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Florida Uncontested & Contested Divorce
It is normal of course to feel upset by the prospect of a divorce. In Florida you can basically get a divorce by asking, ie you do not have to prove much of anything except that one of the parties must reside 6 months in the state before the filing of papers. Also, the marriage must be "irretrievably broken". (a Judge can order counseling before granting the dissolution of marriage but that is rare). Most people want to get through the process with as little aggravation as possible, especially where children are involved. A responsible lawyer will indicate to you that you will save a lot of time, money, and aggravation by working out as many issues as possible with your spouse before going to Court.
The less the lawyer has to fight over in Court, the less money their services will cost you, and both parties need to understand this. An uncontested divorce means that the parties agree on all issues such as division of property and debts, and alimony, child support and visitation if applicable. Each party must make full financial disclosure (ie divulge their finances) to the other. For an uncontested divorce the attorney draws up a Marital Settlement Agreement and the parties go to Court for a very short final hearing. (it is not always necessary for both parties to attend the final uncontested divorce hearing) The cost should be minimal and the case can usually be wrapped up within 30 days of the time that the parties come to an agreement.
Unfortunately, emotions often get in the way and it is not possible to calmly discuss matters with your spouse. Or, you may decide after attempting to settle things that you must go to Court to get what you want. If things cannot be worked out, whether one issue or many issues are in dispute, the Judge will decide on how things are going to be. Perhaps the most important question a lawyer can ask at the initial consultation is whether there are any safety concerns on the part of any party. Unfortunately, some individuals react violently when advised that a divorce is being contemplated.
Perhaps violence or an unhealthy psychological atmosphere for the children already exists. If so, you should speak with your attorney about the possibility of having your spouse Court ordered out of the house and away from you. While this is drastic, it is sometimes necessary when a spouse is out of control. (If you leave your house you are not legally abandoning anything or giving up any rights by doing this. You should however discuss this course of action with your attorney prior to leaving). Family or psychological counseling for one or all parties, including children, may be indicated to deal with this type of problem, or simply with the stress of divorce and the lifestyle changes that will occur.
While every case is unique, there are issues that are common to many divorces. If the parties own a home, real estate or other assets that were acquired during the marriage it is generally considered marital property and often divided equally. If property was owned by one party before the marriage, that property may be considered non marital such that the Court may not award a portion of it to the other spouse. But there are exceptions to this, such as where the property, money for example, is put into a joint account during the marriage (ie commingled) and used for marital purposes. Another exception is where the value of the property grows during the marriage because of the efforts of the other spouse. (IE investment expertise, etc).
Also, one party may have no claim to property given exclusively to the other during the marriage, by a relative in a will for example. Basically though, property acquired during the marriage (including assets in pension/401K/IRA type programs) should be considered as marital property subject in general to a 50/50 division between the parties. Courts also have the authority to assign responsibility for debts acquired during the marriage, and they will take into account the earnings and assets of each party when doing so.
Where the value of an item is in dispute, expert appraisers may be needed to give opinions about value. This is especially true where there is a family business. Under certain circumstances it will be considered a marital asset, a value will be assigned, and a spouse may receive a portion of the value. It should also be noted that Courts will generally not force the sale of a house where a spouse and minor children are living there.
Once the parties separate they may live their lives as they choose as long as they do not interfere with the other. (Generally speaking infidelity during the course of the marriage can be taken into account by a Judge if there is evidence that the offending party spent marital funds on the third party). After separation parties are free to have a relationship with someone else if they desire.
When the Florida court decides on the issue of child custody and visitation, the gender of the parents is not considered. For example, a mother will not automatically receive custody of the children just because she is the mother. The judge must only consider what is in the best interests of the child. Florida divorce law requires Shared Parental Responsibility. This means that even though the child may live with one parent, the other parent has equal say in raising the child. Each party must be consulted on the education, health, religion, and discipline of the child. And, if the parties cannot agree on these important issues, the judge will make the decisions.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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