A divorce is a stressful process for any family. One home splitting into two can affect your life, your children, your home, and your assets. As you move through the divorce process, it is important to understand each stage of the divorce. It is also imperative to have an advocate by your side who can properly guide you through the divorce process. Failing to do so may lead to irreversible consequences.
A divorce is unlike any other type of lawsuit. Although a divorce is legally considered a lawsuit, it is not designed to designate winners or losers. Rather, the court is dividing assets, dictating how a parent will spend time with a child, determining if alimony is appropriate, and making other decisions that are usually private personal decisions.
Further Reading: Orlando Divorce Attorney Fees & Costs
Most people do not want to get divorced, but at some point in time they realize that divorce is their only option. We often ask our clients, is your marriage in the emergency room or the morgue? If the answer is the morgue, then it is time to consider moving forward with a divorce. If not, reevaluate all options before moving forward with a divorce to determine whether your marriage is salvageable.
1. The Divorce Petition
To begin the divorce process, the party seeking the divorce must file a Petition for Dissolution of Marriage. The Petition outlines everything that the Petitioner is requesting such as alimony, child support, their portion of the marital assets and liabilities, timesharing with the minor children, and attorneys fees. The Petition may also include a count for partition of marital real estate. Typically, the Petition will include a request for all available forms of relief. This is done because the other side must be put on notice of any potential claims. It does not necessarily mean that the Petitioner is actually seeking everything listed in the Petition. It is imperative to list all potential claims in the Petition because if you do not request the relief in the initial Petition, you may waive any claim in the future.
2. Parenting Class
In the State of Florida, all parties to a dissolution of marriage proceeding with minor children or a paternity action that involves issues of parental responsibility are required to complete the Parent Education and Family Stabilization Course. The course is typically a 4 hour online seminar designed to educate, train, and assist divorcing parents in dealing with the consequences of divorce on parents and children. Our office will gladly assist you with signing up for this course should it be required in your case.
3. Temporary Matters
Prior to trial there may be issues that need to be resolved by the Court. Common temporary matters include establishing child support during the pendency of the litigation, establishing a timesharing schedule, establishing temporary alimony for one party, requesting exclusive use and possession of the marital home, or requesting that one party contribute towards attorneys fees on a temporary basis. These matters are heard at a hearing prior to trial. The judge makes a temporary ruling, meaning that the ruling is only good until a Final Judgment is entered or until the parties agree to a different resolution and that resolution is adopted by the court. The temporary ruling is not permanent and does not dictate the ruling that will be made at trial.It may however be referred to in subsequent hearings.You should be aware that certain counties in the State of Florida require the parties to attend mediation prior to bringing temporary matters before the court. There are certain exceptions to this rule, if the matter is what the court would classify as an emergency.
Temporary attorneys fees are one of the more common temporary matters to be heard by the trial court prior to trial. Pursuant to Florida Statutes, section 61.16, a 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. The purpose of this provision is to ensure that both parties have a similar ability to obtain competent legal counsel, and assure that one party is not limited in the type of representation he or she would receive because of that party’s financial position.
The financial component is a significant portion of any divorce proceeding. To properly value any assets or liabilities, all parties are required to provide mandatory disclosure under Florida law. Mandatory disclosure includes each party filing a financial affidavit with the court and providing necessary financial documents such as bank statements, tax returns, credit card statements, and other required financial documents. Additional disclosures may be required given the complexity of the financial situation. In addition to document discovery, depositions, interrogatories, and expert witnesses may be necessary.
Further Reading: Business Valuation in Divorce
5. Mediation & Settlement
In most counties in the State of Florida, mediation is required prior to proceeding to trial. Additionally, in some counties, including Orange County and Osceola County, mediation is required prior to proceeding to court on temporary matters. Mediation is a process whereby a neutral third person acts to encourage the resolution of disputes through a non-adversarial process and assists the parties in reaching a mutually acceptable agreement. The mediator does not act as a judge and cannot make any decisions. The mediator’s role is simply to help facilitate an agreement amongst the parties. Prior to mediation, both parties must make the necessary financial disclosures to ensure there is ample opportunity to review the financial positions of the parties in the hopes of reaching an amicable resolution. In the event the parties reach an agreement on all or some of the matters, they will enter into a written mediated settlement agreement, which will be ratified by the Court. If the parties settle all disputes, then they will have a Final Judgment entered. In the event only a partial agreement is reached, the parties will proceed forward to trial to have a judge resolve the remaining issues.
6. Pre-Trial Conferences
In the event that mediation is unsuccessful, one party will file a Notice for Trial and request that the case be set for trial. Typically, prior to trial the court will hold a pretrial conference where both attorneys will go before the judge and discuss the disputed issues that need to be resolved, the amount of time necessary for trial, and coordinate a date for trial. Typically, the client is not present for these conferences. However, it is important to communicate any dates that the client would be unavailable for trial because they will need to appear on the trial date.
Most cases are resolved prior to trial. However, in the event that the parties are unable to resolve the issues, the case will proceed to trail. At trial, the judge will listen to all of the evidence presented including witness testimony. One or both sides may have expert witnesses and may provide documentation to the court to support their position. At the end of the trial the judge will evaluate all of the evidence and make a ruling that he or she believes is supported by the evidence.If you believe your case is headed to trial, it is important to be sure that your divorce attorney is experienced in handling family law trials. Competently handling a family law trial requires experience and knowledge of the Florida Family Law Rules of Procedure, Rules of Civil Procedure, and the Florida Evidence Code. There are many family law attorneys in the State of Florida. However, only a small percentage of them have handled a significant amount of trials. Many attorneys will go their entire career only handling a handful of trials. Additionally, having an attorney who is willing and able to take your case to trial may also improve your chances of reaching an amicable settlement.
8. Final Judgment
The Final Judgment is the legal document that grants your divorce. The Final Judgment along with any settlement agreements will outline the terms of your divorce and the rights and responsibilities each party has moving forward. It is always a good idea to obtain a certified copy of your Final Judgment from the courthouse as you may need it in the future when financing a home, applying for a loan, or obtaining passports or drivers licenses.