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CAN YOUR MARRIAGE BE SAVED?
Florida law does not require
marital counseling as a condition for filing for a
divorce. Before you take any legal steps to end your
marriage, you should consider whether you wish to
save the marriage. Do you want professional help in
working out ways to save your marriage? Many
communities and social and religious organizations
offer counseling services either free or on a
sliding fee scale. Or you may wish to consult with a
marriage counselor, psychologist, psychiatrist,
minister, priest, rabbi or other qualified person.
If the spouse responding to the divorce denies that
the marriage is retrievably broken and requests
counseling then the Court will likely grant the
request unless the other party is resolved that
counseling will not save the marriage or that the
marriage is not worth saving.
GENERAL
The official term for divorce in Florida
is "dissolution of marriage."
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 a marriage exists, one party has been
a Florida resident for six months, and 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 property and possessions
and responsibility for support may become contested
matters.
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, addressing the matters within the
initial petition and raising issues the answering
party desires.
Court rules governing divorces
require that each party provide certain financial
documents and a completed financial affidavit to the
other party within 45 days of the service of the
petition or before any temporary relief hearing or
final hearing for divorce. Failure to provide this
information can result in the court dismissing the
case or not considering that party's requests. The
parties or the court can modify these requirements
except for the filing of a financial affidavit,
which is mandatory in all cases.
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 that is presented
to the court. 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 or a trial. Its purpose is not to
save a marriage, but to help divorcing couples reach
a solution to their problems and arrive at agreeable
terms for handling their dissolution. Mediation is
mandatory except in very limited circumstances.
Finally, some couples cannot
agree on much of anything and a trial-with each side
presenting its case-is required. The judge makes the
final decision on contested issues.
The equitable dissolution process
is designed 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. The parties,
however, can take steps to make the process easier
for themselves and their children.
DOMESTIC VIOLENCE
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. These are proceedings separate from
the divorce proceedings.
PROPERTY DIVISION
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 (debts) 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.
ALIMONY
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. Permanent alimony continues until the
receiving spouse's remarriage or the death of either
party. The court may grant some combination of the
two. Also the court may order lump-sum alimony where
one party pays to 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
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
education or 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 and deductibility of child support and
alimony in their various forms, and effects of
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 pay mortgage
payments, income tax liabilities, credit card debts,
personal loans, car payments and other debts should
not be overlooked.
SHARED PARENTAL RESPONSIBILITY FOR
CHILDREN
Custody and Visitation
It is the public policy of
Florida to ensure each minor child has 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
rights 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. This type of arrangement
usually will not be approved unless the parents live
very close to one another and the parents have a
friendly and cooperative relationship despite the
marital breakup.
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,
removal from the area, and medical and dental needs.
If the parents have a substantial conflict over any
of these areas the court will decide for them. The
court can order varying types of shared parenting
arrangements depending on the evidence presented.
The court may designate one parent's home as the
primary residence and afford the other parent
frequent and continuing contact, or, the court may
order rotating custody where the time spent with
each parent is equal.
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.
In considering issues between
parents and their children, the best interest of the
child is the primary consideration by the courts.
CHILD SUPPORT
You and your spouse each have a
responsibility to support your children in
accordance with their needs and financial abilities
of both parents. The amount of child support
required, except in rare cases, is an amount which
falls within five percent, plus or minus, of the
amount calculated by applying the child support
guidelines of the Florida Statutes. Your attorney
may do the calculation if he knows the income of the
Husband and Wife, the cost of providing
medical/dental/ocular insurance for the child (the
total cost of the medical/dental/ocular insurance
paid by a parent minus the amount it would cost for
the parent(s) to provide coverage for the parent(s)
alone.) 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
claims 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 all cases generally are based
on the income of the parents and the number of
children with adjustments for substantial overnight
contact. Florida law requires both parties to attend
a parenting course prior to entering a final
divorce. Consult your county clerk's office for
information on courses offered.
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.
APPEALS
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.
WHERE TO GET LEGAL HELP?
If your family lawyer has been
retained by your spouse, then the lawyer cannot
represent you too. In fact, if the lawyer has been
your family lawyer there may be a conflict of
interest and the lawyer cannot represent either of
you. Do not attempt to consult with your spouse's
attorney to receive legal advice. It is unethical
for an attorney to represent both sides in a divorce
and to give legal advice to both husband and wife.
ATTORNEYS' FEES AND COSTS
The more complex your affairs and
the more contested the issues, the more the
dissolution will cost.. To a great degree the cost
will depend on how contested the matter becomes.
One lawyer cannot represent both
parties. 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.
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. Couples are
responsible, however, for filing all necessary
documents correctly. Both the Husband and the Wife
are required to appear before a judge together when
the final dissolution is granted.
The simplified dissolution of
marriage process is designed for couples who do not
have dependent children, who have agreed on a
division of their property and debts, and who have
agreed that neither spouse will ever receive
alimony. Therefore, not everyone can qualify. A
husband and wife can use the simplified dissolution
of marriage only if: (a) they both agree to the use
of this form of dissolution proceeding; (b) they
have no minor (under 18) or dependent children; (c)
have no adopted children under the age of 18; (d)
the wife is not pregnant; (e) at least one of the
parties has lived in Florida for the past six
months; (f) the parties have agreed on the division
of all of their property (assets) and obligations
(debts); and (g) 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.
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 and
forms.
ADDITIONAL RESOURCES
Created by The Family Law Section
of The Florida Bar, the Family Law Handbook may
provide additional information about divorce. You
may obtain a copy of the handbook from your local
clerk of court or access the handbook on the World
Wide Web at
http://www.flclerks.com.
The material in this pamphlet
represents general legal advice. Since the law is
continually changing, some provisions in this
pamphlet may be out of date. It is always best to
consult an attorney about your legal rights and
responsibilities regarding your particular case.
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