Florida Divorce: Alimony

Divorce cases generate many questions about alimony. Today we talk about the types of alimony available in Florida. Alimony is based primarily on the receiving spouse’s need and the paying spouse’s ability to pay.

Temporary Alimony is payable while the divorce case pending. This type of alimony cannot be waived, even in a prenuptial agreement because it is based on the legal duty to support your spouse. It ends at final judgment.1

At final judgment, there are three possible types of alimony in the law.

Permanent Alimony is what we traditionally think of when we hear the word “alimony.” It is paid as long the receiving former spouse is alive and remains unmarried. If the receiving spouse moves into a “supportive relationship,” Florida law now permits permanent alimony to be modified or changed. If the paying spouse dies first, his or her estate has to continue to pay.

Rehabilitative Alimony is paid while the receiving spouse gets education or training that will allow him/her to be self-supporting. To be eligible for rehabilitative alimony, there must be a specific plan for the education.

Lump Sum Alimony is awarded, but not often. This is payment of a specific amount, in either one payment or payments over time. Once ordered, the whole amount becomes the property of the receiving spouse. This alimony cannot be modified.

In some areas of the state, judges have created a fourth type of alimony called “bridge the gap,” meant to ease the transition to single life when there is no rehabilitative plan. This is another type that cannot be changed once ordered.

DIY Courses Begin

The DIY Divorce Tele Classes begin Monday with the free Tele Test Drive Class on Basic Florida Divorce Law. The Tele Test Drive lets you check out how our virtual classroom works and the kind of information and material you can expect in the DIY Divorce courses.

If you are interested in the June class, sign up now. space is limited. You can learn more about the courses and virtual classroom on our website.

Florida Divorce: Frequently Asked Questions

Can I stop a no-fault divorce?

If one of the spouses believes that the marriage is “irretrievably broken,” the divorce will very likely be granted. The “no fault” law makes it extremely difficult to stop a divorce.

Can I date while separated?

Until the Final Judgment is signed by the judge, you are still married. Regardless of what this means to you, it is important not to introduce your dating partners to your children until you have established a relationship you believe is serious.

How long does it take to get a divorce?

Once all the required documents have been filed by both of you, your case is ready for final hearing. The scheduling of that hearing depends on your area. Expect the whole process to take a minimum of two months.

Can we use the same lawyer to save money?

The Rules Regulating the Florida Bar prohibit an attorney from representing more than one party in a case. Even if you both agree, the attorney can only represent one of you in a divorce case.

Florida Divorce - Meeting Your Responsibilities

Representing yourself in a divorce means that you need to study the law, rules of procedure and your local court's administrative orders. These resources are all available online in Florida.

The laws you will need to become familiar with include Chapters 44, 48 and 61 of the Florida Statutes. Chapter 44 covers mediation rules. Chapter 48 covers service of process and the court's jurisdiction. Chapter 61 is the actual divorce law and includes custody and child support.

You will also need to know the rules of procedure. The Florida Family Rules and Procedure (Fla. Fam. L.R.P.) outline the divorce procedure requirements. Some of the family rules refer back to the Florida Civil Rules of Procedure, so you will need access to the civil rules as well. Both the statutes and the procedural rules are contained in our link section.

Finally, you should review the local administrative rules. Each court seems to have some local procedural requirements outlined in the administrative rules. For example, in the 6th Circuit there are special local forms you need to file your case. Many times, the model visitation schedule for your area is contained in an administrative order. So be sure to search your court's website so that you can represent yourself in your Florida divorce.

Representing Yourself in Divorce - Your Responsibilities

Representing yourself in your divorce case is called “pro se.” Legal dictionaries define "pro se" as someone who represents them self in a legal procedure without an attorney.

You have the right to represent yourself in court, however, you must understand that choosing to represent yourself means the court will expect you to follow the same rules and procedures that an attorney must follow. You will need to study Florida law and procedures.

The judge in your case must remain impartial and cannot do anything to give any appearance of being partial to either side. This includes giving legal advice and having contact with either party without the other being present. When you go into court, the judge may give you information about what may be wrong with the papers you filed. Listen carefully.

Court staff can only assist you with procedures. Procedural information includes such matters as where to obtain forms for some procedures, how to file a petition, answer requirements, service requirements on common procedures, how to get a default, how to file a motion, how to get a hearing, etc.

Very often there is a fine line between procedural information and legal advice. Staff cannot give legal advice. Basically, questions are taken on an individual basis and a judgment is made about whether or not the question involves giving legal advice. If you are told that your question is legal advice, just accept that it is and don't continue to question court employees to help you when they cannot.

Filling out forms is definitely considered legal advice. You will need to seek an attorney’s assistance or learn some Florida law if you have any questions regarding "what to put in the blanks." The DIY Divorce courses are designed to help you learn Florida divorce law. Use the box on the left to sign up now for a free Tele-Test Drive.

Avoid These 4 Mistakes in Your Florida Divorce

Florida divorce procedures can be like navigating a maze at a time when you're already feeling confused. If you are representing yourself in a Florida divorce, avoid these four common mistakes.

• Asking your friends for legal advice. Unless you are friends with a Florida divorce attorney, avoid asking them for legal advice. You will get different advice and end up taking a poll. It will make you crazy. If you are representing yourself, get expert advice when you need it, but to do this right, you need to learn about Florida divorce law.

• Incomplete Financial Affidavit. This is the most important document of your case if you have any property, debt or children. Take the time to get accurate information. Use at the past 12 months of household bills. Call the companies if you don’t have the information. Get current values for all accounts at the date of filing the petition for dissolution of marriage.

• Not customizing the Florida divorce forms. Your case is unique. The official online forms do not always permit you to add sufficient information to get what you want. If you want to ask that property be sold over your spouse’s objection, you need to include all the requirements for a partition action. The form permits only 5 additional lines of information for “other relief.” This is not enough space to meet the requirements for the relief you want in your Florida divorce.

• Not Seeking Expert Help. There are times when it just makes sense to get some expert help with your case. If you have complicated or unique finances, you may need an accountant. If you have complicated property issues or non-marital assets, you may want to talk to an attorney about legal treatment of the property or to an accountant about valuation issues. There are just times when it makes sense to seek expert advice in your Florida divorce.

Florida Divorce: Answers & Counter-Petitions

Answering the divorce petition is an important step in your DIY divorce. The purpose of the Answer document is to admit or deny what has been said in the petition. For each paragraph, your answer needs to indicate whether you "admit" or "deny" what is contained in that paragraph.

If you want to file a counter-petition, you must do it at the same time you file the Answer. A counter-petition is the Respondent's request that the divorce be granted and that the court order certain relief.

Why file a counter-petition? If you want the court to order specific things not requested in your spouse's petition, you may want to file a counter-petition. In a previous post we talked about the situations in which you need to make specific allegations in a divorce petition. If any of those situations apply to your case, you may want to file a counter-petition. If you definitely want the divorce and are worried that the petitioning spouse may not complete the divorce, you should file a counter-petition so that you can complete your divorce petition.

Kids & the Importance of Calendars

When involved in a contested custody case, you should keep a calendar of all significant events. Take the time to make a note of things like how often the other parent has the kids, when support payments are made, when important discussions are had with your soon-to-be-ex.

Sometimes these calendar notes can help determine the proper amount of child support. Most of the model schedules in use in Florida provide for almost 40% of time with the non-custodial parent. Since the law allows an adjustment for significant timesharing, child support is often reduced. If the non-custodial parent does not actually exercise the time allotted in the schedule, child support may need to be adjusted. Before you can adjust child support, you will need to know the exact number of days actually used by the non-custodial parent. A calendar makes this calculation far easier than trying to reconstruct missed visits many months down the road.

Similarly, a calendar can help document late pick ups and drop offs, refusals to cooperate, chronic late payments and other inappropriate actions of the other parent. If you are having any dispute with your soon-to-be-ex, try using a calendar to keep track of events. You should also be aware that your calendar can be subpoenaed by the other side, so you may want to use a separate calendar for your divorce disputes.

Guardians Ad Litem

Guardians ad litem are sometimes appointed in contested custody cases. With all the news coverage of the Texas polygamists, guardians ad litem have been in the news alot of the past few weeks. Just what is a guardian ad litem?

GALs are appointed by the court to represent the best interest of the child. GALs are required in child abuse cases in Florida. Each judicial circuit has a GAL program that trains volunteers to serve in the program.

In divorces, a GAL is appointed when one of the parties requests it by filing a motion and the court enters an order of appointment. GALs in divorce cases are usually attorneys in Florida.

Judges typically give the GAL recommendations great weight. You need to think about whether a GAL appointment would be helpful in your case. You should also speak with the proposed GALs prior to appointment because you and your child will be working with the GAL throughout the case.

Florda Divorce: The Statistics

Florida divorce statistics continue to show about 90,000 divorce cases filed per year. For the first six months of 2007 (latest available numbers) there were just over 48,000 dissolution cases filed in Florida. This number is slightly lower than the same period in 2006.

The National Center for Health Statistics also follows marriage and divorce statistics. Their latest national numbers (2005) show that there were over 2.2 million marriages and a national divorce rate of 3.6 per 1,000 people - the lowest rate since 1970. Nevada had the highest divorce rate at 6.4.

The overall Florida divorce rate continues to fall from its high of 6.9 in 1990. Strangely, the highest divorce rates in Florida seem centered in Broward County. Pompano, Lauderhill, Hallandale, Hollywood, Davie, Ft. Lauderdale and Deerfield Beach all have divorce rates over 12%.

Florida Divorce Issues - What's First?

In a Florida divorce, judges consider the issues in a specific order. There are five possible major issues or areas in a divorce case. This is the order in which judges consider the issues:

Parenting Plan/Primary Residence, Parental Responsibility

Equitable Distribution/Property Division

Alimony/Spousal Support

Child Support

Everything Else/Name Change, Life Insurance, Court costs

If you are representing yourself in a Florida divorce, you should use the same PEACE order to analyze your case and later, to prepare the settlement agreement.

No Co-mingling Here

Non-marital assets and co-mingling can be a big headache when equitably distributing assets in divorce. Co-mingling is the term used when marital money or efforts are used on non-marital assets that belong only to one spouse.

Last week, the Fifth District Court of Appeal decided a case from Ocala that involved possible co-mingling. The wife had looked at 5 acres prior to the wedding, but the sale closed after the wedding.

During the divorce, the husband claimed that the land was marital because it was purchased during the marriage. The evidence showed that the down payment was made with money from the wife's mother. The payments were made with non-marital accounts of the wife and her mother and son. Later, the wife's mother sold her house and that money also went toward the 5 acres.

Even though the wife's pleadings failed to identify the land as non-marital, the judge found that the 5 acres were, in fact, non-marital. The lack of pleading did not matter to the court since the spouses argued the issue during the trial.

Take away two lessons from this case. First, if you have a non-marital asset be sure you do NOT use marital money to pay for it. Second, keep your pleadings accurate so you don't buy yourself an appeal in your Florida divorce case.

Basic Florida Divorce Law

You may have noticed that we've been posting here less in the past couple weeks. That's because we have been working on a new webpage for our tele-class launch.

The Basic Florida Divorce Law class will be available on a telephone bridge line. The class itself will be free, but you will have to pay for any toll charges (unless we find a fabulous provider that offers a toll free number at no cost on this end). With so many unlimited phone plans now, we don't think a toll call is a big price to pay for a 60 to 90 minute class.

So stay tuned right here at the DIY Divorce in Florida blog. We'll be announcing the date of the first class here in the next few weeks. Remember, we educate you so you can represent yourself in your Florida divorce.

Dismissal: What a Mess!

Notice of Dismissal is effective immediately. The First District Court of Appeal recently had to unravel the past several years of court actions and orders. Here's what happened:

The couple lived together, had a child and got married. The wife filed for divorce almost immediately. A year later, a Magistrate held a hearing and recommended a final judgment of divorce, custody, child support and equitable distribution. The wife filed a Notice of Voluntary Dismissal ten days after the Magistrate's recommendation. Apparently unaware of the dismissal, 20 days later the judge signed an order adopting the Magistrate's recommendations and both parties presumably got copies of a "final judgment."

Another year later, the husband filed to modify custody and visitation. There was a trial and the court denied the modification. The husband appealed. At that point, someone looked at the whole court file and realized that the judge did not have authority to enter any orders after the wife dismissed the case.

Granted, this case was unusual because the final hearing was held in front of a Magistrate. The case actually involves the issue of when a case is "submitted to the court for decision," as it relates to the ability to dismiss a case without a court order. Esoteric issue maybe, but I hope that none of you will allow a year to pass without a hearing in your Florida divorce case.

Florida Divorce: Serving the Petition

Florida has three different ways to serve your divorce petition on your spouse. The judge’s authority over your spouse depends on how the petition is served. The three ways to serve a Petition are:

• Personal service
• Substitute service
• Constructive service

Personal service means that a summons and copy of the Petition are handed to your spouse by law enforcement or a certified process server. This is the primary way to serve a person in Florida. A list of certified process servers is usually available from the Court Administrator’s office or court website.

Substitute service means that the papers were given to someone over age 15 who lives in the same place as your spouse regularly lives. You cannot accept service if you still live together. So if your spouse is living with her parents, the papers can be handed to her father by law enforcement or a certified process server. This type of service is just as good as personal service on your spouse.

If you don’t know where your spouse lives, you will have to use Constructive Service or Service by Publication. The first step is to “diligently search” for your spouse to try to serve them personally. You can only publish if personal service is not possible. This means using all the information you have about your spouse and asking certain agencies if they have more information, and then following up on that information. It is a specific process and you may want to hire someone knowledgeable to do it for you. Next you’ll file an affidavit with the court outlining your search. After that, you’ll have to publish a notice in the newspaper. Once the publishing is complete and proof of publishing is filed with the clerk, your spouse has notification of the petition and the case can go to final judgment.