What is a summons?

A Summons is a legal document which gives notice to your spouse (the Respondent) that an action was started and sets forth the time by which he or she must respond.

What is a Petition?

The Petition is a legal document in the action for Divorce or Modification. It contains the basic details and reasons for the relief requested it also contains other requests such as child custody, visitation, child support and alimony, equitable distribution of marital property, health insurance, life insurance, payment of legal fees and experts' fees, exclusive possession of the marital residence, orders of protection, etc.

What happens after my spouse is served with the summons?

If you start the divorce action by filing and then serving a summons upon your spouse with a Petition for Dissolution, your spouse then has twenty days to file a "responsive pleading" with the Clerk of the Court and upon you (or your Divorce Attorney). Your spouse may not only file a responsive pleading but may also file and serve upon you or your attorney a counter-petition for divorce. The practice of filing and serving a counter-petition is common.

Do I have a right to see my spouse's financial records?

In Florida, both spouses have the right to complete Financial Disclosure as to the other spouse's income, assets and expenses.

How do I prove my divorce case?

You do not need to generally prove anything except that your marriage is irretrievably broken. That takes one spouses testimony only. One of you raise your right hand in Court and state that: "Your marriage is irrretrievably Broken". That's it, you win. Thats all it takes. BUT, that does not resolve any issues regarding children, property, debts, support, attorneys fees, etc. It ONLY gets you two legally divorced, ie. you and him/her are no longer married! The legal divorce is the easy part!

What is Spousal Support?

It is Alimony. Alimony can be awarded to EITHER spouse based on, Primarily, the need and ability of the parties. Alimony is a very inexact area of Florida Family Law. There are numerous types of alimony: Permanent (Until one of you die or remarry, ouch, or great, depending on who you are), Temporary (while the divorce is going on to keep things status quo, ie., mortgage payments paid, electricity paid, cable and phone paid, car payments and insurance paid, lawn guy paid, food on the table, you get the idea), lump sum (I will take it, or give it, all now, so I do not have to write or receive your checks monthly), Rehabilitative, (help me get educated or trained to get a good job so I can be self supporting), Permanent (for marriages 17 years or more), Bridge the Gap (Bridging the financial gap between being a married individual and an unmarried individual), etc. The variations/combinations are endless.

How is Alimony calculated?

The Court must consider the standard of living of both spouses that was established during the marriage, length of the marriage, the circumstances of the case and of the parties, whether the spouse who is getting the award lacks sufficient income to provide for his/her reasonable needs and whether the party paying the alimony has sufficient income to provide for the other's reasonable needs.

Factors which must be considered in determining amount and duration are:

  • The Standard of living aquired by the parties, ie. travel, entertaining, cars driven, savings ability throughout the marriage, size and location of home, etc.
  • The income and property of each spouse including marital property distributed to each spouse.
  • The duration of the marriage and the age and health of each spouse
  • The present and future earning capacity of each spouse
  • The ability of the spouse seeking maintenance to become self supporting and, if applicable, the period of time and training necessary to do so
  • Reduced or lost lifetime earning capacity of the spouse seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage
  • The presence of children of the marriage in the respective homes of each spouse
  • The tax consequences to each spouse
  • Contributions and services of the spouse seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other spouse
  • The wasteful dissipation of marital property by either spouse
  • Any transfer of property or encumbrance made in contemplation of a matrimonial action without fair consideration
  • Any other factor which the Court shall expressly find to be just and proper

What is Equitable Distribution of marital property and marital liabilities?

It is a method for distributing property acquired by either spouse upon the divorce. The Court must distribute "equitably" all "marital property" (equitable distribution, not necessarily equal distribution) regardless of the manner in which title is held, considering the following factors:

  • Income of each party at time of marriage
  • Income of each party at time of commencement of the divorce action
  • contribution of each party the others career
  • Property of each party at the time of marriage
  • Property of each party at the time of the commencement of action for divorce
  • Duration of marriage
  • Age of both spouses
  • Health of both spouses
  • Need of custodial parent to occupy or own marital residence
  • Loss of inheritance rights after the divorce
  • Loss of pension rights upon after the divorce

Equitable claims to or interest in or direct or indirect contribution to the acquisition of the marital property by the spouse not having title, including: Joint efforts; Expenditures; Contributions as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; Liquid or non-liquid character of all marital property; Probable future financial circumstances of each party; Impossibility or difficulty of evaluating any asset or interest in a business, corporation or profession; The desirability of retaining the asset, or interest in the business, corporation or profession free from any claim or interference by the other party; The tax consequences to each party; The wasteful dissipation of assets by either spouse; Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and any other factor which the Court shall expressly find to be just and proper.

Does equitable distribution mean that all marital assets get evenly divided between the spouses?

No, equitable does not mean equal. Marital property must be distributed equitably between the spouses, considering the circumstances of the case and of each spouse.

What constitutes a Marital Settlement Agreement?

Marital Settlement Agreements include Pre-Nuptial and Post-Nuptial Agreements, Separation Agreements and Settlement Agreements made by the two spouses.

When can Settlement Agreements be made?

Before or during the marriage.

What formality is required in order to make such Agreements valid and Enforceable?

Agreements must be in writing and signed by both parties.

What may be included in such agreements?

Provisions for the ownership, division or distribution of separate property; Provisions for the ownership, division or distribution of marital property; Provisions for the amount and duration of maintenance; these provisions must be fair and reasonable at the time of making the agreement and must not be unconscionable at the time of entry of final judgment

Other terms and conditions of the marriage relationship; these provisions must be fair and reasonable at the time of making the agreement and must not be unconscionable at the time of entry of final judgment.

Provisions for custody, care, education and support of any child of the parties, other provisions may also include terms regarding alimony and attorney fees. A key element, is that a spouse have adequate financial knowledge of the other spouse or the agreement may be subject to attack at a later date.

Can I obtain Child Support Enforcement services?

Anyone can request "child support enforcement services". Florida Law provides that these services be made available, upon application, to persons receiving or not receiving aid to dependent children. The agency tasked with this obligation is the Department of Revenue, child support enforcement. Mr. Hannan, was previously a child support enforcement attorney for the Department of Revenue.

I signed a settlement agreement which requires me to pay child support and it was incorporated in and survived my judgment of divorce. What can I do if I can no longer afford to pay?

Where a settlement agreement is incorporated in a judgment of divorce and continues to exist as a separate agreement after the divorce judgment is made, the Court cannot reallocate the child support obligations between the parents if the agreement is fair, unless there is an unanticipated and permanent change in circumstances resulting in a showing of decreased financial ability, or for that matter, an increased financial ability. In that event, a spouse may be required to pay an increased, or decreased, amount of child support. Child support may be modified upwards or downwards depending on the circumstances of the party - sometimes both parties.

Can the Court reduce or eliminate my arrears of child support?

Any arrears which have accrued under a judgment or order prior to the making of an application for modification are not subject to modification or annulment.