For parents with minor children, a divorce is often complicated where disputes arise regarding parental responsibility and time-sharing schedules. The onus is on the divorcing parents when it comes to reaching a child custody agreement, otherwise the court will step in. It is imperative to have a trial-ready attorney by your side.
Florida provides for a complex formula that is to determine the amount of child support to be paid or received. Included in the calculation are factors such as the child’s age, medical insurance, daycare, education expenses, special needs costs and any other expenses that are associated with the particular child’s upbringing. Our family attorney will guide you through this complicated process.
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Commonly Asked Questions
Before filing, you must meet the residency requirements, and there must be a statement that your marriage is irretrievably broken. When those two things are true, you can file a Petition for Dissolution of Marriage (with children or without children). That document outlines claims such as child support, custody with minor children, division of property and debts, as well as any other necessary considerations. The other party is then served with the papers, and court rules and procedures must be followed. In compliance with Florida Law, you may also be required to complete a “Children and Divorce” seminar if there are children involved.
After you file a Petition for Dissolution of Marriage, an official person (someone authorized by the Florida Rules of Civil Procedure 1.070) must give it to your spouse. This is called serving the papers. They won’t be required to do anything until they receive it. Once the papers have been officially delivered, your spouse has twenty days to respond by filing a responsive pleading or an answer. If there is no response, a default judgment can be made and you can proceed directly to court.
However, for the petition to be officially served, some conditions must be met. An official person needs to deliver it and show paperwork that it was received. In a few cases, the server can leave it at your spouse’s home with a person that lives there who more than more than fifteen years old.
It isn’t enough for you to hand-deliver the petition or mail it. Your spouse could sign a waiver saying no need for formal service, in which case this would be all right. If the divorce is uncontested, and all parties are in agreement, there isn’t a need for a formal service. If an agreement is reached, proceedings will not take very long.
If your spouse can’t be found, you can take care of the matter by publishing it in the newspaper. You have to do this four consecutive times with a recognized newspaper.
You cannot just say that you can’t find your spouse. You have to show that you have really tried to find your missing spouse and sign a sworn affidavit of diligent search. You have to talk to family, friends, employers and former employers – to anyone who might reasonably have had contact with your spouse. Just because your spouse is not speaking to you or is avoiding you isn’t reason enough to publish. If your spouse is in a foreign country or is deliberately concealing their location, you can publish.
If you have published a notice and you have not received a response by the deadline set in the notice, you can go to court with a default judgment. Keep in mind that under such circumstances, the judge is unlikely to be able to award alimony or child support. However, you could be awarded property or other assets.
If your case is uncontested, an attorney can represent you and you do not have to appear in court. The necessary documents can be transmitted electronically to the court, so you won’t have to be present at all. However, note that uncontested means that everyone is in agreement and just wants to get it over with.
Either party can file first, it doesn’t matter. If no one contests the divorce, it might take about four or five weeks after the paperwork is done. Uncontested means that both parties agree on everything, including child support, custody of children, time spent with children, how property and debts are divided, and if there will be alimony. When both parties cooperate to get the divorce done and over with, it doesn’t take long.
If both parties are not in agreement, if some portion of the arrangements is contested, then it can take longer. Some cases can take four to six months to be heard. If the courts are very busy, it could take as much as a year or more. If both parties can find a way to compromise before the matter comes to trial, such as by meeting with a mediator, it can be settled sooner.
One person or the other will have to make a statement that the marriage is “irretrievably broken.” This means that there is no way for the couple to get back together, not even with counseling. Not very many people contest this statement. This means that usually all you need to do to get a divorce is to ask for it.
In order for the divorce to be filed in Florida, at least one person must be a resident in Florida for six months before filing the request for divorce. You don’t need to supply any other proof to get a divorce. You won’t have to show that there was adultery or violence. The statement that the marriage is “irretrievably broken” is enough.
That depends on whether the judge decides that you are a Florida resident who is working outside the state, or whether you have left the state and do not intend to come back. If it appears that you are living somewhere else, even if you travel back to Florida from time to time, you will not be able to ask for a divorce in the state of Florida. This does not apply if you are in the military and are stationed somewhere else.
If you are the father, you will need scientific testing to prove that you are the paternal parent. Once that is established, your obligations for child support, visitation rights, and time-sharing will be much the same as if you were married.
No. In Florida, there is absolutely no difference in how a same-sex couple files for a divorce.
Yes. You will need to conduct what is known as a diligent good faith search. This is required by Florida Law. The steps, of which there is a standardized list, include writing to the DMV, talking to friends and family who might know the location of the spouse and placing a notice in an appropriate newspaper for a length of time. If there is no response, you will then be able to get a divorce. However, you will be unlikely to be able to receive alimony or child support if the spouse cannot be found in order to serve the appropriate papers.
Yes, you can file a petition with the court for this. Under §61.09, divorce is not a necessary condition to receive support.
You need your own lawyer. It would be a conflict of interest for your lawyer to try to represent you both. Looking at it from a practical standpoint, there is a good chance that you and your spouse might have different goals. You can’t rely on your spouse’s attorney to protect your interests. That lawyer is getting paid to protect your adversary’s interests. If both parties are in agreement, and you recognize that the lawyer that has been hired is your adversary, you can work out details with your spouse’s attorney and you would not have to hire one of your own.
If you can work out issues such as child support, timesharing with minor children, division of property and alimony, you are both going to save a lot of time, money and irritation. That might be easier to say than do since you already have differences, but if you can manage it, then all the lawyer needs to do is write up a settlement agreement laying out the decisions that have been made. If you cannot agree on these matters, then you will need to go to court over the things that you cannot agree on, and a judge will decide for you.
You might have to meet more than one time to work out details. If your spouse seems to plan to run the show, you can point out that you can always do it the hard way and let the judge decide. Try to do this without threatening, reminding that working things out is the easier and less expensive way.
If you are in immediate danger of domestic violence, the police should be called. There are certain types of conduct that would allow you to get a restraining order without telling your spouse that you are trying to get one. The clerk of court or a lawyer can tell you what to do. If a restraining order on the basis of “ex parte” is issued, your spouse will be allowed to come to a hearing to defend themselves. You do not have to start a divorce proceeding to do this. After the divorce process starts, your spouse can be ordered out of the home by the court, as well as require them to stay away from you and even from the children. These things do not have to wait until the case ends.
If you need funds immediately, there is a way that you can go to court almost right away after filing to get temporary child support and timesharing with minor children to tide you over until the case is heard. You can also ask for distributions of items that are marital property while the case is pending especially if there are unusual circumstances.
If you cannot afford to hire a lawyer, you might qualify for legal aid. There is also a chance that the court will order your spouse to pay the fees, including court costs, especially if your spouse earns more money that you do. Talk to an attorney who is willing to take on your case conditionally, that is he or she will be paid when the court orders your spouse to pay up. However, if you have an income an attorney might not agree to this since it is possible that the court will not rule in your favor on this. You should also be aware that attorneys tend to be more focused on your case if you can produce payment. If your spouse has substantial assets and you are able to show good cause for the marital dissolution, the lawyer is more likely to be willing to wait for payment.
A judge hears and rules on divorce cases.
Post-divorce disputes are relatively common. To get a change in money received, you must show that there has been a substantial change in circumstances. Either your financial situation has become worse, or your spouse has had an increase in income. Alimony that was set for a specific time can be modified under Florida Statute §61.14, but the amount of time cannot be changed unless there are exceptional circumstances and cannot be for longer than the marriage. “Bridge the Gap” alimony cannot be changed in amount or in duration.
Rehabilitative Alimony can be changed if there is a major change of circumstances in accordance to Florida Statute 61.14, or if one partner or the other has not complied with the rehabilitative plan, or the plan has been completed. Child support is paid for the care of a child of the marriage, but alimony will stop if you remarry, and might stop if the court determines that you are residing with someone who is supporting you. This is especially true if the new partnership works as if you are marital partners, and upon the nature of your financial dealings. Different sorts of alimony behave differently for duration and termination, for example:
- Durational Alimony – Ends at the death of either party, remarriage of the recipient, or substantial change of circumstances, as per Florida Statute 61.14
- Bridge the Gap Alimony – Ends at death of either party, remarriage of the recipient
- Rehabilitative Alimony – Ends at substantial change of circumstance, or with non-compliance with rehabilitation, or upon completion of the plan.
Modification of timesharing with minor children will require that one or the other parties must show a change in circumstances.
A good mediator can help resolve the case outside of court, and to prepare a lot of the necessary paperwork before going into court. Settling at mediation is usually a lot cheaper than having your lawyer prepare for and go through a divorce trial. Mediators cannot enforce any suggestions, but they can help resolve differences and guide divorcing couples toward a reasonable settlement. They can advise both parties what to expect at a trial. The mediator is a neutral party who can hear both sides of the question, and help negotiate a solution. The ideal mediator is a lawyer who understands divorce issues or is a Florida Supreme Court certified mediator.
Mediation should come after the so-called discovery process, which is where depositions and financial documents are exchanged. This will provide the court with a complete picture of your family finances, on both sides, and the strengths and weaknesses of your case.
You could represent yourself, but unless you have legal training or the case is very straight-forward, you are better off to have a lawyer advising you. Otherwise, you might not ask for things to which you are entitled, or you might agree to things that you will later regret. There are also Florida’s Rules of Evidence which can be quite complicated and must be complied with in order to get certain testimony and other evidence admitted at trial. This is best left up to a knowledgeable attorney. Judges are not allowed to advise you on how to practice law and cannot change the rules for court just because you are inexperienced. Kristin Padowitz is well trained in these matters and will be able to inform you of how the Rules of Evidence work and as to what your best course of action is in a trial.
You can add a name change to the petition for divorce in Florida, as long as you are not using the name change to avoid creditors or for another fraudulent purpose. In pretty much all circumstances, you can restore your maiden name as part of the divorce process. However, it is important to note that your spouse cannot force you to do so.