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Divorce In Florida
CAN YOUR MARRIAGE BE SAVED?
Before you take any legal steps in Florida to end your marriage, you should make sure that you have tried all possible ways to save it. Do you want professional help in working out ways to save your marriage? Many communities, such as Jacksonville, Jacksonville Beach, Atlantic Beach, and Neptune Beach, Orange Park, St. Augustine, Fernandina Beach, Ponte Vedra Beach, Green Cove Springs, and social and religious organizations offer counseling services either free or on a sliding fee scale. Or you may wish to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi or other qualified person. Your Jacksonville area, Florida family law attorney or divorce lawyer may also refer you to someone who can counsel you and your spouse.
GENERAL
The official legal 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 legal process of divorce. All that is required is that the Florida marriage be "irretrievably broken." Either spouse can file for the dissolution of marriage in Florida. All that your Jacksonville divorce lawyer or attorney has to prove is that a marriage exists under Florida law, one party has been a Florida resident for six months immediately preceding the filing of the petition for dissolution of marriage, 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 by the Florida divorce courts under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and determination of child custody in Florida. In Duval County, the clerk of the court where the petition for dissolution of marriage is filed is at 330 E. Bay Street, Jacksonville, Florida.
Each Florida 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 custody of children may become contested matters that will be heard by the Florida divorce court.
The divorce process is highly emotional and traumatic for everyone it touches. Marriage partners often do not know their legal rights and obligations under Florida law. Florida court clerks and judges can answer some of your basic questions but are prohibited from giving legal advice. Only your Jacksonville family law attorney or your Florida divorce lawyer is allowed to do that. Florida statutory requirements and Florida court rules must be strictly followed or you may lose certain rights forever. It is recommended that you obtain the services of a Jacksonville, Florida family law attorney or divorce lawyer,so that your Florida family law attorney or Jacksonville divorce lawyer can analyze your unique situation and can help you to make decisions in the best interest of you and your family, concerning legal questions, your rights in a Florida divorce, your children's rights, your property rights, your responsibilities resulting from the dissolution of marriage or tax consequences. A knowledgeable Jacksonville family lawyer or Florida divorce lawyer can be of great assistance to you.
There are two ways of getting a divorce, or dissolution of marriage, in Jacksonville, Florida. The usual way is called a "Regular Dissolution of Marriage." The second method is the "Simplified Dissolution of Marriage."
REGULAR DISSOLUTION OF MARRIAGE
The regular dissolution Florida legal process begins with a petition for dissolution of marriage, filed with the circuit court in Florida by the husband or wife, which states that the marriage is irretrievably broken and sets out what the person wants from the Florida divorce court. The other spouse must file an answer within 20 days, addressing the matters within the initial petition and raising any additional issues the answering party desires the Florida divorce court to address.
Florida court rules governing divorces require that each party provide certain financial disclosure and documents and a completed financial affidavit to the other party within 45 days of the service of the petition for dissolution of marriage is filed or before any temporary relief hearing before the Florida divorce judge. Failure to provide this information can result in the Florida divorce court dismissing the case or not considering that party's requests. The parties or the Florida divorce 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 Florida child support guideline worksheet must also be filed with the Florida divorce court at or before any hearing on child support. This requirement may not be waived by the parties or the Florida divorce court.
Some couples agree on property settlements, child custody, and other post-divorce arrangements before or soon after the original petition for dissolution of marriage is filed. They then enter into a written agreement signed by both parties that is presented to the Florida divorce 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. Divorce 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.
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SIMPLIFIED DISSOLUTION OF MARRIAGE
Certain Florida couples are eligible to dissolve their marriage by way of a simplified procedure. These dissolutions are "do-it-yourself" and were designed so the services of a Jacksonville, Florida divorce lawyer or family law attorney may not be necessary. Couples are responsible, however, for filing all necessary documents correctly, and both parties are required to appear before a Jacksonville divorce judge together when the final dissolution is granted. If you desire the services of a Jacksonville divorce attorney for this dissolution process, usually it can be completed relatively inexpensively.
Not everyone can use this procedure. A husband and wife can use the Florida simplified dissolution of marriage only if: (a) they both agree to the use of this form of dissolution proceeding; (b) they have no minor (under 18) or dependent children; (c) they have no adopted children under the age of 18; (d) the wife is not pregnant; (e) at least one of the parties has lived in Florida for the past six months; (f) the parties have agreed on the division of all of their property (assets) and obligations (debts); and (g) both parties agree that the marriage is irretrievably broken and want to end their marriage because of serious permanent differences. Couples wanting to use the simplified process in Jacksonville, Florida, must meet all these conditions. If not, they must use the regular Florida dissolution of marriage process.
There are substantial differences between a simplified and a regular dissolution of marriage. In a regular dissolution of marriage, each spouse has the right to examine and cross-examine the other as a witness, and to obtain documents concerning the other's income, expenses, assets and liabilities before having a divorce trial or settlement of the case. With a simplified dissolution, financial information may be requested but it is not required to be given.
If the husband and wife agree on a dissolution of marriage, and prefer to use the simplified form of dissolution, they should both contact the clerk of the circuit court in their area and obtain a copy of the booklet titled "Simplified Dissolution Information" for more detailed information and forms.The Clerk of the Court in Jacksonville, Duval County, Florida, is 330 E. Bay Street, Jacksonville, Florida 32202.
You may go to divorce court yourself (without a Florida divorcelawyer or attorney) to petition for an injunction to protect yourself against domestic violence (assault or battery by your spouse whether you are separated or not, or your former spouse), repeat violence, or sexual violence. If you feel you are the victim of such domestic violence, repeat violence, or sexual violence, you should contact the Florida office of the clerk of the circuit court in your county or the local domestic violence shelter for information and assistance.
PROPERTY DIVISION
One of the most difficult and complex areas of Florida divorce is the division of marital assets and liabilities (debts). In Florida, 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 a marital asset and subject to distribution by the Florida divorce court.
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 that your Jacksonville divorce lawyer can help you evaluate.
Equitable distribution is done first before alimony is considered.
There is no fixed way to determine how you or the Florida divorce court should divide the property, or debts. Factors to be considered by the divorce judge 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 Florida divorce court. If you cannot agree, the Florida divorce court will divide the assets and liabilities after a trial.
After equitable distribution has been made, the Florida divorce judge may consider the award of alimony. The divorce 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 Jacksonville divorce court may grant some combination of the two. The Florida divorce 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 Florida divorce court may consider the circumstances of that adultery in determining an award of alimony.
In awarding alimony, the Florida divorce 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 Jacksonville divorce 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 Jacksonville Florida divorce attorney will explain to you.
TAXES
There are very important tax considerations to be aware of in any Florida divorce, including the dependency deduction for children, taxability and deductibility of child support and alimony in their various forms, and effects of property transfers. It is important to find out how these laws affect you before you get divorced in Florida. Afterwards, it may be too late to correct mistakes that have been made. This may require the services of an accountant in conjunction with your Jacksonville, Florida, family law attorney or divorce lawyer.
SHARED PARENTAL RESPONSIBILITY FOR CHILDREN
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. By Florida Statutes, the father is given the same consideration as the mother in determining custody regardless of their child's age or sex.
In most cases in Florida, 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 Jacksonville divorce 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 Florida divorce court will decide on responsibility for them. The Florida divorce court can order varying types of shared parenting arrangements depending on the evidence presented. The Jacksonville divorce court may designate one parent's home as the primary residence and afford the other parent frequent and continuing contact, or, the Florida divorce court may order rotating custody in which the time spent with each parent is equal.
In rare cases, the Florida divorce court can order sole parental responsibility and custody to one parent. To do so, the Jacksonville divorce 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 Florida courts.
Florida law requires both parties to attend a parenting course prior to entering a final judgment of divorce. Consult your county clerk's office for information on courses offered.The County Clerk's office in Jacksonville, Duval County, Florida is located at 330 E. Bay Street, Jacksonville, Florida 32202.
According to Florida law regarding 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 visitation and access to your child is denied, you should bring this matter to the attention of the Jacksonville divorce court. It is not legal under Florida divorce law to withhold visitation or child support payments because either parent fails to pay divorce court ordered child support or violates divorce court ordered visitation.
APPEALS
If you feel the judge's decision was incorrect, you may appeal that decision, provided that certain procedural steps are taken. A Florida appellate court does not, however, often reverse a Florida divorce trial judge's decision because the divorce judge has broad discretion in Florida divorce cases. Just because you do not like the divorce judge's decision is not a reason for an appeal. If the trial judge makes an error of law, or has abused his discretion, the decision may be reversed. Because an appeal must be filed within 30 days of rendition of the final judgment, you need to address this issue quickly with your Jacksonville Florida divorce lawyer or family law attorney.
WHERE TO GET LEGAL HELP?
A good place to begin is with your own family law attorney or divorce lawyer who can give you a quick review of your legal rights and advise you how to proceed. If your Jacksonville divorce lawyer does not handle appeals of divorce cases, you will be referred to a Jacksonville Florida attorney who does.
If, however, your Jacksonville Florida family lawyer has been retained by your spouse, then the Jacksonville Florida lawyer cannot represent you too. In fact, if the Jacksonville divorce lawyer has been your Jacksonville family lawyer there may be a conflict of interest and the Jacksonville lawyer cannot represent either of you. Do not attempt to consult with your spouse's Jacksonville divorce attorney to receive legal advice. It is unethical for a Florida attorney to represent both sides in a Florida divorce and to give legal advice to both husband and wife.
HOW TO SELECT A LAWYER
If you do not have a Jacksonville divorce lawyer, the Jacksonville Bar Association has a lawyer referral service, that can put you in touch with a Jacksonville divorce lawyer who handles such cases. The Jacksonville lawyers associated with the Jacksonville Bar Association lawyer referral service have an agreement to charge a very small fee for the first conference. For just a few dollars, you can discuss your rights and obligations and determine if you are proceeding in the right direction.
In Florida, lawyers who specialize in family law can become board certified if they meet certain criteria and pass a comprehensive test in the area. To maintain certification a Florida lawyer must take certain continuing legal education courses on a regular basis.
A Florida divorce does not have to be expensive. The more complex your affairs and the more contested the issues, the more the dissolution of marriage will cost for your Jacksonville divorce lawyer. At an initial meeting, your Jacksonville family law attorney or divorce lawyer should be able to provide an estimate of the total cost of a dissolution based on the information you provide. To a large extent the cost will depend on how contested the matter becomes.
One Florida lawyer cannot represent both parties. Your Jacksonville divorce lawyer will expect you to pay a fee and the costs of litigation in accordance with the agreement you make. Sometimes the Florida divorce court will order your spouse to pay part or all of your Jacksonville divorce lawyer's fees 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 Jacksonville Florida family law attorney or divorce lawyer 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.
ADDITIONAL RESOURCES
Created by The Family Law Section of The Florida Bar, the Family Law Handbook may provide additional information about a Florida divorce. You may obtain a copy of the handbook from your local clerk of court or access the handbook on the World Wide Web at http://www.flclerks.com.
This material represents general legal information. Since the divorce law is continually changing, some provisions may be out of date. It is always best to consult a Jacksonville family law attorney or Jacksonville divorce lawyer about your legal rights and responsibilities regarding your particular case.
