Frequently Asked Questions
- What are the requirements to get a divorce in Florida?
- Does Florida offer no-fault divorce?
- What is an uncontested divorce?
- What is a contested divorce?
- What is the first step toward getting divorced?
- Can my spouse and I share one lawyer?
- Can I ask the court to order my spouse to pay the cost of getting divorced?
- Will my divorce be decided by a jury?
- Can I legally use my maiden name?
- I believe my spouse is hiding income. How can I prove it?
- What is divorce mediation?
- Can I change my support or visitation order after the divorce?
FAQ: The Division of Marital Assets and Liabilities
- What is marital property?
- How is property divided in a Florida divorce?
- How are liabilities (debts) divided?
- How will we divide pensions and retirement accounts?
- What is non-marital property?
FAQ: Minor Child Matters
- How do I prove that the father of my child is who I say he is?
- Do both parents have the right to support or visitation (timesharing) with the child(ren) even when they were never married?
- How long do child support payments last?
- How is child support calculated in Florida?
- Will courts ever deviate from the child support guidelines?
- What can I do if the other parent is not paying the child support as ordered by the Court?
- Which parent will make major decisions about the child's life?
- How does the court determine visitation and shared parenting time?
- Will we be given joint custody?
- Can I request that my child's visitation with the other parent be supervised?
- Is one parent ever given sole physical custody of a child?
- What happens to our custody order if one of us moves far away?
- What is alimony?
- How long will alimony payments last?
- What kinds of alimony are there?
- Will the court consider my spouse's adultery when deciding alimony payments or other divorce issues?
What are the requirements to get a divorce in Florida?
Pursuant to the requirements of Florida Statute, §61.021, at least one party must have lived in Florida for at least six months, therefore obtaining Florida residency, prior to the date of filing of the Petition for Dissolution of Marriage.
Does Florida offer no-fault divorce?
Yes, Florida is a no-fault state, which means one party is only required to state that the marriage is "irretrievably broken" (unable to mend the relationship through marriage counseling and/or any other means). You may also divorce if one party has had a mental incapacity for longer than three years, pursuant to Florida Statute, §61.052.
What is an uncontested divorce?
An uncontested divorce occurs when both parties agree, from the outset, on all issues. If the parties are unable to agree on even one component issue of their divorce, the matter is a contested matter. An uncontested divorce can be completed in as little as 1-2 weeks. If the parties agree on all issues, the paperwork is prepared for filing, which includes a "Consent Final Judgment of Dissolution of Marriage." If the matter is uncontested, only one of the parties is required to attend the final hearing and the other can waive their appearance at the final hearing.
What is a contested divorce?
A contested divorce is a proceeding in which the parties disagree on one or more issues regarding their marriage. A contested divorce will take substantially longer to complete than an uncontested divorce for obvious reasons. A contested divorce typically takes between 4 and 12 months to complete depending upon the complexity of the issues involved.
What is the first step toward getting divorced?
The first step in a Florida divorce is to file what is called a Petition for Dissolution of Marriage. In the petition, the party filing the petition states claims for whatever relief he/she may be seeking (i.e. child support, timesharing with minor children, alimony, division of property and debts, and other issues to be decided by the Court.
Can my spouse and I share one lawyer?
No. It is not ethical for an attorney to represent two parties to a divorce proceeding. An attorney is only allowed to give legal advice to one party to a divorce. However, an attorney is permitted to prepare all of the proposed documentation to complete the divorce process if the parties are able to agree on all issues. In this regard, it is not necessary for both parties to hire attorneys to complete the divorce process. However, it is always advisable for each party to obtain the advice of a Florida Family Law Attorney before completing any divorce process.
Can I ask the court to order my spouse to pay the cost of getting divorced?
Yes. Depending upon the financial circumstances of each party, the court may order one party to pay the attorney's fees and costs of the other. This decision lies within the discretion of the Judge, and primarily is based upon the financial need of one party for such a contribution and the ability to pay of the other party.
Will my divorce be decided by a jury?
No. There are no jury trials in Florida divorce cases. The vital decisions about alimony, child support, custody, visitation and more are left to the one man or woman presiding over your case as judge.
Can I legally use my maiden name?
Yes. If a divorcing woman wants to resume using her maiden name , she may include a request to change her name in the Petition for Dissolution of Marriage or Counterpetition For Dissolution of Marriage.
I believe my spouse is hiding income. How can I prove it?
There are several ways our Fort Lauderdale divorce attorneys can attempt to prove that a spouse is hiding income. This includes giving testimony about what your spouse has said about income; proving that his or her lifestyle is too expensive for the income reported to the court; and investigating bank accounts, tax forms and other financial documents. The attorneys at J. Scott Gunn, P.A. are skilled in efforts to uncover hidden income and assets.
What is divorce mediation?
Mediation is required by Florida law in all divorce cases. Mediators use their skills to help parties get to agreement on all issues regarding your divorce, including but not limited to timesharing with minor children, division of assets and liabilities, alimony, child support, and more. If the parties cannot agree at mediation, the mediator may also advise them about the possible outcomes, should they go to trial. Mediation is a confidential process. If you are unable to resolve your case through mediation, a mediator is only permitted to advise the Court that an "impasse" has been reached (i.e. that the parties were unable to come to an agreement).
Can I change my support or visitation order after the divorce?
Yes, but the party who wants a change must show a "substantial change in circumstances" in order to convince the court to modify a final judgment. To discuss the options that are best for your situation, please do not hesitate to call our Broward County divorce lawyers.
What is marital property?
Most property acquired during the marriage is considered marital property. Property acquired before the marriage is generally non-marital property that will not be divided in the divorce. However, if one party put non-marital property or money in both parties' names during the marriage, the courts will typically consider this act a gift to the other spouse and consider the assets marital property, absent some showing that no gift was intended. There are, of course, exceptions to the general rule that all property acquired during the marriage is marital property. Specifically, inheritance, personal injury settlement/judgment proceeds, and gifts to one party from outside sources, are typically considered nonmarital assets.
How is property divided in a Florida divorce?
In most circumstances, marital property is divided equitably between both parties.
How are liabilities (debts) divided?
Just like with dividing assets, the Court will typically divide all marital debts equally. However, the judge will take into consideration each party's ability to pay, as well as any award of spousal support in determining an equitable division of marital debts.
How will we divide pensions and retirement accounts?
Any asset, including pensions and retirement accounts, acquired during the marriage, is considered a marital asset and will be distributed equitably. This is so regardless of the name in which the account has been accrued. If it was earned by a spouse during the term of the marriage, the Court will typically consider it a marital asset.
What is non-marital property?
If one party possessed property and/or bank accounts prior to the marriage and those assets remained separate (in one name) throughout the marriage, then it is likely that the assets will not be considered marital property and will not be divided during a divorce. An experienced Florida divorce attorney can help make sure your separate, non-marital property is not incorrectly included in the divorce.
How do I prove that the father of my child is who I say he is?
In order to establish or disprove paternity (legal fatherhood), the alleged father, mother and child must all take a genetic paternity test. If paternity is confirmed, the father will be permitted to seek additional rights (timesharing), and will incur additional responsibilities (child support).
Do both parents have the right to support or visitation (timesharing) with the child(ren) even when they were never married?
Yes, as long as the father has established paternity. Men can establish paternity if they acknowledged paternity by signing a legal document at the birth or later; or if they took a paternity test.
How long do child support payments last?
In most cases, child support is to be paid until the child reaches eighteen (18) years of age or graduates from high school, whichever occurs later. However, with the exception of very limited circumstances, a child support obligation will never continue past the minor child(ren) turning the age of nineteen (19) years.
How is child support calculated in Florida?
The state's Child Support Guidelines, found under Florida Statute, § 61.30, take into account factors such as the combined net income of both parties, the number of children, daycare expense, aftercare expense, health insurance expense, timesharing between the parties and more. Please do not hesitate to speak to our south Florida child support attorneys for help.
Will courts ever deviate from the child support guidelines?
Yes. Courts have the discretion to deviate from the Child Support Guidelines by five percent (5%). However it is possible for courts to deviate more than five percent (5%) in extreme circumstances. If the Court decides to deviate by more than five percent (5%) from the guidelines, there must be specific and appropriate cause for doing so contained within the order. At J. Scott Gunn, P.A., we aggressively advocate for deviations when our clients' financial security requires it.
What can I do if the other parent is not paying the child support as ordered by the Court?
If the party responsible for paying child support is failing to do so, a judge may order payments to be taken directly from his or her paycheck. Furthermore, a judge can also suspend the defaulting party's driver's license or order an unemployed person to enter job training or a work program.
Which parent will make major decisions about the child's life?
Florida law requires parents to share responsibility whenever possible, which means both parties should participate in important decisions for the child, such as health, education, welfare, and religion.
How does the court determine visitation and shared parenting time?
Parents seeking visitation or shared time with the child must get a court order for visitation. During a divorce, Florida requires parents to prepare what is called a parenting plan, which determines issues including shared time with the children, decision-making regarding the education, health welfare, and religion, and decisions regarding the child's physical, social and emotional well-being. The parenting plan also includes information such as costs of transportation for timesharing, drop off and pick up locations for effectuating visitation, and holiday schedules.
Will we be given joint custody?
Yes. Florida courts favor allowing both parents to have frequent contact with their children. However, courts usually do not order parents to split time with the children equally, because this can be difficult for children to adjust to and it also results in less stability and structure for the minor children.
Can I request that my child's visitation with the other parent be supervised?
Yes, the court may order supervised visitation if the circumstances require it. This generally requires very extreme circumstances (i.e. a history of abuse, neglect and/or abandonment and/or some drug abuse, sexual abuse and/or other circumstances regarding the visiting parent). To get supervised visitation, the other parent and his or her Florida child custody attorney must prove to the court that the child would be in danger if unsupervised visits were permitted.
Is one parent ever given sole physical custody of a child?
Yes. The court may order sole custody of a minor child to one parent If it believes contact with one parent is not in the child's best interests. In this case, one parent becomes solely responsible for the well-being of the child. However, there is a difference between been granted sole custody of a child and financial responsibility for a child. The two are completely independent from one another. Despite the fact that one parent may not have any visitation with a child and/or may not have any input into the health, education and welfare decisions regarding a minor child, such a situation does not imply that there will be no financial child support obligation for the benefit the minor child.
What happens to our custody order if one of us moves far away?
Under Florida law, a custodial parent must obtain the court's permission or consent of the other party in writing before a relocation of more than fifty (50) miles. This is accomplished by filing what is called a "Petition for Relocation". If the Petition for Relocation is granted, the court may also order modified schedules and contact with the non-relocating parent, including access to the minor child through visitation, telephone, internet and more.
What is alimony?
Alimony, also known as spousal support, is a monthly payment awarded when one spouse needs financial assistance and the other spouse has the ability to pay. Alimony is not awarded to everyone. The court may consider factors including the duration of the marriage, the difference in income between both parties, the standard of living enjoyed by the parties during the marriage, the disability of one spouse or both, and special circumstances, such as being a full-time student or parent to a young child.
How long will alimony payments last?
The judge will decide whether alimony payments should be temporary or permanent. If temporary, the judge will determine how long they should be paid. Temporary alimony is most likely in situations where the recipient needs time to acquire job skills or finish an education and the duration of the marriage is relatively short.
What kinds of alimony are there?
- Permanent Alimony: Alimony awarded until the receiving spouse remarries or dies. This type is typically awarded after a long-term marriage, to allow the recipient to maintain his or her lifestyle or standard of living as was enjoyed during the marriage.
- Durational Alimony: Alimony awarded for a set amount of time after a short or moderate-length marriage. The duration of the payments typically do not exceed the length of the marriage.
- Rehabilitative Alimony: Alimony awarded temporarily to assist the recipient while he or she seeks the training or skills necessary to enter the workforce.
- Bridge and Gap Alimony: Alimony awarded to a recipient who has legitimate, identifiable short-term needs.
- Temporary Alimony: Alimony that may be awarded after the divorce case was filed with the court, but before a final divorce order. This type of alimony may end or be changed when the court enters its final judgment or until there is good reason for a modification.
- Lump-Sum Alimony: Alimony awarded to equalize the distribution of marital assets or to satisfy one spouse's immediate financial needs.
Will the court consider my spouse's adultery when deciding alimony payments or other divorce issues?
Yes. Florida is a no-fault divorce state, so adultery is not relevant to the divorce itself. However, it may be a factor if you can show that marital funds were spent on a third party during an adulterous affair. Furthermore, the Court may consider an adulterous affair for other limited circumstances, including but not limited to issues of attorney's fees and costs, alimony claims, and transmission of sexual transmitted diseases during the marriage.