The first step in getting a divorce is to determine if your case is contested or uncontested. An uncontested divorce is where the parties do not have children and agree on all issues arising from their marriage such as the distribution of their marital estate. Technically, even if you have children you can still agree on all the issues, however because there are children involved, more forms are required, thus the Court does not consider any divorce with children uncontested.
If one party does not agree to the divorce, that does not make it contested in Florida. In Florida, only one party has to allege that the marriage is irretrievably broken for the Court to dissolve the marriage.
A contested divorce is where the parties don’t agree on the resolution of things such as alimony, equitable distribution, child custody (now referred to as timesharing), child support, etc. It is common for a divorce to start out very litigious, contesting all issues, then as the divorce progresses, the parties end up settling some, or all of the issues.
There are three broad areas involved in a divorce that could be contested: equitable distribution, alimony, and child issues including custody (timesharing and child support). Equitable distribution involves the allocation of assets and the division of debts. The general rule is that all assets and debts that are incurred during the marriage are subject to equitable distribution, regardless of how the asset or debt is titled. Often, a party will think that because something such as a piece of real property or a vehicle is titled solely in their name, that particular asset will be theirs. This is an incorrect assumption as title is irrelevant when it comes to equitable distribution. Previously, if one party made a significant contribution to the marriage from a non-marital source, the court could find that the contributing party had a “special equity” and award that party more than the other party based on that contribution. The legislature has since abolished the concept of special equity. Now, the presumption is that all assets acquired during the marriage are subject to equitable distribution, regardless of the contributing party. The division of debts can be point of contention between the parties. For example, one party may have incurred a significant amount of credit card debt, whereas the other party was financially frugal, incurring no credit card debt. In this situation, as long as there was not a dissipation of marital assets and the debt was incurred for marital purposes, the debt would be subject to equitable distribution. Marital purposes are very broad ranging from purchasing clothes and designer shoes to power tools and golf clubs. One spouse cannot simply claim they didn’t know the debts were being incurred in order to avoid being responsible for their marital share of the debt.
Another issue frequently contested is alimony, also referred to as spousal support. Typically one party thinks they are entitled to alimony and the other party thinks they won’t have to pay a dime. In Florida, there are several different types of alimony, and relatively minimal guidelines as to the duration and amount of alimony to be paid. The different types of alimony are: temporary, bridge-the-gap, rehabilitative, durational, permanent, and lump sum. The court analyzes factors set forth in Florida Statue 61.08 and applies the need and ability test to determine if an award of alimony is proper, meaning does one party have the actual ability to pay alimony and does the other party have an actual need for alimony. In regard to the different types of alimony, temporary alimony is alimony during the pendency of the proceedings. Bridge-the-gap alimony is a short term alimony award designed to enable a spouse the ability to “bridge-the-gap” from the financial security of marital income to single income. Bridge-the-gap alimony cannot exceed a period of two years. Rehabilitative alimony is awarded so one spouse can rehabilitate themselves, possibly by completing educational or technical programs, so that they can become self supporting. Durational support is proper when an award of permanent alimony is not proper. The term of durational alimony can not exceed the length of the parties marriage.
Permanent alimony is designed for long term marriages, marriages lasting 17 years or longer. There is a presumption for permanent alimony in long term marriages. Issues involving children, such as the development of a parenting plan, determining child support, and designating parental responsibilities open the door for a wide range of contested issues. The terms custody and visitation are no longer used in Florida courts. The legislature has replaced those terms with “time-sharing.” Formerly, one party would seek “custody” of the children, whereas now a party would request the “majority of overnights.” When the court makes an initial timesharing determination, the court applies the best interest of the child standard, and analyzes 20 factors set forth in Florida Statute 61.13. If the parties cannot reach an agreement regarding the creation of a parenting plan, the court may order a social investigation.
A social investigation involves a third party such as a mental health professional, observing the children with each parent, interviewing the parties, and possibly visiting each of the parties respective residences. Child support is determined by using a formula set forth in Florida Statute 61.30, therefor making it one of the issues not quite as contested as the others. The formula uses each party’s income, number of overnights the children spend with each parent, cost of insurance for both the children as well as the parties, child care costs, and mandatory payments such as union dues.
Child support can become a highly contested issue when one party has a fluctuating income or is self-employed. In those circumstances, the court can decide to use an average monthly income or in certain circumstances impute income to one party. If one party is voluntarily unemployed or underemployed, the court will likely impute income to that party.
The extent to which a divorce is contested is completely dependent on the party’s. One issue can be contested or all of the issues can be contested. For example, the parties can reached an agreement on all issues but cannot come to an agreement on the duration and amount of alimony.
For more information about this topic and to speak with an experienced family law attorney, please contact our office at (904) 722-3333 to schedule a free consultation about your matter.
