Divorce

A KNOWLEDGEABLE DIVORCE LAWYER SERVING CLIENTS THROUGHOUT CENTRAL FLORIDA

The Atherley Law Firm represents clients going through the emotionally difficult process of divorce.  Whether an uncontested divorce, a complex divorce, divorce mediation, or a divorce requiring trial, we are here to help you through the process.  Sometimes what seems like a simple and straightforward case can turn into a complicated and complex case. At the Atherley Law Firm, we are committed to working closely with our clients to help them feel more comfortable throughout the divorce process.  We are committed to your case, which means keeping you informed of case details, explaining changes, and providing detailed information on case developments while ensuring that your rights are protected every step of the way.

FLORIDA DIVORCE BASICS

FLORIDA IS A NO-FAULT STATE

Divorces occur for a variety of reasons.  Florida has enacted a no-fault dissolution of marriage statute. This means that it is not necessary to show fault on the part of one of the parties in order to be granted a divorce.  On the other hand, fault can be relevant and used later in the dissolution process if it relates to an alimony or equitable distribution claim.  Florida law views the dissolution of marriage as the ending of a partnership between two equal partners that share equally in all burdens arising from the event of the divorce.

LEGAL GROUNDS FOR DIVORCE IN FLORIDA

In Florida, there are only two grounds for divorce:

  1. Marriage is irretrievably broken
  2. One spouse is mentally incapacitated

A marriage is considered irretrievably broken if the parties can no longer live together because of difficulties that are substantial enough that no reasonable effort could solve them and allow the parties to live together in a normal marital relationship.  A family law judge will generally inquire as to why parties feel the marriage is irretrievably broken, but judges are not required to make a written determination as to why the marriage is irretrievably broken.

The mental incapacity of one spouse is the other ground for divorce allowed in Florida.  However, in order to proceed with a divorce in Florida under the grounds that one spouse is mentally incapacitated, that spouse must be deemed incapacitated for at least three years.  The dissolution of marriage petition should be served on either the guardian or nearest relative of the incapacitated spouse.

RESIDENCY REQUIREMENTS FOR DIVORCE IN FLORIDA

Prior to filing a petition for the dissolution of marriage, one spouse must be a Florida resident for at least six months preceding the filing of the petition.  If you have temporarily relocated outside of Florida, the Florida family law court will determine whether you still qualify as a Florida resident.  If you live outside of Florida due to military service while being stationed outside of Florida, your residency requirement is not affected and you will still be considered a Florida resident.

CONTESTED & UNCONTESTED DIVORCE IN FLORIDA

The need for divorce often arises when the parties are unable to agree on various issues.  However, if parties can agree on everything and certain requirements are met, an uncontested divorce, also known as a simplified dissolution of marriage, is available. When couples are willing to cooperate with each other to dissolve their marriage amicably, an uncontested divorce is usually the fastest method.  With an uncontested divorce, the parties have worked out important issues and agree on everything alleged in the divorce petition.  In order to qualify for an uncontested divorce in Florida you must prove:

  1. Agreement that marriage is irretrievably broken
  2. Agreement on the division of assets and debts
  3. Neither party is seeking alimony
  4. At least one spouse has lived in Florida for at least 6 months
  5. No children under 18 years old
  6. Wife is not currently pregnant

Unfortunately, if the above qualifications are not met or everything alleged in the dissolution petition is not agreed upon, a contested divorce is the method for achieving the dissolution of marriage. This means that at least one disputed issue such as child custody or child support exists, and that issue must be resolved at mediation or at a divorce trial.  Contested divorces almost always last longer and are more costly than uncontested divorces.

THE FLORIDA DIVORCE PROCESS

Once you have determined that your marriage is over and you have decided to take the steps to end your marriage, certain requirements and deadlines must be met. In Florida, a divorce that is uncontested may take a matter of weeks or a few months, while a contested divorce can take anywhere from six to twelve months, and under certain circumstances even longer.  A family law attorney from the Atherley Law Firm can assist you in your family law matters to ensure that all requirements are properly fulfilled.  To start the divorce process, the following steps should be followed:

  • PETITION FOR DISSOLUTION OF MARRIAGE:  One or both parties must file a Petition for Dissolution of Marriage in the circuit court of the county where they reside.
  • ANSWER TO DISSOLUTION OF MARRIAGE:  Once the dissolution of marriage has been filed and properly served, the other spouse must respond by answering the divorce petition within 20 days of service.
  • PROVIDE FINANCIAL AFFIDAVIT:  Financial affidavits must be provided to the other party within 45 days or the service of petition. Financial affidavits and marriage settlement agreements can also be filed when the petition for dissolution of marriage is filed.
  • FOLLOW PROPER DEADLINES: Keep track of all court dates, hearing times, deadlines, document requirements, and instructions provided by the county’s Clerk of Court to avoid delays and negative consequences.
  • MEDIATION: Mediation is required prior to scheduling a divorce trial and provides a unique opportunity to resolve all issues without involving a judge.
  • DIVORCE TRIAL:  A trial is conducted where a judge hears the facts and decides the issues not previously resolved in mediation.
  • NAME CHANGES:  Having a maiden name restored is available during the course of the divorce if requested, otherwise a Petition for Name Change will be filed separately with the clerk of court in your county after the divorce.

PROPERTY DIVISION & EQUITABLE DISTRIBUTION

A large part of a divorce is usually deciding who gets what.  Florida law holds that the division of property should be equitable, but not necessarily equal.  Any property acquired during the marriage is considered marital property and must be divided between the parties as equitably as possible.  Property acquired before the marriage, purchased with separate non-marital funds during the marriage, or an inheritance that was given to only one party, is considered non-marital property.  Each spouse is entitled to keep his or her non-marital property as separate property.  If a couple agrees to a settlement, or reaches an mediated settlement agreement during mediation, matters concerning property can be settled without going to court.  Otherwise, a judge will be responsible for the equitable distribution of the assets and debts that each party has acquired or incurred during their marriage.

DIVORCE MEDIATION

In Florida, divorce mediation is required prior to setting a divorce trial date and appearing before the judge. Divorce mediation, when properly implemented, can work extremely well to resolve various issues that stem from divorce. Divorce mediation covers the dispute resolution of various divorce related matters including distribution of property, child-sharing and custody agreements, alimony, and spousal support. During divorce mediations, the involved parties primarily conduct the negotiations and the decision-making authority rests with the parties instead of allowing a judge to decide.  A Florida Supreme Court Certified mediator is present to facilitate the mediation process. Many mediations result in success, but others do not, usually due to lack of communication and willingness to compromise.  Often, this is the one opportunity to come to an agreement without going to court, which can result in the savings of time and money.  With divorce mediation, you are the ultimate judge!

ALIMONY & SPOUSAL SUPPORT

In Florida, alimony is generally awarded based on the length of the marriage, whether either party has an actual need for alimony, and whether either party has the ability to pay alimony. Courts will often also consider the age, financial resources, education level, income producing capacity, physical condition, child-rearing contributions, homemaking contributions, and the contributions each spouse made to the career building of the other spouse. Alimony or spousal support is generally decided after the division of marital property has been determined and is usually provided bi-weekly, monthly, over a short period of time, or in one lump sum at a pre-determined date and time.

There are six types of alimony awards in Florida:

  • PERMANENT ALIMONY:  Spousal support is paid until the death of either party or remarriage of the receiving spouse.
  • DURATIONAL ALIMONY:  Spousal support is paid for a specified period of time, usually not to exceed the length of marriage.
  • REHABILITATIVE ALIMONY: Spousal support awarded to allow one party to gain financial independence by improving skills and marketability through education or other means with a written rehabilitative plan.
  • BRIDGE THE GAP ALIMONY: Spousal support given for a period of time while receiving spouse transitions from married life to single life and receives funds to assist in the transition.
  • LUMP SUM ALIMONY:  Spousal support awarded in one payment and usually made as an equalizing payment when a court finds that support is needed.
  • TEMPORARY ALIMONY:  Alimony that is awarded pending litigation and based on the current standard of living and ability to pay of the parties.

Florida family law courts often consider the length of marriage when awarding spousal support.  The length of the marriage is generally from the date the marriage occurs to the date of filing an action for the dissolution of marriage.

Florida marriage duration considerations when awarding spousal support:

  • SHORT TERM MARRIAGE: A marriage lasting less than 7 years.
  • MODERATE TERM MARRIAGE:  A marriage that lasts at least 7 years, but less than 17 years.
  • LONG TERM MARRIAGE:  A marriage lasting 17 years or more.

PRE-NUPTIAL AGREEMENTS

Pre-nuptial agreements are becoming more popular among couples preparing for marriage. Couples contemplating marriage usually decide to enter a pre-nuptial agreement for several reasons, but the goal of the pre-nuptial agreement is to deal with circumstances in advance that may occur in the event of a divorce.  Pre-nuptial agreements identify pre-martial assets of the parties and determine how these assets will be distributed or not distributed if a divorce occurs. Each party must fully disclose to the other party all of their income and assets because the validity of a pre-nuptial agreement can be challenged for the lack of a full financial disclosure. In situations where one or both parties have acquired considerable assets prior to marriage, pre-nuptial agreements are put into place to protect both parties in case of divorce. The benefit of having a pre-nuptial agreement in place is that if a divorce actually occurs, both parties will save time, money, and the emotional stress of going through a divorce trial since all of the divorce terms have already been agreed upon prior to the marriage. In Florida, pre-nuptial agreements are valid and fully enforceable by law.

SEPARATION AGREEMENTS

Florida law does not provide for a legal separation as many other states do.  However, alternative methods are available that provide the benefits of achieving a legal separation by formalizing specific terms of a separation in a written contractual agreement that is legally enforceable.  Usually these agreements take the form of either a separation agreement or a petition for support that outlines how assets and debts will be divided. A separation agreement is not approved by the court but is a legally binding contract that’s terms must be followed as long as both parties properly entered into the contract.  A Petition for Support Disconnected with Dissolution of Marriage enables one spouse to receive child support and/or alimony from a spouse that has moved away from the marital residence without actually filing for divorce.  The Petition for Support Disconnected with Dissolution of Marriage specifies that the petition is not connected to a Petition for Dissolution of marriage.  In other cases, a post-nuptial agreement is entered into during the course of marriage.  A post-nuptial agreement is a contractual agreement that specifies in the event of a divorce, how assets and debts will be divided.

MARRIAGE ANNULMENTS

While divorce or dissolution of marriage ends a legally valid marriage, an annulment of marriage legally declares that a marriage was never actually valid in the first place. Florida law does not specifically govern annulments by statute or rule. Thus, annulments are usually difficult to achieve in Florida.  An annulment of marriage may be pursued for any cause that has prevented the parties from entering into a valid marriage.  A marriage must be void or voidable in order for an annulment to be permitted by a judge.  In Florida there is an important distinction that exists between a void and a voidable marriage.  A marriage is considered void if the marriage was invalid at the moment it was entered into.  A marriage is considered voidable if the marriage may be valid at the outset but can be later voided due to certain circumstances.  Only the innocent party may seek an annulment.

Reasons a marriage may be annulled include a lack of mental or legal capacity to contract in marriage, physical or mental disability, bigamy, incest, a lack of actual consent, or consent obtained by concealment, fraud or duress. Once an annulment is granted, neither party can claim the other’s property, retirement, insurance, or other benefits derived as a basis of marriage.

COMMON LAW MARRIAGES

Common law marriages are no longer recognized in Florida.  However, Florida may recognize a common law marriage entered into in another state that recognizes common law marriage as a valid marriage.

A KNOWLEDGEABLE DIVORCE LAWYER SERVING CLIENTS THROUGHOUT CENTRAL FLORIDA

Divorces can be complicated and time consuming.  Consult with a skilled divorce attorney dedicated to helping you through the difficult and challenging divorce process.  Our office is located in downtown Orlando, and we serve clients in Orange County, Osceola County and the surrounding areas. For a free initial consultation, call us today at (407) 459-7046, contact us online, or schedule your own consultation.

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