A contested Florida divorce means that you and your spouse have been unable to come to an agreement on one or more issues on your Divorce. It’s somewhat rare that the parties agree for example on everything except one issue, and then have a judge decide that remaining issue. But it is possible.
It is very important that you make sure that the lawyer you choose is highly experienced in the type of issues that are involved in your case. Those issues may include alimony, child support, timesharing, (what used to be called visitation and custody), division of property and debt, and responsibility for attorney’s fees. A Florida Contested divorce is a serious matter and you need to be sure that you are comfortable working with the particular attorney that you have chosen. It is not necessarily enough that they are highly experienced if you do not have a good working relationship with them.
You also need to make sure that the pricing is competitive compared to the rates of other attorneys in your area. If a lawyer charges a substantial amount more than other attorneys, it may be because they are far more experienced and knowledgeable, or it may be that they simply get a premium for no particular reason. Additionally, if the price is too low, you may have concerns that they are not very experienced or that they may not work as hard on your matter as an attorney who is more appropriately paid.
You certainly do need a highly competent and experienced attorney. But you do not necessarily need a superstar lawyer unless you have complicated issues, significant assets or a case involving tax matters or a trust. The lawyer should confirm that you are eligible for dissolution of marriage in Florida because one or both parties are residents for more than six months, and the marriage is irretrievably broken. The lawyer should conduct a very through interview. They should ask questions about assets, liabilities, alimony matters and child support and timesharing, previously called visitation and custody, as well as about other child related issues. The lawyer should answer your questions and advise you of your rights and responsibilities.
The attorney will then direct that you fill out a financial affidavit listing your assets, expenses, income and liabilities, and that you begin to gather the financial documents which are required to be furnished by each party to the other under the family court rules in Florida. Those documents include paystubs, tax returns, credit card statements, bank account statements, brokerage and 401K statements, and the like. Once the attorney has adequate income information for each party and an understanding of what the time sharing schedule is with regard to minor children, they will calculate child support pursuant to the Florida Child Support statutory formula. (Child support is based upon the number of overnight visits each party has with the minor children in a given month, as well as upon the monthly income of the parties , and the number of children involved. The parties cannot just pick their own child support amount) Further, the attorney will direct that the client complete, as required by law, the Children and Divorce Seminar, typically an online course.
If minor children are involved the parties will need to fill out Child Custody Jurisdiction Act statement which list the names of children involved and where they have lived, and who they have lived with in the past number of years. Further, the attorney will assist the client in preparing a parenting plan. A Florida parenting plan is a lengthy document that outlines the timesharing/visitation schedule which the client wishes, and that outlines other issues pertaining to the minor children.
Following the client interview the lawyer will draft a Petition for Dissolution of Marriage asking for what the client is entitled to, such as child support, alimony, division of property, etc. After payment of the court filing fee a process server or a sheriff will serve the petition upon the spouse. And the spouse has twenty days from that date of service to answer the petition, and file a counter petition if they so desire. If the attorney sees that the opposing party is not furnishing financial documents as they are required to do under the rules, the lawyer will seek remedies and sanctions from the judge. Those remedies and sanctions may include the other party being ordered to provide the necessary documents, and being ordered to reimburse the attorneys’ fees to the client that were necessitated by the failure to provide documents .
Each party may send interrogatories to the other party if they so desire. Interrogatories are written questions which the other party must answer in writing and under oath. Further, each party may take the deposition of the other party or of any other person who has knowledge of the matters involved in the particular Florida divorce case.
Depositions are helpful because they tend to lock a party into a particular version of events. In other words it is difficult for a party to testify to one version of events in their deposition and then testify to something different at the trial . This is so because the lawyer will impeach, or discredit their testimony by showing that they testified to something different on an earlier occasion. The deposition transcript will also help the attorney prepare for trial such that they know what the parties’ version of events will be. Also, a party may seek financial or other documents pertinent to the case from the other party, and sometimes from other people or companies.
On more complicated cases, experts may be involved who will testify in court to important matters. For example the party may wish to hire a forensic accountant if there are assets which are suspected to be hidden. Or the expert may be needed to locate assets and debts which are not necessarily hidden. The expert may also help value assets, or prove income or net worth of a party.
The forensic accountant may also assist with a proposed plan to distribute assets and debts, or assist to back up an alimony claim concerning the need for alimony on the part of one party, and the ability of the other party to pay alimony.
Sometimes a vocational rehabilitation expert may be necessary to examine a party (pursuant to a court order) in order to assess their job skills. The expert would then testify that certain jobs that the party qualifies for are available in the community at a given income level. Income of course is important with regard to calculation of child support and the need for alimony, or the ability to pay alimony. It should also be pointed out that during the course of the case a party may seek temporary support from the other party if they have a need for assistance and the other party has the ability to pay support.
A hearing can be scheduled while the case is going on for the court to make a decision about temporary support. It could be a claim for temporary attorney’s fees to be paid by the other party, or for temporary alimony or child support, or even for the court to rule on who has the children at particular times. A party may also ask that they be awarded funds from the other party for payment of costs such as for accountants, depositions and the like. Lastly, a party may, while the case is going on, ask for a partial distribution of assets if there is a legally sufficient reason for assets to be distributed prior to the final hearing.
The court will also order that mediation be held before any trial. Mediation is the process by which a neutral person, typically a retired judge or a lawyer, listens to the presentation of the issues by each party, and makes recommendations for settlement and otherwise tries to facilitate settlement. Mediation is quite often successful which means a trial can be avoided. The mediator is not the judge and cannot order the parties to do anything or order any particular result for the case. All they can do is make recommendations. The parties should not go to mediation until they thoroughly understand the legal and financial position that they are in, and understand the other parties’ legal position and financial position. Settling at mediation is an excellent way to save the costs of a Florida divorce trial.
Depending on the area of the state that you are in, it may take many, many months before a case will ever get to trial. (The Trial/Final Hearing in a Florida divorce matter, and all other aspects of a divorce are heard by the judge and not a jury. The reason that it takes so long to get your case to trial is because it takes a great deal of time and effort to gather all necessary information and prepare properly for trial. And the courts have hundreds if not thousands of cases that they need to deal with, so you have to wait for your case to be called.
There is a great deal of trial preparation that an attorney needs to do, including meeting with witnesses and going over their testimony, going over deposition transcripts and determining what documents are necessary to show the judge. The attorney must of course prepare questions for the witnesses who are testifying for their client, and prepare questions to ask upon cross examination of the witnesses for the other side. A lawyer further needs to prepare arguments to make to the judge, and needs to research case law and address the legal issues involved in the case. (Case law are the written opinions on various legal issues from the district courts of appeal or the Florida Supreme Court. Those courts are higher courts above the trial court who makes decisions on the law , and interpretation of statutes, etc.)
Further, the lawyer prior to trial needs to prepare a list of exhibits (typically documents) and a list of witnesses that will be presented during trial. And the lawyers are often ordered by the court to prepare a pretrial statement which can include a list of legal issues that the judge must decide on, as well as an outline of the case that will be presented, and the remedies and relief that will be sought by each party.
A party may not be satisfied with the ruling of the court at trial and feel that errors have been made by the trial court regarding legal issues. Those issues may include allowing evidence to be presented when the party feels it shouldn’t have been permitted, or keeping evidence from being presented when the party feels that it should have been permitted. If a party feels that errors have been made by the trial judge, they can appeal the judge’s decisions to a higher court. It takes many, many months if not longer for an appeals court to make a ruling, and it is a very complicated, rather costly process. The appeals court may decide that the trial judge has made no errors, and that the judge’s ruling should stand. Or it may send the case back to the trial court for a reconsideration of certain matters, or it may reverse the trial court’s decisions.
As you can see, a Florida contested divorce is a complicated process that calls for the assistance of an experienced lawyer. If you feel the need for such assistance. Please call Attorney Gruskin at 1-800-NOW DIVORCE.