A Simplified Step by Step Walkthrough
A Simplified Step by Step Walkthrough
If you are considering filing for a divorce from your spouse you may wonder what is involved in the process. Every person enters into it with their own predisposed perceptions based on acquaintances experiences and interpretive commentary. More often than not these are not correct or only specific elements would be applicable in their divorce. Hopefully the following dialogue and chart will enlighten you to the procedure. Additionally you will find general explanations about some of the high points that are encountered during the process. Remember this is a simplified description and does not capture the nuances that may occur. Also the timelines referred to are ideal in nature and may not actually take place as indicated.
You begin with a “Petition” which is simply a legal document that starts a divorce case. It contains things you ask for in the divorce, for example, child support, equitable distribution of assets, alimony, etc. The Petition is filed by the person who starts the case. In a divorce case, it does not matter which person starts the case. This is because the only grounds for divorce in Florida as a practical matter are that the marriage is “irretrievably broken”, meaning it cannot be fixed. The “Counter-Petition” is filed by the other party, after the Petition is filed.
The “Discovery” is the list of items which are required to be produced by each party in a divorce case, as pursuant to the Florida Family Law Rule of Procedure, Rule 12.285. The items mandated include things like three years tax returns, three months bank statements, three months credit card statements, deeds to real property, three months pay stubs, one year of brokerage statements, or insurance documentation, etc. Discovery is MANDATORY, unless both parties agree to waive this requirement. In any event, financial affidavits CANNOT be waived. You will need to do the best you can in working on and completing the financial affidavit and gathering the discovery documents. The sooner you get this completed the sooner it can be filed with the court.
It is CRITICALLY IMPORTANT that the financial affidavit and discovery is filed on time. If it isn’t done, you can be formally compelled to do so by the court or end up paying attorneys fees, sanctions and costs as a result of not filing the discovery on time. Perhaps most importantly, you ABSOLUTELY CANNOT obtain any financial relief for you, meaning child support, alimony, or attorney’s fees, without financial affidavits. Also, settlement agreements should never be entered into without financial affidavits being filed first. Further, failure to file financial affidavits and discovery will cause the case to be delayed. Delaying the case costs you more attorney’s fees, costs, emotional heartache, and further means that the case will likely be over the time standards. Generally speaking most divorce cases should be completed within six months.
At some point during the process both parties must meet with a mediator and to try and come to some agreement on all contested issues. A final judgment cannot be entered, or a final hearing will not be scheduled until some attempt has been made at mediation. The mediator must remain as a neutral party. If any agreement is entered into it must come from you or your spouse. If you and your spouse do not reach an agreement, nothing said during mediation counts. If you do reach an agreement, that agreement is typically written up there and signed by both parties.
“Depositions” are an important part of preparation of your case. Depositions are for the purpose of discovery and for preparation for trial. A deposition is nothing other than testimony of a party or witness or other person, taken under oath. The person whose deposition is being taking is sworn to tell the truth. The testimony is taken by the court reporter, and is recorded. It is important in preparation for trial. Depositions can be taken of witnesses, parties, and of other persons.
“Trials” are a last resort. Divorce trials are in front of the Judge. It is called a bench trial. It is not in front of the jury. Preparation for trial is a complex process. It is very expensive. It takes a great amount of time, and attorney’s fees and costs. You generally need experts to give appraisals on all the assets. The appraisals can cost several hundred dollars per appraisal. You generally have to prepare experts. You also have to spend hours and hours preparing our client for trial. Witnesses have to be interviewed. Many trials take several days to try. Cases can take tens of the thousands of dollars to go to trial. It is much better to settle the case. Occasionally, however, cases simply have to be tried.
As indicated, cases are supposed to take six months in terms of start to finish. We have provided this map to you to give you an idea of the steps along the way. Please get an idea in your mind at each step along the way. It will help you greatly in seeing the “forest for the trees” during the divorce case. I want to stress that a divorce is a process. It is a means to an end, that is, the termination of a marriage, that while, extremely unfortunate, is sometimes necessary. Our job is to try to do everything possible to minimize the pain, anguish, cost, expense, and trauma of the divorce itself – which is in many ways like the death a loved one and involves many of the same stages of grief – and at the same time to get you the absolute best results possible.