The following was reprinted in part with permission of The Florida Bar. To order a free pamphlet on this subject send a self addressed, stamped legal size envelope to Consumer Pamphlets, The Florida Bar, 650 Apalachee Parkway, Tallahassee, Florida 32399-2300.
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 many social and religious organizations offer counseling services either free or on a sliding fee scale. Or you mat 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.
The official word for divorce in Florida is "dissolution." 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 the marriage is broken. (There is another, little-used ground: incompetency of one's spouse). 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 the marital assets may become a contested matter.
The divorce process is highly emotional and traumatic for everyone it touches. Marriage partners often do not know their legal rights and obligations. Court clerks and judges can answer some of your basic questions but are prohibited from giving legal advice. Only your lawyer is allowed to do that. Court procedures must be strictly followed or you may lose certain rights forever. It is recommended that you obtain the services of an attorney concerning legal questions, your rights in a divorce, your children's rights, your property rights, your responsibilities resulting from the marriage or tax consequences. A knowledgeable lawyer can analyze your unique situation, and can help you to make decisions in the best interest of you and your family.
To obtain a dissolution of marriage in Florida, at least one spouse must have been a Florida resident for six months or more before the case is filed. There are two ways of getting a divorce, or dissolution, in Florida. The usual way is called a "Regular Dissolution of Marriage." The second method is the "Simplified Dissolution of Marriage."
REGULAR DISSOLUTION OF MARRIAGE
The regular 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 maximum, 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.
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. 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. Its purpose is not to save a marriage, but to help divorcing couples in reaching a solution to their problems and arriving at agreeable terms for handling their dissolution. Many counties have mediation procedures available. Some are mandatory.
Finally, some couples cannot agree on much of any thing and a trial-with each side presenting its case-is required. The judge makes the final decision on con tested issues.
The equitable dissolution process is deigned to make the divorce as fair as possible to both husband and wife, which usually means negotiation-and compromise-by 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.
SIMPLIFIED DISSOLUTION OF MARRIAGE
Certain Florida couples are eligible to dissolve their marriage by way of a simplified procedure. These dissolutions are "do-it-yourself” and were designed so the services of an attorney may not be necessary. Husband and wife are responsible, however, for filing all necessary documents correctly, and husband and wife are required to appear before a judge together when the final dissolution is granted. If you desire the services of an attorney for this dissolution process, it can usually be completed relatively inexpensively
The simplified dissolution of marriage process is designed for couples with no dependent children and no disputed property. Therefore, not everyone can qualify. A husband and wife can use the simplified dissolution of marriage only if:
they both agree to the use of this form of dissolution proceeding;
they have no minor (under 18) or dependent children:
have no adopted children under the age of 18;
the wife is not pregnant;
at least one of the parties has lived in Florida for the past six months;
the parties have agreed on the division of all of their property (assets) and obligations (debts); and
both parties agree that the marriage is irretrievably broken and want to end their marriage because of serious permanent differences. Couples wanting to use the simplified process must meet all these conditions. If not. they must use the regular dissolution of marriage process.
There are substantial differences between a simplified and a regular dissolution of marriage. In a regular dissolution, each spouse has the right to examine and cross-examine the other as a witness, and to obtain documents concerning the other's income, expenses, assets and liabilities before having a trial or settlement of the case. With a simplified dissolution, financial information may be requested but it is not required to be given. In a simplified dissolution there is no trial and no appeal. Also, with a simplified dissolution neither the husband nor the wife can receive support from the other.
If the husband and wife agree on a dissolution, and ,prefer to use the simplified form of dissolution, then they should both contact the clerk of the circuit court in their area and obtain a copy of the booklet titled ”Simplified Dissolution Information” for more detailed information on this procure
You may go to court yourself for an injunction to protect yourself against assault, battery or sexual battery By your spouse (whether you are separated or not) or your former spouse. If you feel you are the victim of such domestic violence. you should contact the office of the clerk of the circuit court in your county for information and assistance.
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 provides 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. The division of marital property (any asset acquired during the marriage by the efforts of one or both parties) is considered in conjunction with all other awards of alimony and interests in property.
There is no fixed way to determine how you or the court should divide the property. Liabilities as well as assets must be considered. Other factors include the nature and extent of the property and whether it is marital property or non-marital property, the duration of the marriage, and the economic circumstances of each spouse. If you and your spouse can agree, and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property after a trial.
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 or permanent alimony until the receiving spouse's remarriage or the death of either party, or 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 educational 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.
TAXES AND DEBTS
There are very important tax considerations to be aware of in any divorce, including the dependency deduction for children, taxability of child support and alimony in their various forms and 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 make mortgage payments, in come tax liabilities, credit card debts, personal loans, car payments, etc., should not be overlooked.
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 benefits 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 and 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 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.
The Florida Bar has developed a consumer pamphlet entitled “Shared Parenting After Divorce,” which discusses the subject and includes a model shared parenting agreement. For instructions on ordering, see the back cover of this pamphlet.
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 gets 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 many cases have been adopted by the state and will soon be mandatory.
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.
After a regular dissolution of marriage. if you feel the judge's decision was incorrect, you may appeal that decision, provided that certain procedural steps are taken. An appellate court does not, however, frequently reverse a trial judge's decision because the judge has broad discretion in divorce cases. Just because you do not like the judge's decision is not a reason for an appeal. If the trial judge makes an error of law, or has abused his discretion, the decision may be reversed.
ATTORNEYS' FEES AND COSTS
Divorce does not have to be expensive. The more complex your affairs and the more contested the is sues, the more the dissolution will cost. At an initial meeting. your attorney should be able to provide an estimate of the total cost of a dissolution based on the information you provide. To a great degree the cost will depend on how contested the matter becomes.
Your lawyer will expect you to pay a fee and the costs of litigation in accordance with the agreement you make. Sometimes the court will order your spouse to pay part or all of your fee and costs, but such awards are unpredictable and cannot be relied upon. You are primarily responsible for the payment of your legal fees.
In a divorce, it is illegal for an attorney to work on a contingency fee basis that is, where the lawyer's fee is based upon a percentage of the amount awarded to the client.
Blair & Prather PA, 2138-40 Hoople Street, Fort Myers, Florida