A divorce is the legal process in which the courts terminate a marriage. All issues relating to the marriage are resolved at this time, including alimony and child support, child custody and visitation rights of each parent, and property and debt division. We encourage trying to resolve all issues at mediation where you control the outcome, but are willing and prepared to go to trial if needed.
WHY DIVORCE OVER LEGAL SEPARATION?
Simply, a divorce ends a marriage and a legal separation while it involves the same procedures as a divorce the separated spouses can’t marry others. A legal separation is not a legally recognized status in Florida, but is in certain other states. The same or virtually same legal effect can be created in Florida by an attorney. Often legal separation is an alternative for people who wish to avoid divorce for religious or other reasons. A legal separation can be converted into a divorce. Spouses who reconcile after a legal separation may apply to have the separation revoked.
WHAT DO I HAVE TO PROVE TO GET A DIVORCE IN FLORIDA?
Florida is a no-fault state. Which means, in order to obtain a divorce, only one party needs to claim that the marriage is irretrievably broken.
DO I HAVE TO LIVE IN FLORIDA?
Depends. One person getting divorced needs to have lived in Florida for at least six months.
DO YOU CHARGE FOR A CONSULTATION?
NO. It is our preference to meet with each potential client who is seeking representation to meet with you personally and at no cost to you. You are going through one of the toughest times in your life and you need to get your questions answered and feel comfortable with who you hire. The relationship an attorney has with their client is an important one and one that should be based trust and open communication. You will meet with an attorney not a paralegal.
CAN I STOP MY SPOUSE FROM OBTAINING A DIVORCE?
NO. Even if one person wants the divorce and the other party objects, the Court can still grant the divorce and dissolve the marriage.
DO I NEED A LAWYER TO REPRESENT ME IN A DIVORCE?
NO. However, you should seek legal advice or representation to answer any questions that you may have.
CAN YOU REPRESENT BOTH OF US IN A DIVORCE?
Rarely. At Lapina & DuBois, P.A., it is our practice to only represent one party but we are always willing to provide suggestions on how to minimize the cost of obtaining a divorce.
IF I HIRE YOU, HOW LONG WILL THE DIVORCE TAKE?
That is very hard to determine as each case is different. Factors such as whether the divorce is contested or uncontested, if there is property to be divided, are their children, are their other assets to be divided, all play a role in the length of the process.
HOW MUCH WILL THIS DIVORCE COST ME?
As in all hourly cases, the cost of representation in divorce depends on the amount of time involved. We offer free consultations which will provide us the opportunity to evaluate your case and provide an estimate as to what we expect it will cost for us to represent you.
WHAT IS A COLLABORATIVE DIVORCE?
Collaborative divorce is relatively a new approach to divorce and is where the clients agree not to go to court but strive to reach fair a settlement through meetings and negotiations together with their lawyers. Both lawyers must be trained in this specialty.
- I need an aggressive attorney who will stand up for my rights and take charge. I read on your website that you are caring, etc.. Can you be aggressive?<
Many people request an "aggressive" attorney. While we can be and certainly are (when necessary) "aggressive", we will always represent your legal interests diligently, always aware of the costs and emotional levels involved. An opposing attorney can set various motions and hearings on a regular basis, many of which could be unnecessary, all while acting within the law. This will ultimately cause much more acrimony and chaos during the divorce process and add to the legal expenses. Each time an attorney prepares or responds to a document, attends a hearing, etc., they are billing hourly. HOWEVER, having said that, when the opposition is behaving badly or improperly, this firm will do everything within its power to cause that behavior to immediately stop, including but not limited to seeking the appropriate remedies through the courts, including extra attorney's fees to be paid by the opposing party.
- I have moved out of the state of Florida. My ex spouse is bringing me back to court in Florida. Do I need a Florida attorney, or an attorney where I currently reside?
Many more details are needed before this question can be answered properly. Jurisdictional questions are very complex and depend on many factors. If necessary, this firm provides out of state and out of country consultations over the phone, after an initial screening has occurred and after you have properly identified yourself to the firm. This caution avoids any attorney/client privilege issues.
- I had property before my marriage. That property has increased in value during my marriage. I do not have a prenuptial agreement. Is my spouse entitled to any funds relating to the value of that property?
Generally, and during the marriage only, if the property has increased in value due to time, labor, contributions, and/or improvements, the spouse may have an interest in the increased value only.
- My spouse and I purchased a house during the marrige. My spouse had bad or no credit, and as a result, the house is in my name only. I have always paidall of the mortgage payments, taxes, and insurance on the house. Do I have to share the property value with my spouse?
Yes. If the property was purchased during the marriage, it does not matter how it is titled or who paid the mortgage, it is considered a marital asset. There are a few exceptions such as a prenuptial agreement or if it was purchased with inherited money. Even in those exceptional circumstances, the spouse may be entitled to "increased value" that occurred during the marriage. Note: This answer does not apply to couples who are not married. In that case, property is divided as it is titled.
- If my spouse "buys me out" of my share of the marital assets, when will I receive my money?
It depends on the assets. As for real property, if your name is on the mortgage, a refinance may be appropriate. Then, you get paid at that time. After the funds clear, title will change solely to the other party. As for other funds, certain accounts can be "rolled" into other accounts. We look to see what tax and/or penalties, if any, will apply, prior to dividing up these assets. In many situations, we must engage the services of a financial planner, forensic accountant and/or tax expert, to calculate what will be most beneficial.
- My spouse and I have considerable debt. My spouse incurred most of it. Am I responsible to pay that part of the debt?
Generally speaking, if the debt was incurred during the marriage and is not considered a "dissipation of marital assets" (ie: funds spent on an extra-marital affair, etc.), it is a marital debt which will be equally divided.
- My spouse worked (and earned a good income) prior to the marriage and immediately quit their job after we got married. I earn a good salary and have always paid all the bills during the marriage. We have been married for ten years. Will I have to pay alimony and if so, how much?
A ten year marriage is generally considered a "gray area" marriage, as to length of time. According to Florida law, it is not considered a short marriage, nor a long marriage. There is no definitive answer to your question, as the court must consider and evaluate many factors in determining an award of alimony. Note - In Florida there are no guidelines for alimony as there are for child support. The courts look to the length of the marriage, the ability of one party to pay and the needs of the receiving party, the amount of funds each party receives after the assets are divided, along with the lifestyle the parties led during the marriage, factoring in whether or not the parties were living within their means. We may engage the services of a vocational expert to determine how much income should be imputed to your spouse (if they were working within their capabilities in today's market) which would lower the amount that you might have to pay. Also, there are many forms of alimony; permanent, lump sum, rehabilitative, bridge the gap and temporary, all of which can be either modifiable or non-modifiable. Alimony can be very complicated due to the many factors involved. We will be able to discuss all the options with you, depending on your individual circumstances.
- I have been paying "permanent" alimony for many years. My divorce papers say that it stops upon my death or my spouse's remarriage. My ex spouse has been living with someone for about a year and I am tired of supporting them. What can I do?
You can file a Petition for Modification of Alimony. To do so, you must show a substantial change of circumstances. Certainly your ex spouse residing with someone else is a change of circumstances, but the court looks further - such as whether or not the cohabitation constitutes an economically supportive relationship. This obviously could extend to same sex live-in relationships as well.
- I want to relocate when I divorce (or I am already divorced and want to relocate with my children) because of the cost of living, better schools and better job opportunities elsewhere. Will the court allow that?
Relocation requests can be made and presented to the court. Without consent of the other party, the court will follow statutory and case law and evaluate many factors as to whether or not you may relocate. The burden is on the requesting party to show that it is in the best interest of the child(ren) to relocate. The court cannot stop you from relocating, but it may stop the child(ren) from relocating. The reason for this is obvious; the other parent will not be able to attend school events, extra-curricular activities and the like - in other words, their relationship with the child(ren) will be much different. If you relocate without permission, the court can force you to return the children to Florida, even if you have purchased property in another State.
- I need more child support. My ex spouse is now making a considerable amount of money, but is putting everything in someone else's name and/or is getting paid "under the table". What can I do to get increased child support?
To modifiy child support, you must show a substantial change of circumstances since the entry of the last court order, regarding child support. If your ex spouse was behaving in the same manner then, as now, it is not likely that anything will change, unless you have new evidence now that you did not have before. However, if you can present to the court that your ex spouse's lifestyle has dramatically increased, etc., (even though nothing is in his/her name), the court can infer that they are making substantially more money, can impute income to them, and you can receive an increase in child support.
- Can child support arrearages be modified?
Unless there is some showing of mistake, clerical error, or something to that effect, the total amount of arrearages cannot be modified. The amount of monthly payment, depending on any substantial change of circumstances, may be modified by either party seeking a change.
- My ex spouse and I have shared parental responsibility. We cannot agree on anything involving our children. It is extremely difficult for them to join and participate in any activities or get certain medical care. Can I change my final judgment so that I can make all the decisions involving their needs?
Depending on the circumstances, this could be considered a substantial change of circumstances which may allow for either a change in custody or a change to sole parental decision making. The courts decide each case, on a case-by-case basis, after considering all relevant factors. Unfortunately, bad behavior by ex spouses is quite common and the courts will consider the extent and depth of that behavior prior to making any changes.
- • FOR MEN: I am being sued for paternity and I do not want to pay. I am not married to the person, hardly know the person, do not like the person, and was not involved in the decision on whether or not the baby should be born. I do not want to pay for a baby that I did not want. Is there anything that can be done?
If the DNA test (which you will ultimately have to take) proves that you are the father, you are going to have to pay child support, pursuant to Florida Child Support Guidelines. You will also have rights to your child regarding time sharing, shared parental responsibility and the like.
- FOR WOMEN: I am pregnant but not married. I want to have the baby and raise him or her as a single mother. I do not want anything to do with the father of the baby. Against my requests, he will not leave me alone, insists on seeing the baby and being involved in our lives. I do not want child support. What can I do?
The state of Florida believes that every child has the right to enjoy the benefits of two parents - also that neither parent can "waive" child support, which is the right of the child, not of the parent. The father has rights and will be entitled to have time sharing with his child (unless, of course, he is somehow a danger to the child or it is somehow not in the child's best interest). He will also be required to pay child support, even if it is put in a trust for your child's future.
- I want a divorce and do not believe I need an attorney. Why shouldn't I just download the forms from the internet and handle this issue myself?
If you have only been married for a couple of months or years and have no children, no property, and no money or assets, you probably can do just that. If, however, you have children and/or property, money or assets, and if you have read the above listed questions (which is just a short list of the many problems that can occur) you should seek legal assistance and not be penny wise and pound foolish. The legal process is very complicated, even with the "correct downloaded forms". The majority of knowledgeable family attonreys do not use "downloaded, boilerplate" forms. They draft their own motions and pleadings to the custom needs of the individual case, following the parameters of the forms. In representing yourself, any errors made could be considerably more costly to correct than hiring the professional to start with. Remember these infamous words, "only a fool has himself for a client".
- I realize I should retain an attorney because my spouse is mean-spirited and I know he/she is set on emotionally and financially destroying me. He/She has possession of, earns, and controls all the marital income and keeps any documentation of same hidden from me. As a result, I do not have any money. What am I supposed to do?
Most successful family attorneys expect an up-front retainer which can be paid by credit card (which can be paid back to them on installments) or borrowed from wherever necessary. In the State of Florida, the courts look to the ability of one party to pay fees and the needs of the other party to receive assistance for their legal fees. The court will also look to the following, among other factors, before ordering fees paid by one party to the other: 1) whether or not one of the parties is frivolously litigating and 2) whether or not they are harassing the other party through their litigation style.
Your attorney will get to court as quickly as possible to request proper and warranted reimbursement of attorney's fees, to be paid by the other party (presuming they have the ability to pay for same). Unfortunately, and until such time warrants, the cost of an attorney and legal fees can be expensive, but so can the cost of a vacation! Since divorce is not as much fun or as memorable as a vacation, people in many instances cannot justify paying the fees to a lawyer, but think nothing of paying the cost of thier vacation. It is a matter of priorities. Keep this in mind - the vacation is over in two weeks, the emotional effects of a divorce can go on for years or forever. This is your life, your peace of mind, your future, and that of your children.
- My spouse wants custody of our children or at least 50% time sharing. I want my husband (or wife) to only have the children every other weekend, like many of my friends. How does the court decide?
The court will review the history of the relationship between each parent and the children, such as who has been the primary caregiver, how active either parent has been regarding activities, etc. The court will consider drug and/or alcohol issues that either parent may have. The court will also use evidence and factor in any and all information regarding what is in the best interest of the children before deciding on time sharing, including whether or not one parent may be seeking substantial time sharing solely to lower any child support obligation
- I believe my child's step parent is abusing him/her. What steps can I take?
First, you must contact the authorities, such as the police and/or the Department of Children and Families. Depending on the circumstances, you should also obtain a restraining order on behalf of your child, against the parent or step-parent who is or may be abusing the child. Again, depending on the circumstances, you should receive an expedited hearing so the court can determine what is in the best interest of the child.
- How much are my legal fees going to be?
Retainers and fees are set on a case by case basis. A case with no children and no property will probably require less legal fees than a case with children and assets. This is justified considering the two most often litigated issues involve both children and/or money/assets. The fee is also dependent on the behavior of both parties and their willingness (or lack of willingness) to be reasonable for a quick and fair settlement. Florida statutes consider the ability of one party to pay for fees and the need of the other party to receive assistance from the other.
- Do you work on a payment or installment plan?
Other then the consideration of receiving two payments (within a short time frame of each other and when warranted), this firm does not work on installment plans. However, one can consider putting reqired payments on an accepted credit card and paying the issuing credit card company on monthly installments
- Do you accept legal insurance?
Certain clients have indicated that they have "legal insurance" through their employers. This firm will certainly cooperate in filling out any necessary forms to allow you to be reimbursed by any insurance, however, we do not wait for the insurance to pay - you must make the required payments to our firm and then get reimbursed from the insurance company.
The questions selected are some which generally arise during the initial client/attorney interview in a family related legal matter. The information provided herein is not to be interpreted or assumed as legal advise and is simply offered as very general guidelines with the State of Florida. Individual circumstances must be factored into all answers.