Divorce: The Process

Divorce in Florida is referred to as dissolution of marriage.

The results of the divorce process is the allocation of parental responsibility, support, assets and liabilities, and awarding of attorneys fees and costs.

A judgment which divorces a married couple can be entered based upon an agreement between the parties or ordered by a judge after a trial. If the parties cannot amicably agree on these issues, a trial judge will enter a Final Judgment or order deciding how the parties are to parent their children, who pays child support and alimony, how to distribute the parties’ assets and liabilities/debts, and who should pay the lawyers.

Most divorce cases are resolved without a trial and with the help of a certified family law mediator. Having the right lawyer on your side will help you understand the process and your rights so that you can make the best decision for you and your family.

Divorce Proceedings

The basic steps in the divorce process are:

1.         The Petition.

A dissolution of marriage (divorce) action begins with the filing of a petition. This document notifies the court and your spouse, that you want the court to end your marriage. It also sets forth what you are asking for, such as child custody, child visitation, child support, spousal support, property division, possession of the marital residence, attorney’s fees and costs. Service of the petition on your spouse is most often by the sheriff’s office..

2.         The Response.

After a Petition is served, the other spouse must file their response. In Florida, if you are served with a Petition, you must file your opposing papers within 20 days of service or you may lose your right to present your side of the case to the court, and the court might give your spouse everything asked for in the Petition.

3.         Temporary Orders.

Temporary orders set the rules while the case is pending. Either party can ask the court to make temporary orders stating, for example, who stays in the house, who is responsible for the children, who pays which bills and restraining inappropriate conduct. It is in both spouses’ best interest to agree upon reasonable arrangements while the case is pending rather than incur additional legal fees and add to bad feelings by having to go to court for temporary orders. In some counties in Florida, temporary orders automatically go into effect when a divorce proceeding is filed. Generally these automatic orders are entered to prevent parties from depleting the marital estate.

4.         Discovery.

Each spouse is entitled to receive information from the other party about the case. The legal procedure for obtaining that information is called “discovery.” Discovery may be a simple, speedy process or one consuming a great deal of time, energy and money. In Florida, parties are required to complete and file financial affidavits. In addition, there are several other discovery procedures, sometimes referred to as discovery devices. A list of questions known as interrogatories, requiring a formal written answer to each question, may be sent. By a “request for production” one spouse may obtain documents from the other. In a “deposition,” or interview before trial, the spouses and other persons, including experts, may be required to answer questions under oath in a lawyer’s office while a court reporter takes down what is said and then prepares a transcript. If your deposition is to be taken, there will be advanced notice and your lawyer will discuss the procedure with you.

Discovery may be conducted informally. It is often more efficient and less expensive for lawyers informally to exchange documents and information than to send and respond to interrogatories and requests for production and to take depositions.

5.         Negotiated Settlement and Mediation.

Most lawyers and judges agree that it is better to resolve a case by agreement than to have a trial in which a judge decides the outcome. Also, people who have been through a divorce often value the privacy and control that a negotiated agreement gives them. People are more likely to obey a judgment which is based on their agreement than one which has been imposed on them by a judge. Voluntary compliance is important because enforcement procedures available from the court are usually expensive and sometimes inadequate. For these reasons, following discovery-and at any time, even during trial-the spouses and their lawyers should try to negotiate a settlement.

Because of the limited number of judges available to hear trials, most courts require the parties and their lawyers to attend mediation before scheduling the case for trial. Mediation is where a neutral person, who is certified to conduct mediation, tries to bring about a settlement. If mediation is not successful, the parties attend a status conference before a judge to schedule the case for trial.

Although your lawyer may recommend that you accept or reject a particular settlement proposal, the decision to settle or not to settle is yours. Your lawyer cannot, and should not, make that decision for you.

If a case is settled by agreement, in most courts the parties must attend an uncontested hearing. There are legal procedures that have to be followed to turn your agreement into a judgment and end your marriage. Your lawyer will see to completing this part of the process.

6.         Trial.

If you and your spouse cannot settle your case, the case will proceed to trial. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witnesses, and documents called exhibits.

Trial is likely to be expensive and unpleasant. However, it can be the only alternative to never-ending unreasonable settlement demands. Still, trials are risky. No lawyer can predict the outcome of a trial because every case is different.  A judge, a stranger-possibly with a viewpoint, temperament and values very different from yours-tells you and your spouse how to reorder your lives, divides your incomes and assets, and dictates when each of you may see your children.

Sometimes, a trial does not end the case. Each party may, within a limited period of time, appeal to a higher court. An appeal adds more time and expense to the divorce process and is hard to win.

7.         Alternative Dispute Resolution.

There are other methods of resolving your case. These methods are called alternative dispute resolution and include mediation and collaborative family law.

Mediation

In Florida mediation is generally required if parties have not reached an agreement in the early stages of the case. Here the parties meet with an impartial certified mediator who has special training and qualifications. The purpose of mediation is to help the parties reach an agreement. It is important to have attorney representation during the mediation process because the mediator does not give legal advice. The parties should consult with their own lawyers about mediation and the legal ramifications of any proposed agreement.

Collaborative Family Law

Prior to filing the petition for divorce the parties may agree to submit their case to collaborative resolution, in an effort to resolve the case before the action is filed. The collaborative team is made up of both parties, with each having a collaborative law attorney, and other trained professionals where relevant.  Generally the trained professionals are a financial specialist, a divorce coach and a child specialist.  The goal of the collaborative process is to solve problems jointly and prevent a court battle by employing an honest exchange of information to accomplish a workable marital settlement agreement.

8.         Your Conduct

Here are some good rules to follow while your divorce is pending:

  • Do talk to your lawyer before agreeing to a settlement.
  • Do keep your perspective and try to be rational.
  • Don’t physically or verbally abuse your spouse or children.
  • Don’t say anything to others that you wouldn’t want your spouse or the judge to hear.
  • Don’t go on a spending spree. Excessive spending on yourself or others may harm your case.
  • Don’t throw away financial records or other possible evidence.
  • Don’t try to hide evidence or assets.

Divorce is stressful, but not the end of the world. How you or your spouse feel during your divorce can change dramatically as the case progresses. It’s normal to go through stages of denial, anger, guilt, depression and acceptance on the way to a resolution.

What to expect

  1. How is a divorce started?  The divorce process starts when one spouse files a Petition (or request) for dissolution of marriage or domestic partnership.  Other than issues of jurisdiction (the appropriate court for filing), the petitioning spouse (“Petitioner”) does not gain a legal advantage simply by being the first to file.  Instead, the Petitioner must serve the other spouse with the Petition; and the receiving spouse (“Respondent”) has thirty days to file a Response.
  1. What happens next?  A divorce is not automatically finished by the court.  Instead, Florida law requires both parties to inform each other about all the assets and debts that they are aware of.  Each spouse or domestic partner completes this requirement by completing and exchanging a set of documents disclosing all of their income, separate property (property owned prior to the marriage or domestic partnership) and community property (property acquired after the date of marriage or domestic partnership registration).  The purpose of this law is to help make sure all community property and debts are divided and distributed during the divorce process.  Disclosure is very important because a one party’s failure to fully disclose his or her income, assets or debts can be considered by the court at subsequent hearings.
  1. What if I need support?  Throughout the divorce process, the court permits parties to request temporary orders for child support, spousal support and the payment of debts.  The request to the court is made through an “Order to Show Cause,” which explains the specific requests of the filing party.  As with the Petition (or request) for dissolution of marriage, the responding party is served with a copy of the Order to Show Cause and given an opportunity to respond.
  1. My spouse and I cannot agree on how to share our children, what do I do?  If you and your spouse cannot agree on a parenting plan for your children, you should file an Order to Show Cause requesting the court to determine an appropriate parenting plan.  The court will order both parents to attend a court-sponsored mediation process through Family Court Services (FCS).  The County of Orlando is called a “recommending county,” which means that, to the extent parents are unable to agree on certain aspects of a parenting plan, the FCS mediator provides a report to the report which contains any agreements, as well as the mediator’s recommended solutions for areas of disagreement.  This report is reviewed by the judge at a hearing after the FCS mediation date.  The parties have the opportunity to agree or disagree with the FCS mediator’s recommendations.  The judge then makes orders to establish a parenting plan based upon the parties mediated agreements, the parties legal and factual arguments at the hearing and court’s opinion about the FCS mediator’s recommendations.
  1. How is a Divorce Finalized?  Throughout the dissolution process, both parties have the opportunity to work out agreements pertaining to divorce issues including spousal support, child custody, child support, and the division of the community assets and debts.  To the extent that the parties cannot agree about these issues, a trial will be conducted, at which time the judge will listen to the evidence and arguments of both parties and then make the required orders.  The parties’ agreements (if any) and the trial court’s orders, are recorded in a document called a Judgment.  The court then processes the Judgment and determines the date on which the marital or domestic partnership status ends.

It is extremely important that a Judgment’s contents to be well thought out, with specific, clear and complete language.  Often, parties without attorneys do their best to phrase the Judgment, but only later when problems arise, do they realize that the language in the Judgment is ambiguous, inconsistent or vague.  Such Judgments are sometimes unenforceable because a judge can only interpret the Judgment from the words on the document (the “Four Corners Rule”).  For instance, judges often cannot consider evidence of the parties’ conversations that took place when the Judgment was written.

CPLS has experienced and qualified attorneys who has drafted hundreds of Judgments containing the details necessary to clearly set forth the intended division of assets and debts, the resolution of complex property issues, spousal and child support, and child custody issues.

Divorce and Military Service Members

When one or both spouses is an active member of the military, there are additional unique issues to be addressed. The Uniform Services Former Spouses’ Protection Act (UFSPA) applies to all active duty, reserve/guard, retired military, the U.S. Coast Guard members of the U.S. Public Health Service (USPHS) and the National Oceanographic and Atmospheric Administration (NOAA).  Enacted in 1982, the purpose of the UFSPA is to address the needs of a spouse who supported a military member’s needs during periods when the marriage overlapped military service.  However, because the UFSPA is subject to interpretations of state courts, which vary from state to state, it is important for members of the military to obtain an attorney with knowledge of the UFSPA as it is used in the State of Florida.

CPLS attorneys have a broad and indispensable knowledge of the UFSPA, enabling her to secure entitlements legally belonging to her military clients and their spouses.  In addition, she has the necessary experience representing military service members and can help save, time, money and aggravation by guiding clients through the nuances inherent in UFSPA and other military policies.

Common Mistakes

Because divorce can be a difficult and uncomfortable passage, many people make mistakes which affect their rights.  Avoiding such mistakes is imperative to a successful outcome.  Two of the most common mistakes people make are:

1.  Choosing What Facts NOT To Tell Your Attorney.  Clients often hesitate to tell their attorney certain facts the client believes will be harmful to his or her case.  Sometimes, these facts are not as harmful to the client as the client had feared; other times, the facts are not legally relevant and will not be considered by the court.  It is essential that your attorney have all the available information available so she can more effectively represent you.  The bottom line is that CPLS maintains a strict confidentiality policy based on attorney-client privilege, allowing you to talk freely so that she can completely assess, prepare your case for hearing, settlement or trial, minimizing delicate areas and emphasizing the strengths of your case.

2.  Waiting Until The Last Minute To Consult With An Attorney.  Scheduling a consultation with an attorney as soon as you think you MIGHT need an attorney is critical to the successful resolution of your legal matter.  While you have no obligation to hire the attorney, CPLS attorneys will suggest alternatives to litigation to help you resolve your legal disputes in a cost-effective manner.  For less complicated and uncontested family law matters, these alternatives include mediation or self-help law books.

What CPLS Can Do For You

Most clients express a concern about the uncertainty that divorce brings for themselves and for their children. CPLS attorneys understand that you may be anxious about the new road ahead and it is with this in mind that she works diligently to make you more comfortable and your divorce as easy as possible.  You will find that CPLS attorneys are accessible.  They are dedicated to keeping you informed as to how your divorce is proceeding with a focus on helping you complete your divorce in a cost- and time-efficient manner.

To schedule your initial consultation, contact CPLS at 407-647-7887.  Appointments may be conducted in person in Orlando; or, by telephone for clients outside of Orlando, Florida.