Valentine’s Day has come and gone and sometimes you just can’t rescue your romance any longer.
It’s not an easy topic to discuss but it is an important one.
8 On Your Side is getting your questions answered by Tampa divorce attorney Todd Marks, founder of Westchase Law.
If you think it’s time to call it quits, there are 8 things you should know before you break it off.
1. QUESTION: How much is this going to cost me?
ANSWER: Even if you file a Petition for Dissolution of Marriage on your own, you will have to pay the clerk a filing fee of $408.00. You will also pay a fee which typically costs $40.00 to serve a Summons along with the Petition on your spouse. Your spouse can sign a waiver so that service is not required. This can often times save the embarrassment of being served publicly. Here is a link in Hillsborough County for common forms needed in a divorce proceeding.
2. QUESTION: Will I have to go to court?
ANSWER: In the event of an agreeable divorce, at least one or the other spouse must attend court at a final hearing to approve the Marital Settlement Agreement, establish timesharing and child support if applicable. If it is an acrimonious divorce, then both parties will initially attend a Case Management Conference to schedule significant events in your case that will require attendance by both parties (including trial if necessary).
3. QUESTION: Can I keep the house?
ANSWER: Who gets to keep the marital residence is an often-litigated issue the determination of which is set forth in the equitable distribution of assets and liabilities. The court can order temporary exclusive use of the marital residence during the pendency of a divorce case as well as make a final determination at trial. Factors that are considered include which spouse is on the Note and remains obligated to pay going forward, whether the spouse receiving the marital residence has the ability to pay for it after the divorce which involves an analysis of the overall financial picture of the parties. If minor children are involved the court can consider what is in the best interest of the children given their age and circumstance in life.
4. QUESTION: How does custody work?
ANSWER: The best interests of the child is paramount in the establishment of a timesharing schedule. Florida law recognizes that children have a right to a strong and meaningful relationship with BOTH parents and there is no presumption in favor of mom over dad or vice versa. Each timesharing plan should set forth the time that each minor child spends with each parent, who is responsible for health care, school-related matters, technologies as to how they will communicate with each parent. To modify a timesharing plan requires a showing of a substantial, material, and unanticipated change of circumstances.
5. QUESTION: Does an affair affect the outcome?
ANSWER: If your spouse spends funds on a paramour, those are recoverable to you when you go to court on top of and in addition to the regular distribution of assets. The court has the authority to look back two years prior to filing to determine if the other spouse intentionally dissipated assets. There are 10 factors the court considers when determining alimony. The most important consideration is the need and ability to pay. If there is one without the other, an award will likely not be made or a nominal award could be granted. However, a recent change in Florida law allows the court to consider adultery as one of the factors in determining an alimony award. It can help your case if you are the one seeking alimony or It can help you defend against an adulterous spouse’s claim for alimony.
6. QUESTION: How is the support calculated?
ANSWER: Child support is calculated based upon a formula based on timesharing, net income (after allowable deductions), cost of daycare and cost of health insurance. (See Child Support Guidelines Worksheet)
7. QUESTION: What happens to pension plans?
ANSWER: Marital assets and liabilities are distributed equally between spouses. Pension plans are no different and are subject to the equitable distribution determination in your divorce case. If there are other assets or liabilities that could be distributed to offset a pension then it is not necessarily the case that a pension be liquidated to provide an equal split between the parties.
8. QUESTION: If we share accounts, is the money “frozen”?
ANSWER: No, your accounts will not be frozen by the court but it’s recommended to open your own individual account. A cunning spouse could drain the account of an unwitting spouse to create financial leverage in a case until such time as a hearing can be heard for temporary support, relief, and attorneys’ fees. Ultimately, even if a spouse drains an account the court will cause the overall assets and liabilities to be accounted for in a final determination of equitable distribution and in any determination as to attorneys’ fees and costs being assessed to one spouse or the other.