January, typically, is a busy time of year for divorce attorneys. Many couples anticipating divorce will wait until after the holiday season before they take action. If you are thinking about filing for divorce in 2015, here are some things you need to know:
1. Most divorces are contested. Many people seeking a divorce assume it will be an easy process. Often clients initiating the process will say “This is an uncontested divorce. We pretty much agree on everything,” only to be surprised, later, when their spouse does not agree on many issues.
The reality is: if you and your spouse do not get along to the point one of you is seeking a divorce, chances are, it’s only going to get worse once you are in adversarial positions. While you may agree in principal you will “split everything equally” and “share custody of the kids,” the devil, they say, is in the details. Your idea of “equal” and “sharing” most likely is very different from your spouse’s.
Or, perhaps you agree on some issues, but not on other. You agree you’ll keep the house, and he’ll keep his retirement, but you think the children should live with you most of the time and your spouse has different ideas about that.
2. One of you must have lived in Florida for at least six months. Only Florida residents can file for divorce in Florida courts, and to be considered a resident for purposes of filing, you must have lived in the state for at least six consecutive months. However, both parties do not need to reside in Florida, so if you live here, but your spouse lives in North Carolina, you can file for a divorce in Florida and have your spouse served in North Carolina.
3. There are only two grounds for dissolution of marriage. The court doesn’t care that your spouse cheated on you, unless he or she spent dissipated, wasted, depleted or destroyed marital assets because of the affair. In Florida, “infidelity” is no longer grounds for a divorce. The only two grounds for divorce are that the marriage is “irretrievably broken” or that one of the parties has been found by a court to be mentally incapacitated for a preceding period of three years (according to F.S. 744.331).
4. Child support and child custody (time-sharing) are two separate issues. Many people think one is dependent on the other. Not so. Child support from both parents is the right of the child. The state has created a formula to help the parties to a divorce with minor children to determine how much child support each party owes. This calculation takes into consideration how many nights each child will spend with each parent, as well as the income of each parent and a few other factors.
Time-sharing—the specific days and nights each child will spend with each parent—is set forth in a parenting plan the parties work together to create. To make this process easier, the courts have provided a parenting plan form as a starting point. In every divorce with minor children, the court requires the parties to complete and submit a parenting plan. The objective is to establish clearly, upfront, the days, nights, holidays, etc., each child will spend with each parent and which parent will be responsible for what. The courts have found, by requiring such a plan at the outset, it helps the parties function more effectively as co-parents of the children. Relocation maybe be a significant issue for some families if one parent feels he or she needs to move more than 50 miles from the child’s primary residence. There are very strict rules which must be followed if relocation is an issue, and the consequences for not following them can be severe.
5. Alimony is a separate issue from equitable distribution. Currently, alimony in Florida is determined based on the length of the marriage, the need of one party for continued financial support, and the ability of the other party to pay. The purpose of alimony is not to make up the difference in inequitable distribution of property.
In dividing up property, the court first determines which properties are a marital assets and which are not. Then, the court starts with the presumption that all marital property (and liabilities) should be divided equally between the parties.
However, the law requires “equitable” distribution, not “equal” distribution of marital property. To determine a fair distribution, the court may consider many factors such as: the economic circumstances of the parties, the contribution to the marriage by each spouse (including services as a homemaker and contributions to the care and education of children of the marriage), interruption of personal careers or educational opportunities of each spouse, desire of the parties to retain particular assets such as interests in business or inheritances, desire of the parties in retaining the marital home as a residence for dependent children, the intentional dissipation or destruction of marital assets by one or both parties, and other factors.
While on the face of it, the divorce process may appear to simply be a matter of dividing up your “stuff” and deciding who takes care of your children when, the actual proceeding is a bit more complicated. While the courts have provided all the necessary forms for those who decide to represent themselves, an experienced, knowledgeable divorce attorney can help you anticipate and adequately prepare for all the issues you are likely to encounter—many of which might never occur to you. A good divorce attorney also can advocate for you during emotionally difficult times when you might not be able to be a good advocate for yourself.
Sandy Ambrose has practiced family law for 30 years, helping many families navigate the divorce process. If you are considering divorce, we encourage you to call our officeto discuss the particular circumstances of your case. Let us help you.