DISSOLUTION OF MARRIAGE:
FREQUENTLY ASKED QUESTIONS
When does the divorce
begin?
When you or your spouse first seriously think
about ending the marriage. Every married person thinks about divorce
or separation from time to time. When these thoughts linger after
the anger or frustration has passed, they are a signal to do
something because your marriage is breaking down. When the "I want
out" thoughts dominate the desire to work things out and you start
considering the practical aspects of separation or divorce (change
of residence, living expenses, effect on the children), the
divorcing process has begun. Once begun, the process does not need
to end in a divorce. It is the willingness to do something positive
as soon as you recognize the process beginning that gives you the
best chance of reconciliation.
Should I stay married for
the sake of the children?
Probably not, if they are the only thing keeping
you together. The coldness or hostility displayed by you and your
spouse is bad for the children and may even interfere later with
their own marriages. In reality, though, people rarely remain
together for the sake of the children. Most of the time there are
other factors at play, sometimes unconscious ones. In fact, other
gratification from a relationship can keep an estranged couple
together, even though their marriage is dead. Arrangements sometimes
develop between married couples where they only share the household
because it is economically or socially convenient. They create their
own separate lives within the home, without interfering with or
substantially annoying the other. Parties living in a state of truce
for many years will often divorce after the youngest child is on his
own. If no such gratification exists for you, then deal with your
marital problems realistically. Don't just ignore the deterioration
of your marriage or mope around about it - solve it, adjust to it or
separate. Too much self-sacrifice can be intolerable to your
children as well as your spouse.
If I don't want a divorce,
should I fight it?
Yes, at least to the point where you are sure the
marriage cannot be saved. At that point your resistance should be
geared only to what's necessary to obtain a fair settlement.
I want a divorce. Can't I
just leave?
Yes, you can, but talk to a lawyer before you make
this crucial decision. In a potentially litigated divorce a number
of strategic considerations argue against a spouse's leaving the
marital home. For example, if a wife or a husband seeking custody of
the children leaves the home without the children, he or she may be
at a substantial disadvantage when the actual custody proceedings
begin. There are also significant financial considerations involved
in any decision to live apart from your spouse, which should be
discussed with your attorney.
Can a separation save a
marriage?
Sometimes, yes. Physical proximity can be a great
source of antagonism for couples considering divorce. A change in
the status quo is often the first step to saving the marriage. The
new perspective gained by separation may help you discover the cause
of your dissatisfaction. The actual experience of separation
provides a testing period that can alter perceptions of divorce as a
solution. The party who is pushing for a divorce on the mistaken
belief that physical separation will resolve his or her unhappiness
often finds that the contrary is true. Separation then may provide
new insight into the cause of unhappiness or the advisability of
resuming the marital relationship.
If I leave the house
voluntarily, can I get back in?
The longer you are gone, the more difficult
re-entry is likely to be if your spouse opposes it. Even if you have
a written agreement that says your leaving will not prejudice your
right to return, courts are sometimes reluctant to enforce these
agreements if the separation has been a long one. Very often a
spouse who is sincerely interested in saving the marriage will agree
to leave in order to give the other spouse an opportunity to
reconsider. However, by making such an arrangement, the departing
spouse takes a very real chance that no re-entry will be possible.
Thus, be sure to consult with a lawyer before leaving.
Do voluntary payments set a
precedent?
Yes, very often they do in terms of amount. If a
supporting spouse has voluntarily been paying a certain amount for
an extended period of time, it may be difficult to convince the
court at a later time of an inability to pay that amount, unless
there is proof of a substantial change in financial circumstances.
By the same token, if the supported spouse accepts a certain amount
and is able to live comfortably on the amount provided for an
extended period of time, it will be equally difficult to convince
the court of a need for a greater amount of support.
Can I date during
separation?
Casual dating will not legally affect the granting
of a divorce, the award of custody and support, or the division of
property. However, if your dating involves considerable time spent
away from the children or staying out overnight or involves a person
of significantly bad repute or involves the expenditure of funds, it
may become an issue in the divorce case. It is best to consult your
attorney before you get involved in any regular or serious dating.
It looks like a divorce.
How can I protect myself?
See a lawyer as soon as possible. You don't have
to hire one, but you must learn what your rights and obligations are
in regard to your spouse and your family. There are many books and
pamphlets on divorce and separation but, no book, no pamphlet and no
person untrained in the law as it applies in your community can
advise you adequately.
How should I deal with my
spouse during the divorce?
Divorce tends to bring out the worst in people.
Self-protection requires a new set of guidelines:
-
If love is gone, substitute politeness.
-
Get legal advice from your lawyer, not your
friends. Remember, every divorce case is different and what
happens in any other case - good or bad - will not necessary
happen in your case.
-
Breast your cards. Don't let our spouse know
how much you know.
-
Walk away from arguments or conflict.
-
Expect your spouse to resent your lawyer and
attempt to undermine your lawyer's influence.
-
Don't enter into private negotiations without
your lawyer's permission.
-
Don't make agreements or sign anything without
talking to your lawyer.
-
When in doubt, believe your lawyer, not your
spouse.
-
Use the lawyers as hired insulators. Learn to
say, "Talk to your lawyer and have your lawyer talk to mine."
-
Don't rub in your legal victories. Losers try
to even up.
How long do I have to be resident of
Florida before I file for a divorce?
Generally it is six (6) months before
filing, however, there are other laws that need to be discussed
with your attorney if your spouse does not live in Florida.
What documents do I need for my
initial visit to consult with an attorney and how can I prepare?
Gather as much information as
possible. Every bank statement, tax return, W-2, pay stub will
help to put together your financial picture. Start making a detail
list of assets and debts to be prepared for your first visit.
After you initial visit, we will provide you a list of documents
that we will need and a list of documents provided by the Court.
Be Wise. It is amazing that once the
word "divorce" is mentioned that documents once easily found seem
to disappear. Make copies of all your financial documents and
keep in a safe place.
If you are the stay-home parent or the
lower earning spouse, you may be entitled to temporary support or
alimony to help you pay your bills while your case is pending.
Alimony in Florida has many factors that are too difficult to
describe here, but include the length of the marriage, the
contribution of each spouse, the need of one spouse versus the
ability to pay of the other spouse and other important factors.
Alimony can be modifiable or non-modifiable. Alimony can
be temporary, rehabilitative, lump sum and permanent.
Generally, alimony is
taxable to the person who receives it and deductible to the person
who pays it. It is important to know the IRS tax rules with
regard to recapture and child contingency rules to protect your
alimony deductions as applicable.
Is Child Support
taxable?
Generally, child
support is not taxable to the person who receives it and not
deductible to the person who pays it.
Is Child Support
Modifiable?
Child support is
always modifiable with the right evidence established through
your attorney.
How is child support
calculated?
Florida has Child
Support Guidelines based upon the parents combined income, heath
insurance, daycare expenses and the amount of time both parents
spend with the children.
What can expert fees
can I deduct on my taxes?
Attorney fees are not
deductible generally, but tax advice is deductible. Talk to
attorney about the benefits of hiring a tax expert or CPA to
help with your divorce.
How can I settle my
divorce without going to Court?
There are several
formal and informal ways of resolving your divorce without being
contested through the adversary system or litigation including
Mediation, Arbitration and Collaborative Law process. Talk to
your attorney about the more civil way of getting your divorce
finalized.
