Divorce Law

Divorce is the process by which a marriage is legally dissolved. In Florida, divorce is granted on one of two grounds: either the marriage is irretrievably broken, or one of the parties has become mentally incapacitated. If the reason for your divorce is mental capacity, be advised that you must wait 3 years from the date your spouse is declared by a court to be mentally incapacitated before you can file for divorce. Of course, most people get divorced because their marriage cannot be saved. They have tried marriage counseling, they have tried various ways of solving their problems, and at least one of the spouses has come to the conclusion that the marriage is over. Florida is a no-fault divorce state. What this means to you is that it frankly just doesn’t matter why you’re getting divorced. Who did what to whom is not going to be a factor in your divorce unless there is child neglect or abuse involved or if a spouse is spending marital assets on an adulterous affair. The former may impact child custody and time-sharing, and the latter may impact the equitable distribution of your financial assets and liabilities.

Divorce is incredibly emotional and often draining. It can be completely debilitating at times. And yet, during this process, you will be called upon to make numerous major life decisions that will likely impact the rest of your life. That is probably the single best reason to hire an attorney to assist you in this process, preferably in a way that will get you through this ordeal with as little waste of your financial resources as possible. But our goal is to do a great deal more than just give you the necessary legal advice to get you the best possible outcome. We try our best to give you the kind of practical guidance you need to navigate the emotional roller coaster to which this time in your life can be aptly compared. One of our favorite divorce books is Crazy Time by Abigail Trafford. For a list of other recommended books for parents and for children, click Resources.

The Initial Stages:

Many divorces are settled before court papers are ever filed. They can be resolved by both parties working together with a single neutral mediator, by both parties having their own attorneys who settle the case through direct settlement negotiations or through a relatively new process called Collaborative Divorce. Collaborative Divorce consists of both parties having their own attorneys, who work together in a cooperative way to develop the financial picture of the parties, agreeing on experts if needed, and generally working together to reach a fair and equitable settlement for the parties. For more information about collaborative law, click the Collaborative Family Law tab.

But assuming that pre-filing settlement isn’t possible, the first step in your divorce is to prepare the initial papers. If you are the spouse filing for divorce, that will include a Petition for Dissolution. There are certain required elements that must be included in the Petition, but it is not the place to tell the story of why you are getting divorced. Along with the Petition will be a document that details certain information about your children (if applicable), a document with required social security information (that is sealed and not available to public view), and your financial affidavit.

After the initial pleadings have been filed, the next step is complying with the rule that requires mandatory financial disclosure. The parties, either separately or working in conjunction with one another, must produce all of their mutual financial documentation. You will receive a document checklist outlining each and every item covered by this rule. All of the assets and liabilities should be determined at the time you are filling out your financial affidavit, and copies of the actual statements, accounts and records are produced to the other side.

Settlement, Mediation and Collaborative Divorce:

It is always better to settle your differences amicably than it is to fight it out in court. Litigation is expensive, stressful, time-consuming and ultimately, a gamble. The most cost-effective use of my time is in preparing your case for an amicable resolution. You can help minimize your legal costs by spending the extra time necessary to gather and organize all of your financial records, make 2 sets of copies of everything , and do your research so that you can fill out your financial affidavit accurately. It is the most important document we create, and it needs to be completely accurate! 

All family cases must at least attempt mediation at some point before they can go before a Judge for a final hearing, or trial, of the matter. Mediation is where most divorces are settled. You and your attorney, your spouse and his/her lawyer, and a neutral mediator (a professional experienced in family law) spend what is usually the better part of a day negotiating the details of your divorce, drawing up a settlement agreement (often after several drafts and many revisions as the parties and the lawyers read through it) and signing it that same day.

Before we attend mediation, we will spend an hour or two preparing together. We will discuss various scenarios, and you will leave that preparation meeting with a clear picture of what to expect, what strategies we plan to follow, what your bottom line is, and where you’re willing to be flexible. Settlement is all about compromise. There is a saying that goes: “a good settlement is one where both parties are equally unhappy”. Be prepared to compromise. Rest assured, the worst settlement is still better than the best trial. Although there will often be talk in terms of what a Judge might do, our goal is always to avoid having to see the Judge for anything but an uncontested final hearing.

Uncontested Final Hearing:

Once the agreement is signed, it is binding upon both parties. A few days later the attorney who will be going to court for the uncontested final hearing (usually the Petitioner) sets the hearing and sends a proposed final judgment and any accompanying orders (like income deduction orders, discussed later) to the other side for approval. The final hearing usually takes place within a couple of weeks. In Broward County, all uncontested final hearings are heard by the presiding judge between 8:45 and 9:45 am Monday - Thursday upon 5 business days notice. Palm Beach County is similar to Broward.

Maintaining Status Quo while divorce is pending:

Just because you are getting divorced doesn’t mean that your responsibilities to one another are over. You both have an obligation to protect your marital assets. You can’t go on a spending spree or start hiding marital assets. It won’t work. There’s always a paper trail, and we have yet to meet a client who was smarter at hiding assets than any half-decent private investigator (or intrepid spouse) couldn’t find using the internet and some good old-fashioned detective work. Transfers to family members are automatically suspicious. Don’t bother. Be honest. You’ll get through the whole process much more easily. You cannot cancel your spouse’s insurance, stop paying ‘their share’ of the bills when you’ve always been the primary breadwinner, and otherwise change the way things had been prior to the filing for divorce. A good rule of thumb is if it seems wrong it probably is wrong. If you wouldn’t want it done to you, don’t do it to your spouse. This is not a time for one-upmanship or spite.

Alimony:

Everyone wants to know about alimony. Are they entitled to it? Are they going to have to pay it? There are several different kinds of alimony, but they all have some things in common. In almost every instance, in order to qualify for an alimony award, the court must find that one party has a need for it and the other party has the ability to pay it.

Permanent, periodic alimony is the first thing people think of when they think of alimony. These are the monthly payments that end only when the receiving spouse remarries, or one of the parties dies. Permanent alimony is awarded in cases marriages 17 years or longer because there is a presumption in favor of permanent alimony if there is a need and ability to pay. Permanent alimony is generally tax deductible to the paying spouse (deducted from your gross income before taxes) and it is taxable to the receiving spouse (added to your gross income before taxes).

Temporary Alimony (or alimony pendente lite) is paid from the time of separation until the time of the Final Judgment. It is not tax-deductible to the paying spouse and not taxable to the receiving spouse. An award of temporary alimony does not necessarily mean that there will be a permanent award of alimony, but it is an indication that such an award is likely. Temporary alimony is not sought in every case, as in when the parties are living together and have no temporary support issues requiring court intervention.

Bridge-the-Gap Alimony may be awarded for 2 years after the divorce to give the receiving spouse a chance to get back on their financial feet. It is often awarded in cases where the marriage was less than 7 years' duration, but there is still need and an ability to pay.

Rehabilitative Alimony is designed to help the receiving spouse acquire the education and job skills needed to prepare him or her for entering the work force or getting a better job to support themselves. The receiving spouse must have a rehabilitation plan that outlines the methods and objectives and details the expenses and time expected to complete the rehabilitation plan. this kind of alimony may be awarded in addition to other forms of alimony, since rehabilitative alimony is for a particular purpose.

Durational alimony is likely to be awarded in cases of marriages between 7 and 17 years, again assuming that one spouse has the need and the other spouse has the ability to pay. The duration of the award varies on a case-by-case basis, but certainly for no more years than the parties were actually married, and likely for fewer years than the duration of the marriage.

Lump Sum Alimony is alimony that is sometimes used instead of permanent, durational or bridge-the-gap alimony where special circumstances exist that makes periodic payments unfeasible, and where there is an asset that would take the place of such periodic payments.

Equitable Distribution:

Florida is an equitable distribution state. What that means to you is that all marital assets and all marital liabilities will be “equitably” divided. Equitable means fair - it does NOT mean 50/50, although that is the starting point. Any asset acquired and any liability incurred during the marriage through the use of marital funds or marital labor is a marital asset or marital liability. Savings, pensions, 401(k)s, IRAs, vacation homes, stocks and bonds, mutual funds, airline miles, credit card accounts, mortgages, automobiles and auto loans, etc. are all examples of marital assets and liabilities.

Real estate can’t be divided. It must either be sold and the proceeds divided, or one spouse has to buy out the other spouse’s interest. In some cases where there are minor children, an award of exclusive use and possession of the marital home until the youngest child reaches emancipation (18 or graduates from high school under most circumstances) is appropriate. That would permit the parent who spends the majority of the time with the children to remain in the marital home without having to sell it or buy out the other spouse’s interest. Rather, the house would only be sold and the proceeds divided after the youngest child graduates from high school.

Non-marital property is property that was acquired outside the marriage; either before the parties were married, by inheritance, or by exclusion in a pre-nuptial agreement. However, in order to remain non-marital property, such assets must never have been commingled with other, marital assets. Putting the stocks and bonds you inherited from your parents into an account with your spouse’s name on it and adding money you earned working at your job into the account, and putting your spouse’s stock she got from her last job in that same account will render the asset marital. If you actively control and trade an account the increased value can be considered marital. If you use marital funds (like money out of your paycheck) to put a garage and a swimming pool into your inherited vacation home, the enhanced value will be considered a marital asset. Putting your spouse’s name on the title of that pre-marital condo 5 years ago when things were good is considered an inter-spousal gift, and it’s no longer non-marital.

Child Support:

Calculating Child Support in Florida was made easy to perform (if not easy to understand in all its logic) by the Florida Legislature. We have a statute (§61.30) that outlines child support for us. Child support is determined by adding together your net income and your spouse’s net income, and depending on how many children you have, the legislature has already figured out for you how much you should spend to raise your children, given your net available income. Each spouse contributes a certain percentage to that “income pie”. Multiply your percentage by the amount the legislature has set as child support, and that tells you how much child support will be. Note: in alimony cases, alimony must be figured before child support, since the alimony affects both parties’ incomes, which must be determined before calculating child support.

In addition to baseline child support, there are calculations for health insurance and day care expense, if applicable. Those amounts are added to the base child support obligation or allocated between the parties. Each party is credited with the amounts that they pay on behalf of the other party, since only one parent pays for health insurance and for day care, although both are responsible for their percentage. Uncovered medical, dental, psychological and orthodontic bills and co-pays are also paid on the same percentage basis. Special needs children are subject to additional consideration.

Time-Sharing:

Although there are some common methods of dividing the time-sharing of the children, each case is unique. Depending on your particular circumstances, the time-sharing schedule will include a standard weekly or bi-weekly schedule, a holiday-sharing schedule, and a vacation/summer/winter break schedule. Florida no longer uses the terms custody and visitation. Both parents, unless one is absolutely unfit, will have “shared parental responsibility”, which means that you will be required to consult with one another on the major decisions affecting your children, including where they go to school, health matters, extra-curricular activities, and other similar important matters. Day to day decisions are made by the parent with whom the child is with at the moment.

Income Deduction Orders and Child Support Enforcement:

When the parent that will be paying an alimony or child support obligation is employed by a third party and has a regular income, the parent receiving the support is entitled to ask for an Income Deduction Order, which the employer then is required to follow, and deduct the support from the paying parent’s paycheck and send it to the receiving parent. In Broward County, the Support Depository will keep records for the parties, and the Department of Revenue/Attorney General's Office will enforce the child support obligation at no charge to the receiving parent when the paying parent becomes delinquent in his/her obligation. In all counties in Florida, the State Disbursement Unit collects the child support and alimony and gives it to the receiving parent. People often prefer private attorneys to enforce support obligations because private attorneys move the case forward much more quickly. In many cases the courts award attorney fees to the party that had to take their spouse to court to compel the payments.

Domestic Violence and ‘Restraining Orders’:

We have represented hundreds of clients over the years who have been victims of domestic violence. We will ask questions during your initial interview that are designed to help us determine whether you are or have been a victim of domestic violence. In some cases, we will urge clients to obtain what is commonly called a Restraining Order (or Injunction for Protection Against Domestic Violence, as it is formally known). If you have been the victim of domestic violence, it is essential that you disclose this at our first meeting. No one deserves to be the victim of domestic violence. If you believe you are in need of such a restraining order, advise the office immediately after you’ve contacted the police or gone to the Emergency Room, if need be. It is not necessary for you to have an attorney to go with you to obtain the temporary injunction (which expires in 15 days), as there will be no hearing. The Judge will decide whether you’ve met the requirements from the Petition for Injunction that you will fill out at the Courthouse. Meeting with us in advance of filing the Petition for Temporary Injunction will ensure that your facts are sufficient to meet the threshold requirements to obtain the Injunction, and that your Petition is worded correctly to give you the best possible chance of success. However, you may want representation when you appear at the hearing that the court will schedule to determine whether the temporary injunction should be made permanent. If your spouse has filed for a restraining order against you, it is essential that you have representation at the hearing. We have represented hundreds of persons served with domestic violence injunctions. However, this office does not represent defendants in criminal domestic violence cases.

Modification:

Child Support is always subject to later modification by the Court, if there is a permanent, involuntary, substantial and unforeseen change of circumstances to justify it. If your income goes down through no fault of your own, and the change is not temporary, the court can modify your child support. By the same token, if the receiving parent’s needs change, or she loses her job, or the paying parent is earning more money that at the time of the original divorce, the court can modify the child support obligation upward. Permanent alimony is modifiable under similar circumstances to child support. Certain other alimony obligations may not be modifiable depending on the particular case and the wording of your original Marital Settlement Agreement or Final Judgment.

Guardians-Ad-Litem and Child Custody Evaluations:

In some cases, there are serious child-related issues. If the parties are in total disagreement over the children, a Guardian Ad Litem (GAL) may be appropriate. A GAL is an attorney who represents the interests of the children in Court. Children generally are never made a part of divorce proceedings. Judges do not normally allow children to testify. But when appropriate, the Judge will agree to the appointment of a GAL to represent the children’s interests. The Court will sometimes appoint an expert, often a psychologist, to perform a child custody evaluation to assist the court in determining which parent would better serve as the children’s primary caregiver when the parties cannot agree. The Guardian or Psychologist will then make a Report to the Judge and their testimony is evaluated as is the testimony of any other expert witness.

Other Experts:

Occasionally, a forensic accountant might be needed if we have to evaluate a party’s business, or examine a financial transaction that cannot be easily understood by the parties and their attorneys. If one party is claiming an inability to work or a limited ability to work, and the parties aren’t in agreement as to the validity of such a limitation, an expert who performs an occupational study of that spouse may be needed to determine that party’s true capacity to earn a living. Appraisers may be used to value assets like homes, antiques, collectibles, etc.

Your Role:

Fact gathering: You are the primary fact finder in your family law case. Your role will be to provide all the information and evidence possible to prove the issues in your case. You should keep a client notebook that includes a divorce journal. This is an excellent tool that we urge you to make constant use of, writing down everything that happens relating to your divorce. If kept as a diary, such a notebook can become invaluable, admissible evidence to show the court what happened, keeping in mind that it is kept by you and therefore overwhelmingly self-serving.

Cooperation: When we ask you for records, we need your complete, thorough and timely cooperation. We want you to have the most effective, most efficient representation possible. Adherence to deadlines is essential so that you don’t incur additional legal fees that are often the result of failure to comply with the Court’s deadlines. Checking your email daily is critical as it is the primary method of communicating with you.

Courtesy: Please try and be on time for appointments. Everyone’s time is valuable, and when you’re scheduled for an appointment in the office, that time has generally been set aside for you. If you know you’re going to be late, the earlier that you call and let us know, the easier it is for us to make more productive use of our time, benefiting not only you but all of our clients. If you change phone numbers, email or postal addresses, let us know immediately. Please be courteous to the office personnel. They are valuable members of your legal team. We understand well how stressed you are urging this tumultuous time. We try not to take it personally. Bur our entire staff is dedicated to providing the highest level of service possible, and we are always striving to improve. If we fall short of that goal, please point it out to Ms. Brodzki or Ms. Jacobs and we will endeavor to correct the problem.

Honesty: If you lie to your lawyer, your lawyer can’t really help you. You enjoy a privilege of complete confidentiality with your attorney, and with your attorney’s office staff. (Note: If you bring others with you to your office appointments, please be advised that actually invalidates the attorney-client privilege, and if for some reason that person became hostile towards you, he/she could freely go and tell the other side everything that was said in that conference). We can best help you if we have all the facts, especially the unpleasant ones. We will do whatever we can to minimize the impact of “negative” facts. But we cannot have a successful strategy to deal with a situation of which we aren’t aware. There is nothing worse than being surprised in a hearing with facts that a client neglected to tell us.

Our Role:

As your lawyers, our role is to guide you through this process with compassion, expertise and efficiency. We will provide balance and objectivity to assist you in making difficult decisions. We will make recommendations to you designed to put you in the best possible position to achieve the result that you want. We do everything possible in our office to keep our clients informed at all times as to the progress of their cases. While we may not always be available to take your call or answer your email immediately, we try to return all telephone calls and emails within 24 hours. Together, we will develop a strategy that will maximize your chances of getting the outcome that you desire. Our office staff is there to assist you and answer administrative questions. Our administrative assistants and paralegals cannot give you advice or answer legal questions, but they will faithfully relay your messages and give you as much information as they can.

In the End:

We practice family law because we truly love helping people. We are meeting at one of the most difficult times in your life, and we have the privilege of being your closest advisers assisting you through that process. In most cases, we are rewarded with seeing our clients better off at the end of this journey than they were when they first walked into our office. Once in awhile we get to make a real difference in someone’s life. And that makes it all worthwhile.

We want you to have the best possible outcome for your particular set of circumstances. Our goal is to bring you through this ordeal with your dignity intact. We will work hard for you. In return, we ask that you honor your financial obligation to us. We have a long list of satisfied clients who are our largest source of referrals. Chances are you were referred to this office by someone who was either a client, friend of a client, or even someone whose ex we represented! In the end, we hope that we will have earned your enthusiastic recommendation.

 

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