Men's Rights in Divorce
Understanding The Basics Of Florida Divorce Laws
The following are the basics of Florida Divorce Laws. Understanding these basics will help you understand Men's Rights in Divorce.Topics covered:
- The First Question to Ask Yourself
- Information Regarding Divorce
- Dissolution of Marriage
- Simplified Dissolution of Marriage
- Parenting Plans
- Custody and Visitation (Time Sharing)
Can you save your marriage?
Before you consider doing anything regarding entering into the legal arena to put an end your marriage, you should be certain that you have tried all possible ways to save it. Do you want professional help in working out ways to save your marriage? Many communities and social and religious organizations offer counseling services either free or on a sliding fee scale. Or you may wish to consult with a marriage counselor, psychologist, psychiatrist, minister, priest rabbi or other qualified person. Your attorney may also know someone who can counsel you and your spouse.
In the State of Florida the words used for divorce are "dissolution of marriage."
Florida is one of the many states that has abolished fault as a ground for divorce. This law lessens the potential harm to the husband and wife and their children caused by the process of divorce. All that is required is that the marriage be "irretrievably broken". Either spouse can file for the dissolution of marriage. All that has to be proved is that a marriage exists, one party has been a Florida resident for six months, and the marriage is broken. A dissolution can also be granted if either party has been legally declared incompetent for a period of three years. Fault by either party may be considered under certain circumstances in the areas of alimony and determination of the minor child(rens) custody and/or visitation.
Each divorce case is unique and therefore settlements vary. Even though fault is not an issue, the division of property and possessions and responsibility for support may become contested matters.
The divorce process is highly emotional and traumatic for everyone involved.
Marriage partners often do not know their legal rights and obligations. Court clerks and judges can answer some of your basic questions but are prohibited from giving legal advice. Only your lawyer is allowed to do that. Court procedures must be strictly followed or you may lose certain rights forever. It is recommended that you obtain the services of an attorney concerning legal questions, your rights in a divorce, your children's rights, your property rights, your responsibilities resulting from the marriage or tax consequences that you may become responsible for that were accrued during the marriage. A lawyer can analyze your unique situation, and can help you to make decisions in the best interest of you and your family.
To obtain a dissolution of marriage in Florida, at least one spouse must have been a Florida resident for six months or more before the case is filed. There are two ways of getting a divorce, or dissolution, in Florida. The usual way is called a "Regular Dissolution of Marriage". The second method is the "Simplified Dissolution of Marriage".
The dissolution of marriage process
begins with a 'petition'.
The regular dissolution process begins with a petition for dissolution of marriage, filed with the circuit court by the husband or wife, which states that the marriage is irretrievably broken and sets out what the person wants from the court. The other partner must file an Answer within 20 days maximum, which includes the matters within the initial petition on which the parties agree or disagree as well as any issues the answering party wishes to raise in their counter-petition.
Court rules governing divorces require that each party provide certain financial documents and a completed financial affidavit to the other party within 45 days of the service of the petition or before any temporary relief hearing. The extent of the information to be provided depends on the annual income and expenses of each party. Failure to provide this information can result in the court dismissing the case or not considering that party's requests. The parties or the court can modify these requirements except for the filing of a financial affidavit, which is mandatory in all cases.
Mediation is a procedure to assist in arriving at agreeable terms in the dissolution.
Some couples agree on how they want to distribute their assets and debts and enter into a marital settlement agreement. All issues can be included in the settlement (parenting plan), including, child custody (Time Sharing), and other post-divorce arrangements before or soon after the original petition is filed. This written agreement (parenting plan) is signed by both parties and then presented to the court. In most instances in these type cases, a divorce can become final in a matter of a few weeks.
Other couples disagree on some issues, work out their differences, and appear for a final hearing with a suggested settlement which may be accepted by the judge.
Mediation is a procedure to assist you and your spouse in working out an arrangement for reaching agreement without a protracted process or a trial. Its purpose is not to save a marriage, but to help divorcing couples reach a solution to their problems and arrive at agreeable terms for handling their dissolution. Everything said in mediation is confidential. Mediation can save both parties a lot of stress and money. Many counties have mediation services available; some are mandatory.
Finally, some couples cannot agree on much of anything and a trial - with each side presenting its case - is required. The judge makes the final decision on contested issues. Who is better able to decide what is best for you and your family?
The equitable dissolution process is designed to make the divorce as fair as possible to both husband and wife, which usually means negotiation - and compromise - by both partners.
Attorneys have learned it is unrealistic to expect both partners to be "happy" with their divorce.
The experience can be very stressful and emotionally devastating. After divorce, and sometimes during the process of getting a divorce the financial upheaval of supporting two households instead of one causes hardship for the entire family. The parties, however, if they are willing to work together, can take steps to make the process easier for themselves and their children.
In the State of Florida some couples are eligible to dissolve their marriage by way of a simplified dissolution process. These dissolutions are designed for the "do-it-yourselfer" and are designed so the services of an attorney may not be necessary. Couples are responsible, however, for filing all necessary documents correctly, and the couple is required to appear before a judge together when the final dissolution is granted. If you desire the services of an attorney for this dissolution process, it can usually be completed relatively inexpensively.
There are certain criteria that must be met before the couple is entitled to file for a simplified dissolution of marriage. The couple must not have dependent children and also have agreed on a division of their property and debts. Therefore, not everyone can qualify.
A husband and wife can use the simplified dissolution of marriage only if:
- (a) They both agree to the use of this form of dissolution proceeding
- (b) They have no minor (under 18) or dependent children
- (c) Have no adopted children under the age of 18
- (d) The wife is not pregnant
- (e) At least one of the parties has lived in Florida for the past six months
- (f) The parties have agreed on the division of all of their property (assets) and obligations (debts)
- (g) Both parties agree that the marriage is irretrievably broken and want to end their marriage because of serious permanent differences.
Couples wanting to use the simplified process must meet all these conditions. If not, they must use the regular dissolution of marriage process.
There are substantial differences between a simplified and a regular dissolution of marriage.
In a regular dissolution, each spouse has the right to examine and cross-examine the other as a witness, and to obtain documents concerning the other's income, expenses, assets and liabilities before having a trial or settlement of the case. With a simplified dissolution, financial information may be requested but it is not required to be given. In a simplified dissolution there is no trial and no appeal. Also, with a simplified dissolution neither the husband nor the wife can receive support (alimony) from the other. If the husband and wife agree on a dissolution, and prefer to use the simplified form of dissolution, then they should both contact the clerk of the circuit court in their area and obtain a copy of the booklet titled "Simplified Dissolution Information" for more detailed information and forms.
In the State of Florida it is the public policy to assure each minor child frequent and continuing contact with both parents after the parents have separated or divorced. Additionally, both parents should encourage the other parent to share the rights and responsibilities of child rearing. The father and mother are given the same consideration when the court is determining custody regardless of their child's age, sex, or any other factors.
Florida divorce laws mandate shared parental responsibility for a minor child.
This means that both parents share responsibilities for child rearing so that each retains full parental rights and responsibilities with respect to their child. This requires both parents to confer with each other so that major decisions affecting the welfare of the child will be determined jointly.
You and your spouse may agree, or the court may order, that one parent have the ultimate responsibility over specific aspects of the child's welfare. Some of these areas might be education, religion, removal from the area, and medical and dental needs. If the parties have a substantial conflict over any of these areas the parties can request that the court decide for them. If the parties cannot agree the court will prepare a parenting plan. The parent's are usually entitled to frequent, continuing and unsupervised contact with the child in the parenting plan.
In rare cases, the court can order sole parental responsibility and custody to one parent.
To do so, the court must make a written determination that shared parental responsibility would be detrimental (harmful) to the child and not in the child's best interests.
"Best Interest Of The Child"
In considering issues between parents and their children, the "best interest of the child" is the primary consideration used by the courts to make decisions.
"Parenting plan" means a document created to govern the relationship between the parties relating to the decisions that must be made regarding the minor child and shall contain a time-sharing schedule for the parents and child. The issues concerning the minor child may include, but are not limited to, the child's education, health care, and physical, social, and emotional well-being.
In creating the parenting plan, all circumstances between the parties, including the parties' historic relationship, domestic violence, and other factors must be taken into consideration. The parenting plan shall be developed and agreed to by the parents and approved by a court or, if the parents cannot agree, established by the court.
Both you and your spouse have a responsibility to support your children in accordance with the children's needs and your individual financial abilities. Support may be by direct payment or by indirect benefits, such as mortgage payments, or insurance. In addition, reasonable medical and dental insurance is added to the basic child support amount. Uncovered medical expenses can be shared on a pro-rata basis proportional to the income of each individual parent. Ordinarily, the obligation to support your child ends when that child reaches 18, marries, or becomes financially independent. The parties can agree to pay beyond 18 years of age or in regards to a child's college education.
Some of the issues concerning child support which must be considered include:
- (a) The amount of support
- (b) The method of payment
- (c) Ways to assure that payments are made
- (d) When child support may be increased or decreased
- (e) Who claims the dependency deduction for tax purposes
The courts use the Florida Child Support Guidelines to determine the amount of child support. The guidelines consider the incomes of the parties and the number of children that they have.
After you have a court order for child support or visitation (Time Sharing) or if there is a substantial change in circumstances regarding these issues or if you have a problem getting support payments from your spouse or former spouse, or visitation (time sharing) and access to your child is denied, you should bring this matter to the attention of the court. It is not a proper reason for withholding visitation or child support payments because of any wrongdoing by your spouse or former spouse. Also, you might be able to modify the existing child support, time sharing schedule order that is in place.
One of the most difficult and complex areas of dissolution process is the division of marital property, sometimes called the marital estate. Marital property may include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bank accounts, personal property and any other things of value that have been accumulated during the marriage.
Florida divorce laws provide for an "equitable distribution" of marital property.
In essence, the marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the property in question may be titled. The division is based upon all facts of the case and the contribution of both spouses to the marriage.
The division of marital property or estate as sometimes called is any asset acquired during the marriage by the efforts of one or both parties. This property is considered in conjunction with all other monetary awards such as alimony and interests in property.
There is no fixed way to determine how you or the court should divide the property.
Liabilities (debts) as well as assets must be considered. Other factors include the nature and extent of the property and whether it is marital property or non-marital property; the duration of the marriage; and the economic circumstances of each spouse. If you and your spouse can agree, and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property after a trial.
The court may grant alimony to either the husband or the wife. Alimony is based on "one parties need and the other parties ability to pay". Some forms of alimony are for a temporary period. Rehabilitative alimony may be for a limited period of time to assist in redeveloping skills and financial independence. Permanent alimony continues until the spouse that is receiving the alimony remarries or upon the death of either party. The court may grant some combination of the two. Also the court may order lump-sum alimony. That is where one party pays the other party a lump-sum payment of money or property. Although adultery does not bar an award of alimony, the court may consider the adultery of either spouse, and the circumstances of that adultery, in determining the amount of alimony to be awarded.
In awarding alimony is discretionary. The court considers all relevant economic factors, such as: the parties prior standard of living, length of the marriage, age and physical and emotional condition of both spouses, each spouse's financial resources and income-producing capacity of the assets they receive, the time necessary to acquire sufficient education or training to find appropriate employment, and the services rendered in homemaking, child rearing, and education and career building of the other spouse. The court has the option of considering any other factor it deems necessary to do equity and justice between the parties.
You have the right to find out about all your spouse's income and assets through the use of discovery procedures before entering into a settlement agreement or going to trial.
You can choose to litigate but it is an expensive process. Dissolving your marriage does not have to be expensive. The more complex your affairs and the more contested the issues, the more the divorce will cost. Money spent litigating can be directed to your children if you and your spouse were able to agree at an early stage of the dissolution process. At an initial meeting, your attorney should be able to provide an estimate of the total cost of a dissolution based on the information you provide. The cost will depend on how contested the issues that you cannot resolve become.
You and your lawyer will enter into a retainer agreement. The lawyer is responsible to move your case along and represent your interests. The lawyer expects you to pay his fees and the costs of litigation in accordance with the agreement you make. Occasionally the court will order your spouse to pay part or all of your fee and costs, but such awards are unpredictable and cannot be relied upon. You are primarily responsible for the payment of your legal fees that are incurred on your behalf in accordance with your retainer agreement.
In a Florida divorce, it is illegal for an attorney to work on a contingency fee basis. For instance the lawyer cannot charge a fee that is a percentage of the property you recover in the dissolution of marriage.
You may go to court yourself for an injunction to protect yourself or a family member against assault, battery or sexual battery by your spouse (whether you are separated or not) or your former spouse. If you feel you are the victim of such domestic violence, you should immediately contact the office of the clerk of the circuit court in your county for information and assistance.
The parties must consider the tax consequences of divorce and the distribution of assets and liabilities. You must consider the dependency deduction for children, taxability and deductibility of child support and alimony, and effects of property transfers. It is important to find out how these laws affect you before you get divorced. Afterwards, it may be too late to correct mistakes that have been made. Sometimes an accountant or financial planner needs to be consulted in conjunction with your attorney.
All debts that the husband and wife may have should be resolved at the time of the divorce. The question of who should pay mortgage payments, income tax liabilities, credit card debts, personal loans, car payments and other debts must be considered and dealt with.
After a regular dissolution of marriage that has been decided by a judge, if you feel the judge's decision was incorrect, you may appeal that decision, provided that certain procedural steps are taken. An appellate court does not frequently reverse a trial judge's decision. Judges have broad discretion in divorce cases. Just because you do not like the judge's decision is not a reason for an appeal. If the trial judge makes an error of law, or has abused his or her discretion, the decision may be reversed. It is also a very costly process to appeal a judges' decision.
If you already have a lawyer calling him or her is a good place to start. Call and ask for an appointment for consultation. Your lawyer can review your legal rights and advise you how to proceed. If your lawyer does not handle divorce cases, he or she might refer you to an attorney who does.
Your family lawyer can not represent both you and your spouse. In fact, if the lawyer has been your family lawyer there may be a conflict of interest and the lawyer cannot represent either of you. It is unethical for an attorney to represent both sides in a divorce and to give legal advice to both the husband and the wife.
If you are in need of an attorney who focuses on Men's Rights in Divorce call The Men's Rights Law Firm for your free consultation.
Contact The Men's Rights Law Firm, attorneys for Men's Rights in Divorce, about our low hourly rates and to schedule your free consultation.