How Do I Start the Divorce Process?

Either spouse can file for a divorce. All that has to be proven is that the marriage exists, one party has been a Florida resident for six months or more, and the marriage is irretrievably broken.

The divorce process begins with a petition for dissolution of marriage, filed with the circuit court by the husband or wife, which states that the marriage is irretrievably broken and sets out what the person wants from the court. The other party must file an Answer within 20 calendar days after being served with the initial petition. The answer needs to either admit or deny the allegations contained in the petition. The spouse that is served with the initial petition for dissolution can then file his or her own counter-petition for dissolution of marriage. In the counter-petition you can raise any matters that you want the court to address on your behalf.

The Florida Supreme Court Rules governing divorce require that each party provide certain financial documents and a completed financial affidavit to the other party. The parties can voluntarily waive the production of most of financial documents. This should be done only in the limited cases in which each party knows everything about the other persons’ income, expenses, assets and debts. In contrast, both husband and wife must file a financial affidavit with the court. This is a mandatory requirement and cannot be waived. The financial affidavit is a sworn statement of your income, expenses, assets and liabilities. It is the single most important financial document in your case.

Some couples can agree on dividing their property, child custody, and other issues soon after the original petition is filed. A written marital settlement agreement is prepared and signed by both parties. The marital settlement agreement is presented to the court along with other required documents. In such cases, a divorce can become final after twenty days of filing the petition for dissolution of marriage with the clerk.

Some couples cannot agree on much of anything and a trial is required. The judge makes the final decision on all contested issues.

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The trial court will follow the acronym of P.E.A.C.E. as a roadmap to resolve the case. I will discuss below the following areas:

The “P” in the acronym P.E.A.C.E. stands for Parental Responsibility. Family court judges are learning how to deal with persons in emotional crisis, and also the normal reactions of children during their parents’ divorce. Children thrive with a plan, which is now required by Florida law, that helps children adjustment to the divorce, by addressing their psychological and development needs, considering the children’s age, temperament, attachments, physical maturity, cognitive abilities, social relationships, and emotional development.

A parent may tell the lawyer concerns about the children during the divorce process. A parent may state that the child’s problems are being cause by the other spouse. Parents should obtain knowledge of child development and normal reactions of children during their parents’ divorce. Reviewing a chart of the normal reactions of children during their parents’ divorce and discussing and evaluating what is happening with the child compared to the chart reactions may be helpful to guide parents in determining what is really best for the children under the circumstances.

A common example is where a spouse states that a three year old child should not have overnights with the other spouse as the child has started bed wetting since sleeping at the other parent’s house. The chart and materials in this area will advise the parents that regressive behaviors are normal reactions of a child of that age during the divorce. A parent’s idea to stop overnight timesharing with the other parent may actually be harmful to the child’s growth and development. The court will likely be concerned about the parent’s knowledge, and lack of knowledge, of early child development of children of divorcing parents.

Florida law presumes that both parents are fit to be parents. It is presumed that a fit parent will have certain basic knowledge that it is important for a child to have two healthy parents involved in the child’s life that discuss the upbringing of the child and make decisions together.

If a parent believes that the other parent is not fit, then it is the responsibility of that parent ton intervene long before the legal process of divorce begins. There are many resources available to teach parents how to be parents. If you fail to intervene early in parenthood you are not protecting your child and it is you who may be seen as the unfit parent for not taking steps to educate your spouse on how to be a parent. In other words, the court may find that the “fit” parent failed to protect the child.

Many times parents think the “better” parent is to be the primary residential parent. As of October 1, 2008 under the Shared Parental Responsibility Act there is no longer a primary residential parent and a secondary residential parent. All legal titles have been eliminated because people incorrectly attached higher rights to the child if you were the primary residential parent, and less rights to the secondary residential parent.

The “better” parent is the one who acts in the best interests of the minor child. What is expected is not bashing of the “unfit” parent, but attempts at rehabilitation and intervention of the other parent to benefit the children.

Under Florida Statute 61.13 Florida law now requires a plan to govern the relationship between the parents to make decisions about their children and to develop a schedule of time when the children will spend time with each parent. This is called a parenting plan. The statute is gender neutral as there is no presumption for or against a man or woman when determining a time-sharing schedule.

Parental Responsibility is a Florida law that presumes the responsibility for the children should be “shared” between the parents. This means that both parents have the right to be involved in major decisions about the children’s health, education and upbringing and to decide them together. Sometimes parents are unable to discuss major decisions about the children with the other spouse and ask for what is known as “sole” parental responsibility for the children. To achieve this result you will have to prove that sharing parental responsibilities, or discussing major decisions affecting the children, is somehow detrimental to the children.