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DIVORCE |
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The official term for divorce in Florida is “Dissolution of Marriage." Florida is one of the many states that have abolished fault as a ground for divorce. Either spouse can file a dissolution of marriage. All that has to be proven is that the marriage exists, one party has been a Florida resident for six months or more, and the marriage is irretrievably broken. The dissolution process begins with a petition for dissolution of marriage, filed in the circuit court by either the husband or wife, which states that the marriage is irretrievably broken and asks the court to award him/her certain things in the divorce. The petition for dissolution of marriage is then served upon the other spouse, also known as a party. That party must file an Answer within 20 calendar days after being served with the initial petition. The Answer needs to either admit or deny the allegations contained in the petition. The spouse who is served with the initial petition for dissolution can then file his or her own counter-petition for dissolution of marriage. In the counter-petition, he/she can raise any matters that he/she wants the court to consider. The Florida Supreme Court Rules governing divorce require that each party disclose certain financial documents to the other. The parties must also complete and file a sworn financial affidavit to the other party. The parties can waive the production of certain financial documentation; however, the financial affidavits must be filed in all cases. The financial affidavit is a sworn statement that discloses your income, expenses, assets and liabilities. Failure to provide this information can result in the court dismissing the case or not considering that party’s request. Some couples can agree on dividing their property, child custody, and other issues soon after the original petition is filed (sometimes even before!). A written agreement, called a marital settlement agreement, is signed by both parties and presented to the court. Such cases are termed “uncontested” cases, and a divorce can become final in a matter of weeks. Some couples cannot agree on anything, or can agree on some issues but not all, and a trial is required. At trial, each side presents evidence and testimony of the parties and any witnesses or professionals, such as accountants, is taken. It is important to note that at trial, the judge makes the final decision on all contested issues. The judge’s decision is the least likely to win favor with either party, as the judge has an obligation to do what he/she thinks is just and appropriate in order to divide your assets, debts, and to award timesharing with your child(ren), if any. The equitable distribution process is designed to make the divorce as fair as possible to both husband and wife, which usually means compromises by both partners. Most judges advise the parties to try to reach a settlement because the judge will make decisions that neither may like. It is sometimes 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 may cause hardship for the entire family. The parties, however, can take steps to make the process easier for themselves and their children. Those steps include putting personal differences aside to contemplate equitable distribution of assets, your children, Property Division: One of the most difficult and complex areas of divorce is the division of marital property. Marital property may include cars, houses, retirement benefits (pensions), 401K Plants, business interests, cash, stocks, bonds, bank accounts, personal property, collectibles and other things of value. Florida statutes and case law provides for an “equitable distribution” of marital property. In essence, the marital property should be divided fairly or equitably (not necessarily equally) between the parties, regardless of how the title is held. The division is based upon all facts of the case and the contribution of both spouses to the marriage. The division of marital property (any asset acquired during the marriage by the efforts of one or both parties) is considered in conjunction with all other awards of alimony and interests in property. There is no fixed way to determine how you (or the court) should divide the property. Liabilities (debts) as well as the assets must be considered. Other factors include the nature and extent of the property and whether it is marital property or non-marital property, the duration of the marriage, and the economic circumstances of each spouse. Most generally, the debt follows the asset. For example, if a party wants to keep his/her car, they would normally be expected to pay the car payment associated with that car. Alimony: The court may grant alimony to either the husband or the wife. Rehabilitative alimony is for a limited period of time to assist in redeveloping skills and financial independence. Bridge-the-Gap alimony is temporary alimony for a limited time period, used to help one of the parties to financially transition from married to single. Temporary Alimony, sometimes referred to as temporary support, is sometimes awarded during the litigation to help the party with a lower income to pay expenses through trial. Permanent alimony is a permanent financial award of alimony that continues until the death of either party. Most people agree to terminate permanent alimony upon remarriage of the spouse who is receiving alimony. The court may grant some combination of the two. Also, the court may order one party to pay the other party lump sum alimony, which is a lump-sum payment of money or property. Although adultery does not prevent an award of alimony, the court may consider the adultery of either spouse and the circumstances of that adultery in determining the amount of alimony to be awarded. In determining alimony, the court considers all relevant economic 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, 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 husband and wife. In this regard, you have the right to find out about all your spouse’s income and assets through the use of several discovery tools. Taxes & Debts: There are very important tax considerations to be aware of in any divorce, including the income tax dependency deduction for children, taxability and deductibility of alimony in various forms, and the effects of property transfers. It is important to find out how these laws affect you before you get divorced. Afterwards, it may be too late to correct mistakes that have been made. The question of who should pay mortgage payments, income tax liabilities, credit card debts, personal loans, car payments and other debts should also be addressed and resolved. |
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