What is involved in getting a divorce? What must be done in order to get from being married to being unmarried? Since Florida is a no-fault state, doesn’t that make divorce simpler?
We know that to get married, there are certain requirements that must be met, such as a marriage license; someone, either religious or secular, with authority to sign the marriage license, must do so. Beyond that, how elaborate and costly or simple and inexpensive the parties arrange for this process is unique specifically to them. Weddings can occur at the courthouse, via notary in a quiet room, or be as elaborate and expensive as those celebrity marriages we constantly read about.
With divorce, there are also certain legal requirements that must be met, and a document called the final judgment must be signed by the judge to complete the divorce (in Florida, we call it “dissolution” of marriage). How easy or simple, or how complex or expensive, this process becomes depends on how the parties address this goal. The parties have to untangle all those areas of their lives that have become intertwined (some financial, some emotional) and some which cannot be untangled such as — most importantly — their children.
To get divorced, marital assets and debts must be identified, valued, and divided. But there’s the question: what assets are truly assets of the marriage? Are engagement rings? Gifts to each other during the marriage? Money inherited by one spouse from her distant cousin who passed away and left her $10,000? What about the coin collection the other spouse had from when he was a boy? The issue of spousal support must also be addressed.
While financial matters are not easy matters, the more complex and emotionally charged ones by far are those involving the children. Who will the children live with after the divorce? Who will make the decisions about where they go to school, what activities they will participate in, whether they need braces (and who pays), and how often they are with the other parent? What about vacations from school: who will the kids live with on holidays like Thanksgiving, Christmas, Passover or Easter, or their birthdays and the parents’ birthdays, or family vacations?
Usually, each parent wants to keep the child in the same arrangement as they had during the marriage: every day the child is home with them; every vacation the child is with them, etc. But that is not possible with two households. Sometimes, one parent does not want the other parent involved just because he or she is angry at their spouse; they try to punish or manipulate the other parent in the process of getting divorced without really considering what is better for the child. Sometimes each parent accuses the other of pretty horrendous things in an effort to prove that the accusing parent is the better parent and, therefore, the child should live with him or her and not the other spouse.
Florida courts usually order that both parents have shared responsibility, in which eachparent has a say in decisions about the child. Timesharing varies with each case. Parents may divide the child’s time between them pretty much as they wish — as long as both agree and the judge doesn’t find it detrimental to the children, and parents can be pretty creative about this timesharing division. Florida passed new legislation that went into effect on October 1, 2008, which has eliminated the previous language designating a “primary residential parent”. We now have a “parenting plan” concept which resolves the timesharing that each parent will have with their children.
The next question is how child support is determined. Often, the parents have an incorrectimpression that child support is based on the actual expenses related to the child. Child support is based on the incomes of the parents, and it is done by a very specific formula. Mandated by law and strictly enforced, there is a chart that specifies how much money is to be paid in support based on the net incomes of the parents. In addition, child care and health insurance are added to the mix. The paying parent pays the recipient parent child support based on their incomes, not upon how much the parents spend on the child each month. Furthermore, the specific formula also takes into account the amount of overnight time each parent spends with the child if they spend a minimum of 40% of overnights a year.
Another trigger issue that comes into play is alimony. Many of those who, at the time of the marriage, wanted their spouse to stay home with the kids and not continue to work, now believe it very unfair that they should possibly have to pay spousal support (alimony). After all, if they are no longer married, why should they now still be obligated? The spouse who stayed at home, however, believes that since she (usually the wife) did that as her contribution to the marriage and gave up her ability to pursue an income-producing career track, she should have the benefit of some assistance after the marriage, either in the long term or short term.
The courts, by and large, recognize these issues, and the cases regarding alimony describe various alimony options: permanent periodic, rehabilitative, and bridge-the-gap. Permanent periodic alimony is usually awarded after a long-term marriage and involves the income-producing spouse paying the former spouse alimony until one of them dies, or the recipient spouse remarries. Rehabilitative alimony is for a specific period of time and provides the recipient spouse with money while he or she goes back to school or obtains training to get back on a career track and be self-supporting. Bridge-the-gap is the new kid on the alimony block and is for a very short time, to assist a former spouse to just get over the financial hump going from married to single again. But the courts have to justify their decisions or face the possibility that there will be an appeal which may overturn its decision. Parties themselves can come to agreements about alimony and be more creative in doing so.
So, in effect, the undoing of a marriage carries tremendous emotional overtones relating to each part of the process. Grief, fear, or anger is a large part of a typical divorce scenario, yet those are not part of the legal issues presented here.
When folks get married, there’s usually tension due to the planning, the guest list, choosing the location and various options. But these tensions are working toward a positive goal. With divorce, there is no concept of “happily ever after”, and all the tension and concerns just continue to build toward the final judgment of dissolution of marriage. Sadly, often it doesn’t end there, as parties continue to litigate long after the dissolution judgment is entered.
Divorcing couples who can resolve their issues through alternative dispute methods — such as negotiation, mediation, or Collaborative Divorce — rather than litigation often feel more in control of the outcome and the expense and, therefore, may be able to move into the next part of their lives with a more comfortable mindset.
Iris M. Bass has been practicing in South Florida since 1984. She is a certified family mediator, a collaborative attorney, and the current president of the Collaborative Family Lawyers of South Florida.