Frequently Asked Questions

Is my marriage valid?

If you meet the legal requirements of being able to form an enforceable contract with someone (i.e., you are of age, you are not under the influence of drugs, etc.), you enter into a contract to marry, and you consummate the marriage, your marriage will likely be considered valid. Certain obvious exceptions exist, of course, such as when an individual tries to enter into a marriage while still married to another. An experienced lawyer can give you a more complete explanation if you are concerned that your marriage may not be valid.

Is divorce easy?

The divorce process can be complicated or simple, based in large part on how you and your spouse interact as well as whether you have children or assets. The more the two of you can agree upon, the easier (and less costly) it will be. Going through the divorce process without an experienced family law attorney is always a costly mistake.

Does the court have or need to be involved at all?

Yes. The court will have to be involved in your case to some extent, though the level of involvement varies greatly depending on the type of case and your particular circumstances. For a dissolution of marriage, even when all issues are agreed upon, one spouse must appear in court in order for the judge to approve the agreement and grant the divorce. In a contested matter where no agreement can be reached, the case must be resolved by a trial before the court.

What are grounds for divorce?

In Florida, the only ground utilized for a divorce is that the marriage is "irretrievably broken," also known as the no-fault ground. The law also allows for divorce because of mental incapacity provided that certain requirements are met.

What is a legal separation or separate maintenance?

Florida does not recognize legal separation. However, married parties can enter into a postnuptial agreement that acts as an effective legal contract where the parties can choose how to govern their finances and marital matters. In cases where spouses are separated and one spouse is in financial need, that spouse can petition the court for support unconnected with dissolution proceedings, if they desire.

Do I need to prove fault?

No. You may seek and obtain a "no-fault" divorce in Florida. The courts in Florida do not allow presentation of "fault" in any divorce.

What is a no-fault divorce?

To obtain a "no-fault" divorce (irretrievably broken), one party must simply prove that, to them, the marriage is over. This can be proven through sworn testimony of one party and is always granted on that basis.

Do I need to live in the state to get a divorce here?

No. In Florida, only one spouse must have lived in the state for at least six months; it is not necessary for both spouses to live in Florida.

What if we still live together when I file for divorce?

That is very common. There is no legal requirement that you must be living in separate residences before filing for divorce. Some people choose to live together throughout the divorce proceedings for financial or child-related reasons.

How do I actually file for divorce?

The person seeking the divorce (the "petitioner") must file the appropriate documents with the Clerk of Court and pay a filing fee. The main document filed is the petition for dissolution, and depending on the unique circumstances of your case, varying information about current living arrangements, children of the marriage, and whether there are assets and debts to be addressed. The petition for dissolution also contains a request for relief that describes what you want from the court. The petition for dissolution and supporting documents must be served upon your spouse, which can be accomplished in many ways, most commonly a process server carries out this task.

Where do I file for divorce?

Oftentimes there are several different counties in which your divorce can be filed depending upon where each of the parties live and where the marriage was last intact. To strategize regarding the best jurisdiction for your case, schedule a complimentary case assessment with our experienced attorneys.

I just received a complaint or petition for divorce from my spouse, now what?

Quickly contact and consult an attorney who practices exclusively marital and family law. You have 20 days to "answer" the complaint or petition in writing. The answer allows you to admit or deny each claim in the complaint. You may also file a "counterclaim" which allows you to provide the court with the issues you would like addressed in response to your spouse seeking a divorce. You must not allow the deadline to pass without properly answering the petition or complaint otherwise you risk waiving all of your rights.

Can I get the court to help me immediately?

If there is a true life or death emergency situation, and you file the correct motion, the court will act on an expedited basis. For situations outside of the court's definition of a true emergency, most courts allow a temporary relief hearing to occur before a full trial. This allows the parties to obtain temporary relief during the pendency of the case, whereas it often takes several months or more to go to trial. Most temporary relief hearings are limited in time and scope. In many counties, you will be required to go to mediation before you are allowed to have a temporary relief hearing.

What if there is violence?

Call the police. Additionally, either a lawyer or a social agency can assist a party in filing for an order of protection to prevent family violence. The court can immediately address issues such as temporary use of a home and restraining orders even if the parties are not married.

Will a judge or jury decide my case?

If parties are not able to resolve their issues by mutual agreement, questions of child custody, time sharing and attorney's fees can only be determined by the judge (not a jury). However, in certain cases, the judge or, if one of the parties requests, a jury, will resolve the financial issues of the marriage (i.e., division of property, division of debts, alimony and child support). Both spouses may introduce evidence by their own testimony and may also summon other witnesses to the final trial. The decision returned by a judge or jury is written into a court order that is binding upon both parties. At any temporary hearing, only the judge (not a jury) makes the decisions.

What about my children?

Typically, until a court ruling or agreement, married persons share custody or parental responsibility. The judge will try to fashion a custody or parenting plan that is in the "best interests of the child." The judge will consider many factors, including the safety of the child, and the ability of each parent to care for and nurture the child.

Can I share custody or parental responsibility?

The term "custody" has been intentionally removed from the Florida statues by the legislature, and has fallen out of use in most other states as well. The terms "parental responsibility" and "time sharing" are now used. When the court decides what most people think of as "custody," it is really deciding these two issues of parental responsibility and time sharing. The default law is that both parents have shared parental responsibility regarding the children, meaning that they must make major decisions about the children together. In some instances, the courts allow one parent to have the ultimate say regarding certain decisions about the children so long as that parent has consulted with the other parent first. In rare instances, the court will award one parent "sole parental responsibility," which gives that parent complete control over all decisions regarding the children. Parental responsibility is always modifiable based upon a substantial change in circumstances and best interests of the child.

I have heard about parenting seminars. What are they?

Most courts now require that parties to a case involving minor children attend a seminar to educate the parents on the ramifications of the case for children. Your attorney will advise you whether you are required to comply with this mandate.

What are my (or the other person's) child support obligations?

Child support is determined by a formula in Florida. Some online calculators allow you to get a very general idea of what your child support obligation may be, but they cannot be relied upon and are often inaccurate. In general, parents are obligated to pay child support at least until the child is 18 years old or up to age 19 if the child is in high school. The greatest factors in determining how much child support is owed are each parent's net income and the percentage of overnights that the children spend with each parent. Child support calculations also take into account other expenses, including but not limited to child care costs and health insurance costs.

Many factors impact the final child support calculation, such as the percentage of overnights the children spend with each parent, the cost of health insurance and the cost of child care, among other things. Child support should be calculated by an experienced family law attorney to ensure accuracy.

What about college?

The court cannot force parents to pay for college expenses. However, parents can agree between themselves to pay support beyond the age of 18 and/or to pay for college expenses.

What is alimony?

Alimony is a support payment by one spouse to another that, based upon numerous factors, may be appropriate in a particular case. Alimony may be for a limited time period or until the spouse receiving alimony dies or remarries, or may be paid in one lump sum. Again, the court will review the parties' finances when determining the issue of alimony. Factors the court will consider in determining alimony include the length of the marriage; health of each party; assets of each party; and the contributions of each party to homemaking, child raising and career building of the other party. Alimony is granted in marriages of short, moderate and long term.

What happens to our possessions now?

In general, the court will identify each asset, value each asset, and distribute each asset to one party or the other. The court starts with the premise that the division of assets should be equal, but many factors can influence the court's decision. It is possible for there to be a fair and equitable distribution of assets that is not an equal distribution of assets. For assets that were acquired before the marriage, the court generally awards such asset to the person who acquired them. Some assets are mixed in the sense that they were acquired before the marriage but were paid for, improved upon and/or increased in value during the marriage. Typical assets like these are homes or businesses. This issue is complex, and you should consult with an experienced family law attorney about the facts of your particular case.

How will the court orders be enforced?

Court orders for money can generally be enforced by garnishment, attachments of property or by a contempt action. Parental responsibility and time-sharing orders may be enforced in a variety of ways from contempt actions to warrants for wrongfully taking or withholding a child.

How long will the whole process take?

It depends. If you reach a signed agreement on all issues, the divorce is considered "uncontested," and may be granted in as short as 20 days. If disagreement exists regarding any matter involved in the divorce, the divorce will be obtained when the case reaches the court, which can take many months or even years depending on the court's schedule. Of course, if you reach an agreement while the case is pending, you can submit that to the court almost immediately and the case will be over and the divorce will be granted.

My spouse and I agree on all matters concerning the divorce. Do we still need an attorney?

Hiring a lawyer, even when parties are in agreement on all terms, will ensure that all matters that should be covered in a divorce and the corresponding pleadings and agreements are addressed. Acting without a lawyer is often a costly error, both to the parties and to their children. Also, a lawyer may only represent one party, so each party should consult with a lawyer of their own choosing. Even if you agree on all issues, you may not recognize or realize potential, even unintended pitfalls that a lawyer may help you avoid. However, the law does not require that you have a lawyer and if you can navigate the legal system and file the appropriate documents while following the applicable rules, it is possible to file and complete a divorce without lawyers involved. This is known as proceeding "pro se" and while it will take a significantly longer time to complete, it is possible

What is a case assessment?

A case assessment is where you have the opportunity to discuss your case and the specific details of your family law matter with one of our award-winning attorneys. During the case assessment the attorney will advise you of what to expect during the process as well as what your rights and potential exposure may be. At the conclusion of the case assessment, the attorney will advise you whether we are willing to accept your case. If we choose to accept your case, then the attorney will advise you of the retainer required to commence work on your case. The initial case assessment is a complimentary one-half hour meeting.

How much do lawyers cost?

As is the case with any profession, cost varies from law firm to law firm. Lawyers cannot charge a "contingency fee" in a divorce case, so they charge either by the hour or a flat fee. Flat fees are rare, except when the case is truly "uncontested" and all terms have been agreed upon. For a contested case, most lawyers require a retainer which is an upfront payment which may serve either or both of two purposes: To ensure the lawyer is available and cannot accept employment by the opposing party, and to serve as an advance payment for services to be rendered. Most lawyers then bill against that retainer and ask that it be replenished when it runs low or is depleted. Retainers vary depending on the complexity of the case and the law firm's usual practice. Hourly rates charged by lawyers and paralegals vary but will usually be $100 per hour or more for paralegals and from $250 to $500 per hour for lawyer time.