Overview of Divorce and Family Law
DISSOLUTION OF MARRIAGE
Dissolution of marriage (divorce) is a traumatic event in any family. This discussion attempts to explain the basic legal concepts which apply to dissolution of marriage..
1. Action for Dissolution: You or your spouse begin the proceedings by petitioning the court for dissolution. Actually, you will ask the court not only to dissolve the marriage, but to distribute between the two of you the rights and responsibilities you had as a couple. Twenty days after a process server hand delivers a copy of the petition to your spouse, he or she must answer the petition, admitting or denying your allegations about custody and property distribution. Normally, your spouse will retain an attorney; but even if they do not, we will not represent both of you. Your best interest will be our primary concern.
2. Residency Requirements: Prior to filing the petition for dissolution, you or your spouse must have permanently resided in Florida for at least six months. If you have even temporarily left the State of Florida to establish residency elsewhere, you must reestablish your six months residency in Florida prior to filing any action in the Circuit Court other than a restraining order.
3. Separation: Although you need not be separated while the divorce is pending, you may do so without being charged with desertion. There is no cause of action in Florida for “abandonment”. There is no "legal separation" in Florida but we can prepare a Marital Settlement Agreement (MSA) which outlines the terms of your separation. A MSA is a contract between the parties and is enforcable under contract law. In the event a divorce is filed, the MSA may later become a “Court Order” by being incorporated by the Court by reference in a final judgment. The MSA is not filed in the Court unless a divorce is also filed.
4. Grounds for Dissolution: Florida has "no fault" divorce to the extent that you no longer need to prove adultery, mental cruelty, etc. As long as one spouse believes that the marriage is irretrievably broken (i.e., that it cannot be saved), the court will grant the divorce. However, if your have children and believe there is a possibility for reconciliation, the court may order both of your to attend counseling, especially if one party denies that the marriage is irretrievably broken.
5. Extramarital Relationships: Although Florida is a "no fault", adulterous relationships can affect support awards, asset distribution, or custody awards. You must be totally frank with us about your own and your spouse's involvements so that we can assess the possible effect. Furthermore, you should not ask for problems by dating until your marriage is officially dissolved by the court. Some judges still view adultery as a moral fitness issue and can make custody decisions which include your adultery as a basis for their decision.
6. Custody: The public policy of Florida is to order shared parental responsibility of minor children in almost all cases. The court may then decide which parent should provide the primary physical residence. Today, the court accords equal consideration in deciding which parent will provide the primary physical residence, and both parents have a chance at obtaining primary physical residence. Typically, the non residential parent will have the opportunity to maintain frequent and continuing contact with the children. Conferring on all major decisions affecting the children after the divorce is a basic principle of shared parental responsibly. If truly extenuating circumstances exist, one parent may be awarded sole parental responsibility, but the other will usually receive some form of visitation privileges. The term primary parent refers to the parent that has custody of the children, and the term secondary parent refers to the parent that will have visitation with the children. Many people desire what is knows as shared custody or rotating custody. This is an arrangement where the children spend an equal amount of time with each parent and neither parent is designates as primary parent. The Courts will not typically order shared custody unless both parents agree that this arrangement is what they want. If both parents are not in agreement with regard to shared custody, then the Court will choose a primary parent and a secondary parent. It is not possible to litigate (fight for) shared custody if both parents are not in agreement on this issue.
7. Child Support: The Legislature has established child support guidelines. Each parent then contributes his and her share of the total amount the legislature or the court deems necessary to support a child at your combined incomes. The non-residential parent's support payment shall be deducted from his paycheck by his employer and sent through Central Governmental Depository. The court can require support for a normal, healthy child only until eighteen years of age (or until graduation from High School but not beyond age 19). Child support guideline calculations may include day care expenses and health insurance where appropriate. The net monthly income of the mother and father are the basis for the calculation of child support and not the living expenses of either party. Child support may be reduced in some cases when a minor child spends more time with the non residential parent than what would be considered usual visitation. Child support may also be reduced of the paying spouse is already paying child support for children of another relationship by court order and is current in such child support payments. The Court will order both parents to attend a course entitled "Divorce: A Child's View" to help both parties cope with custody and visitation issues now that they are separated and about to be divorced. This course must be completed by both parties prior to the final hearing or a divorce will not be granted.
8. Marital Assets: In general, all assets and liabilities acquired during the marriage are considered marital property and subject to division by the Court. As a general rule the Court is obligated to make an equal division of assets and debts between the parties. Florida recognizes non marital assets and debts as those assets or debts that either party may have had prior to the marriage and which were kept separate during the marriage. Inheritance received by either party and which is kept separate may also be considered non marital property, and not subject to division by the Court.
9. Equitable Distribution: The court will distribute the marital assets and debts to the spouses in shares which the court finds fair under all the circumstances.
10. Permanent Alimony: A spouse who has lost the capacity for self support
during a long marriage may receive alimony until he or she remarries or the other spouse dies. The paying spouse must have the ability to make these payments. The award of alimony is based upon three criteria (1) length of marriage (2) needs of the spouse asking for alimony and (3) ability of the other spouse to pay alimony.
11. Rehabilitative Alimony: A spouse whose earning ability has diminished during the marriage, but who has the potential for self-support, may receive alimony for a designated period of time in order to become re-established in the work force. This is some times also referred to as “bridge the gap alimony”.
12. Lump Sum Alimony: Lump sum alimony is can be used to even up the property
distribution, give one spouse an extra share, or provide for support. The court may award a lump sum distribution when the paying spouse is unlikely to pay or does not have the ability to pay but there are significant marital assets.
13. Change of Name: A woman may ask the court to restore her former name to her in the petition for dissolution of marriage. You should notify us of your desire before we file the initial pleading.
14. Attorney's Fees and Cost: The Court may award attorneys fees to be paid by the party with a greater ability to pay. Fees are not awarded based upon who won, as there are no winners in divorce and the process is supposed to be equitable. Even though your spouse may have superior financial ability and may be ordered to pay all or part of your attorney's fees and the cost of litigation (filing fees, court reporters, copies, etc.), we require that you pay a retainer fee up front for your dissolution or family law matter. If the Court awards fees, then you may be reimbursed by your spouse for your fees and costs. Fees will vary depending on the hours expended by the attorney on your case. The attorney will provide you with an initial estimate of fees and costs on your case based upon his experience in handling similar cases. An uncontested case will result significantly lower fees. Florida is a no fault state and the divorce cannot be contested, if either party wants a divorce. The issues such as custody, visitation and equitable distribution of assets and debts and alimony are usually contested and give rise to litigation fees.
15. Final Judgment: Eventually the court will dissolve the marriage, award custody, apportion the assets and liabilities, and provide for payment of support. If an agreement is reached prior to the final hearing either through negotiations or as a result of a mediation, the court will adopt your agreement and issue a final judgment incorporating the agreement. If no agreement the court will conduct a non-jury trial, where testimony evidence are presented and the court will then rule upon the contested issues in your case. A non-jury trial is the last resort in a dissolution case and usually adds significantly to the fees and costs of the representation. The best way to reduce legal fees and costs is to reach a settlement either through negotiation or through mediation.
16. Discovery: No attorney can properly advise you as to settlement offers or the
probable outcome in court without uncovering the total picture. This is primarily done by requesting documents (discovery) from your spouse and possibly following up with questions at a deposition. Your spouse's attorney will require the same from you. Florida law requires both parties to fill out a financial affidavit under oath and to provide certain minimum discovery.
17. Temporary Relief: If your spouse has been physically abusive to you or the children, threatens to hide or dissipate assets, or refuses to give you reasonable support, the court may enter a temporary order designed to alleviate these problems until a final judgment can be entered; however, you must testify as a hearing before the judge will determine your need for temporary relief.
18. Duration of Proceedings: Many factors, such as amount of discovery required and you and your spouse's willingness to cooperate with discovery request affect the time needed to obtain a final judgement. As such, the duration of the proceedings may take as little as three months or more than one year. An average contested divorce takes approximately six to twelve months.
19. Our Professional Services: We utilize our knowledge, experience, and research skills to obtain the best possible result for you. One service we cannot provide, however, is to go back and rewrite your life and marriage. We are restricted by the facts you bring us. We are also not psychologists, so if your emotional problems exceed our expertise, we will recommend a counselor. Neither are we tax experts or accountants. If your financial picture is complex, you may need to retain one of these experts to work on your case too. Outside the circle of the professionals, every confidence you disclose to us will not be repeated without your permission.
20. General Suggestions: Divorces are as unique as the marriages that crated them. Do not expect the same outcome a friend had in court. Also, do not allow your emotions to rule your head. Not standing up for yourself now will cause you to be very resentful later. On the other hand, don't use the proceedings as a instrument of revenge for a long list of marital ills. This approach may provide short term satisfaction, but may blind you to long term gains. This is especially true regarding your children. Cooperating with each other for the children's welfare, and not poisoning them against your spouse, is a must if your children are to service this ordeal.
For more information or a free consultation on your legal issue contact The Law Offices of Charles D. Scott PLLC, your injury law and family law attorneys, at 727-300-4878. http://www.yourstpetelawyers.com