What is the process and what happens when I file for divorce?
Whether to file for divorce (Petition for Dissolution of Marriage) is one of the hardest decisions a spouse can make. There usually isn’t an event or extramarital affair that is a hard catalyst for this decision. In reality, a divorce does not begin once the petition is filed; but that moment when the parties drift apart. It usually begins with an argument where neither party is willing to make peace, one party moves out of the marital bedroom into a guest room, or you stop saying “I love you” or “goodnights.” These moments over time add up and begin the deep divide that leads someone into ultimately deciding that they need to move on with their lives and file for divorce. That decision can be all the more difficult if the parties have minor children together, own a marital business, own substantial property, or are unable to afford to live separately. The decision to file for divorce is yours and yours alone. Only you know if the marriage is “irretrievably broken.” As I tell almost all of my clients during our initial consultation, if you have taken the steps to contact me, made an appointment, shown up for the appointment, and have gone over the divorce procedure with me; odds are the marriage is irretrievably broken. Whether you decide to file for divorce today, next month, next year, or in five years; you will almost certainly be divorced at some point in the future. It’s time to make the decision if you want to start the process and move on sooner or later. There is an old saying in sports, “Once you start considering retirement, that is when you get hurt.” That saying is completely true about deciding whether to file for divorce. Once you cross that line, you cannot go back.
WHAT HAPPENS WHEN YOU FILE FOR DIVORCE?
Once a Petition for Dissolution for Marriage has been filed, the following process will begin:
- The other party will be served by a Sheriff’s Deputy or a Process Server
- That party then has twenty (20) days to respond by filing what’s called a “responsive pleading.” If they do not, you can seek a Default Judgment.
- From the date the other party is served, both parties have forty-five (45) days to comply with discovery requests. These include Mandatory Disclosure and filing of a Financial Affidavit.
- Once all discovery has been completed, then the parties are required to attend Mediation. A vast majority of cases reach a settlement agreement at mediation.
- If the case does not settle at Mediation; then it will be set for trial to resolve all outstanding issues.
Do I have to pay Alimony? Can I receive Alimony?
One of the major issues with any divorce is Alimony. That can either be the scariest word in the English dictionary or can bring relief and lessen the financial stress of a pending divorce. The Courts are granted broad discretion in their ability to grant the amount and duration of alimony. When dealing with receiving or paying alimony, it is a necessity to have superior legal representation. You need someone who understands the statutes, case law, and most importantly the judges who will make the rulings. The State of Florida has several different forms of alimony that can be awarded, dependent on several factors. Before the Court can award any of the forms of Alimony, they first need to rule that there exists a need for alimony and the other party has ability to pay. If the Court rules that a party has need for alimony and the other party has the ability to pay alimony, the Court will then determine the length, amount and proper type of Alimony to award. The Court shall consider all relevant factors, including, but not limited to:
- The standard of living established during the marriage.
- The duration of the marriage.
- The age and the physical and emotional condition of each party
- The financial resources of each party, including the non-marital and the marital assets and liabilities distributed to each.
- The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
- The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
- The responsibilities each party will have with regard to any minor children they have in common.
- The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as nontaxable, nondeductible payment.
- All sources of income available to either party, including income available to either party through investments of any asset held by that party.
- Any other factor necessary to do equity and justice between the parties.
There are three distinct lengths of marriages that are recognized:
- Short Term Marriage: Duration is less than seven (7) years.
- Moderate Term Marriage: Duration greater than seven (7) years but less than seventeen (17) years.
- Long-Term Marriage: Duration of seventeen (17) years or greater.
There are currently four (4) different types of alimony that can be awarded:
- Bridge-the-Gap Alimony
- Rehabilitative Alimony
- Durational Alimony
- Permanent Alimony
Bridge-the-Gap Alimony is recognized when one party needs financial assistance while transitioning from being married to being single. The party must show a legitimate and identifiable need for short term assistance. Due to this being recognized for short term assistance, the length of this award may not exceed twenty-four (24) months in duration. Said alimony does terminate upon the death of either party or the remarriage of the receiving party. This form of alimony shall NOT be modifiable in amount or duration. There are certain instances where this form of alimony can be a real detriment to the party paying and/or the party receiving the alimony, which is why expert legal representation in this matter is paramount. WHY??
Rehabilitative Alimony is awarded to assist a party in establishing the ability for self-support through either the redevelopment of a previous skills/credentials and/or acquiring education, training or work experience necessary to develop appropriate employment skills or credentials. To award Rehabilitative Alimony there MUST be a specific and defined rehabilitative plan. This form of alimony may be modified or terminated based upon a Substantial Change in Circumstances, Non-Compliance with the Rehabilitative plan, or upon completion of the Rehabilitative plan. This is a form of Alimony that most attorneys do not fully grasp nor able to provide a Rehabilitative Plan that can comply with the applicable case law and Statute. I have designed multiple Rehabilitative Plans for clients that comply with all applicable case law and statutes. Being able to provide a Rehabilitative plan for the Court to Order, is a showing of expertise in this field of Alimony, which is what my clients receive.
Durational Alimony may be awarded following a short term or moderate term of marriage and Permanent Alimony is not appropriate. The purpose is to provide a party with economic assistance for a duration of length. A party of a marriage of Long-Term Duration may also be awarded Durational Alimony if there is not a need for Permanent Alimony. An award of Durational Alimony terminates upon the death of either party or upon remarriage of party receiving alimony. The amount of Durational Alimony may be modified or terminated based upon a Substantial Change in Circumstance. The length of Durational Alimony may not be modified except under exceptional circumstances and may not exceed the length of the marriage.
Permanent Alimony is awarded when the needs of one party lacks the financial ability to meet their needs of life established during their marriage, following a divorce. Permanent Alimony is typically reserved for a party following a Long-Term Marriage. The Court can order Permanent Alimony for a Moderate-Term Marriage, so long as there is clear and convincing evidence after consideration of the factors listed above. Under Exceptional Circumstances, the Court may award Permanent Alimony for a Short-Term Marriage. When awarding Permanent Alimony, the Court SHALL include a finding that no other form of alimony is fair and reasonable. Permanent Alimony is terminated upon the death of either party or upon remarriage of the party receiving alimony. The amount and length may be modified or terminated based upon a Substantial Change in Circumstances or upon a showing that the receiving party is in a Supportive Relationship.
Alimony always comes down to duration and amount. I have proven results that provide maximum benefits to my clients based upon their individual needs. The new Federal Tax Code that passed for 2018 has a major impact on Alimony awards. As you can see there are many different types of alimony with a multitude of Factors that must be weighed accordingly. The Frankel Law Firm will provide you with the opportunity to maximize your Alimony award or limit your exposure if the paying party. Please call or contact my office to schedule a consultation to thoroughly discuss all of your specific goals and needs.
Equitable Distribution—Do I get to keep my stuff?
Whenever there is a divorce, the parties must divide all of their marital assets and liabilities, which is considered Equitable Distribution. There are some exceptions, but the basic premise is that any asset or liability that was accumulated by either party during the course of the marriage is considered marital. The Courts have ruled that Equitable Distribution means to be “Fair”, NOT Equal. The Court does begin with the premise that the distribution of the assets and liabilities should be equal, unless there is justification for Unequal Distribution based upon these factors:
- The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
- The economic circumstances of the parties.
- The duration of the marriage.
- Any interruption of personal careers or educational opportunities of either party.
- The contribution of one spouse to the personal career or educational opportunity of the other spouse.
- The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
- The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
- The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine of ot would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.
- The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
- Any other factors necessary to do equity and justice between the parties.
You might have non-marital property as well. Non-Marital property is considered to be property you acquired prior the marriage or under certain circumstances acquired during the marriage (inheritance or gift). In many cases that non-marital property can be considered to have commingled with marital assets and part if not all of the Non-Marital property can become Marital property.
I will provide all clients with several different extensive and thorough Equitable Distribution Charts that best fit their individual needs and goals. To learn more about the specific intricacies of Equitable Distribution as it equates to your case, please call or contact my office to schedule a consultation.
COMPLEX HIGH NET WORTH DIVORCES
There a many different kinds of divorces, some more complex than others. I have experience in several cases involving Complex High Net Worth divorces with complex land holdings, multiple businesses, high yielding annuities, extremely large trust accounts with complex equitable distribution schemes. These types of case are no more important than any case that I deal with. But, they are more complex, nuanced, and time-consuming. These cases require an attorney with experience dealing with these complex areas and issues that will arise. The most important aspect in dealing with these types of complex cases is to get out ahead of them. What that means, is hiring certain experts; whether they are forensic accountants, business evaluators, or a tax expert so as to immediately be prepared. Not every attorney is able to ensure that the right expert is hired for the right case. I have the contacts to hire the right expert for the right case, as well as be able to utilize the expert fully to enhance your position. If you believe you belong in this category of divorce, please call or contact my office to schedule a consultation.
Uncontested, Amicable Divorce
In many circumstances the parties decide that they would like a quick, simple and amicable Uncontested divorce. These types of cases are financially beneficial to the parties as the lack of litigation, motions, hearings, discovery disclosure equates to paying low attorney fees. These types of cases can happen frequently so long as all parties are treating each other courteously, respectfully and fairly. The Frankel Law Firm is capable of representing one spouse and be contracted to provide all of the legal documents. In these types of cases, the parties can be divorced within thirty (30) days of contracting my services. If you are interested in an amicable divorce with your spouse, please call or contact my office to schedule a consultation.
AGREEMENTS—CAN I SIGN AN AGREEMENT?
Marital Settlement Agreement
Most divorces are settled through an Marital Settlement Agreement, typically during a Mediation Conference. In the State of Florida, all parties during a divorce proceeding MUST attend a Mediation conference unless they can reach an Agreement. Mediation occurs once all of the parties agree upon a Certified Family Law Mediator. The mediator will attempt to broker a written settlement of all of the outstanding issues between the parties. Mediation can be an expensive undertaking, but well worth it if an agreement can be reached prior to trial. If an Agreement is not reached, the negotiations that took place are considered confidential and cannot be used in any Court proceeding. Having the Mediation negotiations confidential lend themselves to a higher probability of reaching an agreement due to not having the fear of the Court relying in those negotiations.
Not all cases reach an Agreement during Mediation, but after Mediation has concluded the negotiations can continue for the next few days/weeks until an Agreement has been reached. I have extensive experience drafting Marital Settlement Agreements that encompass all of the statutory provisions required. Any Agreement you sign is comparable to a written contract. Not all Agreements are written the same and for your protections, it needs to be written clear, concise and with your best interest at hand. If you are in need of someone protecting your best interests during a divorce, keep in mind that an Agreement will more than likely need to be drafted. For an experienced attorney in drafting a Marital Settlement Agreement, call or contact my office to schedule an appointment.
Before a marriage, certain parties contract a Pre-Nuptial Agreement. These types of Agreements are similar to a car Insurance policy. No one expects to get rear ended driving to work, same as no one expects on their wedding day that they will be getting divorced. Pre-Nuptial Agreements actually alleviate stress and financial repercussions if a divorce is needed in the future. There are certain issues that cannot be contracted in a Pre-Nuptial Agreement, including the waiver of child support. There are many issues that can be contracted in a Pre-Nuptial Agreement, including, but not limited to:
- Pre-Marital Residence
- Pre-Marital Business
- Pre-Marital Stock Portfolio
- Limit the amount and duration of alimony
- Interest in Pre-Marital Family Business or Real Property
Just because a Pre-Nuptial Agreement was signed, does not make it enforceable in part or in whole. If you are in need of a Pre-Nuptial Agreement drafted or an existing one reviewed, please call or contact my office to schedule an appointment.
With offices in Ormond Beach and Daytona Beach, the Frankel Law Firm provides clients throughout Volusia and Flagler Counties with exceptional legal services in all aspects of family law. The firm's areas of expertise include jurisdictional divorce issues; marital property characterization, valuation, and division; spousal and child support; child custody cases; paternity matters; adoptions, and prenuptial, postnuptial, and marital settlement agreements.
120 E Granada Blvd., Suite 203
Ormond Beach, FL 32176
(386) 317 4641
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