Contested Divorce Basics

Contested Divorce Basics

by Shawn Hungate.

When someone hears the word “divorce”, a contested divorce, with all its procedures, is what often comes to mind.  This process begins with a Petition for Dissolution of Marriage filed with the clerk of courts.  This Petition can be filed by either the Husband or the Wife (or either “party”).  That party becomes the Petitioner.  This Petition is then served on the other party, who is called the Respondent.  The Respondent typically has 20 days to answer the Petition.

The Petition contains allegations about the marriage.  It must allege that the marriage is irretrievably broken.  It may contain other allegations including, but not necessarily, a request to divide assets and debts, a claim for time sharing with children, a claim for child support, and claims for alimony, among other things.

The Respondent then must file an Answer or risk being defaulted, allowing the Petitioner to go forth to the Judge for a final hearing.  The Respondent may also file a Counter-Petition.  The Counter-Petition would contain allegations just like a Petition would and must be answered by the other party.

Often times, financial disclosure is provided with, or soon after, service of the initial Petition for Dissolution of Marriage.  If this is not done, financial disclosure (or “Mandatory Disclosure”) is required within 45 days of the service of the initial petition.  The amount of disclosure can vary depending on the parties’ incomes and expenses.  This financial disclosure is often required prior to temporary relief hearings.  In Osceola County, Mediation is usually also required before temporary relief matters are heard.  In all cases, at minimum, a Financial Affidavit is required.

Mediation is a major part of a contested divorce and is required in most cases (cases without a default entered) to give the parties an opportunity to settle their case prior to going to a final hearing.  This can help the parties avoid a protracted process preparing for a trial.  The purpose of mediation is not to save a broken marriage, but to give the husband and wife a chance to dictate there own terms of the divorce without the Judge deciding their case for them.  The parties should realize that compromise is important in a mediation if you want to successfully settle their case.  There can be one or several mediations in a single divorce proceeding.  A mediation can settle some issues, all issues, or no issues.  Mediations are attended by the Husband, the Wife, their attorneys, and a mediator.  Third parties are typically not allowed to attend mediations.

If the case is not settled at mediation, the parties can still attempt to settle out of court, or have their attorneys try to work toward a settlement.  If no settlement is reached, cases often proceed with depositions, interrogatories, and further discovery.  Eventually, the parties would go to a final hearing (a Trial) and have the Judge decide the issues that were not settled on at mediation.  At this Trial, each side will have an opportunity to present their side and make their requests to the Judge.

Anyone going through a divorce, especially a contested divorce, should realize that it is unrealistic to expect to be “happy” with their divorce.  A divorce can be emotionally and financially devastating.  The parties now living apart and, often times, alone can be difficult.  In cases with children, the time spent away from them can be very trying.  Finally, the simple fact that there are two households to support instead of one is enough to cause a serious financial strain on the parties.

It is always a good idea to consult an attorney before you proceed with a divorce and I would be happy to talk to you about your own unique circumstances.

Shawn L Hungate Attorney at Law, 811 Patrick Street, Kissimmee, FL 34741  407-846-1529

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Basics About Divorce in Florida

SOME BASICS ABOUT DIVORCE IN FLORIDA

by Shawn Hungate.

Going through a divorce can be a trying time for anyone.  Dealing with custody, visitation, child support, alimony, property division only adds to the stress and emotional turmoil that comes with a divorce.

Before you decide to take legal steps to file for divorce and end your marriage, you should make sure that you have taken the steps to see if you can save it.  There is help out there from professional help, to religious organizations, even talking to family and friends.  Ultimately, if you do decide to file for divorce, it is important that you consult with an attorney to know your rights.

A divorce in Florida is officially called a Dissolution of Marriage.  In Florida, you do not have to prove that anyone is at fault for the divorce.  Thus, Florida, as far as divorce law goes, is a no-fault state.  This can reduce potential harm to the parties and their children, fi they have any, by not having to show things like adultery or abandonment.  The most common grounds for divorce in Florida are simply that the marriage is irretrievably broken.  Additionally, either the Husband or Wife must have been a Florida resident for at least six months.  Circumstances that would otherwise constitute “fault” can sometimes be used, though, in the determination of alimony or child support.  Be sure to speak to an attorney about this, though, as many factors that may feel like “fault” will not be considered by the Court.

Divorces in Florida can be handled in many ways.  One way is the traditional “Contested Divorce”.  This is where one party files a Petition for Dissolution of Marriage with the Court and has the other party served with the Petition.  The other party must answer within a given time period and the lawsuit proceeds from there.  Usually, Mediation is had and, if the case does not settle there, further litigation will likely be required.

Another way to get a divorce in Florida is an “Uncontested Divorce”.  This is where the parties enter into an agreement about how their property will be divided, how they will continue to raise their children (with a “Parenting Plan”), what child support will be paid, and if alimony is to be paid.  Although this sounds like an easier process, it is still imperative to seek out a lawyer to help you with this process.  You still need to be advised of your rights.  Additionally, the likelihood of having to go back to court later on is increased greatly if you try to do this on your own or simply hire a paralegal to prepare documents, as they are unable to give you any kind of legal advice.  A special kind of Uncontested Divorce is a “Simplified Divorce” and is filed only in certain circumstances.

A third way to get a divorce in Florida is through a rather new method called a “Collaborative Divorce”.  This is where both parties obtain counsel, but it is done with the idea of reaching a settlement.  Both parties, and their attorneys, must enter into a Collaborative Agreement.  I will discuss more about Collaborative Divorces in a later post.

Additionally, Judges and Clerks cannot give legal advice.  They can only answer the most basic questions you may have, and this is normally limited to procedural questions.  Only an attorney can give you legal advice about your Divorce.  Call my office or email me and I would be happy to set up a time to speak with you about your unique case.

Shawn L Hungate Attorney at Law, 811 Patrick Street, Kissimmee, FL 34741  407-846-1529

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