The Florida Divorce Handbook 5th Ed By Gerald Keane

5th Edition

LAW / DIVORCE / FLORIDA

Florida Divorce Handbook

You’ll learn: • the stages of a divorce case • what no-fault is all about • how to find the right lawyer what to do if you are served with divorce papers • • what a settlement is and how it helps you • how custody disputes are decided • the different types of child support factors in awarding alimony and dividing property • • how Final Judgments in divorce cases are enforced • what parts of a Final Judgment can be modified • roles of ex-spouses after divorce types and functions of nuptial agreements • • how to conduct yourself in court Gerald B. Keane received his legal training at the University of Florida and has practiced in Sarasota since 1973. Board-certified in marital and family law, he has been president of the Sarasota County Bar Association, chairman of the Florida Bar Grievance Committee, and author of child support and contact guidelines for the 12th Judicial Circuit. Additionally, he has led many community service organizations. He is the author of Florida Law: A Layman’s Guide, also published by Pineapple Press. $18.95

Pineapple Press, Inc. Sarasota, Florida

Florida Divorce Handbook

The fifth edition of the Florida Divorce Handbook reflects the most recent changes in family law in Florida. It offers an overview of the divorce process, introduces the basic vocabulary and legal concepts associated with divorce, and familiarizes you with what to expect if you are planning to divorce in Florida or if you are already divorced and have questions about your rights. Property division and child custody are outlined in separate chapters. Special topics include the mediation process, financial affidavit preparation, and tax aspects of divorce. This book also covers the simplified dissolution of marriage procedure, which allows couples who have no children or property disputes to file for divorce without an attorney.

Keane

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DIVORCE HANDBOOK

5

th Edition

A Comprehensive Source of Legal Information and Practical Advice

Gerald B. Keane Attorney at Law

Pineapple Press, Inc. Sarasota, Florida

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Copyright © 2007 by Gerald B. Keane

All rights reserved. No part of this book may be reproduced in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher.

Inquiries should be addressed to: Pineapple Press, Inc. P.O. Box 3889 Sarasota, Florida 34230 www.pineapplepress.com

Library of Congress Cataloging in Publication Data

Keane, Gerald B., 1945Florida divorce handbook : a comprehensive source of legal information and practical advice / Gerald B. Keane. -- 5th ed. p. cm. Includes index. ISBN 978-1-56164-402-5 (pbk. : alk. paper) 1. Divorce--Law and legislation--Florida--Popular works. 2. Divorce suits-Florida--Popular works. I. Title. KFF100.Z9K43 2007 346.75901'66--dc22 2007032490 Fifth Edition 10 9 8 7 6 5 4 3 2 1

Design by Carol Tornatore Printed in the United States of America

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CONTENTS Introduction v

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

What Is a Dissolution of Marriage? 1 Crisis Time: Crossing the Threshold into Divorce Dissolution Proceedings 25 Simplified Dissolution of Marriage 39 Child Custody 42 Child Support 56 Alimony 68 Property and Property Division 82 Enforcement 93 Modification 105 Tax Aspects of Divorce 116 Mediation 125 Roles after Dissolution 130 Nuptial Agreements 136

A. B. C. D. E. F. G. H. I.

Choosing and Dealing with Lawyers 145 Petition for Dissolution of Marriage 153 Preparing a Financial Affidavit 159 Contact Guidelines 174 Statewide Child-Support Guidelines 178 Petition for Simplified Dissolution of Marriage 183 Parent Education and Family Stabilization Course 187 Child Support Worksheet 189 Depositions 191

Appendices

Glossary 193 Index 200

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INTRODUCTION ivorce is a hard subject. Hard for people to go through and hard for them to understand. Harder still because they need to understand it during the most difficult time of their lives. This book won’t make a divorce enjoyable. But it may make the process tolerable. It is intended to give you an understanding of divorce law as a whole and of the many little pieces that now make it up. You will not be a legal expert when you finish reading this book. You will, however, be able to assist your lawyer with your divorce. You should be able to understand what he or she is talking about and be able to contribute to your case. Divorce law is complicated. It gets more and more complicated every year. Laws change, and then cases change (“interpret”) those laws. Even marital law specialists, those who read every new case in the field, don’t know for certain what a judge will do in a particular case. Divorce law is made up of a fairly intricate framework of statutes upon which case law throws a loose covering; the facts of your case, the approach of your attorney, the philosophies of your particular judge, and even your personality will give your divorce its unique shape. I can tell you about the laws and I can tell you about how they are being interpreted. I can even guess where the divorce laws are heading. But I can’t evaluate the facts of your case (and the facts of every case are different); I can’t tell you what approach your attorney will or should take (although I can suggest what characteristics are associated with the better divorce lawyers). I can’t list all the trial judges in Florida and rate them. Finally, I don’t have the luxury of sitting with you for an hour or so; I can’t guess what virtues and vices you bring to your case. But I can and will tell you that your attitudes and apparent credibility will be as important in the results of your case as any divorce law. For all its complexity, the law of dissolution of marriage is concerned with only a few subjects. Divorce is concerned with support, property, and custody of children. v

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FL O RID A D IV O RC E H A N D BO OK

That makes it seem simple. I can and will tell you how and why support is awarded, whether it is alimony or child support. I can and will tell you about the many forms that support can take and how it can be modified. I can teach you how property is divided and what property the judge has the power to divide. And I can advise you of the factors used to determine custody of children. What I cannot teach you is how to apply the equities. And divorce is all about equities. Only a skilled and experienced lawyer, who has handled hundreds of cases and who knows the facts of your case, and who knows you and has questioned your spouse, can even guess how your case will come out. There are more divorce lawyers working in coffee shops and gas stations than there are behind desks. Everyone you run into who has ever been divorced, or even met someone who has been divorced, will offer to give you advice. They’ll know exactly what your lawyer should do and what you should get. I hope that, after you read this book, you won’t be one of those “lawyers” and that you will know enough to know how difficult divorce law is. I hope that you’ll know enough to know how little you know. I hope that you will know enough to seek and follow the advice of an expert. I also hope that you will understand that judges aren’t computers, that they are evaluating fleeting and elusive hints of what you and your spouse are really like, and that our legal system, for all its faults, is the best and fairest system in the world. This book is only a guide. It isn’t a bible. If you understand the system a little more than you did before you read it, you will become a part of the system, accepting responsibilities and helping it work better. Better for you. I can’t guarantee that you will get justice in your divorce. I can’t even guarantee that this book will make it more likely that you will get justice. I can assure you only that you will better understand your divorce, your rights, and your risks. You will be less a victim than a participant. Florida’s divorce laws are unique, as are the laws of the other 49 states. We Florida lawyers like to believe that our laws are more humane and more enlightened than those of most other states. In fact, there is reason to believe that no state, with the possible exception of California, has done more to improve divorce justice. I am proud to practice law in Florida. No one is fortunate to be going through a divorce. If you must get a divorce, there is no better place than Florida to do so. No better place if you are the husband, the wife, or the real victims, the children. If you have no children and no dispute about your property or alimony, you can get a simplified divorce. You don’t need lawyers and you don’t need to fight. Read Chapter 4 if you are able to use that easier way out. Divorce is always a battle between genders. In writing this book, gender itself became a battle. In fairness to you, the reader, I’ve used “he or she” in most cases

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Introduc tion

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because either gender could be seeking whatever relief I may be discussing; I don’t want to create the false impression that only “she” can seek alimony or that only “he” may be the noncustodial parent. I apologize if this makes some parts a little harder to read. God forbid that you should ever need this book. But, God willing, if you must go through a divorce, I want your case to be as easy as possible. I hope that this book will help you get through it with your dignity intact, your self-respect unshaken, and your respect for our system of justice increased. Good luck.

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1 WHAT IS A DISSOLUTION OF MARRIAGE? Clients arrive at attorneys’ offices with many questions. Often, the attorney doesn’t understand how little the client knows. To be sure that we’re all on the same grounds, let me define at the outset certain terms that you need to understand.

What you will learn in this chapter:

· what no-fault is all about · how a divorce differs from a separation

· what the three stages of a divorce case are

· whether your spouse can prevent you from getting a divorce

· why it matters that divorces are heard in courts of equity

· how long your divorce case will take · what investigation your attorney will do in your case

· why you need an attorney who can and will negotiate

· the best way to resolve your case · the different types of separations in Florida

· actions for support unrelated to divorce, including URESA

· what an annulment is and how it

What Is a “Dissolution of Marriage”? voidable marriages · what a restraining order is and what A dissolution of marriage means the it does same thing as divorce, the legal (or judi· how to get protection if you’re cial) termination of a valid marriage. abused “Divorces” became “dissolutions” when “no-fault” came along. The term “divorce” merely means a turning away or going one’s separate way and does not essentially carry any implication of fault. Nonetheless, the term acquired so much baggage over the years that some obscure legislator in some forgotten state decided that the new concept of divorce required new terminology. For all practical purposes, a dissolution of a marriage is a divorce, and I use the terms interchangeably throughout this book. affects marital rights

· the difference between void and

What Does “No-Fault” Mean? No-fault divorce does not require proof of fault to end the marriage. The petitioner (that is, the party filing first) no longer needs to prove one of the tradition-

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al bases for divorce, such as mental cruelty, adultery, or physical abuse. Most marriages break up because the parties are incompatible. The other problems are just symptoms of the parties’ inability to live together. Under the old (fault) system, where no adultery occurred, and where there was no mental or physical abuse, or other A respondent is the person who must blame, the respondent (that is, the party answer or respond to the Petition. He who does not start the divorce and, or she can also seek relief by filing a therefore, who “responds” to the peti“Counterpetition” but that doesn’t tioner’s action) did not have to allow a change him or her from being the respondent. divorce. If one of the grounds for divorce did not exist, the parties had to A trial is the court appearance, often collude — that is, lie — about the exisin front of a jury, when the evidence tence of such grounds in order to get a is presented and the case decided. divorce. No-fault has succeeded in A hearing is a court appearance with eliminating that shameful exercise. only the judge present; the term is Either party may obtain a marriage used for all preliminary appearances whenever he or she believes that the in divorces and the trial is usually marriage is “irretrievably broken,” called the final hearing since divorce regardless of who has caused the breakcases are always tried without a jury. ing, if anyone. (A second, little-used basis for divorce is that the other party has been legally adjudged incompetent for more than three years.) No fault divorce means you don’t have to point a finger any more; it doesn’t mean, unfortunately, that fingers aren’t pointed. The reasons are just different now. A petitioner is the person who brings the action by filing a “Petition for Dissolution of Marriage.” He or she is asking, or petitioning, the court for legal help. By statute, the parties in divorce actions are properly referred to as the “husband” and the “wife” and “petitioner” is rarely used in actual cases.

What Is the Difference Between a “Lawyer” and an “Attorney”? The technical difference is that a lawyer is any law school graduate; an attorney is a lawyer who has been admitted to the Bar, that is, is licensed to practice law in the state. In practice, there is no distinction. Even most lawyers (or do I mean attorneys?) don’t know the difference. Whether your representative goes by lawyer or attorney, he or she is still the same thing, a licensed member of the Florida Bar. If you have doubts about whether a person is really licensed to practice law, you can call the Records Department of the Florida Bar in Tallahassee for confirmation of membership and good standing. The telephone number is (800) 342-8060 (press 0 at the prompt and then press 4) or go to http://www.floridabar.org and access the “Find a Lawyer” on the bar at the top.

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What Is a Dissolution of Marriage?

3

What Is the Difference Between a “Hearing” and a “Trial”? Some cases go to “trial” and some go to “hearings” or “final hearings.” We usually think of a trial as a contest in front of a jury and a hearing as a contest in front of a judge alone. Although dissolution actions are always tried without a jury, the terms “final hearing” and “trial” are used interchangeably. What Comes Out of a Final Hearing? A Final Judgment. Or a Decree. Or a Final Decree. Actually, I’ve rarely heard the latter two terms in Florida. The court’s ruling is always called a Final Judgment in our state. I have, however, seen final rulings from other states designated as Decrees.

What Is the Difference Between a “Divorce” and a “Legal Separation”? Some clients don’t want a divorce. They want a “legal separation.” There are three situations that could accurately be called a “legal separation”: (1) any separation of the parties governed by a written instrument; (2) a separation where the dependent spouse has obtained an order of support unrelated to a dissolution; and (3) a separation where the supporting spouse has obtained an order of how much he or she must pay. Separation is discussed later in this chapter, but it differs from a divorce only in that the technical legal bond remains in place, the partners’ property remains jointly owned, and neither party can remarry. There are many other terms that might be confusing. They may be Greek to you but, in some cases, they’re Latin. The glossary at the back of this book will help you. The Effect of No-Fault Before no-fault, the central issue in a case was whether there would or would not be a divorce. We still hear people say things like “She won’t give me a divorce,” which used to mean that the wife wouldn’t go along with lying about the existence of a legal basis for divorce. With no-fault, that is no longer an issue. Divorce is now almost a matter of right. Although the judge could find from the evidence that the marriage is not irretrievably broken, it rarely happens. If there are no children and the allegation in the Petition that the marriage is irretrievably broken is not denied, the judge must enter a dissolution of marriage “if the judge finds the marriage is irretrievably broken.” The last phrase seems like such a redundant afterthought that it is clear the intent is that a denial of a divorce should be rare. When there are children or when the respondent denies that the marriage is irretrievably broken, the judge may do any one of four things: grant the divorce, order counseling, delay the judgment for