Going through or even contemplating a divorce can be an emotionally difficult time. When people realize that their marriage is over, or even in serious trouble, they often have concerns—and questions. Can they afford to live without their partner’s income? Are they able to get alimony or child support? What if their spouse wants custody of the children? How will the assets be divided? Will they have to move out of their home?
Often, a consultation with a Florida divorce attorney can help shed some light on many of these questions. Your lawyer can explain the process of getting divorced, go over your financial situation, and advise you on your options. That way, you will have the knowledge to make informed decisions however you decide to proceed. Even if you decide to try marriage counseling or other efforts to save the marriage, you will still know your options in the event that you later decide the marriage is unsalvageable.
What Does a Divorce Lawyer Do?
Divorce lawyers navigate a complex field of both divorce laws and disagreements between the parties getting divorced. They also need to be well-versed in other aspects of family law so they can help clients with child custody, alimony, marriage annulment, legal separation, or related issues. Your divorce attorney will help you with the determination relating to division of assets. In many cases, this means they will argue your right to keep specific assets or how the proceeds from a sale may be divided. They will also assist you in regards to alimony or spousal support, and with custody and support for any children you and your spouse have. Because they handle such important matters, it’s essential to select an experienced, knowledgeable Florida Divorce attorney.
Do I Really Need a Divorce Lawyer?
Florida is a no-fault state for divorces. This means neither spouse has to prove that anyone was at fault. All that a party needs to show is that the marriage is irretrievably broken. If your spouse doesn’t contest the divorce, in some cases, it can be granted fairly easily with a minimum of arguing or time spent in court.
However, most divorces don’t go that smoothly, and it is always better to have the assistance of an experienced divorce attorney than not have one. Sometimes, if you think that you and your spouse have reached a fair agreement about division of property on your own, unexpected issues can still arise. Even amicable divorces can devolve into conflict quickly if one spouse suddenly decides they want a particular asset, or spousal support, etc. Your attorney will not only draft and file documents for your divorce, they will also fight for the protection of your rights
Preparing for Your Divorce
People are often nervous before their first divorce lawyer consultation. They may be concerned about the financial ramifications of a potential divorce or unsure how they want to proceed. Remember that your attorney is there to help and advise you, and answer any questions you may have about your situation.
Typically, your lawyer will begin by asking you to describe your situation—not just the state of your marriage, but also your financial situation, how many children you have, if any, and other details that will be important in a divorce proceeding. They will ask you questions to better understand the issues. They will also answer any questions you have, such as, “Is this particular asset a marital asset?” (We’ll have more on that topic later in this article.)
If you decide that you want to proceed with filing for divorce, your divorce lawyer will probably give you some forms to fill out. In many cases, they may also ask you to find various financial documents which will be needed later. At some point, you’ll need to fill out a financial affidavit for the court. It’s important to do this as accurately as you are able. If you are unsure about something, or unable to find documentation or acquire the information you need, your attorney can advise you on how to proceed.
Listing Your Assets and Liabilities
This can be complicated for many people. Even those who are not wealthy often have assets they didn’t even think about. In this way, having an attorney to guide you and ask questions can help ensure that you don’t forget anything that might be important.
Generally, it’s a good idea to make a list of any financial assets—like bank accounts, savings accounts, trusts, retirement funds, etc. Whether accounts are joint or not may be important later, but, at first, you just need to list all accounts. Also, list anything you own of significant value—houses, vehicles, other property, expensive electronics, jewelry. If you or your spouse owns a business of any kind, this may also be an asset. You should also list all liabilities, including debts, unpaid medical bills, etc. Your lawyer may ask about anything you might have missed.
Another thing you’ll need to do is account for your income, as well as your spouse’s if you have that information. If you don’t have access to their current income information, your attorney can request it. Figuring out your monthly income will be the next step. Whether you are an employee or an independent contractor, or own your own business, your Florida divorce lawyer would be able to assist you and advice you on how to determine your income as well as information necessary for your divorce.
Monthly expenses will be the next category to get straight. This will include things like rent or mortgage, gas, groceries, utilities, insurance payments, phone bills, etc. It is important to make a list and be thorough. If you and your spouse have been living together and dividing these expenses, you will need to figure out how much you will spend on your own. Some people assume this will just be half the amount of combined expenses, but this isn’t always true. If you move, your transportation costs may go up or down—for example, if you suddenly live farther from work and have a longer commute—and sometimes one spouse has more expensive taste in things, like groceries and household items. You should also consider if any costs are split with your employer, like phone bills. Health insurance is one of the most overlooked expenses that may necessitate the most attention by divorcing spouses.
You’ll need to document your expenses with copies of your monthly bills, receipts, etc. It may help to go over the last few months of bills, and divide your expenses into categories—groceries, transportation, clothing, travel, monthly bills like rent or utilities, etc. Figure out how much spending you usually do in each category, then consider what will be different with you and your spouse living separately. If you have kids, whoever has custody of the children will spend more on things like groceries. If you’re trying to divide time with the children evenly, you may want to estimate expenses for having them half the month.
What are Marital and Non-Marital Assets?
People often ask us questions about whether something is or isn’t a marital asset. In most cases, assets that you owned solely in your name prior to the marriage will be considered non-marital assets. So, if you owned your house before you got married, your spouse probably won’t be entitled to it or financial compensation for half of it, even if they lived in it with you for years. However, having invested into the house during the marriage may have an effect on how the court determines this non-marital asset into the asset-division equation. Retirement accounts are also subject to special treatments.
Marital assets include any property acquired during the marriage, regardless of who paid for it or whose name it is in. So, that means if your spouse bought a brand-new car while you were married, you may be entitled to half its value. There are some exceptions though, and your attorney can advise you on specific assets that you have concerns about.
Keep in mind that a judge will try to divide marital assets fairly, but that doesn’t always mean a 50/50 split of everything. In some cases, they may decide that one partner deserves to keep a specific asset that they put far more time or money into than the other spouse. If there are specific assets that are important to you for sentimental or personal reasons, you may ask your attorney if you can negotiate to keep those specifically. For example, you might offer to let your spouse keep the expensive new car if you can have the speedboat you acquired the year before.
Moving Forward with Divorce
Your Florida divorce lawyer will draft and file a petition for dissolution of marriage with the appropriate local court. This will later be served to your spouse. If, however, your spouse has already served you with divorce papers, your lawyer will likely prepare and file a response and move forward with the divorce proceeding.
The petition will contain the petitioner’s explanation of why they want a divorce, or why they feel the marriage is irretrievably broken—infidelity, incompatibility, inability to agree on finances, simply growing apart, etc. Your attorney will also include what you are asking for in the divorce—assets you want to keep, joint or full custody of children, alimony or spousal support.
For the most part, your response to a petition for dissolution of marriage will be much the same if you’ve been served with the petition (most times, a counter-petition is filed whereby you can also lay out your requests as if you had filed the original petition for dissolution of marriage). If you feel that your spouse’s version of things has overlooked some important issues that contributed to the marriage deteriorating, you can include these. For example, if Ann’s husband Bob claims that Ann has become distant and just doesn’t care for him anymore, when in reality he’s already moved in with his girlfriend, Ann might want to address that in her response.
You can also respond to what the other party has asked for in terms of assets, support, custody, etc. Your lawyer will go over each section of the petition with you to learn what you think. You may be fine with some of your spouse’s asks, but vehemently opposed to others. After making notes, your attorney will draw up a response listing anything you agree with, everything you don’t wish to give up, and whatever wants you have in settling the divorce. Occasionally they may advise adding counterclaims—for example, if your spouse stole or disposed of some valuable item of yours, you may ask for it back or for financial restitution.
Under Florida law, a response needs to be filed within 20 days of being served with the petition. After certain documentation is exchanged, you will most likely attend a mediation. Your attorney will represent you throughout the process, helping you gather evidence, making lists of witnesses if necessary, and preparing you to testify in some cases.
Does My Divorce Have to be Contentious?
No, if you and your spouse are parting ways amicably, want to remain on speaking terms for the benefit of your children, etc. If you and your spouse are able to come to an agreement on things like alimony, child custody and support, and division of assets, this process may save you both time and money on the court and attorney’s fees associated with a lengthy courtroom battle. It will also help you avoid the stress of arguing things out in court.
A mediation is most likely mandatory. During the mediation process, a mediator, or neutral third party, will meet with both spouses. This person may be appointed by the court or hired by the parties. They will brainstorm with the couple about ways to handle various issues, such as division of assets, child custody, alimony, etc. The mediator makes every attempt to ask questions and talk through issues in a non-threatening, non-intimidating way. They may suggest compromises, like, “What if you keep the house and you pay this much less in spousal support?” They focus on helping both parties get the things they truly want out of the settlement so there will be less reason for them to return to court later. Often, people who are able to complete the mediation process are more satisfied with the outcome than those who have their divorce determined by the court.
If the parties can come to an agreement in mediation, they can present this agreement to the judge, who will likely sign off on it. It’s important to remember that mediators are not in place to give legal advice to either party. If you and your spouse reach a tentative agreement in mediation, you will still need your attorney to look it over carefully before signing it, to ensure both that you understand it, and that you aren’t giving up any important rights.
Although many couples benefit from mediation over litigation, it isn’t appropriate for every couple. Some breakups are just too contentious, and sometimes one or both parties are uninterested in mediation. In other cases, couples try mediation but find they just can’t reach a meeting of the minds on one or more important issues. If this happens to you, there’s no reason to be concerned. Your divorce attorney will be prepared to represent you in the court case.
How Do I Find a Divorce Attorney Near Me?
If you need assistance with your divorce, or have questions about any potential legal matter, please contact Apfelbaum Law for a consultation. You can also check out our Family Law Practice Area for more information. We have offices in Port St. Lucie and Stuart, but provide legal services throughout the Treasure Coast and Florida.
