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Dissolution of Marriage

Dissolution of marriage (divorce) is a traumatic event in any family. We will attempt to explain the basic legal concepts that apply to dissolution of marriage. Hopefully, this information will alleviate some of the anxiety you feel about the proceedings.

1. Action for Dissolution: You or your spouse begin the proceedings by petitioning the court for dissolution. Actually, you will ask the court not only to dissolve the marriage, but to distribute between the two of you the rights and responsibilities you had as a couple. Twenty days after a process server hand delivers a copy of the petition to your spouse, he or she must answer the petition, admitting or denying your allegations about custody and property distribution. Normally, your spouse will retain an attorney; but even if he or she does not, we will not represent both of you. Your best interests will be our primary concern throughout.

2. Residency Requirement: Prior to filing the petition for dissolution, you or your spouse must have permanently resided in Florida for at least six months.

3. Separation: Although you or your spouse need not separate while the divorce is pending, you may do so without being charged with desertion. There is no "legal separation" in lieu of divorce. Although you might, in some extraordinary case, be able to obtain support without petitioning for divorce, your spouse is almost certain to counterpetition for dissolution of marriage.

4. Grounds for Dissolution: Florida has "no fault" divorce to the extent that you no longer need to prove adultery, mental cruelty, etc. As long as one spouse believes that the marriage is irretrievably broken (i.e., it cannot be saved), the court will grant the divorce. However, if you have children and believe there is a possibility for reconciliation, the court may order both of you to attend counseling.

5. Extramarital Relationships: Although Florida is "no fault", adulterous relationships can affect support awards, the asset distribution, or parenting time with children. You must be totally frank with us about your own or your spouse's involvements so that we can assess the possible effect. Furthermore, you should not ask for problems by dating until your marriage is officially dissolved by the court.

6. Parenting Plan: The public policy of Florida is to order shared parental responsibility of minor children in almost all cases. The court will then decide how parenting time is allocated. Although the court accords the father equal consideration in deciding timesharing issues, the parent who has been the primary caretaker of a young child is often awarded more parenting time. Typically, the other parent will have the opportunity to maintain frequent and continuing contact with the children. Conferring on all major decisions affecting the children after the divorce is a basic principal of shared parental responsibility. If truly extenuating circumstances exist, one parent may be awarded sole parental responsibility, but the other will still receive some form of parenting time. The Sixth Judicial Circuit in Pinellas County requires that all parents attend an education course to help the parents and children through the separation process.

7. Child Support: The legislature has enacted child support guidelines that apply to all situations based on the parents' combined net incomes. Each parent then contributes his or her share of the total amount the Legislature or the court deems necessary to support a child at your combined incomes. The non-residential parent pays the other directly or this support payment may be deducted from a paycheck by the employer and sent through the Central Governmental Depository. The court can require support for a normal, healthy child only until he or she reaches eighteen years of age. To provide for a child's college education, the parents must agree to include this in a marital settlement agreement. The court will not order either parent to support an "adult" child.

8. Marital Assets: In general, all assets and liabilities acquired during the marriage belong to both spouses. Depending on your ability to prove what you brought into the marriage, the court may return some property to you outright. The court may also return gifts, inheritances, and certain other assets to you or give you a larger share of a joint asset due to your extraordinary contribution.

9. Equitable Distribution: Florida is not a community property state. The court will distribute the marital assets to the spouses in shares that the court finds fair under all the circumstances.

10. Permanent Alimony: A spouse who has lost the capacity for self-support during a long marriage may receive alimony until he or she remarries or the other spouse dies. The paying spouse must have the ability to make these payments.

11. Rehabilitative Alimony: A spouse whose earning ability has diminished during the marriage, but who has the potential for self-support, may receive alimony for a designated period of time in order to re-establish himself or herself in the work force.

12. Lump Sum Alimony: Lump sum alimony is a legal term that may or may not have any relationship to the traditional concept of "alimony." It can be used to even up the property distribution, give one spouse an extra share, or provide for support.

13. Change of Name: You may ask the court to restore your former name in the petition for dissolution of marriage. You should notify us of your desire before we file the initial pleading.

14. Attorney's Fees and Costs: Even though your spouse may have superior financial ability and may be ordered to pay all or part of your attorney's fees and costs of litigation (filing fees, court reporters, copies, etc.), your fee contract with us makes you ultimately responsible to us. Fees will vary depending on the hours expended in preparing pleadings, conferring with you and other attorneys, attending hearings, etc., and the difficulty of the issues involved. Also taken into consideration is whether the acceptance of your case will preclude our accepting other clients due to the significance of the subject matter of the representation, the responsibility involved in the representation; the time limitations imposed by the client or by the circumstances and any additional or special time demands or requests of the attorney by the client. Our fees are based on the customary charges in the locality for legal services of a comparable or similar nature based on the experience, reputation, diligence and ability of the lawyer or lawyers performing the service and the skill, expertise and efficiency of effort reflected in providing this service.

15. Final Judgment: Eventually, the court will dissolve the marriage, determine parenting time and responsibility, apportion the assets and liabilities, and provide for payment of support, if necessary. If you and your spouse reach an agreement on all of these issues, the court will, most likely, adopt your agreement. If not, the court will conduct a non-jury trial, where testimony and documentary evidence are submitted by the attorneys. The court will then decide for you.

16. Discovery: No attorney can properly advise you as to settlement offers or the probable outcome in court without uncovering the total financial picture. This is primarily done by requesting all financial documents from your spouse and following up with questions at a deposition. Your spouse's attorney will require the same from you. The court will also require you to fill out a financial affidavit under oath which identifies all of your sources of income and expenses. Both parties will have 45 days from the date of filing for dissolution in which to provide mandatory disclosure to your spouse's attorney. We provide you with a list of these required documents so you can provide them to us for delivery to the other attorney.

17. Temporary Relief: If your spouse has been physically abusive to you or the children, threatens to hide or dissipate assets, or refuses to give you reasonable support, the court may enter a temporary order designed to alleviate these problems until a final judgment can be entered; however, you must testify at a hearing before the judge will determine your need for temporary relief.

18. Duration of Proceedings: Many factors, such as amount of discovery required and you and your spouse's willingness to cooperate with discovery requests, affect the time needed to obtain a final judgment. As such, the duration of the proceedings may take as little as three months or more than one year. An average contested divorce takes approximately six months.

19. Our Professional Services: We utilize our knowledge, experience, and research skills to obtain the best possible, but ethical, result for you. One service we cannot provide, however, is to go back and re-write your life and marriage. We are restricted by the facts you bring us. We are also not psychologists, so if your emotional problems exceed our expertise, we will recommend a counselor. Neither are we tax experts or accountants. If your financial picture is complex, you may need to retain one of these experts to work on your case too. If there are pension, 401(K) or other retirement accounts involved, a Qualified Domestic Relation Order may need to be prepared by an attorney who specializes in that area. Outside the circle of these professionals, every confidence you disclose to us will not be repeated without your permission.

20. General Suggestions: Divorces are as unique as the marriages that created them. Do not expect the same outcome a friend had in court. Also, do not allow your emotions to rule your head. Not standing up for yourself now will cause you to be very resentful later. On the other hand, don't use the proceedings as an instrument of revenge for a long list of marital ills. This approach may provide short-term satisfaction, but may blind you to long-term gains. This is especially true regarding your children. Cooperating with each other for the children's welfare, and not poisoning them against your spouse, is a must if your children are to survive this ordeal.

Clearwater Bar Association
Tampa Bay Collaborative Divorce Group

 

 


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