Introduction
Ending a marriage is legally complex and emotionally painful. This narrative is designed to guide you through alternatives to a divorce, and give you an overview of the grounds and procedures for ending a marriage. If you do choose to seek a divorce, you should consult an attorney. The attorney will be there to guide you through financial and child support and ensure that marital assets are divided fairly.
Alternatives to Divorce
Divorce is not your only option. Depending on your situation, you may want to consider a separation agreement or marriage counseling.
A certified marriage counselor, a social worker, or a psychologist usually administers marriage counseling. Through sessions with a counselor, you and your spouse can learn techniques to better communicate with each other in an effort to prevent your marriage from failing. Counseling is especially effective when you find that your compatibility is suffering due to your problems. If you find that a divorce is probable, counseling can help to keep the relationships between you and your children from worsening.
If you and your spouse choose to separate, you should either obtain a court order of separation or enter into a separation agreement. The separation agreement is essentially a contract that sets up spousal and/or child support, visitation rights, custody of children, and division of marital property. If one party does not comply with the terms of the contract, a court can enforce the agreement. If at a later date the parties choose to obtain a legal divorce, this contract may be included in the divorce judgement.
If parties cannot come to an agreement regarding the separation, an attorney may suggest a court-ordered separation that will require a lawsuit. Court-ordered separations may stipulate some of the same grounds as those for divorce. Child custody, visitation rights, property division and monetary support may all be decided by the court as part of a separation agreement or divorce.
Grounds For Divorce
In many states, adultery, cruelty, desertion, bigamy, incest and insanity are all common grounds for a fault divorce. Florida has a "no-fault divorce" law. Divorce in Florida can be granted due to incompatibility or irreconcilable differences.
Divorce Procedure
There are two types of divorce: contested and uncontested. A contested divorce is where the parties involved cannot agree upon terms such as child custody, child support and property division. This best resembles a lawsuit with a court trial before a judge. An uncontested divorce is where both parties agree on all issues and terms. Typically, it involves the filing of papers at the courthouse and a short appearance before the judge.
Mediation is required as part of any contested divorce proceeding and is for those spouses who are unable to agree on the terms of the divorce. A mediator helps to resolve disputes regarding such issues as child custody, visitation and property division. Typically, mediators are used in place of judges. Attorneys can be present, but formal legal procedures do not apply at mediation. If an agreement is not reached through mediation, a judge will then decide upon the disputed issues.
Child Custody and Visitation
Child custody can be granted exclusively to one parent or the parties can share custody. Typically, one parent has primary physical residence of the child(ren) and the child(ren) resides with this parent. The other parent is considered the secondary residential parent and is granted visitation rights with the child(ren). Standard visitation usually includes every other weekend and one evening during the week, holidays, and extended summer visitation.
In some cases, parties agree upon joint physical custody of their child(ren). This means that the child(ren) will spend equal time with each parent. But, regardless of the custody agreement, parents make decisions together regarding medical care and schooling. This is called Shared Parental Responsibility. Sometimes parties cannot agree on the custody of their child(ren), in which case the court will step in and award Primary Physical Residence to one of the parties. If at a later date a party wishes to change custody, that party must prove to the court that conditions have changed and that a new living arrangement is in the best interest of the child(ren).
Spousal and Child Support
Depending on the circumstances leading to the divorce (your standard of living, financial needs, income and property), the court will determine if you or your spouse is entitled to spousal support: otherwise known as alimony or maintenance. When parties cannot agree on the support, a judge will make a decision as to who should pay the support and who should receive it, how much will be paid, and for what length of time. One can receive financial support temporarily, permanently, until remarriage or a death.
Both parties are responsible for the financial support of the child(ren). Once again, if an agreement between parties cannot be reached, then the court will divide the responsibility between the parties based on the Florida Child Support Guidelines set forth by the Florida Legislature.
If in later years you or your spouse would like to increase or decrease the spousal and/or child support, you would need to prove to the court that there has been a change in circumstances involving financial resources or needs.
Dividing Property and Debts
Florida defines property acquired during the marriage as marital property, and property owned before marriage as separate property, or separate property given to the spouse during the marriage as marital.
If parties cannot agree on a fair division, the court will divide the property based on financial resources, the needs of each spouse, and income and career potential of each spouse. Your attorney will be crucial in helping you obtain a fair settlement of property as well as keeping you from overlooking valuable assets such as pension benefits.
Your debts can be assigned to one party or the other in a separation agreement. If an agreement cannot be reached, the court will divide the debts using the same considerations used to divide the property of your marriage. Your attorney will help you in obtaining monetary compensation if your spouse fails to pay debts that are deemed to be his or her responsibility.
Tax Considerations
Filing for divorce can affect how you file your taxes with regard to your right to claim head-of-household status, dependent exemptions, child care credit and earned income credit. The property division may also affect your taxes. It's also possible that support payments can be tax deductible or taxable. Your attorney can advise you on tax matters with regard to your divorce.
Your Attorney
If your marriage seems to be ending and you are considering either separation or divorce, it is in your best interest to consult an attorney. An attorney will guide you through the divorce process, advise you of your rights and responsibilities, as well as advise you on custody, property settlement and support. An attorney can also prepare a separation agreement for you and ensure that everything is handled in a timely and efficient manner. An attorney should explain domestic violence injunctions should your spouse threaten to harm, assault, harass you or attempt to take the child(ren).
Conclusion
Going through a divorce is emotional and complex. You should choose an attorney with whom you feel comfortable, and who will protect your rights and your future. It is possible that a marriage can be saved, and an attorney can refer you to a marriage counselor. If you feel that a divorce is your best course of action, then your attorney will help you through the necessary steps of ending a marriage. The attorney will advise you on obtaining the custody of your children, receiving or paying support, and obtaining a fair division of the marital property.