The divorce process can be highly emotional and traumatic for the parties as well as the children. 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 you legal advice. Only your lawyer can provide legal advice. Statutory requirements and court rules must be strictly followed or you may lose certain rights permanently. The Florida Bar recommends you obtain the services of an attorney concerning legal questions which include discussions regarding your rights in a divorce, your children’s rights, your property rights, and your responsibilities resulting from the marriage. A knowledgeable lawyer can analyze your unique situation and help you make decisions in your best interest and that of your family.
The regular dissolution process begins with a petition for dissolution of marriage, filed with the circuit court, in the county where you last lived together as husband and wife or in the county where either party resides. Either the husband or wife may file for dissolution of marriage and the petitioner must allege that the marriage is irretrievably broken. The petition sets out what the person wants from the court. The other spouse must file an answer within 20 days of being served, addressing the matters in the initial petition and, if he or she wishes, including a counter-petition for dissolution of marriage raising any additional issues the answering party requests 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 several days before any temporary 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 guidelines 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, parental responsibility, 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 may disagree on some issues, but eventually work out their differences, and also appear for a final hearing with a suggested settlement they ask the court to accept and incorporate into a final judgment. 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 and arrive at agreeable terms for handling the break-up of the marriage. Many counties have public or court-connected 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.
Coming to an agreement rather than leaving decisions up to a judge empowers parties to create terms with which they are more likely to comply.
Post-judgment litigation is any legal action that seeks to enforce or to modify a previous final judgment of the Court. Usually such litigation involves the same parties to the prior proceeding. A final judgment is the Court’s ultimate decision in a case and signifies the conclusion of the main work of the Court.
Enforcement of final judgments involves either compelling a party to pay a certain sum of money found by the Court to be due and owing to the other party, or to perform or refrain from performing some act described in the final judgment. The Court can use its contempt powers to coerce or to punish a party who willfully fails to pay child or spousal support, or to comply with a specific non-monetary term or condition in the final judgment.
Modification of a final judgment is much more common in family law than in other types of legal proceedings, since it is a basic principle of family law for the Court to continue to oversee the changing financial and other circumstances of the parties and the children, and to respond appropriately to ensure their welfare. To this end, the Family Court has continuing jurisdiction to modify any decision concerning the support or the custody of children based on what is in their changing best interests, and also to modify any award of alimony or spousal support based on major, unforeseen changes in the need of the receiving spouse or the ability of the paying spouse to pay. Contempt proceedings are also more common in Family Court than in other legal disputes, since the payment of money other than for support is not generally subject to the Court powers to coerce or punish.
The payment of child support or spousal support can be enforced by the same methods used to collect any debt, or by the Family Court’s special contempt powers. The first way is ordinary civil debt collection and is usually only effective when the party owing money has money or other assets that the party trying to collect the money can easily find and legally seize in satisfaction of the debt. It also works well when the debtor is looking to protect a good credit rating. However, a far more useful method of enforcing obligations when the paying party fails to pay court-ordered child support or alimony and it can be shown that this party has the financial ability to pay, either because he or she has the money or the ability to earn the money, is a contempt action against that party. If the Court determines that a party is intentionally unemployed or underemployed, or simply refuses to pay support despite a good income or visible assets, that party can end up in jail. Unless the failure to comply with court-ordered support is serious or continuous, the incarcerated party is always given the opportunity for release, called “purging the contempt”, by paying what the Court determines is within the party’s ability to pay. But the prospect of being sent to jail, or fined, in addition to paying the other party’s attorney’s fees and costs, is still a very powerful deterrent against shirking a court-ordered duty of support.
The Family Court’s powers of contempt to enforce a final judgment or other Court order extend to specific acts required to be performed or refrained from performing. Any willful and repeated, persistent, or serious violation of any provision of the final judgment relating to the parenting plan or children’s timesharing schedule, for example, is enforceable by contempt.
Attorney’s fees are recoverable in post-judgment litigation on the same grounds as in the original litigation, namely fault and superior financial ability. A finding of contempt usually presupposes the necessary degree of wrongdoing to support an award of attorney’s fees, since contempt is defined as the deliberate failure to comply with a direct court order.
Modification proceedings can, but do not necessarily, involve fault on the part of anyone, since the right to a modification is usually based on some unexpected change in circumstances. In such cases, attorney’s fees are awardable to the financially needy party if the other party is proven to have the ability to pay such fees.
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. The only requirement to dissolve your marriage is to prove that your marriage is “irretrievably broken.” Either spouse can file for the dissolution of marriage. You must prove 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.
“Fault” is not considered unless it is germane to the issue at hand.
Each divorce case is unique and, therefore, results vary from case to case. In each case, the issues are different, which can include the division of property and possessions, responsibility for support, and parental responsibility and time-sharing with children.
The fees and costs for dissolution of marriage cases widely vary. The more complex and/or the more contested the issues, the more the dissolution will cost. At an initial meeting, your attorney should be able to provide an estimate of the total cost of a dissolution based on the information you provide.
Your lawyer will expect you to pay a fee and the costs of litigation in accordance with the agreement you make. Sometimes the court will order your spouse to pay part or all of your fee and costs, but such awards are unpredictable and cannot be relied upon. You are primarily responsible for the payment of your legal fees.
In a divorce, it is illegal for an attorney to work on a contingency fee basis; that is, where the lawyer’s fee is based upon a percentage of the amount awarded to the client.
Florida Statute 61.16 governs awards of attorney’s fees and costs in Florida dissolution of marriage proceedings. F. S. 61.16 provides in pertinent part:
“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals. In those cases in which an action is brought for enforcement and the court finds that the noncompliant party is without justification in the refusal to follow a court order, the court may not award attorney’s fees, suit money, and costs to the noncompliant party.”
In Rosen v. Rosen, 696 So.2d 697,699 (Fla. 1997), the Court held the purpose of Florida Statute 61.16 is to ensure that both parties have similar ability to secure competent legal counsel. To satisfy this objective, the trial court must look to each spouse’s need for suit money versus each spouse’s respective ability to pay. Thus, the award of attorneys’ fees in dissolution proceedings generally depends on the relative financial circumstances of the parties rather than on who ”won.”
However, the court may consider all relevant factors including the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation in exercising its discretion to award attorney’s fees.
The amount of attorney’s fees awarded must be reasonable in amount (hourly rate) and duration (total hours). The standard to be applied [need and ability to pay] is the same whether the fees requested are temporary or final.
Interesting enough, the law on attorneys’ fees differs for the Counties governed by the Fourth District Court of Appeal which governs Palm Beach, Broward, St. Lucie, Martin, Indian Rive and Okeechobee counties.
In these counties, you must demonstrate “actual need” as opposed to “relative need”. For example, if you had access to $200,000 and your spouse had access to $10,000,000 you should be denied your request for fees because while you have the “relative” need, you do not have the “actual need” for the payment of fees. See Satter v. Satter, 709 20.2d 617 (Fla. 4th DCA 1999).
This concept was reinforced in Hoff v. Hoff, 100 So.3d 1164 (Fla. 2012) when Judge Amy Smith was affirmed for denying the pecunious Wife temporary attorneys’ fees because she had access to $22,000 in marital funds.
It has certainly been a trend over the years for the Court’s to be less generous awarding attorney’s fees in matrimonial cases. Be prepared to fund your attorney until you can go through discovery, attend mediation and ask the Court at a temporary relief hearing.
When one spouse starves out the other, (i.e. eliminates access to funds) then that conduct should enhance one’s ability to obtain an award. While it is quite stressful when one party acts unreasonably during litigation, those facts usually hurts the wrongdoer if you ever end up in from of a judge.
Keep in mind, there are consequences for your actions.
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 court gives both parties the same consideration in determining parental responsibility and time-sharing, regardless of the child’s age or gender.
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. Shared parenting 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 medical and dental needs. The court will determine any or all of these matters if the parties cannot agree.
In very rare cases, the court can order sole parental responsibility to one parent. To do so, the court must determine that shared parental responsibility would cause harm to the child.
In determining parental responsibility, the court will approve or devise its own a parenting plan that includes responsibility for the daily tasks of child rearing, the time-sharing schedule, and decision-making authority relating to health care, school, and related activities. The plan will also specify any technology that will be used for parent-child communication. The parents may agree on a parenting plan and submit it to the court for approval or the court will determine these issues. The statute includes a list of factors for the court to consider in making these decisions.
The courts use the Best Interests of the Child Standard when considering parental issues.
One of the most difficult and complex areas of divorce is the division of marital assets and debts. Marital property may include cars, houses, retirement benefits (pensions and 401k plans), business interests, cash, stocks, bonds, bank accounts, personal property, and other things of value. Debts, also called liabilities, include mortgages, car loans, credit card accounts, and other amounts of money you and your spouse owe to third parties. Generally, any asset or liability acquired during the marriage is considered marital and subject to distribution. The parties may also have assets or liabilities that are considered non-marital and should be awarded to only one party.
Florida statutes and case law provide for an “equitable distribution” of marital assets and liabilities. Marital property should be divided fairly or equitably (not necessarily equally) between the parties, regardless of how title is held. A court decides equitable distribution before considering alimony. Equitable distribution is based on a long list of factors the court is required to consider.
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. The court should approve your agreement if the court finds it to be reasonable. If you and your spouse cannot agree, the court will divide the assets and liabilities during trial.
After equitable distribution, the court may consider an alimony award. 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. Parties requesting rehabilitative alimony must have a plan for their rehabilitation such as the cost of going to school to improve skills and marketability. Bridge-the-gap alimony allows a party to make the transition from married to single life which may include the need to obtain a vehicle and/or money to find a place to live. Permanent alimony continues until the receiving spouse’s remarriage or the death of either party. The court can also order alimony for a certain period of time, which is called durational alimony. Rehabilitative, permanent, and durational alimony generally are paid periodically (i.e., monthly or semi-monthly); bridge-the-gap alimony can be paid in a lump sum at one time, or may be paid over a very short period of time. 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 adultery in determining 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 obtain information about your spouse’s income and assets through the use of discovery procedures. Discovery includes exchange of documents and answers to written or oral questions.
You and your spouse each have a responsibility to support your children in accordance with their needs and your income. 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 age 18, marries, is emancipated, joins the armed forces, or dies.
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 the time-sharing plan is not being followed, you should bring this matter to the attention of the court. It is not legal to withhold time sharing or child support payments because either parent fails to pay court ordered child support or violates the time-sharing schedule in the parenting plan.
Otherwise known as a restraining order, an injunction is a court order that directs one individual not to have any contact with another individual. It serves as a legal means to help protect one person from threats or acts of violence from another person.
In most counties throughout the United States and Florida including Palm Beach County, there are four different types of civil injunction petitions that can be filed with the Clerk of Court. They include domestic violence, dating violence, sexual violence and repeat violence. The type of injunction to be filed is determined based upon the relationship of the individuals and the situation that occurred.
Domestic Violence Injunction:
Anyone who has in the past or is currently living with you can be considered “family”, and you can have a Petition for an Injunction against Domestic Violence filed against them if they have or are currently abusing you.
Relations by blood or marriage including spouses or ex-spouses, parents, grandparents, aunts and uncles, and also any party intimately involved with and living together but never married are also included and defined as “family”. Also included would be adopted children, step-parents and step-children, and anyone who is the parent of petitioner’s children. It makes no difference if you have ever lived together or have ever been married.
Types of Domestic Violence include assault, battery, sexual assault or battery, staling, kidnapping, false imprisonment, or any other criminal offense which results in physical injury or death to the petitioner. This domestic violence injunction can also include protections for a petitioner’s family or any household members residing with petitioner in the same dwelling.
Dating Violence Injunction:
The court may also be petitioned to provide protections for dating violence, or instances of violence that occur as a result of dating. The requirements are simple, but all three are required:
You are entitled to file a petition for an injunction for protection against dating violence only if your situation has all three of the above elements, and if the other person has been violent toward you.
The remedies provided by a dating violence injunction are designed with the intended purpose of legally restricting a person from having any contact with you whether at your home residence, around your car, at your place of employment, while you’re out with friends, and other places you may frequent as the court finds necessary. Communication in person, by phone, writing, email and electronic communications such as social media may also be prohibited or restricted.
Sexual Violence Injunction:
The following criteria are required for filing a petition for protection against sexual violence:
If the above criteria are met, a petition for protection of sexual violence may be filed.
Repeat Violence Injunction:
Due to the nature of people and relationships in general, some situations may not fall under the guidelines or requirements to warrant the filing injunctions pertaining to sexual, dating or domestic violence. In these cases, a petition for injunction against repeat violence may be filed.
In order for this type of injunction to be permitted, there must be at least 2 incidents of physical violence, threats of violence or staling and at least 1 of these incidents must have occurred in the last 6 months.
This type of petition is often directed towards neighbors, co-workers, students, or even relatives and people who have never lived with you. People who become targets of harassment from individuals they do not live with or generally associate with other than in the workplace or at school are typically candidates for a petition for injunction against repeat violence.
If you feel the judge’s decision was incorrect, you may appeal that decision, provided that certain procedural steps are followed. An appellate court does not, however, often reverse a trial judge’s decision because the judge has broad discretion in divorce cases. If the trial judge makes an error of law or has abused his or her discretion, the appellate court may reverse the decision. Your appeal success will be limited if your only reason for appeal is displeasure with the judge’s decision. You need to determine whether to appeal the final judgment quickly because a notice of appeal must be filed within 30 days of filing of the final judgment.
Family law is a legal practice area that focuses on issues involving family relationships such as marriage, adoption, divorce, and child custody, among others. Attorneys practicing family law can represent clients in family court proceedings or in related negotiations. They can also draft important legal documents such as court petitions or property agreements.
Some family law attorneys even specialize in adoption, paternity, emancipation, or other matters not usually related to divorce. The matter of family encompasses so many life aspects. Lawyers in the field, therefore, help all kinds of people facing all kinds of sensitive issues that many people wouldn’t immediately assume go under the family law umbrella.
Most family lawyers represent clients in divorce proceedings and other matters related to divorce. But family law is a relatively broad practice area, including such issues as foster care and reproductive rights. Since family law matters hit so close to home, having a trusted legal professional by your side can help you ensure your loved ones are properly represented and protected during any legal process.
The most common reasons to hire a family law attorney include: