A divorce or dissolution of marriage, a bond that was supposed to last ‘til death do us part’ is an emotionally charged and traumatic event under the best of circumstances. Prior to the trauma, most people do not know what their rights are. After the trauma sets in, they know even less. Each party needs to consult an attorney to learn what their rights are and what to expect when going through the process and afterwards.
Florida is a “no fault” state. This means that so long as you have been a Florida resident for at least 180 days, you can file a petition declaring the marriage as irretrievably broken, and ask for it to be dissolved. The court will not try to repair that which is broken. The court will apply the law to protect the rights of those involved, particularly if there are minor children being affected.
The process is fairly simple:
- One party files a petition declaring the marriage as irretrievably broken and sets out what they want the court to do.
- The other party must file a response or answer within 20 days. If the second party fails to respond they may lose the right to be heard and some assets or rights.
- There is a mandatory financial disclosure required of both parties within 45 days of the initial filing.
- The parties then enter settlement negotiations. This is the tricky part. If the parties cannot agree, the court may order third party mediation. In mediation, the parties may meet face to face, or they may be in separate rooms with the mediator running back and forth. In any case, the parties have the right to have their respective attorneys present.During negotiations, the parties attempt to work out a division of assets and liabilities. Assets will include all property acquired during the marriage and could include increases in equity of property acquired before the marriage if marital assets were used to increase the equity. Assets commonly falling into this category are the marital home, bank accounts, stocks, automobiles, furniture and retirement benefits.
Another major consideration is the welfare of the children. The parties must develop a parenting plan addressing the right of each parent to spend time with and care for the children. Special consideration must be given to their future support, education, medical care, and promoting a healthy relationship with both parents.
If the parties cannot agree through mediation, then there is a hearing.
- In the hearing or trial each party must present an effective case as to why the court should accept their plan, and not the other party’s. The hearing is conducted like a trial with direct examination and cross-examination. It is usually in the best interest of both parties to avoid this type of confrontation. In the end, a dissolution is granted and the court will confirm a division of assets and liabilities.
A common concern arising with dissolution is the amount of alimony and child support that must be paid. Permanent alimony is normally granted only after a marriage of long duration which is considered to be 17 years or more. However, there are three additional kinds of alimony.
Bridge-the-gap alimony: Limited to 2 years. Designed to help during the transition to meet identifiable short-term needs.
Rehabilitative alimony: Aids in gaining the capacity to be self-sufficient by gaining employable skills through education or skills training.
Durational alimony: provides economic assistance for a set period of time not to exceed the length of the marriage.
Another major concern is child support and custody. There is a presumption that both parents are qualified to have primary custody and care. The court follows a list of identified considerations such as which parent can provide the more stable and loving environment. The list of considerations is fairly extensive, but in all cases the controlling consideration is the best interest of the children.
In addition to custody, there is the matter of financial support for the children. Florida follows a set of statutory guidelines based on the parents’ income and the number of children. If a parent is not employed, or under-employed, the court has the right to impute income based on that parent’s prior employment, experience and education.