Frequently Asked Questions About Divorce

We, at Roberts & Robold, P.A., understand that hiring an attorney is a serious matter and that you may have important questions about your potential case. Below we have provided you with the answers to a number of commonly asked questions. These answers are general in nature, however, and we strongly recommend that you consult an attorney prior to acting on any of the information listed below. Remember, every case is different and it is imperative that a trained legal professional evaluate your case and advise you on your best course of action. Contact us at 407-426-6999 to set up a consultation to discuss your case today.

1. How long does it take to get a divorce in Florida?

   How long it takes to get a divorce will depend on whether your case is contested or uncontested. In an uncontested divorce case, both parties have reached an agreement regarding all matters including division of marital and non-marital property, debts, alimony, child custody, support and visitation or time-sharing. Often parties will enter into a written settlement agreement, with the help of their attorney, prior to filing for their uncontested divorce. From the time of filing until entry of a final judgment of dissolution of marriage, an uncontested divorce could take as little as four to five weeks. If the matter is contested, however, parties are realistically looking at six months to a year or more from the time of filing, particularly if minor children are involved. In some Florida counties, parties with minor children will be required to attend mediation and Florida law now requires that parties attend a “Parent Education and Family Stabilization” course prior to entry of a final judgment.

2. What are the requirements for filing for divorce in Florida?

   Each state has certain residency and domicile requirements for purposes of filing for divorce. In Florida, in order to file for divorce, one party to a marriage must be a resident of the state for the six-month period immediately preceding the filing of the petition for dissolution. Generally, in most cases, a party may obtain a divorce simply by filing the requisite pleadings. If you are a Florida resident currently in the military, the fact that you are stationed outside of Florida will not detract from your Florida residency status.

3. How much does it cost to file for divorce? Do court costs and filing fees differ in contested and uncontested divorce cases?

   Filing fees are set forth in the Florida Statutes and the current fee for the filing of a divorce case is $408.00. The filing fee for contested and uncontested divorce cases is the same. Additional costs may be associated with the filing of a contested divorce, however, including fees for service of process, mediation, and the “Parent Education and Family Stabilization” course.

4. Where can I find information about Florida’s “Parent Education and Family Stabilization” courses?

   Parties are required by §61.21, Florida Statutes, to attend a “Parent Education and Family Stabilization” course, which must be completed prior to entry of the final judgment of dissolution of marriage. The course may be taken online or in a local class and information is available online, through the Clerk of Court, or from our offices. The course is approximately four hours long and must be approved by the Department of Children and Families. At the end of the completed course, you will be issued a certificate of completion, which must be filed in your divorce case.

5. Must I hire an attorney to represent me in my divorce case?

   It is not required that you hire an attorney and you may choose to represent yourself. Florida offers self-help family law forms both online and in the office of your local courthouse. Such forms can appear deceptively simple, however, particularly where certain issues may be contested; often we see clients who initially attempted to represent themselves hoping to save money, only to spend substantially more money in the long run. Particularly if you have minor children and/or real property, your final judgment of dissolution of marriage will govern numerous complicated issues including division of real property, personal property and debts, child custody, support and time-sharing, alimony, health care, taxes and more. An experienced family law attorney can ensure that your divorce is handled properly and efficiently. Contact our office today to discuss payment options we can offer to those on all types of budgets.

6. How is child support calculated in a divorce?

   Child Support in Florida is calculated pursuant to guidelines set forth in § 61.30, Florida Statutes. The guidelines schedule calculates the combined net income of both parents estimated to have been allocated to each child, were the parents and children living in an intact household. Each parent’s basic child support obligation is calculated by adding both parents’ respective monthly net incomes, and looking to the appropriate figure in the guideline tables set forth in the statute. The total obligation is then divided between the parents based on the percentage share of each parent’s total monthly net income. A parent’s share may then be adjusted on the basis of certain costs, including child health insurance costs and out-of-pocket child care or day care costs. The Family Law Court may deviate from the statutory guidelines by 5% up or down, without making specific findings. In unusual cases, the Court may deviate more than 5% if special findings are made to support a deviation (for example, where a child has special needs such as expensive medication). Generally child support is paid to the parent with whom the child spends the majority of overnights. The actual child support amount you pay or receive will be determined by a family law court. The calculation of child support can be a complex undertaking and many factors and considerations must be taken into account depending on the particular facts of your case. If you have questions regarding child support, call today to schedule a consultation with one of our experienced family law and child support attorneys at Roberts & Robold, P.A. 407-426-6999.

7. Can I relocate with my children out of state before or during a divorce?

   Upon filing for divorce in Orange or Osceola County, Florida, you and your spouse will immediately be subject to a standing temporary Administrative Order No. 2004-05-03, which precludes you from changing the residence of your children from the school zone in which the marital home is currently located without written agreement of both parties or an order of the court. Section 61.13001, F.S., governs relocation with a child, whether before, during or after divorce. The statute defines relocation as a move of at least fifty (50) miles from the marital residence, and for at least sixty (60) consecutive days (not including a temporary absence for purposes of vacation, education, or for the health care for the child). Under the statute, if no order as to residency of the child has previously been entered, the parties may enter into a written agreement permitting relocation so long as the agreement satisfies the statutory mandates. If a divorce has been filed or an order has previously been entered as to time-sharing, the relocation order must be ratified by the court. In the absence of an agreement between the parties, the parent wishing to relocate must notify the other parent of the proposed relocation as required by the statute. The other parent may object, but must do so prior to the deadline set forth in the statute. If an objection is filed, the party wishing to relocate must obtain court permission prior to relocating. Attempting to relocate without complying with the statutory notice and other requirements can subject the offending party to contempt, an order for return of the child, and other consequences. If permanent relocation is permitted, upon a finding of best interests of the child, the court will enter a new order governing time-sharing, including additional access, visitation, telephone, internet, webcam, the allocation of travel costs, and other arrangements necessary to ensure frequent and meaningful contact with the non-relocating parent. If you are considering relocating prior to filing for divorce, keep in mind that you will have to meet the residency requirements (generally three to twelve months) of your new home state in order to be eligible to file. Every case is different, but if you are going to move more than an hour’s drive away, you will probably need either your spouse’s consent or the judge’s permission.

8. Am I entitled to alimony?

   Florida’s alimony statute is found at § 61.08, F.S. Either party in a marriage may be entitled to some form of alimony. Florida courts have long recognized three types of alimony: Bridge-the-Gap (transitional short-term alimony which cannot exceed two years and cannot be modified), Rehabilitative (a stated plan to assist a spouse in acquiring education, training or work experience to develop employment skills or credentials), and Permanent (for the party who lacks the financial ability to meet his or her own needs and necessities of life and to provide for such needs and necessities as they were established during the marriage). In 2010, significant amendments to the alimony statute included the addition of a fourth category of “Durational” Alimony (a short-term award intended to provide a party with economic assistance for a set period of time following a short or moderate duration marriage which would terminate upon the death of either party or upon the recipient’s remarriage). § 61.08 now states that no alimony is appropriate in a short-term marriage in the absence of special circumstances (in other words, a rebuttable presumption exists against an award of alimony in marriages of less than seven years). An award of alimony in a long-term marriage is presumed to be appropriate by law. Specifically, however, the new amendment has lengthened the amount of time parties must be married before a party will have a strong claim for permanent alimony.

   The basis for an award of any type of alimony in Florida has long been one party’s need for financial support and the other party’s ability to pay. In determining whether alimony is appropriate, the court will conduct a factual evaluation of the financial status of the parties, focusing on need and ability to pay. The court will consider certain factors including: (1) standard of living during the marriage; (2) duration of the marriage; (3) age, physical and emotional condition of the parties; (4) financial resources of the parties, including non-marital and marital assets and liabilities distributed in divorce; (5) earning capacities, educational levels, skills, and employability of the parties, and the time necessary for either party to acquire sufficient education or training to find appropriate employment; (6) contribution of each party to the marriage, including, homemaking, child care, education, and career building of the other party; (7) responsibilities each party will have to any minor children they have in common; (8) tax treatment and consequences of any alimony award, (9) all sources of income available to either party, including income available to either party through investments of any asset held by that party; and (10) any other factor necessary to do equity and justice between the parties.

   If the court determines that alimony is appropriate, it will then determine what type of alimony is to be awarded. Florida law has always recognized that the length or duration of a marriage is directly relevant to an award of alimony, especially permanent alimony; categorizing marriages as short-term, moderate, and long-term. The duration of a marriage in Florida is measured from the date of the marriage to the date of the filing of a Petition for Dissolution of Marriage. Under the new statutory revisions, the durational time frames are now set forth as follows: (a) short-term: less than seven years of marriage; (b) moderate: between seven and 17 years; and (c) long-term: more than 17 years of marriage. The recent changes to Florida’s alimony law apply to all initial alimony awards entered after July 1, 2010 and the modification of these awards.

   If you are currently involved in a divorce case or are considering filing for divorce, it is important that you contact an experienced attorney to determine whether the recent changes to the alimony statute will affect your case. To set up a consultation today, contact our family law attorneys at Roberts & Robold, P.A., at 407-426-6999.

9. Can I stay in my home during the divorce?

   In 2010, statistics showed that 67% of the time when parents first separate, children remained in the marital home with the mother. Whether you stay in your home during a divorce depends on the particular facts of your situation. In Florida, if you and your spouse jointly own your home as tenants by the entireties, the house is a marital asset and neither you nor your spouse would be abandoning any rights to the property by moving out during the divorce proceedings. If you decide to stay in the house during your divorce, you may potentially receive assistance from your spouse, including receipt of child support or alimony, to help offset mortgage payments and other home related expenses. However, you will still have an obligation as a co-owner of the property to help contribute to the monthly payments and upkeep of a jointly owned home. It should be noted that pursuant to § 61.075(1)(h), F.S., in contemplating an unequal distribution of the parties’ assets, the court may consider one spouse’s desire to retain the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so. The court must first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home. If the court finds it to be in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court order, you could be permitted to remain in the home even after the divorce is final. Your attorney can best advise you on such matters after reviewing the specific facts in your case.

10. Do I have the right to see my children after I am no longer married?

    Ordinarily, yes. Under § 61.13(2)(a), F.S., it is the public policy in Florida that each child should have frequent and continuing contact with both parents after a separation or divorce. Florida recognizes no presumption for or against the father or mother, nor against any specific time-sharing schedule. The court will therefore order the parents to share parental rights and responsibilities unless such shared responsibility is determined to be detrimental to the child. A time-sharing schedule should be set forth in the parenting plan in your case which specifies time your children will spend with each parent and the methods and technologies each parent will use to communicate with the children during other times. If you have questions regarding your visitation or time-sharing schedule, the staff and attorneys at Roberts & Robold, P.A. will be happy to help.

11. What happens where my spouse and I started a business during our marriage and we are now contemplating divorce?

    In Florida, the equitable distribution of assets in a divorce is governed by § 61.075, F.S. As a general rule, property acquired by the parties during the course of their marriage, including a business begun during the marriage, will be divided equally unless the court determines, after considering certain statutory factors, that some justification exists for an unequal distribution between the parties. While a business acquired or begun during the marriage is generally a marital asset, a company begun during the marriage using solely non-marital funds, may be determined to be a non-marital asset and may not be subject to equitable distribution. At least one Florida court has held, furthermore, that it was error for a trial court to order parties to remain co-owners of a business and to continue to work together after the dissolution if they did not wish to do so. See Manolakos v. Manolakos, 871 So.2d 258 (Fla. 4th DCA 2004). Pursuant to § 61.075(1)(f), the court may consider a spouse’s desire to retain his or her interest in or ownership of a jointly-owned business, corporation, or professional practice, intact and free from any claim or interference by the other spouse. The court must also consider, however, the contribution during the marriage of both spouses to the acquisition, enhancement, production of income, improvement of, or incurring of liabilities to, such a jointly-owned business. See § 61.075(1)(g). In valuing a business for purposes of equitable distribution, the court must calculate fair market value by measuring the value of the business’ tangible assets (including book value, accounts receivables, physical assets and liabilities), any enhancement in the value of the assets during the marriage, and the value of goodwill (the transferable likelihood of increased earnings). If marital funds or the efforts of the parties were used to enhance the value of the business, this enhanced value would also become a marital asset subject to equitable distribution. Even though a spouse may not be the key decision-maker in a business, if spousal efforts contribute to a closely held corporation’s overall success, the appreciation is a marital asset to be considered by the court. Keep in mind, however, that corporate assets may not be awarded to a spouse without joining the corporation as a party to the dissolution of marriage proceedings. Porcaro v. Porcaro, 531 So.2d 407 (Fla. 2d DCA 1988). Valuing and dividing a business acquired or begun during a marriage can be tricky. If you are contemplating divorce and have questions regarding your rights and interests in a jointly owned or family business, it is imperative that you contact an attorney experienced in both family and business law matters. Our attorneys at Roberts & Robold, P.A. are available to answer your questions; call us to today at 407-426-6999 to schedule a consultation.

12. What should I do if my spouse becomes violent?

    If you or your child have been hurt or injured and need immediate assistance, call 911. Domestic violence is a pattern of behavior, whether physical, emotional, sexual, psychological, or economic, used by abusers to get and to keep control in their relationships. While domestic violence can occur against a child, a parent, an elderly person or other family member, it is most often seen between spouses or those involved in intimate relationships, past or present. If you are a victim of domestic violence, there are a number of programs in Florida to assist you. To find a program serving your area call the toll-free Florida Domestic Violence Hotline at 1-800-500-1119 or 1-800-621-4202 (TTY) or go online to http://www.fcadv.org/centers.php.

    Another website which offers helpful information is:
    http://www.dcf.state.fl.us/programs/domesticviolence/doyouneedhelp.shtml. If you need a safe place to stay or are in need of advice and support, contact your local center for victims of domestic violence. Your local center can provide you with outreach services; all services are confidential and will be provided at no cost to you or your family. The advocates in these centers are trained to provide you with assistance and referrals for issues including housing, finances, legal, and health-care questions. If you wish to file for a restraining order or injunction, you should contact the clerk of court or an attorney to assist you. A temporary domestic violence restraining order can be issued by the court in a matter of hours pursuant to § 741.30, F.S. The Florida Attorney General’s Office can also refer you to crime victim programs which can provide confidential relocation for yourself and your family. For further information call 1-800-226-6667 or go to http://myfloridalegal.com/victims. The attorneys and staff at Roberts & Robold, P.A. are also available at any time to help you in obtaining confidential assistance and support – your safety is our primary concern. Please contact us today at 407-426-6999 for advice and legal counseling in any matters concerning domestic violence.

13. Do grandparents have visitation or custody rights in Florida?

    Grandparents will ordinarily be allowed visitation rights in Florida following a divorce. A grandparent’s right to custody of a child is more complex, however, as a child’s natural parents have a presumptive right to custody unless they have been found unfit or where exceptional circumstances exist. In such cases, and where it is found to be in the best interests of the child, a grandparent may be awarded custody. Pursuant to §752.01, F.S., after a divorce, grandparents may petition the court for visitation rights to their grandchildren and typically will be permitted reasonable visitation. Grandparents should be aware that it is the stated public policy in Florida that families should first attempt to resolve their differences over grandparent visitation within the family and if unable to do so, should participate as a family in formal or informal mediation prior to filing court proceedings. See §752.015, F.S. If a petition is ultimately filed, it must be served on both parents of the child and the family may still be referred to court ordered mediation to resolve these issues. In a court proceeding, grandparents must prove to the court that visitation is in the best interests of the child and that the child’s parents are divorced, one parent has abandoned the child, or the child was born out of wedlock. In considering the child’s interests, the court will take into consideration: (1) the willingness of the grandparent(s) to encourage a close relationship between the parent(s) and the child; (2) the quality and length of any previous relationship between the grandparent(s) and the child; (3) the child’s preference (if the child is sufficiently mature enough to express a preference); and the (4) physical and mental health of the child and the grandparent(s). Upon determining that grandparent visitation is in the best interests of the child, the court will award reasonable visitation. If you have questions regarding grandparent visitation or custody, please schedule a consultation today with one of the experienced family law attorneys at Roberts & Robold, P.A., at 407-426-6999.

14. What should I do if my former spouse refuses to let me see my child?

    Visitation rights are taken very seriously in the state of Florida. If your former spouse is refusing to comply with the time-sharing or visitation schedule set forth in your temporary order, settlement agreement or final judgment of dissolution, you may ask the court to enter an order directing immediate compliance. Any individual who refuses to comply with a court order can be held in contempt of court. Furthermore, under § 61.13(4)(c), F.S., a non-compliant parent may be subject to an order by the court for make-up visitation, payment of reasonable court costs and attorney’s fees, attendance at a court-ordered parenting class, community service, payment of the child’s travel expenses, modification of the parenting plan and any other sanction determined reasonable by the court. Even if a former spouse fails to pay court ordered child support, he or she may not be deprived of their scheduled visitation under § 61.13(4)(a), F.S. Under Florida law, the failure to comply with ordered or agreed-upon time-sharing and visitation is also an important factor which can be considered by the court in determining whether to modify or change child custody. Your relationship with your child is of the utmost importance. If your former spouse is interfering with your visitation rights, it is imperative that you take steps to remedy the situation as quickly as possible. Contact us at Roberts & Robold, P.A. to discuss how best to address these important issues.

15. How will our debts be handled during the divorce?

    Marital debts, like marital assets, will be divided according to the law on equitable distribution as set forth in § 61.075, F.S. Marital debts include liabilities incurred during the marriage, whether individually by either spouse or jointly by both. Non-marital debts include liabilities incurred by either party prior to the marriage. Parties in an uncontested proceeding who divide their debts between themselves may enter into a Property Settlement Agreement which will be incorporated into the final judgment of their divorce. In a contested proceeding where parties are unable to reach an agreement on their own, the court will set apart each party’s non-marital debts and will distribute their marital debts in a judgment or order containing written factual findings based on competent substantial evidence. The cut-off date for determining the identification or classification of marital debts is the earlier of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date the petition for dissolution is filed. The date for determining the amount of marital debts is the date or dates as the judge determines is just and equitable under the specific circumstances. Please be aware that even if you are not held in your divorce to be legally responsible for all or part of a joint debt, your credit card company or other creditor may still seek to collect the debt from you.

16. Can I list our home for sale during a divorce?

    No. The marital home may not be listed for sale during a divorce in the absence of an agreement signed by both parties or by order of the court. Upon filing for divorce in Orange or Osceola County, Florida, you and your spouse will immediately be subject to a standing temporary Administrative Order No. 2004-05-03, which precludes you from disposing of any asset, marital or non-marital. You will furthermore be precluded from adding any additional mortgage or from failing to take care of the home during the pendency of the divorce.

17. During a divorce, can I spend the money from a bank account where the account is in my name only?

    Generally speaking, during a divorce you may spend the money from a bank account which is titled in your name only. If you file for divorce in Orange or Osceola County, immediately upon filing the petition, you will be subject to a standing temporary Administrative Order No. 2004-05-03 which allows parties to “spend their incomes in the ordinary course of their personal and family affairs.” Please be aware, however, that you will be required to account for the use of such funds or income from the time of separation. The use of such funds and income must be justified “as reasonable and necessary for the necessities of the party or to preserve marital assts or pay marital debts.” Both parties will be accountable for all money or property in their possession both during the marriage and after separation.

18. If my spouse and I divorce, will I have to split my retirement plan with my spouse?

    Section 61.076, F.S. governs the distribution of pension or retirement assets in a dissolution of marriage. Generally pension rights (whether vested or unvested) and other retirement benefits (including profit-sharing, annuity, deferred compensation, and insurance plans or programs) are considered to be marital assets and will be divided between the parties equally subject to equitable distribution. Such assets, like other marital assets, maybe be distributed differently if the court finds a justification for an unequal distribution based on relevant factors as set forth in the equitable distribution statute, § 61.075, F.S. Please keep in mind that significant fees and tax penalties can be incurred for the early withdrawal of such funds. Your attorney can best advise you on such matters after reviewing the particular facts in your case.

19. What are my rights if my spouse plans to go to work and leave the children with a sitter, but I am available to be with them?

    Pursuant to § 61.13(2)(c)(1), F.S., it is the public policy of this state that children have frequent and continuing contact with both parents after a separation or divorce and parents are encouraged to share the rights and responsibilities of childrearing. Where no parenting plan or order of visitation is currently in place, the court shall approve a time-sharing schedule by considering a number of factors including the anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties, and the division of parental responsibilities before and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties. Where an established parenting plan and time-sharing schedule is in place, recent caselaw suggests that a spouse has no “right of first refusal to custody,” in instances where the custodial parent’s work schedule might affect their time with the child. See generally, N.H. v. J.E.T., 66 So.3d 1056 (Fla. 2nd DCA 2011). Parenting plans may be temporarily modified, however, when both parents agree in writing. It is always best to attempt to work out such issues with a former spouse or partner prior to turning to the court. For questions regarding your time-sharing or visitation agreement, contact our experienced staff and attorneys at Roberts & Robold, P.A.

20. Must I keep my spouse on my health insurance plan during a divorce?

    There are many things to consider during divorce, and maintaining health insurance coverage should be a priority, especially if children are involved. Often, one spouse has health insurance through his or her employer and the other spouse and children are covered under a family plan. Although a non-primary spouse may be permitted to remain on a family policy during divorce proceedings, after the divorce, the former spouse is no longer eligible to remain on the same health insurance policy and will be dropped by the insurance company. While your health insurance company may permit you to drop your spouse during divorce proceedings, please be aware that if you file for divorce in Orange or Osceola County you will be subject to a standing temporary Administrative Order No. 2004-05-03, which will preclude you from changing any insurance policies except by written agreement signed by both parties or order of the court. Upon your divorce, your spouse may be eligible for COBRA coverage (Consolidated Omnibus Budget Reconciliation Act). COBRA is a federal law which provides health insurance to anyone going through a divorce or legal separation from an employee that is currently covered by a health plan through a private-sector employer with 20 or more employees, employee organizations, or state or local governments. A former spouse wishing to take advantage of COBRA must contract the primary spouse’s health plan administrator within sixty days of the divorce. COBRA is expensive, however, and expires after 36 months or upon remarriage. For additional information you may contact EBSA at 1.866.444.EBSA (3272) or contact our staff and attorneys at Roberts & Robold, P.A.