CONTESTED VERSUS UNCONTESTED DIVORCE

Faulkner Legal Group, P.A., an Orlando divorce law firm, handles a variety of divorce related issues in the Orlando, Central Florida and surrounding areas as well as the State of Florida as a whole.  A Divorce may be a contested divorce, and uncontested divorce or a simplified divorce.  As an Orlando divorce lawyer, attorney David A. Faulkner represents clients with regard to all three types of divorces:

GENERAL

The official term for divorce in Florida is "dissolution of marriage."  Florida has abolished fault as a ground for divorce. Either spouse can file for the dissolution of marriage. All that has to be proved is that a marriage exists, one party has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken. Fault, however, may be considered under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and determina­tion of parental responsibility.

Each divorce case is unique and therefore results vary. Even though fault is not an issue in granting the dissolution, the division of property and possessions, responsibility for support, and parental responsibility and time-sharing with children may become contested matters.
The divorce process is highly emotional and traumatic for everyone it touches. Marriage partners often do not know their legal rights and obligations. Court clerks and judges can answer some of your basic questions but are prohibited from giving legal advice. Only your lawyer is allowed to do that. Statutory requirements and court rules must be strictly followed or you may lose certain rights forever.

There are two ways of getting a divorce, or dissolution, in Florida. The usual way is called a "Regular Dissolution of Marriage." The second method is the "Simplified Dissolution of Marriage."

REGULAR (CONTESTED) VS. UNCONTESTED DISSOLUTION OF MARRIAGE

The regular dissolution process begins with a petition for dissolution of marriage, filed with the circuit court by the husband or wife, which states that the marriage is ir­retrievably broken and sets out what the person wants from the court. The other spouse must file an answer within 20 days, addressing the matters in the initial petition and raising any additional issues the answering spouse wants the court to address.

Court rules governing divorces require that each party provide certain financial documents and a completed finan­cial affidavit to the other party within 45 days of the service of the petition or before any temporary relief hearing. Failure to provide this information can result in the court dismiss­ing the case or not considering that party's requests. The parties or the court can modify these requirements except for the filing of a financial affidavit, which is mandatory in all cases in which financial relief is sought. A child support guidelines worksheet must also be filed with the court at or before any hearing on child support. This requirement may not be waived by the parties or the court.

Some couples agree on property settlements, parental responsibility, and other post-divorce arrangements before or soon after the original petition is filed. They then enter into a written agreement signed by both parties that is presented to the court. That agreement is often referred to a marital settlement agreement.  Other couples disagree on some issues, work out their differences, and also appear for a final hearing with a suggested settlement which is accepted by the judge. In such uncontested cases, a divorce can become final in a matter of a few weeks.

Mediation is a procedure to assist you and your spouse in working out an arrangement for reaching agreement without a protracted process or a trial. Its purpose is not to save a marriage, but to help divorcing couples reach a solution and arrive at agreeable terms for handling their dissolution. Many counties have media­tion services available. Some counties require couples to attempt mediation before a trial can be set.  Finally, some couples cannot agree on much of anything and a trial-with each side presenting its case-is required. The judge makes the final decision on contested issues.

Reaching a settlement, whether by direct negotiations or mediation, usually requires compromise by both par­ties. Attorneys have learned it is unrealistic to expect both partners to be "happy" with their divorce. The experience can be emotionally devastating. The financial upheaval of supporting two households instead of one causes hard­ship for the entire family. The parties, however, can take steps to make the process easier for themselves and their children.

PROPERTY DIVISION

One of the most difficult and complex areas of divorce is the division of marital assets and liabilities (debts). Marital property may include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bank accounts, personal property, and other things of value. Li­abilities include mortgages, car loans, credit card accounts, and other debts. Generally, any asset or liability acquired during the marriage is considered marital and subject to distribution. The parties may also have assets or liabilities that are considered nonmarital and should be awarded to only one party.

Florida statutes and case law provides for an "equitable distribution" of marital assets and liabilities. In essence, the marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the title is held. This is based on a long list of statutory factors.  Equitable distribution is done first before alimony is considered.

There is no fixed way to determine how you or the court should divide the property, or debts. Factors to be considered by the court include the contribution of each spouse to the marriage; the duration of the marriage; and the economic circumstances of each spouse. If you and your spouse can agree, and if your agreement is reason­able, it will be approved by the court. If you cannot agree, the court will divide the assets and liabilities after a trial.

ALIMONY

After equitable distribution has been made, the court may consider an award of alimony. The court may grant alimony to either the husband or the wife. Rehabilitative alimony may be for a limited period of time to assist in re­developing skills and financial independence. Permanent alimony continues until the receiving spouse's remarriage or the death of either party. Rehabilitative and permanent alimony generally are paid periodically (i.e., monthly or semi-monthly). The court may grant some combination of the two. The court may also order lump-sum alimony where one party pays to the other party a lump-sum payment of money or property. Although adultery does not mandate or bar an award of alimony, the court may consider the circumstances of that adultery in determining an award of alimony.

In awarding alimony, the court considers factors such as the parties' prior standard of living; length of the marriage; age and physical and emotional condition of both spouses; each spouse's financial resources and income-producing capacity of the assets they receive; the time necessary to acquire sufficient education or training to find appropriate employment; and the services rendered in homemaking, child rearing, and education and career building of the other spouse. The court may consider any other factor necessary to do equity and justice between the husband and wife. You have the right to find out about all your spouse's income and assets through the use of discovery procedures.

TAXES

There are very important tax considerations to be aware of in any divorce, including the dependency deduction for children, taxability and deductibility of child support and alimony in their various forms, and effects of property transfers. It is important to find out how these laws affect you before you get divorced. Afterwards, it may be too late to correct mistakes that have been made. This may require the services of an accountant in conjunction with your attorney.

SHARED PARENTAL RESPONSIBILITY FOR CHILDREN

It is the public policy of Florida to ensure each minor child has frequent and continuing contact with both par­ents after the parents have separated or divorced, and to encourage parents to share the rights and responsibilities of child rearing. The father is given the same consideration as the mother in determining parental responsibility and time-sharing regardless of their child's age or sex.

In most cases, parental responsibility for a minor child will be shared by both parents so that each retains full pa­rental rights and responsibilities with respect to their child. This requires both parents to confer so that major deci­sions affecting the welfare of the child will be determined jointly. You and your spouse may agree, or the court may or­der, that one parent have the ultimate responsibility over specific aspects of the child's welfare, such as education, religion, or and medical and dental needs. If the parents have a substantial conflict over any of these areas the court will decide on responsibility for them.

In rare cases, the court can order sole parental respon­sibility and custody to one parent. To do so, the court must determine that shared parental responsibility would be detrimental to the child.

In determining parental responsibility, the court will approve or grant a parenting plan that includes how the parents will share the daily tasks of child rearing, the time-sharing schedule, and a designation of which parent will be responsible for health care, school, and related activities. The plan will also specify any technology that will be used for parent-child communication. The parents may agree on a parenting plan and submit it to the court for approval or the court will determine these issues. The statute includes a list of factors for the court to consider in making these decisions.In considering issues between parents and their chil­dren, the best interest of the child is the primary consider­ation by the courts. Florida law requires both parties to attend a parenting course prior to entering a final divorce.

CHILD SUPPORT

You and your spouse each have a responsibility to sup­port your children in accordance with their needs and your financial abilities. Child support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or payment of medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches age 18, marries, is emancipated, joins the armed forces, or dies.

Some of the issues concerning child support which must be considered include: (a) the amount of support; (b) the method of payment; (c) ways to assure payments are made; (d) when child support may be increased or de­creased; and (e) who claims the dependency deduction for tax purposes. Other questions may need to be answered, depending on the circumstances of your case. Guidelines for the amount of support apply to all cases and are based on the income of the parents and the number of children with adjustments for substantial overnight contact.

If you have a problem getting support payments from your spouse or former spouse, or the time-sharing plan is not being followed, you should bring this matter to the attention of the court. It is not legal to withhold visitation or child support payments because either parent fails to pay court ordered child support or violates the time-sharing schedule in the parenting plan.

APPEALS

If you feel the judge's decision was incorrect, you may appeal that decision, provided that certain procedural steps are taken. An appellate court does not, however, often re­verse a trial judge's decision because the judge has broad discretion in divorce cases. Just because you do not like the judge's decision is not a reason for an appeal. If the trial judge makes an error of law, or has abused his discretion, the decision may be reversed. Because an appeal must be filed within 30 days of rendition of the final judgment, you need to address this issue quickly with your attorney.

WHERE TO GET LEGAL HELP?

If you have a Florida contested, uncontested or simplified dissolution of marriage and need legal assistance, then contact Faulkner Legal Group, P.A. so that Orlando Divorce lawyer David A. Faulkner can inform you of your legal rights.  Call today.