Video answers from Jacksonville family law attorney A. James Mullaney about uncontested divorce issues in Florida family law.
What happens at the Final Hearing for an uncontested divorce in Florida?
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Once you arrive at the courthouse, you should wait outside the judge's hearing room. When I arrive, we will go into the judge's hearing room, sit down, and wait our turn to talk to the judge. When we talk to the judge, I will ask you these simple questions. 1. What is your name? 2. What is your spouse's name (I know, these questions are simple)? 3. Is your marriage irretrievably broken? You should agree that your marriage is irretrievably broken since that is one of the legal requirements in Florida to get a divorce. 4. I'm going to ask you to tell the judge why you feel your marriage is irretrievably broken. You do not need to tell the judge your whole story. Simply tell the judge a few sentences that describe why your marriage is broken and cannot be fixed. 5. I will ask you if any amount of counseling would help you fix your marriage. You should answer "no." If any amount of counseling could help you fix your marriage, then your marriage is not irretrievably broken. 6. I'll ask if any children were born during the marriage. So simply answer that question. 7. I'll ask you if your wife (or yourself) are currently pregnant. Usually the answer to that question is "no." 8. Next, I will ask you how long you have been a current and continuous resident of the State of Florida. You need to have been a resident for the 6 months immediately preceding the filing of your Petition for Dissolution of Marriage. This is typically proven by showing the judge your valid Florida driver's license that has an "issued on" date 6 months before the date of filing. 9. Lastly, I will ask you if you recognize the Consent Final Judgment - that's the settlement agreement - and ask you if you signed that document. After you say "yes," the judge will sign the settlement agreement and you will get a copy of the Order to take with you.
What is an Uncontested Divorce in Florida?
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An uncontested divorce is a divorce where the parties have come to an agreement on all the issues in their case prior to the start of the case. It does not matter how simple or complex their case is. What matters is that they agree on all the issues. These issues typically include the division of all your various assets and debts, amount and duration of alimony - if any, and, if you have children, child support and time sharing with the children. The main benefits of an uncontested divorce are that your case can be resolved much quicker and at a far lower cost.
How long does it take to get an Uncontested Divorce in Florida?
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An uncontested divorce typically takes between 4 and 6 weeks after the case has been filed with the Clerk of Court. Florida law requires that you wait at least 20 days. The difference between the 20th day and the actual date of your final hearing is due to availability on the judge's calendar. Military service members that appear at a final hearing by phone with a notary may have a slightly longer delay between filing and the final hearing.
What is the process for an Uncontested Divorce with my office?
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In order to get an uncontested divorce, you and your spouse need to agree on all the issues that are raised in your case. The issues that commonly need to be addressed include: the division of property, the divisions of debts, alimony if any, the time both parents spend with their children and child support. Those last two - of course - only need to be addressed if you have children. If you can agree on all of these issues, you can get an uncontested divorce. In my practice, I can normally meet with a potential client a few days after they contact me. You would need to submit the Client Questionnaire that can be found on my homepage. At our initial meeting, we will discuss your answers in the Client Questionnaire. A few days later, you will receive all the documents you need for an uncontested divorce. After you review the documents, I will make any changes that are needed. All of those documents need to be signed and notarized and then returned to my office so I can electronically file them with the Clerk of Court. Following the filing, you can expect ot have your Final Hearing in about 4 to 6 weeks following the date of the filing. On rare occasions you can have the hearing in as little as 3 weeks - but like I said, that is rare. I will go with you to the courthouse to the hearing and see the judge. I will ask you some simple questions in front of the judge. The judge will sign your order and you will walk out of the hearing room that day with a copy of the divorce order and your case will be finalized and closed.
What questions need to be answered for an uncontested divorce in Florida?
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The first question that needs to be answered in "what will happen with your marital assets?" Simply, marital assets are those assets that you and your spouse have acquired during your marriage - a house, cars, personal property, bank accounts, and so on. Often, there are at least a few ways to fairly divide the marital assets. You need to agree on one of them if you want an uncontested divorce. The second question that you need to answer for an uncontested divorce is "what happens with your marital debts?" Similar to how assets are treated, in an uncontested divorce, you and your spouse will need to agree on how the marital debts are divided. Marital debts are simply those debts that were incurred during the marriage no matter who actually owes the bank or creditor - and typically includes mortgages, credit card debt, car payments, personal loans, and any other payments to creditors. The third question that you need to answer addresses if there will be any alimony, and if so, how much and for how long. Lastly, if you and your spouse have children, then you are going to need to address the fourth and fifth questions that commonly come up in an uncontested divorce - time sharing and child support. The judge will almost always approve of your proposed time sharing schedule as long as you are not proposing something very odd or difficult to accomplish. Also, the child support amount will be approved as long as it was calculated according to the Florida Child Support Guidelines.
Do I have to attend the Final Hearing in a Florida uncontested divorce case?
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When I file an uncontested divorce on behalf of a client, my client generally has to appear at the final hearing so that I can ask the client a few questions in front of the judge. If you cannot attend the final hearing - for some reason - your spouse must attend the final hearing with me. It is up to the judge to determine whether certain exceptions are applicable and can be made. Often, judges will allow military service members to appear by phone as long as that service member can be sworn in by a notary that appears on the telephone call with them. A second exception may occur if a client is disabled and cannot physically attend the final hearing. In that situation, the client would still need to have a notary with them when they called into the final hearing. While my client needs to attend the final hearing, the other party usually does not. Of course, the other party can attend the final hearing if they want.
What if my Spouse does not want an Uncontested Divorce?
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Most couples would prefer an uncontested divorce because it is less expensive and far less time consuming. However, in this situation, the answer is fairly simple. You can't get an uncontested divorce both sides agree to get an uncontested divorce. In my practice, this comes up in two ways. The first way is that one spouse believes that the couple has no assets or debts to divide and proposes that they each keep what they have and pay their own debts. Even if you assume that this type of division is exactly what the judge would do after a trial, you can't have an uncontested divorce unless the other spouse agrees with your proposed division of the assets and debts. The reasonableness and fairness of your settlement offer does not require the other side to accept it. The other way this comes up is that the other side won't negotiate at all. This could be that they don't want a divorce so they will not cooperate or it could be that they don't want to agree to anything because they don't trust that you are being fair and they don't trust their ability to know what is unfair. In this situation, you can't get an uncontested divorce because at this stage you can't force the other side to negotiaate. Eventually you can force them to negotiate by attending a court ordered mediation that is part of a contested case. If you are in the situation where you want an uncontested divorce and your spouse does not, you have three choices. The first choice is to simply wait. Perhaps the other side will change their mind if given enough time. The second choice is to explain to the other side that their refusal to even negotiate will cause a contested case that will cost them more money and time. The third choice is to ask the other party to consult with a lawyer. Sometimes people have unrealistic demands that they will drop once they find that they are unrealistic and would be expensive to pursue. Even if their demands are realistic, they will discover what the cost of the litigation would be.
Does each spouse need a lawyer for an uncontested divorce in Florida?
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It might be a good idea for both sides to have a lawyer - even in an uncontested divorce. However, it is not required. In fact, neither side is required to have a lawyer represent them. In my experience, most of the time, the other side in an uncontested divorce does not hire a lawyer. This is usually because of financial reasons or because the unrepresented spouse thinks that they understand the settlement agreement and do not need a lawyer to explain it to them. If you are participating in an uncontested divorce, whether or not your spouse has a lawyer, it is important for you to have a lawyer. Even if you think your case is fairly simple, you should - at least - consult with a lawyer so that he or she can review your proposed settlement agreement. Common problems that are identified are repayment of debts and the calculation of child support - just no name a few. A review of a proposed settlement agreement is not expensive and could certainly save you a lot of money in the long run. Another benefit of hiring a lawyer in an uncontested divorce case is that your case will be finalized much quicker than if neither side has a lawyer. Simply, lawyers have faster access to the judges, so we can schedule your final hearing much sooner.
Can one lawyer represent both sides in a divorce case in Florida?
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No. A lawyer cannot represent both sides in a divorce case - not even in an uncontested divorce case where both sides agree on the terms of a settlement agreement. It would be a conflict of interest for a lawyer to represent both sides. For example, suppose that a couple was married for a year and wanted to get a divorce. Before talking to a lawyer they agreed that the Husband would pay alimony to the Wife for the rest of her life. Now suppose that they were able to hire the same lawyer so that they could get their divorce done quickly and inexpensively . A lawyer representing the Husband would almost certainly tell him that there are only a very few limited circumstances in which a judge would award permanent alimony after a one year marriage. This legal advice would be great for the Husband. However, the lawyer in this scenario also represents the Wife. The lawyer's opinion about the alimony would be awful for her because now the Husband would likely refuse to pay alimony for the rest of her life. In this scenario, the lawyer did a disservice to the Wife in offering the Husband valuable legal advice. This is a clear conflict of interest and shows why one lawyer cannot represent both sides in a divorce case.