What is a divorce?
The official term for divorce in Florida is "dissolution of marriage."
Florida is one of the many states that has abolished fault as a ground for divorce. This law lessens the potential 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 a marriage exists, one party has been a Florida resident for six months, and the marriage is broken. Fault, however, may be considered under certain circumstances in the award of alimony and determination of custody issues. Each divorce case is unique and therefore settlements vary. Even though fault is not an issue, the division of property and possessions and responsibility for support may become contested matters.
Can your marriage be saved?
Before you take any legal steps to end your marriage, you should make sure that you have tried all possible ways to save it. Do you want professional help in working out ways to save your marriage? Many communities and social and religious organizations offer counseling services either free or on a sliding fee scale. You may wish to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi or other qualified person. Your attorney may also know someone who can counsel you and your spouse.
What is a Dissolution of Marriage?
The dissolution process begins with a Petition for Dissolution of Marriage, filed with the Circuit Court by the husband or wife, which states that the marriage is irretrievably broken and sets out what the person wants from the court. The other partner must file an Answer within 20 days, which includes the matters within the initial petition on which the parties agree or disagree as well as any issues the answering party wishes to raise.
Court rules governing divorces require that each party provide certain financial documents and a completed financial affidavit to the other party within 45 days of the service of the petition or before any temporary relief hearing. The extent of the information to be provided depends on the annual income and expenses of each party. Failure to provide this information can result in the court dismissing the case or not considering that party's requests. The parties or the court can modify these requirements except for the filing of a financial affidavit, which is mandatory in all cases.
Some couples agree on property settlements, child custody, and other post-divorce arrangements before or soon after the original petition is filed. They then enter into a written agreement signed by both parties that is presented to the court. In such an uncontested case, a divorce can become final in a matter of a few weeks.
Other couples disagree on some issues, work out their differences, and appear for a final hearing with a suggested settlement which is accepted by the judge.
Mediation is a procedure to assist you and your spouse in working out an arrangement for reaching agreement without a protracted process or a trial. Its purpose is not to save a marriage, but to help divorcing couples reach a solution to their problems and arrive at agreeable terms for handling their dissolution. Many counties have mediation services available; some are mandatory.
Finally, some couples cannot agree on much of anything and a trial—with each side presenting its case—is required. The judge makes the final decision on contested issues.
The equitable dissolution process is designed to make the divorce as fair as possible to both husband and wife, which usually means negotiation—and compromise3by both partners.
Attorneys have learned it is unrealistic to expect both partners to be "happy" with their divorce. The experience can be emotionally devastating. The financial upheaval of supporting two households instead of one causes hardship for the entire family. The parties, however, can take steps to make the process easier for themselves and their children.
How is property divided?
One of the most difficult and complex areas of divorce is the division of marital property. Marital property may include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bank accounts, personal property and other things of value.
Florida statutes and case law provide for an "equitable distribution" of marital property. In essence, the marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the title is held. The division is based upon all facts of the case and the contribution of both spouses to the marriage.
What is alimony?
The court may grant alimony to either the husband or the wife. Rehabilitative alimony may be for a limited period of time to assist in redeveloping skills and financial independence. Permanent alimony continues until the receiving spouse's remarriage or the death of either party. The court may grant some combination of the two. Also the court may order through lump-sum alimony one party to pay the other party a lump-sum payment of money or property. Although adultery does not bar an award of alimony, the court may consider the adultery of either spouse and the circumstances of that adultery in determining the amount of alimony to be awarded.
In awarding alimony, the court considers all relevant economic factors, such as: the parties' prior standard of living; length of the marriage; age and physical and emotional condition of both spouses; each spouse's financial resources and income-producing capacity of the assets they receive; the time necessary to acquire sufficient education or training to find appropriate employment; and the services rendered in homemaking, child-rearing, and education and career building of the other spouse. The court may consider any other factor necessary to do equity and justice between the husband and wife.
You have the right to find out about all your spouse's income and assets through the use of discovery procedures which your attorney will explain to you.
How are taxes and debts resolved?
There are very important tax considerations to be aware of in any divorce, including the dependency deduction for children, taxability and deductibility of child support and alimony in their various forms, and effects of property transfers. It is important to find out how these laws affect you before you get divorced. Afterwards, it may be too late to correct mistakes that have been made. Often this may require the services of an accountant in conjunction with your attorney.
Any debts that the husband and wife may have should also be resolved at the time of the divorce. The question of who should pay mortgage payments, income tax liabilities, credit card debts, personal loans, car payments and other debts should not be overlooked.
What is shared parental responsibility for children?
Custody and Visitation
It is the public policy of Florida to assure each minor child frequent and continuing contact with both parents after the parents have separated or divorced, and to encourage 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 minor child will be shared by both parents so that each retains full parental rights and responsibilities with respect to their child. This requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly.
You and your spouse may agree, or the court may order, that one parent have the ultimate responsibility over specific aspects of the child's welfare, such as education, religion, removal from the area, medical and dental needs. If the parents have a substantial conflict over any of these areas the court will decide for them. The court will also designate one parent's home as the primary residence of the child. The other parent is usually entitled to frequent and continuing contact with the child.
In rare cases, the court can order total parental responsibility and custody to one parent. To do so, the court must determine that shared parental responsibility would be detrimental to the child.
The court may award to the child's grandparents certain visitation rights if it is deemed by the court to be in the child's best interest. Thereafter, the grandparents have the right to seek judicial enforcement of the visitation rights. The court may award grandparents visitation rights after the parents divorce, when it is in the best interest of the grandchild or when one or both parents of the child are deceased; or when a parent of 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.
What is child support?
You and your spouse each have a responsibility to support your children in accordance with their needs and your financial abilities. Support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches 18, marries, or becomes financially independent.
Some of the issues concerning child support which must 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 claims the dependency deduction for tax purposes. Other questions may need to be answered, depending on the circumstances of your case. Guidelines for support which apply to all cases have been adopted by the state generally is based on the income of the parents and the number of children.
If you have a problem getting support payments from your spouse or former spouse, or visitation and access to your child is denied, you should bring this matter to the attention of the court. It is not proper to withhold visitation or child support payments because of any alleged wrongdoing by your spouse or former spouse.
