The divorce process in Florida can be very stressful. Knowing the steps ahead of time and the different processes in place may reduce the stress of the unknown. Depending on the case, the facts and the issues in the process may vary. The information below may help you understand what will happen. It can help you prepare for any legal fatigue and challenges.
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Knowing when it’s time
When you reach the end of your road, and you know that your marriage cannot be salvaged, it is time to file for divorce. Many people are in a state of confusion or even denial, but most individuals know when the time is right. If you have children, even though you are divorcing your spouse you cannot completely disconnect from them. You will always be parents of the same child or children, and this can be a challenge.
Delaying the inevitable is not advisable. The stress that delaying the divorce process can cause you, your children and your family is considerable. Believe it or not, you will find peace once you know that your case is moving forward and you hire an experienced family attorney. At Schwam-Wilcox & Associates, we can help you navigate the dissolution process effectively and efficiently and give you the support you need to help you through this difficult, stressful and challenging time of your life.
DIY Dissolution - when you need to know the law
A potential client recently asked a colleague of mine, “Why should I hire an attorney and not just do my divorce myself?” Forms are available online at the Florida Courts website, coupled with the self-help center in Orange County. This caused this person to question whether it was necessary to retain the services of a lawyer in her Florida divorce. This question is being asked more frequently, and I understand why.
Sometimes it garners a tolerable result, but many times after the final judgment is entered, the DIY parties call me to help fix all the items that went wrong and all the issues that were not addressed in their divorce case. In certain circumstances, I can help. However, there is often nothing I can do because, in reality, not all issues are modifiable and the argument of “buyer’s remorse” is not enough when entering into an agreement that you believe later to be a “bad bargain”.
Is the judge on my side?
Many DIY parties believe the Judge will review the whole Agreement, let them know if anything is amiss, and then make the appropriate corrections. While it is true that Judges review Agreements and Parenting Plans, the Judge is not your advocate. The Judge will not question why you agreed to certain provisions or question why you accepted certain terms. A Judge will only reject agreements that do not follow the requirements for a Parenting Plan, i.e. waiving child support is usually never accepted by a court.
Problems with DIY
Here are a few examples of problems attorneys encounter with DIY divorces:
- Lack of specificity in the Marital Settlement Agreement. For example, you may agree that your spouse is supposed to pay you a certain amount, give you a certain asset, or take a certain action. However, your agreement is weak if you don’t provide for particulars such as when, where, and how, and the subsequent repercussions for failing to perform. It is challenging to enforce an agreement that has not provided specifics like a timeline and the manner in which a party is supposed to act.
- Agreement to Sign a Quit Claim Deed. Many parties don’t realize that signing a Quit Claim deed on real property does not absolve them of financial liability to the lender. This is the promissory note you sign with the bank when you purchase a home. When a person whose name is on the Note signs a Quit Claim deed without a prior action being taken, such as a refinance of the mortgage in the sole name of the spouse who will ultimately own the house, you have given up any interest in the property; however, you are still saddled with the financial responsibility of paying your share of the mortgage.
- Not understanding how to divide a benefit fund or account. Some benefit funds, such as a 401(k) or the defined benefit pension, are ERISA-protected. For these accounts to be divided without certain taxes being assessed, a separate document called a Qualified Domestic Relations Order (“QDRO”) must be filed in the case. Other benefit funds are similar to those that are ERISA-protected, since they are not “qualified” by definition, they require a document similar to a QDRO that contains other language required by the plan administrator. When done correctly, you can save on penalties and taxes when splitting these types of accounts.
Furthermore, other accounts merely require the non-participant spouse to open a separate account for the fund transfer and proof of the settlement agreement and final judgment. If you have not provided for the proper division mechanism in your agreement, ensuring that you receive your fair share, then the marital assets’ equitable distribution may not be easy.
How to file for divorce
If you are just beginning or are in the midst of your Florida divorce, you are probably feeling overwhelmed. Please know that your circumstances are not unique, so you are not alone. Most people in your situation feel as overwhelmed as you do.
Not only are you experiencing a significant life change, you are required to engage in some challenging work when you file for divorce. Most clients do not know this at first, they generally assume that their attorney is tasked with everything that must be done to complete the divorce. While your attorney does their part to move the case forward, there are tasks for which only you are responsible.
Getting the Divorce Process Started
To get the process started, one party (Petitioner) will file the Petition and necessary documents to get the case filed with the Clerk of Court. The Respondent will be served with the documents. This will start the 20-day deadline to file and get the “Answer” to the Petition. The Respondent may choose to file a Counter-Petition.
The wish list
A divorce petition should be viewed in much the same way because in all actuality it is a wish list. The Petitioner is advising the court of all the items he/she seeks out of the case and since they are filing the petition, the requested relief sought is almost always the best case scenario to serve his/her interests.
A Judge in a divorce case cannot make a ruling regarding items that are not mentioned in the parties’ pleadings and this fact is why people often take a global approach when drafting their divorce petitions. This is why your spouse has requested all of the items from your marriage and why you feel as if he/she wants you to part with everything as you read the divorce petition.
The reality is that many divorce cases are resolved by settlement agreements and these agreements rarely award one party all the requested items from his/her divorce petition.
The Counterpetition
Discovery
Collaborative Law Approach
The divorce process in Florida does not have to be an adversarial process. It can be more like a business meeting with the assistance of professionals. The Collaborative process has been around since the 1980s. This is a great option for divorcing parties to learn how to problem solve, co-parent and resolve their disputes amicably without the need of court.
In Florida, both parties would hire a coach (attorney) to facilitate the process and provide them with legal advice.
Each collaborative case has a team of professionals. At a minimum, mental health and financial neutrals are added to the coaches. The mental health professional will typically run the meetings and take notes. The Financial neutral will collect all financial data to assist the clients with their equitable distribution, alimony, child support, and attorney fee claims. The mental health professional will assist the parties with a parenting plan if children are involved.
A Collaborative divorce can avoid many behavioral pitfalls within a litigated dissolution. It is a team approach, more like a board meeting than a court hearing. Collaborative divorce teaches you the co-parenting tools needed to continue to make better decisions for yourself and your family. It is a calmer approach and keeps everyone moving forward and on the same page. If you have children, learning to continue co-parenting is imperative. This shows them that they have two parents that love them and can be in the same place at the same time.
Children do not want to grow up having to choose between their parents, consciously or subconsciously. The stress of a dissolution/divorce can cause parents to act in ways that are not typical of their character. In most cases, litigation is not a good process that would help you to continue a good co-parenting relationship with your soon-to-be former partner or spouse.
For parties without children, especially if they desire to keep their assets and liabilities confidential, this process is for you. Nothing is filed in court that discloses your assets and liabilities like in the traditional litigation model. No judge is involved, making the process less stressful for the parties. Maintaining a good parenting relationship, privacy of personal issues and most times less time and money spent are all benefits of the collaborative process.
What is Gray Divorce?
I have had many people ask me about “gray divorce” and how that differs from a regular or typical divorce. It does not differ much except that the focus is more on Equitable Distribution versus child issues. Gray Divorce is the term used for a divorce that involves an older couple, a couple who may be retired, an empty nester, or a divorce after 25+ years of marriage.
Gray divorces tend to be very emotional. Two lives that have been intertwined (for decades in some cases) will need to be divided, which is stressful and complicated as they have worked together to obtain many assets, have adult children that want to be involved or sometimes one spouse may have cognitive issues that make the dissolution process difficult or not possible.
In many ways, gray divorce is less challenging. Typically, there is no need to battle over child custody and visitation. Most gray divorces (adults who are typically over 65 and do not have minor children) have complex asset cases and usually seek efficient resolution of their cases.
Financial, assets, and liabilities
You and your spouse may have full retirement accounts, 401(k)s, or pensions from which you are currently drawing. Those will have to be divided. Your house may already be paid off, and you may even have real estate in other states. Perhaps it is a second home or rental property elsewhere. Whatever the case may be, it is subject to division and jurisdictional issues may arise.
Research your representation
Having an attorney you can trust, rely on, and communicate with is key to reducing the stress of a divorce for your entire family. Getting divorced, especially if there are children, should be more like untying a knot versus severing the rope. Whether going through litigation or a collaborative process, using an attorney with experience, knowledge, and training in both models is ideal.
The attorney you hire can make this process much easier and more successful, so it is essential to do your homework. If you would like more information about a Florida Divorce, please contact the law firm of Schwam-Wilcox & Associates.
