Frequently Asked Questions
Family Law – Frequently Asked Questions
What are the grounds for divorce in Florida?
There are two grounds for divorce, formally referred to as "dissolution of marriage": irreconcilable differences, that is, the marriage is irretrievably broken and mental incapacity of the other party.
What is a divorce going to cost me?
It is difficult to say how much your divorce will cost, but will be determined by the issues and complexity of the issues in your particular case. Also, the cost will vary depending on whether your spouse is "hotly contesting" any of the specific issues, such as each party's time sharing with their minor children.
Is there a consultation fee?
Yes, there is a $100.00 consultation fee.
Do the attorney's fees and costs for filing for divorce have to be paid prior to filing (all at once)?
The court costs must be paid prior to filing. However, in a contested divorce our office will accept payments over a specified period of time, which will be written into the retainer agreement. Attorney's fees are also based on the comparative ability to pay. So if your spouse has a greater ability to afford an attorney, that is, if your spouse's income is greater than yours, we will ask the court to award you attorney's fees and costs.
Can I get spousal support/alimony or will I have to pay my spouse spousal support/alimony?
The law requiring spousal support/alimony includes many factors the court considers when determining if a spouse is entitled to support, what type of support, and how much to award in support. During the consultation we will discuss the factors that may or may not support your claim or your spouse's claim for support.
Do I need to hire an attorney?
Divorce cases can be complex. During your consultation with one of our attorneys, we will discuss the particular issues in your case as well as the corresponding law regarding each issue so that you can fully understand the potential financial effects when receiving or paying child support, your potential exposure to alimony, the equitable distribution of your assets and debts, as well as the factors the court considers when establishing a parenting plan for your children.
What is mediation?
When a neutral third party tries to help you, your spouse and the lawyers for each of you resolve all the issues involved in your divorce. It is normally court ordered, with the parties splitting the cost of mediation. Mediation normally last one-half to one full day.
The majority of divorce cases settle at mediation. However if the parties are unable to reach an agreement at mediation the case will be scheduled for trial.
What accommodations has Florida made for a parent in the military, who is unable to exercise their timesharing, because of activation or deployment?
Florida Statute Section 61.13002 addresses temporary timesharing modification and child support modification due to military service, that is, if a parent is activated, deployed or temporarily assigned to military service for more than 90 days. Furthermore, for this statute to apply, the parent's ability to comply with timesharing must be materially affected as a result of his or her military service commitment. If the parent meets this criteria, the parent may designate a person or persons to exercise their timesharing with the child on the parent's behalf.
Under this statute, the designation is limited to a family member, a stepparent or a relative of the child by marriage. It is mandatory for the designation to be in writing, and provided to the other parent at least 10 working days before the court ordered period of timesharing begins. The other parent may only object to the person appointed on the basis that the designated person’s timesharing visitation is not in the child's best interest. If the parents are unable to reach an agreement on the designated person, either parent may request an expedited court hearing.
If a temporary order is issued under this statute, it is mandatory for the Court to reinstate the timesharing order previously in effect upon the service member parent's return. This statute also addresses other issues such as requiring the service member and non-military parent to cooperate to resolve issues and share information; as well as providing for modification of an existing child support order.
Can I change my name as part of the divorce?
If you took your spouse's last name when you married and you are now divorcing, it is relatively easy to change to your former name as part of the dissolution of marriage.
However, if you are wanting to change your name separate from a dissolution of marriage, the process is more time consuming and complex, as you must comply with Florida Statute section 68.07
Wills – Frequently Asked Questions*
What is a will?
A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will.
- You, the maker of the will (called the testator), must be at least 18 years old.
- You must be of sound mind at the time you sign your will.
- Your will must be written.
- Your will must be witnessed and notarized in the special manner provided by law for wills.
- It is necessary to follow exactly the formalities required for the execution of a will.
- To be effective, your will must be proved in and allowed by the probate court.
No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a "codicil," which is simply an addition or amendment executed with the same formalities of a will. A will's terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it.
What can be accomplished by a will?
- You decide who gets your property instead of the law making the choice for you.
- You may name the personal representative (executor) of your will as you choose, provided the one named can qualify under Florida law. A personal representative is one who manages an estate, and may be either an individual or a bank or trust company, subject to certain limitations.
- A trust may be created in a will whereby the estate or a portion of the estate will be kept intact with income distributed or accumulated for the benefit of members of the family or others. Minors can be cared for without the expense of proceedings for guardianship of property.
- Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it.
- You may make gifts, effective at or after your death, to charity.
- You decide who bears any tax burden, rather than the law making that decision.
- A guardian may be named for minor children.
What happens when there is no will?
If you die without a will (this is called dying "intestate"), your property will be distributed to your heirs according to a formula fixed by law. Your property does not go to the State of Florida unless there are absolutely no heirs at law, which is very unlikely. In other words, if you fail to make a will, the inheritance statute determines who gets your property. The inheritance statute contains a rigid formula and makes no exception for those in unusual need.
When there is no will, the court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probating may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision.
How long is a will good?
It is "good" until it is changed or revoked in the manner required by law. Your will may be changed as often as you desire while you are sane and not under undue influence, duress, or fraud, provided it is changed in the required manner. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, or even a substantial change in the nature or amount of your estate, may raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation.
Is a trust a substitute for a will?
No, in most situations. A trust may be used in addition to a will. This is because a trust can handle only the property that has been put into it. Any property of a person that is not placed in the trust either during life or at death in most instances escapes the control of the trust. It is the will that controls all property in a decedent's name at the time of death if the will is drafted properly. Trusts can be helpful to speed administration and save taxes if they are drafted properly and funded during life with the property intended to be transferred by the trust. Often, however, improperly drafted or incorrectly funded or administered trusts can add to the cost of settling estates, not lower it. Furthermore, it is the probate of the will that can clear creditors' claims, which is not possible with just a trust administration.
Do I need a new will if I move to Florida from another state?
If you have moved to Florida from another state, it is wise to have your will reviewed by a Florida lawyer in order to be sure that it is properly executed according to the laws of Florida, that the witnesses are readily available to prove your will in Florida, and that your personal representative is qualified to serve in Florida.
How does a will become effective to dispose of property?
Before your will is effective to dispose of your property, it must be proved in the probate court. If the will is self-proving and otherwise valid, it may be admitted to probate without further proof. If the will is not self-proving, it generally must be proved by the oath of one of the witnesses. The oath must be given before a circuit judge, clerk of court, or a commissioner specially appointed by the court for that purpose. (Under certain circumstances, the court may permit the will to be proved by other means permitted by law.) A will can be made self-proving either at the time of its execution or later, which saves the time and expense of locating a witness and obtaining his or her oath after your death. For your will to be made self-proving, you must acknowledge the will before an officer authorized to administer oaths; the witnesses must make affidavits before the officer; and the officer must evidence the acknowledgment and affidavits by a certificate attached to or following the will. An appropriate form of certificate is prescribed by Florida law. The self-proving procedure is in addition to the normal execution and witnessing of the will, not in place of it.
*This information is from the Florida Bar Association's website.
As Personal Representative, How do I begin the administration of an estate?
The administration of a decedent's (person who has died) estate begins with the filing of a Petition for Administration by an interested person, normally the personal representative named in the decedent's Last Will and Testament (may be called Executor in other states). The Petition for Administration must be verified, that is, be signed in the presence of a notary, and should contain the allegations required by the Probate Rules of Procedure. The Will must accompany the Petition unless it has already been filed with the probate court. The personal representative is a fiduciary, that is, acting for the benefit of the decedent, and is sometimes generally described as a trustee. The Order Appointing the Personal Representative requires that the personal representative make and file an Oath to faithfully administer the estate.
In order for the personal representative to exercise legal authority, it is then necessary that Letters of Administration be issued by the probate judge. Within sixty (60) days after the issuance of the Letters of Administration, the personal representative is required to file an Inventory of the property of the estate, listing it with reasonable detail and including for each listed item its estimated fair market value on the date of the decedent's death. The personal representative is required to serve a copy of the Inventory on the Department of Revenue, the surviving spouse, each residuary beneficiary in a testate (an estate that has a Will) estate, and any other interested person who may request it, and the personal representative is required to file proof of such service. The Inventory must be verified (sworn to and signed in the presence of a notary) by the personal representative.