Frequently Asked Questions
Is a lump sum settlement better than alimony?
It depends on each individual’s situation. One advantage to a lump sum settlement is the non-taxable nature of payments. However, careful consideration must be given to the sustainability of the receiving spouse’s lifestyle and the return on investment of the liquid assets comprising the settlement.
Is spousal support always taxable?
No. Spouses can agree that payments will not be considered alimony for tax purposes. Therefore payments will be non-deductible to the paying spouse and non-taxable to the receiving spouse.
I want to understand the value of my spouse's business interest for settlement purposes, but I do not want to pay for an all-encompassing business valuation. Is there another option?
Yes. Often times, a calculation of value can serve as a high level estimate in making your determination for settlement purposes. However, in the event your case does not reach a settlement, you will need a more comprehensive valuation for trial.
What resources are available if I cannot afford to hire an attorney?
You can call Legal Aid at (239) 334-6118. If you qualify financially and meet other requirements, you can be provided an attorney at no cost.
Also, you can contact Florida Rural Legal Services at (239) 334-4554. If you qualify financially and meet other requirements, you may receive an attorney at no cost. This agency works with the Lee County Bar Association and tries to match clients with private attorneys who are willing to donate their time.
If you do not qualify for either of these organizations, you can contact an attorney to determine whether your spouse will be required to pay your attorney’s fees.
What if there is domestic violence in my relationship?
Divorcing a spouse who abuses you can be a dangerous time. If you are in fear for your physical safety, always call 911. You can also call the ACT (Abuse Counseling Treatment) hotline at (239) 939-2113 to get information on how to create a safety plan.
Additionally, you can contact the Domestic Violence Unit at (239) 533-2884. They can provide you with information on how to obtain an Order of Protection Against Domestic Violence so that your abusive spouse will be ordered to stay away from you.
A: No. Spouses can agree that payments will not be considered alimony for tax purposes. Therefore payments will be non-deductible to the paying spouse and non-taxable to the receiving spouse.
Do I have to go to mediation?
In most cases, the answer is yes. Mediation is required by the courts in all cases, but there are circumstances in which you may be excused. You will need to obtain an order from the court.
Does the court pay for paternity tests?
No. You must select an independent lab for testing.
Do I have to go to court to get divorced?
Not in every case. If you agree to the terms of your divorce, you can file uncontested pleadings with the court, and you may not have to make a personal appearance.
What if I want a divorce and my spouse doesn't?
Once you file for divorce, your case will proceed through the court system whether or not your spouse agrees.
All of the assets are in my spouse's name. Does that mean I will not receive any assets?
The divisions of assets is called Equitable Distribution, and the factors for distribution are set forth in a Florida Statute. If you meet the statutory factors, then you may be awarded assets, or a portion of assets, that are in your spouse’s name.
How long does it take to get divorced?
There is no set amount of time. The statute requires the Judge to wait 20 days after the petition is signed, but parties are free to waive this waiting period. If all documents required by the court are properly filed and all parties are in agreement, it can be done is less than 20 days.
Am I automatically entitled to 50% custody of my children?
Florida is a Best Interest of the children state. If the Judge finds there is enough evidence that it would be in the children’s best interest to spend 50% of his or her time with each parent, then it can be ordered. Both parties are free to agree and are encouraged to come up with a parenting plan that works best for their child or children.
What do I need to do when I get divorced?
1) Budget for divorce. They can be expensive. Attorneys cost between $150.00-$500.00 per hour, filing fees and costs can really add up. Start putting money aside. If your divorce will be amiable, you may want to shop for a mediator or a corroborative attorney.
2) Put together a good team and determine what type of professional you will need. Pick at attorney who practices Family law. You don’t want a jack of all trades’. Discuss other professional that will be needed and talk to people who have gone through the process. Mediators, forensic accountants, financial advisors and counselors are all possible team members to help you navigate this life changing event.
3) Update your beneficiaries with the plan administrators on their forms. ERISA is a federal law that states that the plan beneficiary prevails no matter what is in your settlement agreement, so just because it is in the settlement agreement or mediation agreement, if you leave your ex-spouse as the beneficiary he or she will likely be entitled to the proceeds.
4) Plan for expenses such as health insurance. After you are divorced you can no longer be on your spouses company insurance. COBRA lasts 36 months and unless you bargain for that to be paid by your spouse, it can be a large added expense.
5) Check yourself and your children be sure everyone is doing OK and handling things well. If not, soliciting a counselor to ease transitions, especially when new relationships form can be vital.
Can I move out of state with my children?
If a petition has been filed in Lee County, more likely than not there is a standing order that prevents you from removing your children without court approval. You should check with an attorney to be sure you comply with the statute. Taking the children against a standing order can land you in jail.
Do I get half of everything?
It depends. Florida is an equitable distribution state. The court values all the marital property (property obtained during the marriage no matter whose name it is in) and marital liabilities (liabilities accrued during the marriage) and divides them between the parties based on the statutory factors.
How much does it cost to get divorced?
The filing fees in Lee County are currently $418.00. If you and your spouse obtained the correct forms and filed everything on your own, this could be your only expense. Typically divorces cost about $5,000.00. The can cost much less and much more depending on the attorneys and the actions of the parties.
What is a Qualified Domestic Relations Order (QDRO)?
401K and some retirement accounts cannot be split without severe tax consequences. Most plans require a QDRO to split them without tax consequences. You should consult an accountant and/or an attorney on these issues to be sure you agree to split your assets with as little tax consequences as possible.
What do you have to prove to be granted a divorce?
Florida is a no-fault state, which means no grounds other than irreconcilable differences needs to be proven or pled. Therefore, the Judge will not want to hear what who did to whom. It doesn’t matter.
How is child support determined?
The court uses a statutory formula based upon both parent’s income to determine a total amount due. Each parent is responsible for providing for the child based on their percentage of net income to the total amount of support due to the child.
My Husband is a real jerk-do I have to let him have the kids after we get divorced?
The overriding concern is the best interest of the children. One spouse should never alienate the children form the other-no matter whether they deserve it or not. The prevailing literature is clear that it is usually harmful to the children and actually backfires on the parent trying to alienate the children from the other parent. The children won’t remember Dad was a jerk, just that Mom kept them from him. Children will often resent the parent. Every effort should be made for a harmonious parenting arrangement. Often parenting coordinators or counselors can help the parties resolve conflict and act in their children’s best interest.
The exception is when the children would be endangered by a parent’s behavior such as when alcohol or drugs are abused; violence or abuse is occurring. In those instances, supervised visitation may need to be requested. However, it is very rare that a parent will be denied any contact with their child. It is usually an unrealistic and unhealthy expectation.
I have no income and my spouse has all the money, how can I get a lawyer so things are fair?
You will have to file a Motion and ask the court to award you attorney fees. The court must make a finding that you are in need and the spouse has the ability to pay and find the fees reasonable. The court strives to make sure that each party has equal access to counsel.
How can a mental health professional be a helpful part of the divorce process?
They can offer therapy for a parent, children, or the family. They also may do an evaluation of one or both parties. A mental health professional can also be a parent coordinator to help parents get along post-separation.
How do I know if I need to see a mental health professional?
You may need mental health support if the symptoms that you are experiencing are having a significant negative effect on one or more major areas of your life (e.g., work, school, marriage).
What does a parent coordinator do?
A parenting coordinator helps parents involved in a high-conflict divorce learn to compromise based on the needs of their children. They provide education on children’s developmental and mental health needs. This service aims to help parents resolve differences in other ways besides the legal system.
Will a divorce cause my kids to have mental health problems?
There is no definitive answer to this question because there are so many factors involved including: child mental health, parental mental health, child age, culture, et… One major factor is the amount of conflict between parents, particularly when it is seen by the children. A divorce may actually be beneficial if it greatly reduces the amount of conflict that the child is exposed to and both parents can set up supportive homes.