A Primer on The Divorce Process:

Initial consultation: The client should thoroughly discuss his/her expectations at the initial consultation with the family lawyer. Family law in Florida has evolved into a complex body of law, which can address a wide variety of unique issues ranging from domestic violence, business valuations, mental health, and vocational ability to complicated child related concerns. An experienced family law attorney knowledgeable about the law and familiar with the forensic expert witnesses and family law judges in the community will be able to provide the client with an indication of what to expect during and after the divorce process. The divorce process is emotionally taxing on the client and their family. The family law attorney should not just be experienced in the law and trial procedure, but have a staff in place and tools available to make what could be a very difficult process less antagonistic and costly.

Residency requirement: If the parties reside at times out of the state of Florida. Residency issues may be convoluted. However, married individuals in Florida may obtain a divorce as long as a party resides in Florida for six months before filing a proceeding for dissolution of marriage. Physical presence in Florida for the entire six months is not required to meet the residence requirement. If residency is an issue typically the judge will look to proof such as place of employment, driver's license, automobile registrations and place of filing federal income tax returns.

Grounds for divorce: Florida is a no fault divorce state. This means the only grounds for divorce that must be asserted is that the marriage is irretrievably broken. Florida has no legally required period of separation. Depending on the facts of the case, divorces may include issues of alimony, equitable distribution and attorney fees. If the parties have children custody, visitation and child support must also be addressed. It makes no legally significant difference in Florida who files first for divorce.

Contested or uncontested proceedings: Divorce cases are either contested or uncontested. The contested divorce case involves issues that the parties can not agree upon, typically matters pertaining to either alimony, equitable distribution, attorney fees, child custody, visitation and child support. In contested divorce cases those issues that are not settled between the parties are decided by a family court judge in the county where the parties last resided as a married couple. In uncontested cases the parties have resolved many if not all of their issues prior to initiating divorce proceedings or thereafter without the need for Court intervention.

Temporary relief: The parties to a dissolution of marriage can request various forms of temporary relief such as alimony, attorney fees, temporary parental responsibility, temporary primary residence, temporary injunctions, child support and visitation. Depending on the existence of other factors temporary requests may include the appointment of a Guardian Ad Litem and other experts such as forensic accountants, psychologists, and vocational evaluators.

Discovery: In order for a family law attorney to best advise his/her client the practitioner should be well versed in all of the procedural discovery tools that are available and necessary. Discovery is the methodology of obtaining information that will be necessary to help the client prove his /her case at trial and negotiate the best settlement. Proper and aggressive discovery is a prerequisite to successfully taking to trial a dissolution case in order to determine issues such as what dollar alimony and child support payments should be, whether marital funds were improperly depleted, the discovery of adulterous affairs and the existence of income, expenses, assets and liabilities. Florida law in dissolution proceedings, in almost all circumstances requires mandatory financial disclosure by the parties in addition to the discovery of other relevant matters.

Child Support: The public policy of the State of Florida requires a parent to provide child support for his/her children and may not be waived by either parent. Child support rights exist both before and after dissolution of marriage. The determination of the amount of each parents' child support obligation is provided for by statute. A basic calculation considers each parents' gross income, including imputed income if appropriate. The parents' net incomes are determined by subtracting the statutorily allowed deductions from gross income and the parents' net incomes are added together to determine a combined net income. A statutorily created table is then applied to the combined net income of the parents' to determine the minimum child support need. The statutorily created formula then takes other deviating factors into consideration when determining each parents' contribution toward the child support obligation. In Florida child support may terminate once the child, dies, enters the military, is emancipated reaches the age of eighteen or graduates from high school, so long as graduation is prior to that child's nineteenth birthday. There are circumstances that impact exactly when child support terminates which are specific to a particular child.

Alimony: Florida family law recognizes permanent periodic alimony, rehabilitative alimony, bridge-the-gap alimony and lump sum alimony. Alimony is case sensitive and dependant on many different circumstances, the factors of which are addressed by statute and case law. Typically in awarding alimony the judge will always consider the need for support of one spouse and the ability of the other to pay. The criteria used in establishing need include the parties' earning ability, age, health, and education; the duration of the marriage and the standard of living enjoyed during its course; and the parties' assets and liabilities.

Custody: The parent with whom a child lives most of the time is the primary residential parent. Florida law promotes "shared parental responsibility", the purpose is to give both parents the right to make those important decisions which affect the child. The opposite of shared parental responsibility is sole parental responsibility, which is a court ordered relationship in which one parent makes decisions regarding the minor child. There is a statutory presumption that shared parental responsibility is in the best interest of the minor child. In contested custody proceedings the judge will look to statutorily created factors in determining the best interest of the minor child when deciding which parent will be the primary residential parent. Some of the factors the judge will consider include the parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent, the moral fitness of the parents, the mental and physical health of the parents, evidence of domestic violence and child abuse, the home, school, and community record of the child and any other fact considered by the court to be relevant. In certain cases depending on the facts a judge may grant a parent a rotating custody arrangement. Contested custody cases are very fact sensitive and often raise the most contentious issues in a divorce proceeding. Often the judge will require the parties to undergo a psychological evaluation and require a home study in order to aid the court in making what may be a very difficult decision.

Visitation: Parties are usually free to determine whatever visitation or contact and access schedule works well for them and the minor child. There is no set rule, what works well for one family may not work well for another. Flexible timesharing plans should be based on the needs of the growing child. However, if the parties cannot agree on a fair schedule the judge will always look to the best interest of the minor child in creating a reasonable visitation schedule for the non-custodial parent.

Attorney Fees and Costs: Florida family law by statute awards attorneys' fees, suit money, based in most cases on a need vs. ability to pay analysis. The judge will look to the financial resources of each of the parties in determining whether a disparity sufficient enough exists to make one spouse pay in full or a portion of the other spouse's fees and costs. Florida law also takes into consideration whether issues are litigated in "bad faith". Judges will award attorney fees and costs both on a temporary basis and after trial based on the issues litigated, reasonableness of the fees and costs requested, experience of the attorney and other relevant factors.

Mediation: In most Courts in Florida mediation will be ordered by the judge at some point during the litigation. Mediation is the process of the parties all meeting with their family law attorneys and a mediator who is a neutral third person. The mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is a nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. A large percentage of divorce cases are resolved before trial.

Domestic Violence: In a divorce proceeding especially one with minor children, issues of domestic violence are important when a judge makes determinations regarding custody and visitation. In certain circumstances visitations may even be supervised and limited in other ways if the judge feels it is in the best interest of the minor child. Florida law also allows for a separate tort action for battery, assault and false imprisonment by battered spouses.

Settlement and trial: No divorce case can be resolved without the active participation of the parties. Once all of the terms of the settlement are agreed upon a Marital Settlement Agreement will be signed by the parties. The agreement should address all of the issues raised by the parties and those matters that may arise in the future. Issues routinely addressed in settlement agreements include: the disposition of the marital home, other real property, pensions, retirements, financial accounts, tangible and intangible property, payment of liabilities, attorney fees, alimony, health and life insurance, child custody, relocation and visitation. Once the agreement is properly executed and it is review by the judge, a Final Judgment of Dissolution of Marriage will be signed by the judge dissolving the marriage and incorporating the signed agreement.

In the event the parties are unable to resolve all the issues then the case will go before the family judge for trial. At trial referred to as the "Final Hearing", the lawyers will present evidence by introducing exhibits, direct examination of witnesses, cross-examination in order to present the proof necessary to obtain the relief the client is seeking pursuant to Florida law. After the presentation of all the evidence the judge will render a Final Judgment complete with factual findings and rulings. A party who believes the judge erred in his Final Judgment may appeal the ruling to a higher Court.

Nature and Purpose of Prenuptial and Postnuptial Agreements: A prenuptial agreement differs from a postnuptial agreement in that it sets forth spousal obligations and rights prior to marriage, while a marital settlement agreement defines and distributes what already exists. The purpose of the prenuptial agreement is to decide in advance what will happen to property or support in the event of divorce or death. A prenuptial agreement must be in writing and executed by the parties to be enforceable. Likewise both prenuptial and postnuptial agreements must be executed under certain circumstances with various formalities and disclosures by both parties.

Relocation: Typically either during a divorce proceeding or after the divorce has been finalized the parent who has primary residential custody may seek to relocate either out of the county or out of Florida with the minor child. If a residency restriction exists, the primary residential parent may be able to relocate by bringing a modification proceeding. Again, the judge will look to statutory factors in determining whether relocation is in the best interest of the minor child.

Post dissolution enforcement and modification litigation: After the parties enter into a settlement agreement and it is ratified by the Court and a Final Judgment of Dissolution is issued, post dissolution issues may arise. If one of the parties fails to make timely alimony or child support payments pursuant to the parties agreement or fails to honor the visitation provisions, enforcement proceedings could include an action for indirect civil or indirect criminal contempt. If a substantial and unanticipated change in circumstances takes place subsequent to the Final Judgment a modification of support payments may be granted. Modification of parental responsibility is always based on the best interests of the minor child and similar to an initial custody determination the judge will look to various statutory factors.