Law Office of Allyson Hughes, P.A.

Divorce is an emotional, legal and financial process. Although traumatic, it is becoming increasingly popular in the United States. Although the divorce rate fluctuates, the overall trend has increased steadily over the past 300 years to the point that now, depending upon how the computation is done, roughly 50 percent of marriages end in divorce. It is estimated by one expert that between 40 and 60 percent of people now married, can expect to be divorced in the next decade. The divorce rate for second and third marriages is even higher. You are most definitely not alone.

If you are the one seeking the divorce, before instituting divorce proceedings, you should be sure that divorce is, in fact, what you want. Ambivalence about getting divorced is a very, very common part of the emotional process that the initiator goes through, leading up to divorce. Although "money isn’t everything," for most people, divorce is a financial disaster that results in a sharp reduction in one’s overall material wealth, and an increase in day-to-day living expenses. In simple financial terms, divorce usually means that the income for one household must now be used to pay for two households. In addition, the property accumulated during the marriage is divided, generally in half, and this contributes to most people’s experience of being financially limited by the divorce.

Divorce also often gives rise to a variety of emotional responses, including anger, depression, grief, sadness and, believe it or not, occasional euphoria and relief for one or both parties. If children are involved, divorce will also cause emotional strain for them.

If your spouse is irrevocably committed to getting divorced, the divorce is probably inevitable, since the validity of the grounds for divorce (i.e., your spouse’s reasons) and the issue of whether or not the divorce will happen are almost impossible to contest.

However, the news is not all bad. After a period of transition, most divorced people report that in spite of the temporary financial and emotional hardships, they are happier and more content as a result of the divorce and termination of an unsuccessful relationship.

Separation is an alternative for persons who are uncertain as to whether or not they want a divorce. Separation may be either on a formal or informal basis, and it may be for a definite or indefinite period of time. Separation requires no legal formality. Florida does not require a period of separation before filing for divorce. If the parties desire, however, separate maintenance proceedings can be instituted in the family court. This formal procedure is rarely implemented, except in certain situations in which divorce is an unacceptable alternative. Informal separation provides the parties with an opportunity to find out what living apart is like and whether or not the differences between them can be resolved. If there are serious questions about whether or not to get divorced and if both parties can be trusted to behave reasonably during the separation, we recommend informal separation as a way of resolving the uncertainty. We also recommend marital counseling, either together with separation or otherwise, as an alternative way of resolving an uncertain situation.

If divorce is finally decided upon by one party or the other, each spouse should consider the issues which need to be resolved. Some of these issues include:

/Time Sharing, formerly child custody

/Child support;

/Life insurance and health insurance for the protection of the children;

/Alimony, if any;

/Payment of any outstanding debts;

/The division of real property owned by the parties; and

/The division of personal property owned by the parties.

The consideration and discussion of these issues may be accomplished by the parties themselves or through counsel. In any event, it is advisable for each party to seek the advice of their own independent attorney before these issues are decided so that counsel may offer advice regarding the parties’ legal rights and explain alternatives available to them. Tax advice and planning may also be desirable in cases involving children, alimony and/or property.

Florida has a "no-fault" divorce law like many other states. The only grounds necessary for a divorce in Florida are:

1. The marriage is irretrievably broken; or

2. Mental incapacity of one of the parties.

No-fault divorce simply means that one spouse need not testify against the other spouse in order to establish legally sufficient grounds for divorce. Traditional notions of "fault" are generally not brought before the Court. Adultery, desertion, cruelty, infliction of "grievous mental suffering," drunkenness and failure to support are no longer specific grounds for divorce. These factors may, of course, be involved in the petitioner’s allegations that "the marriage is irretrievably broken," but they need not be brought to the attention of the Court.

Florida has a six-month residence requirement for divorce, which means that at least one spouse must have had his or her permanent residence in Florida, or lived in Florida, for six months prior to the filing for divorce.

Discovery

Discovery is the process of gathering information for proper representation and counseling of the divorcing spouse. Discovery is used to find out information on finances (wages, salary, value of real and personal property, value of pensions, etc.) and parenting (who has been the primary caretaker, which parent can offer the child(ren) the most stability, etc.) to name a few areas.

Different discovery techniques may be used such as Interrogatories (written questions), Depositions (questions asked to the witness/party under oath), and requests to produce (requires production and delivery of documents to be reviewed).

Discovery is standard fare with most divorce cases. Starting January 1, 1996 it is mandatory for spouses in a divorce case to provide substantial financial information to the other spouse. The office will provide you with a list of the documents which must be provided and/or prepared.

Persons who have decided to obtain a divorce have basically two procedural avenues available to them. These two options are: (1) an uncontested proceeding or (2) a contested proceeding. All other things being equal, an uncontested proceeding is by far the most desirable in terms of legal expenses and emotional wear and tear. One party should not, however, give up significant legal or financial rights simply to avoid a contested hearing.

An uncontested divorce means that prior to the divorce hearing, the parties have agreed upon all relevant matters, such as alimony, child support, child time sharing, payment of debts, and division of real and personal property. In most cases these matters are spelled out in a "Marital Settlement Agreement." This Agreement is simply a written document setting forth the parties’ understandings as to the resolution of these matters. This Agreement is generally introduced in Court at the divorce hearing, and incorporated into the final divorce decree. These Agreements are usually accepted by the Family Court Judge hearing the case. They are not, however, binding on the Judge, and the Judge may reject all or portions of the Agreement as being unfair to one party or the other.

There are increasingly popular alternative dispute resolution techniques available to assist the parties in resolving their differences so that their divorce can be uncontested. Those include mediation, either through a private mediator, or through a Court assigned mediator. Mediation involves a trained, neutral third party who helps the spouses negotiate an agreement.

A divorce hearing in an uncontested case is a relatively simple, brief procedure which generally takes place in a small, private courtroom in the family Court facilities (in the county where the case is filed).

Many counties, including Pasco and Hillsborough require a temporary relief mediation prior to scheduling a temporary relief hearing. Contested divorces frequently begin with a hearing on matters that must be immediately settled. Rather than wait until the final hearing, which may be months down the road, the parties have a right to seek temporary relief. A temporary relief procedure is not necessarily restricted to contested divorces. Sometimes a divorce is initiated with a hearing for temporary relief and subsequently becomes uncontested when the parties reach agreement on contested matters. A temporary relief hearing may cover:

1. Defining a temporary time sharing plan for the children;

2. Paying support to the other party or for the children;

3. Being restricted from harassing or molesting the other person;

4. Being restrained from disposing of the assets of the family; or

5. Being restrained from removing the minor child(ren) from the State;

6. Paying temporary attorneys fees.

Temporary relief mediation for the temporary relief issues are most often held within six (6) weeks of the commencement of the divorce. If mediation is unsuccessful, a hearing is scheduled in 8 to 10 weeks. The hearings themselves are very brief and only the simplest, most basic issues get resolved. More complex issues are reserved for the final hearing. Because of the way the Court system currently schedules temporary relief hearings, they can involve considerable delay and can get expensive in terms of legal fees.

A contested divorce is ultimately resolved by a trial, although many cases start out contested and end up settling prior to trial as a result of negotiations and/or pretrial conferences. Such a trial usually involves one or more of the following substantive issues that are resolved by the Judge, who has wide discretion in rendering his or her decision:

Alimony is the support paid by one party to the other. Either husband or wife can be compelled to pay the other party certain sums for that person’s support.

There are five main types of alimony: permanent periodic, rehabilitative, bridge the gap, lump sum and temporary.

Permanent periodic alimony generally has these requirements: a long term marriage, a disparity in the income between the spouses, and the recipient’s income from all income sources fails to meet his or her needs. Monthly payments continue until either spouse dies or the recipient spouse remarries or cohabits with another in a married like relationship.

Rehabilitative alimony is ordered under the theory that it will allow the person receiving such sums an opportunity to "rehabilitate" himself or herself by providing special training which will make that person employable. A rehabilitative plan, (for example, spelling out the costs of schooling, length of schooling, prospects of employability, et cetera) is a necessity for rehabilitative alimony.

Bridge-the-gap alimony is used to fulfill a specific and limited purpose of meeting short term financial difficulties of going form married life to single life. It is shorter in duration than rehabilitative alimony and is more likely utilized in short term marriages.

Lump sum alimony is rarely used by the courts. If awarded by the courts, there must also be unusual circumstances which would require a non-modifiable award of support. Lump sum alimony is a payment of assets to the recipient above and beyond an equitable distribution of assets and liabilities, often when the payor spouse is unlikely to pay for spousal support.

Temporary alimony is the amount paid temporarily either by agreement or court order until the divorce is finalized. The amount is set based on the parties current standard of living and current ability to pay.

The general rules concerning division of property within the marital estate can be simply stated.

First, being the "good guy," the "hardest worker" or the "highest earner" does not entitle you to more property or favored treatment.

Second, as a very rough rule of thumb within this jurisdiction, each person is normally entitled to an equal share of the property accumulated during the marriage at the end of the marriage, regardless of which spouse made the most money during the course of the marriage. Exceptions to this rule are:

Another aspect of property distribution is the disposition of the family residence, if the parties own one. Frequently, the Court orders the immediate sale of the marital residence, and division of the proceeds is awarded to the parties in equal shares. If financially feasible, the Court may permit the spouse being awarded majority time sharing of the children to retain the marital residence in order to insure stability until the youngest child turns eighteen (18).

One of the thorniest property division issues confronting couples is the fact that retirement benefits are usually subject to division. The Courts in Florida view retirement benefits as similar to a savings account. Although the person accumulating these benefits may not be permitted to draw on their retirement fund for some time, the Court nonetheless will award a fractional share of those retirement benefits to the other party. When the retirement benefits are eventually paid, the person who has been awarded a fractional share is entitled to participate in his or her part of the payments. The fractional share is generally fifty percent (50%) of the amount accumulated during the marriage.

Another method is to have the value of the retirement benefit calculated at its present value; this asset can then be offset by other assets received by the other spouse.

Theoretically, each party is required to assume an equal portion of the debts incurred during the marriage, just as each party is entitled to receive an equal portion of the property accumulated during the marriage. However, as a practical matter, the person who is earning the greater income at the time of the divorce is frequently saddled with those liabilities under the theory that this person has a greater capacity to reduce the liabilities. Another generally accepted "rule" is that the person who is awarded an asset receives the debt that goes with it.

Liabilities are of secondary importance to the Court, however, if they would reduce the economic power of the party who is also required to satisfy the support needs of the spouse and children. The Court will assign a lower priority to the rights of the third-party creditors, and give priority to the immediate needs of the family.

The allocation of marital debts according to financial "horsepower" also holds true in the matter of attorneys’ fees. In a contested divorce, one party can sometimes be held responsible for the attorneys’ fees of both the petitioner and the respondent, if that person’s income is substantially greater than the other person’s income, and there is no lump sum amount available to pay attorneys’ fees.

After several years of hard work, the Family Law Section of the Florida Bar was successful in the passage of SB2532, commonly called the "Parenting Bill." Effective October 1, 2008, the intent of the Parenting Bill, is to promote children’s rights and reduce conflict by neutralizing negative language. This statute removed the antiquated labels of "primary" and "secondary" residential parent over which parties have fought fierce battles. Further it replaced the somewhat offensive term "visitation" with "parenting time" and "time-sharing" to more accurately describe what real life parents do with their children. Parents don’t visit with their children– they parent them.

The statutory factors also received a much needed overhaul: the court can consider such things as:

The goal is to provide the courts with greater guidance and flexibility in dealing with the complex issue of with whom the children will be living, while reducing conflict for the family, particularly the children.

Often a time sharing dispute involves an evaluation by a psychologist in private practice or a social investigation to provide guidance to the court as to what the best time sharing schedule would be.

　The Courts now enters a Parenting Plan which is a detailed document that spells out who goes where, what address is used for school registration, what holidays are spent with whom, are decisions made by one parent or jointly, et cetera.

Child support is normally paid to the person awarded majority time sharing of the children. Unlike alimony, child support is not taxable to the person receiving it, and it is not deductible to the person paying it. However, the person paying the child support may negotiate for, or be awarded, the tax exemptions and child tax credits for the children for federal income tax purposes. The amount of child support ordered is generally established by applying the "Child Support Guidelines" which were established by the Florida Legislature. The amount of child support paid depends largely on the respective income of each spouse. Additionally, day care, health insurance premiums, and medical care expenses may also be added to the child support obligation. Child support may be automatically deducted from any employed person’s paychecks, whether or not the payor has ever defaulted in the past. Lastly, child support can be ordered retroactive up to two years, from the date the parties separated,.

In conclusion, we hope this memorandum has provided some basic background information as to the general legal aspects of a divorce. Please do not hesitate to discuss all aspects of your situation with us so that we may offer more individual advice.

We look forward to the opportunity to serve you.