The Procedure of Dissolving a Marriage

Part I. The Uncontested Divorce

I prefer to personally speak to any prospective client who contacts my office seeking to dissolve a marriage. Invariably, these prospective clients have several questions which they consider extremely important. Once I have determined that they are seeking counsel for a marital/family law matter, we speak for about 5-10 minutes before setting a time for the initial consultation. In 28 years, the most asked question is: “How much will this cost and how long will it take?” Although such a question seems straightforward, there is no simple answer. The reason? Divorces may take several different courses and time and cost are directly related to procedure.

I first try to determine the level of communication between the parties. If I am informed that the parties discuss their problems and work to cooperate in resolving their problems, I suggest that they may be able to proceed amicably through an “uncontested” dissolution process. In this way, they will save both time and money. On its face, this seems to be the best method for resolving a dispute; however, there are obstacles which may impede such a process. Whether or not a party may proceed uncontested (or through the process of collaborative law) depends largely on communication. It requires both parties to be forthcoming in the disclosure of all information relevant to the proceedings. Beyond communication, both parties must disclose all financial information requested by the other. This is accomplished by the filing of a notarized Family Law Financial Affidavit and supporting financial documentation. Without getting into great detail, this requires the sharing of the past 3-5 years of federal tax returns (W-2s, 1099s and K-1s), pay stubs (or the ledgers for businesses owned by either party, retirement benefit statements, credit card statements, loan applications, bank statements, etc. If a party refuses to provide such requested information, the requesting party will be unable to ascertain the equity of proposed settlement agreement.

However, if the parties concur that they both understand the extent and nature of their assets and debts, there is no purpose in proceeding beyond the mandatory financial affidavit.

If the parties have minor children, and I am informed that the parties have agreed to a specific Parenting Plan (setting forth the specific time sharing of minor children), many times I am asked if they may agree to a reduced child support award. I point out that the Court will require that child support must conform to the guidelines set forth in the statute. Financial support for a minor child(ren) can not be negotiated away by the primary time sharing parent. It is the child who is entitled to the support. A 5% variance is permitted, but most questions seek a substantial variation in the guideline amount. Child support in Florida is primarily driven by the following factors: {A} the income of the Mother, {B} the income of the Father, {C} the cost of day care, before school care and/or after school care and {D} the cost of health insurance premiums specifically identified for the minor children.

Even in an uncontested matter, the Court will require that a Child Support Guideline Worksheet be filed at the final hearing (required in most judicial districts including Orange County, Florida) and which the Judge will cross match with the provision in the Marital Settlement Agreement/Final Judgment before entering an order dissolving the marriage.

Although I encourage clients to attempt to resolve their problems without the need for Court intervention and/or protracted litigation, caution must be used in long term marriages and ones involving minor children. Unless my client is absolutely certain of all of the financial resources of the marriage, it is best to acquire this information prior to entering into an agreement. While the financial affidavit is mandatory, the exchange of financial documents may be pared down to just the questionable aspects of the marriage. It is always best to be prudent and acquire necessary information rather than entering into an agreement which one may regret in the future.

NEXT IN THIS SERIES: Quasi-Contested Cases & Mediation