The person who faces the end of a marriage will have a lot of questions. Where do I start? What will happen to the children? How do I get the money to survive while everything is being determined? When will this be over? Who can I trust to represent me? Although there are no simple answers when a marriage is being dissolved and assets distributed, having an understanding of the process can help tremendously.
Filing for divorce
Under Florida law, a person can file for divorce without a period of legal separation as the state does not recognize that legal construct. In order to obtain a divorce decree, at least one of the parties must be a legal resident of the State of Florida for six (6) months or longer before the filing of the petition. The request for the dissolution of a marriage must be filed with the circuit court in which one of the parties resides.
A final divorce decree will not be issued for at least twenty (20) days after the filing of the petition unless the party seeking a faster issuance can adequately demonstrate to the court that a delay would result in a significant injustice.
In order to obtain a divorce in Florida, the person filing must assert the following:
- “The marriage is irretrievably broken”;
- One of the parties in the marriage has been mentally incapacitated for at least three (3) years preceding the filing.
(Florida Statutes 61.0520)
After the petition has been filed, the responding, non-filing, party has to file an Answer within twenty days (this is the reason that a divorce decree will not be issued for at least 20 days). If there is no Answer filed, then the Petitioner may file a Motion for Default to set a final hearing. Once the hearing has been scheduled, the Petitioner must notify the other spouse, even if he or she has not made any effort to respond previously.
In an uncontested divorce, the non-filing spouse simply may submit an Answer to formally agree to the terms in the Petition. In this case, a hearing is still set and notice must still be given, but these are formalities.
Florida has a simplified divorce process
If both spouses wish to end the marriage without contesting any issues, there is a process by which this can be accomplished under Florida law. In order to qualify, the following conditions must be satisfied:
- The spouses both agree that the marriage is irretrievably broken and cannot be saved;
- The couple does not have any children who are minors or still claimed as dependent and the wife is not pregnant;
- The couple was able to agree to a plan for the division of assets and the payment of all outstanding debt;
- Neither of the parties to the divorce wants alimony;
- Each of the spouses is satisfied with the financial information that has been provided in the financial affidavits that were approved by the court and do not require any additional documents;
- Each of the spouses is willing to voluntarily forego the right to a court hearing and any appeals;
- Each of the spouses is willing to sign the agreed-upon petition in the clerk’s office. They may present themselves together or each appears and sign separately; and
- Each of the spouses agrees to appear before the court for a final hearing.
It is evident from the long list of conditions and the absolute agreement that must be shown by each of the parties to the divorce that this resolution is not practical for many people going through the dissolution of a marriage. However, if this is the case, it remains important to have the advice of an experienced divorce attorney to be certain that a person is not giving up important rights and interests. Once this decree has been entered, the person generally is out of options.
There is no legal provision for separation in Florida
Florida does not have a specific requirement for separation prior to the filing of a petition for dissolution of marriage. However, it does have provisions that address the support of a spouse and any children in the event that there is a separation without the filing of a petition. If two spouses are living separately, one may seek an adjudication from the court to determine support payments for both the spouse and any children, as well as a decision about the custody and residence of the children. This action will not preclude either party from filing a petition for dissolution of the marriage or any other relief.
The determination of what is best for any children may necessitate mediation
If there are children, then the court may require that the parents participate in mediation in order to reach a resolution about who is responsible for what if the parents cannot agree.
This mediation may result in a decision about support payments, the primary residence of the child(ren), custody, and visitation, as well as outlining parental responsibility. The mediator will prepare a consent order and submit it to the court if the parties are able to reach an agreement. Once entered, this order will be enforced in the same manner as any other court order. However, this only occurs if the parties can reach a consensus as the mediator does not have the authority to force a resolution. If the mediation fails, the court will make these decisions after hearing the evidence.
Any issues not amicably resolved between the spouses will be adjudicated by the judge after the final hearing. It is possible for the parties to agree to some of the conditions and submit a formal document to the court in order to minimize the issues to be determined by the court. These pre-determined matters may include the handling of any minor children.
Restoring maiden name
As part of the Petition for Dissolution of Marriage, a woman may seek to restore her maiden name. The judge can order this as part of the decree.
Although the dissolution of a marriage will involve emotional turmoil and distress, it is important to remember that maintaining a clear focus on the fair distribution of assets and the determination of parental responsibilities will help get you through the process.
Consult an Experienced Florida Divorce Attorney
If you are considering or going through a divorce in Florida, the experienced attorneys at Ayo and Iken PLC are here to offer experienced representation in a compassionate manner. Zealously representing the interests of our clients in Orlando, Tampa, Clearwater, Lakeland, Wesley, Chapel, New Port Richey, Miami, Florida, and many other cities, we are dedicated to providing the best possible legal services. We understand how difficult this process is for you and invite you to come to our office for a free consultation, where we will listen to you and present legal options. To schedule an appointment, please call us at 844-488-0549.