Napier & Rollin’s attorneys focus primarily on representing both men and women in all types of divorce cases. Our divorce attorneys have the skill and wisdom to navigate the most complicated and unusual issues which may arise within the context of a dissolution of marriage proceeding.
Like all family law proceedings, divorce cases are governed by distinct procedural rules and attorneys are expected to obey additional guidelines of professional conduct called the “Bounds of Advocacy.” The very first guideline of the Bounds of Advocacy is that an “attorney should strive to lower the emotional level of family disputes by treating counsel and the parties with respect.” Napier & Rollin believes that this approach is also more likely to lead to a favorable outcome for its client. However, operating with professionalism and curtesy to others does not mean ignoring misconduct or giving up valuable rights without getting fair value in return. Napier & Rollin is always capable and willing to enforce its clients’ rights by aggressively pursuing the truth and a just outcome though necessary litigation.
Grounds for Divorce
Florida is a no-fault divorce state. The only basis you need for a divorce is that your marriage is irretrievably broken. As long as one of the parties has been a resident of the State of Florida for more than six months prior to the date the petition is filed, the Court has jurisdiction to dissolve the marriage. Except in rare circumstances where one party has never been a resident of the State of Florida, the Court also generally has the ability to divide assets, apportion liabilities, and award spousal support or alimony where appropriate.
Florida law presumes that an equal division of all of the assets and liabilities acquired during the marriage, with a few exceptions such as inheritance assets, should be divided equally between the parties. Where an equal division would be unfair for any number of reasons, a case can be made to divide all or certain assets unequally. It is important to accurately identify and value all assets and liabilities in order to ensure that both parties receive fair value.
If the parties to a divorce have children in common, the Court may establish a “parenting plan” that sets forth all of the parties’ rights to make major decisions, where the children will live, and which parent must pay child support. Florida does not choose the “primary parent” any more. Instead, absent special circumstances both parents are awarded “shared parental responsibility” and both parents are expected to share in the joys and burdens of parenting to the best of their ability and without any favoritism to the mother or father. In practice, both parties should be prepared to balance their equal rights as parents with the practical realities which impact their children and their ability to contribute to parenting tasks.
Parental Child Abduction
Parental child abduction is one of the most heartbreaking things for parents and family law attorneys to confront. There are preventative and remedial measures available under both State and Federal law to address parental child abduction. The Parental Kidnapping and Protection Act (PKPA) was adopted by the United States and is often applicable in Florida’s State Courts. Under Florida law, the Court can sometimes require that a parent surrender a passport or post a bond before taking a child out of the country. When a child is wrongfully withheld or abducted in the State of Florida, it may be possible to obtain a “child pick-up order” which directs law enforcement to pick-up a child and place that child with its rightful parent or guardian. This can sometimes be done without first notifying the person wrongfully withholding the child.
If one party cannot afford an attorney but the other party is able to afford an attorney, then the Court may order the wealthier party to pay all or a portion of the other party’s attorney’s fees. Sometimes this is done only at the end of a case so a party seeking a fee award may need to cover all or a portion of his or her own legal expenses up-front.
Alimony is still awarded by Florida Courts where appropriate. In many marriages a spouse may need alimony for a short period of time in order to cover specific expenses and transition from married to single life. In long-term marriages where one spouse was the primary income earner and the other spouse contributed to the marriage in other ways, and where no other form of alimony is appropriate, the Court may award permanent periodic alimony. Cases which fall between short-term and long-term marriages, or so called “moderate-term” marriages, may qualify for durational alimony which is a stream of periodic payments for some finite amount of time designed to provide economic assistance to the party exiting the marriage with fewer financial resources.
The modern trend is for both parties to be required to work and use his or her best efforts to earn income even if that party did not work during a part of the marriage. If either party refuses to use his or her best efforts to earn income then the Court may “impute” income to that person and treat him or her as if income was being earned. This same rule applies to the high-income earning spouse who suddenly decides to voluntarily stop earning so much income once a divorce is imminent.
If the parties entered into a prenuptial or postnuptial agreement prior to filing for divorce then the agreement may control a number of issues but public policy may override terms of an agreement when it comes to necessary spousal support and awards of attorneys’ fees to keep a fair playing field. Agreements may be challenged and poorly written agreements may operate in previously unexpected ways. If you have such an agreement you should work closely with an attorney to make sure that you enforce your rights.
Full and candid financial disclosure is generally required in all cases. In fact, Florida requires certain documents and information, including a financial affidavit, to be provided to the other party within the first 45 days of any divorce case. These mandatory disclosures include things like the last 3 months of checking account statements, 12 months of other financial account statements, 3 months of pay stubs or income statements, and 3 years of tax returns.
Most cases end with a settlement between the parties. More options are available in settlement than from litigation. Creative solutions can often be a win-win that preserve assets, lower emotions tensions, benefit children, and expedite both parties being able to move on with their lives. It’s best to negotiate from a position of strength where possible and to always be prepared to go to court when necessary. The best way to achieve a favorable settlement is to prepare for trial. The process flushes out the issues, help both parties properly evaluate the risks, and places the client in the best position to achieve a favorable outcome.
Napier & Rollin has cultivated relationships with an array of other professionals which may be called on from time to time to accomplish specific objectives. If one spouse might be suffering from an undiagnosed mental illness then a forensic psychologist may be called upon to perform psychological testing in order make recommendations for a parenting plan. Where complex assets or financial misconduct are issues, a forensic accountant may be needed. Other types of experts may include appraisers, realtors, vocational evaluators, or even other attorneys.
If you are in need of legal assistance for a divorce, please contact Napier & Rollin to schedule a consultation.