Family Law: Frequently Asked Questions

Family law can be a sensitive issue for anyone. Marriage begins as a celebration, filled with joy and happiness. Unfortunately, this happiness does not always last. Life can be a very messy business and sometimes a marriage must suffer the consequences. Divorce is a very present reality for many American families. In fact, about 50 percent of marriages in the United States end in divorce. Florida is hit especially hard with these numbers. In terms of the top 50 cities with the nation's highest divorce rates, Florida has 4 cities within the top 10 and a total of 11 on the whole list.

With Florida's divorce rates continually high, many families have to deal with the reality of separation. The legal process that must be followed can be very difficult and fraught with emotion. If you are going through this process, undoubtedly there are a number of questions you would like answered. The attorneys at Ellerin Hutchinson have compiled a list of frequently asked questions to help you through this process.

What are people asking?

I'm about to get married, what do I need to know?
Marriage is an exciting step to make. It is also a life-changing event. You must keep in mind that marriage is a legal relationship as well as an emotional one. That means that when a marriage ends, the relationship must go through a legal division as well. One way to make this dissolution easier is by entering into a legal agreement prior to marriage that will determine how the separation will take place. This is called a prenuptial agreement.

This legal document essentially states how the couple's economic resources and property will be divided should one spouse die or if the marriage ends in divorce. This agreement does not extend to determining child support but will help with property such as cars or a house. If you are looking to enter into such an agreement, it is advisable to hire an attorney who can answer any of your questions and will help make sure the process follows every legal requirement.

What steps should I take prior to getting a divorce?
When you decided to take the step of filing for a divorce, there are a number of issues that you must keep in mind. First you must find out if you meet all the legal requirements to go through the process. In order to file for dissolution, either you or your spouse must have been a resident of Florida for at least six months or are stationed in the state as a member of the armed forces. Once this requirement is met, either you or your spouse must believe that the marriage is irretrievably broken. As Florida is a no-fault state, you do not have to prove that your spouse committed an act, such as adultery or abuse, in order to justify the divorce.

Second, you must be aware of the economic issues that will arise. Upon dissolution of marriage, the assets and liabilities that you and your spouse have accumulated will be divided between the two of you. This means that any economic assist that developed over the course of the marriage will be equitably distributed. If you and your spouse agree as to how these resources will be divided, you may be able to have an uncontested divorce. If not, a judge will decide how these are divided.

Third, you must consider the physical and emotional safety of both you and your children. A divorce can be a trying time. Anger can easily lead to violence. If you are worried about how your spouse will react to the divorce, you should take steps to protect yourself and your children. Do not neglect yourself during this challenging time.

How do I file for divorce?
When a marriage is determined to be irretrievably broken, you can file for a petition for dissolution of marriage. This petition will include what you want from the court in terms of the divorce. There are four basic types of petitions that you can file depending on your situation. These include a Petition for Simplified Dissolution of Marriage, Petition for Dissolution of Marriage with a Dependent or Minor Child, Petition for Dissolution of Marriage with Property but No Dependent, and Petition for Dissolution of Marriage with No Dependent or Property.

A notice is sent to the other spouse who must respond within 20 days. This response will include an answer to the requirements of the initial petition and any other issues the spouse wants resolved. Both spouses will be required to provide a number of financial documents and an affidavit. Separating financial resources is often the most difficult aspect of the entire process. If you and your spouse cannot agree upon the division, you will have to go through a judge. The judge will divide both the assets and liabilities based on equitability, or what the judge deems to be fair. This could be based on who is more capable of taking on debt and who needs more help getting back on their feet. Often, it is helpful to have an attorney during this process.

How is child support determined?
It is well known that children are often the party that is most harmed in a divorce. Many children feel as though they must take on the responsibility of their parents' separation. Because of this, you and your spouse should have the wellbeing of your children as your top priority. Custody must be determined, followed by child support. When a court determines how much child support must be paid, they look at a number of factors. They will look at the income of both parents and what the child will need. This includes health care and schooling costs. Much of this will depend on the child's age and the standard of living the family enjoyed prior to the separation.

How long will my divorce take?
Every divorce is unique. This means that no set pattern can be followed. Though every couple must follow the state's laws concerning the dissolution, the amount of time that everything will take depends entirely on the couple's specific situation and the type of divorce they are filing. The easiest and quickest process is an uncontested, simple divorce. This kind of separation could be completed within a number of weeks. Such dissolution occurs when the couple agrees about every aspect of the separation and there are no children or dependents involved. However, the process will only take longer when more factors are entered into the equation. If you and your spouse cannot agree on the details of the separation, the courts will have to get involved and the time until completion could be extended significantly.

When setting up a visitation schedule what should I keep in mind?
A visitation schedule will most likely be set up by the courts while you and your spouse are going through your divorce. Normally, a court will try to give equal visitation rights to both parents so that the child can spend as much time as possible with each individual. The schedule will primarily be constructed according to the type of custody that has been determined and the proximity of both parents. If one parent lives far away from the child, they may receive a continuous period of visitation time such as over the summer. When this schedule is determined, you must keep in mind that the courts will make decisions based off of what is in the best interests of the child.

My job is forcing me to relocate to another state, what should I do about child custody?
When a parent decides to relocate with a child, it is called a change of residence address. In order for a move to be considered relocation, it must be a change of principal residence of more than 50 miles away from their original place of residence. If you and your former spouse both agree to the relocation, the two of you must sign a written agreement that indicates their consent, designates visitation rights, and if necessary describes transportation arrangements for the visitation.

If you and your former spouse have not entered into an agreement, you must file a Notice of Intent to Relocate. This notice includes a description of the location of the new residence and the reason for the move. It must also include a proposal for a new visitation schedule as well as the transportation arrangements to accommodate the schedule. Your former spouse must respond to this notice within 30 days. A failure to do so will automatically validate the relocation.

My spouse and I are in complete agreement about our divorce, do I need an attorney?
When you and your spouse agree about every aspect of the divorce process, it is called an uncontested divorce. Such a divorce can be classified under two categories: standard and simplified. A standard uncontested divorce occurs when both parties agree on how to divide all assets and debts. A simplified uncontested divorce occurs only when there are no children or dependents involved. In this process, you and your spouse give up your rights to a trial and an appeal.

When going into an uncontested divorce, it is often best to go through the mediation process. A mediator is an attorney or family counselor who works as an unbiased third party to help mediate the process. Though you do not need a lawyer to file a divorce or go through the whole process, often it very helpful do so. Your lawyer can guide you through this process and a mediator can help to assure that everyone is treated fairly.

My former spouse continually violates our visitation schedule, what should I do?
Both you and your spouse must follow the support and visitation agreements that the court prescribed. This acquiescence does not always happen though. If your spouse has violated the agreed upon visitation schedule, they may be held in contempt of court. You must file a motion for contempt if you want your ex-spouse to face legal consequences. Such consequences include fines, increased visitation times to account for those missed, and even jail time. Such penalties will be determined based off of the situation and how long the violations have been occurring.

How do I modify my alimony agreement?
Alimony, or spousal support, is not necessarily a permanent payment. Often, this support will need to be modified or even terminated based on the changes in living situations that both parties see. If the spouse who is paying the alimony can no longer sustain the financial support, they may be able to appeal the courts to change the agreement. If the spouse receiving the support no longer needs the consistent payments or can live on less support, the other spouse may also file a petition for modification or abatement. In most situations, financial documentation concerning the change in financial status of either spouse must be provided. If you are looking to modify your alimony agreement, it is advised to hire an attorney who can walk you through the process.