Arnelle Strand, P.A.

What is a no-fault divorce?
Florida is a no-fault state.  This means that the misconduct of a party such as adultery, desertion, or abuse is irrelevant  in a divorce proceeding.  One person must state that the marriage is irretrievably broken, counseling would not save the marriage,  and that they were a residence of Florida for 6 months prior to the filing and the divorce would be granted.  

What is the legal divorce process like?
** Detailed outline of Procedure in Typical Dissolution of Marriage Action
Although some divorces are very simple and can be handled with a minimum amount of red tape and delay, such as when there is no significant property involved and the couple has no children, most divorces are far more difficult and can take many different courses. The following, however, is a basic outline of the divorce process.
One spouse contacts a lawyer, who assists in the preparation of a petition (or complaint), the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought.
The petition is filed with the court and served on the other spouse, together with a summons that requires that spouse's response.
The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. In Florida, the served spouse will have twenty (20) days after the date of service of process to respond with a document called an “answer.” The response, or answer, must respond to each request in the Petition as either admitted or denied and the answering Spouse may also file a Counter Petitioner in which the answering spouse seeks affirmative relief. The Answer to the Counter Petitioner must be filed by the original Petitioner within twenty (20) days.

After the Petition, Answer, Counter Petition and Answer are filed with the Court, along with certain other required documents such as financial affidavits, uniform child custody act affidavits, non-military affidavits, the parties , through their attorneys, engage in "discovery."

The Discovery phase of a Dissolution of Marriage action is very important even in a case which is likely to be resolved by agreement. During discovery, the parties must produce and exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc. This can be a daunting task as parties are usually required to provide bank statements, credit card statements, retirement account statements, mortgage information records, and all documents necessary to achieve a full and complete picture of the parties’ marital and non-marital assets. In Florida, parties must provide each other with certain documents known as “mandatory disclosure” on or before the forty fifth (45th) day after service of the Petition. Mandatory Disclosure requires each party to provide the following information, at a minimum:
• Family Law Financial Affidavit.
• Child Support Guidelines Worksheet. This will be provided by the attorney based upon the information provided in the financial affidavits of both parties.
• All federal and state income tax returns, gift tax returns, and intangible personal property tax returns filed by the party or on behalf of the party for the past three (3) years.
• IRS Forms W-2, 1099, and K-1 for the past year, if the income tax return for that year has not been prepared.
• Pay stubs or other evidence of earned income for the three (3) months prior to service of the financial affidavit.
• A statement by the producing party identifying the amount and source of all income received from any source during the three (3) months preceding the service of the financial affidavit required by this rule.
• All loan applications and financial statements prepared or used within the twelve (12) months preceding service of that party=s financial affidavit required by this rule, whether for the purpose of obtaining credit or for any other purpose.
• All deeds within the last three (3) years, all promissory notes within the last twelve (12) months, and all present leases in which the party owns or owned an interest, whether held in the party=s name individually, in the party=s name jointly with any other person or entity, in the party=s name as trustee or guardian for any other person, or in someone else=s name on the party=s behalf.
• All periodic statements from the last three (3) months for all checking accounts, and from the last twelve (12) months for all other accounts (savings accounts, money market funds, certificates of deposit, etc.) regardless of whether or not the account has been closed, including those held in the party=s name individually, in the party=s name jointly with any other person or entity, in the party=s name as trustee or guardian for any other person, or in someone else=s name on the party=s behalf.
• All brokerage account statements in which either party to this action held within the last twelve (12) months or holds an interest including those held in the party=s name individually, in the party=s name jointly with any other person or entity, in the party=s name as trustee or guardian for any other person, or in someone else=s name on the party=s behalf.
• The most recent statement for any profit sharing, retirement, deferred compensation, or pension plan (for example IRA, 401K, 403B, SEP, KEOGH, or other similar account) in which the party is a participant or alternate payee; and the summary plan description for any retirement, profit sharing, or pension plan in which the party is a participant or an alternate payee.
• The declarations page, the last periodic statement, and the certificate for any group insurance for all life insurance policies insuring the party=s life or the life of the party=s spouse, and all current health and dental insurance cards covering either of the parties and/or their dependent children.
• Corporate, partnership, and trust tax returns for the last three (3) years if the party has an ownership or interest in a corporation, partnership, or trust greater than or equal to 30%.
• All promissory notes for the last twelve (12) months, all credit card and charge account statements and other records showing the party=s indebtedness as of the date of the filing of this action and for the last three (3) months, and all present lease agreements, whether owed in the party=s name individually, in the party=s name jointly with any other person or entity, in the party=s name as trustee or guardian for any other person, or in someone else=s name on the party=s behalf.
• All written premarital or marital agreements entered into at any time between the parties to this marriage, whether before or during the marriage. Additionally, in any modification proceeding, each party shall serve on the opposing party all written agreements entered into between the parties since the order to be modified was entered.
• All documents and tangible evidence supporting the producing party=s claim of special equity or non-marital status of an asset or debt for the time period from the date of acquisition of the asset or debt to the date of production or from the date of marriage, if based on premarital acquisition.
• Any Court Orders directing a party to pay or receive spousal or child support.

After exchanging the information required through Mandatory Disclosure, the parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator. In Florida, Mediation is mandatory and most cases are referred to a Mediator by the Court. There is a Court subsidized mediation program which provides a list of mediators or the parties may agree to hire a private mediator. The advantage of hiring a private mediator is usually the speed with which the mediation may be scheduled and the ability to choose a mediator based on experience and skill level. The cost of a private mediator usually ranges between 150.00 per hour to 250.00 per hour versus a court appointed mediator who is usually compensated 60.00 to 120.00 per client, based upon the income of the parties.
If a settlement is reached at mediation or by informal negotiation, the agreement encompassing the terms of the settlement is submitted to the court and typically approved by the Court via an Order. This Order typically only approves the Order but does not operate to dissolve the marriage. The parties must schedule a final hearing before the Court wherein at least one of them must testify to the foundational requirements for the dissolution of marriage (that the marriage is irretrievably broken), the residency requirement ( that one party has been a resident of the state of Florida for at least six months prior to filing the petition), the venue requirement ( that the parties last resided as husband and wife in the county where the action was filed) and that the agreement ( mediation agreement or settlement agreement) was entered into freely and voluntarily.
If the judge approves the agreement, he or she will sign a Final Judgment of Dissolution of Marriage that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
At trial, the attorneys present the evidence and arguments for both sides, and the judge decides the unresolved issues, including child custody ( which, in Florida, is now referred to as Parenting) and visitation ( which, in Florida is now referred to as Parenting Time) , child and spousal support, and property division, contributions for attorneys fees and any other matter. The Court will sometimes make a ruling at the conclusion of the case but in complicated matters may require the attorneys to each submit proposed final judgments for the Court to consider.
Once a Final Judgment is entered by the Court, either or both parties can appeal the judge's decision to a higher court. The time for filing an appeal generally begins as soon as the Final Judgment is entered and is usually time restricted, so the parties must make the decision whether to appeal or not rather quickly after the Judgment is entered.
The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.
What is equitable distrubution?
In Florida assets and debts that are acquired/incurred during the course of the marriage are considered “marital assets/debts” and are subject to division. The starting point for division is 50/50. Exceptions to the definition of "marital assests" are inheritance that may have occurred during the marriage provided it was never comingled into a joint account, always kept separate, and no marital funds were ever comingled with the inherited funds.  Gifts from 3rd parties to one spouse or the other are non-marital.  Property and retrement funds acquired prior to the marriage are non-marital provided they were never jointly titled or paid for from income earned during the marriage.  Likewise, certain assets/debts that were acquired prior to the marriage and never jointly titled or paid for from income earned during the marriage may retain their “Non Marital” nature and not be subject to division. The distinction between Marital and Non-Marital assets can be confusing and there is a large body of case law that creates exceptions to the general definition of Marital and Non-Marital assets. For example, in Florida income earned during the marriage is considered “marital.” Thus, if a spouse purchases a car from his or her individual income and titles the car only in his or her name, the car will most likely still be deemed “Marital” and subject to division.
The parties in a divorce can agree to the division of, or the judge will divide, all marital property owned by the parties. Generally speaking, this includes most of the property the couple acquired during the marriage, including the marital home; a second or vacation home; home furnishings and appliances; artwork; vehicles, including cars, boats, airplanes, snowmobiles, and motorcycles; money; stocks, bonds, and other investments; pensions; and privately owned businesses.

The value of other, more intangible property is also often divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse, and the value of a professional degree earned by one spouse. The distribution of intangible property is usually subject to complex analysis in order to appropriately value the asset. When such issues are presented in a Dissolution of Marriage action, the parties usually have to call upon the services of a third party expert such as an accountant or business valuation expert.

It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. In addition to the documents required to be disclosed in Mandatory Disclosure, described above, the parties may request additional documents, requests for admission, and even require the other party and his or her witnesses to submit to a deposition. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income.

If necessary, additional parties may be deposed, such as employers, bankers, or business partners. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.

What happens to the property that each spouse owned before the marriage?
Property acquired by the parties prior to the marriage, unless commingled or jointly titled during the marriage, is, for the most part, deemed Non Marital and not subject to division in a Dissolution of Marriage Action. There are exceptions to this general principal and each item should be carefully analyzed to see if it has been converted from non marital to marital. Even if an asset is considered to be Non Marital in nature, it may be considered as part of the total circumstances in determining a fair allocation of the marital property. In addition, if non-marital property is not kept separate from marital property, it may lose its separate characterization and become subject to division. There is a strong presumption that assets that are acquired during the marriage are Marital and the party seeking to characterize an asset as Non-Marital has the burden of proof.

Example: If one spouse had a bank account containing $5,000 before the marriage, but during the marriage the spouses both made deposits and withdrawals from the same account, the amount in the account at the time of divorce or separation will probably be deemed marital property, to be divided between the husband and wife. If, on the other hand, the spouse with the $5,000 account deposits only other non-marital money, such as inheritances to him or her alone, in the account throughout the marriage, all the money in the account will probably remain with that spouse upon divorce.
A house owned by one spouse prior to marriage presents unique issues, because often both spouses contribute to the home's maintenance and mortgage payments during their marriage. Generally, in Florida, the increase in the value of the property due to the active contributions of the spouses during the marriage, is usually considered “marital” and the non-title holding spouse may be entitled to his or her equitable share of the increase in value. Often this is a difficult analysis requiring a determination of the fair market value of the property prior to the marriage ( which is often elusive and difficult to determine) and the fair market value of the property at the time of the filing of the Dissolution of Marriage action. Courts are divided, but usually the passive appreciation – due to market conditions—is not considered marital and the non-title holding spouse will not be entitled to the equity as a result of mere passive appreciation.

What is a Legal Separation and can I get one in Florida?

Often parties seek a “Legal Separation” as a trial period before seeking a Dissolution of Marriage or Divorce. In Florida, there is no such thing as a Legal Separation. Of course, parties can live separate and apart and even enter into an Agreement regarding the disposition of assets in the event one of them files for Dissolution of Marriage, but this agreement is simply regarded as a contract between the parties and is not enforceable by Contempt or other legal procedure until such time as one of the parties files a Petition for Dissolution of Marriage. The Petition for Dissolution of Marriage, in such a case, would simply set forth the foundational requirements for filing the action and would refer to the Agreement entered into by the parties. If neither party opposed the entry of the Final Judgment of Dissolution of Marriage incorporating the agreement the agreement would then become a Court Order and be subject to enforcement proceedings, including contempt for failures to pay support and abide by the Court’s Order.

What is "Family Law"?

Family Law is an area of law which includes family-related and marital issues. Among the areas of law included in "Family Law" are pre-marital agreements, marital settlement agreements, dissolution of marriage, paternity, adoption, juvenile law, domestic violence injunctions, contempt and enforcement of of family law orders, emancipation orders, annulments and name changes.

If my spouse suffers from a severe mental illness, may I obtain a Dissolution of Marriage?
Florida is a no-fault divorce state, which means that in order to divorce you must prove either that the marriage was irretrievably broken or that there was mental incapacity on the part of one of the spouses. In order to claim mental incapacity, under Florida statutes, there must be an adjudication of mental incapacity for at least three years. If your spouse has been adjudicated incompetent you may obtain dissolution of the marriage. The Court will still be able to determine distribution of assets, debts, custody issues and spousal support for the incompetent spouse.

Before getting divorced, what should I know about my finances?
You should be able to identify your assets and liabilities and have any/all records showing the exact balances and values. It is advisable that you be able to access the following information regarding your finances:
Bank records
Stock statements
Stock certificates
Bond certificates
Deeds
Wills
Trust Agreements
Partnership Agreements
Insurance policies
Retirement agreements
Titles to property such as cars, boats, etc.
Power of Attorney Documentation
Business Documentation
Tax Records
Other Financial Documents
If your spouse has always retained these records or you are unable to determine the exact value of your assets or the extent of your liabilities, you will be entitled to receive books and records during the discovery phase of the dissolution of Marriage Action. It is advisable that you obtain as many of these documents as your can prior to filing the dissolution of marriage action in case you spouse attempts to hide or dissipate assets after you file.

How do I go about selecting my family lawyer?

There are a number of factors that I believe go into that choice, in no particular order. First, you should select a lawyer who has a broad base of knowledge in family law as well as an understanding of the emotional effects of a divorce and those effects on children. Many lawyers publicize themselves as family lawyers, but are not exclusively family law, not do many of them have children.   There are few of us who practice family law as one hundred percent of our practice.  Second, select a lawyer who is honest and forthright, not one who will tell you what you want to hear.   There are lawyers who will tell the client what the client wants to hear rather than the plain facts.  It does you no good to hire someone who is all fluff and no substance.  Third, your lawyer should be responsive to you. Not returning phone calls and not answering emails is just not acceptable.  Fourth, select a lawyer who is upfront and honest about billing.  There are other factors which may be important to you. Interview your lawyer and come into the initial consultation with a written list of questions. Your gut feeling will tell you whom to hire.

Do I need a pre-nuptial/marital agreement?

If this is your second marriage, if you are getting married later in life, or if you have property or investments that you are bringing into the marriage, you may be a candidate for a pre-marital agreement. Again, contact a good family lawyer for a consultation. This is a highly specialized document.

What issues are generally covered in a pre-nuptial/marital agreement?

The issues that are covered are as varied as the client’s needs. Does one party have pre-marital assets they wish to protect? Does a party wish to provide a formula for alimony or spousal support in the event of divorce? Does a party wish to exclude income earned during the marriage from marital property? These and a host of other concerns can be covered by a properly drafted pre-marital agreement.

When should I begin the process of having a pre-nuptial/marital agreement drafted and signed?

Generally speaking, if you have a wedding date, it is not too early to begin. Oftentimes, people contact a family lawyer several weeks before the wedding date to begin the process. This is far too late and serves to place unnecessary pressure on the parties to the agreement. Starting the process many months ahead of time generally makes a lot of sense.

What should I do if I am in an abusive relationship?

Florida has a very powerful tool to protect you from Domestic Violence. If you have been threatened with physical harm you may file a Petition for Injunction against Domestic Violence or a Petition for Protection against Repeat Violence against the offending party. If you require such an injunction, you must file a sworn Petition in which you provide the Court with a detailed statement of what happened and when. If the Court finds that there is probable cause to issue the injunction, it will become a Temporary Injunction against Domestic Violence and your spouse or significant other will be ordered not to come within 500 feet of you, your residence, your place of work, or any other place wherein you require protection. If the spouse or offending party violates the Temporary Order he or she can be arrested and charged with the crime of Violation of Domestic Violence Injunction. After the Court issues the Temporary Injunction, the Court must set a Return Hearing within 14 days and both you and the accused will appear bfore the Court and present evidence. If the Court hears the testimony and still believes that there has been domestic violence, the Court may issue a Permanent Injunction and the spouse or accused party will not be permitted to have contact with you on a permanent basis.

COSTS OF DISSOLUTION OF MARRIAGE ACTIONS:
How much will my divorce, custody, support or other Family law matter cost me?

Every case has unique issues which need to be addressed. If the parties can reach an agreement to resolve the issues of equitable distribution, custody and support, an experienced Family lawyer can draft a Property Settlement Agreement and the costs to proceed with a divorce or other domestic relations matter will be much less as compared to those cases where the parties litigate all of the issues.

What if my spouse threatens to quit his or her job to avoid paying support or alimony?

In Florida, the Courts will either consider the actual income of the parties and/or the imputed income of the parties. If one of the parties earns significantly less money at the time of the dissolution of marriage than during the intact marriage, the Court will inquire and impute income to that party if the reduction in income has been voluntary to avoid support obligations or to reduce assets. As such, the amount of support a party will pay or receive, should that party voluntarily reduce his or her income, will be calculated on the amount of income that party has demonstrated he or she has the ability to earn.

If our marital property is titled in just one spouse's name, will that effect whether the property is marital property or not?

No. Generally how property is titled does not have an impact on whether it is or is not marital property.  It is marital property unless it is property acquired prior to the marriage.  It is not uncommon for married people to title property in just one name. This does not have an effect whether it is or is not marital property.

My spouse has committed adultery. Will this affect the percentage of marital property to which my spouse is entitled?

No. Florida is a no fault state. If one spouse commits adultery or wrongs the other spouse, that does not entitle the aggrieved spouse to a greater portion of the marital estate.  However, if a spouse has dissipated or spent marital assets on a third party it may affect equitable distribution.

My spouse and I are not getting along, and I have asked him/her to leave but he/she refuses to leave. What can I do?

Neither party can require the other party to leave the marital home absent abuse or threats of abuse. The Court may order one party to leave the home on a temporary basis if the parties’ conduct is severely disruptive to the well being and health of a minor child or the other party.

My spouse has moved out of the marital home and left me with all the bills. What can I do?

You may be entitled to file a motion for temporary child and/or spousal support with the Court asking for a support order.  However, in Pasco county mediation is required prior to obtaining a hearing for temporary relief except under emergency situations, such as the electric is going to be shut off.