Written by Florida Matrimonial Law Attorney Hugo E. Acebo
Getting a divorce is never an easy decision to make, especially when there are children involved. It’s a life-altering event filled with highs and lows, but when the proper steps are taken and all factors have been carefully considered, you’ll come out on the other side better for it. So, before taking such an important step, there are a few basic things you should know about the process. For starters, divorce is handled differently in each state. If you’re in Florida, you’re in luck! Here’s a handy guide to getting a divorce in Florida.
Seeking A Divorce In A “No-Fault” State
When seeking a divorce, you are asking a judge to dissolve the legal bond that is your marriage, and to restore you to the legal status of a single person. To seek a dissolution of your marriage, you must first satisfy the jurisdictional requirements. In Florida, you or your spouse are required to have been a resident of the state for at least six months prior to filing for divorce. Once you have satisfied the residency requirement, you can proceed with filing the appropriate paperwork with the court. The first person who files for divorce is the Petitioner. In your Petition, you will need to set forth the reasons for seeking a divorce. Florida is a “No-Fault” state, meaning that neither party needs to be at fault for the divorce. You simply state that you have “irreconcilable differences,” which indicates to the court that you cannot work through the differences in your marriage. There is a filing fee you will have to pay when filing your petition, but it may be waived if you qualify. In Miami-Dade County, for example, the fee is $409.
Notifying Your Spouse Of The Divorce
Once a petition is filed, you will need to notify your spouse. Notification can come in different forms, depending on whether or not you know where your spouse is located. Typically, a process server is enlisted to ensure that your spouse has been personally notified of the proceedings. This is accomplished by delivering the paperwork directly into their hands. Many circuits in Florida, including Miami-Dade County, require a “Status Quo” order to be served with the petition, placing all parties on notice to maintain the financial and familial “status quo.” This is the court’s attempt to keep matters on an even keel, pending agreement of the parties or a court determination. There are additional notice procedures required in the instance that the other party is evading service or cannot be located.
If you are the party served with divorce papers, you are the Respondent. A Respondent has 20 days to file a response to the petition. The response may be in the form of an answer or a motion attacking the petition. Typically, the responding party also files a counter-petition for divorce along with their answer. Each petition sets forth the relief each party seeks from the court, including distribution of assets and liabilities, alimony, child support, parenting issues, and other claims that may arise from the marriage.
How To Provide Financial Records
In all cases filed in Florida, each party has the obligation to provide a limited amount of financial disclosure to the other. A Certificate of Compliance with Mandatory Disclosure Rule 12.285(c) is required to be filed in each case. The rule lists 16 categories of documents that need to be gathered and delivered within 45 days of service of the petition on the Respondent. These documents include tax forms, financial account statements, credit card statements, property records, and insurance policies. The most important document required by this rule is the Financial Affidavit. Each party sets forth their income, expenses, assets, and liabilities for the other party and the court to see in the form of an affidavit sworn under oath. Once this form has been submitted, determinations on appropriate property distribution, alimony, and child support can begin.
In many instances, lawyers go beyond the limited information that is disclosed and make a request for more extensive documents going back farther in time. It is during this discovery process that a better picture of the financial aspects of the marriage starts to emerge. Discovery is also used to obtain information on non-financial issues. Florida is a liberal discovery state, meaning that most discovery requests are permitted, provided the request is relevant and has a reasonable possibility of leading to admissible evidence. Other forms of discovery may include taking depositions, serving interrogatories (a legal term for written questions requiring written answers given under oath), and issuing subpoenas to non-parties.
How To Handle Finances And Assets In An Equitable Distribution State
Florida is an Equitable Distribution state. This means that the court is required to fairly distribute the marital assets and liabilities once they are identified and valued. As you may imagine, fairness is a subjective thing. To guard against this subjectivity, Florida law directs the court to begin with the premise that each party is entitled to one-half of the value of the marital estate, unless there is a reason to award an “unequal” distribution of the assets and liabilities. Non-marital or premarital assets and liabilities are segregated out and awarded to their owner. The party seeking to identify an asset or liability as non-marital or premarital has the burden of proving it.
The distribution of marital assets and liabilities does not mean each party gets one half of a marital asset and is responsible for one half of each marital liability. This would require that everything is to be sold and divided equally, something that may not be practical or even allowed. Take a party’s pension plan for example. In many instances, these types of plans cannot be divided. Rather, the assets and liabilities are distributed in such a way so that each party is awarded with an equal value of the marital estate. Think of one party wishing to retain the marital home. Rather than sell the house, the home is awarded to one spouse and the other is awarded a marital asset of equal value. This ensures that each party gets a fairly equal amount in value of the marital estate.
Paying Alimony in Florida
There also may be a request for alimony. In order to obligate a party to pay alimony or spousal support, the court analyzes the need for financial support on the one hand, and the ability to pay alimony on the other. If need and ability to pay are found, the court then reviews the statutory factors to establish type, duration, and amount. The length of marriage presumes the type of alimony that may be awarded. In Florida, we have various types of alimony including temporary, bridge-the-gap, rehabilitative, durational, and permanent alimony. The court can fashion an award that may include a combination of these types of alimony based on the facts of each case. Of course, if there is no need for financial support or no ability to pay alimony, the court will not award it. However, in cases where there is no ability to pay, but there is a need, the court may make a nominal award of one dollar to enable the needing party to come back and seek a modification of the amount in the event the payer’s financial circumstances improve.
Considering Children During A Divorce
Children’s issues are some of the toughest matters to address in divorce proceedings. It is rare, but not unheard of, that parents see eye to eye when it comes to their children and divorce. It is more common that one parent’s strong belief of what is best for the children may have a negative effect on the other parent’s ability to parent. In Florida, Shared Parental Responsibility is the law. This makes it mandatory that parents communicate and mutually agree upon all major decisions affecting their children, including their health, education, and welfare. The court may award sole parental responsibility or ultimate decision-making authority to one parent over the other in cases where it is necessary. The court is required to establish a Parenting Plan setting forth each parent’s responsibility and the time-sharing or visitation schedule. This standard is in the best interest of the child. The financial support of the child is established according to guidelines set forth in the statute, and is dependent on the parties’ income and the time-sharing schedule.
Mediation To Reach Settlement
In Florida, parties are encouraged to attend mediation to reach settlement. This typically happens once each side is satisfied that it has enough knowledge of the case to attempt a settlement. In the Eleventh Circuit where Miami-Dade County is located, it is an unofficial rule that parties must attend mediation prior to seeking a final hearing. Exception to this unofficial rule includes cases involving domestic violence or other extraordinary circumstances. Even in those cases though, the court will attempt to fashion a mediation order to ensure the parties are protected while directing them to mediate. If the parties reach a settlement, they then proceed to an uncontested divorce hearing to obtain their final divorce decree. The final order, or “Final Judgment,” will adopt and ratify the settlement agreement and direct the parties to comply with its terms. The court will reserve jurisdiction to enforce the agreement. If one of the spouses has asked to restore their maiden name, it will be included in the order.
If the parties are unable to reach an agreement, the judge will need to resolve the case at a final hearing. This can be a costly proposition in both time and money. Most courts are overwhelmed with cases, making it difficult to obtain a quick resolution. Getting to a final hearing may take months and, in some cases, years. Not to mention, this route leaves it up to someone who has limited knowledge of you and your children to decide on these issues.
The Bottom Line of Divorce
Clients often ask how much their divorce will cost. This is a difficult question to answer. The cost of litigating a divorce is rising daily due to many factors. The most important component of determining the cost of a divorce is the level of cooperation of the parties. The less cooperation, the more attorney’s fees and costs are incurred. More complex cases may require the need for experts to investigate asset values or analyze incomes. However, not all cases require the use of an attorney or experts. Another point to consider is that the marriage may be asked to pay for the fees and costs incurred, thereby reducing the value of the marital estate. By law, the court may from time to time award the financially inferior spouse attorney’s fees and costs. The purpose of this is to ensure that both parties have access to competent legal counsel, and to avoid one spouse having an unfair advantage over the other. Factors such as the amount distributed to each party or the parties’ disparate incomes are also considered. In the end, communication and compromise are the keys to keeping attorney’s fees and costs down.
Divorce is never easy, even under the best of circumstances. It is always better to learn as much as you can about the process ahead of time and to be prepared. Ultimately, consulting a lawyer is always a good idea, even if your final decision is to move ahead without one.
About the author Hugo E. Acebo
Hugo E. Acebo is a partner on Berger Singerman’s Dispute Resolution Team, where he focuses his practice on representing individuals in high net worth, financially complicated cases. He has extensive litigation experience which includes representing couples in dissolution proceedings, resolution of challenges and defense of premarital and post nuptial agreements, investigating income, earnings, and identification and valuation of assets for distribution.
He handles paternity claims, matters contesting the relocation of children, cases involving parenting issues, and issues particular to same-sex relationships and the LGBTQ+ community at large, including assisting intended parents who seek to form families through the use of assisted reproductive technology.
Hugo is also an Adjunct Professor at Florida International University - College of Law where he teaches the Family Law Course. He is Martindale-Hubbell AV rated and is featured in the South Florida Legal Guides listing of Top Lawyers in Marital and Family Law. He is fluent in both English and Spanish.