FREQUENTLY ASKED QUESTIONS

Q: I am considering whether or not to divorce my spouse. When should I meet with an attorney?
Q: What do I need to prove in order to obtain a divorce?
Q: What else can be done by the Court in a divorce action?
Q: How will my marital property be divided with my spouse?
Q: How is alimony determined?
Q: How does the Court decide where my minor children will reside following my divorce?
Q: Should I leave my house and live somewhere else while my divorce is pending?
Q: How is child support determined?
Q: Where else can I look for information to prepare myself for my family law case?

Q: I am considering whether or not to divorce my spouse. When should I meet with an attorney?
A: Once you believe a divorce is imminent, you should meet with an attorney as soon as possible. A marital and family law attorney can assist you with developing a strategy for your case even before a divorce case is actually filed.

Selecting an attorney for your divorce is an important decision at this stage of your case. In particular, you may benefit in meeting with an attorney who is sensitive to the emotions that accompany the end of a marriage. This will enable you to make the critical decision of whether you should pursue a reconciliation with your spouse, or proceed forward with a divorce case. Knowing what will likely happen to you and your spouse in the event of a divorce is a very important part of your decision-making process at this very stressful point in your life.

Q: What do I need to prove in order to obtain a divorce?
A: Florida is a no-fault divorce state. If you believe that your marriage is irretrievably broken, and you have been a resident of the State of Florida for at least six months, you can file a petition for divorce in the State of Florida

Q: What else can be done by the Court in a divorce action?
A: Generally, the Court will have the authority to divide your marital property between you and your spouse, and can rule on any specific requests for how to divide such property (such as a request by one spouse to keep the marital residence or a family-owned business). The Court will also be able to rule on whether one spouse should provide alimony to the other spouse, and how that alimony should be structured.

The Court will rule on any issues pertaining to any minor children of your marriage, such as the primary residential placement of the children and the level of timesharing and access that the secondary residential parent will have with the children. Also, the Court must determine what amount of child support should be paid from the secondary residential parent to the primary residential parent.

Lastly, if one spouse is at a financial disadvantage compared to the other spouse, the Court will have the ability to award the impecunious spouse with the funds necessary to pay for temporary and final attorney’s fees and court costs in the divorce proceeding. The issue of who should be responsible for the attorney’s fees and costs relating to your case is a fact-sensitive issue that should be discussed with an attorney.

Q: How will my marital property be divided with my spouse?
A: Florida's equitable distribution statute provides that a marital estate should be divided equally between both spouses, unless a compelling reason for an unequal distribution can be demonstrated by either spouse. A spouse’s nonmarital property (including debt) will remain that spouse’s property, and will not be included in the marital estate. You should confer with a family law attorney to determine how your assets and liabilities will be characterized. Also, the valuation of certain marital assets (such as a marital residence or family business) may require valuation by a competent expert, before a final distribution can be determined. An attorney can assist you in identifying those kinds of assets that require valuation by an expert.

Q: How is alimony determined?
A: A spouse's claim for alimony will be determined based on that spouse’s actual need for alimony, and the other spouse’s ability to pay alimony. Also, alimony can be awarded in several different forms. An award of permanent periodic alimony is generally appropriate in cases involving a long-term marriage where the spouses have disparate earning abilities. Short-term alimony, such as rehabilitative alimony, transitional alimony, or temporary alimony while your divorce case is pending, may also be available for spouses who have a short-term need for support from the other spouse. If you think you may need financial assistance from your spouse upon your divorce, you should consult with a family law attorney to determine what kind of alimony, if any, you should pursue in your divorce action.

Q: How does the Court decide where my minor children will reside following my divorce?
A: The Court will generally decide the primary residential placement of minor children based on what is in the best interests of the children. Specifically, the Court will need to address the following statutory factors in making its determination:

• (a) The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.
• (b) The love, affection, and other emotional ties existing between the parents and the child.
• (c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
• (d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
• (e) The permanence, as a family unit, of the existing or proposed custodial home.
• (f) The moral fitness of the parents.
• (g) The mental and physical health of the parents.
• (h) The home, school, and community record of the child.
• (i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
• (j) The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
• (k) Evidence that any party has knowingly provided false information to the court regarding a domestic violence proceeding pursuant to s. 741.30.
• (l) Evidence of domestic violence or child abuse.
• (m) Any other fact considered by the court to be relevant.

In meeting with an attorney to discuss the issue of child custody, you should try to familiarize yourself with these factors, so that you and your attorney can discuss how each of these factors impact on your case.

Q: Should I leave my house and live somewhere else while my divorce is pending?
A: If you are in fear of your safety or your children’s safety, please contact law enforcement or a local domestic violence center (links for Bay Area domestic violence centers can be found here: Links Page.

Otherwise, you should confer with a family law attorney before deciding to move out of your house pending a divorce judgment. Once you move out, you may not be able to get back into the house, either temporarily or at the conclusion of your case. Plus, if your case involves a contested custody issue, your spouse may gain an advantage over you in the case if you leave your spouse in the house with your children.

Q: How is child support determined?
A noncustodial parent’s child support obligation is determined pursuant to statutory guidelines. These guidelines were enacted to ensure uniformity in what parents are ordered to pay, based on the number of minor children to be supported and on the respective net incomes of the parents. A percentage of the costs for a minor child’s daycare expense and health insurance coverage may also be added onto a parent’s child support obligation. However, a host of other factors beyond those listed above may be considered by a judge. Before agreeing with the other parent on any amount of child support, you should discuss with an attorney what your best strategy may be to resolve this issue in a fair and equitable manner.

Q: Where else can I look for information to prepare myself for my family law case?
A: You may want to visit the website for your local Circuit Court. Links for the Circuit Courts in the Tampa Bay area can be found in the Links section of this website. Go to Links Page. Also, you may want to visit your local library or bookstore to find further reading on divorce and family law matters in general.

The attorneys at the Law Offices of Philip S. Wartenberg, P.A., are also available to meet with you to discuss your case with you. Please contact us to schedule an initial consultation with one of our attorneys.