What kind of divorce should you have?
There are different types of divorce under Florida law: a simplified dissolution of marriage, an uncontested divorce, a mediated divorce, a collaborative divorce, and a litigated divorce. Keep in mind that you may change the kind of divorce that you have in the middle of the process! For example, a divorce may start as being a litigated divorce and ends up being an uncontested divorce because you and your spouse came to an agreement and decided to stop litigating.
To get divorced in Florida, the parties must establish that they are married, one spouse has resided in Florida for at least six months prior to filing for divorce, and the marriage is irretrievably broken. During the divorce process, the family law judge will address different elements. The Judge will change the legal status of the parties from being married to being single. If the parties have children, the judge will enter a parenting plan which includes a time-sharing schedule which the judge must find is in the best interest of the children. The judge will make a finding as to whether the parents have to make major decisions concerning the children’s health, education, and religion together or whether one parent will have the final say. The judge will also rule on whether alimony will be awarded, how marital assets and debts will be divided, and whether one party will have to pay the other party’s attorney’s fees.
A simplified divorce calls for cooperation. Generally, spouses seeking a simplified divorce in Florida must meet the following criteria: (1) both spouses agree the marriage is irretrievably broken; (2) there are no minor children from the marriage; (3) the wife is not pregnant at the time of filing; (4) both spouses complete a financial affidavit, which is a written affirmation regarding property and finances, unless properly waived by the parties; (5) both spouses complete a property settlement agreement that settles all property issues (even if the spouses do not own property); and (6) both spouses appear at the final hearing, unless a formal hearing is properly waived by both parties. This option appeals to couples who wish to cordially end their marriage and are willing to cooperate with one another to that end.
A contested or a litigated divorce is when the spouses are unable to mutually agree on the terms of their divorce and instead have the judge make the final determination. This allows parties who do not agree on how to get divorce to have an avenue to have divorce issues resolved. However, there are two major disadvantages to contested or litigated divorces. First, these divorces take more time and more money because they must be litigated through the court system. Second, they are often adversarial, and the court process can oftentimes increase tensions between the parties.
In an uncontested or mediated divorce, only one spouse (the petitioner) is obligated to appear in front of the judge during the final hearing. In a mediated divorce, the parties were able to come to an understanding and they signed a marital settlement agreement describing how they would like to divorce. Meaning, how they would like to split their marital assets and debts, alimony, and how they would like to address the issues dealing with any minor children. Parties may choose to enter into an agreed upon marital settlement at any point of the divorce. Some parties enter into a marital settlement agreement even before filing for divorce. Others may do so at a formal mediation. A few choose to do so a few days before a scheduled final hearing. The benefits of the mediated divorce are that it controls the legal fees and allows the parties, rather than judge to decide the specifics of the divorce. It tends to be also be much faster than a contested case.
A collaborative divorce is where the parties choose to hire collaborative divorce professionals to help them through the process. This is a relatively new type of divorce. In a collaborative divorce, both parties and their lawyers decide to work together with financial and health professionals with the goal of coming to an understanding. If the parties are not able to reach an agreement, they must retain new counsel before filing a formal petition for divorce with the court. A collaborative divorce is great for parties who are dedicated to having a non-adversarial process. However, if they do not enter into an agreement, it can be very costly as they would be forced to start the process over with new attorneys.