FREQUENTLY ASKED QUESTIONS

I NEED TO CONSULT WITH AN ATTORNEY, WHERE DO I BEGIN?
You have decided that a divorce is in your families’ best interests. What next? You need to interview and hire an attorney. This can be a daunting task, as there are many attorneys who practice in the area of marital and family law. Ask your trusted family members, friends or colleagues for a referral if they had a good experience during their divorce. If you do not have anyone who can refer to you, reaching out to your local county bar association’s lawyer referral service can help you get started.

After you have a few names, call the offices of each and schedule a consultation. It is best to meet your prospective attorney in person. However, since Covid-19 ushered in the online/virtual meeting process, most attorneys are happy to schedule a consultation via Zoom or other virtual medium such as Skype or Microsoft Teams if you do not want to meet in person.

As you schedule your consultation, think about whether during your initial call to the office you were greeted warmly, did you receive a call back quickly, and how were you treated on the phone? Answers to these questions will begin to tell you how you will be treated if you hire that firm.

Before your consultation, you should familiarize yourself with your total family income, and your assets and liabilities. To do this, look at your last 3 years of tax returns, bank account statements and credit card statements. This should give you a good idea of what your marital estate could be.

Think about any questions you might have before you show up for your consultation. If you have a child with special needs, be prepared to discuss that with the attorney during the consultation.

Divorce is confusing. Every question you have is a good question, so don’t be afraid to ask what you want to know. If you have many, write a list so you don’t forget them, and bring that list with you to your consultation.

During your consultation, evaluate whether the attorney listened to you. Did you build a rapport with him/her? Did you start to feel relieved as your questions were answered? If your answer is yes, then the attorney is probably a good fit for you.
I HAVE HIRED AN ATTORNEY. WHAT’S NEXT?
Congratulations. You can now let your attorney guide you through the process of gathering documents for the discovery phase while you assist him/her with the filing of your divorce action. Your attorney will give you a list of documents that you need to return to him/her and will ask you questions about your desired outcome and the specific facts of your case.

If your spouse hired an attorney, your attorney can reach out to his/her attorney to discuss the next steps of the case and to begin moving the process forward.

After your case is filed, it will go through several phases. The first phase is the discovery phase. The attorneys will gather documents from both you and your spouse such as tax returns, bank and financial account statements, documents reflecting ownership of homes, autos, vessels, etc., and your liabilities. If you have unique issues, your attorney might ask you for documents in connection with those issues. Those documents will be exchanged so each of you and the attorneys will understand the financial aspects of the case, what needs to be divided, and how assets or liabilities can be divided. You and your attorney should discuss the documents and your assets and liabilities as you enter the next phase.

The next phase is to attend mediation. Every divorce case in Florida must go through the mediation process. So, what is mediation? When you and your spouse attend mediation, you will be attending with your attorneys who will advise you through the process. A mediator will be hired to facilitate the settlement process. Mediation can take as little as 2 hours or as long as several days, depending on the issues in your case. If a resolution is reached, then an agreement may be drawn up and signed by both you and your spouse. The agreement may also be drawn up by your attorney after the mediation is concluded and signed at a later date. Both situations are normal. After you attend mediation, you case will enter the next phase.

If you resolved your matter in mediation, then the next phase is to attend your uncontested final hearing wherein the Court will grant your divorce and sign the final order. This hearing is typically 5 minutes long.

If you were unable to reach a resolution in mediation, then your attorney may need to conduct additional discovery or hire other professionals such as a forensic accountant to assist in preparing for hearings or trial. Additional discovery may be conducted such as a deposition. If your spouse schedules your deposition, you will be asked questions and your answers will be taken down by a court reporter. Typically, the deposition questions center around the unresolved issues in your case. Your attorney will prepare you for your deposition.

Once your attorney is prepared, a final hearing or trial will be sought. A trial is an expensive and stressful process and should be a last resort. During trial, your attorney and your spouse’s attorney will ask questions of witnesses including you, and present evidence to a judge. At the conclusion of the trial, the judge will announce a ruling.

The final phase of your divorce after the judge has announced the ruling or you attended the short uncontested hearing, will be to enter any orders required to effectuate your settlement or Court ruling. For example, if you or your spouse participates in a 401(k) program through your employment, a portion of that account may be awarded to your spouse. A court order may be needed to transfer the funds in accordance with your settlement or court ruling. Your attorney will assist you in having these orders prepared, signed by the judge and implemented.
WHAT OTHER PROFESSIONALS WILL I NEED DURING MY DIVORCE?
If you or your spouse are high wage earners, if you or your spouse own a business or if you or your spouse own a lot of assets, you will likely need to hire a forensic accountant. A forensic account is a CPA who specializes in assisting attorneys with the divorce process. A forensic accountant can determine someone’s income for purposes of calculating alimony or child support, locate and identify all assets and liabilities of the marriage, conduct an accounting or tracing of monies spent or removed from marital accounts, and prepare a lifestyle analysis to assist the Court in awarding alimony.

You may also need to hire a real property appraiser to appraise the value of all real properties owned by you and/or your spouse.

If you and your spouse or splitting retirement assets, you may need to hire a QDRO specialist. The QDRO specialist will prepare the Court order in compliance with the retirement plan specification that will allow the funds to be transferred pursuant to your divorce.

If you and your spouse are locked in a high-conflict case involving your children, a guardian-ad-litem may be appointed to assist the Court in determining issues such as parental responsibility and timesharing.

If you or your spouse has a substance abuse or mental health challenge, a forensic psychologist or psychiatrist may be enlisted to help determine and fix those issues so your children can continue enjoying a close relationship with both parents.
HOW LONG CAN I EXPECT THE DIVORCE PROCESS TO TAKE?
This is a great question, and unfortunately one in which there is no simple answer. If you and your spouse have already agreed to a settlement before you hire an attorney, it can take as little as 3 months. If you and your spouse cannot agree on anything, it can take as long as a few years. On average, a divorce takes about a year. Not because there is so much work to do on your case (that might be an issue) but because when you are scheduling hearings or mediations, the schedule of the judge, the mediator, each attorney, and any professional witnesses must be taken into account. Your attorney might be available next week for a hearing, but the judge might not be able to give you a hearing date for 3 months. Then, after the judge is available, your spouse’s attorney may have planned a family vacation and will be away on the date the judge is available which could push that date out another 4-6 weeks.

Divorces are stressful. Whether it lasts 3 months or 3 years, you should prepare yourself by having a good support network of family and friends around you. They can help you keep your sanity. If you are having a hard time accepting the divorce, seeking the assistance of a counselor or therapist could help you work through your resistance to a place where you find peace and acceptance.

Use this time to think about what you want your post-divorce life to look like. Want to be more active? Start going to that gym you joined a few years ago. Want to downsize? Start looking at houses, condos and townhomes to determine what might be a good fit for your post-divorce life and budget. Need a career change? Find a good life coach to help you discover your hidden talents and pair them with all of your strengths to find a rewarding career.
HELP! MY SPOUSE WANTS TO RELOCATE WITH THE CHILDREN OUT OF THE AREA. WHAT CAN I DO?
Your spouse or ex-spouse is not automatically entitled to move out of the area with your children. A petition for relocation must be filed. If you don’t agree, you can object. After your objection is filed, the judge will set a hearing or trial and make a ruling.

If your spouse moves with the children without telling you, you can have your children returned to the area.

You will want to retain the services of your attorney to help you through this matter. It is a highly specialized are of law and one in which you should not represent yourself.
MY EX-SPOUSE JUST REMARRIED. IS THERE ANYTHING I SHOULD DO?
If you have not met your ex’s new spouse, reach out and schedule a coffee or lunch date. Your children will be interacting with this person often, and you want to know this person and develop a good relationship with him/her.

You may be experiencing fears that this new person will try to take your place in your children’s lives. This is not often the case. You could not be replaced in the eyes of your children. Take a deep breath and think about what is important about this new relationship.

Do you want to demonstrate to your children that you and your ex have adopted a united front? Do you want your children to feel comfortable speaking about that new person to or in front of you? If your answer is yes to either of these questions, then you should only speak positively or neutrally about the new step-parent and support your children’s efforts in the new relationship.

If you suspect that there is an issue with the new spouse, reach out to your ex and ask to schedule a time to talk or meet so you can discuss your concerns. If after reaching out to your ex, you are still concerned, speak to your attorney about whether there is anything you can do to address your concerns.
MY DIVORCE IS OVER, WHAT DO I NEED TO DO NEXT?
If you have received your final order and you changed your name, you need to now change your social security card and driver’s license. Once you have received your new social security card and driver’s license with your new or restored name, you can change the name on your bank and other financial accounts and credit cards.

If you have retirement assets, you will want to change the beneficiary of that account if you previously listed your spouse. If your children are still under the age of 18, and you want them to be entitled to your accounts upon your untimely death, designate a trusted friend or family member to receive the funds on behalf of your children.

If you and your spouse had joint bank and financial accounts, you will want to close them or have a name removed.

If you made a will during your marriage, you should revise that will to take into account your divorce and perhaps the change in your assets. You should also revoke other documents such as a power of attorney, and re-do your living will and designation of health care surrogate forms to designate someone you trust to make these decisions for you if you become incapacitated.
WHAT DOES IT MEAN TO HAVE A “CONTESTED” DIVORCE?
A contested divorce means different things to different people. Unless you and your spouse agree on every issue in your divorce or break-up, you could have a “contested” divorce. Generally, a contested divorce means you and your spouse have not discussed and agreed to any settlement, requiring the attorneys to conduct discovery and facilitate the settlement process.

It can be described as a divorce where you and your spouse cannot agree on the terms required to finalize your proceedings. For example, you may disagree about the division of property, valuation of assets, or who should assume marital liabilities. You might also disagree on child custody issues such as how much time the children should spend with your spouse, or who should make educational or medical decisions for your children. You could even disagree about alimony and support issues or who ultimately should pay the attorney’s fees and costs of your divorce.

From the Court’s perspective, a contested final hearing is one in which evidence will be presented in the form of documents, exhibits and witness testimony, and one in which the Court will be making a decision about who gets what and if you have children, when they will spend time with each parent.

Many cases start out “contested” but either resolve over time, or resolve in connection with the mediation process. Very few cases actually remain “contested” and proceed to trial, as it is very expensive to litigate the entire divorce process.
WHAT IS DISCOVERY?
During a contested divorce, there is a discovery period where both you and your spouse must provide certain documents and information that are relevant to the issues of your divorce to the other party. For example, you are required by law to provide tax returns, bank statements for all financial accounts, even those you do not share with your spouse, statements reflecting the value of retirement assets, and statements which reflect all liabilities you are obligated to repay. You may also be asked to provide additional statements and information not required by Florida law, but that are requested by the opposing attorney. You will also be required to prepare and file a financial affidavit. The financial affidavit is a sworn statement which details your monthly income and expenses, and your assets and liabilities. Your divorce attorney will assist you in preparing your financial affidavit and in gathering all other statements and information you are required to provide.

If some of the contested issues pertain to your children such as a substance abuse problem with your spouse, or if there is a history of domestic violence in your marriage, that information can be sought by the attorneys and will become evidence that will be presented to the judge.

Your divorce may require other professionals such as forensic accountants to prepare a lifestyle analysis in connection with an alimony claim, or a business valuator to value you or your spouse’s interest in a family business. You could also require other professionals in connection with your contested child issues such as a psychologist, a guardian ad litem or social investigator. All of these professionals help not only you and your spouse but also the Court in determining how your divorce will resolve.

Discovery is the process that gathers all of the evidence needed to either facilitate a resolution or prepare for trial. Discovery can last for as little as a few months or for as long as 1 year. Each marriage is different, so each discovery phase is different.

You will work closely with your attorney during the discovery phase of your divorce and once all of the discovery is concluded, you should have a very clear picture of your marital estate, what issues need to be resolved, and what you can anticipate you will receive once the divorce is concluded.
WHAT IS MEDIATION?
Mediation is a process where you and your spouse along with your attorneys and with the assistance of a mediator and any other professionals that have been utilized in your divorce, will attempt to resolve most, if not all issues. Mediation can often take several hours and can even take multiple days depending on the complexity of your divorce. Most cases resolve in mediation. In mediation, you have the chance to resolve your issues in creative and helpful ways that a Court cannot. In mediation, you and your spouse have the opportunity to split your assets and create a timesharing schedule that works for your family and that addresses your individual concerns. One spouse may want the house while the other wants the 401(k). You can agree to this asset split in mediation, whereas the Court will not order an asset split in this way.

While in mediation, you, your attorney and any professionals you have hired will sit with you in one room. Your spouse, his/her attorney and professionals hired will sit in another room. The mediator will shuttle back and forth between the two rooms brokering a deal. At times, the mediator may ask the attorneys to meet together to discuss a point of law or to understand a particular issue. You do not have to sit in the same room as your spouse during this process unless you and your spouse agree.

If your case resolves in mediation, an agreement is written and signed by you and your spouse. That agreement is presented to the Court and ratified by the Court at your uncontested final hearing.

The mediator does not make any decisions in your matter. One huge misconception about mediation is that the mediator can act like a judge and order or tell you or your spouse how to resolve your matter or what actions to take or refrain from taking. Mediators are not judges. They cannot require you or your spouse to do anything. Their job in your matter is to help you make the best decisions about your case and to resolve it without the necessity of costly court intervention by negotiating an agreement that is fair to both you and your spouse. The hallmark of a good settlement is one in which neither spouse is happy, but one in which you both can live with.
WHAT IS TRIAL?
A trial is a hearing in front of a judge where the judge will make decisions and enter orders regarding your divorce. When you decide to go to trial, you will no longer make any decisions about your divorce and you are putting those decisions in the hands of a stranger. This is a very expensive and stressful experience. The judge, a third party, who does not know you, your children or your family, and who may be having a bad day, makes a decision about all of the contested issues of your divorce. Once the judge has made his/her decision, a Final Judgment of Dissolution of Marriage will be prepared by either your attorney or your spouse’s attorney which reflects the judge’s ruling with the judge’s findings. Once the judge signs the Final Judgment of Dissolution of Marriage is signed by the judge, you are divorced.

Trials are usually set for half or full days at a time, and if your matter requires more than one (1) day, your attorney and the judge will attempt to set the trial days back-to-back. This is not always possible and your divorce trial could end up taking place over several months because the judge’s calendar is full.
ARE THERE DIFFERENT TYPES OF DIVORCES IN FLORIDA?
There are two (2) types of divorces in Florida. A dissolution of marriage, and a simplified dissolution of marriage.

A dissolution of marriage is the type of lawsuit filed in the circuit court of Florida wherein you seek to be restored to the status of being single and you ask the court to equitably divide your assets and liabilities and to determine a parenting plan and timesharing schedule for your minor children. You may elect to file a dissolution of marriage action if you and your spouse cannot agree upon the division of assets and liabilities or you have minor children.

A simplified dissolution of marriage is one in which you and your spouse have no minor children together and own no property together. Don’t let the name fool you. You and your spouse may own many assets and parcels of real property together and still elect to file a simplified dissolution of marriage because you resolve all divorce matters before filing a divorce lawsuit. If you have minor children, you cannot file a simplified dissolution of marriage. The court is required to make determinations about your children taking into consideration their best interests. There is no mechanism in a simplified dissolution of marriage for child issues to be resolved.

If your spouse has tried to hide or dissipate assets, you will likely need to file a dissolution of marriage action. Having your action filed with the court and having a judge looking over everyone’s shoulder will likely help you obtain documents and information you might need from your spouse that may not be forthcoming. Further, if you are prone to procrastination, there are deadlines that everyone must comply with and you are required to take actions to move your case forward.

The advantages of a simplified dissolution of marriage are numerous. First and foremost, you retain confidentiality regarding your financial condition because you are not required to conduct discovery in the same manner as a dissolution of marriage. Second, you and your spouse are electing to resolve your divorce issues prior to filing a lawsuit. That means both of you are committed to being honest with one another and to preserving your assets rather than litigating your issues and spending your assets on expensive litigation. Third, you are not letting the attorneys or the Court drive your divorce case. You and your spouse are in charge. Lastly, you can fast track your divorce because the judge does not need to review your settlement to determine whether any agreements you have made with your spouse are in the best interests of the minor children.
ARE THERE “GROUNDS” FOR A DIVORCE IN FLORIDA?
Fault based grounds for divorce are no longer required. Therefore, if either spouse wants out of the marriage, the State of Florida will grant the divorce. The legal grounds stated in a petition for divorce require that the marriage is “irretrievably broken”. In fact, you will need to testify at your final hearing that your marriage is irretrievably broken and that there is nothing the judge can order to put it back together.

If your spouse had an extra-marital affair, you do not need to prove that fact to a judge in order to get a divorce. The judge is aware that extra-marital affairs are common and do not need or want to hear the details. In fact, the judge will hear the details of infidelity for only a few select issues –namely, dissipation of marital assets. Under that context, the judge will only hear the financial details of where the money was spent, but not the details of the affair.

The Florida Statutes on divorce say “you must be a resident of the State of Florida for at least 6 months prior to filing your dissolution of marriage action.”. This is not a waiting period, this is simply the time it takes before acquiring residency in Florida. Most couples have resided in Florida for the majority of their marriage. However, sometimes, couples just move to Florida and separate, or one spouse relocates to Florida then decides to seek a divorce. If this is your situation, you need to discuss with your attorney whether Florida has jurisdiction to distribute your assets and liabilities. For example, if you moved from Chicago to Florida, and your spouse remained in Chicago and never lived in Florida, Florida may not have jurisdiction over your spouse to give you a divorce.

People often ask if they can have a legal separation. There is no legal separation in Florida. If you are concerned about being financially tied to your spouse, but not ready for a divorce, you can file your petition for dissolution of marriage, and serve your spouse, then you can abate the proceedings while you attempt marital counseling. You do not have to file a petition to attend marriage counseling. The effect of filing the petition indicates to the court that you should not be financially responsible to or for your spouse’s actions as of the date that you filed your petition. That date of filing also establishes a bright line rule for determining what assets are marital and non-marital for purposes of dividing them during a divorce.
Call Now Button