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Procedure After Filing Florida Divorce Petition

Once the Petition For Dissolution of Marriage is filed, your spouse is entitled to receive it. Until such time as it is properly served upon your spouse, they have no obligation to answer the Petition or do anything at all. The law requires that the Petition be properly served on your spouse. This means that a Sheriff or process server needs to bring it to your spouse and confirm that your spouse was served. There are exceptions to the requirement of personal service such as “substitute service”. That means that the process server can leave the Petition at the usual place of abode of your spouse in the hands of a co-tenant of your spouse who is 15 years of age or older.

Once served your spouse generally speaking has twenty days to file an Answer or responsive pleading, or a default judgment can be entered against them. So you cannot simply mail or hand to your spouse the Petition. (Unless your spouse for example would sign a document waiving formal service of process which they have a right to). And if it is an uncontested situation where everybody agrees on everything and each party is going to cooperate to get it done, there need not be formal service with a process server or Sheriff. Your spouse can sign an appropriate document waiving formal service instead of being served by the Sheriff or process server. If this happens, the case can proceed very quickly. As mentioned, once served, a Petition must be responded to in twenty days. (in writing) Your spouse can respond to what you have in the Petition and also file a Counter-Petition asking for whatever they may want. If your spouse fails to answer the Petition within the twenty day deadline, a default judgment can be entered against your spouse and you can proceed directly to court to testify before the judge about what you are seeking.

There is also a provision in the law where instead of formally serving your spouse, you can publish the matter in the newspaper. It would have to be published on four consecutive occasions in a proper legally recognized newspaper or publication. The circumstances where you can do this include a situation where your spouse is truly missing. (You have to sign a sworn Affidavit of Diligent Search indicating that you have really tried to find them and cannot.) The search, among other things would include, speaking to family and friends, and employers/former employers, etc. You cannot publish just because your spouse doesn’t choose to talk to you or because you don’t feel like looking hard to find them. Another circumstance where you can publish instead of personally serving is where your spouse is in a foreign country, or your spouse affirmatively conceals their whereabouts.

If you publish the matter and your spouse has not answered by the deadline indicated in the notice that gets published, you can get a default judgment and then proceed directly to court. Note however that in a Florida dissolution of marriage (divorce) where you have published, the judge, as a general proposition, can only grant a divorce. In other words, the court cannot for example award alimony. There may however be circumstances where the court could award property or assets to you if you have published.

Florida Bankruptcy and Divorce

It is not uncommon for a spouse to file bankruptcy during, shortly before, or after a Florida Dissolution of Marriage case. (i.e. Florida divorce) A number of sections of the United States Bankruptcy Code address the handling of divorce issues in bankruptcy cases. A. History And Terminology As an initial matter, most bankruptcy courts in Florida (and in fact throughout the country) agree that bankruptcy judges should avoid wading into Florida family law matters, and defer to state court judges and their established expertise in matrimonial matters.

For example, the issue of dividing marital property under domestic relations law is left to state court judges. Debts for alimony and child support (known as “domestic support obligations a/k/a DSO”) are granted special status in the Bankruptcy Code. Other than the possible exception of administrative expense claims, DSOs are the highest priority claims.

This means that your DSO claim will be paid before other claims, such as credit card claims. You may have other claims against your former spouse, such as a claim to marital property. This type of claim, unlike the DSO, is not granted special treatment in your former spouse’s bankruptcy case.

B. The Effect Of A Bankruptcy Filing The “Automatic Stay” of the Bankruptcy Code prevents the filing or continuation of most lawsuits against the bankruptcy debtor. Florida Family law cases are different. The Bankruptcy Code does not prevent the filing or continuation of a civil action for: the dissolution of marriage; redress of domestic violence; establishment or modification of a DSO order; child custody or visitation; or the collection of a DSO from the bankruptcy debtor’s property that is not property of the bankruptcy estate. Permission of the bankruptcy judge is needed, however, for the matrimonial court to decide issues relative to claims to marital property and equitable distribution.

C. CAN A DEBT ARISING FROM DIVORCE BE CANCELLED IN BANKRUPTCY? If your spouse files Chapter 7 (straight liquidation) no matrimonial debts (DSO or property claims) can be cancelled in the Chapter 7 discharge. These debts survive the bankruptcy and you are free to continue your efforts to collect. If your spouse files Chapter 13 (Adjustment Of Debts Of An Individual With Regular Income) the spouse must file a plan (that must be approved by the bankruptcy judge) detailing how the creditors will be paid. DSO claims must be paid in full.

In addition, your spouse must be current on all DSO payments due after the filing of the Chapter 13 Case. If your spouse files Chapter 11 (Reorganization) the Chapter 11 Plan must provide for payment in full of the DSO Claim. Also, your spouse must be current on all DSO payments due since the filing of the Chapter 11 Case. The intersection of bankruptcy law and family law is complicated and requires the guidance of an attorney that possesses knowledge and experience in this practice area. Todd has significant experience in these matters and stands ready to help you!

Flat Fee Low Cost Florida Divorce

Pricing for Online No Court Florida Divorce

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No Matter Where You Live in Florida

Florida divorce attorney Arnie Gruskin now offers a low-cost, flat fee, fast Florida uncontested divorce. It is a completely online Florida uncontested divorce , and it doesn't matter where in Florida you live. No need for an appearance in court, or a trip to the lawyer's office. Mr. Gruskin uses an efficient system of communicating by phone and email to keep prices down. Other information can provided by the client securely and confidentialy online. Click For Pricing.

Avoid uncertainty and the risk of a large bill which can result from hourly billing. While there's a fair amount of work to be done to complete an uncontested divorce, especially when children are involved, it is a pretty straightforward process.

Because each side is cooperating to get the case done, the lawyer can accurately estimate how much time they have to put into the matter. And a flat fee is thus practical. Mr. Gruskin does not wear thousand-dollar suits and does not have marble floors in his office. His prices are therefore reasonable.

Unless your case is unique, you do not need a high-priced lawyer. On the other hand you do not want the cheapest lawyer you can find. (because they may have little experience, or not pay a lot of attention to your case because they're not adequately paid). Mr. Gruskin has 35 years of experience and is dedicated to getting your case over with quickly and properly.

Florida Divorce Appeal Process

If a Florida divorce case is not settled between the parties, the judge will hold a final hearing (trial) on the issues of the case. These hearings are held without a jury and the judge will listen to testimony from the parties and any witnesses and make a ruling on the case. The judge will determine what the law is on each issue, and decide what the facts are regarding the issue. (which may entail deciding which witness testimony is to be believed) No matter where you live in Florida, Call 1-800-NOW DIVORCE to discuss attorney Gruskin's availability to handle your appeal.

If one party or both are not satisfied with the judge's ruling, there is a right to appeal to a higher court, known in Florida as the District Court of Appeal. (there are five district court's of appeal in Florida, each handling the cases from various judicial circuits and counties in Florida) Note that there are extremely strict deadlines for when you must file your papers regarding an appeal.

If you miss a deadline you may be pretty much out of the ballgame although there are some very rare exceptions.The appeals court will review the case to determine if the trial court made any errors in the determination or application of the law regarding each issue. (for example the appeal court may decide that the trial court should not have allowed certain testimony because it was hearsay)

It will also determine whether the trial court was correct in deciding what the facts of the case were. (to see if for example there was enough evidence to draw certain conclusions. It is rare that the appeal court will rule that the trial court didn't have enough evidence to draw a conclusion about the facts of the case. They view the trial judge as being in the best position to assess the credibility of witnesses for example.

The appellate court may conclude that the trial judge has made a mistake in applying the law to the facts of the case. (the appeals courts, and for that matter the trial court considers, as to what the law is, the statutes and procedural rules regarding divorce , as well as previous appeal court decisions on the issues)

Appeals are a lengthy, costly matter. Depending on the judge, the trial court proceedings may be a little less formal than appeal proceedings, although certainly the rules must be followed. There are very strict rules as to how appeals proceed and appeals are a lot of complicated work for the appellate lawyer. It is very difficult for someone to do their own appeal without a lawyer, very difficult. (note that the appeals court does not hear testimony from witnesses or accept new evidence)

There is no right to appeal a decision of the district court of appeal to the Florida Supreme Court. And those appeals are seldom heard by the Supreme Court unless for example there is a discrepancy between what one district court of appeal rules on a particular legal issue versus what another district court of appeal has ruled.

The appeals process on a Florida divorce will take many, many months if not longer. A transcript of the trial court proceedings must be prepared and reviewed by the appellate lawyer. (hopefully a court reporter was present at the relevant trial court proceedings so that a transcript can be prepared) .

The transcript and other documents will be presented for review to the appeals court. The appellate lawyer will prepare a "brief" to submit to the appeals court. It will state what errors the lawyer believes were made by the trial court and refer to the transcript and other materials to back up their position. An "answer brief" filed by the opposing party responds to the "brief".

Sometimes but not always, the appeals court will allow oral arguments. The lawyers will then be given an opportunity to present their positions verbally and respond to any questions asked by the appellate judges. (there is more than one judge on the appeals panel) There are several possible outcomes of an appeal on a Florida Divorce. One is that the appeals court can affirm a trial court's rulings so that they stand.

Another is that the trial court ruling is overturned. And the appeals court can send the case back for further proceedings in front of the trial court if the appeals court decision affects other decisions that the trial court had made. Sometimes the appeal court will need further detail in the trial court's written order to be able to properly review the proceedings. No matter where you live in Florida, Call 1-800-NOW DIVORCE to discuss attorney Gruskin's availability to handle your Florida divorce appeal.

Florida No Court Appearance Online Divorce

Pricing for Online No Court Florida Divorce

Call 1-800-NOW DIVORCE
No Matter Where You Live in Florida

Arnie Gruskin, a thirty plus year Florida attorney now offers a no court appearance "online" divorce. There is no need to come to the attorney's office as all matters regarding your case can be handled by phone and email. This efficient process means lower pricing and faster service. This no court Florida uncontested divorce option is available no matter where in Florida you reside, and whether or not you have children.

A no court Florida Divorce is only available if your spouse is going to cooperate and you have an agreement on all issues, such as division of property, whether or not there will be alimony, and any child related issues such as child support and timesharing. (formerly know as "custody" and "visitation") Click Here For Pricing for Online No Court Florida Divorce

Once Mr. Gruskin is retained, a telephone conference will be scheduled so that he can gather all pertinent information that he needs to begin drafting the Court required documents for your case. During the conference Mr. Gruskin will answer your questions, advise you of your rights and responsibilities, and make sure you are getting a fair deal with your spouse.

Mr. Gruskin will then prepare your court required paperwork. The documents will be emailed to you so that you and your spouse can sign them and return them to Mr. Gruskin for filing.

The benefit of a no court appearance divorce is obvious. A trip (or trips) to the courthouse is avoided, and Mr. Gruskin files the case with the Clerk of Court on your behalf. While a no court appearance divorce is often a terrific option, it is not right for everyone.

First, in some situations it may take a bit longer than if the case was filed at your local courthouse. Secondly, and perhaps more importantly, the case will be filed in Collier County. (which is one of the only counties in Florida that allows a no court appearance divorce)

Filing in Collier County can be problematic if, after the divorce, a party doesn't live up to their obligations under the settlement agreement. (such as failing to pay support or bills , not returning property, or not abiding by a visitation/timesharing provision for example) If the parties don't live near Collier County, they will either have to travel there or have the case transferred to their home county inorder to deal with the problem.

A decision must thus be made as to whether it's advisable to opt for a no court appearance divorce. Whether or not you do, attorney Gruskin can represent you on your divorce. You will have ongoing access to him so that he can answer your questions, and guide you until you obtain your Florida divorce.

Do You Need a Florida Divorce Accountant?

Sometimes in more complicated Florida divorce cases, a forensic accountant may be necessary to get a handle on financial issues. Those issues may include the parties' assets and income, and expenses, liabilities and debts. The attorney for a party must of course have an understanding of the economic condition of the parties so as to adequately deal with alimony, child support and property distribution issues. But an accountant is sometimes better equipped to investigate these issues and work with the attorney to properly present them. And it may be more cost effective to have the accountant do the financial investigation and in depth audit which some cases require.

Accountants may be able to find hidden assets and income. (or assets and income which are hard to find, although not necessarily intentionally hidden) They can also prepare, based on their investigation, a proposal for a fair distribution of assets between the parties. Part of their job may include determining the value of assets, such as business assets. Another area for the accountant may be to assist a party in properly presenting their financial materials and condition as required by the Florida divorce court rules. They can also develop strategies to preserve the value of assets and minimize taxes.

With regard to alimony and child support, one of the more important tasks of the accountant may be to determine the true income of a party, and their ability to pay support. (and assess a party's need for spousal support) Also, because child support is a statutory formula, the accountant can assist the attorney in making the proper calculation. While it may seem like a simple matter to determine income, assets and debts and liabilities, sometimes it is not so simple. Poor (or intentionally poor) record keeping can make the investigation difficult. Inventory sometimes must be taken to determine the full list of the parties' assets.

Valuation of assets is sometimes a challenge and subject to debate. (for example valuing a business or a unique item may be difficult. Sometimes other experts must be called in for their opinion) And income is not always easy to determine, especially for people who are self employed. Income can be hidden or miscalculated, intentionally or not. The true profit of a business may be subject to debate, especially if claimed expenses are not business related. Additionally, debt must be adequately determined so that it may be fairly distributed between the parties, and considered when assessing the net value of assets.

In many cases a forensic accountant is not needed in a Florida Divorce. But there are often situations where their services are needed to determine the actual financial condition of the parties.

Florida Contested Divorce Help

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South Florida Divorce

(See second section below if your case is outside of South Florida)

Do you have a divorce or paternity matter pertaining to Broward, Palm Beach or Miami-Dade County? Have you been unable to reach a settlement agreement on the issues involved? Attorney Gruskin is here to help.

He has thirty plus years courtroom experience and will appear in Court with you and handle every aspect of your case. He can assist with contested divorces, including issues about child support, timesharing/visitation, alimony, division of property and debt, enforcement (other party will not honor court orders regarding support etc.) modification of support, re-location and appeals.

Call Attorney Gruskin days, nights or weekends at 1-800-NOW DIVORCE with your questions, or to schedule a free consultation. Or, click here to Email Your Florida Divorce Questions to the attorney. Remember that divorces do not have to be emotionally or financially devastating. We know that you want your case over with quickly and inexpensively. Reaching a settlement rather than having the judge decide the issues will save you alot of time, money and aggravation. Mr. Gruskin, a thirty plus year Florida lawyer understands this. He will work toward settlement of your case. But if things cannot be resolved, he will fight hard in Court for you to get what you're entitled to under the law.

If your case is outside of South Florida

If you have not reached an agreement with your spouse about the issues in your case, and you are going to represent yourself, you can still have an attorney assist you with preparation of the papers that you will need for Court.(including a proposed settlement agreement if you think you may be able to settle with your spouse) Call Attorney Gruskin days, nights or weekends at 1-800-NOW DIVORCE . Or Click to Email Your Florida Divorce Questions to the attorney.

For a variety of reasons it is not recommended that you represent yourself but it is your right to do so. The danger of you preparing your own Court documents? No offense but you're not an attorney. If you use the wrong language in the paperwork, or if you don't think of something that should've been in the paperwork, you may have waived your right to ask for or contest certain things.

If you represent yourself you may find forms on the internet that make you feel it's a simple process. Be careful because those one size fits all forms don't necessarily address everything that you'll need for your case. (or address everything properly) Court is not as simple as filling out a form. Far from it. If you chose to represent yourself and have an attorney prepare your court paperwork and motions, the process is simple. You will have a phone consultation with thirty plus year Florida lawyer Arnie Gruskin. You will explain your case to him so that he has a complete understanding of the financial and other issues.

Mr. Gruskin will then provide you with information about your rights and responsibilities under Florida law. You will also have the opportunity to ask questions during the conference. Based upon the consultation the attorney will prepare documents that you will need for Court, such as the Petition For Dissolution of Marriage. If you are going to represent yourself, save the time and aggravation of trying to figure out the entire divorce court system. Have Mr. Gruskin prepare your necessary divorce court documents. Call Attorney Gruskin days, nights or weekends at 1-800-NOW DIVORCE . Or Click to Email Your Florida Divorce Questions to the attorney.

Florida Divorce FAQ and Checklist


    PROCEDURE


    Procedure

    Can I avoid going to court and still get a dissolution of marriage (divorce) in Florida

    If Attorney Gruskin represents you, neither party will have to attend court if your case is uncontested. Uncontested means the parties agree on all issues of their case and each party cooperates to get the case over with. All documents will be transmitted to the Court electronically and neither party needs to be present in court for anything. Click here for Florida Divorce Pricing or to Email Florida Divorce Questions to the Attorney.

    How long does a divorce take in Florida and does it matter who files first

    It doesn't matter who files first. How long the case will take depends on whether it is contested or uncontested. An uncontested divorce can take as little as four to five weeks once all of the necessary paperwork is completed.An uncontested divorce means that both parties agree on absolutely everything such as child support, timesharing with minor children, division of property and debts and alimony, if any. And it also means that both parties cooperate to get the case over with.

    If the matter is contested, that is there are one or more issues which the Court has to decide, such as child support or alimony, etc., the case can take about 4-6 months or more to be heard. In the Florida counties where the Courts are extremely busy it can take a year or more. Hopefully at some point short of a trial the case can be settled through compromise by both parties or through the mediation process.

    How can I get a dissolution of marriage (divorce) in Florida

    In general one party needs to state that the marriage is "irretrievably broken" in other words it cannot be put back together through marriage counseling or any other means. Generally speaking, few people ever contest whether the marriage is irretrievably broken. Thus, in general you can get a divorce simply by asking for one and there is little that your spouse can do about it.

    Also, one party to the marriage must be a Florida resident for the six month period immediately preceding the filing of the petition for divorce. There is nothing else that you need to prove to get a divorce in Florida. This is different than some states where for example you have to prove adultery or violence or some other grounds.

    If I am a Florida resident but temporarily reside out of state, can I still consider myself a resident for purposes of getting a divorce

    That issue will be up to the Court but if the Judge decides that you are truly a Florida resident who is for example working for a corporation outside the state, or visiting elsewhere for a short period, etc., you will probably still be considered a Florida resident and can get a divorce. On the other hand if the Court determines that you really have no intention of coming back, or that you realistically are permanently living elsewhere although you may travel back and forth to Florida from time to time, you probably will not be considered a Florida resident. Also, if you are in the military, the fact that you are stationed outside of Florida does not detract from your Florida residency.

    What if I am not married to the parent of my child

    First, you need to establish paternity through scientific testing which can be ordered by the Court. Then child support and timesharing/visitation issues will be decided pretty much the same as in a Florida divorce case.

    Are same sex divorces handled any differently than other divorces

    No.

    What if I cannot find my spouse? Can I still get a divorce

    Yes. After you conduct a diligent good faith search which is required by Florida law. (There is a standard list of reasonable steps that you need to take to find your spouse such as writing to the Department of Motor Vehicles and talking to family and friends who may know the whereabouts of your spouse. You also have to publish the matter in an appropriate newspaper for the appropriate period of time and then you will be able to get a divorce. However, the Court will not have the ability to order any alimony for example, until such time as your spouse is found and served with the papers.

    What is the first step towards getting divorced in Florida

    If you meet the residency requirements and your marriage is irretrievably broken, a Petition for Dissolution of Marriage is filed which outlines any claims that you have for things like child support, timesharing with minor children, alimony, division of property and debts, etc. In general, the other party has to be served with the papers by a process server and then the requirements of various court rules and procedures come into effect. Also, where children are involved, Florida law now requires that the parties complete a "Children and Divorce" type seminar.

    What Happens After Filing A Florida Petition For Dissolution Of Marriage (Divorce)

    Once the Petition For Dissolution of Marriage is filed, your spouse is entitled to receive it. Until such time as it is properly served upon your spouse, they have no obligation to answer the Petition or do anything at all. The law requires that the Petition be properly served on your spouse. This means that a Sheriff or process server needs to bring it to your spouse and confirm that your spouse was served. There are exceptions to the requirement of personal service such as “substitute service”. That means that the process server can leave the Petition at the usual place of abode of your spouse in the hands of a co-tenant of your spouse who is 15 years of age or older.

    Once served your spouse generally speaking has twenty days to file an Answer or responsive pleading, or a default judgment can be entered against them. So you cannot simply mail or hand to your spouse the Petition. (Unless your spouse for example would sign a document waiving formal service of process which they have a right to). And if it is an uncontested situation where everybody agrees on everything and each party is going to cooperate to get it done, there need not be formal service with a process server or Sheriff. Your spouse can sign an appropriate document waiving formal service instead of being served by the Sheriff or process server. If this happens, the case can proceed very quickly. As mentioned, once served, a Petition must be responded to in twenty days. (in writing) Your spouse can respond to what you have in the Petition and also file a Counter-Petition asking for whatever they may want. If your spouse fails to answer the Petition within the twenty day deadline, a default judgment can be entered against your spouse and you can proceed directly to court to testify before the judge about what you are seeking.

    There is also a provision in the law where instead of formally serving your spouse, you can publish the matter in the newspaper. It would have to be published on four consecutive occasions in a proper legally recognized newspaper or publication. The circumstances where you can do this include a situation where your spouse is truly missing. (You have to sign a sworn Affidavit of Diligent Search indicating that you have really tried to find them and cannot.) The search, among other things would include, speaking to family and friends, and employers/former employers, etc. You cannot publish just because your spouse doesn’t choose to talk to you or because you don’t feel like looking hard to find them. Another circumstance where you can publish instead of personally serving is where your spouse is in a foreign country, or your spouse affirmatively conceals their whereabouts.

    If you publish the matter and your spouse has not answered by the deadline indicated in the notice that gets published, you can get a default judgment and then proceed directly to court. Note however that in a Florida dissolution of marriage (divorce) where you have published, the judge, as a general proposition, can only grant a divorce. In other words, the court cannot for example award alimony. There may however be circumstances where the court could award property or assets to you if you have published.

    What if I do not want a divorce but do want the Court to determine child support and/or alimony

    A Petition can be filed to accomplish this.

    Can one lawyer represent both parties and does each party always have to have a lawyer

    One lawyer should not represent both parties. In general it is impossible to represent the interests of two people who may in fact have different goals. Do not rely on your spouse's attorney to protect your interests as that lawyer is getting paid to be your adversary. On the other hand, if an agreement can be reached, then the spouse who does not have a lawyer can still communicate with the other parties attorney to work out details and hence avoid hiring a lawyer. (as long as they recognize that that attorney is their adversary.)

    What is the best route to take

    You will save a lot of time, money and aggravation if you can get an agreement with your spouse on all issues such as child support, timesharing with minor children, division of property and debt and alimony if any. Obviously this is easier said than done but if you can do it, a lawyer can draw up a settlement agreement and the matter will be fairly inexpensive compared to a contested Florida divorce. If you cannot agree on one or more issues you will need to go to Court for the Judge to decide these issues. Try and sit down with your spouse and work out details. It may take several meetings to conclude matters. If you have a spouse that thinks they're going to run the show, remind them that only the Judge runs the show. And without threatening, remind them that this matter can be done the easy way or the hard way.

    What if my spouse is violent or harasses me

    In an extreme situation of course the police must be called. Aside from, that, in Florida there is a procedure for getting a restraining order if your spouse is guilty of certain conduct, without notifying your spouse of your efforts to get one. (consult the clerk of court or a lawyer) If the Court does issue a restraining order on this basis ("ex parte") there will be a hearing within a number of days after issuance of the restraining order where your spouse can come in to Court and defend themselves. This procedure can be used even before the divorce process begins. Once the divorce process begins, the Court can order your spouse out of the house if things are bad enough (especially where children are involved) as well as order your spouse to stay away from you. These matters have priority in the Court system and do not have to wait until the absolute end of the case.

    What if I need temporary alimony or child support, or a distribution of assets before the final hearing in my case, but my spouse will not pay

    There is a procedure for going into Court almost immediately after the case is filed to get an order of temporary child support, alimony, or other relief, such as timesharing with minor children until such time as the case can be fully heard. Also, you can apply for a distribution of some of the marital assets while the case is pending, if there are extraordinary circumstances.

    What if I cannot afford a lawyer to represent me

    Aside from the possibility of Legal Aid representation if your income is such that you qualify for their help, there may be a chance that the Court will order your spouse to pay your attorneys fees. This can occur if your spouse earns substantially more than you. If this is the case, you should talk to an attorney about getting paid if and when the Court orders your spouse to pay your fees. Be aware however, that if you have money for a lawyer, although your money may be less than your spouse's, that the attorney is unlikely to agree to this as the court may well not order that you get reimbursed for fees. Also, attorneys like everyone else don't like to do work unless they get paid quickly. The chance that a lawyer will agree to wait for their money increases if there's money or assets which they can place a lien on or if your spouse has a longstanding job with a healthy paycheck and you have no money for fees.

    Are divorce cases heard by a judge or jury

    A judge.

    How do I get child support, alimony or timesharing with minor children modified once it is set

    As to child support one must show a "substantial change in circumstances". What this often means is that your spouse's income has increased markedly, or that your income or financial situation has changed substantially. Durational alimony can be modified upon a substantial change of circumstances pursuant to Florida Statute 61.14, although the length of the award cannot be modified, except under exceptional circumstances, and cannot exceed the length of marriage. Bridge the gap alimony is not modifiable as to amount or duration. Rehabilitative Alimony can be modified upon a substantial change of circumstances pursuant to Florida Statute 61.14, or upon non compliance with the rehabilitative plan, or completion of the plan. It should be noted however that where alimony is terminable upon remarriage, that a court may reduce or terminate the alimony when the recipient is residing with someone in a "supportive" relationship. There are numerous factors that the court will consider in deciding whether a "supportive" relationship exists, such as whether the couple hold themselves out as husband and wife, and the nature of their financial dealings. (Durational alimony terminates upon death of either party, the re-marriage of obligee, or substantial change of circumstances pursuant to Florida Statute 61.14 Bridge the gap alimony terminates upon death of either party or re-marriage of the obligee Rehabilitative alimony terminates upon substantial change of circumstances pursuant to Florida Statute 61.14, or upon non compliance with rehabilitative plan, or completion of the plan) A modification of timesharing with the minor children will probably require showing a substantial change in circumstances.

    How can mediation help my case

    Many many cases are resolved at mediation. It is a lot cheaper to have a mediator involved with a case than to pay lawyers to do the great deal of work necessary to prepare for trial before the Court. Mediators cannot force a settlement on anyone but they can certainly use their skills to show people what would be a reasonable settlement, and further advise them as to what the Court may do if their is a trial. Sometimes it is just good to have a neutral party that both sides will listen to assist with the settlement negotiations. (Ideally, the mediator should be a lawyer well-versed in divorce issues, or at least a Florida Supreme Court certified mediator) You often shouldn't go to mediation though until the discovery process (depositions and the exchange of financial documents) has provided you with a complete picture of your family finances (including your spouse's) and all aspects of, and the strengths and weaknesses of your case.

    Should I represent myself

    Unless you have legal training or the case is extremely simple it is best to have a lawyer advise you. Without legal training it is difficult to know what your rights and responsibilities are. If you do not know what your rights are, you may not ask for them or you may agree to things that you don't need to agree to. Also, without a complete knowledge of the rules of evidence, you may not be able to get certain testimony or evidence admitted into Court and you may therefore lose on a particular aspect of your case, despite the fact that you were "right". Judges cannot help people practice law, and cannot relax the rules of evidence in Court just because you are not a lawyer.

    Can I use my maiden name after the divorce

    You need to put in the petition for divorce in Florida that you wish to be restored to your maiden name. The Court can order that for example, as long as you are not changing your name to avoid creditors.


    TOPICS



    Here's a checklist of the most common issues in a Florida divorce.

    One party must be a Florida resident for at least the six month period immediately preceding the filing of the divorce petition.

    Custody of children. (the terms "custody" and "visitation" are no longer used in Florida, "Timesharing" is what needs to be determined, i.e. which days/nights does each parent get with the children)

    Whether there's going to be Shared Parental Responsibility. (i.e. both parents take part in the decisions affecting their minor children)

    Child support (including health insurance and day care expenses). Can be dependent on a number of factors including income of each party and how much time a parent spends with the children.

    Alimony (there are numerous types of alimony, such as bridge the gap, durational, lump sum, permanent, and rehabilitative. See the Alimony Section above for a more detailed explanation of each type.)

    Division of property acquired during marriage (including pension/401k type programs, and businesses) and division of debts. Note that the assets to divide would usually not include inherited property, property brought into the marriage by one spouse, or property acquired via a gift from a third party solely to one spouse. (even if such gift is during the marriage.) But one exception to this principle may be where the property has been put into both names.

    Disposition of marital home. (is the home going to be sold? is one party going to buy the other out? is one party going to get the home in return for other assets? is one party going to raise the minor children in the home?)

    Relocation issues (i.e. a parent wishing to permanently leave the area with the minor children.

    College expenses for children - Courts cannot order a party to pay for a child's college, but if the parties come to an agreement that one party is to provide such support, then the Court can enforce the agreement.

    Restoration of maiden name.

    Must be full financial disclosure of income, assets, liabilities and expenses by each party to the other. At a minimum under the rules each party needs to provide the other with a sworn financial affidavit. (except in simplified dissolutions) Also, a child support guidelines worksheet needs to be submitted to the Court where kids are involved.

    Issue of whether your spouse is in such superior financial shape compared to you such that your attorney fees should be paid by him/her. (assuming you can't afford the fees)

Florida Divorce Preparation Worksheet

Here's an interview sheet with questions that you should be prepared to answer during your case.. You may want to bring the sheet with you when you first meet with a lawyer as it will save them time in interviewing you and otherwise be helpful. (the more time saved the less you pay) And you may want to keep the sheet handy during your divorce to refresh your recollection about matters, and so you can add to it when necessary. The sheet can be printed out using your web browser.

Name: _________________________________________

Date/Birth: _______________

Maiden Name: _________________________________________

Do you want your maiden name restored by the Court?: __________

Is either you or your spouse a resident of Florida for more than 6 months?: __________

What is the issuance date of your Florida Driver License?: __________

Do you want your maiden name restored by the Court?: __________

Address:

______________________________________________

Phone:____________ Home:____________ Work:____________ Beeper:____________ Other:____________

Date of Marriage: _________________________________________

City/State of Marriage: _________________________________________

Date of Separation: _________________________________________

Spouse's Name:_________________________________________

__________________________________

Spouse's Address:

____________________________________________

Does anyone in family have any health problems or disabilities? (including drug or alcohol abuse)_________

Spouse's Phone Numbers & Employment Information:

___________________________________________________________

Are you seeking alimony, either temporary or permanent? (In general alimony is awarded where one party has a need for financial assistance, i.e. can't pay their monthly expenses on their income, and the other party has the ability to chip in)

______________________________________________

Have you ever entered into a Pre or Post Nuptial agreement with your spouse before, or does either of you have a trust?

___________________________________________________________

Have you come to an agreement with your spouse on any of the issues in your case, such as division of property or debt, spousal support or waiver thereof, or child related issues such as timesharing, child support or provision of health insurance?

_______________________________________________

Have you ever married and divorced your present spouse before?

_______________________________________________

Spouse's salary:_____________________

Spouse's educational background: __________________________

Is Spouse in school now or in line for raises: _________________

What is the best job Spouse has ever had:

_____________________________________________________________

What are your Spouse's skills:

___________________________________________________________

Anyone have a part time job or under the table income or other income:

____________________________________________________

Your educational background:

_______________________________________________________

Are you in school now or in line for raises or promotion:

_____________________________________________________

Do you plan to go to school or otherwise do anything to "rehabilitate" yourself:

_____________________________________________

What is the best job you ever had:

_________________________________________________________

List your skills:

_______________________________________________________

Your current salary:____________________________

Your current position:_________________________________________

Your place of Employment:

_____________________________________________________

Have you ever been married before? ________________

Do you receive alimony or child support _____________

Do you or your spouse receive regular gifts of money or other assets from anyone, or have any expenses paid by anyone? Does anyone chip in for or contribute to your expenses or your spouse's expenses?

___________________________________________________

Children conceived or born during the marriage

Name of Child:

Date of Birth:

Is your spouse the natural parent of the above children?:

Have any children been conceived or born during the marriage that are not your husband's?

Is child(ren) in good heath?

Does the child(ren) have any special needs? (educational, health, etc.)

Is there any threat of violence by your spouse?:

Has there been violence in the past in your marriage?:

Please indicate the desired child visitation arrangement:

Do you feel that there is a need for supervised visitation because of your spouse's behaviors that could harm your child?:

How is your child covered by health insurance and who pays for it?:

Do you or your spouse have life insurance, and if so, how much?:

Who pays for the life insurance?

Do you have any day care expenses for your child?:

Do you have any desire to leave the area with your children?:


Non-Child Related Issues

What real property (land and buildings) do you and/or your spouse own? (Please list all property regardless of whose name it's in, and regardless of whether it was bought before or during marriage)

Is there any real (ie land or houses or buildings) or personal property in joint names? (that need to be put in one parties' name)

Please list current value, purchase price, mortgage balance, monthly payment, and date of purchase of above property, as well as the down payment amount and where the down payment came from.

Please indicate whose name the above property is in now, and who purchased it.

Please indicate if any improvements were made to the home during the marriage which has increased it's value.

Please indicate what you want done with the above property.

Do you and/or your spouse own a business?

How many employees are there?

How much do you think that the business could be sold for?

Would the business generate any income if neither you nor your spouse worked at it?

Please indicate the value of any pension, IRA, 401-k or retirement type programs that you or your spouse have.

Please describe all personal property (i.e. assets, stocks, bank and investment accounts, valuables, jewelry, cars, etc.) that you and your spouse have. (regardless of whose name it's in and regardless of whether it was acquired before or during marriage)

Please indicate the value of the above personal property and date of acquisition, as well as where the funds came from to make the acquisition.

As to all of the above asset both real (ie land and houses) and personal, how did you acquire each asset, ie did you make an extraordinary contribution such that you may be entitled to more than a presumptive 50% share.

Please indicate all debts which you and your spouse have, no matter whose name they are in. This includes IRS debts.(please specify which if any debts were incurred before the marriage) Which of the debts are in joint names?

Please specify which if any property was inherited by either party, or received during the marriage as a gift from a third party.(to only one of the parties of the marriage).

As to any inherited or gifted property please indicate whose name it's in now.

Please indicate what property was owned separately by one party before the marriage. (and whose name that property is in.)

Has there been any increase in value during the marriage to any property that was inherited, gifted as stated above, or owned by one party before the marriage?

Did any of the above increase occur because of contributions of marital funds, (i.e. funds earned by either party during the marriage) or because of efforts made by either party during the marriage? (note that "efforts" include investment activities)

Do you think your spouse is hiding any money or assets?

Where and how much?

Has your spouse wasted or given away any significant monies or assets in the past several years?

Have you done a credit check on yourself to make sure your spouse hasn't run up bills in your name?

Is your spouse guilty of adultery during the marriage?

Can you prove that your spouse spent money during your marriage on the third party?

Free Florida Divorce Legal Forms

Florida Divorce Consultation

On this site you will find a great deal of easy to understand information about Florida divorce (dissolution of marriage) and paternity matters. It was written by Arnie Gruskin, a thirty two year Florida licensed attorney who you may choose to contact for legal representation. You may find it alot less aggravating and time consuming to have an attorney represent you rather than trying to do your case yourself. (and possibly less expensive than you think) But here are some free Florida Divorce forms, papers and documents. (and for more forms you can go to the Florida Supreme Court Website)


Simple Petition For Divorce  Settlement Agreement-no kids
Settlement Agreement-with kids Settlement-simple divorce
Petition to Modify custody or visitation Petition to Modify child Support
Petition to modify alimony Petition for Divorce-property but no kids
Petition for Divorce with no property or kids Petition for Divorce with kids
Motion to Deviate from Guidelines Motion for Temporary Support-no kids
Motion for Temporary Support with kids  Financial Affidavit (short)
Financial Affidavit (long)  Certificate of Compliance
Child Custody Affidavit Answer
Answer and Counter Petition, no kids or property Answer and Counter Petition, property and no kids
Answer and Counter Petition with kids

Florida Domestic Violence Law

Call 1-800-NOW DIVORCE for immediate domestic violence information

If there is domestic violence in Florida one can seek an "Ex Parte" restraining order. Normally the domestic violence restraining order requires the offending party to stay away from the other person and their home and place of work etc, and not contact them in any manner, directly or indirectly. So the domestic violence restraining order could mean that the offending party has to leave the home.

Violence, an attempt at violence or a threat of bodily harm may enable you to obtain a restraining order initially without the other party having an opportunity to come to court to explain their side of the story. Usually one must make a police report and bring the report or the police case number to the domestic violence clerk at the courthouse. (check with your local court clerk or the police for the procedure in your area) The clerk will present the matter to the judge. If the judge feels the matter rises to the level of domestic violence under the law, a restraining order may be immediately issued.

The court will then set a hearing where the other side may come to court with any defense that they may wish to give. (i.e. it didn't happen, or self defense etc) Sometimes the court will deny the petition for an ex parte restraining order but still set a hearing where both sides (and witnesses) appear to tell what happened. Violation of a domestic violence restraining order is serious-it is a criminal offense. Note that the court also has the authority to award temporary child support and alimony, and temporary exclusive use of the home. It also has the authority to prohibit or allow contact with the parties minor children.

After Your Florida Divorce is Over

There are numerous situations where unfortunately you may need to go back to Court after the "Final Judgment". If a spouse does not make their alimony or child support payments on time, or otherwise fails to abide by the Final Judgment , you may need to see the Judge again. If your spouse was ordered to make payments through "Support Enforcement", you will not need to hire an attorney every time a payment is late or missing. Support Enforcement will send someone into Court to testify that the payment was not made. Unfortunately, this agency is usually overwhelmed with cases and it is often better to get your own lawyer if you want to get back into Court quickly.

If a Judge believes that a non-paying party has the ability to pay support, that party can be held in contempt and jailed until the payment is made. (The Court must set a purge amount, ie an amount when if paid will result in the release from jail. The purge amount must be an amount that the party has the present ability to pay) If there is a valid reason for non-payment that will be considered.

Another reason for a trip back to the Courthouse after the Final Judgment is for a modification of child support or alimony. Generally speaking there must be a substantial, unforeseeable and permanent change in circumstance before a Judge will make a modification. (Although support can be reduced temporarily if someone loses their job temporarily). If four years after the divorce for example the spouse paying child support is making 60% more money than at the time of the Final Judgment, the other party may be able to obtain a modification, especially if that party's income has remained the same. Also, it is suggested that if you are the paying party, that you seek modification if your income has been substantially reduced.

The Discovery Process During Florida Divorce - The Nitty Gritty

Generally speaking "discovery" is the process of obtaining financial and other information so that you can prepare for trial or make a reasonable settlement. You will be able to get almost all of your spouse's documents and information either directly from them, or from third parties or employers etc. So why do lawyers charge so much? Let's take a "simple" example. It does not matter whether the example concerns alimony, child support or anything else. The point is to illustrate why it can take a lot of a lawyer's time to properly deal with just one aspect of the client's matter. Lawyer Jones represents the wife.

She calls one day and says that her husband has decided to fight for custody of the parties child. ("custody" is a term no longer used in Florida, the predominant issue is timesharing regarding the parties' minor children) She is extremely upset and the lawyers spends 25 minutes on the phone with her. An appointment is scheduled. During a 1 1/2 hour conference the wife explains why it is in the child's best interest to live with her. She explains that the husband is making accusations about her fitness to care for the child.

The wife gives the lawyer the names of four witnesses who can either attest to the wife's good child rearing abilities, or respond to the allegations that the husband will make. She is given the name of a psychologist to see for an evaluation of her parenting abilities and mental state. At a minimum, the attorney will need to interview each witness by phone or in person, attend their deposition by opposing counsel, review costly transcripts of the witnesses' deposition testimony prior to trial, and prepare the witness to testify in Court. The lawyer will also have to take the deposition of the husband and his witnesses regarding the accusations and his suitability and the wife's non-suitability to care for the child.

The lawyer spends considerable time preparing for trial and then goes into Court for what could be several days of trial testimony, including complicated testimony from psychologists for both sides. Once the Judge finally rules, the lawyer will either draw up a detailed Order as instructed by the Judge, or at least review the Order prepared by the other attorney before it goes to the Judge for signing. Other matters may include legal research where the lawyer attempts to determine what the Florida Appeals Courts have said about the particular issues involved.

While the above example does not occur in the typical divorce, there are several lessons to be learned. First, you have to be realistic in what type of battle you can afford to fight, and second, you need a diligent competent attorney. Matters like these require lots of hard work, and every issue that you can't settle means more and more steps which the lawyer must take.

As discussed above, any individual who has information relevant to the case can have their deposition taken. That is, either attorney may subpoena the person to testify in the presence of a court reporter under oath, and answer that attorney's questions. As a result of the deposition the attorney will know in advance basically what the trial testimony is going to be and they can plan accordingly. (Also, they can bring up the witness's deposition testimony if there is different testimony at trial, i.e. make the witness look bad by "impeaching" them with the deposition testimony).

A witness may also be required to bring documents to a deposition and make them available for copying. Thus, lawyers can determine what they need to about a party's finances by taking depositions and obtaining records from the party or from other individuals. Additionally, each party is required to file under oath a financial affidavit. (except in "Simplified Dissolutions") The affidavit lists such things as income, expenses, assets and liabilities.

Using a Divorce Mediator in Florida

Mediation is the process by which the parties and their lawyers meet with a neutral party to discuss ways of resolving the issues at hand. Ideally, the mediator should be a lawyer well-versed in divorce issues, or at least a Florida Supreme Court certified mediator. It is not a good idea to go to mediation until you are ready to prove your own case, and received all of your spouse's relevant financial or other documents. (and looked into the arguments that your spouse is making in the case)

The mediator cannot force anyone to agree to anything, although the Judge can order you to go to mediation and cooperate. The mediator will meet with the parties together and separately to see if a compromise can be reached, or even try and straighten out a party who may be unrealistic in their demands or expectations. Retired Judges make excellent mediators as they may be able to project how the Judge on the case will rule on the different issues.

Sometimes, it's just the idea of a neutral third party disagreeing with someone's position that makes them re-think it. If you can't sell your idea to a mediator, why would you think the Judge will buy it? If an agreement can be reached, it is reduced to writing. It basically becomes a MARITAL SETTLEMENT AGREEMENT which is legally binding and can only be set aside in rare circumstances, such as where the other party misrepresented something important. The Agreement is then adopted by the Court into the Final Judgment of Dissolution of Marriage if the Court finds it acceptable.

Awarding Attorney Fees in a Florida Divorce

In many cases, a party to a divorce may allege that they are not in a financial condition to pay for a lawyer, but that the other party has the financial ability to pay both lawyers' fees. Courts do not want to see situations where one party can drive the other into submission by outspending them on lawyer fees. An attorney can go into Court prior to the final divorce hearing (usually when seeking temporary alimony or child support) and indicate to the Judge how much time they expect to put into the case and what type of costs may be incurred by their client. (For depositions, expert witnesses, investigations, etc). The Court may then award reasonable attorney fees and costs if it finds need on the part of the requesting party, and the ability to pay on the part of the other. And note that the Court can also make a party pay attorney fees to the other party if they have caused unnecessary litigation.

Florida Divorce Lawyers and Fees

Do I really need a Florida divorce lawyer? In general, people have a lot at stake when they get divorced; financially and emotionally. The laws and rules which are used by Judges and lawyers are sometimes complicated, and it is probably not worth trying to represent yourself. You would need to learn in a short period of time what competent attorneys have spent years learning. Unfortunately, if you don't do well in representing yourself you may lose many times over the money you thought you were saving in attorney fees. You may also find the experience to be quite aggravating. It's the same as trying to repair your own TV or car. You may not do well and you've got a good bit to lose.

Most lawyers charge by the hour for divorce cases. (unless it's an uncontested divorce) If you are charged a set fee (i.e. as opposed to paying by the hour) there could be problems. (unless it's an uncontested divorce) If the case requires more work than originally contemplated, the lawyer feels ripped off. (The more complicated the case the more difficult it is for the lawyer to estimate how much time must be put in) If the case settles quickly, the client may feel that the lawyer got too much money for the time that was put in. Sometimes it is difficult for people to understand why lawyers' fees can be so high.

Many lawyers do not do a good job of communicating with their clients about the work that they are doing. A lawyer can be doing a tremendous job, but the client may not realize that because it is not communicated to them. They then feel confused when the bill arrives. As with anything else, you get what you pay for. If you hire the cheapest auto mechanic you may be in for trouble. If you hire a lawyer and are not realistic about what the case is going to cost, the relationship may sour quickly. The best course is to communicate regularly with your attorney to see how things are going and to see what the fees are amounting to. It is also highly recommended that before the lawyer even starts, that you both sign a written fee agreement which you clearly understand.

You are asking the lawyer to get involved in one of the most important things you will ever face. No lawyer can give you $10,000 worth of legal services for $1,900.00. The benefit of an experienced attorney, although possibly more expensive, is that they do not have to spend time learning things as they go along, as an inexperienced attorney might. That can be very important given the hefty hourly fees that many lawyers charge today.

Be up front with the lawyer about approximately how much you can afford. If a client has the ability to pay all reasonably incurred fees, the lawyer can be a lot more thorough in handling the case. If money is a real issue, they can allocate resources accordingly, but they need to know in the beginning what the situation is. It is not a question of the lawyer doing a bad job for the lesser amount, it is a question of choosing areas to concentrate on, given a limited budget. A reputable lawyer will appreciate honesty in terms of what your budget is.

The last thing that you want is the lawyer withdrawing from your case because their bill is unpaid. It is disruptive to your case and another lawyer will charge you just to get up to speed on matters. If you do not understand what is happening with your bill or the case, call, send questions in writing, or make an appointment to sit down with the attorney and straighten things out. When a lawyer sends a bill, you should also insist on a time sheet where each portion of work is listed with the time spent. You also need to clarify with the attorney what their policy is about phone calls. If you call and talk for four minutes, does the lawyer have a minimum charge? Some lawyers bill for no less than one-tenth of an hour which is six (6) minutes; and at $300.00 an hour that is $30.00!!

Feel free to ask your lawyer questions, but understand if you want to call and chit-chat, that you may well be "on the clock." The lesson here is to have a good working relationship with your attorney, but get to the point in your communications, for the sake of your pocket book if nothing else. Also, if you present everything to the lawyer on an emergency basis, and insist on immediate action on everything, the bill may be adjusted accordingly. Most Judges in Florida are overwhelmed with cases and the Court system works very slowly, even with a diligent lawyer.

Choosing A Florida Divorce Lawyer

Your first goal should be to find a Florida divorce lawyer who has experience with your particular problem. If you expect a big battle regarding timesharing with the children, or a dispute over a family business, you don't want someone who dabbles in divorce work. If your budget permits, you want someone well versed in the areas of your dispute. If it does not, at least retain a competent attorney who devotes substantial time to family law matters. Do not be afraid to ask questions. If you do not feel comfortable with the lawyer, they may not be for you.

In many instances you do not need a high priced specialist, but it is suggested that you choose someone who keeps up with the constant changes in the Statutes, Florida Supreme Court rulings and rules, as well as Appellate Court decisions. You may also want to clarify before hiring an attorney that they have substantial courtroom experience, as it is often difficult to know in advance if a case will proceed to trial or not. (divorce cases are tried before the Judge, i.e. with no jury, in Florida).

Florida Prenuptial Agreements (Prenups)

Call 1-800-PRENUPS
No Matter Where You Live in Florida


A prenuptial agreement or prenup, is a written agreement or contract signed by parties who intend to get married. A prenup may also be referred to as an "antenuptial agreement". Sometimes parties sign the same type of agreement during the marriage. In that event it may be referred to as a "post nup". (You can assume that when this article refers to a "prenup", that the same rules apply for "post nups")

Is it a good idea to just download a prenup form from the internet or have an unqualifed person prepare it for you? Probably not. Lawyers know how to state things properly such that the prenup will 1) be less likely to be successfully challenged, and 2) state the intentions of the parties clearly, and lead to the results that you want from the prenup. And a lawyer is likely to raise issues that you may not have realized that you want in a prenup. (or tell you why your ideas may or may not benefit you) Words matter; if you state things improperly in a prenup, you could be very unhappy with how the divorce judge rules on the terms of the prenup and its enforceability. No matter where you live in Florida, call Attorney Gruskin at 1-800-PRENUPS if you wish to discuss preparation of, and issues pertaining to a prenup. Or click here to Email Your Florida Prenup or Postnup Questions.

Prenups and postnups are a good investment. Typically, a Florida prenup predefines what will occur upon divorce with regard to issues such as division of property and debt, and alimony or spousal support. So they can save you the cost of an expensive court battle. And a Florida prenup or postnup is like insurance. No one likes to pay for it, but they're glad they have it when there's a fire. Usually what a party will get or not get under a prenup in the event of divorce, is far different than what a judge would order upon divorce if there were no prenup.

Sometimes a Florida prenup will provide that neither party will get alimony, no matter how long the marriage is. Or it may provide that a party will not get property or assets which they might otherwise get if there were no prenup. (such as the income from their spouse's non-marital asset which they might otherwise get in certain circumstances) So a prenuptial agreement can help a party avoid paying alimony or splitting property. Or it can hurt a party who, if there were no prenup, would be entitled to alimony under the law because of the length of the marriage for example. (or entitled to property under the law) Note that a prenup could also provide that a party would not be eligible to request alimony in a divorve unless the marriage had lasted for a certain number of years.

A Florida prenuptial agreement is often used to prevent a spouse from getting a portion of the increase in value that may occur during the marriage concerning their spouse's pre-marital or non marital assets. For example, a spouse may own a home prior to the marriage. Under certain circumstances where there is no prenup, if that home goes up in value during the marriage, the other party may be entitled to a portion of the increase in value that occurred during the marriage. The appropriate language in a prenup can foreclose the possibility that the spouse will share in the increase in value.

Similarly, unless a prenup states to the contrary, a party who saves up money during the marriage from employment, in a bank account just in their name, will have to share those funds with their spouse upon divorce. (because the funds are considered a marital asset) The same principle applies if a party uses their salary during the marriage to purchase for example a car just in their name. A prenup can preclude the spouse being awarded one half of the value of the car.

Major battles are often fought over prenups in Florida divorce courts. The party who feels that they're getting a bad deal because of the Florida prenup may try and have it invalidated by saying for example, that they were coerced into signing it. Or, they may say that the other party didn't accurately divulge their assets.( i.e. that they would not have signed the prenup if they knew how much money the other party really had) Prenups can sometimes be upheld as valid in Florida even if they were made in another state.

Prenups cannot be overturned just because they are a bad deal for someone. (unless the other party didn't make full financial disclosure of their assets and financial condition. A party can however voluntarily and expressly waive in writing any right to disclosure. Note that even if there was no disclosure, that if the party knew, or reasonably could have known the financial condition of the other party, that the result will be the same as if the party who should have disclosed did disclose.)

In this regard each party needs to provide the other party with their notarized Florida financial affidavit a sufficient time before the signing of the prenup. This is so that the other side has time to review it and investigate further if they wish. A party should retain proof that they provided the other side with the affidavit.The parties will list in their respective financial affidavit their income, expenses, liablities and assets. A party should take great care in preparing their affidavit, especially regarding the listing of income and assets ) The two notarized financial affidavits should be attached to the prenup, and referenced therein.

Bare in mind that a prenup is a roadblock to your spouse getting what you don't want to give them. If properly drawn up by a Florida attorney who thoroughly understands the complexities of a prenup, and if the circumstances of the execution of the prenup cannot be challenged, the prenup stands a much better chance of not being successfully attacked. And if you have a prenup, don't wait too long to enforce your rights under it. As per Florida statute, there may be a deadline for doing so.

Often, Florida prenups are non-modifiable. So for example if a party is working at a good job when they sign a prenup that waives their right to claim alimony, they will still get no alimony if at the time of the divorce they are unable to work because of a disability. About the only rights that can't be waived in a prenup is the right to seek child-support if a child is born during the marriage. Also, a party cannot waive the right to seek attorney fees and temporary alimony in the Florida divorce from the other party. (so for example a spouse can always ask to be awarded alimony payable while the divorce case is going on)

So if you are considering presenting a Florida pre-nuptial agreement to your fiance, it is best to do it a sufficient period of time before the wedding . That will give the other side sufficient time to contemplate the terms of the prenup and try to negotiate a better deal if they care to. It will also allow for the opportunity to secure a lawyer. It may also be a good idea to offer the other side money for a lawyer of their own choosing if they cannot afford one.That will foreclose the argument that they could not get an attorney to help them understand the prenuptial agreement and negotiate on their behalf. You should email your fiance this offer, make sure that you get an email response so you can prove it was sent, and then save a copy of your email and their response.

You also don't want to give the other party the prenup a very short time before the wedding for another reason. If their is a divorce where your spouse wants to challenge the prenup, they may argue that it was given to them such a short time before the wedding that practically speaking they had to sign it and that they were under duress and in effect coerced into signing. (ie they will say that their spouse said or suggested that if they didn't sign, the marriage would be called off. And of course this could be very embarrasing for a spouse who has all of their friends coming to their elaborate wedding shorlty) Doing things properly may stop the other side from successfully challenging the validity of the prenup upon divorce.

Note that depending on the language of the prenup, it could be problematic if you were to allow your spouse to contribute during the marriage to one of your separate assets, or allow your spouse to utilize any of your separate assets , such as by letting them withdraw money on a regular basis from one of your separate non-marital accounts. You run the risk that your spouse will claim that those assets became marital (and divisible 50%-50%) because of what you permitted. Also note that as a general proposition, if you put an asset or account into both your name and your spouse's name, either before or during the marriage, or commingle your non marital assets with marital assets, that you run the risk that your non marital assets will be split 50-50 upon divorce.

Of course you always have the opportunity during the marriage to consult with an attorney about the advisability of something that you are planning to do regarding your separate accounts and assets, or regarding the acquisition of an asset. Additionally note that there may be tax and estate planning, probate or other ramifications of the prenup which you may want to discuss with a tax or estate planning or probate lawyer, or accountant, before you sign the prenup.

Lastly, a prenup can provide that a party waives certain rights that they would otherwise have upon the death of the other party. (those rights may include the elective share, which is the right to receive thirty percent of the estate of the other party, and homestead rights which gives certain rights in the family home upon the death of the other party)In this regard the prenup (or post nup) must be executed in a particular fashion or their could be problems.

No matter where you live in Florida Attorney Arnie Gruskin will be happy to discuss with you preparation of and issues pertaining to a Florida prenuptial agreement. Call 1-800-PRENUPS for assistance. Or click here to Email Your Florida Divorce Questions

Paternity Law in Florida

Generally speaking, Florida paternity cases involve a situation where the parties have a child but are not married. Normally, the issues in a Florida paternity case include 1) establishing through scientific testing (DNA etc) or agreement of the parties etc., who the father is. 2) child support and 3) time-sharing issues. (formerly referred to as custody and visitation)

Florida Paternity cases can be easier than Florida divorce cases because alimony and property issues are not a concern. But it's the same as divorce regarding child support and timesharing (visitation) issues concerning children. Note that if a child is born during a marriage, and someone besides the husband is the biological father, the biological father usually cannot assert parental rights if the husband wishes to assert parental rights. Children born during a marriage are presumed to be the children of the husband and wife. But during a divorce case the husband is usually permitted to try and show that he is not the biological father, in which case he would not have to pay child support for example.

Alimony and Florida Divorce Law

When a party believes that they have a need for financial assistance from the other party, alimony can be requested. As with child support, the Court can award temporary alimony until the final divorce hearing is held, at which time a final alimony amount may be ordered. An alimony determination will factor in the length of the marriage. There is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater.

Permanent alimony is for long-duration marriages if the statutory criteria are met, or for moderate duration marriages if appropriate based on clear and convincing evidence after consideration of statutory factors, It is also for short duration marriage upon written findings of exceptional circumstances. In the award of permanent alimony the court must make findings that no other form of alimony is fair and reasonable.

Bridge the gap alimony is where there are identifiable short term needs and it is not to exceed two years. Durational alimony is for a set period of time. It is for short or moderate duration marriages, or long-duration marriages if there is no ongoing need for support on a permanent basis. Durational alimony can be modified upon a substantial change of circumstances pursuant to Florida Statute, although the length of the award cannot be modified, except under exceptional circumstances, and cannot exceed the length of marriage. Bridge the gap alimony is not modifiable as to amount or duration. Rehabilitative Alimony can be modified upon a substantial change of circumstances pursuant to Florida Statute, or upon non compliance with the rehabilitative plan, or completion of the plan. Permanent alimony may be modified based upon a substantial change of circumstances.

Note that the parties can agree that alimony will be non-modifiable. Such a provision must be clearly stated in a Florida Marital Settlement Agreement for example. There is a downside however to making alimony non-modifiable. For example, let's say a party agrees to pay their spouse a certain amount of money for a specific period of time. And after the payments begin the paying spouse loses their job and their income is either gone or reduced. They would still be obligated to pay the alimony under the original terms because it was non-modifiable. And if the receiving party's financial need increases subsequent to the commencement of payments, they would not have the ability to ask for an increase in alimony because it was non-modifiable. Sometimes it's wise for the payor to insist for example that if their spouse gets remarried, that alimony ceases. A provision to make alimony non-modifiable should state for example that it is non-modifiable as to amount and duration, and in every other regard, for any reason whatsoever.

Alimony can be withheld from the paying parties paycheck or the party can be ordered to pay the money to Support Enforcement who will distribute it to the other party. If the party fails to pay Support Enforcement, one of their staff can testify that the payment was not made; instead of the party having to come to Court with an attorney. Also, failure to pay can result in the suspension of driving privileges. (although the court can grant a "work" permit) Lastly, if a party is unemployed or underemployed and fails to pay court ordered support, the judge can order the party to seek employment and enter a job training or work program.

It should be noted however that where alimony is terminable upon re-marriage, (which "permanent" alimony usually is) that a court may reduce or terminate the alimony when the recipient is residing with someone in a "supportive" relationship. There are numerous factors that the court will consider in deciding whether a "supportive" relationship exists, such as whether the couple hold themselves out as husband and wife, and the nature of their financial dealings. (Durational alimony terminates upon death of either party, the re-marriage of obligee, or substantial change of circumstances pursuant to Florida Statute. Bridge the gap alimony terminates upon death of either party or re-marriage of the obligee. And rehabilitative alimony terminates upon substantial change of circumstances pursuant to Florida Statute or upon non compliance with the rehabilitative plan, or completion of the plan)

In order to obtain alimony, there has got to be a need for assistance on the part of the requesting party and an ability to pay alimony on the part of the other party. Thus, one party may claim that they cannot pay their basic monthly bills without the help of the other. Note that if you have been receiving health insurance through your spouse's employer, that you may be eligible upon divorce to receive continued coverage. (The coverage usually lasts eighteen months or three years, although it must be paid for.)

A classic example may be the 56-year old woman who has been married for 29 years. It takes $4,500.00 per month to run the household. The husband has moved into an apartment. The wife has never earned more than $300.00 per week and the husband earns $5,000.00 per month. The Court's position may well be that this woman is entitled to economic assistance. She has grown accustomed to a certain lifestyle and she will probably not be required to drastically alter it. Also, there is little likelihood that she can significantly increase her income anytime soon. (An award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are exceptional circumstances.)

Clearly there are many cases where the answer concerning alimony is not as obvious. A good example would be the 9 year marriage where the wife has a particular skill. She has not worked in her profession for awhile and won't have any significant earnings until she is back in the work force for a few years. Courts have the discretion in such a circumstance to award rehabilitative alimony as opposed to permanent alimony. This alimony is for a specific period sufficient to allow the receiving party to finish their education or advance in the job market to the point that they can make a reasonable living and be self sufficient. It may be changed to permanent alimony in some circumstances if the party cannot accomplish their rehabilitative goals through no fault of their own.

With regard to a nine year marriage, the Court cannot grant permanent alimony unless certain statutory criteria are met. Durational alimony could be given in a nine year marriage so that a party has economic assistance for a set period of time.

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