Divorce is a major life transition that affects every family member and brings about the restructuring of all significant life functions. Many people going through divorce find this transition the most difficult change of their adult lives. The impact of divorce is momentous because divorce affects us psychologically, socially, financially, logistically, physically, and legally. This means that in addition to your legal divorce, you will experience readjustment and shifts in each of these other aspects of your life.
The courts only usher you through the legal aspect of your divorce. When the other aspects of life remain unaddressed during divorce they can cloud reality and foster unrealistic expectations about what the courts can do. To better understand what can and cannot happen in court remember that:
- Court TV shows are for entertainment and do not portray the realities and complexities of the system, especially the complicated rules of evidence.
- The family court system should not be used as a tool for revenge or punishment and this tactic can easily backfire.
- Often those who want to provide you with support and protection become emotionally charged themselves and their misguided efforts serve to fuel the fire instead.
- Sometimes in a divorce case, even if you win in the courtroom, you lose in the court of life. The drain and anger of a high conflict divorce can be emotionally and financially devastating and make you unattractive to a healthier potential mate.
- Every case is different. Even cases that seem similar will play out differently. So do not depend on legal advice from your friends and relatives.
Sometimes, partners reach a mutual decision to divorce. And, sometimes one partner makes this decision unilaterally. In Florida when one spouse says it’s over, it is. There may be hoops to jump through but if someone wants out of a marriage (and tells the court that the marriage is irretrievably broken) the court will dissolve the marriage. However, before a couple can be divorced parenting and financial decisions have to be made and paperwork must be prepared and filed with the court.
Sometimes a divorcing person thinks that the only way to get in front of a judge for a divorce is to hire an attorney. But, hiring an attorney is just one option. Additionally, you can choose to fill-in and file your paperwork on your own. Or, you and your spouse can hire a mediator who can help you reach an agreement and prepare you for an uncontested divorce.
Option #1 – The Traditional/Attorney-driven Divorce.
Hiring an attorney is your best option if you need legal protection from your spouse or if your spouse has already retained a lawyer. If you are unaware of what the marital assets are or how much your spouse earns a divorce attorney can investigate all of these details. Additionally, if you feel intimidated as the result of domestic violence or coercion, negotiating without a divorce lawyer is a bad idea. You can find a lawyer through the Florida Bar’s Lawyer Referral Service - http://www.floridabar.org/tfb/TFBConsum.nsf/48E76203493B82AD852567090070C9B9/EC2322E512B83D1E85256B2F006CC812?OpenDocument
Option #2 - DIY Divorce.
If your situation is uncomplicated, you may want to fill in all of the forms you will need for your divorce and file them with the court on your own. All of the forms are available on-line, for free, at the Florida Supreme Court’s website - http://www.flcourts.org/gen_public/family/forms_rules/index.shtml. (Start by finding the petition that works for you (Form 12.901). The instructions for Form 12.901 will outline which other forms you will need. Additionally, your spouse will need an answer (Form 12.903). Alternatively, you can buy form packets at your courthouse. This packet will include all of the forms you need. And, many local courthouses provide self-help assistance – this link will direct you to your local self-help center http://www.flcourts.org/gen_public/family/self_help/map.shtml.
Option#3 - Pro-se/Pre-suit Mediation.
The third option involves the hiring of a mediator - before attorneys are retained or any documents are filed. This option is often chosen by couples that want to save time/money and side-step the negative nature of an attorney-driven divorce but still believe that they need the assistance of a knowledgeable professional. This is called Pro-se/Pre-suit Divorce Mediation. (Pro-se means unrepresented (or without lawyers) and Pre-suit means before a law suit has been filed.) Mediators that offer Pro-se/Pre-suit mediation are trained to guide divorcing couples towards agreement, an uncontested divorce, and a friendlier future. At A Friendly Divorce (www.AFriendlyDivorce.com) we provide Pro-se/Pre-suit divorce mediation and document preparation services. (Other mediators in the state provide similar services.)
In Florida 95% of all divorcing couples use mediation and avoid going to trial. If you and your spouse hire attorneys, after your attorneys have completed the discovery process, you will likely resolve your case in mediation with a mediator selected by your attorneys. If you choose a DIY divorce and file your paperwork on your own the court will typically send you to a court-annexed mediation program where you can resolve any remaining issues. And, finally, if you choose the option of Pro-Se/Pre-Suit Mediation you will engage in the mediation process with the mediator you select, focusing on the goal of creating a Marital Settlement Agreement (MSA) and Parenting Plan, if there are minor children).
Typically, the mediation process takes between two and ten hours, depending on the issues and the personalities involved. Many divorces are mediated in a single session and sometimes the process is spread out over time. The end result of the mediation process is the creation of a customized Mediated Marital Settlement Agreement. This agreement will cover future parenting plans (if there are minor children) and how finances will be handled during and after the divorce.
WHAT YOU NEED TO KNOW.
Before you get to mediation there are some things you will want to know. Here is a list of the 21 most important things to know before you move forward with your divorce.
1. Chapter 61.
Chapter 61 is the section of the Florida statutes that governs divorce in Florida. You can read Chapter 61 here http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/0061.html.
2. Residency Requirement.
To obtain a divorce (also called a dissolution of marriage) in Florida, you or your spouse must have resided in Florida for at least six months before the filing of the petition.
3. Legal Separation.
We do not have legal separation status in Florida. And, there is no separation requirement prior to divorce.
4. Your MSA.
The desired outcome of the mediation process is a complete Marital Settlement Agreement (MSA). Your MSA will act as a guide after your divorce. Your signed agreement will be presented to the court for inclusion in the final judgment dissolving your marriage. Typically, five specific topics are discussed during divorce mediation and then incorporated into the Marital Settlement Agreement. These topics are often presented and explained using the acronym P.E.A.C.E.: Parenting, Equitable Distribution, Alimony, Child Support, and Everything Else. In the Everything Else section you and your spouse may include anything else that you agree is relevant including how you will handle the dependency exemption for your children, legal expenses, the purchase of life insurance, or visits with the family dog.
5. Parental Responsibility.
In Florida we no longer use the terms “child custody,” “residential parent,” or “visitation.” Instead, Chapter 61 provides for “shared parental responsibility” a term that refers to a court-ordered co-parent relationship. Under shared parental responsibility both parents retain full parental rights and responsibilities and they are ordered to confer and jointly make all major decisions affecting the welfare of their child/ren. (However, parents may decide that one parent will be responsible for certain aspects of the child’s life, such as education, and the other parent will be in charge of religion or health, etc.) Parents sharing parental responsibility are both entitled to access their child’s medical, dental, and school records and information.
The Florida legislature and judiciary support the concept of shared parental responsibility. However, if the parents agree otherwise or if the court finds that shared parental responsibility would be detrimental to a child/ren, sole parental responsibility could be ordered. That would mean that one of the parents has unilateral decision-making authority for the child/ren.
6. Parenting Plan.
If you have minor children, you and your spouse will create a Parenting Plan that will outline the details of how you will make decisions that affect your children as well as how you will divide time with and responsibility for your children. By designing a customized parenting plan you and your co-parent will have a guide and a back-up plan in case there is a disagreement in the future. Of course, as long as you and your spouse agree you can do almost anything that works for you both but in the event of a future disagreement your Parenting Plan will determine your actions. You can find the Parenting Plan (Form 12.995) which has been approved by the Florida Supreme Court at http://www.flcourts.org/gen_public/family/forms_rules/index.shtml.
7. Time-Sharing/Parenting Schedule.
There is no one-size-fits-all answer for time-sharing. Each family should consider their unique circumstances and create a plan that works best for them, keeping in mind that the plan that works today may not be best as circumstances change and the children grow and mature.
In order to prevent future disputes and scheduling conflicts your parenting plan should address regular time-sharing, holiday time-sharing, and vacation time-sharing. Make every effort to use precise start and end times in your time-sharing plan so that you can avoid future disputes (Example – mother’s time ends at school drop off or 8am if not in school and father’s time begins at school drop off or 8am if not in school. This way you will be clear regarding who will take off from work to care for a sick child.) (Example – it’s not enough to say weekend. Instead clearly spell out when a weekend begins and when it ends.)
Some parents choose a rotating schedule that has their child living equal times (or close to equal) with each parent. This may mean that the child rotates between the parents every 2-3 days, every week, two weeks, month, quarter, or year. Alternatively, you may also choose a schedule that has the child living with one parent during the week and the other parent on weekends and school vacations. Often parents take turns, alternating weekends and holidays (earmarking holidays for odd years (2011, 2013) and even years (2012, 2014). In order to help you arrive at the most appropriate time-sharing schedule for your family, your mediator will encourage you to consider your child’s needs, your work schedules, and your family’s special circumstances.
8. Geographic Relocation.
Geographic relocation with minor children is a common and difficult to resolve issue in divorce and post-judgment cases. When one parent wants to relocate with the children, the other parent often turns to the courts in an attempt to stop the move.
Section 61.13001 of the Florida Statutes addresses relocation. If this is an issue in your divorce you may want to read this section (see #1, above). Then, you and your spouse should discuss relocation during mediation in order to decide which restrictions should apply in your case. Skilled mediators are often able to help families find creative solutions to their relocation dilemmas so that parents can avoid legal battles.
9. Mandatory Parenting Class.
If you have minor children, before your divorce is final, you will need to attend a mandatory 4-hour Parents of Divorce class. The list of the court approved providers can be found at http://www.myfloridafamilies.com/docs/ParentEducationFamilyStabilizationCourseProvidersList.pdf. Scroll down to find the approved providers in your judicial circuit. Depending on the rules in your circuit you may be able to complete the class on-line. It is wise to talk to more than one provider before you select a class. Discuss (with your spouse and the provider) if it is better to take the class alone or with your spouse.
10. Parenting Coordination
is a process where a neutral professional – the Parenting Coordinator (PC) - provides a child-focused dispute resolution process to assist parents in creating or implementing a parenting plan and/or resolving their parenting disputes. The PC provides education, makes recommendations, and, with the prior approval of the parents and the court, makes limited decisions. Typically parenting coordination is used for high-conflict couples, when on-going issues continue to erupt subsequent to the divorce.
11. Credit Report.
Each of us is entitled to a free annual credit report from each of the three nationwide consumer reporting agencies, Equifax, Experian, and TransUnion. If you are facing divorce, now is a good time to run a credit report and gather information about your creditors and the status of your debts. It’s important to know if a creditor is calling a debt yours or your spouse’s. You will want to share this information with your attorney, your mediator, and your spouse. Often couples forget that when it comes to debts, in addition to their finding common ground, they need their creditors to go along with the plan. Typically, creditors will not care what has been agreed upon or what the court has ordered in a divorce case, they will pursue the person whose social security number is securing the debt.
Before you decide how to divide your assets and debts it is a good idea to consult with your accountant so that you and your spouse are aware of future tax liabilities and other related concerns.
13. Equitable distribution.
Equitable distribution is the fair, but not necessarily equal, division of all marital property, assets, and debts. This complex concept is discussed in Section 61.075 of the Florida Statutes (see #1, above).
Typically, one spouse is more knowledgeable about family finances. If you are the spouse that is less informed, now is your chance to get caught up - fast. In order to negotiate and participate meaningfully in the mediation process both spouses must be aware of what was owned and owed prior to the marriage, what has been acquired since the marriage, and what is currently owned and owed. 6
You and your spouse will decide how to divide or distribute all of your assets and debts so that you can achieve a financial divorce. Your assets are your home, retirement accounts, bank accounts, investment accounts, possessions, businesses, insurance policies, cars, etc. Your liabilities will include debts – such as your student loans, credit card debts, car loans, mortgage debt, etc. If you and your spouse cannot agree as to how to divide your assets and debts the Judge will do this for you based on the criteria in 61.075 (see #1, above).
14. Financial Disclosure.
Before your divorce is final you will need to fill out a Family Law Financial Affidavit which will outline the financial details of your marriage. You can download this form from the Florida Supreme Court’s website in both PDF and RDF formats – http://www.flcourts.org/gen_public/family/forms_rules/index.shtml. There are two Family Law Financial Affidavits. The short form 12.902(b) should be used if your annual gross income is under $50,000 and the long form, Family Law Financial Affidavit 12.902(c) should be used if your annual gross income is $50,000 or more.
15. Spousal Support/Alimony.
Alimony is money or other property paid in fulfillment of a duty to support one’s spouse after a separation or divorce. (Note - the IRS has its own rules for determining how much of an alimony payment is tax deductible.)
A divorcing couple may agree to an alimony plan or a judge may order alimony. There are many factors to consider when deciding the question of alimony but the key factor will be the receiver’s need and the payor’s ability to pay.
Section 61.08 of the Florida Statutes (see #1, above) (a) allows for an award of more than one type of alimony; (b) classifies short-term (up to 7 years), moderate-term (7 to 17 years), and long-term marriages (over 17 years), and (c) describes the factors a judge should consider in awarding alimony. These factors include:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, including the non-marital and the marital assets and liabilities distributed to each.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage – including services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children they have in common. 7
(h) The tax treatment and consequences to both parties of any alimony award.
(i) All sources of income available to either party, including income available to either party through investments.
(j) Any other factor necessary to do equity and justice between the parties.
Once alimony has been ordered, it may (or may not) be modifiable later on. When discussing alimony, divorcing couples should discuss whether or not this alimony will be modifiable as to the duration (length of time) and/or as to the amount, and what circumstances would warrant a change.
Commonly, there are six forms of alimony; however, a couple can create an alimony arrangement that does not fit any of these specifics.
- Temporary Alimony is used during the process of divorce so that the receiving spouse can pay his/her expenses until the final dissolution.
- Rehabilitative Alimony is used during a specific time period so that the receiving spouse can obtain training, education, or job skills and so become self-supporting. Rehabilitative alimony may be awarded so that the receiving spouse can establish the capacity for self-support through either the redevelopment of previous skills or credentials; or the acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials. Before a judge awards rehabilitative alimony there must be a specific and defined rehabilitative plan. An award of rehabilitative alimony may be modified or terminated upon a substantial change in circumstances, noncompliance with the rehabilitative plan, or completion of the rehabilitative plan.
- Bridge-the-Gap Alimony is used for a limited period in order to assist the receiving spouse with legitimate, identifiable short term needs as s/he makes the transition from being married to being single. (For instance a 63 year old woman who will be eligible for medicare when she turns 65 may need bridge-the-gap alimony to pay her health insurance premiums during the next two years.) An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony, is non-modifiable as to both the amount and duration, and may not exceed 2 years.
- Permanent Periodic Alimony is used to provide for the needs and necessities of life as they were established during the marriage for the spouse who lacks the financial ability to meet his or her life needs and necessities following the dissolution of the marriage. Permanent alimony may be awarded following a marriage of long duration, following a marriage of moderate duration if such an award is appropriate upon consideration of certain factors (see (a) through (j) above), or following a marriage of short duration if there are exceptional circumstances. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance with Section 61.14 (see #1, above).
- Lump Sum Alimony is used to give the receiving spouse a one-time payment.
- Durational Alimony is used to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration. Durational alimony is awarded when permanent periodic alimony is inappropriate. An award of durational alimony terminates upon the death of either party or the remarriage of the receiving party. The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances. However, the length of an award of durational alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.
16. Child Support.
The principles in Section 61.29 (see #1, above) of the Florida Statutes establish the public policy of the State of Florida in the creation of the child support guidelines. These principles are:
- Each parent has a fundamental obligation to support his or her minor or legally dependent child.
- The guidelines schedule is based on the parent’s combined net income estimated to have been allocated to the child as if the parents and children were living in an intact household.
- The guidelines encourage fair and efficient settlement of support issues between parents and minimizes the need for litigation.
Child support is calculated using a prescribed formula (outlined in Section 61.30 of the Florida Statutes - see #1, above – follow the steps using a calculator and the guidelines chart.) that uses the child support guidelines chart, consideration of additional economic needs of the children, the parents’ net incomes, the cost of your children’s health insurance, the cost of work related child-care, and the number of overnights the child/ren spend with each parent. In order to correctly calculate child support you should remember the following:
- A parents’ net incomes is calculated by subtracting the amount the parent pays in (i) Federal, FICA and Medicare taxes; (ii) mandatory retirement contributions, (iii) mandatory union dues; (iv) health insurance coverage – for the parent only; (v) court ordered child support from prior cases; and (vi) alimony, from the parent’s gross income.
- If you have no income the court may decide to impute income to you (give you an estimated income). And, the court may also impute income for perks, cash sales and/or tips. Section 61.30(2) of the Florida Statutes (see #1, above) addresses imputed income for the purposes of calculating child support.
- The substantial shared parenting method is used when the child(ren) spend at least 20% (73 or more overnights per year) of their overnights with each parent. A parent’s failure to regularly exercise the court-ordered or agreed time-sharing schedule, not caused by the other parent, which resulted in the adjustment of the amount of time sharing is deemed a substantial change of circumstances for purposes of modifying the child support award. And, such a modification may be retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule.
- The court may adjust or modify child support at any point in time. So as circumstances change either parent may return to court and request a modification of child support. The criteria the court uses to make this decision are outlined in Florida Statute 61.30(11) (see #1, above.)
- Child support terminates on a child’s 18th birthday unless the child is between the ages of 18 and 19, still in high school and performing in good faith with a reasonable expectation of graduation before the age of 19. (Section 743.07(2) of the Florida Statutes.)
The Florida State Disbursement Unit is the agency that provides the central address for collection and disbursement of child support payments. This agency is used for cases where child support is paid directly and cases where child support is paid through an income deduction order (IDO). (An IDO is a court order that orders the obligor/payor’s employer to pay child support on his/her behalf.)
17. Paternity – Fatherhood.
Any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings to determine the paternity of the child when paternity has not been established by law or otherwise. In any proceeding to establish paternity, the court may require that the child, mother, and alleged father(s) submit to scientific tests to show a probability of paternity.
18. Special Situations.
Section 61.45 of the Florida Statutes is the “Child Abduction Prevention Act” which outlines the courts’ increased authority relating to child abduction prevention. Section 61.13002 allows a parent assigned to military service to designate someone else to exercise time-sharing with a child on the parent’s behalf. Section 751 outlines specific guidelines for children living with extended family members in temporary or “concurrent custody.”
19. Domestic Violence.
According to Section 741.28 of the Florida Statutes "domestic violence" is defined as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. Family or household member is defined as a spouse, former spouse, other person related by blood or marriage, a person who one is presently residing with or has resided within the past, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing together or have in the past resided together in the same single dwelling unit.
20. Child Abuse and Neglect.
Statutes exist to protect children who have been abused, abandoned or neglected or are at risk of being abused, abandoned or neglected. Chapter 39 of the Florida Statutes outlines these protections and the policies and procedures that provide for interventions through the Florida Department of Children and Family Services (DCF), the judiciary, and other components of the child protection system. This system monitors cases where at-home voluntary or protective services, shelter care, relative placement, foster-care, termination of parental rights and/or adoption are called for. This child protection system is often referred to as the “dependency system” because the affected children are often adjudicated as dependent on the state.
21. Moving beyond divorce.
You can speed your divorce recovery along by following these eight steps:
- Accept the end of the marriage
- Create a support system that is made up of old and new friends as well as professional support from a therapist or divorce coach. Consider joining a support group to bolster your support network and inner circle.
- Remember divorce is a transition and next year will be different, next year you will be different, and everything is temporary.
- Use the transition of divorce as a time of assessment. Figure out what mistakes you made in the relationship and how you will avoid these mistakes in the future.
- Call a truce with your Ex. (Especially important if you share children.) Let him/her know that you want to find solutions that work for both of you. It’s difficult to argue with someone who says "I want to find solutions that work for you and for me."
- Clean out the clutter and get rid of unnecessary reminders of the past. Getting rid of the big house and the extra TV is one way to make room for your new life and partner.
- Do not move beyond your means. In most cases, one income will not support your previous life style. Cut down to reduce financial pressures.
- Give yourself time. Don’t rush into the next relationship because you are lonely or feel rejected. The longer you wait the better your chances of success next time will be. It’s OK to look (be a shopper) but don't buy too fast.
Elinor Robin, PhD, LMFT
is a Florida Supreme Court Certified Mediator and Mediation Trainer. Academically, professionally, and personally Dr. Robin has spent the last twenty years studying the process of divorce. She has taught mediation to over 5000 professionals and has served on the faculty of mediation and dispute resolution symposiums throughout Florida, nationally, and internationally. With natural wit and wisdom, Dr. Robin brings her academic pursuits, a background in small business, and a wide range of experiences from within the family, juvenile, civil, and criminal courts to her work. You can contact her at Elinor@AFriendlyDivorce.com.
David Spofford, JD
is a Florida Supreme Court Certified Mediator and Mediation Trainer. Prior to embarking on his mediation practice Mr. Spofford’s career included law practices in Texas and Florida and time as both a software engineer and a life-coach. His formal education includes a JD, a Masters degree in Computer Science, a Bachelors degree in Business Administration, and a Professional Coaching Certificate. His areas of special interest include document automation for mediators and mediation agreement writing. You can contact him atDavid@AFriendlyDivorce.com.
Together, Mr. Spofford and Dr. Robin mediate divorces at A Friendly Divorce® in Boca Raton and Gainesville, Florida. They designed their unique mediation practice to meet an emerging need in an evolving marketplace. Their clients initiate mediation pre-filing, choosing to navigate the divorce process Pro se (unrepresented). Additionally, they train lawyers and mediators in the family restructuring process they call A Friendly Divorce®. To learn more visit www.AFriendlyDivorce.com.
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