DIVORCE AND FAMILY LAW
Some of the common questions that I receive as to divorce in Florida are as follows:
1. How long do I need to reside in Florida to file for divorce?
You must be a continuous Florida resident for six months prior to filing your case.
2. What is the divorce procedure in Florida?
How a divorce proceeds in Florida is based upon whether or not a divorce would be contested or uncontested. An uncontested divorce is one in which the parties agree, basically, as to the terms of the divorce. This means that the parties agree as to the division of assets including the house, automobiles, bank accounts, retirement accounts, mutual funds, stocks, bonds, etc and they agree as to the parenting plan with respect to the children. A parenting plan is a document in the divorce that determines where the children will live and on what days the children will be with the father and the mother. It will also outline and make certain decisions for children in certain areas, such as schooling, medical, extracurricular activities, etc.
In an uncontested divorce, the case proceeds very rapidly with the preparation of paperwork in accordance with the parties agreement. Once everything is signed it is filed with the Court and the divorce Final Judgment is entered within 6 weeks or so.
In a contested dissolution of marriage, things take more time. Contested means that there are issues in the case in which the parties do not agree. This could be property division issues or parenting issues with the children, including contact and decision making.
In a contested dissolution of marriage, one party will file the case and have the other party served with process. Service of process means that they are handed the papers by a deputy sheriff or private process server. From the time the person is served, they have 20 calendar days in which to file an answer or responsive pleading to the case. If they do not, then they are defaulted and very limited as to what they can file thereafter.
Usually, one person will file the case and have the other person served and the other person will file an Answer and Counter Petition. In a contested case, there is discovery, meaning the production of documents and copies of numerous things such as tax returns, credit card statements, bank account statements, mutual fund and stock brokerage statements, etc. All of the financial discovery is put on the table, meaning that each party has the right to view everything. Each party is further required to file a Financial Affidavit. A Financial Affidavit is a document that is signed under oath and indicates what you make, what you spend, assets and liabilities. Once all of this is accomplished, usually a Mediation is set and the parties attend Mediation with their attorneys in an effort to settle the case.
Mediation is a process whereby both parties and their attorneys meet with a mediator. A mediator is an independent person, not a Judge. The mediator's goal is to find common ground on all the issues and attempt to get the parties to settle each issue until everything is settled. When that is done, then the mediator will prepare a Mediation Agreement at Mediation, the parties will sign, and if they are represented by attorneys at the Mediation, the Agreement is binding at that point.
After Mediation, if the case is settled, the case proceeds rapidly to a Final Judgment. If Mediation does not settle the case, then one of the attorneys will notice the case for Trial and the Court will place the case on a Trial docket. A Trial in a dissolution of marriage action is non-jury.
The difference in costs between contested and uncontested is dramatic. An uncontested case is not expensive. A contested case can be expensive, depending upon the issues.
3. What is required to receive Alimony in Florida?
Florida Alimony laws and case law are complex. There are several different types of Alimony in Florida, including permanent periodic, temporary, rehabilitative, and lump sum. The criteria for receipt of Alimony encompasses numerous items including the duration of the marriage, the incomes of the parties, the contribution of each party to the marriage, and the lifestyle attained during the marriage. Each case is different. If you will call the office, I will be happy to discuss the facts of your case and how they apply to Alimony in Florida.
4. What is the current status of child custody in Florida?
The state of Florida has recently enacted a new set of laws with respect to parenting of children. The intent is to have the children reside with each parent for approximately equal periods of time.
5. How is child support calculated?
Child support is based upon a schedule from the state of Florida using various factors to calculate same, including the net incomes of each party, the childcare costs, the health-care costs, and the time-sharing schedule. Most attorneys use a software program to calculate same.
6. What is the cost of a divorce in Florida?
The filing fee with the Clerk of Court is $408.00 and there may be other costs involved, depending upon whether the case is contested or uncontested. If a case is uncontested, meaning the parties have agreed to the terms of the divorce and will sign an agreement, the case is usually handled for a flat fee which varies slightly depending upon the complexity of the issues involved. If the case is contested, meaning that there are issues in the case which the parties are unable to resolve at the time the case is filed, then the case is usually handled on an hourly fee basis.
7. How long does it take to be divorced in Florida?
If the case is uncontested, meaning the parties have an agreement as to the division of assets, liabilities, and the parenting of children, the divorce can be completed in as little as six weeks. If the case is contested, it will take at least six months and perhaps as long as one year depending upon the complexity of the case.
8. Uncontested Divorce
An uncontested divorce is one in which the parties agree on the terms of the divorce. This means that the parties agree on who gets what, who pays what, and if they have children, parenting issues as far as contact and access to the children, child support, and division of all assets. If this is done, the paperwork can be prepared, both parties sign off, and the divorce completed within two months. The attorney can only represent one of the parties, although the other party is not required to be represented.
9. Contested Divorce
A contested divorce is one in which the parties do not agree on the settlement of all of the issues. They may agree that they want a divorce and they may agree as to numerous items that need to be decided within the case, however they do not have an agreement as to all the items. The case is litigated, meaning it is a law suit, filed with the court, and various procedures are undertaken. The difference between contested and uncontested divorces, are that uncontested divorces cost far less, and a contested divorce can take from six months to a year to complete. A contested divorce may involve the taking of depositions, which is a series of questions asked by your spouse’s attorney to you under oath, as well as temporary hearings of different types and a trial. The cost of a contested divorce is usually three to ten times the cost of an uncontested divorce.
10. Standing Order
Most local counties in central Florida have what is called a “Standing Order”. A Standing Order is an order that is issued by the court system of each county and indicates what can and cannot be done during the divorce litigation. When a case is filed, each party is required to comply with the Standing Order. Most of the items on the Standing Order require that assets not be sold or transferred and that bills remain paid during the course of the case. This is to prevent your spouse from canceling the power bill, water bill, cable bill, health insurance, or no longer making the car, rent or mortgage payments. Sometimes the spouse will attempt to transfer assets or sell assets and the purpose of the Standing Order is to prevent all of this and allow it either to be settled between the parties or be determined by the Court.
11. Attorney’s Billing
In an uncontested case, attorneys usually charge a fee that is a flat fee. There are court costs, which include the filing fee, $408.00, and sometimes some other minor costs. In a contested action for dissolution of marriage, the attorney’s fees are billed hourly. Your attorney will not know what amount the attorney’s fees will be as he has no control over what the other attorney does during the divorce. Very often what your spouse’s attorney does dictates how much time your attorney will have to spend on the case.
12. Child Support
Child support is calculated based upon a number of factors. Most attorneys have computer programs that calculate child support after the data is entered. Child support is based on a number of factors, but the main factors are the net incomes of both of the parties, the amount of overnight time spent with each parent, the cost of the health insurance for the child or children and who pays that, and the cost of any daycare and who is paying the daycare.There can be some variations and in uncontested cases, it is very often the case that the parties agree to a specific dollar figure without running the calculations.
13. Real Estate
In many cases the husband and wife will own a home. If the home is titled to both parties and both parties are signed on the mortgage, there is an issue of what will take place at the time of the final judgment with respect to who takes the property. The remaining issue is that if you are signed on a mortgage and a promissory note, then it appears on your credit report. It risky after the final judgment in that your spouse could pay the mortgage late every month and damage your credit, your spouse could not pay the mortgage at all and have the house go into foreclosure, or your credit, with the mortgage and promissory note showing on your credit report, may prevent you from obtaining another mortgage and the purchase of another house and/or other credit options, which might include stopping you from buying a car. It is important to deal with your liability on the mortgage as well as title to the house.
14. Third Parties Involved in Your Divorce Case
If you are involved with another person in an affair, meaning prior to the date of the separation of you and your spouse, or involved in a relationship with another person at this time, prior to the divorce being over, it is unwise to discuss the other person with your spouse. It is best to keep such things quiet and to not allow your spouse to know that the other person exists. Many times people want to “unburden themselves from the guilt” and therefore tell their spouse about an affair, boyfriend, or girlfriend. All this does is complicate the divorce case and make it much more difficult to settle. If such a situation exists, keep quiet. Further, do not discuss any situation with children of the marriage.
15. Marital Settlement Agreement
A marital settlement agreement is an important document in the case and it usually runs about 12-20 pages long. It outlines the terms of the settlement of your divorce case in detail. This involves who gets what, who pays what, and any other detail as to the splitting of assets and liabilities. It also involves issues with the children.
16. Parenting Plan
A parenting plan is a document that will run anywhere from 5-25 pages and involves, in great detail, the terms of the parenting of the children. This would include, but is not limited to, the time that is spend with each parent, vacations, holidays, travel and travel restrictions, child support to be paid, extra curricular expenses to be paid on behalf of the children, and any other item that is necessary to effectuate and agreement as to any issue affecting a child. It is a very important document. Both the marital settlement agreement and the parenting plan will be incorporated into the final judgment of dissolution of marriage and be made a part of the final judgment. This means that both documents will become a court order and each party is ordered to comply with same.
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Charles A. Dehlinger
260 Maitland Ave. Suite 1500
Altamonte Springs, Florida 32701