Family Law Frequently Asked Questions
1. Do I really need a lawyer?
A person has the right to represent himself or herself in a dissolution action. However, there are many pitfalls for the unwary, starting with using the right language in the petition for dissolution, continuing through the introduction of evidence, and even in post-judgment proceedings. It can be more costly for an attorney to fix what the parties have already done than it is to have an attorney on board from the beginning.
2. What is “dissolution” and how is it different from “divorce”?
Dissolution is the term currently used in Florida to refer to “dissolving the marriage partnership.” In practical effect, it has the same general understanding as the word “divorce,” but divorce focused on the conduct of the parties which caused the marriage to fail. When Florida changed to a no-fault system, the terminology changed also to reflect the new standards.
3. My spouse started dating before I even knew our marriage was in trouble. I think it’s only fair that I get more of the stuff, as well as exclusive use of the home and the kids, because of the humiliation I suffered.
Florida is a no-fault state and so, with certain very limited exceptions, the court does not take into account the “humiliation” factor. All the court can do is determine the most equitable way to terminate your marital partnership, and cannot soothe the hurt, humiliation, anger, betrayal or desire for revenge that often accompany an action for dissolution. Unless your spouse’s actions resulted in dissipation of marital assets or direct harm to the children, it is quite likely that the court will not consider a spouse’s infidelity when fashioning an equitable distribution plan. Your attorney can best advise you if your situation fits one of the limited exceptions mentioned above.
While many attorneys have experience that makes them a good sounding board for your negative feelings, please keep in mind that a pastor or other type of professional counselor is a far more cost effective way to deal with the feelings that come along with this type of betrayal.
4. My friend just got divorced last year and has told me what I need to do…can I rely on his or her advice?
While your friends are a great source of comfort during a difficult time, they should not be your source for legal advice. Every dissolution action is different and what happened in your friend’s case is no indicator of what will happen in your own. There are many variables to take into account, not least of which is the personalities of the parties involved in your dissolution action. In addition, there have been massive legislative changes in the family law arena in recent years and unless your friend is actively practicing law in this area, you should not rely on what he or she tells you.
5. I don’t like my spouse any more and think it would be best for the kids if I moved somewhere else. Can I do this?
Not without court order. The State of Florida has a very strong public policy interest in ensuring that children have access to both parents, and doesn’t look kindly on one parent unilaterally removing the children from the vicinity of the other parent. If one parent wishes to relocate such that it will impact the other parent’s ability to have a meaningful relationship with the children (and the other parent does not agree), the parent wishing to relocate must file a petition asking the Court to permit the move, and must prove that it is in the children’s best interest to do so.
6. My new spouse was transferred to a place far away. My children and I naturally want to go too, but my former spouse won’t agree. What can I do?
Under these circumstances, you must file a petition for relocation and prove to the Court that it is in the children’s best interest to relocate away from the parent who will be left behind. If the party seeking to relocate cannot prove to the court that it is best for the children to relocate, then the requesting spouse can either move without the children or stay in Florida with the children.
7. I really don’t want to have anything more to do with my spouse, but we have minor children. Can I waive child support to get him/her to waive timesharing?
No. Child support is a right that belongs to the child, not to the parent, and the parent cannot waive it. Furthermore, failure to pay child support is not grounds to withhold timesharing from the other parent.
8. My spouse and I agreed on what to do about the children, but the Court said it wasn’t good enough. How can the Court tell me that?
The Court has the ultimate responsibility to determine that the agreement made by the parents is in the best interests of the children, even if that means overruling some agreement the parents have made. Historically, the Court saw that many times parents would make decisions or agreements that best suited the parents’ needs and all but ignored the needs of the children, and the powers that be decided that the children’s needs had to be the paramount consideration.
Now, the Court has the obligation and the right to review all agreements as they relate to raising the children and change those provisions that are not best for the kids.
9. How is “the children’s best interest” defined?
This question is determined on a case-by-case basis. The statute enumerates factors that the Court is to consider, but every case is different and the weight given to factor A in one case may be completely different from the weight given to factor A in your case. Again, do not rely on what your family, neighbors and friends tell you about how the law works.
10. I just moved to Florida two months ago. Can I get divorced here?
In order to use the Florida Court system to get a final judgment of dissolution, you must be a resident here for at least six months before you file a petition for dissolution. If your spouse did not move here with you, the appropriate place to file a petition is where you last resided together with the intent to remain married. There are many factors to take into account when determining where to file for dissolution, including whether there are minor children and the location of any real property owned by the parties.
11. My spouse just threatened to file for divorce. Should I hurry up and file first?
Not necessarily, unless it gives you a psychological boost to be the person requesting the dissolution. Typically, the petitioner (person requesting the dissolution) pays the filing fee, so many people choosemany people choose not to race off to the courthouse. There is no tactical advantage to being the petitioner, since the Court’s job is the “equitably distribute” the parties’ assets and liabilities depending on the parties’ circumstances. Both parties have an opportunity to present their position to the Court.
12. What’s mediation and do I really have to go?
Mediation is a technique used to encourage and facilitate resolution of the issues in your dissolution, such as dividing your assets and liabilities and what to do about the kids. The mediator is a neutral party who works with both sides during the course of the mediation to try to problem solve. Mediators cannot give the parties legal advice, even though many of them are family law practitioners. Mediators cannot order the parties to take any particular action, but if the parties are able to resolve some or all of their issues, the mediator will reduce the agreement to writing and have both parties sign it.
Mediation is a mandatory proceeding in family law cases. The majority of family law cases do settle at mediation or shortly thereafter. The Court will not set your matter for final hearing (trial) unless you have been to mediation.
13. I don’t really want my spouse to know about my bank account in the Cayman Islands. Can you help me keep that information a secret?
No. An attorney has a duty of candor to the Court, and cannot help a client present testimony to the Court that the attorney knows is false or fraudulent. If a client persists in an intention to present false, misleading or fraudulent testimony to a Court, an attorney may not only have an obligation to withdraw from representation of the client, but may also have to make the Court aware of the false, misleading or fraudulent information.
14. My spouse and I made an agreement 5 years ago that no longer suits us. Is there anything we can do about it? My spouse keeps talking about a “modification.” What’s that?
Modification is the process where parties who already have a final judgment seek to change the terms of the final judgment. If the parties agree on the changes, they can enter into an agreement which is then submitted to the Court for approval. If the changes pertain to the children, then the Court must determine that the changes are best for the children.
If the parties cannot agree to the changes, then the party desiring the change can file a petition for modification, explaining the changes sought and the reasoning behind the request. The parties will again have to attend mediation before a final hearing is held on the modification request, but if the parties cannot agree the Court will conduct a final hearing to receive testimony and evidence, and then issue a ruling.