate the support based on the guidelines. While the court can deviate from the guidelines, the court must make specific findings in support of the deviation. As a practical matter, most courts will not deviate from the guidelines except in exceptional circumstances.
D. Alimony
Alimony, or spousal support, is made up of several different types, each of which has a somewhat distinct purpose. Rehabilitative alimony is paid for a limited period of time to assist a spouse in training, education or adjustment to re-enter the workforce. Permanent alimony is paid to one spouse for the rest of their life or until certain events (such as re-marriage) occur. Usually the payment of permanent alimony is ordered in longer term marriages although length of marriage is not determinative. Lump sum alimony is ordered somewhat less often. With lump sum alimony, one spouse pays the other a flat amount, usually as a means of equalizing asset distribution.
E. Attorney's Fees and Costs.
Although a somewhat lesser discussed issue, attorney's fees and costs inevitably come into play in any divorce proceeding. The fees and costs of a contested divorce can be substantial. For example, most attorneys require a significant retainer just to take a divorce case. While these range in amounts, it is not uncommon to see retainers of $5,000 even in relatively routine contested cases. A retainer is money paid up-front to the attorney which is usually deposited into a trust account and against which fees and costs are billed. With hourly rates ranging anywhere from $200-$400 per hour, it doesn't take long for the fees to add up quickly, often exceeding the retainer. The court does have the discretion to award attorney's fees and costs if one spouse can show a need and the ability of the other spouse to pay.
V. The “Uncontested” Divorce
An uncontested divorce is one where the spouses are able to reach an agreement on ALL of the issues discussed above, usually prior to filing the divorce proceedings. If even one of the issues is not agreed upon, the divorce is considered contested. If the parties are able to reach agreement on all 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 at a final hearing and the MSA will form the basis for the Final Judgment of Dissolution of Marriage. The benefits of an uncontested divorce are many, including increasing your ability to control the outcome, lessening the time and cost involved and minimizing the emotional turmoil which a contested divorce can cause.
VI. Where To Begin
The best starting point is to consult a divorce attorney who can help you understand your rights and obligations in the event of a divorce. Seek an attorney whose experience, style and demeanor are comfortable for you and make sure you understand that you are the client.
For additional information and legal assistance in dealing with divorce, contact www.linslawgroup.com
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