There are few things more traumatic in life than divorce, and no one emerges from it unscathed. Knowing one's options can greatly improve the possibility of getting through divorce in one piece, and a quick overview of the essential facts of the divorce process in Florida's courts may be helpful to those facing a divorce.



The Kids Come First. Always remember this. The focus of every judge is protecting the children and providing for their support.

Florida is a No-Fault Divorce State. The only fact that the court needs to hear to grant a divorce is that the marriage is irretrievably broken. The cause of the divorce, or who is at fault, is not usually important from a legal standpoint. There are exceptions, of course, such as misconduct that directly impacts the children, dissipation of marital assets, and alimony cases.

Both Parties Get Half. Florida courts start with the presumption that both parties will walk away with one half of the marital assets and debts. The key word here is “marital”. One's inheritance, a spouse's vacation home, a father’s watch or mother’s engagement ring, may all be non-marital. However, if a non-marital asset is titled in the names of both spouses it loses its non-marital status. A pension is marital to the extent it was contributed to during the marriage.

The Kids Have to Live Somewhere. This is always the most difficult part of any divorce, and often the most misunderstood. Florida's courts use the term “residential responsibility” to describe what most people think of as “custody”. The parent with whom the children live for more than 50% of the time is the primary residential parent, but the court will order shared residential responsibility in most cases. Essentially, this means that regardless of where the children live, both parents must be involved in all major decisions relating to the children. In most situations parental contact with the children will fall into one of three categories:

- A standard "primary-secondary residential parent" arrangement where the children live with one parent during the week and visit with the other parent on weekends, one night during the week, and half of allholidays.

- A "substantial contact" arrangement where the children spend more than 40% of all nights with the non-residential parent.

- A "rotating custody" arrangement, which many refer to as “split custody". This is where the children spend an equal amount of time in both homes.

Child Support. Child support is calculated based upon a statutory formula. There are several variables that come into play. Support is typically based upon the net income of the parties, an amount calculated by deducting taxes and health care expenses from gross wages. Other expenses are generally not deducted. It is possible to reduce child support based upon a substantial contact or rotating custody schedule.

Cheaper to Keep Her (or Him). Spousal support, or alimony, is one of the most difficult issues in a divorce because there are no set statutory guidelines for alimony. The general rule of thumb is that a marriage must be considered a "long term" marriage before alimony may be awarded. Anything less than a ten year marriage is considered to be a short term marriage. Ten to fifteen years is a gray area, where alimony may or may not be awarded, and after fifteen years there is a presumption the alimony should be awarded. After examining the length of the marriage the court will next look at the need for alimony and the ability to pay. In a marriage where both spouses have comparable incomes it is highly unlikely that alimony will be awarded. Conversely, if there is a large disparity in income there is a high likelihood of alimony being awarded. In a long term marriage alimony is usually permanent, i.e. until the death or re-marriage of the receiving party. However, Florida law has recently changed to allow the elimination of alimony when one's spouse lives with, but does not marry another.

Mediation is Mandatory. Mediation is a process whereby the parties meet with a neutral third party and attempt to reach an agreement. All divorce cases in Orange County are mediated before the court will finalize the divorce. Mediation, if attempted in good faith, is the best chance that the parties have to achieve a working solution to their problems. And it is the only opportunity that those with the most knowledge of their problems have to forge their own solutions.

When in Doubt, Retain an Attorney. Every divorce is different, just as every marriage is different. The advice of an experienced divorce attorney is one's best avenue for avoiding costly mistakes, or overlooking crucial issues, in this traumatic process our society calls "divorce".

 

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