Divorce in Florida

Divorce in Florida

by Shayna K Cavanaugh, Lisa P Kirby

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Overview

Providing accurate and objective information to help make the right decisions during a divorce in Florida, this guide provides answers to more than 350 queries such as What is the mediation process in Florida and is it required? How quickly can one get a divorce? Who decides who gets the cars, the pets, and the house? What actions might influence child custody? How are bills divided and paid during the divorce? How much will a divorce cost? and Will a spouse have to pay some or all attorney fees? Structured in a question-and-answer format, this divorce handbook provides clear and concise responses to help build confidence and give the peace of mind needed to meet the challenges of a divorce proceeding.

Product Details

ISBN-13: 9781943886609
Publisher: Addicus Books
Publication date: 02/01/2017
Series: Divorce In
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 250
File size: 1 MB

About the Author

Shayna K. Cavanaugh has been a family law attorney since she began practicing law in 1996. She has dealt with all aspects of family law including, children's issues/parenting plans, financial issues (distribution of marital assets and liabilities), alimony, child support, relocation, domestic violence and appeals. She has worked with and continues to work with the Shelter for Abused Women and Children since 2004 as their attorney for victims of domestic violence. Ms. Cavanaugh strongly believes in addressing and working with the court to consider any domestic violence, including physical, emotional, psychological, financial, and immigration, in the family as a consideration when developing parenting plans. In addition, she enjoys guardianship law. She was previously the attorney with the Dignity Group which assisted families with developmentally disabled children/adults in securing a guardianship and also has experience with guardianship of minors and mentally incapacitated adults. Ms. Cavanaugh resides in Naples, Florida. Lisa Kirby has been a Family Law attorney since 1999 and has dealt with all aspects of family law, including, but not limited to Dissolution of Marriage actions, Paternity Actions, Domestic Violence issues, Child Support Matters and Family Law Appeals. Lisa Kirby has worked with the Shelter for Abused Women & Children since 2006 and has spoke at training seminars on the legal aspects of Domestic Violence Issues. Lisa Kirby's philosophy is to help assist the client understand the judicial process to empower the client in understanding the court system and the realistic results to be expected in his or her case. Mrs. Kirby aggressively represents her clients interests. Mrs. Kirby received her J.D. from the Cleveland-Marshall College of Law in 1996. She makes her home in Naples, Florida.

Read an Excerpt

Divorce in Florida

The Legal Process, Your Rights, and What to Expect


By Lisa P. Kirby, Shayna K. Cavanaugh

Addicus Books, Inc.

Copyright © 2016 Lisa P. Kirby and Shayna K. Cavanaugh
All rights reserved.
ISBN: 978-1-943886-60-9



CHAPTER 1

Understanding the Divorce Process


At a time when you feel that your life is in utter chaos, sometimes the smallest bit of predictability can bring a sense of comfort. The outcome of many aspects of your divorce are unpredictable, driving up your fear and anxiety. But there is one part of your divorce that does have some measure of certainty, and that is the divorce process itself.

Most divorces proceed in a step-by-step manner. Despite the uniqueness of your divorce, you can generally count on one phase of your divorce following the next. Sometimes just realizing you are completing stages and moving forward with your divorce can reassure you that it will eventually come to an end.

Having an understanding of the divorce process can lower your anxiety when your attorney starts talking about "discovery," "depositions," "mediation," or "going to trial" and you feel your heart start pounding in fear. It can reduce your frustration about the length of the process because you understand why each step is needed. Your knowledge will support you as you begin to prepare for each step along the way.

Most importantly, understanding the divorce process will make your experience of the entire divorce easier. Who wouldn't prefer that?


1.1 Do I have to hire an attorney to get a divorce in Florida?

You are not required to have an attorney to obtain a divorce in Florida. However, if your case involves children, alimony, significant property, or debts, you should at least consult with an attorney before deciding whether to proceed on your own. You may have certain rights and obligations about which you are unaware.

If your divorce doesn't involve any of these issues, it is still advisable to consult with an attorney to discuss the best way to proceed. A person who proceeds in a legal matter without a lawyer is referred to as being pro se (pronounced prosay), on one's own. Most of the forms you will need to be able to proceed pro se are available online at www.flcourts.org at no cost to you.


1.2 What is the first step?

If you decide to consult with an attorney, find a law firm that handles divorces as a regular part of their law practice. The best recommendations come from people who have knowledge of a lawyer's experience and reputation. If you do not feel comfortable asking someone you know, you can call either your local bar association or the Florida Bar Association for a local referral.

Even if you are not ready to file for divorce, but think your spouse may be, call to schedule an appointment right away to obtain information about protecting yourself and your children. The more information you have the better you are prepared if your spouse does files for divorce.

When you contact the attorney for your consultation, ask what documents you should bring to the initial meeting. Try to make a list of your questions to bring to your first meeting. Make sure you are aware of whether and how much the attorney charges for a consultation.


1.3 Is Florida a no-fault state or do I need grounds for a divorce?

Florida, like most states, is a no-fault divorce state. This means that neither you nor your spouse is required to prove that the other is "at fault" in order to be granted a divorce. Factors such as infidelity, domestic violence, or abandonment are not necessary to receive a divorce in Florida. Rather, it is only necessary to prove that the marriage is "irretrievably broken" to have it dissolved.

The testimony of either you or your spouse that the marriage is "irretrievably broken" is sufficient evidence for the court to rule that the marriage should be dissolved. The judge will not ask for information regarding the nature of the problems that led to the divorce or whether any type of reconciliation efforts were made.


1.4 Do I have to get divorced in the same state or country where I got married?

No. Regardless of where you were married, you may seek a divorce in Florida if the jurisdictional requirements of residency are met and the marriage was a legal marriage in the state or country where you were married.


1.5 How long do I have to have lived in Florida to get a divorce in the state?

Either you or your spouse must have been a resident of Florida for at least six months prior to filing the divorce to meet the residency requirement for a divorce in Florida. If neither party meets the residency requirement, other legal options may be available for your protection. If you do not meet the six-month residency requirement, talk to your attorney about these other options.


1.6 My spouse has told me he or she will never "give me" a divorce. Can I get one in Florida anyway?

Yes. Florida does not require that your spouse "agree to" a divorce. If your spouse threatens to "not give you a divorce," know that in Florida this is an idle threat without any basis in the law.

Under Florida law, to obtain a divorce you will only need to testify that your marriage is "irretrievably broken." Evidence of this will be your testimony at a final hearing. It is not necessary to have your spouse agree to the divorce or to allege the specific details that caused the filing of a divorce to obtain a divorce in Florida.


The Divorce Process

To initiate the divorce process, in Florida the following are typically the first steps:

• Obtain a referral for an attorney.

• Schedule an appointment with the attorney.

• Prepare questions and gather necessary documents for an initial consultation.

• Meet for an initial consultation with an attorney.

• Sign a retainer agreement and pay a retainer fee (an initial fee to the attorney to begin your divorce process) to the attorney.

• Provide requested information and documents to your attorney.

• Attorney prepares the summons and petition for dissolution for your review and signature.

• Attorney files the summons and petition with the clerk of the court.

• The clerk will issue the summons and, in some counties, a standing order. A standing order explains your rights and responsibilities while the divorce is pending in the courts.

• Process server serves the summons, petition, and standing order on the respondent.


If you have been served with divorce papers:

• Obtain a referral for an attorney.

• Schedule an appointment with the attorney.

• Prepare questions and gather necessary documents for an initial consultation.

• Meet for an initial consultation with an attorney.

• Sign a retainer agreement and pay a retainer fee to the attorney.

• Provide requested information and documents to your attorney.

• Attorney prepares an answer and, if necessary, a counterpetition for your review and signature.

• Attorney files your answer with the clerk of the court within twenty days of service of the summons and petition on you.


After an action has been commenced and the answer filed:

• Complete your financial affidavit and gather supporting documents (mandatory disclosure).

• Negotiations begin regarding a temporary parenting schedule, child and spousal support, payment of marital obligations, and attorney fees.

• Attorney prepares motions for any requests for temporary relief not previously made.

• If there are minor children, the parties comply with any local rules or court orders to attend a parent education course.

• Court holds hearing(s) on requests for temporary relief.

• Either the parties reach an agreement or the court issues temporary orders.

• Temporary order is prepared by one attorney, approved as to form by other attorney, and submitted to the judge for signature.

• Both sides conduct discovery — the process designed to obtain information regarding all relevant facts, and commence the process to exchange valuations of all assets, including expert opinions if needed.

• You confer with your attorney to review facts, identify issues, assess strengths and weaknesses of case, review strategy, and possibly develop a settlement proposal.

• Spouses, with the support of their attorneys, attempt to reach agreement through written proposals, settlement conferences, or other forms of negotiation.


If you reach an agreement on all issues, then:

• One attorney prepares the marital settlement agreement and necessary final judgment paperwork.

• Both parties and their attorneys sign agreement and all necessary paperwork.

• Final judgment paperwork is filed with the court.

• The court holds a brief final hearing.

• Final judgment is entered and you will be divorced.


If you are unable to reach an agreement on all issues, then:

• Parties attend mandatory mediation.

• Your attorney completes all necessary discovery to get you and your case ready for trial.

• Your attorney files a notice for trial.

• If an agreement has been reached on any issues, your attorney prepares a stipulation on those issues. All other issues are set for trial.

• You work with your attorney to prepare your case for trial.

• Your attorney prepares witnesses, trial exhibits, legal research on contested issues, pretrial motions, trial briefs, direct and cross-examination of witnesses, opening statements, witness subpoenas, and your closing argument.

• You meet with your attorney for final trial preparation.

• Trial is held.

• The judge will either give an oral ruling and have one of the attorneys prepare a proposed final judgment or the judge will prepare the final judgment.

• Once the judge signs the final judgment you will be divorced.


Your post-trial rights are discussed in the section on appeals.


1.7 Can I divorce my spouse in Florida if he or she lives in another state?

Provided you have met the residency requirements of living in Florida for six months, you can file for divorce here even if your spouse lives in another state. It is important, however, that although you may be able to get divorced, other rights you may have as a result of the divorce may not be available to you.

Discuss with your attorney the facts that will need to be proven and the steps necessary to give your spouse proper notice to ensure that the court will have jurisdiction over your spouse. Your attorney can counsel you on whether it is possible to proceed with the divorce.


1.8 How can I divorce my spouse when I don't know where this person lives now?

Florida law allows you to proceed with a divorce even if you do not know the current address of your spouse.

First, take action to attempt to locate your spouse. Contact family members, friends, former coworkers, or anyone else who might know your spouse's whereabouts. Use resources on the internet that are designed to help locate people.

Let your attorney know the efforts you have made to attempt to find your spouse. Inform your lawyer of your spouse's last known address, as well as any work address or other address where this person may be found. Once your attorney attempts to serve your spouse without success, it is possible to ask the court to proceed with the divorce by giving notice through publication in a newspaper.

While your divorce may be granted following service of notice by publication in a newspaper, you may not be able to get other court orders such as those for child support or alimony without giving personal notice to your spouse. Talk to your attorney about your options and rights if you don't know where your spouse is living.


1.9 I just moved to a different county. Do I have to file in the county where my spouse lives?

You need to file for divorce in the county where you and your spouse last resided as husband and wife.


1.10 I immigrated to Florida. Will my immigration status stop me from getting a divorce?

If you meet the six-month residency requirement for a divorce in Florida, you can get a divorce regardless of your immigration status. Talk to your immigration lawyer about the likelihood of a divorce leading to immigration challenges.

If you are a victim of domestic violence, tell your lawyer. You may be eligible for a change in your immigration status under the federal Violence Against Women Act.


1.11 Is there a waiting period for a divorce in Florida?

Yes. Florida judges must wait twenty-one days from the date the divorce is filed to enter a final judgment.


1.12 What is a divorce petition?

A divorce petition, also referred to as a petition for dissolution of marriage is a document signed by the person filing for divorce and filed with the clerk of the court to initiate the divorce process. The petition will set forth in very general terms what the petitioner is asking the court to order.


1.13 My spouse said she filed for divorce last week, but my lawyer says there is nothing on file at the courthouse. What does it mean to "file for divorce?"

When attorneys use the term "filing" they are ordinarily referring to filing a legal document. All documents in Florida are required to be filed electronically through an e-filing portal. Once the documents are submitted electronically, they are considered "filed" when the clerk has accepted them for filing. This process normally takes one to two days.


1.14 If we both want a divorce, does in matter who files?

For purposes of the court, the court does not give an advantage to either the petitioner, the filing party, or the respondent, the non-filing party.

Your attorney may advise you to file first or to wait for your spouse to file, depending upon the overall strategy for your case and your circumstances. For example, if there is a concern that your spouse will either transfer assets or incur debts upon learning about your plans for divorce, your attorney might advise you to file first. However, if you are separated from your spouse but have a beneficial temporary arrangement, your attorney may counsel you to wait for your spouse to file.

You and your attorney should work together to make the decision about whether and when to initiate the legal process by filing a petition for dissolution of marriage.


1.15 Is my divorce published in the newspaper?

No, Florida does not publish divorce information in the newspaper unless you have to publish the petition for divorce for service of process. However, almost all divorce records are public records.


1.16 Is there a way to avoid embarrassing my spouse and not have the sheriff serve him with the divorce papers at his workplace?

Your spouse can be served at whatever address you provide to your attorney. Servicing your spouse at work is not necessary if you can provide a alternate location where your spouse can be served.


1.17 Should I sign an acceptance of service even if I don't agree with what my spouse has written in the complaint for divorce?

Signing the acceptance of service does not mean that you agree with anything your spouse has stated in the divorce petition or anything that your spouse is asking for in the divorce.

Signing the acceptance of service only substitutes for having the sheriff personally hand you the documents. You do not waive the right to object to anything your spouse has stated in the complaint for dissolution of marriage. Once you sign the acceptance of service, you need to answer the petition within twenty days.

Follow your attorney's advice on whether and when to sign an acceptance of service.


1.18 Why should I contact an attorney right away if I have received divorce papers?

If you are either served with divorce papers or have received divorce papers from your spouse, it is important that you obtain legal advice as soon as possible. It is important to contact an attorney immediately because in Florida you only have twenty days to respond to the papers. If you do not file a response within the twenty days, default could be entered against you. If a default is entered against you, you could be prohibited from being able to present your side of the case to the court or receiving any further notice from your spouse or the court that the matter is going forward.


1.19 What is an ex parte court order?

An ex parte court order is obtained by one party going to the judge to ask for something without giving prior notice or an opportunity to be heard by the other side.

With the exception of restraining orders, judges are reluctant to sign ex parte orders. Ordinarily the court will require the other side to have notice of any requests for court orders, and a hearing before the judge will be held.

An affidavit, which is a written statement sworn under oath, is usually required before a judge will sign an ex parte order. Ex parte orders are generally limited to emergency situations such as requests for temporary restraining orders or other order to protect the safety of you or your children.

When an ex parte order is granted, the party who did not request the order will have an opportunity to have a subsequent hearing before the judge to determine whether the order should remain in effect.


(Continues...)

Excerpted from Divorce in Florida by Lisa P. Kirby, Shayna K. Cavanaugh. Copyright © 2016 Lisa P. Kirby and Shayna K. Cavanaugh. Excerpted by permission of Addicus Books, Inc..
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Contents

Acknowledgments,
Introduction,
1 Understanding the Divorce Process,
2 Coping with Stress during the Divorce Process,
3 Working with an Attorney,
4 Attorney Fees and Costs,
5 The Discovery Process,
6 Mediation and Negotiation,
7 Emergency: When You Fear a Spouse,
8 Parental Responsibility and Time-Sharing,
9 Child Support,
10 Alimony,
11 Division of Property,
12 Benefits: Insurance, Retirement, and Pensions,
13 Division of Debts,
14 Taxes,
15 Going to Court,
16 The Appeals Process,
17 What Happens after the Divorce?,
In Closing,
Resources,
Glossary,
About the Authors,

Customer Reviews