DIVORCE LAW BASICS – What to Expect & Questions to Ask

The very idea of divorce is emotionally draining. Take some comfort in knowing that you are not alone.
If you are considering divorce, talking to an experienced divorce attorney is a good way to get a handle on the situation and learn how Florida divorce laws apply to your family dynamic. Substantive divorce law applies equally to everyone; however, everyone’s family and every divorce is unique. Your first consult with an attorney should be very fact specific. Fact gathering will assist the attorney in determining the most efficient strategy and explain your rights and responsibilities under Florida Law.

Getting a handle on the legalities and procedures of the divorce process can save you time and money. In Florida, divorce is called Dissolution of Marriage. In order to file a Petition for Dissolution of Marriage herein Florida one or both spouses must have resided in the State of Florida for at least 6 months. This residency requirement is mandatory. The Petitioner is the person who initiates the filing, and the Respondent is the person who files an Answer and perhaps (depending on the circumstance) a Counter-Petition. The filing of a Petition “opens” the court case and sets in motion the process of obtaining the divorce and the timeline for important events.

If you choose to file a Petition for Dissolution of Marriage, you must notify your spouse. Your spouse, the Respondent, is required to file an Answer within 20 days after they have been served with the Petition. If your spouse fails to timely respond, you may file a Motion for a Clerk’s Default. If a Default is entered, youmayset a final hearing, with proper notice to your spouse to have a Final Judgment of Dissolution of Marriage entered.
Twenty days must pass from the date of the filing of the Petition before a Court can enter a Final Judgment dissolving your marriage. Think of it as a legal “cooling off” period.

SETTLEMENT – Divorce by Agreement

If you and your spouse can agree on some, or all, of the issues relating to your divorce, you can file a Marital Settlement Agreement. The Court will reserve jurisdiction to resolve any issues not agreed upon at a final hearing and subsequently enter a Final Judgment. If you and your spouse can agree on all the issues you can ask the court to “ratify” your Marital Settlement Agreement, to be incorporated into theFinal Judgment.

Couples with Children would of course need to agree on Parenting issues which are addressed in a Parenting Plan. A Parenting Plan that is agreed upon by the parties, may also be “ratified” by the court and incorporated into the Final Judgment.

CONTESTED DIVORCE – Not able to reach a Marital Settlement Agreement (MSA)

If you and your spouse are not able to enter into a Martial Settlement Agreement, the divorce process requires the parties to exchange financial disclosures, mandated by the Florida Family Law Rules of Procedure within 45 days of service of the Petition as follows:

Florida Financial Affidavit (Short Form) for individuals who earn less than $ 50,000/yr.

Florida Financial Affidavit (Long Form) for individuals who earn over $ 50,000/yr.

FLORIDA MINIMUM MANDATORY DISCLOSURES – (documents to back up what you have listed in your Financial Affidavit) include the following:

  • Financial Affidavit – either Short or Long form depending on income.
  • All personal (1040) federal and state income tax returns, gift tax returns, and intangible personal property tax returns for the preceding 3 years.
  • IRS forms W-2, 1099, and K-1 for the past year if the income tax return for the past year has not been prepared.
  • Pay stubs or other evidence of earned income for the 3 months before the service of the financial affidavit.
  • A statement identifying the source and amount of all income for the 3 months before the service of the financial affidavit.
  • All loan applications and financial statements prepared for the purpose of obtaining or attempting to obtain credit or used for any purpose within the 12 months preceding the service of the financial affidavit
  • All deeds to real estate in which you presently own or owned an interest in within the past 3 years. All promissory notes in which you presently own or owned an interest in within the last 12 months. All present leases in which you own an interest.
  • All periodic statements for the last 3 months for all checking accounts and for the last year of all savings accounts, money market funds, certificates of deposit, etc. for which you have the ability to withdraw funds from or have an ownership interest, regardless of whether the account has been closed.
  • All brokerage accounts statement for the last 12 months.
  • Most recent statement for any pension, profit sharing, deferred compensation, or retirement plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, etc.) and summary plan description for any such plan in which you are a participant or alternate payee.
  • The declarations page, the last periodic statement, and the certificate for any group insurance andthe certificate for all life insurance policies insuring your life or the life of you and your spouse.
  • All health and dental insurance cards covering either you or your spouse and /or your dependent child(ren).
  • Corporate, partnership, and trust tax returns for the last 3 years, in which you have an ownership or interest in greater than or equal to 30%.
  • All credit card and charge account statement and other records showing your indebtedness as of the date of the filing of this action and for the prior 3 months. All promissory notes for the last 12 months. All Lease agreements you presently owe.
  • All written premarital and marital agreements between the parties to this case.
  • All documents and tangible evidence relating to claims for an unequal distribution of marital property, enhancement or appreciation in non-marital property, or non-marital status of an asset or debt.
  • Any court order directing that you pay or receive spousal support or child support.

NOTE: The Financial Affidavit is a requirement that cannot be dispensed with, i.e., the court will not enter a Final Judgment of Dissolution of Marriage unless both parties have filed a Financial Affidavit. However, although the Supreme Court of Florida requires that the parties exchange “MINIMUM MANDATORY DISCLOSURES” (set forth above) the parties may dispense with this requirement, by agreement, as long as they enter into a Marital Settlement Agreement, ideally within the 45 day period requiring them to exchange financial disclosures. Waiver of Minimum Mandatory Disclosures, in the appropriate case and circumstance can save you and your spouse a great deal time and expense. However, waiver of this requirement is not suitable to every case; and should be discussed with experienced legal counsel.

SANCTIONS – Failure to Comply with Procedural Laws relating to Exchange of Mandatory Financial Disclosures

Parties seeking a Florida divorce must adhere to procedural time requirements for exchanging financial disclosures. The Florida Family Law Rules of Procedure require those filing for divorce to exchange their Financial Affidavits and Minimum Mandatory Disclosures within 45 days of service of the Petition for Dissolution of Marriage.

If a party needs a few extra days to comply with Mandatory Financial Disclosure, it is prudent practice to request a short courtesy extension and provide the documents prior to the expiration of the extension deadline.

If a party ignores the deadline or otherwise fails to cooperate with exchanging financial disclosures, the frustrated party may file a Motion to Compel compliance with Minimum Mandatory Disclosures and request relief from the court to include an award of attorney’s fees against the party refusing to cooperate.

A party, faced with an Order to Compel Compliance with Minimum Mandatory Disclosures, who remains uncooperative is then in violation of a court order and subject to more severe penalties, including payment of attorney’s fees, striking of pleadings or defenses, and possibly contempt of court.

DISCOVERY – Outside the scope of Minimum Mandatory Disclosures

A good number of divorces are effectively resolved with the exchange of a Financial Affidavit and Minimum Mandatory Disclosure. However, the operative words are “Minimum” and “Mandatory”, i.e., the Supreme Court requires the parties to comply with what it considers “Minimum” requirements to provide supporting documents to effectively test the merits of what is disclosed by a party in his or her financial affidavit.

Some cases require the exchange of documents beyond the “Minimum” contained in the Rules of Family Law Procedure dictated by The Supreme Court of Florida. In such cases a spouse may be served with a Request for Production of Documents requesting additional documents or Interrogatories requiring them to provide additional information to the other spouse.

Requests for Production of Documents and Interrogatories are both typical “Discovery” tools which serve to obtain information and documents in litigated cases.

DEPOSITIONS–Oral Discovery

Depositions of parties/spouses or witnesses are usually reserved for litigated cases. A deposition is simply an account given by a party or witness, under oath, before a court reporter. A party or witness is usually prepared by an attorney on what to expect, how to answer questions and how to conduct him or herself. It is important to remember that the attorney taking the deposition will also be evaluating the effectiveness of the witness’s testimony at trial or hearing. After the deposition the person who testified may read and sign the deposition.

MEDIATION – Alternative Dispute Resolution

Parties may choose to participate in mediation voluntarily, as a preferred method to obtaining a Dissolution of Marriage, or they may be ordered by the Court to do so. There are many advantages and disadvantages, both legally and practically; therefore, the best practice is to consult an experienced attorney to determine whether Mediation from the onset is the best option to resolve your family law dispute.

What is Mediation?

Mediation is defined as a process by which a neutral mediator encourages and facilitates the resolution of a dispute between two or more parties. It is an informal and non-adversarial proceeding or meeting. The goal of the mediation process is to assist disputing parties in reaching a voluntary, mutually agreeable resolution of their differences. The parties, not the mediator, are the decision makers.

Pro Se vs. Represented by Counsel at Mediation

Parties may proceed to mediation Pro Se, defined as on their own without representation of counsel, or with their attorney. Keep in mind that Mediators are facilitators but must remain neutral and cannot give any legal advice. Attending mediation without an attorney present to legally advise you on the ramifications of your decisions is generally not advisable. The Mediated Agreement is binding once signed by the parties and the mediator.
Court Ordered Mediation

Parties are usually referred to mediation by the court once financial disclosures are made. This is usually the best use of mediation as a tool to allow the parties to craft their own agreement and settle their family law dispute. Usually the parties are both represented by their attorneys who have reviewed the financial disclosures and are well versed on the issues relevant to the case. You and your attorney should have a clear roadmap of all the issues as well as a good handle on all the finances and children’s issues, well in advance of your mediation date. Remember once the agreement is reached, it is generally enforceable absent a finding of fraud.

Advantages of Mediation

Mediation is often faster and often less expensive than proceeding through the judicial process. Spouses areusually better able to accept the terms of their divorce, if they are able to participate in and negotiate a mediated agreement, than if a judge decides for them what they are going to have to live with post-divorce. Parents often learn how to better communicate in a non-adversarial and respectful way to negotiate better, which enables them to continue to make decisions which will avoid future disputes. Mediation is confidential, while most court proceedings are public record.

Disadvantages of Mediation

Mediation is unlikely to yield a resolution if one or both parties have intractable positions. An example is if one party is controlling or asserts too much dominance in the relationship and the other party is unwilling or unable to stand up for his or her best interests. The mediator certainly does not know the situation as well as the parties and is not able to give legal advice to either party no matter how offensive one of the parties behaves. If counsel is either not present, or inexperienced, the result may either be no agreement, or worse, an unfair and poorly reasoned binding agreement that sets the foundation for years of litigation to follow.

The decision to voluntarily mediate should be made upon the advice of counsel, unless ordered by the court. Furthermore, mediation should be undertaken either with an attorney present to represent your interests or at a minimum have the agreement reviewed by an attorney prior to signing the proposed mediated agreement. CAVEAT: This is not as good as having the attorney present during the mediation session, as the attorney can provide insight into negotiations to yield a higher percentage resolution.

FINAL JUDGMENT

Whether contested, uncontested or otherwise resolved by mediated or marital settlement agreement, the case is closed judicially by entry of a Final Judgment of Dissolution of Marriage. The Final Judgement will ratify whatever agreements are entered into by the parties or reflect the findings of the court after presentation of evidence at a final hearing or trial.

If an agreement is reached usually only one party, most often the petitioner is present at the final hearing. The court, after a few basic questions will ratify the agreement and incorporate it into a final judgment. If no agreement is reached, the court will issue a Pre-Trial Order setting a Pre-Trial Conference requiring the presence of the attorneys to narrow the issues for trial and then set a trial date.

A divorce attorney in Central Florida familiar with the court system in the county where you are seeking your dissolution should be consulted and can be hired to present your case before the judge or general magistrate more effectively.

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