menu

Blog Article

Divorce Overview by Iris M. Bass, Esq.

What is involved in getting a divorce? What must be done in order to get from being married to being unmarried? Since Florida is a “no fault” state, doesn’t that make divorce simpler?

We know to get married there are certain requirements that must be met – such as a marriage license – someone, either religious or secular, with authority to sign the marriage license, must do so. Beyond that, how elaborate and costly or simple and inexpensive the parties arrange for this process is unique specifically to them. Weddings can occur at the Courthouse, via notary in a quiet room or be as elaborate and expensive as those celebrity marriages we constantly read about.

With divorce, there are also certain requirements that must be met – and a document called the final judgment must be signed by the judge to complete the divorce (in Florida, we call it “dissolution” of marriage but this article will refer to it in the more common term, divorce). How easy or simple, on one hand – or how complex or expensive depends on how the parties address this goal: to get divorced.

The parties have to, in effect, untangle all those areas of their lives that have become intertwined – some financial, some emotional – and some which cannot be untangled such as – and most importantly – their children.

To get divorced, marital assets and debts must be divided. But there’s the question: what assets are truly assets of the marriage? Are engagement rings? Gifts to each other during the marriage? Money inherited by the Wife from her distant cousin who passed away and left her $10,000? What about the coin collection the Husband had from when he was a boy?

While questions like that are not simply answered, by far more complex and emotionally charged are those involving the children. Who will the children live with after the divorce? Who will make the decisions about where they go to school, what activities they will participate in, whether they need braces (and who pays), how often they are with the other parent? What about vacations from school – who will the kids live with – holidays like Thanksgiving, Christmas, Passover or Easter – and their birthdays and the parents’ birthdays – and their annual trip to Colorado to ski – or summer trip to Europe – or summer camp up north?

Usually each parent wants to keep the child in the same arrangement as before, during the marriage – every day the child is home with them – every vacation the child is with them, etc. But that is not possible with two households. Sometimes one parent does not want the other parent involved just because he or she is angry at their spouse – they try to punish or manipulate the other parent in the process of getting divorced without really considering what is better for the child. Sometimes each parent accuses the other of pretty horrendous things in an effort to prove that the accusing parent is the better parent and, therefore, the child should live with him or her and not the other spouse.

The bottom line is that the Florida Courts generally will give both parents shared responsibility, where each parent has a say in decisions about the child. Timesharing varies with each case. Parents can divide the child’s time pretty much as they wish as long as both agree …. and parents can be pretty creative. But the Courts generally don’t get very creative – in Palm Beach County there is a standard arrangement if the parents don’t agree – in Broward, there is none, but judges often order timesharing every other weekend and may also order one night during the week to the parent with whom the child does not reside.

The next question is how child support is determined. Often the parents have an incorrect impression that child support is based on the actual expenses related to the child – it is not – child support is based on the incomes of the parents – and it is done by a very specific formula. Mandated by law and strictly enforced, there is a chart that specifies how much money is to be paid in support based on the net incomes of the parents. In addition, child care and health insurance are added to the mix. Thus, if the child lives with the Mom, the Dad pays the Mom child support based on their incomes, NOT upon how much Mom spends on the child each month. Further, the specific formula also takes into account the amount of time each parent spends with the child, if it meets a certain threshold of overnights.

Another trigger issue that comes into play is alimony. Many of those who, at the time of the marriage, wanted their spouse to stay home with the kids and not continue to work, now believe it very unfair that they should possibly have to pay spousal support (alimony). After all, if they are no longer married, why should they now still be obligated. The spouse who stayed at home, however, believes that since she (usually the Wife) did that as her contribution to the marriage and gave up her ability to pursue an income-producing career track, she should have the benefit of some assistance after the marriage, either long term or short term.

The Courts, by and large, recognize these issues and the cases regarding alimony describe various alimony options: permanent periodic, rehabilitative, and bridge-the-gap. Permanent periodic alimony is usually awarded after a long term marriage and involves the income-producing spouse paying the former spouse alimony until one of them dies, or the recipient spouse remarries. Rehabilitative alimony is for a specific period of time and provides the recipient spouse with money while she goes back to school or obtains training to get back on a career track and be self-supporting. Bridge-the-Gap is the new kid on the alimony block and is for a very short time, to assist a former spouse to just get over the financial hump going from married to single again. But the courts have to justify whatever its decisions are or face the possibility that there will be an appeal which may overturn its decision. Parties themselves can come to agreements about alimony and be more creative in doing so.

So, in effect, the undoing of a marriage carries tremendous emotional overtones relating to each part of the process. Grief, fear, and anger are a huge part of a typical divorce scenario, yet those important emotions are not part the focus of the legal process which is primarily focused on economics and objective criteria as enumerated in statutes and interpreted by previous cases.

When folks get married, there’s usually tension due to the planning, the guest list, choosing the location and various options. But these tensions are working toward a positive goal. With divorce, there is no concept of “happily every after,” and all the tension and concerns just continue to build toward the final judgment of dissolution of marriage. Sadly, often it doesn’t end there, as parties often continue to litigate long after the dissolution judgment is entered.

Divorcing couples who can resolve their issues through alternative dispute methods such as negotiation, mediation or collaborative law rather than litigation, often feel more in control of the outcome and the expense and, therefore, may be able to move into the next step of his or her life with a more comfortable mindset.

Iris Bass is an attorney practicing in South Florida since 1984. She is a certified family mediator, a collaborative attorney, and is current President of the Collaborative Family Lawyers of South Florida.

——————————————————————————–

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.

26 Oct, 15

 

 

related posts