The answers to the questions on this page do not constitute specific legal advice from the Vargas Law Firm, P.A. about any particular claim or matter. If you have a particular question about a specific legal issue, you should contact an attorney before taking action. You may also go to the Contact page of this website and submit a question; however, merely contacting this office does not create an attorney-client relationship.
VARGAS LAW FIRM, P.A.
“Dissolution of marriage” is what divorce is called in Florida law. We use the more common word “divorce” in these questions, but the correct legal term is “dissolution of marriage.”
One spouse must be a Florida resident for the six-month period immediately preceding the filing of the petition for divorce. If you are temporarily living out of state, the judge will decide whether or not you are still a Florida resident. If the court determines that you have no intention of coming back, you probably will not be considered a Florida resident. If you are in the military, being stationed outside of Florida does not affect your residency.
It depends on whether it is contested or uncontested. An uncontested divorce means that both spouses agree on child support, custody, visitation, division of property and debts, and alimony, if any. An uncontested divorce can take as little as four to five weeks. If the matter is contested — that is, the court must decide any of these issues — it can take six months or longer. In counties where the courts are extremely busy, it can easily take a year or more. Most spouses don’t take divorce issues to trial, though; they settle their disputes themselves or with the help of a mediator.
Most people facing divorce desire to move on with their life as quick as possible. But because the Florida family law courts and related divorce statutes strictly govern the divorce process, a divorce must go through some well-defined, predictable steps. There are some generalizations about typical types of divorces and how long they take to conclude.
An uncontested divorce case is defined as a situation where both spouses are in complete agreement on every single detail. That includes parenting arrangements, child support and alimony to be paid (if any), division of assets, division of liabilities, who gets tax exemptions, etc., etc. There cannot be any arguing, any issues in the air, or any competitions to win on any point. Both spouses must cooperate; sign everything in a quick, efficient manner, and the work together to “fix” any paperwork or procedural issues with the divorce process. An uncontested divorce usually takes the shortest amount of time of any other type of divorce. One thing to keep in mind: attorney conducted uncontested divorces are normally the quickest to finalize because attorneys can exert direct control over the scheduling.
A contested divorce is a bit more intensive than an uncontested filing. You must gather and organize more intensive financial documents for disclosure to the other party. The degree of required accuracy is higher because contested issues may hinge on your factual disclosures. You must also prepare for the realities of a contested, competitive case. The requirements are more exacting and take a bit more time. Unless the case begins as an uncontested filing – you cannot relax about requirements and you cannot take anything for granted.
Contested cases are traditionally prepared, filed with the court, and then “served” on the other spouse. That involves a private process server personally delivering the documents to the other spouse. Most, if not all the issues in the case are contested. But the absolute number of contested issues does not matter. Further, it does not matter if both spouses agree they want to become single individuals. The case is still contested if just one issue disagrees. A common misconception is where both spouses want to become single, but they still disagree on finances. The fact is: if either spouse is arguing over anything, no matter how little, the case becomes contested. Fortunately, many initially contested cases settle at a “half-way point” in the divorce process. The halfway point is usually the time the parties attend mediation. Even though the case began as a “contested case” they end up as an uncontested case. That is why we refer to them as “initially contested.” Based on the vast flow of cases, we can make some predictions about this type of very common divorce case flow.
Mediation is a way to help people come to an agreement so that they can avoid spending time and money fighting in court. The mediator is a neutral expert in the law who looks at the strengths and weaknesses of both sides’ cases and helps them come to an agreement to settle the case, if possible. Some counties in Florida make you attend mediation before you can schedule a trial (with an exception for cases involving domestic violence). Mediation is designed to resolve cases with less time, expense, and emotional cost than long court battles.
Mediation can take place before or after the discovery process. Discovery is the part of a contested lawsuit when each party can find out information that the other party has about the case. In discovery both sides will have to reveal details about their finances, produce documents upon request, and respond under oath to questions from the other side.
*Fact: The percentage of Florida divorce cases completely settled at mediation ranges from 70% to 90%
If you cannot reach an agreement through mediation, it is called an “impasse.” If you can come to an agreement not only can the divorce become final much more quickly than if it were contested, but parties may be more likely to comply with the terms they agreed to than if a judge ordered them to do something without agreement.
Typically, you and the other party, your lawyers (if you have them), and the mediator, will all meet, and the mediator will introduce him/herself and explain how things will go. After the meeting with everyone in the same room you or the other party will move into separate rooms and the mediator will spend time alone with each one of you asking questions and discussing the strengths and weaknesses of the case. The mediator will meet first with the one who filed the first Petition and they will begin negotiations by making an offer to settle the case. The mediator will try to help the two sides reach an agreement about the things that they did not agree upon before the mediation: this may mean going back and forth between the rooms many times.
If mediation is successful, spouses might be able to agree on some or all the issues, enter into a written agreement, and submit a suggested settlement to the court. Once the agreement is made and signed after mediation it is a binding contract. The parties cannot change their minds and complain that they want things changed about which they agreed and signed at the mediation: those matters are settled, and they are bound by their agreement.
Each party will pay for half the cost of the mediation unless you negotiate another way of dividing the cost. Often one party ends up paying more or all the cost of the mediation as part of the negotiated settlement.
The final hearing is the last stage of a divorce. If your case proceeds along the “initially-contested” track as described – your case will most likely end in an uncontested final hearing. In this scenario the vast majority of final hearings happen in 4 – 6 months. Some variables that can speed up or slow down your case include the accuracy of your documents, failure or success of either party at following procedure, and finally whether the responsible judge has an open or relatively full calendar. The final hearing is the last stage of a contested case and normally results in an order granting a divorce.
A special situation to note for some self-represented couples … most non-attorney represented cases are assigned to a special type of judge called a General Magistrate. The General Magistrate has the power to dissolve the marriage. But there will be an additional 10-day delay before your divorce is fully finalized. There will be no such delay if a Circuit Court Judge handles your case.
The scheduling of your final hearing is dependent on the calendar and availability of the judge. As previously stated, attorneys have a better ability to call the judge’s office and grab a relatively quick date. The speed of your divorce/paternity action is a bit more up in the air if neither of you have an attorney. The flow and timing of your case depends on “internal mechanisms” of the courthouse when attorneys are absent from the case. Some jurisdictions have an internal case manager to monitor and ensure the efficient flow of cases. Some jurisdictions rely on the clerk of court. A few jurisdictions depend on each judge’s office to move their cases forward. Because of this any cases without attorneys are a bit more unpredictable in their timeline.
The final trial in a divorce/paternity case can last anywhere between 4 hours and 2 weeks. The most typical trials are one day in length. While a divorce/paternity trial only lasts one day – the preparation and lead into a trial can take up to a year. But the typical prep and lead in to a one-day trial is approximately 5 months.
In a divorce assets and debts must be divided. Assets are things you own that have value (e.g. bank accounts, pensions, cars, personal property), and debts are moneys that you owe (e.g. mortgage, loans, credit cards). In Florida property and debts are divided by “equitable distribution,” which means fair division. Some things may be considered non-marital, separate property, and would not be divided because they belong to one spouse only (e.g. one spouse owned something before the marriage).
Spouses can agree how to divide their property or if they cannot come to an agreement themselves, or through mediation, the court will decide about how the property will be divided. Although the court begins with a presumption that property will be divided equally, it will take many factors into consideration including how long you were married, what each spouse contributed to the marriage, if a spouse wasted marital assets, and if a spouse helped the other’s education or career by interrupting his/her own.
Either party can be ordered to pay alimony and they can be ordered to pay a lump sum, periodic payments, or both. There are several different kinds of alimony that the court can order in Florida.
• Bridge-the gap: is for a limited period, cannot be modified, and is meant to help a person transition from being married to being single.
• Rehabilitative: designed to help a person become self-sufficient by either re-developing previous skills or credentials or gaining new ones. This is only awarded with a specific defined rehabilitative plan and can be modified or ended when there is a substantial change in circumstances, the plan is completed, or the recipient fails to comply with the plan.
• Durational: awarded when periodic is not appropriate. It is meant to provide economic help for a set period after a marriage of short or moderate duration or after a marriage of long duration if there is no need for longer support. The amount can be changed based upon a substantial change in circumstances, but the length can only be changed under exceptional circumstances and cannot last longer than the marriage itself.
• Permanent: awarded when the court finds that no other form is fair and reasonable under the circumstances. It is supposed to provide for the needs and necessities of life for a party who cannot meet his or her needs after the dissolution. There are limits upon when the court can award permanent alimony depending upon the length of the marriage.
The court first must decide if one party has a need for alimony and the other party can pay, and then will determine the appropriate amount. Some of the things that the court takes into consideration are:
• The standard of living established during the marriage.
• The duration of the marriage.
• The age and the physical and emotional condition of each party.
• The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.
• The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire enough education or training to enable such party to find appropriate employment.
• The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, childcare, education, and career building of the other party.
• The responsibilities each party will have with regard to any minor children they have in common.
• The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
• All sources of income available to either party, including income available to either party through investments of any asset held by that party.
• Any other factor necessary to do equity and justice between the parties.
The judge can also order a party to buy life insurance to secure the alimony.
No. In general, one party just needs to state that the marriage is "irretrievably broken." Fault may enter into the equation, though. For example, a judge may refuse to order alimony, or may reduce the amount, if the spouse who otherwise would receive the support is at fault in the divorce.
No. One lawyer should not represent both spouses in a divorce. You have different interests in the case and those cannot be protected by the same person; the lawyer would have what is known as a “conflict of interest.”
You do not have to have a lawyer to file for a divorce. Neither spouse may be represented by a lawyer, one spouse may have a lawyer and one may represent him or herself, or both may have lawyers.
You may ask that your name be changed back to what it was before you were married. You do this in your petition or counter-petition for dissolution of marriage. The judge can order this change in the Final Judgment of Dissolution of Marriage.
Yes, after you conduct a diligent good faith search as required by Florida law. There is a list of steps you must take, such as contacting the Department of Motor Vehicles and talking to family and friends who may know where your spouse is. You must also publish a notice in an appropriate newspaper for a certain period of time. The court cannot order any division of property or alimony until your spouse is found and served with the papers.
If your income is very low, you may qualify for free representation from Legal Aid. And if your spouse earns substantially more than you do, the court might order your spouse to pay your attorney’s fees at the end of the case. An attorney might — or might not — be willing to take your case even if you can’t pay, if there’s a good chance of getting the court to order your spouse to pay your fees.
If you’re in danger, call the police or a domestic violence hotline like 800-799-SAFE. Even before you file for divorce, you can get a restraining order from the court, without notifying your spouse. Consult the clerk of court or a lawyer. If the court issues a restraining order on this basis ("ex parte"), there will be a court hearing within 7-14 days where your spouse can argue against the order. Once the divorce process begins, the court can order your spouse to leave the house (especially if you have children) and stay away from you. Domestic violence cases have priority in the court system and are heard quickly.
We understand that legal issues can complicate things for your entire family. That’s why we focus on listening to the details of your case from the moment you pick up the phone to call. You can also expect to receive one-on-one attention directly from an experienced attorney.
(813) 388 4954 Fax