As a family law attorney, I help individuals get through one of the most difficult times of their lives: divorce.
We all know that divorce can be a painful event, but unless you regularly work with family law matters like I do you may not know much about the actual divorce process. Many think filing for divorce is merely a matter of filling out some documents and filing them with the state. In reality there is much more to the process.
In the following article I will take you through the entire process from start to finish, and give you a bird’s eye perspective of what to expect if you are considering filing for divorce in Florida (or have been served as a party to a divorce in Florida).
Initial Filings
To start the divorce process on party, referred to as the “Petitioner”, needs to file a Petition for Dissolution of marriage with the Clerk of the Circuit Court. Florida is a no-fault state, so parties can seek a divorce without proving any reason other than irreconcilable differences.
The Petition for Dissolution of Marriage is actually a law suit. The party that files the Petition is known as the “Petitioner”. The Petition documents first identify basic information regarding the parties (names of the parties, location and date of the marriage, whether children are involved, etc), and then launches into specific allegations regarding the issues of the divorce (whether there is property to be divided, alimony requested, child support to determine, etc). The Petition ends with the Petitioner requesting exactly what the Petitioner wants the judge to do. Typically, a divorce petition is a sworn document that is signed under oath by the Petitioner in the presence of a notary public, affirming the accuracy of the contents of the Petition.
Like with any other lawsuit, the Petitioner needs to notify the other party (the “Respondent”) there is a lawsuit by serving the Respondent with the Petition. This is done by a process server or a Deputy Sheriff. Service of the Petition starts a 20 day clock within which the Respondent must file a responsive pleading (either an “Answer” or a Motion to Dismiss the Petition). The Respondent may also file a counter-suit, which is referred to as a Counter-Petition. The Petitioner then has 20 days to answer the Counter-Petition.
Discovery
After the petition and any counter-petition has been filed and answered, the divorce moves into the discovery phase. Divorces are unique from other lawsuits, in that discovery is automated and mandatory. Both sides are required to complete Financial Affidavits and Mandatory Disclosure within 45 days from service of the Petition.
In addition to the mandatory disclosure and financial affidavits, parties may submit requests to produce documents, requests to answer interrogatories, subpoenas, and requests for depositions. Depending on the specific issues in the divorce, the lawyer may work with medical professionals, mental health experts, parenting coordinators, employment consultants, forensic accountants, tax experts, and business valuation experts.
These are discovery tools used by attorneys to get all the information necessary to understand the case and the potential evidence and prepare the matter for negotiation or trial.
Temporary Issues
Sometimes there are issues that need to be resolved early in a divorce case on a temporary basis. These issues could include temporary child support, temporary alimony, temporary attorney’s fees, and in some cases injunctive or emergency relief.
In Sarasota County, the Courts typically require the parties to attend mediation prior to scheduling hearings on temporary issues absent an emergency.
Settlement Negotiation and Mediation
After moving through the discovery process, comes the process of attempting to either negotiate or mediate the case to conclusion. These are informal means of resolving a divorce, and can be used with great success in most situations. The majority of divorces in Sarasota County are resolved either at mediation or through negotiation.
Whether a divorce can be resolved through negotiation alone varies wildly based on the parties and the issues involved. Typically, the more complicated and contested the case, the less likely the parties will resolve the matter through negotiation. In these instances, mediation is a more appropriate means of brokering a resolution.
In Sarasota County, you must mediate your case prior to a hearing on temporary issues or a final trial (absent an emergency). This is true for most counties in Florida, as most cases that don’t settle prior to mediation settle at mediation.
Success at mediation requires the parties, their lawyers, and the mediator to all be prepared. Issues as to the valuation of an asset, or the status of the law should be researched prior to mediation. Mediation is a process where a neutral third party (the mediator) works with both sides in attempt to settle the case. Attorneys for both sides are present at mediation to help represent the spouses. The mediator does not have the authority to render a decision like a judge. The mediator’s role is merely to assist in settling the dispute.
If a settlement is reached, the parties reduce their agreement to writing and then schedule a final hearing. If mediation doesn’t work and the parties can’t settle, then the next step is to schedule either a hearing or a trial.
Trial
Trials are the last recourse when all negotiation has failed. Trials are often scheduled months in advance, and require a lot of preparation. For these reasons trials can be very expensive.
Divorce trials in Florida are bench trials, which means there is no jury, and a judge hears and decides the outcome of the case. The process follows both the Florida Rules of Civil Procedure and the Florida Family Law Rules of Procedure, and more or less proceeds like a regular trial. Each side makes an opening statement. Witnesses are questioned and cross examined. Parties make their closing arguments, and a judge decides the issues by applying the facts presented to the law.
Parties may have a trial on the entire case (every issue in the divorce), or only on select issues if they agree on some of the issues in the case.
The Final Hearing
If the parties do reach a settlement agreement through negotiation or mediation there is not a trial. Instead, there is either a final hearing where the parties meet with a judge and finalize the divorce, or, if a lawyer represents one of the parties the divorce can be finalized with a document known as “Special Interrogatories”. The final hearing requires that you:
- Prove your residency;
- Testify that you signed the settlement agreement;
- Testify that your marriage is irretrievably broken;
- Ask the court to grant the divorce.
If all goes well the final hearing takes a few minutes, and at the end of the hearing Judge signs a Final Judgment of Dissolution of Marriage. The divorce is official as soon as the Judgement has been recorded with the Clerk of Court.
If the parties use Special Interrogatories, then the Special Interrogatories are drafted by the lawyer and signed by the Petitioner under oath. The Special Interrogatories cover the same information that is typically covered at a divorce final hearing.
Final Thoughts
The following was a brief overview of the entire divorce process. I hope it helps you gain perspective with the divorce process.
Please don’t hesitate to get in touch if I can be of any assistance in your divorce in Sarasota, Charlotte, or Manatee County. Feel free to call (941-882-4367) or email me (dan@danpolicastrolaw.com) at your convenience to schedule a consultation.
