By Steve Walden Attorney at Law
Understanding the Divorce Process
Although my practice involves multiple areas of the law, I most frequently get questions about divorce. Particularly, that the person is considering divorce, or is having a divorce started against them by his or her spouse, and they want to know what to expect. The first issue to determine is whether Florida has jurisdiction. To pursue a divorce in Florida, one of the parties must have resided in the state for six months or more. If the divorce involves children, the children also must have resided in the state for six months.
Florida is a “no fault” divorce state, which means you are not required to state any specific reason for divorce. For instance, you are not required to allege adultery, cruelty, abandonment, or any other “ground” to dissolve the marriage. Instead, the marriage has to be considered “irretrievably broken” – meaning that there is no expectation the marriage will continue.
A divorce case starts when a spouse files a Petition for Dissolution of Marriage. A divorce can be agreed and therefore uncontested, or it can be contested. A divorce is contested when the spouses have a disagreement on any aspect of child custody or the division of property and debts. An uncontested divorce is typically completed by first reaching a written agreement and then formalizing the agreement in a judgment or order, which is signed by the parties and a judge.
A contested divorce may start with one of the spouses filing the petition and then having a copy personally served on the other. During a contested divorce, the parties may seek interim or temporary orders from the judge to establish rights to children, set child support, establish interim or temporary alimony, or determine rights to a residence and vehicles. Otherwise, these issues are not addressed until the final trial in the case.
Once a person determines that he or she is seeking a divorce, they should start assembling documents such as bank statements, pay stubs, credit card statements, investment statements, and retirement account records. These documents may be used in determining the amount of child support to be paid or to create a financial affidavit, which is filed by both parties in all divorce proceedings. The attorney may also request an inventory of any personal property, real property, vehicles, and other valuable items in order to plan for trial or to negotiate a settlement of the property distribution. Florida law distinguishes between marital and non-marital property. Generally, only marital property, defined as assets acquired or purchased during the marriage, may be divided in the divorce.
While a majority of divorce cases are resolved amicably, some are contentious and referred to as “high conflict” divorces. In addition to the documents mentioned above, parties may be requested by an attorney to provide copies of text messages, emails, social media posts, photographs, video, and even voice messages to provide evidence of adultery, waste of marital assets, child neglect or abuse by the opposing spouse.
Contested cases often involve discovery, a process in which both sides request documents or information from the opposing spouse to assess their case, determine the assets to be divided, and establish values for the property. Discovery also may involve seeking evidence that is relevant to show one parent is more suited to provide for a child’s best interest.
A divorce case is concluded when either the parties reach an agreement that is made part of a judgment, or when the presiding judge makes a ruling that is incorporated into a judgment. The final judgment can include provisions for the parenting plan for children, the distribution of marital property and debts, and post-divorce alimony.
My conversations about divorce will most often conclude with a discussion about costs. Most attorneys collect a retainer and charge an hourly rate for their services. A retainer is a deposit of funds into an account maintained by an attorney that secures the payment of fees and court costs.
Each divorce is unique and has it own particular circumstances. Anyone considering or going through a divorce should seek the advice of a family and martial law attorney to determine the best strategy or method to resolve their case.
Steve Walden
The Carlson Law Firm
333 3rd Ave. N, Suite 220
St. Petersburg, FL 33701
(727) 373-4655
swalden@carlsonattorneys.com