Top 10 Common Divorce Related Questions
1. How is a divorce case started?
One party must file a Petition for Dissolution of Marriage to start the divorce proceedings. Once the Petition is filed, the other spouse is served with a copy of the divorce petition by a process server. The spouse that was served then has 20 days to file an answer to the divorce petition. Once an answer is filed the parties have 45 days to exchange mandatory disclosure, which includes financial information such as bank statements and tax returns. Once mandatory disclosure is exchanged, the parties typically attend mediation.
2. Do I gain an advantage if I file first?
Typically, there is no strategic advantage in filing for divorce before your spouse. Courts have tried to eliminate the “race to the courthouse” mentality when it comes to family law cases. The only possible advantage would be that the party who files first gets to present their evidence first at trial. However, this really presents no advantage to either party as the Judge must consider and evaluate both positions before making a ruling or judgment.
3. How is child support calculated?
Child support is calculated based upon a statutory formula, which contemplates the incomes of the parties and the amount of overnights each parent has with the minor child. The statutory formula can be found in section 61.30, Florida Statutes. However, in order to determine the amount of child support that you are likely to pay or receive, it is more accurate to use a reliable child support calculator that takes into account health insurance and day care expenses. When calculating child support, it is important to understand that timesharing has a substantial impact on the calculation. If either parent has the minor child for less than 20% of overnights (73 overnights per year), the court assumes that the other parent has the minor child 100% for purposes of calculating child support and also assumes that the parent with over 20% of overnights incurs the majority of the costs in raising the minor child or children.
4. How is timesharing or child custody determined?
Florida has eliminated the use of the word custody and now speaks in terms of timesharing and parenting plan. There is no presumption that either parent have more or less timesharing with the minor child. In Florida, the Court determines parenting plan based upon the best interest of each minor child or children. It is important to note that the statute also provides that “it is the public policy of this state that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.” Section 61.13, Florida Statutes Although there is no presumption of equal timesharing in Florida, the courts typically want each parent to spend as much time as possible with each parent, unless the parent is unfit or it is not in the best interest of the minor child or children to do so.
5. Am I entitled to alimony?
Alimony in Florida is based on need and ability to pay. Does one spouse have a need and does the other spouse have the ability to pay? However, this is only one of many factors that are considered when determining whether alimony is appropriate. The Court must also consider the standard of living established during the marriage, the age and condition of each spouse, the financial resources of each spouse, the earning capabilities of each spouse, the contribution each party made to the marriage, the tax treatment of any potential alimony, the sources of income available to each spouse, and any other factor necessary to do equity and justice.
The Court must also look to the length of the marriage. Florida has defined a marriage lasting less than seven years as a short-term marriage, a marriage between 7 and 17 years as a midterm marriage, and a marriage lasting longer than 17 years as a long-term marriage. If a marriage lasts longer than 17 years, there is a presumption in favor of awarding permanent or lifetime alimony. If the marriage last between 7 and 17 years, typically durational alimony is appropriate. If the marriage last less than seven years, durational alimony may be appropriate, however, the courts prefer to award rehabilitative or Bridge-the-Gap Alimony, depending on the circumstances.
6. How are debts divided?
All debts acquired during the marriage are marital. It does not matter if the debt is only in the name of one spouse. Additionally, all student loans that were taken out during the marriage are marital. However, if one spouse has incurred debt by engaging in an affair or other martial misconduct, he or she will be solely responsible for the debt incurred from those activities. There may also be an argument that debt incurred after the date of separation or date of filing should be non-marital.
7. What date does the Court use to value assets and liabilities?
Under Florida law, the court can choose one of three dates to value an asset or liability. The court may chose the:
(1) date the parties separated,
(2) date the divorce petition is filed, or
(3) date the judge signs the divorce decree.
The date chosen will depend on the circumstances surrounding that asset or liability. For example, if one party incurs substantial credit card debt after the parties separate, it may be equitable for the court to utilize the date of separation to value that debt. Alternatively, if both parties are living in the martial home and contributing to its upkeep throughout the divorce, it may be equitable for the Court to value the martial home as of the date that the judge signs the divorce decree. The circumstances surrounding each asset or liability will determine the appropriate date of valuation.
8. My name is the only one on the house, does that mean its non-marital property?
No, if the home was purchased during the marriage with marital funds, then it is a marital asset. Typically, it does not matter whether one or both spouses are listed on the deed. If the home was purchased prior to the marriage and remains solely in the purchasing party’s name, it is a non-marital asset. However, the other spouse may be entitled to any increase in the value or equity of the home since the date of marriage, even though the home itself is considered non-marital.
9. Can I make my spouse pay for my lawyer?
Temporary attorneys’ fees may be awarded when one spouse has a need and the other spouse has the ability to contribute to his or her attorneys’ fees. The intent behind this provision is to ensure that each spouse has equal access to legal counsel.
10. How long does a divorce take?
A divorce that is truly uncontested can be a quick process taking as little as a month. If the divorce settles at mediation, the case may take between 3-6 months. However, if the case proceeds to trial, the case may take a year or longer depending on the court’s schedule and the available trial times.