Divorce FAQ

First, the parents may reach a peaceful agreement as to how the children’s time is to be divided, and the Court will honor that agreement. Florida law requires that a Court consider a number of factors (at present, the Statute, Section 61.13, sets out a total of 20 separate factors!) in order to determine what is in the “best interest” of the child or children. There is no automatic preference for or against the mother or the father in obtaining custody. Rather, this decision is made based upon a comparison of the two parents and how those factors apply to them. In some ways, the Court system truly does nothing more than apply common sense to deciding which parent can be expected to provide the “best” parenting for the child or children based upon that parent’s individual traits, the patterns that the parties have established, and other common sense factors described in the Statute and by the Courts.

Alimony is determined based upon the financial need of the spouse who is seeking alimony, compared to the financial ability of the other spouse to pay alimony. It is the rarest of cases when a Court will actually order one spouse to pay half of their income to the other spouse, but some partial “leveling” (although not equalization, which is the rarest of alimony awards) of incomes is usually the attempt of an alimony award. There are many, many types of alimony, and “lifetime” alimony (what the Florida law calls permanent, periodic alimony) is normally only awarded after a long-term marriage. Ask your attorney to explain each of the different types of alimony.

If there is a significant disparity in incomes between the parties, then Florida law requires that the Court consider having the party with the significantly higher income pay the attorney’s fees for both parties. Even so, the party with little or no income may be forced in the beginning of the case to borrow monies from family, friends, credit cards or a line of credit in order to pay the initial retainer, which the Court will be asked to reimburse or refund (to the lending family member or institution) later on in the case. The Court can even hold an early hearing in the case to provide for temporary attorney’s fees and the reimbursement of these advanced attorney’s fees.

Florida has a particular Statute that limits the right of a parent to move out of state with children once there has been a divorce action begun or a Court Order entered regarding children and the shared parenting of those children. The Statute subsection is 61.13001 and basically requires that there be a particular form of actual written notice to the other party and the opportunity for the parties to approach the Court and describe the reasons in favor of the move and against the move. This should be discussed in detail with the attorney, presumably early on in the case.

Spouses married to members of the Navy, Army, Air Force, Marine Corps and Coast Guard have legitimate interests in learning what their rights are during a divorce and as part of the Final Judgment of divorce regarding military benefits. These include commissary and exchange privileges, health care, automatic payment of support from the military pay during the time of service and some form of sharing in the military retirement after active duty ends. These should be discussed in detail with the attorney.

Today’s family law Court system encourages the settlement of cases before expensive, emotionally-draining trials. Experienced and professional divorce attorneys should begin, early in the process, to discuss with the client options for amicably settling a case without unnecessary expense and without unnecessary hostilities. Of course, it is important, in trying to settle a case, that the client does not go too far and give away more of the legal rights (to property, support payments or to access with their children) than they should. This is where having an experienced divorce lawyer can make a significant difference. The experienced divorce lawyer has appeared before the trial courts and learned the law, and can better attempt to predict what the Court would do if the parties do not settle; the two of you then compare the “settlement offer” to what the Court would likely do before deciding whether the settlement offer is fair or not. Another factor in settling cases is that many cases these days are referred early on to a mediator, who is trained and skilled in helping parties reach a settlement without having to go to trial. Another question deals more extensively with divorce mediation.

In divorce mediation, the two parties together (with or without attorneys, as they choose) go to a Supreme Court Certified Family Law Mediator, who then engages them in the process of negotiation to try and settle the case. After a joint introductory session, the mediator will separate the parties and then go back and forth between the parties trying to learn the factors and details that will help the mediator suggest possible resolutions of the pending issues. The mediator does not decide the case (like a judge), and the mediator is forbidden from giving legal advice to the parties. Thus, unfortunately, the most effective mediations usually occur when both of the parties have their own attorney to give them legal advice about whether or not the suggested mediated settlement is “fair” to them in light of Florida law.

This is frequently asked of divorce lawyers. It is important to understand that lawyers are ethically prohibited from representing both sides in a divorce action. It may well be that a divorce proceeds all the way through to conclusion (Final Judgment) with only one lawyer being involved, but that lawyer is only allowed to represent one of the parties. (Indeed, the majority of divorces in the State of Florida at present are conducted with no lawyers being involved at all, simply because of the economic realities of persons approaching divorce while in poverty level circumstances and no ability to retain attorneys.) One party may retain the lawyer, who then prepares the Marital Settlement Agreement and all of the other divorce papers (Petition for Dissolution of Marriage, financial documents, Final Judgment and other documents), and then the parties sign these documents. In such a case, there is “only one lawyer”, but he or she is only representing one of the parties.

In the beginning of a divorce, unless the parties have chosen to separate or there has been violence or near-violence between the parties, it is very common for parties to continue to live in the same house, at least through the early stages. By the time of final hearing, the parties (and the judge if they cannot decide) are forced to make a decision as to which of the two should receive the house (assuming it is not going to be sold, which is addressed in a different question). Florida law provides a means where the one parent who ends up having the children live with them the majority of the time is granted the potential to live in the former marital residence, at least until the children become adults. This helps provide stability for the children in the home where they were residing before. It can be dependent on whether or not the mortgage payments are exorbitant and how the other economic factors in this particular divorce come into play. Additionally, a judge can simply award full ownership of the marital residence to one or the other of the parties as part of the “equitable distribution” plan which is adopted by the Court