Overview of Florida Divorce Law
Going through divorce is not easy and this is typically a time filled with immense mental anguish, stress and anxiety. However, it may be possible to reduce the level of stress by keeping yourself informed on what to expect in terms of what is involved and being prepared beforehand.
In Florida, ‘fault’ is no longer an issue as grounds for divorce. To file for divorce or ‘dissolution of marriage’ as it is called in Florida, you must establish that your marriage is ‘irretrievably broken’. All that really means is that either spouse feels the marriage is at an end and cannot be fixed. One of the critical aspects about a Florida divorce is that irrespective of which spouse initiated the proceedings, both are treated as equals with respect to their rights. The court’s objective is to ensure that both parties are treated with fairness and justice. References to gender have been eliminated from the Florida divorce statutes. Unlike conditions in the past, men and women are equal and have the same set of rights.
Basic requirements for filing for a Florida divorce
To file for dissolution of marriage in Florida, you must be able to establish a few facts:
- You must prove the existence of marriage between you and your spouse
- At least one of you should have been a resident of Florida for six months prior to the divorce filing (documentary proof such as driver’s license may be required or you can prove residence by means of calling a witness, or providing an affidavit)
- You should establish that the matrimonial relationship is irretrievably broken, i.e.: nothing can be done by either spouse or the court to restore the relationship
Simplified dissolution of marriage
Under Florida law, it is possible for either spouse to file for a simplified dissolution of marriage or a regular dissolution of marriage. Most divorce cases do not fall under the “simplified” rules. Only those couples matching the following criteria can file for the simplified divorce process:
- The wife is not pregnant when the divorce proceedings are initiated
- The couple do not have any minor children from their marriage
- Both spouses can and will attend the final hearings pertaining to the dissolution of the marriage
- Both complete a financial affidavit and property settlement agreement
The most common type of divorce is a contested dissolution of marriage. In a contested divorce, either spouse can question and cross examine the other duringthe proceedings. In addition, each of them can obtain documents to establish the other’s financial status, liabilities, assets, income etc prior to the final settlement. In Simplified divorce proceedings, financial information may be requested by either but supplying the same is not mandatory.
The first step – petitioning for divorce
Whether you are filing for a regular divorce or a simplified one, you are called the petitioner if you are one initiating the process. Your spouse is known as the respondent. After establishing the three basic requirements for a Florida divorce, mentioned above, you (the petitioner) initiate the divorce by filing papers with the clerk of court. The papers are personally served to the respondent who then has to file a response in writing with the clerk. The actual service must be performed by a certified process server.
What does the petition for divorce contain?
This is an important document that needs to be drafted with considerable thought and care. In a contested divorce, having an experienced attorney by your side while drafting the petition is a good idea. The petition lists out some basic claims and also details the custodial arrangement over children that the petitioner seeks once the divorce is finalized. It also outlines the financial claims made by the petitioner.
One important aspect to understand irrespective of whether you are the petitioner or respondent is that the claims and demands outlined in the petition are not automatically granted. They will be evaluated, discussed, negotiated, argued, and tweaked through the divorce process until the court is satisfied that both parties have been treated fairly and justly. Your spouse may draft a highly biased and skewed petition but there is little likelihood that he or she will get everything they ask for, especially if the claims are unfair or unsupportable.
Responding when papers are served
When one spouse has petitioned for divorce, the papers are ‘served’ on the other, i.e.: hand delivered by a certified process server or a sheriff. There are several legal requirements associated with correct and proper serving of papers and this may impact the outcome of the divorce proceedings so due care needs to be taken in this respect.
The person receiving the papers, the respondent, should file a reply within 20 days of receipt of the petition. If you have been served with these papers, take them to your attorney as soon as you receive them so that he or she can thoroughly understand its claims and formulate a suitable response. In the response, the respondent should address the points raised in the petition. He or she can also include a counter petition and raise other issues for the court to take into consideration when making a decision about the divorce.
Once the petition and response have been filed, each party to the divorce needs to provide some financial documents as well as a financial affidavit. The purpose of this step is to gain a clear understanding of each spouse’s financial condition. Under Florida divorce law, the documents and the affidavit have to be made available by either spouse to the other within 45 days after the petition has been served. In the event of failure to provide this information, the court may dismiss the case or dismiss requests made by the spouse who has not given these documents and/or the financial affidavit.
The process of learning about the financial condition of both spouses is called discovery. This is usually followed by negotiation which allows both parties to present their claims and come to an agreement on who gets what rights and responsibilities post- divorce. Some attorneys are good negotiators. Others seem to prefer litigation. A good attorney always takes the best course for your particular situation.
If financial support is being sought by one party as part of the divorce proceedings, then it is mandatory for both to file the financial affidavit. However other requirements may change according to the exact nature of the case. Couples who have reached an agreement on property, child custody, parental responsibilities and other post- divorce issues typically have a written agreement drawn up and signed by both parties. This agreement is presented in court at the beginning of the divorce proceedings. In such cases, the divorce process is relatively simple and is completed quickly.
Some couples also agree on a settlement right before the final hearing and bring this to the attention of the court at that stage. The court generally accepts the settlement as-is and incorporates it into its final judgment. When both spouses cannot reach an agreement and the divorce process is becoming unduly complicated and time consuming, mediation often helps.
Mediation simplifies the divorce process
The court will not give a final judgment if the spouses have not even made an attempt at mediation. Mediation saves you a lot of time, money and anxiety since you can settle your differences and arrive at a mutually acceptable set of post divorce terms without involving the legal system.
The mediator is a person certified for this task by the Florida Supreme Court. The mediator is a completely objective and unprejudiced party with respect to both spouses. The mediator’s job is to help both spouses see the facts clearly and come to a practical and mutually beneficial decision. However, neither party can be forced by the mediator to decide for or against specific terms of the settlement or the settlement itself. If the parties come to an agreement it is drawn up into a formal document and signed by both spouses. This settlement agreement is later produced in court where the final judgment is announced. At this hearing the petitioner is required to be present but the respondent may or may not attend the hearing.
Mediators do not attempt to restore marital relations or to convince either party to give up any of their rights. The sole purpose of the mediator is to ensure that both spouses are encouraged to reach a mutually agreeable settlement without having to go through a long drawn legal process, thus simplifying the divorce process significantly.
Another advantage of reaching a settlement through mediation is that both parties have greater flexibility in determining the terms of the divorce. If they leave it to the court, they have little control over how the final settlement turns out. Looking at mediation with a positive mindset is in the best interests of both parties since this gives them a final chance to come to a mutually agreeable settlement.
When mediation fails
Mediation may either completely fail or produce a partial agreement. In either case, the final settlement must be determined by another negotiation, or settled by the judge. In such situations a second mediation may be ordered or the couple may meet in court to thresh out their differences and arrive at a final settlement. In case the two parties have reached agreement on certain aspects, those limited aspects can be finalized in a partial agreement.
A short hearing called the case management hearing may be held with both spouses in attendance along with their legal counsel. A timeline is set at this time for the final hearing, taking into consideration the issues that have yet to be resolved. The court updates records of which issues have been agreed upon and which are yet to be settled so that it is clear which issues may be discussed at the final hearing. This facilitates an orderly and organized divorce process and also allows the court to determine the best way to bring the case to a close.
The final hearing (or trial)
In a non- contested divorce, the final hearing may be completed with ease and in a very short time. Since both parties have already agreed to terms and there is no negotiation or argument about who does what or gets what, the final hearing may be as simple as a summation of all the facts of the case with the conclusion of the proceedings being announced in court. However, when the mediation process has failed, the final hearing (trial) becomes a long drawn, anxiety filled and contentious process.
When both parties have failed to reach agreement on several issues, they must both attempt to make the court look at the case from their perspective and decide in a manner that is favorable to them. Several issues may be unsettled by the time the parties come to the final hearing. Most commonly, the contentious issues revolve around child custody, support and distribution of assets and liabilities.
At the final hearing, both parties may bring witnesses and produce evidence to support their positions. However, this is allowed in court only if the other party has been provided a list of those witnesses, and a copy of all proposed evidence. The proceedings may start with the petitioner presenting his or her case with the aid of evidence or witnesses. The other party can cross examine witnesses. When the respondent presents his or her case, the petitioner has the same right of cross examination.
Once both parties have completed their presentations, the closing statements are given. All the facts, witness accounts, evidence and statements given during the proceedings are considered by the judge. It is important to note that the judge may also take into account the demeanor and behavior of both parties or any thing else that he or she believes may impact the divorce or its inherent issues.
Finally, the judge comes to a conclusion regarding all the aspects that remain ‘open’ in the case. This is the final decision in this matter and the details of the conclusion are put in writing in a ‘proposed order’. The proposed order details the fact that both parties are henceforth considered single in the eyes of the law. It also states that both parties will carry out and adhere to the provisions of any agreements made during the divorce proceedings as well as those decided upon in the final hearing.
This order is prepared by one party and mailed to the other for agreement and approval. The opposing party reads through the order and approves it if it matches the judge’s final decision. Once approved and signed by the opposing party the order is mailed back to the court where it is entered in the court records. Conformed copies are mailed to both parties by the judicial assistant in court ensuring that both of them have their legally binding orders for the dissolution of their marriage.