What Is Uncontested Divorce?

Florida has the unfortunate distinction of being among the top 10 states in the nation for divorce rates and Altamonte Springs is no exception to this trend. While the reason for these separations are as numerous as the individual families, legally, all divorces ultimately fall into one of two categories – uncontested or contested. As a divorce attorney serving Altamonte Springs and Central Florida, Charles Dehlinger has seen hundreds of cases representing both types. While neither type of divorce is easy or pleasant, uncontested divorces are generally smoother and more amiable than contested ones, emotionally, financially, and legally.

But often, our clients are confused about what constitutes an uncontested divorce. Entering a divorce is difficult enough. But realizing for the first time in the attorney’s office that your divorce is going to be twice as time-consuming, difficult, and expensive as you had planned can only exacerbate the turmoil. That’s why, before you consult an attorney, it’s helpful for both you and your spouse to understand exactly what defines an uncontested divorce and for the two of you to work toward that end, if possible.

What Uncontested Divorce is NOT

Many couples enter the divorce process either thinking their divorce is uncontested when it is not or believing such a divorce is not an option when it is. Dispelling the myths of uncontested divorce is the first step toward determining whether or not you will be capable of pursuing this type of dissolution and planning accordingly.

An uncontested divorce is not . . .

  • Mere mutual agreement to divorce (although this is an important component)
  • The absence of disagreement about the details of the divorce (this is often impossible)
  • A commitment to go through divorce without an attorney or legal counsel
  • A forfeiture of all legal protections as to the terms of the divorce.

Many uncontested divorces are quite the opposite of what is described above. Agreement to divorce without agreement on exactly how the divorce should take place (including the details of the divisions of property, debt, and child custody) does not qualify as an uncontested divorce. However, it is perfectly normal to have points of disagreement that need resolved. This is why an attorney and/or professional mediator is often an integral part of achieving such a resolution, by helping the parties negotiate these points and come to a legally-binding agreement outside of the court system.

That brings us to what an uncontested divorce IS. Specifically, an uncontested divorce is one that includes these elements:

  • An agreement to divorce
  • An agreement on how to divide all remaining marital property
  • An agreement on how to divide all marital debt
  • An agreement on all aspects of child and spousal support
  • An agreement to use an attorney and/or professional mediator to negotiate any areas of disagreement instead of going to court

While there are some scenarios – especially those involving abuse or complex assets – that cannot be resolved without litigation, marriages that can be dissolved in this manner are significantly more streamlined and less expensive.

Charles Dehlinger has handled hundreds of uncontested and contested divorces. If you’re uncertain whether you can arrive at an agreement with your spouse, call his office today for a consultation. Sometimes a little time spent with an impartial third party is all that is needed to hash out the remaining disagreements. If you’re already committed to an uncontested divorce and are contemplating filing the paperwork yourself, call us anyway – initial consultations are always free. Misfiled paperwork and agreements that are made without fully understanding the future ramifications are a frequent cause of drawn-out divorces, expensive re-filings, and later regrets. A compassionate and experienced Florida divorce attorney can often smooth your way into your new life.

During office hours, you can reach Attorney Dehlinger at (407) 682-4402. Can’t call us between 9 and 5? We understand! Attorney Dehlinger is available after hours on his cell at (407) 496-8687.

Florida’s Proposed Alimony Statute Modification and 50/50 Timeshare

There were numerous issues with the statute:

From a 50/50 timeshare case, the new law would have made 50/50 time sharing with the children a “presumption”. This means that the Court is directed to do the presumption unless it is proven to not be in the best interest of the children. This shifted the burden of proof on the person wanting to not have 50/50 time sharing. The focus was on the rights of the parents as to 50/50 time sharing and not on the best interest of the children.

As to alimony modifications, the proposed statute would have done away with permanent periodic alimony and would have imposed a mathematical formula for calculations as to alimony. It would have dramatically changed the judicial discretion of each judge in a particular case and would have imposed a formula that wouldn’t have allowed a judge to deviate unless there were very substantial reasons for deviation.

It is possible that the Florida alimony laws will be changed in the future, however, that will have to wait for the next session of the legislature. It is unfortunate that both provisions were tied together in that some sort of alimony modification could have been realistic without the 50/50 time sharing statute tied to it.

We will see what the legislature has in mind in the future and whether or not the governor is willing to go along with future proposed laws in this area.

Changes in Alimony and Child Custody

Its February 2016 and the Florida Legislature is at it again. The Florida Legislature is attempting to pass legislation which involves sweeping changes with the alimony statute. Also pending are the changes with respect to what is commonly called “child custody”. The child custody bill is House Bill 553 and the alimony statute is SB 250 and HB 455. On February 5, 2016, the house judiciary committee deemed HB 455 favorable.

The changes in the alimony statute proposed will change permanent periodic alimony, the duration of alimony to be paid in numerous cases as well as the amount of alimony.

One of the big changes in the proposed custody statute would change the presumption in cases involving child custody. One of the major changes is that 50/50 time sharing, meaning each parent has an equal amount of time with a child, would be the presumption. Judges would deviate from that presumption only upon showing cause why there should be a deviation.

These are some of the changes and I will keep you updated as to what the legislature does with respect to these matters.

If you want to review the Florida alimony statute, it is Florida Statute 61.08. I have added it below for your convenience so that you can see what the law looks like in statute form, although there is case law that explains a lot of this, this is the current alimony statute. It is subject to being modified or changed per the current legislature as they seek to push through a new version of this law.

61.08 Alimony.

(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be bridge-the-gap, rehabilitative, durational, or permanent in nature or any combination of these forms of alimony. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.

(2) In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but not limited to:

(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common.
(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties.
(3) To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.
(4) For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.
(5) Bridge-the-gap alimony may be awarded to assist a party by providing support to allow the party to make a transition from being married to being single. Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 years. An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award of bridge-the-gap alimony shall not be modifiable in amount or duration.

(6)(a) Rehabilitative alimony may be awarded to assist a party in establishing the capacity for self-support through either:

1. The redevelopment of previous skills or credentials; or
2. The acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.
(b) In order to award rehabilitative alimony, there must be a specific and defined rehabilitative plan which shall be included as a part of any order awarding rehabilitative alimony.
(c) An award of rehabilitative alimony may be modified or terminated in accordance with s.61.14 based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.
(7) Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis. An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances in accordance with s. 61.14. However, the length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.
(8) Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in subsection (2), following a marriage of moderate duration if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set forth in subsection (2), or following a marriage of short duration if there are written findings of exceptional circumstances. In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance with s.61.14.
(9) The award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances.
(10)(a) With respect to any order requiring the payment of alimony entered on or after January 1, 1985, unless the provisions of paragraph (c) or paragraph (d) apply, the court shall direct in the order that the payments of alimony be made through the appropriate depository as provided in s.61.181.
(b) With respect to any order requiring the payment of alimony entered before January 1, 1985, upon the subsequent appearance, on or after that date, of one or both parties before the court having jurisdiction for the purpose of modifying or enforcing the order or in any other proceeding related to the order, or upon the application of either party, unless the provisions of paragraph (c) or paragraph (d) apply, the court shall modify the terms of the order as necessary to direct that payments of alimony be made through the appropriate depository as provided in s. 61.181.
(c) If there is no minor child, alimony payments need not be directed through the depository.
(d)1. If there is a minor child of the parties and both parties so request, the court may order that alimony payments need not be directed through the depository. In this case, the order of support shall provide, or be deemed to provide, that either party may subsequently apply to the depository to require that payments be made through the depository. The court shall provide a copy of the order to the depository.
2. If the provisions of subparagraph 1. apply, either party may subsequently file with the depository an affidavit alleging default or arrearages in payment and stating that the party wishes to initiate participation in the depository program. The party shall provide copies of the affidavit to the court and the other party or parties. Fifteen days after receipt of the affidavit, the depository shall notify all parties that future payments shall be directed to the depository.
3. In IV-D cases, the IV-D agency shall have the same rights as the obligee in requesting that payments be made through the depository.