GROUNDS FOR DIVORCE IN FLORIDA
Florida, along with the majority of the U.S. States has adopted "no-fault" legislation on the issue of divorce. The terms "divorce" and "dissolution" may be used interchangeably.
There are two (2) no-fault grounds for divorce under Florida law: 1) irretrievable breakdown of the marriage; and 2) the mental incapacity of a spouse (this ground requires that the party alleged to be incapacitated have been adjudged such under the applicable statute for a preceding period of at least three years).
The residency requirement for filing a petition for dissolution in Florida is that either spouse resided in the State of Florida for a continuous period of six (6) months immediately preceding the filing of the petition for dissolution.
WAITING PERIOD Absent compelling reasons and the court’s consent, a divorce cannot be granted until after the expiration of at least twenty (20) days from filing the petition for dissolution.
CUSTODY & VISITATION
Florida has adopted statutes embracing the concept of shared parenting and shared parental responsibility and has rejected the concepts of "custody" and "visitation" that most of us associate with divorce. Therefore, sole parental responsibility is rarely granted. The circumstances for granting sole parental responsibility will be discussed in our follow-up consultation. Shared parenting means that both parents share the major decision making regarding the child’s health, education and welfare. It does not mean that the parents share equal time with the child(ren). The court will ordinarily appoint a residential parent with whom the child(ren) lives and will order a schedule of shared parenting time.
Often times, each spouse perceives him/herself as the victim in the breakup of the marriage; and too often, the children are used as weapons in the spouses’ quest for retribution. According to literature on the subject, of critical importance to both you and your spouse is the fact that the number one reason for producing healthy children in a divorce situation is the quality of the post-divorce relationship between their mother and father. The implementation of shared parental responsibility decisions and shared parenting arrangements will be discussed in detail in our follow-up consultation.
Florida has adopted child support guidelines which the court is mandated to adopt absent justifiable reasons for departing from the guidelines. The way the statute operates is that it takes into account both parents’ incomes and allowable deductions, and then proportions responsibility accordingly. Child care and the maintenance of medical and hospitalization coverage are additional components which likewise are apportioned between the spouses. Child support, when paid, is non-deductible to the payor spouse, and non-includable as income to the payee spouse. The dependency exemption pursuant to the Internal Revenue Code will be available to the residential parent, unless otherwise agreed to in writing. The allocation of this exemption should be based upon sound tax advice from your accountant.
Under Florida law, there are five types of alimony: 1) rehabilitative alimony, 2) permanent alimony, 3) lump sum alimony, 4) bridge-the-gap alimony, and 5) durational. You, or your spouse’s, eligibility for either form of alimony will be discussed in depth at our follow-up consultation.
Alimony will normally be treated as a taxable deduction for the payor spouse, and as taxable income to the payee spouse unless the parties agree to opt out of taxability. You should understand that in the event of going to trial, the court will first consider and resolve property issues before addressing alimony and support issues. That is because the court will want to know what income, if any, each spouse receives from assets which are distributed under the property division phase of the trial. That income together with the income the proposed receiving spouse can earn all impacts on the ultimate award.
With respect to the division of assets and liabilities, our job is to identify every asset and liability which the court could characterize as either non-marital or marital. The difference between these two types of property will be explained in-depth at our follow-up consultation.
Once we identify and categorize the property, we will need to establish the value for all assets and liabilities. In some cases, we will value property through experts obtained for that purpose, or through mutual agreement, and/or arbitrarily. An arbitrary valuation would require your written consent to waiving your right of discovery. Next, we would advise you to determine through advisors, what the taxable consequences would be in converting an asset into hard dollars. Lastly, we will attempt through negotiations to arrive at a mutual agreement regarding the allocation of assets and liabilities. We will begin with the presumption that all marital property will be divided equally, but will explore with you, in our follow-up consultation, under what circumstances the court is likely to divide assets and liabilities unequally.
During the pendency of your lawsuit, various forms of temporary relief, where necessary, are available. Examples of such relief could be temporary relief relating to shared parenting, exclusive use and occupancy of the marital home and its contents, or other personal property, temporary child support, temporary alimony, temporary attorney fees and suit monies, injunctive relief, etc. The court is requiring that the parties mediate all temporary issues prior to scheduling a hearing on any of the above issues. The time between the filing of such a motion, mediation, and the actual hearing in court ranges between 60 and 90 days. It is extremely difficult to convince the court that your particular application qualifies as an emergency. Therefore, the likelihood of having your hearing date expedited is quite rare.
MEDIATION / SETTLEMENT
We believe that, in the great majority of cases, the best way to conclude your case is to settle it. Thisopinion is shared by the Court, which has mandated Mediation in every case. Settlement, through cooperation and compromise, allows you to make the decisions that will control your own destiny, as opposed to letting the court make rulings that will permanently affect you. Mediation provides a neutral third party to help guide the parties through issues in conflict. A settlement can lead to greater mutual satisfaction and lessened animosity between you and your spouse. In most cases, negotiations toward settlement can be more productive and far less expensive than a trial. However, there are occasions, for varying reasons, that negotiations break down and settlement fails. In those instances, going to trial is inevitable.
CONCEALING, DAMAGING, OR DISPOSING OF ASSETS
Once a petition for dissolution has been filed, the court will issue what is know as a "Standing Temporary Domestic Relations Order". Under this Order neither party will be permitted to conceal, damage nor dispose of any asset, whether jointly or separately owned, nor will either party be permitted to dissipate the value of an asset (for example, by adding a mortgage to real estate) except by written consent of the parties or an Order of the court. The parties MAY spend their income in the ordinary course of their personal family affairs. Neither party will be permitted to conceal, hoard, nor waste jointly owned funds, whether in the form of cash, bank accounts or other highly liquid assets. Further, the destruction of concealment of family records, business records, or any records of income, debt or other obligation will not be permitted by the Court.
Finally, any insurance policies in effect at the time the petition is filed may not be terminated, allowed to lapse, concealed, modified, borrowed against, pledged, or otherwise encumbered by either party or at the direction of either party. The result of your failure to abide by the Standing Order may result in a contempt order from the Court as well as sanctions.
DO’S AND DON’TS
There are some rather clear cut rules that apply to every divorce. Pay heed to these rules and your divorce will be easier and less painful for all involved.
Have Reasonable Expectations: You will certainly be disappointed if you expect to "win" on every issue. Rarely is either party happy about every ruling in a case. Even the best rulings leave both parties somewhat dissatisfied. Although we can never guarantee what the outcome will be, we will give you a realistic projection, based on our experience, of the outcome of your case.
Keep Communication Open With Your Spouse/Ex-Spouse: As long as you have children, you and your spouse/former spouse will have to work together. Your children will suffer to the degree that you and your spouse/former spouse cannot cooperate and communicate.
Do Not Write Letters To The Court: The court is not permitted to read such letters nor can the court speak with you or your friends or relatives on the telephone. If there is something that you feel the court needs to know, inform us by scheduling an appointment.
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