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 an existing marriage while still married to another. A 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. The more the two of you can agree upon, the easier (and less costly) it will be.
DOES THE COURT HAVE OR NEED TO BE INVOLVED AT ALL?
Yes. The Court will have to be involved if 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. However, in a paternity matter when both parents have come to a reasonable agreement, the parties may not ever have to go in front of a Judge. On the other hand, 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 primary 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.
DO I NEED TO PROVE FAULT?
No. You may seek and obtain a "no-fault" divorce in Florida.
WHAT IS A LEGAL SEPARATION OR SEPARATE MAINTENANCE?
In Florida, there is no legally recognized middle ground of "legal separation". However, married parties can enter into a post-nuptial 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.
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, even if none of the "fault" grounds exist.
DO I NEED TO LIVE IN THE STATE OF FLORIDA TO GET A DIVORCE HERE?
Yes, generally, at least one spouse must be living in Florida and have lived in Florida for at least six months.
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, contains 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 which 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 may ways, most commonly a Sheriff or process server carries out this task.
WHERE DO I FILE FOR DIVORCE?
Generally, a petition for dissolution of marriage should be filed in the last county in which the parties resided as husband and wife. However, there are various scenarios which allows the petition to be filed in other counties, such as the county where the petitioner or respondent currently reside.
I JUST RECEIVED A COMPLAINT FOR DIVORCE FROM MY SPOUSE, NOW WHAT?
Quickly contact and consult a family lawyer. You have 20 days to "answer" the complaint in writing. The answer allows you to give "your side of the story" and to admit or deny each claim in the complaint. You may also file a "counterclaim" and seek a divorce in response to your spouse seeking a divorce.
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 Palm Beach County, as well as many other 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 a lawsuit 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, 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. The judge will try to fashion a custody plan which is in the "best interests of the child." The judge will consider many factors including the age and sex of the child, and the ability of each parent to care for and nurture the child.
CAN I SHARE CUSTODY?
The term "custody" has been intentionally removed from the Florida Statues by the Legislature, and had fallen out of use in most other states as well. The terms "parental responsibility" and "time-sharing" or "visitation" 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 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.
The default law regarding time-sharing is that both parents have frequent and continuing contact with the children, but the time-sharing is ultimately either agreed to by the parties or decided by the Court based upon the best interest of the children.
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 help them cope with the ramifications of the case for children. You should check with the Court system in your county to see if this applies to you.
WHAT ARE MY (OR THE OTHER PERSON'S) CHILD SUPPORT OBLIGATIONS?
Child support is determined by a formula created by the Florida Legislature. 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 a senior in high school. The greatest factors in determining how much child support is owed are each parents' 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, childcare costs and health insurance costs.
WHAT ARE CHILD SUPPORT GUIDELINES IN FLORIDA?
Simply put, child support guidelines are presumptive amounts that parents pay for child support. 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 childcare, among other things. Child support should be calculated by an 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 which, based upon various 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.
WHAT HAPPENS TO OUR POSSESSIONS NOW?
In genreal, 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 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 an agreement on all issues, the divorce is considered "uncontested," and may be granted in a relatively short period of time. 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 which should be covered in a divorce are addressed. Acting without a lawyer could end up being 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 which a lawyer may help you avoid. However, Florida 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."
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. In a flat fee case, the cost may range from a few hundred dollars to a few thousand dollars, depending on the lawyer and the complexity of the issues (transfers of real estate, retirement funds and the like). For a contested case, most lawyers require a retainer which is an up-front 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 $100.00 per hour or more for paralegals and from $250.00 to $500.00 per hour for lawyer time.