Family Law encompasses not only divorce actions, but also includes modification proceedings, adoptions, paternity actions, and step parent adoptions. In divorce proceedings, often issues of alimony, child custody, child support, and property division must be addressed. Our Cocoa Beach firm offers assistance in legally ending a marriage, and with issues that will need to be resolved regarding children, finances and property.
Florida is a No-Fault state. That means that you do not have to prove that the other person was at fault in order to get a Dissolution of Marriage. Either party can file if the marriage is irretrievably broken. That means that there is no chance for reconciliation, or if one of the spouses has been mentally incapacitated for at least three years.
You must be a resident of the state for the entire six-month period before filing the paperwork. A requirement in Florida is that the marriage must be found to be “irretrievably broken,” and that will be a finding by the Court in the Final Judgment of Dissolution of Marriage. Although a judge can require that a couple seek counseling before granting the divorce, that instance is extremely rare.
The two types of divorces in Florida are contested and uncontested. In an uncontested divorce, the parties agree to splitting the assets and debts acquired during the marriage, agree to how timesharing with the children (if any) is to take place, and further agree to spousal support and child support. Just as it sounds, a contested divorce is when the parties are not in agreement about one or more issues. A contested divorce requires the parties attend mediation and if agreements are still not reached, a trial before a judge (without a jury) may be necessary.
For an uncontested divorce, the attorney’s fees are usually quoted at a flat fee rate for the attorney’s services, plus the costs of filing. A contested divorce is more expensive. The client is billed at an hourly rate for attorney and paralegal time, a retainer is taken at the beginning of the case, and a retainer is also taken for costs. The client receives a monthly bill from the attorney which shows how the retainer is being spent. The retainer in a contested divorce will usually need to be replenished. Attorneys can only provide an estimate of the total expense of a contested divorce. A lot depends on the mindset of the opposing spouse and the skill of the attorney you hire.
Each party to a divorce should be realistic and understand that divorce can be less complicated in an uncontested divorce or, if need be, more difficult and longer by the process of a contested divorce. Both parties need to understand that one party does not dictate how the divorce is run or the final outcome. The judge will make the final decision if the parties cannot agree.
The most important thing to understand in the divorce process is your rights. Discussing with an attorney the divorce process in Florida and how the law applies to your rights and obligations will surely put you in the correct mindset for moving forward. Remember, sometimes people will only respect a Court order. Never settle for less than what you are entitled to just because divorce is unpleasant. Speak first with an experienced, level headed attorney to know your rights.
IF YOU ARE IN AGREEMENT:
There are many types of avenues to take with divorce. If you and your spouse are in agreement with ending the marriage, dividing the assets and debts, and the matter of spousal support, that situation falls under the category of an uncontested divorce. This is a fairly straightforward process, although there is quite a bit of paperwork, even more so if children are involved.
If there are minor children and you and your spouse are in agreement as to ending the marriage, dividing the assets and debts, spousal support, child support, and timesharing with the child or children, under these circumstances there is more paperwork, but the divorce flows like an uncontested divorce. Again, the uncontested divorce is less expensive than a contested divorce. The work of negotiation is completed by the parties before the paperwork is drafted. This way, the attorney can better estimate the time involved and can provide a flat fee price for the divorce.
Once you consult with an attorney to understand your rights, you will have an idea as to whether you and your spouse are able to navigate an uncontested divorce. If you believe the issues involved in your specific situation cannot be resolved between you and your spouse, hire an attorney with experience to be on your side.
IF YOU ARE NOT IN AGREEMENT:
If you and your spouse are not in agreement regarding ending the marriage and dividing the assets and debts and as to timesharing with the children, then this situation involves a longer process with the court. Generally, a contested divorce is more expensive, billed hourly, and requires an initial retainer deposit to be applied against hourly billing by the attorney and paralegal.
WHAT IF I DO NOT HAVE MONEY FOR AN ATTORNEY?
One party may allege that they cannot afford an attorney, but that their spouse has the financial capability to contribute toward fees. Typically a judge does not want to see one party “out lawyer” the other by outspending on fees and drawing out a case. Your attorney can ask the court to order that your spouse contribute toward paying your fees and other expenses on a temporary basis. The judge can also order a party to pay attorney fees to the other party if they have caused unnecessary litigation.
CHILDREN DURING DIVORCE IN FLORIDA:
The parties will have to interact if there are minor children of the marriage. Arrangements for timesharing, child support, health care coverage, extracurricular activities, schooling and other issues will need to be worked out. Issues regarding timesharing with the minor children is often a topic of dispute between the parties. If the parties cannot agree, the judge will decide in detail how the timesharing will work, as well as issues of drop off and pick up of the children before and after a party has had their timesharing. Sometimes other parties may need to get involved to assist with supervised visitation. The judge may order supervised visitation when one party proves that it is unsafe for the children to be alone with the other parent.
Contested issues regarding minor children can be costly if the parties cannot find common ground. Florida does not presume in favor of women regarding timesharing. Depending on circumstances, it is presumed that timesharing between the parents will be on a fifty/fifty basis, based on the best interests of the child. The “best interests of the child” test is applied in every scenario regarding children involved in their parents’ litigation.
The courts generally have administrative orders that require the parties to read the orders, and then sign a document (filed with the court) stating that they have read the orders pertaining to how to act during divorce. The administrative orders also spell out how you behave in dealing with the children before, during, and after the divorce. The best interests of the children prevail until the children reach the age of majority and no longer fall within the jurisdiction of the court as to the divorce.
Parents of minor children are also required to take a Florida Divorce Parenting Class. The certificate of attendance at this class must be filed with the court as part of the divorce process.
The court will require that the parties enter into a parenting plan (and file it with the court) regarding the issues involving the minor children. This plan deals with decisions regarding timesharing, education, health care, physical, social and emotional wellbeing, as well as other issues. The parenting plan will need to be approved by the court.
There are other issues regarding parenting minor children after divorce such as applying to the court for permission to relocate (temporary or permanently) with the minor children or without the minor children and revising timesharing schedules.