Is Florida a ‘No Fault Divorce’ State?

The concept of no fault divorce is one that has evolved over time as state legislatures attempted to redefine the legal rules surrounding the dissolution of marriages. Historically, states required parties to a divorce to prove ‘fault’ regarding the demise of the marriage. For example, New York required that a party prove cruel and inhuman treatment, adultery, confinement, or abandonment, in order to successfully dissolve a marriage. The policy reason behind this was that states wanted to protect the institution of marriage and encourage reconciliation amongst the parties.

So, what happened?

The simple answer is that state legislatures came to the realization that divorces often do not involve ‘fault’ in the traditional statutory sense. Instead, couples may often be incompatible, unhappy, and simply feel that their marriage is broken beyond repair. For this reason, states opted to introduce the concept of ‘no fault divorce.’

What is no fault divorce?

No fault divorce essentially means that the parties to a divorce only have to show that the marriage is irretrievably broken or there are irreconcilable differences between the parties.

How do I file for a no fault divorce in Florida?

In Florida, the process for filing for a no fault divorce is simple. First, a legal marriage must exist. Second, one of the parties must have been a permanent resident of the State of Florida for a minimum of 6 months prior to the initiation of divorce proceedings. Third, the parties must properly allege that the marriage is irretrievably broken or that irreconcilable differences exist within the marriage.

But what if fault exists?

Often divorces are precipitated through the fault of one of the parties. For example, adultery is a common catalyst for divorces.

So, what role does adultery or other types of fault play in divorce proceedings?

Surprisingly to most clients, adultery is not considered in the decision to grant a dissolution of marriage. However, adultery or other types of fault may play a critical role in the allocation of marital assets through equitable distribution. For example, if your spouse is engaged in an adulterous relationship, and makes expenditures on that relationship, than you may be entitled to receive a share of what your spouse spent on their adulterous relationship. While, adultery may not play a pivotal role in the decision on whether or not to grant a divorce, it can become a crucial factor in determining proper distribution of marital assets.

In Conclusion, Florida is a ‘No Fault’ State and William S. Foley, PA can help you in your divorce. Please call today at (813) 272-2345 to speak to an attorney about your divorce and family law questions.

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Initial Consultation Questions to ask your Florida Divorce Lawyer

What kinds of questions should you ask an attorney during your divorce initial consultation?

It is important to understand that each attorney is different and therefore each attorney will have their own specific process for each of their consultations. Some attorneys will want you to fill out information prior to the consultation and also to discuss with the attorney specific background information that the attorney will need to know. Therefore, please understand that each attorney’s initial consultation is different and most of your specific questions should be answered during the attorney’s specific questioning that they have done hundreds/thousands of times with other people.

Here are some questions to ask during your divorce initial consultation:

1) Do you an area of practice that you focus on?

               If the attorney does not focus on divorce and family law matters, you may want to follow up with - have you ever handled a divorce before?

 

2) How long is the range that a case like this could last?

              Again, the attorney is in no way a fortune-teller and cannot predict the future of how long your case will last with your specific set of circumstances, but if they can tell you a range; this may help you have a handle on the situation if you have approximate time-frame that the attorney has seen in their experience.


3) If I forget to ask you something today during the initial consultation, can I call later to ask a question, or would I have to pay for another consultation?

Generally, I do not personally charge another consultation fee if a client has another question after the consultation, but some attorneys may charge and may need to see the potential client again. A reason why could include that a great deal of time may have passed and circumstances could have changed. Overall, it can put you at ease if you know that you can call later if you forget something during the consultation. During the consultation, you will be hit with a great deal of information and as it is also a confusing and emotional time, sometimes people can forget to ask all of the questions they have during their initial consultation.

4) What is the law in the state of Florida on: Parental Responsibility, Time-sharing, Parenting Plans, Child Support, Alimony, Equitable Distribution of Assets and Liabilities and Attorney’s Fees?

             Depending on what the issues in your case are, it is very important to know what the basic boiled down approach of the law is in some of the important areas of your case. Right from the start. It may not be the appropriate time to go into the minutiae of the law and specific cases, etc. But it is helpful know the State’s view on certain areas of divorce law so you can start understanding the process you are about to undertake.

5) What about the law applied to my situation? What can I ask for? What should I ask for?

                Your attorney will begin the process of analyzing your situation as soon as you provide back the new client questionnaire. As you are speaking to him or her, they will start to formulate how they wish to approach the case. As each lawyer’s approach may differ, sometimes there is not a right and wrong way to approach it; it may just be one lawyer’s view on the issues. So, feel comfortable with the lawyer’s approach to the case. Try to determine what your own goals are and if they are reasonable from the attorney. Any attorney can promise you the world, but if it is not realistic and they are only reciting back to you what you want to hear, then that may not be helpful to you in your divorce proceeding.

6) Are there any time-frames/deadlines that I need to know about?

                  This is very important as certain situations call for certain time-frames and deadlines. Speak more with your attorney about the specifics related to your case.

7) How much is the initial retainer for my case?

                Lawyers have different retainer amounts for different cases. Some attorneys ask for a refundable retainer and some ask for a non-refundable retainer.  Some retainers can be split up into a payment plan at some offices. The amount is really an important aspect of the consultation. This attorney will let you know at the end of the consultation as they will need to know your full situation before quoting you a retainer.

8) What is your hourly rate?

                 There is no set hourly rate for divorce lawyers in Florida. Each Divorce lawyer sets their own hourly rate, or it is set by their firm. Therefore, you need to know the hourly rates of the attorney and each member of the firm that may be billing on your case.

This is not an exhaustive list of questions to ask your attorney, but hopefully this will give you a basis for asking a Florida Divorce Lawyer questions during your initial consultation. 

What to do where you are served with divorce papers in Hillsborough County, Florida

It is normal to be confused and a little scared when served with divorce papers. Sometimes you may be served by a sheriff or a private process server. Sometimes you are served at home in front of the child and sometimes at work. No matter how it happens, you need to know how to proceed.

STEP 1

Don’t panic!

Knock. Knock. You hear the door and upon opening it you are giving legal documents with a summons by a process server or the sheriff. This can be a frightening and confusing time for anyone. Especially if you did not know that you were going to be served with divorce papers.

Some spouses have their wife/husband served at work and some at home. No matter how it is effectuated, the first thing you need to do is to not panic. The process server is just doing their job, so it is not a good idea to yell at them or blame them. They can also be used as a witness, so be careful.

Make sure you read the title of the documents served and that you have actually be served with divorces papers, and not a domestic violence injunction by a police officer, or some other legal documents. Those other types of legal proceedings that are beyond the scope of this guide.

If you have been served with a petition for dissolution of marriage, then calm down and start reading the paperwork.

STEP 2

Read the paperwork- NOW

I know it is confusing, but I have had a number of people come to see me that either did not even look at the paperwork or did not read certain documents they were served with.

In Hillsborough County, Florida, where I practice, if your case involves minor children, a standing order is put in place in your divorce case and you must abide by that standing order. You need to read the standing order and understand what the Court expects of you.

Read everything and then read it again.

STEP 3

Take notes

Again, an enormous amount of your petition package that you were served with is legal jargon, but do your best to understand what you were served with and take notes on a separate sheet of paper if possible! There are a number of people I have met with that have burned the midnight oil by staying up a highlighting and writing notes all over their petition, their spouses financial affidavit and any other motions that were filed.

Again, if you hire an attorney, or if you represent yourself during your case, you may need those documents, so please make a copy of the documents or write notes on a separate sheet of paper. You may want to start a divorce journal at this time, and writing notes in this journal would be a great start.

STEP 4

Calendar your deadline for answering the petition

If your summons states that you have 20 days to answer, then you need to abide by the petition. The normal amount of time to answer a petition for dissolution of marriage is 20 days and you must file your answer in the Court file prior to that deadline or your spouse may move for a default on your case. Also, calendar any dates in your case.

Do you have a case management order in your packet of paperwork?

If you are in Hillsborough County, you probably should. If you do not- call the clerk’s office immediately if you do not have that case management order in your packet of papers you were served with just to make sure when your next Court date is. See if there are any notices of hearings that inadvertently may not have been included in your paperwork as well. If you do have a notice of hearing or any other notices of dates to comply with in your case, calendar those dates as well.

STEP 5

Get on the internet or look for a referral to an attorney

You should start looking for an attorney immediately. Even if you do not retain an attorney for the case and you decide to proceed Pro Se (unrepresented) you would be better off served at least speaking to an attorney about some of the possibilities of things that you can plead for and if you need to file a Counter-Petition or not (beyond the scope of this guide, speak to an attorney about it if you have any other questions!) or any other emergency matters that need to be handled. While you are on the internet, start reading up on divorce topics on this site and other helpful sites to give you a basic understanding of divorce in Florida. Also, go to a bookstore and look at books on divorce, which again, are not a substitute for a lawyer, as they are not tailored to your specific set of circumstances, but they may be helpful in understanding the general process.

Jurisdiction: Hillsborough County, FL

STEP 6

Schedule one or more initial consultations with attorneys

Do yourself a favor. Get an attorney that you can live with. I have had cases that lasted years. It all depends on the facts and the parties involved. Normally, you don’t want a divorce to last that long, but sometimes complex cases and litigious cases do last a while.

So wouldn’t it be a good idea to find an attorney that you can deal with?

You are interviewing the attorney, just the same as the attorney is interviewing you at an initial consultation.

You can try to get free consultations, but at these consultations the attorneys may not give you any legal advice as it is usually just a way for the attorney to get some background in order to quote you an amount for your case. On the other hand, if you want an in-depth initial consultation, sometimes you will have to pay in order to sit down and get a good analysis of how the attorney would proceed in your set of circumstances and give you a background on Florida Divorce law.

STEP 7

Decide whether or not you want to represent yourself

The Florida Courts website is an amazing resource. www.flcourts.org as are many counties court’s websites that give information to parties that wish to proceed pro se (unrepresented) during their divorce. Some counties have forms clinics at the courthouse that you should look into if you wish to proceed without an attorney. Additionally, if you meet the standards for legal aid, you should speak to the different legal aid offices around the county to see if you qualify and if they can help you with your case.

You have a number of things that will be due very soon (i.e., mandatory disclosure, financial affidavit, discovery you were served with, etc.) so you need to know what these things are and how to prepare them.

STEP 8

File your responsive pleading

This guide cannot help you with what to file; as I said before, it is different in every case, under every set of circumstances.

Just make sure you DO FILE SOMETHING. Do not let your deadline come and pass thinking the judge may just give you a pass. Trust me, it is much more expensive for an attorney to un-do something that was done incorrectly (if they even can un-do it) rather than do it correctly in the first place.

So since this is a legal guide just for what to do in those first few days right after you are served with divorce papers in Hillsborough County, it is clear that it is beyond to scope for what needs to happen next or what may happen in other states or even some other counties. I would suggest you speak to an attorney to determine what is the best way to proceed in your case and what the law is in your jurisdiction, and they should be able to tell you what to file in your case in response to the Petition for Dissolution of Marriage.

Written by: William S. Foley, Esquire

For more information, please see William S. Foley’s website