Top 15 Frequently Asked Divorce Questions
—From the Law Office of Douglas Kneller .. ifloridadivorce.com .. daytonadivorce.com
1. What if my spouse tells me he/she won't give me a divorce?
It is not their choice. Only one person (you or your spouse) needs to want to be divorced. You must believe your marriage is irretrievably broken. If you do, no matter if your spouse agrees or not, the Court will grant you a divorce. Getting a divorce is solely your choice, not the choice of your spouse. And you must be a resident of the State of Florida for six months prior to filing for divorce.
2. What is this I hear that Florida does not have "custody" anymore?
That is correct. Custody in divorce matters no longer exist in Florida and other states. Your attorney creates a "Parenting Plan" for you. This is a document that details responsibility for decision making, time-sharing schedule and areas of and amount of financial responsibility.
This doesn't mean your child will spend equal time with each parent or that one parent does not have a child support obligation to the other parent. What it does mean is that all major decisions affecting your child must be made jointly and if a continuing dispute exists regarding a decision, (for example, what religion your child will be brought up in) the Court, after proper application and a hearing, will appoint one parent the sole decision-making authority for that issue. Also, a specific time share schedule will be entered into. There are different child support calculations for different time sharing schedules. It is possible to deviate up or down from the statutory guideline support amount.
3. Who gets the house in our divorce?
You have five (5) options with regard to the marital home (assuming your home was purchased during the marriage or is in joint names):
- You may buy out your spouse's interest in the house; or your spouse may buy out your interest.
- The home can be sold and the profit shared in some fashion.
- One parent may stay in the home until the youngest child is 18/19; or that parent remarries; or that parent co-habits; or that parent desires to stop living in the home (whichever occurs first).
- Or, your child may stay in the home until age 18/19 and you; you can have your spouse can rotate in and out of the house, establishing a time-sharing schedule with your child.
- If money allows, I recommend one spouse buying out the other spouse, cutting the marital ties as well as resolving other tax "basis," "portability," and capital gains issues.
4. How is our property divided?
Property is classified either as marital or non-marital. Any property that is non-marital belongs to the person who it is non-marital to and receives all of it, whether it is a car, pension, stock account or desk. Property classified as marital is more likely than not divided equally, although it does not have to be divided equally. Generally (and there are many exceptions,) marital property is any property acquired during the marriage and non-marital property is any property acquired before the marriage or after your petition for dissolution of marriage is filed. Property can be a pension plan, airline frequent flier miles, money relatives owe to you, deferred stock options, your jewelry or birthday gifts.
5. Who has to pay the credit card bills?
Like property, debts are classified as marital or non-marital with generally the same analysis. One must be careful though, not to rely on your former spouse to pay unsecured debt in your individual name. If it is not paid, your credit will be affected and it is very difficult for the court to actually force compliance with the agreement or order for unsecured debt issues.
6. Can I force my former spouse to follow the Final Judgment?
Whether you arrive at your Final Judgment via trial or settlement agreement, it can be difficult to enforce certain debt provisions, yet easier to enforce alimony, child support, and time-sharing issues. The court can incarcerate a former spouse for not paying child support or alimony but cannot incarcerate former spouse for failing to pay a debt obligation. "Jail equals compliance" versus 'paper does not equal compliance."
7. Do I get alimony or do I have to pay alimony?
Maybe, maybe not. There are several types of alimony: temporary, bridge the gap, rehabilitative, durational, equitable, lump sum, and permanent. Alimony depends on many factors, including but not limited to need, ability, duration of marriage, standard of living, need, ability to pay, age, health, etc. Most types of alimony are taxable as income to the payee and deductible to the payor.
8. How much child support do I pay or receive?
Child support is based on the amount of "overnights" the child has with each parent, the income of each parent, the cost of health insurance for the child, day care costs due to employment or seeking employment incurred on behalf of the child, and other customary expenses of the child determined per a mathematical computation. Child support is not taxable to the payee or deductible by the payor unlike many types of alimony. I can guarantee that if you are receiving child support it will not be enough and if you are paying child support, it will be too much. Child support may be obtained via an income deduction order (and other methods if necessary and available) and paid through a state depository (if requested.) There are ways to pay more or less than the "standard" guidelines. Due to recent changes in the law, do not expect to receive a large amount of child support. Conversely, do not expect to pay a lot of child support.
9. How do I get divorced?
There is no legal separation in Florida. You are either married or not married. You can become divorced via reaching an agreement on all issues with your spouse prior to filing a petition for dissolution of marriage (consent divorce), or by proceeding with filing for a dissolution of marriage (contested divorce) and settling the case prior to a trial, or having a judge resolve your issues for you at a trial. Having a judge, who is a complete stranger to you, tell you how to share time with your child, how to divide assets and debts, how much support to pay, etc., is a really stupid way to get divorced. It is very expensive and you and your former spouse will dislike each other at that point. A trial should only be a last resort if your spouse and their attorney are vindictive and unreasonable.
10. What is mediation?
Mediation is a mandatory and confidential settlement conference that occurs during your divorce process where (generally) you and your attorney sit in one room, your spouse and their attorney are in another room and the mediatory (a divorce attorney trained in mediation jointly chosen by the attorneys whom you and your spouse pay per hour) goes back and forth. A case can take anywhere from 3 to 24 hours to resolve, but usually averages about 4-6 hours.
11. Do I have to take a parenting class?
All parents must complete a manditory four-hour parenting class, which is available online. I recommend this one: www.videoparentingcourse.com
12. What about tax consequences?
You should be fully informed by your attorney of all tax implications in your agreement or court order. Make sure your attorney fully explains the potential income, capital gains and property tax issues in your case. Very important that you ask your divorce attorney specifically about your tax obligations and make sure they know what they are talking about. Many divorce attorneys don't understand tax issues in a divorce. Find one who does.
13. Do I need any expert witnesses or do I want a forensic accountant because my spouse hides income?
We need to fully review and accertain any portion of your case that potentially requires expert testimony, whether it is to valuate a business, determine your spouse's income, perform a psychological evaluation of your spouse, or for many other reasons. Experts are expensive, but most often worth every penny.
14. Who pays my attorney?
You do. Then depending on the facts of your case, you may be entitled to have your attorney fees and costs reimbursed by your spouse, or actually paid by your spouse during the divorce. However, I require an engagement fee in all of my cases, an amount that varies based upon the facts of your case.
15. What is “collaborative divorce?”
This is a divorce in which you assemble a "team" that includes two attorneys, a neutral financial expert and a neutral mental health expert who all work together in a positive atmosphere to reach an amicable and fair agreement. This is achieved through a series of meetings. If your case does not settle, the attorneys are automatically dismissed or “fired” and cannot be retained in future divorce proceedings.
Therefore, the incentive in a collaborative divorce is to agree to work together versus fighting with each other. I highly recommend collaborative divorce, but you will need $30,000 to establish your team of competent experts in order to begin the process. Costs vary, but you will be looking at expenses up to $50,000 by the time everything is said and done. I suggest you Google "collaborative divorce" for more information.
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