Getting Divorced

Getting Divorced: A “Simple” Thing?

You and your spouse have decided that you no longer want to be married. You think that getting divorced will be simple, because you pretty much already agree on everything. While that agreement certainly helps smooth the process, it may not be as simple as you may think.

Many people think – often mistakenly – that a “do-it-yourself” divorce will be the easiest, most cost effective method of dissolving a marriage, but attempting to untangle assets and lives without professional help is treading dangerous waters. Keep in mind that in Florida, getting divorced is called “dissolution of marriage.”

There are basically four types of divorces in Florida:

– A Simplified Dissolution of Marriage
– An Uncontested Dissolution
– A Default Dissolution
– A Contested Dissolution

This article will talk about the first two types, and we will discuss default and contested dissolutions in another post. (See Florida Divorce Laws)

Getting Divorced By Simplified Dissolution of Marriage

Florida does have the means to allow a Simplified Dissolution of Marriage, designed so that couples have the ability of getting divorced without the expense of retaining an attorney. However, this is often not as simple as it sounds, and there are pitfalls everywhere. First, all the documents for the dissolution must be correctly filled out – that in itself can be a challenge.

There are very specific criteria for using this vehicle when getting divorced. First, there must be no minor or dependent children involved, and the wife can’t be pregnant. If there are children, or if the wife is pregnant, the court has a great interest in overseeing the well-being of the children, so a simplified dissolution is not appropriate and will not be granted. Secondly, the couple must have agreed to a satisfactory division of their property and debts. Third, one of the spouses must have resided in Florida for at least 6 months immediately prior to filing for the dissolution. Finally, the marriage must be irretrievably broken.

There are some additional requirements. In order to use this procedure for getting divorced, neither spouse can be seeking alimony from the other, and they both must file financial affidavits with the court, or waive the filing of these affidavits. Both spouses must agree to use of the simplified process, and they must appear in court together for the final hearing.

There are several problems that arise in these types of dissolutions. First, what happens if one spouse does not live up to the obligations of the agreement? The other spouse has the right to ask the court to enforce the agreement after getting divorced, just like any other contract. This does not mean that you won’t be affected by credit issues if your spouse does not pay on a joint debt. If they have not transferred that debt to their name alone, you might remain responsible and even find that your credit score has been lowered because of the ex-spouse not living up to their obligation.

Probably the most important issue is that by using a simplified dissolution process, both parties give up the right to a trial and any appeal. This means it is over and done with (which may be a good thing) but you may be giving up rights that you did not realize you were entitled to because of your marriage. In fact, on the petition form provided by the Florida courts there is an item that states:

“We understand that we each may have legal rights as a result of our marriage and that by signing this petition we may be giving up those rights.”

This is pretty significant language, and ought to make one stop and think before pursuing this type of dissolution. Here is where you need to consult with an experienced, dedicated family law attorney. They will be able to tell you if this “simple” route is really the path to disaster. You may want to rethink this solution, especially if there are significant assets and such things as retirement benefits involved.

Getting Divorced

Getting Divorced By Uncontested Dissolution

This type of dissolution occurs when the spouses have decided on getting divorced and have been able to come to agreement about most everything, including parenting responsibilities, time-sharing with the children, alimony, property division and allocation of debts. This agreement may have come about through negotiation or even mediation, but the end result is there is an agreement between the parties.

In addition to filing the Petition for Dissolution, the parties also need to file a Parenting Plan for the children, a Marital Settlement Agreement regarding the property and debt division and a few other items. The court will then review the paperwork and either approve or modify the agreements. Generally, the courts will leave the agreements intact as long as the assets and debts are equitably divided and the parenting plan is reasonable and in the best interest of the child.

Although one attorney cannot represent both parties in the dissolution, one spouse’s attorney may prepare all the paperwork and then forward it to the other spouse for their attorney to review. Obviously, this approach works best when both sides are in agreement on everything. The ethical consideration is that one attorney cannot be an advocate for both sides in a dissolution, which makes sense – you want your attorney to be on your side, ensuring your rights are being protected.

A Final Word On Getting Divorced – Don’t Be “Penny-Wise and Pound-Foolish”

While there are situations where the simplified process will work for divorcing parties, most of the time it is best to use an experienced, dedicated, knowledgeable attorney. There are so many different factors in assessing a dissolution of marriage that you need to be sure you are protected and obtain the most equitable settlement possible. If there are children involved, an uncontested method in getting divorce may be the easiest to conduct, but even with these, there are considerations that you may not have thought about. You want to be sure that your dissolution is leaving you in the best possible situation, and not be settling for less than is your due just because it may be cheaper. People often find that trying to go it alone due to cost considerations leaves them in a much worse position than they would have been in otherwise.

If you or someone you know is thinking about getting divorced, they need to consult with a dedicated family law attorney who will help protect their rights.