Articles Posted in Divorce Procedure

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The longer a couple has been married, and the more assets they have, the more complicated the case tends to be if they divorce. Perhaps the most bitter divorce battles center around the physical custody of minor children and the right to make decisions related to their upbringing. When a couple does not have minor children, the biggest disagreements usually have to do with the division of property. Florida courts have clear rules about what is marital property and what is non-marital property, but there is still room for complicated situations to arise in which each spouse can make a claim to a certain asset. For example, if one spouse earned a lot more money than the other during the marriage, how should that money be divided? If one spouse used the couple’s money irresponsibly, how does that affect the court’s decision about how to divide the property?

Florida’s Equitable Distribution Doctrine

Florida courts divide divorcing couples’ property according to the principle of equitable distribution. In other words, they go by what is fair. They do not always divide marital property evenly, and they do not simply take into account how much income each spouse brought in and then let each spouse keep only the money he or she earned. Florida law also considers unpaid contributions to the marriage as reasons a person is entitled to a certain share of the marital property. For example, time spent as a stay-at-home parent also counts as a contribution. The logic is that, when taking care of the children full time, the stay-at-home parent spouse was freeing up the other spouse to concentrate more on earning money.

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How does a Florida Family Court judge deal with the issue of foreign law?

There is no doubt that Florida is a multi-cultural state, drawing residents from around the world.  Oftentimes those residents will come to Florida with prenuptial agreements executed in their home countries.

These agreements usually will contain a choice of law provision which basically spells out that the law of their country will apply to the provisions of the agreement, even though a divorce action is filed in Florida.

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Changing the surname of the minor child after divorce is no simple matter.  As a matter of fact, the burden of proof in such a situation is extremely high.

The standard for changing the child’s name is whether the change is in the child’s best interests or is necessary for the welfare of the child.  Azzara v. Waller, 495 So.2d 277 (Fla. 2nd DCA 1986) stands for the proposition that a minor’s surname should only be changed when the evidence affirmatively shows that such change is necessary as necessitated by the welfare of the child.  In Coolidge v. Ulbrich, 733 So.2d 1092 (Fla. 4th DCA 1999), the court stated that a child’s surname should remain unchanged absent evidence that the change is necessary for the welfare of the child.

When a trial court changes the surname of a minor child without adequate evidence, it constitutes an abuse of discretion.  A petitioning parent cannot meet the heavy burden in these situations by making assertions which are conclusory, speculative, unsupported by competent and substantial evidence, and irrelevant to the best interests of or for the welfare of the child.

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A financial affidavit must be filed in an initial divorce proceeding as well as in supplemental dissolution proceedings.  Florida Family Law Rule of Procedure 12.285 (e)(1) requires the service and filing of a financial affidavit in supplemental dissolution proceedings within 45 days of service of the initial pleading on the respondent.

In child support modification proceedings, Florida Statute 61.30(14) provides that the respondent shall include his or her financial affidavit with the answer to the petition no later than 72 hours prior to any hearing regarding the finances of either party.

The requirement to provide a financial affidavit in supplemental proceedings cannot be waived by the parties.

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It is understandable that some spouses who are divorcing are not necessarily in the mindset to cooperate with one another. After all, fighting and disagreements have likely played a role in the decision to end their marriage. However, refusal to come to an agreement regarding one or more issues in a divorce can cause serious delays and can increase the cost of a divorce.

Before a court will grant your divorce, you and your spouse must settle numerous issues including:

  • Property and debt division;
  • Child support;
  • Time-sharing and visitation;
  • Parenting plans;
  • Alimony.

If any one of those issues cannot be settled out of court, the divorce can be delayed as the court will have to decide for you. You and your spouse will have to present evidence to support your arguments for how you want to resolve the issue at trial and the judge will rule on the matter.

A recent divorce case demonstrates just how much a divorce case can be affected by adversarial disputes instead of cooperation. After 25 years of marriage, the wife of the founder of Cancer Treatment Centers for America filed for divorce. The filing occurred in 2009 and the case is still dragging on due to several disagreements regarding a prenuptial agreement, custody, and division of their millions of dollars in assets. The case has involved numerous hearings, appellate hearings, changes of lawyers, contempt orders, and other complications, and is now finally going to trial over asset and property division. In the meantime, both spouses have likely spent an enormous amount of money, stress, and time dealing with the divorce proceedings and have been unable to remarry since their marriage is not yet dissolved after more than six years. Continue reading

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When two people get married, it often makes sense to combine finances. Spouses open joint bank accounts and combine their incomes to help each other pay off debts–both pre-existing debts and new ones acquired during the marriage. In many situations, spouses may depend on one another to be able to cover their monthly bills. This can all lead to a messy situation if the spouses decide to get divorced.

During a divorce, Florida law requires the fair and equitable division of all jointly-owned property and this law applies to debts, as well. However, dividing up debts can be complex, especially if some debts are owned individually and others jointly. The name on the debt does not always mean that person will be solely responsible for the payments, however, and it is important to discuss debt division with an experienced divorce attorney who understands the relevant law. The following is some brief information regarding the division of certain debts in divorce:

Student Loans

Student loans are often individual debts unless the spouses cosigned on the loans or the loans were acquired during the marriage. In such cases, the loans would be considered marital debt and you may be held responsible for sharing the payment unless you and your spouse can agree otherwise. However, even if you agree that your spouse will be responsible for the loans, your name will likely remain on the loans and any failure to repay could affect your credit. Continue reading

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A major issue between parents who split up is who will get custody of their child. In many cases, if you do not particularly like the other parent or believe he or she may be irresponsible in some way, you may want to obtain sole custody rights. However, getting sole custody in Florida is extremely difficult.

In order to understand why this is the case, you should have a basic understanding of custody laws in Florida. First, there are two different aspects to child custody:

  • Physical custody: the time you spend with your child visiting you or living with you; and
  • Legal custody: the right to be a part of major decisions in the child’s life, including schooling, activities, religion, and medical care.

In Florida, physical custody is called “parenting time” and legal custody is often referred to as “parental responsibility.” How these rights are divided between parents is set out in a parenting plan that must be approved by the courts. Continue reading

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Many different religions have different requirements for ending a marriage, such as a declaration of nullity in Catholicism or the practice of talaq in Islam. However, none of these practices ends a legally valid marriage in the eyes of the law in the state of Florida. Instead, Florida has many requirements and steps that you and your spouse must follow in order to legally dissolve a marriage. Without taking these steps, you will still be considered to be married by the Florida government. This can affect many different aspects of your life including taxes, your ability to remarry, property acquisition, and more. To avoid any unforeseen complications in your life, it is always imperative that you properly seek and obtain a legal divorce from the court if you want to end your marriage in Florida.

The following are some of the requirements set out by Florida law for a valid and legal divorce in our state.

A valid marriage — In order to seek a divorce, you must first have a valid marriage. While this may seem like common sense, many marriages may not be valid due to age, consanguinity, bigamy, and other reasons.

Residency in Florida — In order for a Florida court to hear your divorce case, at least one spouse must have resided in the state for the past six months before the filing.

Proper court filing — You must file a petition with the court requesting the divorce that includes all the necessary information. There are many different options for divorce filings including for simplified dissolution or uncontested divorces. Continue reading

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A major part of any divorce case will likely be the equitable division of assets as directed under Florida law. Not all assets owned by the divorcing spouses will be subject to division, however, as only assets considered to be “marital property” must be divided. Marital property is anything owned by both spouses together while separate property is only owned by one spouse (and the owner spouse will get to keep that property). It is important to take particular care when you are deciding which property is classified as marital and which is separate. If you misclassify certain property, you may lose valuable assets in your divorce to which you otherwise would have been entitled.

Marital assets generally include any property that is acquired by either spouse through the duration of the marriage. This can include real estate, investments, retirement accounts, cash, and personal property. Even if only one spouse purchases a property or opens a retirement account, if he or she uses would-be marital funds to do so, the property will be considered marital regardless of the name(s) on the title. All too often, a spouse believes that because he or she started a business or titled a vehicle in only one name, that the property will be considered separate. In fact, in these situations, any business proceeds or vehicle equity acquired during the marriage should be divided between the spouses. If marital funds were used to acquire the property or if the proceeds of the property/assets would benefit both spouses, the classification should generally be “marital.” This can be confusing in many situations, so it is wise to review all property and asset classification with an experienced divorce attorney who understands Florida law. Continue reading

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Divorce can involve many complicated legal filings and administrative tasks. One important task that should not be ignored is changing your name back to your maiden name if you wish to do so. While name changes have traditionally been associated with women, this is no longer the case since the legality of same-sex marriage and trends in recent years of combining last names or of husbands taking the last name of their wives.

Legally changing your name back can include many different steps, including the following:

  • Requesting an official name change in your divorce petition, so the final divorce decree includes a court order allowing you to change your name back;
  • If your divorce decree does not include a name change order, you will need to file a Florida Petition for a Name Change to get a court order by that method;
  • Collect the following documents in order to update your name on official documents:
    • A certified copy of the court order for the name change;
    • Proof of your identification (passport or state-issued ID); and
    • Proof of age (birth certificate, certificate of foreign birth, or adoption order).
  • Use the above documents to change your name on your social security card, driver’s license, passport, and any other necessary forms of identification.
  • Use your new documentation to change your name on bank accounts, credit accounts, with your employer for payroll, utilities, and any other relevant accounts.

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