An Overview Of Divorce Procedures In Florida
Once you have decided to file for divorce, whether individually or as a couple, it is only the beginning. There are several relevant Florida laws that must be considered. You can rely on the attorneys at Thompson Family Law, P.A., to carefully explain your options and to help you navigate the sometimes formidable process.
Get Help With A Petition For Dissolution Of Marriage From Our Fort Myers, Florida, Attorneys
You or your spouse must reside in Florida for at least six months prior to filing for a divorce. To legally proceed with obtaining a divorce, you must file a petition for dissolution of marriage with the court. Florida does not require you to be legally separated before you begin divorce proceedings.
Grounds For Divorce
Florida is a no-fault state. This means that neither party needs to be blamed for the breakdown of the marriage. There are two grounds for divorce:
- The most common ground for a divorce is that the marriage is irretrievably broken. The marriage cannot be saved with the help of counseling or medical help. Counseling may be ordered by the court prior to granting the divorce.
- An infrequently used ground for divorce is the mental incompetence of one spouse. A divorce may be granted if one of the parties has been mentally incompetent for at least the past three years.
Filing For Divorce
Legally, it does not matter who files for the divorce. Psychologically, it may make a difference. Religious convictions may also play a role. What is more important than the actual filing is the emotional effect on the people involved.
Finances can play a large part in seeking a divorce. It is easier for the person controlling the finances to start litigation. If a person is financially dependent upon his or her spouse, the person may not feel he or she can proceed.
Contested And Uncontested Divorce
When a divorce is contested, it means that the parties have not yet reached an agreement to settle the divorce reasonably and fairly. They have problems that have not yet been resolved. In this case, the parties would each hire attorneys who would provide legal advice and represent the positions of their clients in negotiations and court hearings. This is an adversarial process where the parties communicate through their attorneys rather than directly with one another. If no agreement can be reached, the court will then make the decision for them. This takes time and money.
A contested case generally proceeds in this order:
PLEADINGS → DISCOVERY→MEDIATION→TRIAL
- Pleadings are generally thought of as each party’s request or plea for the court to do something. This is done in the petition or counter petition, as is also commonly used to describe motions, which are requests for the court to take some action, such as establish temporary child support.
- Discovery is the process of discovering information about each other’s case. Certain financial documents are mandatory to exchange, such as a financial affidavit. In addition, records can be subpoenaed and depositions can be taken, and the other spouse can be requested to produce documents, answer written questions or interrogatories or admit certain facts.
- Mediation is a process where the parties hire a neutral third party to assist them in reaching agreements. The mediator can provide information about the legal process and guide a discussion to help resolve issues. The mediator may or may not be a lawyer, but the mediator does not represent either party and cannot provide legal advice. Mediation can occur with parties who have hired attorneys or parties who are not represented by attorneys. The parties communicate directly with one another in the presence of the mediator. The goal of mediation is to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle. Mediation can occur at any point, before or during the court case, but generally must occur before trial.
- A trial is the final step in resolving your case before the circuit court judge. A trial is only necessary when the parties have not agreed to all issues. Sometimes trials are held on all issues, or sometimes on only a few.
An uncontested divorce is when you and your spouse have reached an agreement to settle the divorce in a way you both believe to be reasonable and fair. It is usually easier and less stressful than a contested divorce. Everyone can save money and time. If you can work out all of the things that need to be discussed and agreed upon, the terms of your agreement can be put into final form by a family law attorney. The guidance of a family law attorney in the discussion is usually extremely helpful since an experienced attorney can see potential problems that lie ahead and suggest solutions now.
There are several ways by which an uncontested divorce might be accomplished: Pro se negotiation, mediation or collaboration:
- Pro se negotiation is a process where you do not hire professional assistance and do all the work yourselves. You proceed on your own to draft and file all of the necessary court documents. The parties may turn to books, Internet resources or other information-provider services to help them get through the process without the aid of a professional. The parties must either work out an agreement together or present their legal issues to the court, acting as their own lawyers.
- Mediation is a process where the parties hire a neutral third party to assist them in reaching agreements. The mediator can provide information about the legal process and guide a discussion to help resolve issues. The mediator may or may not be a lawyer, but the mediator does not represent either party and cannot provide legal advice. Mediation can occur with parties who have hired attorneys or parties who are not represented by attorneys. The parties communicate directly with one another in the presence of the mediator. The goal of mediation is to reach agreements that meet the needs of both parties and their children without the financial and emotional cost of a court battle.
- Collaboration is a process in which each party hires a specially trained and certified collaborative attorney who is a legal advisor and settlement specialist, and all four work together in a cooperative, non-adversarial process with a mutual goal of reaching a fair settlement of all issues. Binding commitments are made by both parties and their attorneys to voluntarily disclose all financial and other relevant information, to proceed in good faith in negotiations and to refrain from the threat or use of litigation. The parties agree that they will not go to court and, if anyone decides to do so, both collaborative attorneys would be disqualified and would be required to withdraw. The lawyers’ sole job is to help you reach an agreement so you have an uncontested divorce.
Terminology And Procedure
Sometimes, it is hard to understand the legal jargon being used by the legal professionals. It is necessary to use certain terms in communicating with the courts and other professionals. We want you to become familiar with some of the terms that you will be hearing most frequently. This will save you time and money when working with your attorney or members of our staff.
In order to begin the divorce process, one person must submit a written request (pleading) called a petition for dissolution of marriage. The person filing for divorce is referred to as the petitioner. The petition is filed with the clerk of court, whose office is usually located in the county courthouse. The case is given a case number and an official court file is set up. The case number should be on all papers filed with the court in your divorce so that they can be filed properly. A filing fee is charged. Fees vary from county to county. If the case is not yet settled, a summons is then signed by the clerk of court directing the sheriff or a private process server to serve the petition. Once the petition has been filed, a copy of the original petition must be hand delivered or served by a deputy sheriff or private process server on the respondent. The respondent is the person named in the divorce who did not originally file for the divorce.
Through the process, each person will file various papers called either motions or pleadings. Whenever one side takes such an action, the other side must be served with a copy of the document so that each party knows what the other is requesting the court to do. Service is also given when hearings are scheduled. After the initial service by the sheriff or private process server, all subsequent papers filed in your case are served by mail or hand delivery. After the original petition has been served on the respondent, all other documents should be sent to the attorney representing that person. Our office will automatically provide you with a copy of each paper filed with the court and any correspondence relating to your case.
After the petition for dissolution of marriage has been served, the respondent has 20 days to respond to the court. The respondent usually files an answer, which responds to the allegations made in the petition. It is often wise to file a counter petition for divorce if you are the respondent stating what you generally want in the divorce.
If a response is not filed, the petitioner may then file a motion for default. A motion for default asks that everything in the petition be treated as admitted or true. The clerk or the judge can enter a default if the respondent fails or refuses to answer the petition. The case may then be set for final hearing and the judge can make a decision.
The state of Florida requires each party to exchange certain information and documents, referred to as mandatory disclosure. One of these documents is called a financial affidavit. If one of you does not comply with mandatory disclosure within the allotted time, the court can dismiss the case or refuse to consider pleadings of the party who does not comply. The certificate of compliance with mandatory disclosure lists all the documents that must be given to the other party. Your attorney will explain these documents to you. A legal assistant will help you organize these documents and in filling out the necessary forms to show that you complied with these requirements.
If one of you has a more substantial income than the other, the one having less may need temporary relief. A request for temporary relief is often used to establish temporary alimony, child support, use of the house or automobiles or to obtain temporary attorney fees.
Mediation is required by most courts before they will schedule a divorce for trial. Generally, it is a good idea to be represented by an attorney and for the attorney to accompany you to the mediation. The mediator is a neutral third party who will try to help you and your attorney reach an agreement in the divorce. A full explanation on mediation is found in our section on mediation. If your divorce is settled in mediation, it becomes an uncontested divorce.
A case will go to trial for a final hearing over the issues that have not been totally or fully resolved. A trial takes place before a judge who listens to both sides and makes a decision based only on what is presented. Not everything you want to say can be told to the court because the judge must follow rules of evidence. The judge then makes a ruling on the issues presented for the court. The ruling is not always made while you are in court. The judge may take a few days to review the evidence that was presented before making a decision.
The divorce is concluded when the court issues a final judgment of dissolution of marriage. If your case went to trial, the final judgment will contain the court’s rulings. If your case was resolved with a settlement agreement, the final judgment will adopt and follow the terms of your settlement.
For Help With Filing For Divorce, Contact Our Lee County Law Firm
The Thompson Family Law firm wants to give you the best service and quality representation. With your help, we will work to save you time and money in the divorce process and ensure that you properly comply with divorce procedure, beginning with filing a petition for dissolution of marriage. Contact our Fort Myers, Florida, lawyers today.