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Law Brevard Frequently Asked Questions
Q: What Can I Do If I Don't Want A Divorce?
Everyone has the right to divorce their spouse, even if their spouse does not want to be. You can suggest marriage or family counseling to your spouse before the Petition for Dissolution of Marriage is filed.
After the petition is filed, the Respondent has the right to file a Motion requesting that marital counseling be ordered and the proceedings stayed. If that Motion is filed, a judge will often order the counseling, but usually will require a report from the counselor regarding the progress of the counseling within a specific time-frame. What I have seen happen most often is that the party seeking the divorce tells the counselor it is a waste of time to engage in counseling and the counselor subsequently terminates the counseling and reports to the court. Thereafter, the action will move forward.
Other actions may be taken that are deemed in the best interests of the parties involved, but will not exceed a period of 3 months.
If you have any questions or you would like more information, feel free to Contact Us for the answers you need!
Q: How long does a divorce usually take in Florida?
The length of time a divorce takes in Florida primarily depends on the parties, sometimes their attorneys, and the scope of the action. In an uncontested divorce, wherein the parties have settled all issues, once all of the necessary paperwork is completed it may be finalized in as little as four or five weeks.
A contested divorce generally takes much longer. Just to get through the initial pleading stage can take five to six weeks. Then there follows the discovery stage, which takes approximately 6 more weeks, although it is not uncommon for it to take longer. Then it can take weeks to get to mediation. If issues are not resolved at mediation, it is a waiting game to get on a court docket for trial. In Brevard County, it is not uncommon for it to take over a year to get to trial.
Q: How do I start divorce proceedings in Florida?
In order to get a divorce in Florida, you must first meet the 6 month residency requirements and the petitioning party must attest that the marriage is irretrievably broken. Then a Petition for Dissolution of Marriage must be filed with the court, outlining any claims for things like child support, custody, alimony, and division of assets and liabilities, etc. Once filed, the other spouse is served with the papers and the court process will begin.
Q: How does the mediation process work?
Mediation is very effective process for settling issues in divorce cases and a majority of cases can often be resolved through mediation. It is also much less expensive to bring in a mediator to help work out problems, than to hire attorneys and go to trial. In the mediation process, both spouses will sit down and meet together with the mediator and come to agreement on any issues that need to be resolved. Ideally, the mediator will be an experienced attorney with a solid background in divorce proceedings. The mediator is there to help both parties find common ground and come to an agreement, but cannot force any type of settlement on either party.
Q: Can I still get a divorce when I can't find my spouse?
The short answer is yes, but there is a lot of work involved. Florida law requires that you conduct a "diligent search" to find your spouse. To meet the requirements of a diligent search requires a substantial amount of time consuming and difficult investigation, so the search is usually conducted by a licensed private investigator, who must ultimately issue a report detailing his efforts and the results. If the investigator finds your spouse, he or she must be served. If he or she is not located, then you must publish a legal notice in the newspaper. Once this is done you can obtain a divorce, however, financial matters such as equitable division of property will have to be reserved until your spouse has been found.
Q: Can I represent myself in a divorce proceeding?
Sure, but if you have children,assets, and/or liabilities it is not a very good idea. Divorce proceedings are a very serious matter that can affect you for the rest of your life, and you really should have an attorney represent you to make sure your rights and your best interests are protected. Family law is a specific skill set, and without the education and experience of a family lawyer you are not likely to know your rights and responsibilities under the law. If the case ends up going to trial, you will not know how to present your case properly or how to get your evidence and testimony successfully admitted into evidence by the court. Over the years I have met many, many people who have entered into agreements without the assistance of a family lawyer with devastating results. It is much harder to later fix problems with the agreement than to get it right the first time. I strongly advise everyone to have an experienced family lawyer review any settlement agreement prior to executing it.
Q: Can I get to use my maiden name after my divorce?
Yes. The name change will have to be included in the Final Judgment of Dissolution of Marriage, and you will have to appear in person at the Final Judgment hearing to testify that you are not changing your name to avoid creditors, criminal prosecution, or for any other fraudulent reason. When included as a part of a Final Judgment of Dissolution, there is no additional cost for a name change.
Q: What if my spouse is not paying support as ordered?
You may file a Motion for Contempt and Enforcement and bring it before the judge assigned to the case. If the court finds that he/she is able to pay but not paying, the court will usually find the individual in contempt of court. The Court can order an Income Withholding Order, enter a judgment for the amount owed, and order an additional amount be paid toward the unpaid support. If you hire an attorney for enforcement and the individual is held in contempt, he or she will usually be ordered to pay your attorney fees, in addition to current and back support. Sometimes the court will remand the non-payor to jail and order a "purge" be paid to gain release from jail. The purge amount can be any amount up to the total amount owed. Non-payment can also result in driver's license or other licenses being suspended.
Q: How is property divided in Florida?
Florida law requires that marital assets and liabilities be equitably divided. Any property acquired during the course of the marriage is generally divided 50/50 between the spouses, regardless of whose name it's in. The same applies with a business, including all assets, good will and finances. Courts or parties can change these percentages in order to achieve equity.
Q: How is alimony calculated in Florida?
The purpose of awarding alimony is to address a financial disparity between the spouses and to ensure that the spouse who has less income and assets has the means by which to begin a new life. The simple formula used is need vs. ability to pay. There is no mathematical formula.
Q: If my spouse gets to keep the house, am I still responsible for the mortgage?
A mortgage and Promissory Note is a contract with a lender. A divorce agreement or Final Judgment of Dissolution of Marriage cannot negate that contract with the lender. Voluntarily surrendering the deed, or a Final Judgment which awards the ownership of real property to one party does not change the terms of the contract, and generally the only way you will be relieved of responsibility for the mortgage is if the property is refinanced in your former spouse's name alone or if the property is sold and the mortgage satisfied. Unfortunately this means the bank can come after you if the mortgage is not paid.
Q: How are the marital bills and debts divided up?
Division of marital liabilities is subject to equitable distribution. The starting point is an equal division, but many times there is an unequal division in order to otherwise reach equity.
Q: How is child support calculated in Florida?
Florida law is very detailed regarding the calculation of child support. You can easily find on the Clerk of Court's website, the Florida Supreme Court website, and numerous other sources, a child support guidelines worksheet. The principal information needed to make a calculation is: gross income of both parties, lawful deductions available to both parties, the time-sharing plan of the parties (meaning specifically the number of overnights with each parent), the cost of health and dental insurance for the children, and the cost of daycare for the children. It sounds simple, but I have found that most people (and many attorneys) get it wrong. I recommend having an experienced family attorney calculate child support for you prior to making any agreement for support and prior to going to court regarding child support.
Q: How long do I have to pay child support?
Under Florida law, child support is payable until the 18th birthday. However, if a child is in high school, attending in good faith, and is scheduled to graduate high school prior to reaching age 19, then child support will terminate at high school graduation. Child support can also terminate if the child is legally emancipated, such as through marriage.
Q: Can a child decide who they want to live with?
I get asked this question a lot. Most people think that at a certain age a child can decide, like 12, 14, 16, and so on. However, in Florida the answer is no, children do not have the right to decide who they will live with until they reach the age of majority, or 18. The Court is always concerned with what is in the best interest of the child and not simply what the child wants. One of the factors the court will consider in determining the best interest of the child is the wishes of the child, if the court determines the child is of sufficient age, maturity, and intelligence to have a reasoned opinion. In order to present the testimony of the child, it is required to get the permission of the court for the child to testify at an evidentiary hearing in advance of the custody trial. Many times the court will reject taking the testimony of a child, and I have often heard judges stating that they do not consider a child's testimony to be a decisive factor.
Q: ARE A FATHER'S PATERNITY RIGHTS ESTABLISHED IF HIS NAME IS ON THE CHILD'S BIRTH CERTIFICATE AS FATHER WHETHER OR NOT THE PARENTS WERE MARRIED?
NO. In Florida, only the mother of a child born out of wedlock has “natural” guardianship of a child. A birth certificate is evidence of paternity, but paternity can only be established through a court order. Also, any child born during a marriage is assumed to be natural child of the husband unless legal action establishes otherwise.
Q: WHAT CAN I DO IF I LATER FIND OUT THAT I AM NOT THE BIOLOGICAL FATHER OF A CHILD?
Florida has a statute regarding the “dis-establishment” of paternity. The law regarding disestablishment of paternity is complicated and fact specific, so the best advice is to seek legal advice from an experienced family attorney when you believe you have been mistakenly established as parent of a child.
Q: CAN A PROFESSIONAL GUARDIAN AD LITEM REQUIRE SPECIFIC TIME-SHARING WITH A CHILD?
NO. A professional Guardian ad litem can investigate and make recommendations to the parents, their attorneys, and to the court. The Guardian ad litem has no authority to order or enforce recommendations. However, the Guardian ad litem can often influence the court’s ultimate decisions regarding a Parenting Plan through a written report and testimony.
Q: WHAT ARE THE QUALIFICATIONS TO BE APPOINTED AS GUARDIAN AD LITEM?
A Guardian ad litem must have one of the following credentials:
- Certified by the Guardian ad litem program pursuant to FL Stat 39.821;
- Certified by a not-for-profit legal aid organization as defined in FL Stat 68.096
- A Florida licensed attorney in good standing with the Florida Bar.
Q: DO GRANDPARENTS HAVE VISITATION RIGHTS IN FLORIDA?
Yes, but only in a narrow set of circumstances. The Dependency Court for child abuse, neglect, and abandonment matters, has the authority to order visitation rights for grandparents. The Family Court, regarding marital and family matters, has extremely limited authority to order visitation for grandparents. The current Florida Statute is limited to circumstances wherein one of the parents is deceased. But even in those rare and traumatic circumstances, if the surviving parent does not support grandparent visitation, the court cannot order visitation over the objection of the surviving parent unless the grandparent can prove the surviving parent is an unfit parent. This is a complicated and fact specific matter, so the best advice is to seek legal advice from an experienced family attorney if you are seeking grandparent visitation.
Q: How Is Legal Paternity Established In The State Of Florida?
Genetic blood testing is the most accurate way of establishing paternity. In the state of Florida, any parties involved in a paternity proceedings, including the judge/court, can request a blood test be given to determine paternity.
Just because a man’s name is on the birth certificate, that does not necessarily mean he has legal rights as a parent. In Florida, the legal paternity of a child, or children, may be established in any of these ways:
- By the father’s marriage to the mother
- By the father’s agreed acknowledgement of paternity
- Through a paternity action/test initiated by either the mother, alleged father, or the child
- By a foreign judgment of paternity
Q: What Types of Paternity Tests Are Offered In Florida?
In Florida paternity cases, there are two different types of blood tests that may be used: either a Human or a DNA test. A DNA test compares the genetic code of both the mother and the alleged father to that of the child. A Human blood test tells if the person being tested has over a 95% chance of being the biological father, and will be assumed as such unless someone comes forth with evidence that proves otherwise.
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