The Complete Guide To Filing For Divorce In Florida
My name is Sean Smallwood and I am an Orlando divorce attorney who has been practicing family and marital law for about a decade.
I understand that whether you are a newer attorney or someone who intends to represent themselves in a divorce matter the information in this guide will assist you in the process of filing for divorce in Florida.
This guide is meant for informational purposes only and you should not act based on the information in this guide without consulting an experienced Orlando, FL divorce attorney about your particular set of facts and circumstances.
Different Types of Divorce: You Must Know First What to Ask For
Believe it or not, there are different types of divorce and it is important to understand which divorce type applies to you.
The main types of divorce that I experience in my family law practice are contested divorce and uncontested divorce.
I will structure this guide in a way that describes each of these types of divorce in detail and then provides pointers on how to get the documents filed.
Contested Divorce: When You Just Can’t Seem To Agree
A contested divorce is the type of divorce that everyone who calls our office wants to avoid.
My intake staff always has a story for me about people calling our office and saying that they have an uncontested case. Once my intake staff goes a little deeper into the facts though we find out that there are high conflict custody issues, someone expecting alimony and the other party refusing to pay, and a serious fight brewing over the property.
There is absolutely nothing uncontested about a case where the parties are in disagreement about such issues. The problem is everybody wishes their case could be uncontested but only a few actually are.
Anytime parties to a divorce action cannot agree on even a single issue then the case is going to be classified as contested until they can reach an agreement on that issue.
The most common areas that become contested in divorce actions are: child custody, alimony, property division, and child support.
The important thing to remember is that when you have a contested case your odds of having to go to court go up dramatically and if that happens you will need to prove entitlement for everything that you are asking for.
If you are seeking a certain child custody schedule, then you will need to show that your proposed parenting plan is in the minor child’s best interests. If you are seeking alimony you will have to prove that you have a need for alimony and the other party has the ability to pay it. If you are seeking division of retirement accounts, or an investment property portfolio you will need to prove that these items are marital property and what the value of the assets is.
The thing that all of these have in common is that they require an additional level of discovery in order to document everything properly. Your requests must be packaged for the judge in a way that the judge needs it in order to exercise their authority to give you what you are asking for.
This means that when you file for divorce you will probably want to file a request for production of documents which includes a standard list of discovery documents that comes with the request to produce. Along with the request to produce you will also want to file Florida standard interrogatories.
Both of these forms are available on the Florida Supreme Court family law forms website and will be very important for your case if you end up going to court.
As your contested case completes the discovery process you will be required to attend mediation. Mediation occurs when the parties have completed discovery, but before they are permitted to go to court. Mediation is simply a court-mandated settlement conference where the parties and their lawyers sit down with a Florida Supreme Court certified mediator in an attempt to work out an amicable settlement to the case.
If the parties are not able to reach a settlement then the mediator files a form with the court notifying the court that the parties have reached an impasse. An impasse is a fancy term that means the parties could not reach an agreement.
One mistake that a lot of attorneys and self-represented litigants make in their contested divorces is that they rush to mediation sooner than they should.
You should not schedule mediation until after all of the discovery has been completed in the divorce action.
The reason for this is simple. If you cannot yet adequately identify what assets are marital property, what the value of those assets are, and what the incomes of the parties are then you are not ready to settle the case.
Think about it, you are at a settlement conference and the other side wants you to accept a settlement of $10,000 as your half of their 401(k). The only problem is they are refusing to give you a statement showing how much is in their 401(k). Are they lying? Are they trying to rip you off? You don’t know because you never obtained the 401(k) statements because you were in too much of a hurry to schedule mediation and now that you are in mediation you cannot settle the case because you didn’t do enough discovery.
If the case settles at mediation, then a final judgment will have to be prepared for the court to sign which will finalize the case. If the case does not settle at mediation then one of the parties will need to file a notice for trial, the case will be set on the court’s pretrial docket, and a trial date will be scheduled.
Uncontested Divorce: Let’s Not Fight
An uncontested divorce, contrary to the contested divorce described above is a situation where both parties come to the table in full agreement on all issues.
They agree on custody, asset division, and child support.
A textbook uncontested case occurs when the parties enter into a full divorce settlement agreement which is filed at the very beginning along with the petition for dissolution of marriage.
After some accompanying documents are filed with the court for final judgment as provided in the case is over.
I personally believe that every case has the potential to be uncontested.
Too many people let their emotions get in the way of an uncontested resolution which can create unnecessary conflict.
The other issue with uncontested divorce is that because everybody wants their case to be uncontested they will go too far in what they are agreeing to that they end up having regrets about the deal they signed off on. If they had gone a little further down the traditional divorce path they probably could have negotiated better settlements.
It is important to remember that before you sign any divorce agreement you must consult a qualified divorce lawyer in Orlando Florida who can quickly tell you if you are entering into an unfair deal or not.
Filing For Divorce, The Nuts And Bolts Of It All
Now that we have talked about the two main types of divorce it will be important to understand what comes next.
Pursuant to the divorce statute, the paperwork needed to file for divorce will include a petition for dissolution of marriage, a notice of Social Security number, civil cover sheet, a notice of confidential information, financial affidavit, UCCJEA affidavit in child cases, proposed summons to be issued, and any specific discovery requests that you plan to file such as a request for production or interrogatories as stated above.
After completing all of these documents you will need to pay a hefty filing fee to the Orange County clerk of court, or your local clerk of court who will then officially file the action and issue the summons which will need to be served on the other party.
Once the other party is served, they will have 20 calendar days to file an answer admitting or denying the allegations in the case. Very often in divorce, the answer is accompanied by a counter-petition for divorce.
After the petition phase is completed the parties enter into the discovery phase. Once the respondent is served with the petitioner’s petition for divorce a 45-day deadline starts and within that time both parties are required to file financial affidavits and certificates of compliance with mandatory disclosure.
Mandatory disclosure is the minimum mandatory discovery that both parties must turn over in a divorce case that involves property and/or children.
Once the parties have completed their disclosure of discovery they can move forward and schedule mediation.
While most divorce cases settle at mediation the ones that are not able to settle at mediation will be set on the court’s pretrial scheduling docket to receive a trial date.
The trial in a divorce case in Florida is not exactly what you see on TV. It can be quite nerve-racking and stressful if you do not know what to expect or what you are doing.
The judges are mandated not to waive any of the rules of evidence or court procedure just because somebody doesn’t understand the rules and this has caused many self-represented litigants to walk out of court in tears not understanding why the judge ruled against them when it should have been a no-brainer.
Regardless of how good or bad your trial goes at the end of the trial the judge will issue an order that will essentially conclude your case.
Unfortunately, for some people, this is not the end. If their spouse receives a judgment that they are unhappy with they can utilize the appeals process to cause the case to go on even longer.
If that’s not enough, the statute provides everybody the opportunity to modify child custody orders and child support at any point until the kids turn 18 if there has been a substantial change in circumstances.
If that happens then buckle up because the process for a modification is identical to the process that the initial divorce followed with a petition, discovery, mediation, and trial.
In conclusion, I hope that this guide has provided some value to your situation and has not created more stress and confusion than you had before you picked it up.
If you are facing a divorce contact our Orlando divorce law firm to schedule a no-obligation consultation where we can go into the facts of your case in detail and let you know what your rights and responsibilities are.