Frequently Asked Questions

Dissolution (as divorce is called in Florida), starts with the filing of a petition with the circuit court. This is a sworn document in which the petitioner (the person initiating the action) outlines for the court in some detail what he/she wants. Issues such as child support,time-sharing with minor children, spousal support and equitable distribution of marital property, may be included in such a Petition.

After the petition is filed the Respondent (the other spouse who answers the petition) has 20 days to file an Answer. If the Respondent files no answer or other document in response, a default judgment will be entered against him/her. If a default is entered, the Petitioner, in most cases, will obtain the divorce.

If the Respondent files an answer, he/she can also file a Counter Petition which outlines the issues that he/she wants the court to consider. These issues may be similar to the ones outlined by the Petitioner. Within 45 days of the service of the Petition, if any sort of financial relief was requested, each party must provide certain financial documents and complete a financial affidavit.

In most cases, if the parties cannot agree on all the issues, the case is sent to Mediation. In fact, pursuant to many local court rules, pre trial mediation is mandatory unless excepted by law. Cases where there is a history of domestic violence that would compromise the mediation process normally fall under this exception.

• If a full agreement is achieved in Mediation there is no need for a trial. The parties then attend a final judgment hearing where the agreement is ratified and becomes the order of the court.

If an agreement is not reached through Mediation the case normally proceeds to a trial where a judge listens to the issues, the parties are allowed to present evidence and at the conclusion of the proceeding a final order is issued by the Judge.

• Marital Agreements– In many cases the parties are able to come to an Agreement before the case is filed or shortly after the case is filed. This Agreement, called a Marital Settlement Agreement, is then filed with the court and incorporated into a final judgment.

The best interest of the child is the primary consideration for the court. The best interest of the child is determined by an evaluation of all factors affecting the welfare and interest of the child and the circumstances of the family.

• The specific factors that the court looks at are outlined in Florida Statute 61.13(3). Each parent is looked at equally and there is no presumption for or against the mother or father of the child.

The courts normally prefer that parental responsibility for a minor child be shared by both parents unless it finds that shared parental responsibility would be detrimental to the minor child.

• The court can take into consideration evidence of domestic violence, sexual violence, child abandonment and neglect or child abuse, regardless of the absence of a charge or conviction, There is normally a rebuttable presumption of detriment (a stronger showing of evidence more like an assumption taken to be true unless a party proves otherwise) when the parent has been convicted of domestic violence or when the parent is incarcerated for a substantial period of time or for certain serious crimes.

Unless it is not in the best interest of the child, both parents are entitled to spend time with their minor child. A time-sharing schedule specifies the time the minor child will spend with each parent ie. weekdays, weekends and holidays.

The length of the marriage is not the sole determining factor in an award of alimony. The court also looks at:

• Whether the requesting party has an actual need for the alimony, and
• Whether the other party has the ability to pay.

Once need and ability is determined the court then looks at a host of other factors to determine the type and amount of alimony. These factors include but are not limited to:

• The standard of living established during the marriage
• The duration of the marriage
• The age, physical and emotional condition of each party
• Financial resources and sources of income of each party
• A party’s earning capacity, employability, education or skills
• The contribution of each party to the marriage
• The responsibilities of each party to the minor children (if any)
• The tax consequences of any alimony award

These factors are enumerated in Florida Statute. The court can also look at any factor that is necessary to promote equity and justice between the parties.

A short term marriage is one lasting less than seven years. Though a short term marriage may not be suitable for permanent alimony (unless in exceptional circumstances),  there are other types of alimony such as durational alimony or bridge the gap alimony, which may be awarded for shorter periods of time.

Child Support:

Child support is modifiable under certain circumstances. If both parties can agree (the one receiving payment and the one making payments) then the process will be an easier one. The court will then need to approve the agreed upon modification in order for it to be enforceable.

If there is no agreement, the party requesting the modification must provide a legal basis for the modification.  The requesting party must be able to prove a legal basis for the modification such as:

• The modification is in the best interest of the child
• The child has reached the age of majority
• There has been a substantial change in circumstances of the parties, or
• That the child has married, has emancipated, joined the armed forces or has died.

Under certain circumstances, the court may also modify the amounts, terms or conditions of support for a dependent child whether the child is dependent in fact or is physically or mentally dependent.

• Any request for modification must be filed with the court and served on the opposing party.

Alimony:

The type of alimony and the specific set of circumstances will determine whether or not your current alimony award can be modified. Permanent Alimony, for example, may be modified by a showing of a substantial change in circumstances or upon a showing that the obligee (the person to whom the support is owed) is maintaining a supportive relationship.

The court will assess the existence of a supportive relationship by a careful review of certain factors which include but are not limited to:

• Whether the obligee and the other person have held themselves out to the public as husband and wife,
• The length of time they have resided together in a permanent dwelling, or
• Whether they have pooled financial assets, jointly purchased real or personal properties or engaged in other behavior that indicates a level of economic support.

Durational Alimony- Awarded to provide economic assistance for a specific period of time- may be modified in amount based on a substantial change in circumstances.  However, any modification in the length of a durational alimony award may not exceed the length of the marriage unless there are exceptional circumstances present.

Rehabilitative Alimony- Awarded to assist a party with achieving a level of self-support -may be modified based on a substantial change in circumstances or if there has been noncompliance with the rehabilitative plan or a completion of the rehabilitative plan.

Bridge-the-gap Alimony- Awarded to assist in the transition from being married to single, may not be modified.

In all cases, it will be necessary for us to conduct a careful analysis of the type of alimony initially awarded and the specific reasons supporting the need for a modification. As with child support, a request to modify alimony must be filed with the court and served on the other party.