In this podcast, Florida family lawyer Vera Bergermann explains how the traditional divorce process works in Florida, including the costs involved, parenting issues, child custody/support, alimony, and more.
Hosted By: Diana Shepherd, Editorial Director, Divorce Magazine
Guest Speaker: Vera Bergermann, Family Lawyer
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Read the Transcript of this Podcast Below.
Diana Shepherd: My name is Diana Shepherd, and I’m the Editorial Director of Divorce Magazine and Family Lawyer Magazine. My guest today is divorce and family law attorney and mediator Vera Bergermann, who will be explaining how the traditional divorce process works in Florida. The founder of Bergermann Law Firm in Fort Myers, Florida, Vera began practicing law in 1980, and has been practicing family law exclusively since 1996. She holds a Master’s degree in Taxation, a Bachelor’s in Psychology, and she has been a certified family law mediator for more than 20 years. Let’s dive right in.
How does the Florida divorce process begin?
Vera Bergermann: In Florida, a divorce starts when one spouse (the Petitioner) files a Petition for Dissolution of Marriage with the Clerk of the Court, who then issues a summons. The next step is for the process server to personally serve you or your spouse (depending on which one of you was the Petitioner), or someone in your household who is at least in their mid-teens with the Summons indicating that you have been served with the Petition. The spouse receiving the Petition is called the Respondent, and the Respondent has 20 days in which to answer the summons. The Respondent must file his/her answer with the Clerk of the Court as well as provide a copy to the Petitioner or his/her attorney.
In Florida, we have no legal separation. You can proceed straight to a divorce with no waiting period. The law is clear that no one who wants a divorce is forced to remain married. It is neither an advantage or disadvantage to be the Respondent instead of the Petitioner.
When people think of divorce, they often imagine it has to be a horrible battle – but the truth is that a divorce can fall anywhere on the continuum from civilized and cooperative to adversarial and antagonistic. How is the “tone” of the divorce set?
Vera: If your attorney thinks that you must be aggressive to succeed in divorce, then that is the tone that will be carried through your proceedings. If your attorney believes in a cooperative approach, then that will be the tone heard by the other side. Just because you begin with one tone doesn’t mean that it has to remain that way. Sometimes, the first words will be harsh and then reason will prevail and the parties will cooperate to find an amicable solution without the judge. The worst scenario is one that brings the spouses in front of the judge at numerous hearings and culminates in a trial. This is emotionally draining, time-consuming, expensive – and devoid of all self-direction by the parties. The decisions for your family are all made by a judge who has just met you and knows nothing about your family dynamics and history – other than what is presented to him/her in some paperwork and courtroom speeches. The good news is that most cases settle at mediation after each party has put his/her requests in a Petition and Counter-Petition, exchanged financial disclosure and, if children are involved, attended a 4-hour parenting course.
Here’s the million-dollar question – although we hope it won’t be that much! – how much does a divorce cost in Florida?
Vera: The short answer is: “it depends.” First, let’s talk about the agreement between you and your divorce lawyer, and how your lawyer gets paid.
When you hire your lawyer, you will give him or her a retainer fee. This is similar to putting money in a checking account and the lawyer draws down the account as the work is done – like writing checks for services received. Many retainers are non-refundable as they represent the price for the lawyer just to take your case and turn away other business. The attorney will set the terms for the lawyer-client relationship in a contract called the Retainer Agreement. You should expect to find the amount of the initial retainer, whether or not the retainer fee is nonrefundable, an estimate of the amount of money that the case will cost, how fees (such as filing fees for the Clerk of Court) are to be paid, if there is a separate retainer if the case goes to trial, the amount of the trial retainer and when the trial retainer must be paid, (such as sixty days before trial). I recommend that you carefully read the Retainer Agreement before signing it.
An uncontested divorce is the least expensive since you and your spouse are in agreement about all your divorce-related issues. I usually spend around four hours on an uncontested divorce, so the cost would be four times my hourly rate. That’s just one one example. For a divorce where the spouses are only disputing a few issues, it would be common to spend ten hours of your attorney’s time (such as 10 X $375 or $3,750) plus the costs of filing a Counter Petition ($300). This is just over $4,000.
For a high-conflict contested divorce, however, the cost will depend on the complexity of the case and the reasonableness of both parties. An experienced family law attorney should be able to provide an estimate based on the complexity of the case, but just how unreasonable one or both parties will be is a wild card; if one spouse is making decisions out of anger or the desire for revenge, he or she may force you to litigate every issue in court. Every contested divorce is unique, but it would be fair to say that a high-conflict, high-asset divorce with minor children could cost well into five figures in Florida when all is said and done.
How long does the Florida divorce process take?
Vera: Most cases reach mediation at about six months after filing and are settled there. If the case is not fully settled, then a notice for trial must be sent to the judge’s assistant. Each time the judge has a trial period (such as quarterly), a certain number are taken off the top of the judicial assistant’s pile and given a date for trial. Eventually, your trial date comes – usually several months after mediation. Clearly, it would depend on how efficient your judge is. For some judges, you’ll wait months and months and months – and for other judges, it’s more like two months. So that’s another wild card. Once you get to court, the number or hours (or days) you’ll spend there will be determined by how many issues you’re disputing, how complex those issues are, and how reasonable – or unreasonable – you and your spouse are willing to be regarding settling those issues.
In what order does the judge address the various issues?
Vera: Judges address the issues in a divorce case in an orderly fashion most easily remembered by the acronym P.E.A.C.E.
“P” is for “Parenting.” The judge needs to first determine a parenting plan if the couple has minor children. A parenting plan consists of two parts: the division of responsibility for decision-making concerning the upbringing of the children and a timesharing schedule.
The next letter, “E” is for “Equitable distribution.” Equitable means fair, not equal. The court may begin with the premise that equal IS fair, but the presumption may be overcome by other facts and circumstances. Distribution refers to the division of assets and liabilities.
The “A” is for “Alimony” or spousal support. There are many kinds of alimony and they have differing standards for qualification. A general rule, however, is that one spouse must have the need for financial support and the other spouse must have the ability to provide it.
The “C” is for “Child support,” which is calculated by using a formula set by the Legislature and modifiable only slightly by a judge. It is dependent upon inserting figures for the parties’ incomes and examining how many overnights each parent has with each of the children. This covers the basic child support obligation. There are two ancillary calculations – that of the sharing of the cost of the children’s health insurance and the cost of child care. These two ancillary calculations are based only upon the division of income and are not affected by the amount of timesharing enjoyed by the parents. We use computer programs to figure out the cost of child support.
The last “E” is for “Everything else.” This is shorthand for attorneys’ fees and whether or not a person wishes to be restored to a former name. Attorneys’ fees are similar to alimony in that there must be a financial need to have them paid by the other spouse and the ability of the other spouse to pay them. People can only be restored to a former name – they cannot choose an altogether new name.
Besides the spouses, their lawyers, and the people in the court system, who else might be involved in the divorce process?
Vera: If you have parenting issues, then your lawyer might call upon the services of a mental health professional, such a psychologist. The psychologist may conduct a parenting evaluation, which involves interviewing the parents, speaking with the children, observing the children with each parent, speaking with other people significant in the children’s lives, and reviewing documents such as medical records and school reports. The purpose of this exercise is to provide the judge with information from a child development specialist to aid the judge in making a parenting plan.
Another common face is that of the forensic accountant. The forensic accountant is specially trained to find hidden money. The spouse who is allegedly hiding money will hire a second accountant to rebut the findings of the forensic accountant. There may also be a divorce financial expert who will run various scenarios for property division, alimony, and child support in high-asset and/or high-income cases so that you can see the short and long-term financial consequences of choosing Settlement Offer A vs. Settlement Offer B.
Before a trial is scheduled, there will be a mediator. A mediator is a neutral person trained in conflict resolution whose job is to find creative solutions to help resolve the issues of the parties and bring them to agreement. The mediator cannot give legal or any other kind of professional advice, nor can the mediator make a decision for the couple. A mediator is not acting as an arbitrator or judge.
If a couple is so mired in acrimony that their children suffer because of poor co-parenting, the judge may order a Parenting Coordinator or Parenting Facilitator to assist the couple to co-parent more effectively. The parties share the cost of this professional.
How much is the judge involved before a trial – or even mediation – in Florida?
Vera: Judicial intervention is invited by a request to the judge to do something – award relief of some type or enforce something already in place. An example of the first type is a Motion to Award Temporary Exclusive Use and Possession of the Marital Home to a particular person. The motions are for relief on a temporary basis – that is, for the period that the divorce is pending. They are frequently financial in nature – motion for alimony, motion for child support, motion to award temporary attorneys’ fees and costs. They can also be child-related requests – to enter a temporary parenting plan, to appoint a parenting coordinator, or to appoint a parenting evaluator. An attorney may recommend the filing of a motion for appraisals of property or to appoint a forensic accountant. Motions for drug testing or for a mental health evaluation may be done. Motions must be researched, drafted, filed, set for hearing, and then heard. The rulings made by the Judge must be drafted by the attorneys into Orders signed by the judge and then filed with the Clerk of Court. All of this effort takes plenty of attorney time and judicial time. Time is money. It not only makes the divorce more expensive, but it also makes the process longer in duration.
How long does the judge take to make a decision and enter the Final Judgment of Divorce?
Vera: The judge takes all of the paper exhibits admitted into evidence at the trial and all of the testimony heard from the spouses and their witnesses and then processes it mentally. The judge may be active in asking his/her own questions of the spouses and witnesses during trial. The judge is likely to have taken notes as well. The judge now needs to consider all of this and then issue a ruling. Some judges make a ruling through a letter addressed to the attorneys and then requests one attorney to prepare a final judgment incorporating the letter ruling. Other judges ask both attorneys to prepare Final Judgments setting forth the reasons that the judge would give for the decisions being made. These reasons are called “findings.” In some instances, judges MUST make findings or risk having their ruling overturned.
An example of this is a finding of unequal distribution. If a judge does not divide the assets and debts equally, then the judge must explain why she/he decided to make the distribution unequal. If the judge had a good reason to do so and sets forth that reason, then everyone understands why this unequal distribution was made. Without a finding, a party could feel cheated and never know why he or she was treated that way.
When both attorneys have to prepare Final Judgments, they have to submit them to the judge electronically in a modifiable format, so that the judge can pick and choose which paragraphs of each attorney’s proposed Final Judgment will be used the Final Judgment signed by the judge. The preparation of a Final Judgment takes many hours. Once again, it is the clients who pay for this.
What if you believe that the judge’s decision wasn’t fair or correct, and your attorney agrees with you?
Vera: If the attorney believes the judge made a mistake of fact, law, or a misapplication of the law to the facts, then the attorney has 15 days to file a motion for rehearing. The judge can deny the motion outright or have a hearing on the motion for rehearing to decide if she/he did make such an error. Generally, no error is found. Big surprise there!
The last chance to change the result lies in an appeal. There are 30 days from the entry of the Final Judgment in which to file an appeal. There are filing fees that must be paid to the appellate court clerk and for the clerk of the circuit court to prepare the file for the appellate court clerk. The retainer for appellate attorneys is relatively high compared to a divorce attorney for trial court.
The appellate attorney prepares a brief, which is a paper that is anything but brief. It details where the trial judge made errors and just how the trial judge made those errors. Example: not making a finding for an unequal distribution of assets and debts. That’s an automatic error. Once the brief is submitted, the other side has an opportunity for a reply brief. Most appellate courts just affirm the decisions of the trial court without even giving a reason.
Sometimes, an appellate court will be sufficiently intrigued by an appeal to request the lawyers to come to the District Court and present an oral argument for his/her positions. Those cases will result in a decision by the appellate court. Again, most trial courts are affirmed by the appellate courts. In those rare cases where the case is sent back to the trial court for more work, it is called “remanded.” Sometimes, a decision isn’t even sent back – it is just plain overruled. This is how new case law is created. This occurrence is even more rare.
If all of this sounds like a process in which you want to participate, then traditional divorce is for you. If you want to avoid this process and work out the divorce issues amicably – before anything is ever filed with the court – then you need to commit to the Collaborative Divorce process.
Diana: My guest for this podcast has been Vera Bergermann, a seasoned family lawyer and mediator with offices in Fort Myers and Naples, Florida. To learn more about how Vera and her experienced team at Bergerman Law Firm can help you choose the right divorce process for your unique situation – whether that’s traditional litigation or an alternative dispute resolution process like mediation – request a free initial telephone consultation at www.bergermannlaw.com.