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DIVORCE Q&A

Q- Can I get a legal separation?
No. Florida does not have legal separations. However, you can file for support unconnected with a divorce under certain circumstances. Sometimes, however, your spouse may respond with a divorce petition.

Q- Does it matter who filed first or who wanted the divorce?
Generally not. The person who files first presents their evidence first and therefore leaves the first impression in the judge’s mind. However, do not feel that you are in a weaker position in the litigation because you were served with divorce papers. Proper legal representation can assist you to present your case to the judge.

Q- Will my spouse be forced to move out of the house or if I move out of the house, is that "abandonment"?
There is no such thing as "abandonment" in Florida divorce law. If there has been no violence in your marriage, the court may allow both of you to live in the house while the divorce is pending. You are always free to move out, but the court may not let the children move out if custody of the children is being contested. You may not lock your spouse out of the house unless the court gives you “exclusive use and possession” of the house.

Q- What if my spouse doesn't consent to a divorce?
Florida does not require that you get your spouse’s agreement to a divorce. You can actually divorce your spouse even if that person does not want to get divorced. If you have resided in Florida for the past six months, and your marriage is over, then you have met the two requirements for a divorce.

Q- Who pays attorneys’ fees?
In a divorce, either party can be court-ordered to pay attorneys’ fees. The purpose of an award of attorneys’ fees is to make sure that both parties have an equal chance to secure a competent lawyer to represent him or her. A judge will consider the financial position of both parties, and base the award of attorneys’ fees on the respective financial abilities to obtain competent counsel.

Even if your spouse is not working, a court may impute income to your spouse for the purpose of determining his or her ability to pay attorneys’ fees. For example, income may be imputed to a spouse who has quit his or her job because the income provided by his or her co-habitant or new spouse has allowed such voluntary unemployment.

Q- How do I show that I cannot afford an attorney?
Your inability to afford an attorney is shown by having few or no liquid assets, and only a minimal income from which to pay fees. You will also complete a financial affidavit of your income, expenses, assets and liabilities.

Q- How do I show that my spouse has money?

Evidence that your spouse has the ability to pay your attorney’s fees can be shown by his or her full time employment and money from other resources, such as pension or investments, and the financial affidavit that is required to be filed with the court. Your spouse can also reveal income through testimony in court.

Q- What does “Primary Residential Parent” mean?

Florida has done away with Primary and Secondary Residential parenting on October 1, 2008. If you were divorced prior to that time, you may already have that designation. Any case filed after that time will simply address timesharing and visitation through a Parenting Plan, which must now be filed with the Court for all divorces.

Q- What does shared parental responsibility mean?

Shared parental responsibility means that both parents are included in making decisions in the best interests of the child(ren). That includes educational, medical and other decisions which affect the child. Other decisions may include summer camp, extra-curricular activities, curfew, and such. It is presumed that parents will put any differences aside and work together to make decisions in the best interest of their child(ren).

Q- What is sole parental responsibility?

Sole Parental Responsibility means that one parent has the authority to make the decisions regarding the children’s welfare, without consulting with the other parent. The court must determine that shared parental responsibility would be detrimental to the children and there are legal standards that the judge must consider when making such a determination.

Q- Child Support– How much will I have to pay/ collect?

Each parent has the duty to support, educate, and provide the child with food, clothing, and shelter. The willful failure to provide support is a felony in Florida. The Florida Child Support Statute establishes the minimum child support amounts which the court must apply to your case. The amount of child support is based upon the parents’ combined net monthly income. Each parent’s share of child support is based upon the percentage of contribution to the combined net monthly income. The court may, in its discretion, order child support of 5% over the guideline amount "after considering all the relevant factors including the needs of the child, age, station in life, standard of living and the financial status and ability of each parent".Fla. Stat. §  61.30 (1)(a).

Q- What if my spouse refuses to pay child support?

There are several things you can do to enforce a court order to pay child support. Some of the more common approaches include asking the court to hold the payor in contempt, obtaining a wage garnishment, suspending or denying business license(s), suspending a driver’s license, and the favorite of many people- putting the payor in jail until the payor pays a “purge” amount.

Q- Does the mother have to be unfit for the father to get custody? At what age can my children choose where they want to live?

No. Florida law does not make any presumption that either the mother or father should have more timesharing, regardless of age or gender. When the child is over age 16, the Court may consider the child’s preference, but that is only one of many factors that the court must consider in determining timesharing.

Q- Can we both use the same lawyer?

Sometimes. Generally, an attorney can only represent one person. An attorney cannot represent both of you unless agreed to in writing and the inherent conflict in representing both parties is specifically waived. If you agree on all terms, you can have one attorney draft an agreement that can be filed with the court.

Q- What is mediation?

Mediation is a process where you and your attorney and your spouse and his/her attorney meet with a neutral third person (usually another attorney, mental health professional, or accountant) to try to settle your case. Most cases do settle before trial. Mediation is normally court-ordered prior to trial. Mediation is confidential: nothing you or your spouse offers in mediation can be used against either one of you before the Court if you don’t settle your case at mediation.

Q- How can I get my spouse to support me or pay the bills?

Once the lawsuit is served, you can petition the court for temporary support. Before the lawsuit has begun, there is no mechanism for forcing your spouse to provide support.

Q- Can my spouse be forced to send the children to college?

No. Since children become adults once the turn 18 or graduate from high school (even if they are up to 19 years old) neither you nor your spouse can be forced to support your children in any way, including paying for college or post-high school education.

Q- Will I get more because my spouse has committed adultery?

Maybe, but only if you can prove that your spouse spent marital money or assets on their "friend."

Q- If my spouse wanted the divorce, will they have to pay the attorneys’ fees?

Not necessarily. The court mostly considers the financial resources of each party in determining who pays the attorney’s fees.

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