Frequently Asked Questions
For Divorce and Paternity
How long will my divorce take?
Each and every proceeding is unique. The length of the proceeding will vary depending on the issues, whether the divorce is contested or uncontested, whether or not you know where the other party is and the court’s schedule. Additionally, as each client’s situation is unique as to their needs, desires and issues this will also greatly affect the duration of the proceeding. For example, a couple in agreement as to the parenting and time-sharing of the child will be less litigious than that of a couple that does not agree. However, the average proceeding lasts from three to six months.
What is the divorce process like?
The process can be broken into stages:
Preparation and Pleadings Stage. If you are filing for divorce, or responding to a petition that was served on you, your attorney will need to sit down with you and gather all the facts. Once these facts are gathered, your attorney can properly plead your case. Each case is unique. Some cases deal with issues surrounding distribution of assets, while others center around children issues. It is important for your attorney to understand your needs and desires to ensure that he/she asks the court for what you want.
Temporary Rulings. You may have a pressing need that cannot wait for Trial and your spouse, or the other parent, will not agree to a settlement of your particular problem. In these cases we can request the Court for temporary relief. The relief may be monetary in nature or concerning custody/time-sharing.
Discovery Stage. In this stage, we will gather all the relevant data from the opposing party. This could be done in many fashions; by asking the opposing party directly for the information or asking a third party for the required information. However, we must also provide all of the relevant data to the opposing party. During this phase, we may depose witnesses and the opposing attorney may depose you. You must produce at a minimum, a Financial Affidavit. (See: What is a Financial Affidavit? below.)
Settlement/Mediation Stage. Once we have gathered and reviewed the discovery we can now sit down at the table and negotiate a settlement. If the issues are simple and can be resolved easily, a settlement meeting may be arranged. A settlement meeting requires no outside intervention to resolve the parties’ problems. If it appears as though outside intervention is required then the parties will go to mediation to resolve their disputed issues. (See: What is mediation?)
Litigation. If settlement/mediation fails, and the parties have outstanding differences, then the parties must go to trial.
I was served with court papers, what do I do?
It is important that you seek out professional help. Get a consult from an attorney so that you are explained your rights and the proper procedures. In most cases, you have twenty days to respond.
What are my rights as a father?
In the past we found that generally the mother has had preference over custody of the parties’ minor child. However, in the last few decades we have seen a shift in the law as to not discriminate based on the sex of the parties. With the law focusing now on parties establishing a parenting plan, and the removal of the terms such as custodial parent, there appears to be a shift away from the old sexist attitude that only a mother can care for the child. Fathers are entitled to the same rights to decide how their children are raised as mothers. Fathers are entitled to spend as much time as possible with their children. The legal system is learning to look past the sex of the party and make decisions based on the best interest of the child.
Can my spouse have me removed from the house?
Generally, a court will not order a party to leave the marital residence unless there is some overwhelming factor. If there is evidence of domestic violence or if it is not in the best interest of the children that a party remains in the home, for example the use of drugs or alcohol in the presence of the minor children, the party may be asked to leave the residence.
What does shared parental responsibility mean?
Parents have certain rights regarding their child. They have the right to make the decisions as to where the children will go to school, the choice of doctors/dentists for the children as well as the medical and dental treatment for the child. Additionally a parent has a right in determining where the minor children will live to a certain degree, which may have an effect on the children’s education. Generally, shared parental responsibility puts the major decisions in both parties’ hands.
What is a Residential Parent?
The Residential Parent is an old term to designate the parent who has the minor children for the majority of the time. Florida law no longer recognizes a Residential Parent. The exception to this rule is when referring to the mother of a child born out of wedlock, as she is the natural guardian of the child, and is entitled to primary residential care and custody of the child, unless the court enters an order stating otherwise.
What is Rotating Custody?
As it implies, the minor children will rotate between households so that the parties equally share in the daily responsibility of raising the minor children.
How much will I have to pay in child support?
Child Support is determined pursuant to Florida Statute §61.30. The calculation takes into consideration the gross income of the parties, allowable deductions, such as health insurance and daycare costs to determine the support each party will be responsible to contribute of the minor children. It also takes into consideration the amount of time the child is in your custody. In 2003 the law was changed to include what is known as the Gross-up method. This takes the support calculation a step further adding a calculation when the non-residential party has the child 40% or more of the overnights.
I am afraid of my spouse, what should I do?
If you are threatened or feel unsafe at any time and believe you are in danger, call 911. They may be able to temporarily resolve your problems. However, if violence exists in the household or you have been threatened you should speak to an attorney as soon as possible, or go to the courthouse and get an Injunction against Domestic Violence.
What is Mandatory Disclosure?
Pursuant to rules of procedure, you are required to provide certain documents to the opposing party in family issues. The purpose of these documents is to get a financial snapshot of the parties for the determination of equitable distribution and support. These documents are mandatory and must be produced unless the parties agree otherwise. However, at a minimum each party must produce a financial affidavit, this document cannot be waived.
What is a Financial Affidavit?
A Financial Affidavit is a document that states your gross income and allowable deductions to determine your net income. The document also states your monthly expenses, your assets, and liabilities. All this information is vital in family issues so the court can determine what property must be divided and how much support should be paid. There are two Supreme Court forms, the Long Form Financial Affidavit for those individuals making more than $50,000 per year and Short Form Financial Affidavit for those individuals making less than $50,000 per year.
What is Mediation?
Mediation is a process by which the parties can take their issues into their own hands and find a settlement that may be agreeable to both parties. The only alternative is costly and places your future in the hands of a judge. A mediator is not a judge and cannot force you to accept an agreement. However, when you sign the mediated agreement it does become binding upon you.Please see my page on Mediation for a detailed answer.