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1. What is a divorce?
A divorce or dissolution of marriage is a decree by a court that a valid marriage no longer exists. It leaves both parties free to remarry. The court will award custody, divide property, and order spousal and child support. American Bar Association Family Legal Guide Copyright © 2004 American Bar Association.
2. What are the grounds for divorce in Florida?
Florida is a No-Fault divorce jurisdiction. The sole standard for granting the divorce is that the marriage is "irretrievably broken." There is no need to prove adultery, cruelty or emotional abuse and a divorce will be granted even if one spouse does not want a divorce.
3. Is there a residency requirement?
Yes, a Florida Court will not grant a divorce unless one spouse has lived in Florida for at least six months prior to filing for divorce.
4. How do I commence the process of divorce?
One spouse contacts a lawyer, who assists in the preparation of a Petition for Dissolution of Marriage, the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought. The Petition for Dissolution of Marriage is filed with the Court and served on the other spouse, together with a summons that requires that spouse's response within twenty (20) days.
5. What can I expect after the Petition for Dissolution is filed?
The parties will engage in discovery, during which they exchange all documents and other information relevant to deciding the issues in the divorce.
The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by a neutral third party, such as a mediator. If a settlement is reached, the agreement encompassing the terms of the settlement is submitted to the court. If the court approves the settlement agreement, a divorce decree will be issued encompassing the terms of the agreement.
If a settlement agreement is not reached, the parties and their attorneys will attend trial and present evidence and arguments related to the contested divorce issues. Following trial, the Court will decide all unresolved issues and enter a divorce decree.
6. Can I obtain temporary relief during the pendency of the divorce proceedings?
Yes, there are several types of temporary relief available during the divorce proceedings including an injunction against domestic violence, temporary alimony, temporary child support, temporary attorney's fees and litigation expenses, and temporary custody and timesharing.
7. How does the Court decide which parent will get custody of a child?
When the parents cannot agree on a custody arrangement, the Court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child's best interest. The court considers the following factors: the child's age; the child's gender; the child's physical and mental health; the parents' physical and mental health; the parents' lifestyles; any history of abuse; the emotional bonds between the parent and child; the parent's ability to give the child guidance; the parent's ability to provide the basic necessities such as food, shelter, clothing and medical care; the children's routines; the willingness of the parent to encourage a healthy, ongoing relationship between the child and the other parent; and if the child is above a certain age, the child's preference.
The Court usually orders "shared parental responsibility" in instances where it finds the parties can cooperate on issues regarding their children. This means that both parties are jointly responsible for making major decisions regarding the general welfare and well being of their minor children (education, religion, health and extracurricular activities). The parent with whom the minor children will reside during the majority of the year is designated the "primary residential parent." The other parent will be provided with reasonable rights of access and visitation with the minor children. The Court will direct both parents to separately attend an approved Parenting course before granting the Final Judgment for Dissolution of Marriage.
In some cases, however, one party may be awarded sole custody, which is when only one parent is responsible for the general well-being and making decisions on behalf of the minor children. The other parent will then usually have specified visitation and contact times with the children. This is usually the case when, for example, domestic violence is an issue.
8. Who is responsible for child support and how is it determined?
In all instances, both parties are responsible to provide child support to their minor children until age 18 or otherwise "emancipated" (usually, self-supporting, or until high school graduation if the child is still attending high school when he/she becomes 18). This is achieved by ordering that the non-custodial parent pay to the custodial parent a sum of money based upon the paying parent's proportionate share of combined parental incomes and the number of children. The Legislature has adopted Child Support Guidelines, which designate the total amount of child support to be provided by the parents. Other items to be included in the child support equation are health insurance, after-school care, day care and babysitting expenses. Life insurance should also be sought to secure the amount of child support to be paid by the nonresidential custodial parent in the event that the payor parent dies before the children become emancipated. Sometimes, the amount of child support will vary from the "guideline" amount, due to the children being with non-residential parents for an extended period of time regularly (such as long summer vacations). There is also a mandatory change in basic guideline amounts of child support if the child spends 40% or more of the overnights during the year with the non-primary residential parent.
9. What is Alimony (spousal support) and when will it be awarded?
Permanent alimony is an amount of money paid periodically (i.e. each month) during the lifetime of both parties. These payments terminate upon remarriage of the recipient or death of either spouse. Rehabilitative alimony is a certain sum of money paid over a specific period of time, to provide training for job skills or assist support needs until the recipient can become self-supporting. These payments terminate at the date specified in the award, or upon the death of either party, but not necessarily upon remarriage of the recipient spouse. Lump sum alimony is a payment of a fixed and definite sum and is in the nature of a final settlement between the parties. Despite its name, lump sum alimony may be paid in installments.
The amount and type of alimony is based upon the demonstrated needs of the recipient spouse and the ability of the paying spouse to provide these funds. The Court must consider the length of the marriage, the parties' standard of living during the marriage, how the property and debts of the marriage have been divided, and other factors all specified by law.
10. How will the court divide our assets and liabilites?
The Florida Legislature has adopted a statute which determines the division between the parties of their property and debts. The law requires that all marital assets and liabilities are to be divided between the parties in an "equitable" or fair manner. There are many factors listed in the statute that the Court has discretion to utilize in making an equitable distribution of property.
11. Who pays the attorney's fees and costs?
The Court may award one spouse attorney's fees after considering the financial circumstances of both spouses, including one spouse's need for, and the other spouse's ability to pay, attorney's fees. In other words, if one spouse can afford an attorney, and the other cannot, the Court may require that the able spouse pay all or some of the other spouse's attorney's fees. This is to ensure that both spouses are "on a level playing field" and have "similar access to competent legal counsel." Attorney's fees can be awarded at the initial stages of the case as well as at the conclusion.
12. What is a Premarital (Prenuptial) Agreement?
A premarital agreement is a written contract created by two people planning to be married. The agreement lists all the property each party owns, as well as their debts, and it specifies what each person's property rights will be after they marry. Premarital agreements often specify how property will be divided and whether spousal support will be paid in the event of a divorce. A premarital agreement accomplishes the objective of satisfying spouses' needs for certainty that assets will be protected in the event of divorce.
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