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Divorce Law FAQ

Divorces are typically handled on an hourly basis by attorneys. An uncontested divorce will cost considerably less than a contested case simply due to the professional hours that must be invested to provide competent representation of your interests. As a marriage is viewed legally as a contractual relationship, if a marriage was procured utilizing fraud, duress or undue influence it may be annulled. However, there are many factors that may block an annulment (the passage of time, the birth of children, etc.) and a divorce would be a more reasonable option. Florida and many other states are ‘no fault’ states, which means that all that needs to be shown is that the marriage is irretrievably broken. Thus, adultery is irrelevant. However, an affair that has dissipated the marital assets is important. For example, where one party has used the marital bank account to fund an extra-marital affair the court can ‘return’ the money to the marital estate by financially penalizing the adulterous spouse in the amount of the dissipation. Yes. The key here is to understand that the main function of the court in a custody case is to focus on the ‘best interest of the child’. This may involve keeping the parent with whom the child lives a majority of the time in the jurisdiction of the court. Relocating outside the jurisdiction (ex.: moving out of state) will require either court approval or a stipulation with the other parent.It depends on your jurisdiction and the schedule of the particular judge before whom the case will be heard. Typically, a hearing can be held to end the case within a month of the parties asking the court to set an uncontested final hearing.A Petition seeking the divorce and any related relief must be filed with the Clerk of Court in the jurisdiction where at least one of the parties resides. Then, the court papers must be served on the other spouse by a process server. An Answer to the Petition is due from the other spouse within 20 days thereafter. The case then begins with the gathering of financial documents and other discovery (including depositions, the hiring of required experts, etc.), and if there are children, with mandatory mediation. One hopes the case settles in mediation. If not, the case will be set for trial. There may be many intervening steps but this is the general process.The mother is the natural guardian of the child and until paternity is established, the birth father does not have rights to the child. He is a ‘legal stranger’ to the child even if he is on the birth certificate. The father should file an acknowledgment of paternity, or file a paternity case to establish his rights to the child. These rights include time-sharing (visitation) and shared parental responsibility, along with an obligation to provide child support unless the parents are living together., If your divorce case cannot settle because one spouse refuses to sign a settlement agreement, the court will set the case for trial, assuming a divorce case has already been filed. If no case is then-filed, it will be necessary to initiate a divorce action. A default means that one party has failed to timely file a responsive pleading to the Petition for Divorce or Counter-Petition and the court (or Clerk) has entered the default. The law assumes that the defaulting party has admitted all of the properly plead allegations in the Petition (or Counter-Petition) and can enter judgment on those allegations. Only allegations regarding the minor children will be tried by the court thereafter. Florida and many other states are ‘no fault’ states, which means that all that needs to be shown is that the marriage is irretrievably broken. In those states where ‘fault’ is required to be shown, these are generally limited to abandonment, alcohol/drug addiction, mental deficiency or spousal abuse which must be shown by the Petitioner/spouse.The states vary greatly in the matter of alimony. In Florida, alimony is based on the requesting spouse’s financial need as established during the marriage and the other spouse’s ability to meet that need. Also, Florida has a three-tier structure for alimony based on the length of the marriage at the time of the filing of the Petition for divorce. Florida also has a number of types of alimony geared toward meeting the length of the marriage and the need/ability equation.No. Once entered, a divorce Final Judgment is permanent. Note that some portions of the Final Judgment (ex.: alimony, child support and child time-sharing, etc.) may be subject to a future modification based on a substantial and material change of circumstances since the entry of the Final Judgment. There are also other circumstances that may result in a re-examination of the Final Judgment such as fraud on the court, but these are a small minority of the cases.Under Florida law, we are an equitable distribution state. That means that all marital assets and liabilities must be listed and valued, with the total value of the net marital estate being generally equally divided between the spouses. The value of pre-marital assets and pre-marital liabilities are returned to the appropriate spouse, but the appreciation in value of pre-marital assets which accrued during the marriage may be valued and divided as well if marital efforts or labor (and marital funds) were used to build the marital appreciation of the pre-marital asset. Sometimes, if there is marital financial misconduct, the court can order an unequal distribution of the net marital estate to compensate the innocent spouse.. You should meet with a competent family law attorney to discuss the elements of your case, what you would like to achieve and the anticipated time, fees and costs to be expended. Then, your attorney will consider if it is best to file for divorce or to proceed with a collaborative law process to resolve the case without litigation.A married couple can create a Separation and Marital Settlement Agreement that resolves all of the issues in their marriage without having to secure a divorce. The services of a competent family law attorney should be engaged. Also, Florida law allows spouses to file an action requesting the court to enter a judgment for alimony and/or support (including for the children) without having to seek a divorce.

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