Can you get a no-fault divorce?
Florida law provides for what is commonly known as a “no-fault” divorce. Basically, you can get a divorce by asking for one.
However, don’t let the ‘no-fault’ terminology mislead you. There are requirements.
- You do have to show that one of the parties has lived in Florida for at least the six-month period immediately prior to the filing of papers.
- Also, the marriage must be “irretrievably broken”.
Irretrievably broken is a term that means the marriage is beyond the point of any repair whatsoever.
There is a burden of proof for the couple to prove that their union cannot be saved.
And, if one party contests the divorce, then the other party has the burden of proof to show how the marriage cannot be fixed.
There are two types of no-fault divorce, contested and uncontested.
Uncontested Divorce means that everything is agreed to by the parties.
Such issues include, but are not limited to:
- child support
- custody
- visitation
- who’s going to pay for health insurance and uncovered medical expenses
- life insurance so that there will be money for children if a parent dies
- division of property
- division of debts
- alimony (or waiver of alimony)
and all other issues that pertain to a particular matter.
A Contested Divorce is where one or more issues cannot be resolved between the parties. In this type of divorce, the Court has to step in to decide these issues, which happens in a trial without a jury.
It is much less expensive to have an uncontested divorce.
The attorney can usually estimate how much time they will have to devote to preparing the paperwork to conclude the matter.
In an uncontested divorce, the lawyer needs to draft a settlement agreement pursuant to the parties’ wishes, as well as a Petition for Dissolution of Marriage, Financial Affidavits and other paperwork.
Everything will be presented to the Court at a hearing, which usually only lasts about five minutes.
Contested divorces, where lawyers generally charge by the hour, are much more expensive.
At the beginning of the case the lawyer generally cannot do any more than roughly estimate what the total fees will be.
The reason for this is because the lawyer does not know, and in fact the parties do not know when they start, whether they will end up settling the matter is short order, or the case will drag on for months if not longer before it is either settled or tried before the Court.
Mediation, although it does not usually take place until a lot of work is done on the case, does help in resolving many difficult situations that would otherwise go to trial.
The bottom line is that in a contested situation the lawyer keeps track of their time as the matter proceeds and bills accordingly on an hourly basis.
Sometimes the only language that one of the litigants understands is a Court Order.
And sometimes when a party sees that the other has gone to the bother of hiring a lawyer and serving papers, they are more inclined to make a fair settlement offer.
Quite often though, an agreement fashioned by the parties is better than anything that a Court could come up with and is sometimes easier to live with because it is not imposed by a third party.
However, one should not settle for a lot less than they are entitled to just to get the matter over with quickly.
Lots of people lose valuable rights either because they can’t hang in there when the divorce is unpleasant, or because they don’t know their rights as they haven’t spoken with a lawyer.