Family Law

Q:What is the difference between a dissolution of marriage and a divorce?
A: There is no difference. In Florida, a divorce is called a dissolution of marriage.

Q: What are the requirements for getting a divorce in Florida?

A: In order to file for divorce in Florida, you must have been a continuous resident of Florida for at least six months prior to filing and you must state in your Petition for Dissolution of Marriage that your marriage is irretrievably broken.

Q: How do attorneys fees and costs work in a divorce and how much will a divorce cost me?

A: Most attorneys will request that you pay an initial retainer which is an upfront payment that the attorney will bill against on an hourly basis through the conclusion of your case. Different attorneys charge different hourly rates based upon factors such as the geographic area they practice in and the number of years hey have been practicing. Your attorney will likely also request that you pay a cost retainer to cover out of pocket costs such as postage, copies, filing fees, process server and court reporter fees, etc. If your initial fee or cost retainer is expended before the conclusion of your case, your attorney may request an additional retainer. You will likely receive a final invoice after the conclusion of your case which will detail the services performed by your attorney as well as the total time spent on your case and will show any fee balance due after application of any retainers.

Although you will need to pay your attorney for their services up front, you may be entitled to have the other party reimburse you for attorneys fees and costs at the conclusion of the case if the other party makes substantially more money than you. This may be determined by agreement at mediation or by the court.

Q: How does the Court decide who will get “custody” of the children in a divorce?

A: In most Florida cases, the court will award “shared parental responsibility” of the children to both parents. This means that parents will both retain full custody rights and be equally involved in major decisions for the children, such as healthcare, education and religious upbringing. In some cases, the court may decide, or the parties may agree, that one parent will have superior decision making authority in one or more of these areas. In rare cases, the court may award “sole parental responsibility” for the children to one parent if the court finds that the other parent lacks the ability to exercise shared parental responsibility. In all family law cases involving children, the court will establish a Parenting Plan, which will include a timesharing schedule and set forth the terms of each parents’ rights and responsibilities regarding the children.

Q: How do assets and debts get split up in a divorce?

A: Property division in Florida is called “equitable distribution.” Property and debts obtained and accrued during the marriage are considered marital in nature and are normally divided equally. However, in some cases the court may determine that an unequal distribution is equitable based upon the particular circumstances in that case.

Q: How does the court decide who will pay child support and how much will be paid?

A: Child support is paid to the parent who has more timesharing with the children by the parent who has less timesharing. In the event that the parents exercise equal timesharing with the children, the parent with the higher income will pay child support to the other parent. The amount of child support that will be paid is determined by the Florida Child Support Guidelines which takes into consideration various factors including the respective incomes of the parents, healthcare and daycare costs, and the amount of timesharing each parent exercises with the children.

Q: What is mediation?

A: Mediation is a process in which a neutral third party (Florida Supreme Court Certified Family Law Mediator) will assist the parties (and their attorneys if they are represented) to reach a mutually agreeable settlement of the issues in their case in a confidential and informal setting. Any issues resolved in mediation do not need to be litigated before the court. The mediator is not a judge and has no power to order the parties to do anything. The process is entirely voluntarily although most courts in Florida require that the parties at least participate in the mediation process prior to bringing contested issues before the court for resolution.

Q: What is collaborative practice and is it better than having my case proceed in an adversarial manner?

A: Collaborative law is an alternative to litigation which allows the parties to resolve their differences in a respectful and non-adversarial manner. While the parties may elect to proceed collaboratively either before or after a case has been filed with the court, the parties agree not to seek court intervention during the collaborative process. The collaborative “team” is normally comprised of the attorneys for each of the parties, as well as a financial expert, and a mental health professional. On occasion, other professionals may be added to the team depending upon the needs of the parties and the issues involved in their case. All team professionals, including the lawyers, have been specially trained in the collaborative process. The team works collaboratively and creatively to determine a mutually agreeable resolution of all issues while focusing on the best interests of the parties and their children. The collaborative process may be used in divorces and other family law matters and is designed to reduce the stress and cost normally involved in an adversarial proceeding.

Q: I am not married to the other parent of my child. How can I get a court order for child support or visitation?

A: Either parent may file a Petition to Establish Paternity with the court. Once the Father’s parentage has been legally established, the court will also enter an order which establishes timesharing and child support. The fact that the father’s name appears on the child’s birth certificate is not sufficient to legally establish paternity in Florida.

Criminal Law

Q: I’ve been arrested. What happens now?

A: Your case will be set for an “arraignment.” This is a court hearing where the court will advise you of the charges against you and ask whether you wish to plead guilty or not guilty. Normally, you will not be required to attend your arraignment if you have hired an attorney prior to the arraignment date. Your attorney will file a Notice of Appearance and Written Plea of Not Guilty on your behalf. Your case will then be set off for a “Pretrial Conference” (status hearing) at a later date. This will give your attorney an opportunity to review discovery provided by the prosecutor, do research, take depositions, file motions, and any other steps necessary to prepare your case for trial and for plea negotiations with the prosecutor. Your case may take several months or longer to resolve.

Q: I’ve been charged with a crime. Will I go to jail?

A: Not necessarily. You may be sentenced to probation or home confinement as an alternative. For first degree misdemeanor crimes, you may receive up to one year in jail and for second degree misdemeanor crimes, you may receive up to 60 days in jail. For felonies, you may receive jail or a prison sentence. The maximum prison sentence you may receive is determined by the degree of felony you have been charged with and your prior criminal record if any. For both felony and misdemeanor crimes, there is a good chance that you will not receive a jail or prison sentence if you have no prior record and you have not been charged with a violent offense. It all depends on your charge, your record and the facts of your case.

Q: This is the first time I’ve ever been in trouble with the law. Is there any way to keep this from getting on my record?

A: Yes, it is possible. Those charged with certain types of crimes, who have no prior criminal record may be eligible for a program called “Pretrial Diversion” or “Pretrial Intervention.” These are programs where you participate in a form of “probation” in which you might be required to complete conditions such as classes or community service. If you successfully complete the program, the charge is dismissed and removed from the court’s docket.

Q: What other types of conditions can be included in my sentence?

A: In all criminal cases, the court has the option of imposing various types of punishment which may include a jail sentence, probation, home confinement, fines, community service, restitution, or a combination of these things. In most cases, a sentence will be negotiated with the prosecutor handling your case prior to final resolution. If you elect to go to trial, and are convicted, the judge will determine what your sentence will be.

Q: How long will a criminal charge be on my record and will other people know about it?

A: In Florida, charges may appear on your record permanently. If your case is dismissed or you are found not guilty at trial, you may be eligible to have your record “expunged,” which means that your court and arrest record disappear and are no longer available to the general public. If you enter a plea of guilty or no contest to your charge and the court “withholds adjudication,” you may be eligible to have your court record “sealed.” This means that your court record is exempt from public viewing, however, your arrest record is still public record. If your court record is sealed, 10 years after the sealing you may apply for your arrest record to be expunged.

Q: I’ve been arrested for DUI. Will I lose my driver’s license and if so, for how long?

A: If you take the breath test and your breath test result over the legal limit, or refuse to take the breath test, you will receive an administrative suspension of your license that will go into effect shortly after your arrest unless you request an administrative hearing. If you timely request an administrative hearing, you would receive a temporary restricted driving permit pending the resolution of the administrative proceeding. If you win the administrative hearing, your administrative license suspension will be set aside. If you lose the hearing, your license will be suspended but after a period of time (“hard suspension”), you would be eligible for a business purposes license so long as you have enrolled in the DUI school. The hard suspension for a breath test result over the legal limit is 30 days. The hard suspension for a refusal to take the breath test is 90 days. You are not be eligible for any kind of license during a hard suspension.

If you are convicted of DUI, your license will be suspended upon conviction for a minimum of 6 months. Upon enrollment in the DUI school, you would be eligible for a business purposes only license during the suspension period.