Divorce is never an easy decision to make, especially when there are children involved. It is a life-altering event, sometimes for the better, sometimes not. Before taking such an important step, there are a few basic things you should know about the process in Florida.
To seek a dissolution of your marriage, you must first satisfy the jurisdictional requirements. You will need to be able to show that one of the parties has been a resident of the state for at least six months prior to filing for divorce. Florida is a “No-Fault” state, meaning that alleging fault is not legally necessary when seeking a divorce. A Petitioner simply has to confirm that there are “irreconcilable differences.” There is a fee when filing for divorce that varies from circuit to circuit. In some instances, the fee may be waived if a party qualifies.
The party served with divorce papers has twenty (20) days in which to file a response. The response may be in the form of an answer admitting or denying the allegations in the petition or a motion seeking to dismiss the petition on legal grounds. Typically, the responding party also files a counter-petition for divorce, setting forth their own allegations.
In cases involving financial matters, each party is required to provide financial disclosure. A Certificate of Compliance with the applicable rule is required to be filed confirming compliance with the rule. The most important document required is the Financial Affidavit, which reports information regarding income and expenses, assets and liabilities. It is from this form that the determinations on appropriate property distribution and support issues begin. Recent changes to the Family Law Rules of Procedures allow parties to mutually waive the requirement that financial affidavits be filed with the court and serve upon the other party under certain circumstances.
In many instances, lawyers go beyond the limited information that is disclosed and make a request for more information. It is during this discovery process that a better picture of the financial and other aspects of the marriage starts to emerge. 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 for information.
Florida is an Equitable Distribution state, which requires the court to fairly distribute the marital assets and liabilities. As you may imagine, fairness is a subjective matter. To guard against this subjectivity, Florida’s law directs the court to begin with the premise that each party is entitled to one-half the value of the marital estate unless there is a reason for an “unequal” distribution. Nonmarital or premarital assets and liabilities are segregated out and awarded to their owner.
The distribution of marital assets and liabilities does not require that each party get one-half of each individual marital asset and is made responsible for one-half of each individual marital liability. This would require that everything be sold and divided equally, something that may not be practical or even allowed. Rather, the assets and liabilities are distributed in such a way that each party is awarded 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 other marital assets of equal value to ensure each party gets a fairly equal amount in value of the marital estate.
There may also be a request for alimony. The alimony laws changed in Florida on July 1, 2023. One matter that remains the same is the analysis to decide whether alimony is appropriate. There must be a reasonable need for alimony. Once a reasonable need is established, the focus turns on whether the other party has the ability to pay alimony. 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 and duration of alimony that may be awarded. In Florida, we have various types of alimony, including temporary, bridge-the-gap, rehabilitative and durational alimony. Permanent alimony was abolished by the new law. The court can fashion an award that may include a combination of these types of alimony. In cases where need is established but there is no ability to pay, the court may make a nominal award of one dollar to leave the door open for the spouse in need to seek a modification of the amount in the event the payor’s financial circumstances improve.
Children’s issues are some of the toughest matters to address in divorce proceedings. The Court is required to establish a Parenting Plan setting forth each parent’s responsibility and the time-sharing schedule based on a child’s best interest. In Florida, Shared Parental Responsibility is the law. This makes it mandatory that parents confer and mutually agree on 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 appropriate upon proper findings. The financial support of the child is established according to statutory guidelines and is generally dependent, among other things, on the parties’ income and the time-sharing schedule.
Parties are usually ordered to attend mediation. In the Eleventh Circuit, it is common that parties are ordered to mediation prior to obtaining a date for a final hearing. If the parties reach a settlement, they then proceed to an uncontested divorce hearing to dissolve their marriage. 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 the parties are unable to reach an agreement, the matter will be resolved by the judge at a final hearing. This can be a costly proposition in both time and money. Getting to a final hearing may take months. Preparation for trial requires a large investment in time and money. The risk here is that someone with limited knowledge of your family’s circumstances will decide what is best.
Clients often ask how much their divorce will cost. This is a difficult question to answer. The cost of litigating a divorce is rising day by day. Many factors contribute to the rising cost. The most important factor is the cooperation of the parties. The less cooperation, the more fees and costs are incurred. The more complex cases may require the need for experts to investigate asset values or analyze income. 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. 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 be prepared. Consulting a lawyer is always a good idea, even if your ultimate decision is to move ahead without one. As Confucius once said, “Success depends upon previous preparation.”
Hugo E. Acebo is a partner at Berger Singerman, where he focuses his practice on representing individuals in high-net-worth, financially complicated cases. He has extensive litigation experience, including representing couples in dissolution proceedings, resolving challenges and defense of premarital and postnuptial 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.
