Donald Appignani - Attorney at Law
Compassionate
| Competent | Professional
Family Law:
Divorce, Alimony, Child Support, Paternity, Nuptial Agreements
DIVORCE (aka DISSOLUTION OF MARRIAGE)
The official term for divorce in Florida is "dissolution of marriage."
Florida is one of the many states that has abolished
fault as a ground for divorce. This law lessens the potential harm to
the husband, wife, and their children caused by the process of divorce.
All that is required is that the marriage be "irretrievably broken."
Either spouse can file for the dissolution of marriage. All that has to
be proved is that a marriage exists, one party has been a Florida
resident for six months immediately preceding the filing of the
petition, and the marriage is irretrievably broken. (There is another,
little-used ground: the incompetence of one's spouse for at least three
years preceding the petition for dissolution). Fault, however, may be
considered under certain circumstances in the award of alimony,
equitable distribution of marital assets and liabilities, and
determination of timesharing.
Each divorce case is unique and therefore results
vary. Even though fault is not an issue in granting the dissolution, the
division of property and possessions, responsibility for support, and
timesharing of children may become contested matters.
The divorce process is highly emotional and traumatic
for everyone it touches. Marriage partners often do not know their legal
rights and obligations. Court clerks and judges can answer some of your
basic questions but are prohibited from giving legal advice. Only your
lawyer is allowed to do that. Statutory requirements and court rules
must be strictly followed or you may lose certain rights forever. It is
recommended that you obtain the services of an attorney concerning legal
questions about your rights in a divorce, your children's rights, your
property rights, your responsibilities resulting from the marriage or
tax consequences. A knowledgeable lawyer can analyze your unique
situation and can help you to make decisions in the best interest of you
and your family.
REGULAR DISSOLUTION OF MARRIAGE The regular dissolution process begins with a petition for
dissolution of marriage, filed with the circuit court by the husband or
wife, which states that the marriage is irretrievably broken and sets
out what the person wants from the court. The other partner must file an
answer within 20 days, addressing the matters within the initial
petition and raising any additional issues the answering party desires
the court to address.
Court rules governing divorces require that each party
provide certain financial documents and a completed financial affidavit
to the other party within 45 days of the service of the petition or
before any temporary relief hearing. Failure to provide this information
can result in the court dismissing the case or not considering that
party's requests. The parties or the court can modify these requirements
except for the filing of a financial affidavit, which is mandatory in
all cases in which financial relief is sought. A child support guideline
worksheet must also be filed with the court at or before any hearing on
child support. This requirement may not be waived by the parties or the
court.
Some couples agree on property settlements, child
timesharing, and other post-divorce arrangements before or soon after
the original petition is filed. They then enter into a written agreement
signed by both parties that is presented to the court. Other couples
disagree on some issues, work out their differences, and also appear for
a final hearing with a suggested settlement which is accepted by the
judge. In such uncontested cases, a divorce can become final in a matter
of a few weeks.
Mediation is a procedure to assist you and your spouse
in working out an arrangement for reaching agreement without a
protracted process or a trial. Its purpose is not to save a marriage,
but to help divorcing couples reach a solution to their problems and
arrive at agreeable terms for handling their dissolution. Many counties
have mediation services available. Some counties require couples to
attempt mediation before a trial can be set.
Finally, some couples cannot agree on much of anything
and a trial-with each side presenting its case-is required. The judge
makes the final decision on contested issues.
Reaching a settlement, whether by direct negotiations or mediation,
usually requires compromise by both parties. Attorneys have learned it
is unrealistic to expect both partners to be "happy" with their divorce.
The experience can be emotionally devastating. The financial upheaval of
supporting two households instead of one causes hardship for the entire
family. The parties, however, can take steps to make the process easier
for themselves and their children.
EQUITABLE DISTRIBUTION/PROPERTY DIVISION One of the most difficult and complex areas of divorce is the
division of marital assets and liabilities (debts). Marital property may
include cars, houses, retirement benefits (pensions), business
interests, cash, stocks, bonds, bank accounts, personal property, and
other things of value. Liabilities include mortgages, car loans, credit
card accounts, and other debts. Generally, any asset or liability
acquired during the marriage is considered marital and subject to
distribution.
Florida statutes and case law provides for an
"equitable distribution" of marital assets and liabilities. In essence,
the marital property should be divided fairly or equitably (not
necessarily equally) between the parties regardless of how the title is
held. This is based on a long list of factors.
Equitable distribution is done first before alimony is
considered.
There is no fixed way to determine how you or the
court should divide the property, or debts. Factors to be considered by
the court include the contribution of each spouse to the marriage; the
duration of the marriage; and the economic circumstances of each spouse.
If you and your spouse can agree, and if your agreement is reasonable,
it will be approved by the court. If you cannot agree, the court will
divide the assets and liabilities after a trial.
ALIMONY After equitable distribution has been made, the court may consider
the award of alimony. The court may grant alimony to either the husband
or the wife. Rehabilitative alimony may be for a limited period of time
to assist in redeveloping skills and financial independence. Permanent
alimony continues until the receiving spouse's remarriage or the death
of either party. Rehabilitative and permanent alimony generally are paid
periodically (i.e., monthly or semi-monthly). The court may grant some
combination of the two. The court may also order lump-sum alimony where
one party pays to the other party a lump-sum payment of money or
property. Although adultery does not mandate or bar an award of alimony,
the court may consider the circumstances of that adultery in determining
an award of alimony.
In awarding alimony, the court considers factors such
as the parties' prior standard of living; length of the marriage; age
and physical and emotional condition of both spouses; each spouse's
financial resources and income-producing capacity of the assets they
receive; the time necessary to acquire sufficient education or training
to find appropriate employment; and the services rendered in homemaking,
child rearing, and education and career building of the other spouse.
The court may consider any other factor necessary to do equity and
justice between the husband and wife.
You have the right to find out about all your spouse's
income and assets through the use of discovery procedures which your
attorney will explain to you.
TIMESHARING It is the public policy of Florida to ensure each minor child has
frequent and continuing contact with both parents after the parents have
separated or divorced, and to encourage parents to share the rights and
responsibilities of child rearing. The father is given the same
consideration as the mother in determining timesharing regardless of
their child's age or sex.
In most cases, parental responsibility for a minor
child will be shared by both parents so that each retains full parental
rights and responsibilities with respect to their child. This requires
both parents to confer so that major decisions affecting the welfare of
the child will be determined jointly.
You and your spouse may agree, or the court may order,
that one parent have the ultimate responsibility over specific aspects
of the child's welfare, such as education, religion, or and medical and
dental needs. If the parents have a substantial conflict over any of
these areas the court will decide on responsibility for them. The court
can order varying types of shared parenting arrangements depending on
the evidence presented. The court may designate one parent's home as the
primary residence and afford the other parent frequent and continuing
contact, or, the court may order rotating timesharing in which the time
spent with each parent is equal.
In rare cases, the court can order sole parental
responsibility and timesharing to one parent. To do so, the court must
determine that shared parental responsibility would be detrimental to
the child.
In considering issues between parents and their
children, the best interest of the child is the primary consideration by
the courts.
Florida law requires both parties to attend a
parenting course prior to entering a final divorce. Consult your county
clerk's office for information on courses offered.
CHILD SUPPORT You and your spouse each have a responsibility to support your
children in accordance with their needs and your financial abilities.
Child support may be by direct payment or by indirect benefits, such as
mortgage payments, insurance, or payment of medical and dental expenses.
Ordinarily, the obligation to support your child ends when that child
reaches 18, marries, or becomes financially independent.
Some of the issues concerning child support which must
be considered include: (a) the amount of support; (b) the method of
payment; (c) ways to assure payments are made; (d) when child support
may be increased or decreased; and (e) who claims the dependency
deduction for tax purposes. Other questions may need to be answered,
depending on the circumstances of your case. Guidelines for the amount
of support apply to all cases and are based on the income of the parents
and the number of children with adjustments for substantial overnight
contact.
If you have a problem getting support payments from
your spouse or former spouse, or timesharing and access to your child is
denied, you should bring this matter to the attention of the court. It
is not legal to withhold timesharing or child support payments because
either parent fails to pay court ordered child support or violates court
ordered timesharing.
PATERNITY Establishing paternity is the legal proceeding to determine the
father of a child. If the parents are not married to each other when the
child is born, the child does not have a legal father unless paternity
is established and/or the parents marry each other. Until paternity is
established, the mother has all care-taking responsibilities for the
child. The father has no timesharing rights to see the child.
Establishing paternity benefits all of the parties
involved. The father gains parental rights, including, but not limited
to, timesharing, the ability to take part in decision-making and any
other rights and benefits as a child born to married parents. The mother
benefits from the financial support of the father. The child benefits
the most with legal proof of each parent's identity, information on
family medical history, medical or life insurance from either parent (if
available), and financial support from both parents, including child
support, Social Security, veteran’s benefits, military allowances (if
applicable), and inheritance.
PRE-NUPTIAL/ANTENUPTIAL and POST-NUPTIAL AGREEMENTS
Premarital Agreement, Pre-Nuptial Agreement and/or an Ante nuptial
Agreement mean an agreement between prospective spouses made in
contemplation of marriage and becomes effective upon the date of the
marriage. A Post-Nuptial agreement is an agreement between spouses that
becomes effective upon execution by both parties.
These forms of agreements resolve issues in the event that the parties
later divorce. Commonly, parties address property rights, alimony,
inter-spousal gifts, rights to pension and retirement accounts, the
making of a Will and life insurance policies.
Marital agreements can be powerful tools to protect
both spouses and children if drafted properly and in compliance with
Florida statutes. A key factor to ensuring that these agreements are
upheld in court is that both parties must provide full disclosure of
their finances.
Other Practice Areas Don Appignani concentrates in the following practice
areas (click on the link for more information):
