Alternatives to Litigation
Mediation:
If you decide that divorce is inevitable, you and your spouse may want to consider mediation before starting a court action. Mediation is a process in which you and your spouse work out your financial and marital differences with the assistance of a neutral party known as a Mediator. Mediation is effective because it allows parties to reach a settlement in an amicable setting. For divorce mediation, it is suggested that you obtain the assistance of an attorney to adequately advise you of the law. A Mediator is not permitted to provide legal advice or assistance to either party. Family Mediators must receive special training and be certified by the Florida Supreme Court.
Collaborative Family Law:
There are some Family Law attorneys who practice Collaborative Law. In this process, the ultimate goal is to reach a settlement of all issues in your divorce matter before anyone goes to Court. Each spouse is represented by his or her own attorney. The attorneys and parties agree, in writing, to share all financial and other information relevant to the matter without claiming confidentiality. Each party agrees, in writing, with his or her own attorney that if the matter cannot be settled, the attorney will withdraw from representation and the party will have to hire a new lawyer to litigate the case. The parties and attorneys meet as many time as necessary to completely resolve the matter. This is a fairly new type of practice and is obviously not applicable to all divorce matters. However, when employed in the appropriate case, the Agreement reached is usually more satisfactory to both parties, because each has had a full opportunity for input into the final agreement.
ANATOMY OF A FLORIDA DIVORCE CASE
Grounds for Divorce
In Florida, we have no-fault divorce: the standard for granting the divorce is that the marriage is irretrievably broken. It is not necessary for a party to prove the other party is guilty of fault. Divorce is referred to as Dissolution of Marriage.
Commencing the Process of Divorce
You should discuss with your attorney if you wish to file a Petition for Dissolution of Marriage. Alternatively, your attorney can write a letter to your spouse or your spouse’s attorney indicating your position regarding filing a Petition or negotiating a settlement agreement. In the event you proceed to file a Petition, it is necessary for a sheriff or process server to serve the papers on your spouse, who then has 20 days to respond. Additionally, you should discuss with your attorney various types of temporary relief.
Temporary Relief
There are several types of temporary relief which can be requested from the Court before a final resolution of your case, such as the following:
1. Injunction Against Domestic Violence: If there is physical abuse, or harassment by your spouse of you or your children, consider discussing with your attorney filing for protection against this type of behavior. You can ask that the abusive spouse be removed from the marital residence if the conduct is especially harmful.
2. “Freezing” Assets: If you suspect that your spouse will dissipate or hide any of your marital assets, you should discuss with your attorney the possibility of “freezing” certain bank accounts, IRA accounts, pension accounts, other financial accounts, or business assets to preserve the property of the marriage.
3. Temporary Alimony: If you need funds and your spouse is unwilling to assist you in handling the finances during the divorce, you can request temporary alimony (spousal support).
4. Temporary Child Support: In the event there are children under the age of 18 who are not self-supporting, it will be necessary that you and your spouse determine together how you are going to provide for their financial support during the case. If your spouse is unwilling to financially assist you, then you can ask the Court for relief. Florida has very strict child support laws which the courts are required to follow and enforce. The amount the Court will set is contained in guidelines which are based upon the total of both incomes (yours and your spouse’s) allocated proportionately between you. Additional expenses for the children, such as health care and insurance, child care, after-school and summer activities and religious or private school will also be proportionately allocated between the parents based upon incomes.
5. Temporary Attorney’s Fees and Litigation Expenses: If you are not financially able to afford an attorney and your spouse has the financial ability to provide funds for you to obtain an attorney and for the expenses of litigation, you can request that the Court award these fees and costs during the course of the lawsuit.
6. Temporary Custody: If your spouse is no longer residing in the marital residence with you and custody is an issue, you can request that your attorney help you obtain temporary custody of the minor children.
7. Temporary Restraining Order Regarding Removal of Minor Children: If you believe your spouse will remove the minor children from the State or your locality and will hide or prevent you from having meaningful contact with your children during the pendency of the litigation, then you can discuss options with your attorney.
Division of Assets and Liabilities
The Florida Legislature has adopted a statute which determines the division between the parties of their property and debts. The law requires that all marital assets and liabilities are to be divided between the parties in an “equitable” or fair manner. There are many factors listed in the statute that the Court utilizes in making a property distribution.
Child Custody
The Court usually orders “shared parental responsibility” in instances where it finds the parties can cooperate on issues regarding their children. This means that both parties are jointly responsible for making major decisions regarding the general welfare and well being of their minor children (education, religion, health and extracurricular activities). The parent with whom the minor children will reside during the majority of the year is designated the primary residential parent. The other parent will be provided with reasonable rights of access and contact with the minor children. The Court will direct both parents to separately attend an approved Parenting course before granting the Final Judgment. In some cases, however, one party may be awarded sole custody, which is when just one parent is responsible for the general well-being and making decisions on behalf of the minor children. The other parent will then usually have specified visitation and contact times with the children. This is usually the case when domestic violence is an issue. If the Court determines that there may be a problem with visitation, it can require that the visitation be supervised by an agreed-upon neutral party or agency. Speak to your attorney about this possibility if it is of concern.
Child Support
In all instances, both parties are responsible to provide child support to their minor children until age 18 or otherwise “emancipated” (usually, self-supporting). This is done by the non-custodial parent paying to the custodial parent a sum of money based upon the paying parent’s proportionate share of combined parental incomes and number of children. The Legislature has adopted Child Support Guidelines, which designates the total amount of child support to be provided by the parents. Other items of child support are health insurance, after-school care, summer camp, extracurricular activities, and special needs of the minor children. Life insurance should also be sought to secure the amount of child support to be paid by the nonresidential custodial parent in the event that parent dies before the children turn 18. Sometimes, the amount of child support will vary from the “guideline” amount, due to the children being with non-residential parents for an extended period of time regularly (such as long summer vacations). There is also a mandatory change in basic guideline amounts of child support if the child spends 40% or more of the overnights during the year with the non-primary residential parent. Speak to your attorney about this and how equal or almost equal time sharing of the children by parents can effect the amount of child support that is paid.
Alimony
There are three forms of periodic alimony (spousal support) which are awarded for the purposes of support: rehabilitative, “bridge-the-gap” and permanent. Permanent alimony is an amount of money paid periodically during the lifetime of both parties. These payments terminate upon remarriage of the recipient or death of either spouse. Rehabilitative alimony is a certain sum of money paid over a specific period of time, to provide training for job skills or assist support needs until the recipient can become self-supporting. These payments terminate at the date specified in the award, or upon the death of either party, but not necessarily upon remarriage of the recipient spouse. Bridge-the-gap alimony is paid for a short period of time, usually no longer than one year, to allow a spouse to “bridge” the financial transition of going from married to unmarried life. The amount and type of alimony is based upon the demonstrated needs of the recipient spouse and the ability of the paying spouse to provide these funds. The Court must consider length of the marriage, the parties’ standard of living during the marriage, how the property and debts of the marriage has been divided, and other factors all specified by law.
Divorce Settlements
Divorce settlements usually involve financial issues. Some areas that have been highlighted for you to consider in the division of your property and debts are:
1. The marital home and other real property: In Florida, all property acquired during the marriage through marital funds, labor and/or services are the marital assets of both parties. You must make a determination of how you wish to distribute your property and if you desire to continue to reside in the marital residence for a specific period of time after your divorce. In order for one party to maintain the marital residence, you must consider the expenses related to that residence and whether you can afford it with or without support provided by the other spouse.
2. Other Assets: A partial list of assets that you should take into consideration for distribution of marital property is: – Pension – Profit Sharing – Other retirement benefits, IRAs – Stereo, computer, TV, and electronic equipment – The value of a business or professional practice – Household property – Stocks, bonds, portfolios and stock options – Cars, vehicles, boats, recreational vehicles – Cash and respective bank accounts – Mutual funds, savings bonds and other investment items – Collectibles, guns, tools antiques – Any other assets which have a fair market value or a sentimental value – Jewelry – Art work – Any other assets which have a fair market value or a sentimental value
Other Settlement Considerations:
Take into consideration other items of relief you request in preparing for your divorce settlement, such as: a. Health insurance for the spouse and minor children b. Life insurance to secure a child support and/or alimony award c. Disability or accidental insurance to protect the child support and/or alimony award. d. Annuity or trust to secure a settlement.
Liabilities
It is always important to consider any and all debts (liabilities) that have been incurred during your marriage when making an adequate determination of the distribution of your property. The mere fact that a settlement agreement designates that one party should be responsible for a third-party debt may not protect you. It is necessary to discuss with your attorney clauses regarding indemnification, being “held harmless” and the effect of those clauses in your divorce settlement.
Bankruptcy Implications
There are several other issues that are necessary for you to discuss with your attorney regarding your divorce settlement. One is the effect of your spouse filing for personal and/or corporate bankruptcy. It is important for you to determine if you will be financially protected if this occurs.
Tax Implications
In every divorce settlement, it is necessary to obtain the advice of an accountant to become fully aware of the tax implications regarding the distribution of your assets as well as the tax impact of maintenance payments. It is also helpful to seek the advice of a certified financial planner to discuss investment of assets transferred to you.
“Experts” in Divorce Cases
Discuss with your attorney what other professionals (experts) should be utilized in your divorce case. Experts that might be utilized, depending on the facts of your case, can be an accountant or certified financial planner, business valuator, real estate appraiser, antique appraiser, therapist, psychologist, psychiatrist, vocational therapist, or physician.
Counseling
Going though a divorce is a significant and emotional time in your life, and it may be necessary for you and your children to obtain therapeutic counseling before, during and after the divorce process. It is suggested that you utilize someone who has therapeutic training in assisting you and your children in the divorce process other than relying on a friend to be your counselor, since a skilled professional can identify certain emotional problems that one experiences during divorce and can provide immediate intervention which could successfully help you or the children through the entire process.
Conclusion
Going though the divorce process is an extremely emotional experience in your life. Quite often, emotions might cloud judgment due to feelings of anger, hostility, fear and disloyalty that you might experience. Your main objective is to maintain an emotionally healthy state of mind during this process in order to ultimately obtain a successful settlement of your divorce. It is important to protect your minor children during this process and not have them become involved because it will have an extremely overwhelming effect on them, which could create certain destructive behavior in them, both during the process and afterwards. It is important to be aware of your minor children’s feelings during this process and to protect them and provide adequate therapeutic intervention, if necessary, to assist them in dealing with their own feelings while you are going though your divorce. The decisions you make before and during your divorce will have a lasting effect for your future and that of your children.
© 2001 Howard Raab. http://www.divorcesource.com/FL/DS/raab&raab.
Howard Raab is an attorney practicing in law since 1973. He is a certified family mediator, a collaborative attorney, and is a current director of the Collaborative Family Lawyers of South Florida.
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For more information on collaborative law, see the website of Collaborative Family Lawyers of South Florida for information about the local association and its member lawyers in Broward and South Palm Beach County.