Frequently Asked Questions
Marital & Family Law
What do I need to prove in order to obtain a divorce?
Florida is a no-fault state which does not require you to live separately, legally separate or establish blame in order to obtain a divorce. Generally, a client simply informs the Court, through a written document, that the marital bond has undergone an irretrievable breakdown as a result of irreconcilable differences between the parties. This allegation will be sufficient to justify a divorce. Of course, the Court will still need to deal with additional issues related to the division of property and debts and the award of alimony, child support and custody.
What issues will be litigated in my divorce case?
Although each case is different and will present its own specific issues; generally a divorce will encompass one or more of the following topics: (1.) property division; (2.) alimony and support; (3.) child issues and; (4.) attorneys fees. Some of these issues may be inapplicable to your particular case (for example if you have no children in common you would not have to address children issues) but broadly speaking these are the primary areas that are litigated in a dissolution of marriage action.
How will my property be divided?
In order to divide your property, the Court will first classify each asset and debt as either marital or non-marital. Generally, a marital asset is one that is acquired during the marriage as a result of your wages or labor. For example, if your purchase a car during the marriage using your earnings; that car would be a marital asset regardless of whose name it is titled in or whether you spouse contributed anything to the purchase price. Likewise a marital debt is any liability incurred by either party during the marriage regardless of whose name it is in. A non-marital asset is: (a.) an asset which was acquired prior to the marriage; (b.) an inheritance received during the marriage, or; (c.) a gift from a third-party that was given to one but not both parties.
Once, the Court has determined which assets/debts are marital and non-marital; it will determine the fair market value of each marital asset and debt. Finally, the Court will create an equitable distribution plan which divides up the marital assets and debts equally so that each party ends up with an equal amount.
How is Child Support Determined?
In Florida, child support is based upon a calculation found in Florida Statute § 61.13. The first step in this calculation is determining the net income of each party. This is done by taking the party’s gross earnings (salary, bonuses, commissions etc.) and reducing it by certain allowable deductions (taxes, health insurance, mandatory union dues and mandatory retirement contributions).
The second step in the calculation is determining the BASE SUPPORT. The BASE SUPPORT comes from a chart which accounts for the combined net income of the parties and the number of children. For example, parties with a combined net monthly income of $ 3,000.00 and two (2) children have BASE SUPPORT of $ 1,001.00 per month. Each party is responsible for a percentage of the BASE SUPPORT which is equal to their percentage of the combined net monthly income (i.e. if the Father makes 75% of the net income he will be responsible for paying 75% of $ 1,001.00.
The third step is to award the party paying support with credits to the extent he purchases health insurance or daycare for the children. The credits are deducted from the payor’s share of the BASE SUPPORT in order to determine his or her child support obligation.
Will I have to pay alimony (will I be entitled to alimony)?
An award of alimony is based on many factors but generally takes into account the need of one spouse and the ability to pay of the other. The most common type of alimony is permanent periodic alimony which is generally paid every month until: (a.) the death of either party; (b.) the remarriage of the recipient or (c.) the occurrence of a substantial and material change in circumstances.
Unlike child support, there is no precise way to calculate what your alimony obligation will be (or conversely how much you will get) but a general guideline is to take the recurring monthly living expenses of the recipient and reduce them by his or her income. For example, if the Wife’s monthly bills equal $ 3,000.00 but her take-home income is $ 2,500.00; her need would be $ 500.00 per month. If the Husband had the ability to pay this amount (i.e. if he had a surplus of at least $ 500.00 per month after his bills are paid) then this will be the alimony award.
Generally, permanent periodic alimony is only granted in long-term marriages where there is a substantial disparity between the income or earning capacity of the parties.
NOTE: There are other forms of alimony (temporary, durational, rehabilitative and lump sum) which are not addressed by this response).
Will my spouse be required to pay my attorney’s fees?
In many cases there is a substantial disparity between the incomes and earning capacities of the parties in a divorce case. Florida law requires that these parties be put on equal footing with regard to their ability to retain competent counsel and otherwise fund litigation expenses. Therefore, the Court will award you attorney’s fees and costs if you can demonstrate a need on your part and an ability to pay on the part of your spouse.
How long will my divorce case take?
This is a very common question but also a very difficult question to answer with any real accuracy. Of course, you can settle your case at any time from the day it is filed through the date of trial and this will determine the length of the process. If you do not settle, however; a fully contested trial will generally not occur for at least 6-9 months.
Am I entitled to a jury trial?
No. Divorce, custody and paternity cases are always determined solely by a Judge. If a trial is required, you will still present evidence and testimony to the Judge and he or she will act, in effect, as the jury in your case. The Judge has the final say and his decision will stand unless you can demonstrate that he or she abused their discretion.
Will I go through mediation?
Yes. All courts in the State of Florida require parties to a divorce action to attend at least one (1) mediation before they are allowed to proceed to trial. Mediation is an confidential process where each side presents their claims to a neutral third-party who facilitates a negotiation. The mediator is not a judge and he has no power to decide any particular issue. Instead, he or she will help you craft an agreement with your spouse so that going before a Judge is unnecessary. Many cases (some say at least 80%) settle in mediation and therefore it is a useful process which saves the parties substantial time, money and stress.
Will I be able to change my name at the end of the divorce?
Yes. At the final hearing, the Judge will ask you if you would like your maiden name restored (assuming you are the Wife). If you choose to do so, your name-change will be incorporated into the Final Judgment and without the need to file a new request.