Donald Appignani

Family Law

DIVORCE (aka DISSOLUTION OF MARRIAGE)
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, 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 immediately preceding the filing of the petition, and the marriage is irretrievably broken. (There is another, little-used ground: the incompetence of one's spouse for at least three years preceding the petition for dissolution). Fault, however, may be considered under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and determination of timesharing.

Each divorce case is unique and therefore results vary. Even though fault is not an issue in granting the dissolution, the division of property and possessions, responsibility for support, and timesharing of children 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. Statutory requirements and court rules 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 about 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.

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, addressing the matters within the initial petition and raising any additional issues the answering party desires the court to address.

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. 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 in which financial relief is sought. A child support guideline worksheet must also be filed with the court at or before any hearing on child support. This requirement may not be waived by the parties or the court.

Some couples agree on property settlements, child timesharing, 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. Other couples disagree on some issues, work out their differences, and also appear for a final hearing with a suggested settlement which is accepted by the judge. In such uncontested cases, a divorce can become final in a matter of a few weeks.

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. Many counties have mediation services available. Some counties require couples to attempt mediation before a trial can be set.

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. Reaching a settlement, whether by direct negotiations or mediation, usually requires compromise by both parties. 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.

EQUITABLE DISTRIBUTION/PROPERTY DIVISION

One of the most difficult and complex areas of divorce is the division of marital assets and liabilities (debts). Marital property may include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bank accounts, personal property, and other things of value. Liabilities include mortgages, car loans, credit card accounts, and other debts. Generally, any asset or liability acquired during the marriage is considered marital and subject to distribution.

Florida statutes and case law provides for an "equitable distribution" of marital assets and liabilities. In essence, the marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the title is held. This is based on a long list of factors.

Equitable distribution is done first before alimony is considered.

There is no fixed way to determine how you or the court should divide the property, or debts. Factors to be considered by the court include the contribution of each spouse to the marriage; 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 assets and liabilities after a trial.

ALIMONY

After equitable distribution has been made, the court may consider the award of 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. Rehabilitative and permanent alimony generally are paid periodically (i.e., monthly or semi-monthly). The court may grant some combination of the two. The court may also order lump-sum alimony where one party pays to the other party a lump-sum payment of money or property. Although adultery does not mandate or bar an award of alimony, the court may consider the circumstances of that adultery in determining an award of alimony.

In awarding alimony, the court considers 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.

TIMESHARING

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 timesharing regardless of their child's age or sex.

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.

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, or and medical and dental needs. If the parents have a substantial conflict over any of these areas the court will decide on responsibility 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 timesharing in which the time spent with each parent is equal.

In rare cases, the court can order sole parental responsibility and timesharing 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. 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.

CHILD SUPPORT

You and your spouse each have a responsibility to support your children in accordance with their needs and your financial abilities. Child support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or payment of medical and dental expenses. 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 the amount of support apply to all cases and are based on the income of the parents and the number of children with adjustments for substantial overnight contact.

If you have a problem getting support payments from your spouse or former spouse, or timesharing and access to your child is denied, you should bring this matter to the attention of the court. It is not legal to withhold timesharing or child support payments because either parent fails to pay court ordered child support or violates court ordered timesharing.

PATERNITY

Establishing paternity is the legal proceeding to determine the father of a child. If the parents are not married to each other when the child is born, the child does not have a legal father unless paternity is established and/or the parents marry each other. Until paternity is established, the mother has all care-taking responsibilities for the child. The father has no timesharing rights to see the child.

Establishing paternity benefits all of the parties involved. The father gains parental rights, including, but not limited to, timesharing, the ability to take part in decision-making and any other rights and benefits as a child born to married parents. The mother benefits from the financial support of the father. The child benefits the most with legal proof of each parent's identity, information on family medical history, medical or life insurance from either parent (if available), and financial support from both parents, including child support, Social Security, veteran's benefits, military allowances (if applicable), and inheritance.

PRE-NUPTIAL/ANTENUPTIAL and POST-NUPTIAL AGREEMENTS

Premarital Agreement, Pre-Nuptial Agreement and/or an Ante nuptial Agreement mean an agreement between prospective spouses made in contemplation of marriage and becomes effective upon the date of the marriage. A Post-Nuptial agreement is an agreement between spouses that becomes effective upon execution by both parties. These forms of agreements resolve issues in the event that the parties later divorce. Commonly, parties address property rights, alimony, inter-spousal gifts, rights to pension and retirement accounts, the making of a Will and life insurance policies.

Marital agreements can be powerful tools to protect both spouses and children if drafted properly and in compliance with Florida statutes. A key factor to ensuring that these agreements are upheld in court is that both parties must provide full disclosure of their finances.