Law Offices Of Andrew Merlo, P.A.


(561) 893-9993

Law Offices Of Andrew Merlo, P.A.

Family Law FAQs

When awarding alimony, the first issue a judge must consider is: Does the person requesting financial support NEED the alimony? Assuming the person requesting alimony can convince the judge they truly NEED financial assistance from the other party, then the next issue the judge must decide is: How much ABILITY TO PAY does that person have to pay the other person alimony? If the person requesting alimony has sufficient independent income to meet their needs, then there will not be a need for alimony. So, you will decrease your chance of being awarded alimony if you do anything to decrease your need. For example, if you never worked during the entire marriage and then you get a job while the divorce is going on, theoretically your need will be reduced. In general, one side’s bad behavior will not affect entitlement to alimony. As a no-fault state, adultery is only relevant in Florida if there is waste of marital assets on the paramour. If you and I are married and I buy my girlfriend a diamond Tiara with our retirement savings, I’ve wasted our retirement savings on my paramour, and you, as my wife, would have the right to say, “That’s waste, I want my half back.” It’s a possibility, but it’s very rare. I don’t want to turn anyone away by saying it’s not worth it, but I would rather talk on an individual level about it. Claiming marital waste is a battle and it’s tough to prevail, but I have been successful in claiming it. As far as equitable distribution and marital waste, adultery may be relevant. As far as alimony goes, it doesn’t matter; the judge will not want to get into the he-said-she-said discussion because it doesn’t matter when evaluating need and ability.
If it’s permanent alimony, it could last until the person receiving or paying it passes away, or until the person who is receiving it remarries. If a settlement agreement was reached through mediation that included a stipulation of it being non-modifiable, then the payments might continue regardless of whether or not the receiving spouse remarries or one of the spouses passes away. Alimony is generally modifiable, while child support is generally non-modifiable. As more and more families become two-income households, courts are moving away from awarding permanent alimony. Florida happens to have some favorable alimony statutes in it. At the moment, there is a seven/17 rule, which means that a short-term marriage is one that lasted less than seven years, and a long-term marriage is one that lasted more than 17 years. A marriage that lasted between seven and 17 years is considered an intermediate marriage. For a long-term marriage, the judge is supposed to presume entitlement to alimony. For a short-term marriage, permanent alimony typically won’t be awarded. There might be bridge-the-gap alimony, temporary alimony, or a lump sum of money awarded for a short-term marriage, but very rarely will permanent alimony be awarded. For an intermediate marriage, it could go either way; if the marriage lasted closer to 17 years than seven years, the judge might be more inclined to award permanent alimony, and if it lasted closer to seven years than 17 years, then the judge might be less inclined to award permanent alimony. Depending on the ages of parties, their earning history, their education and their assets, they may have an independent income after the divorce. So, there are a lot of factors that come into play and there is no hard and fast rule as there is with child support. A good rule of thumb is that alimony will last for approximately half of the duration of the marriage. So, for a 10-year marriage, alimony may be awarded for five years. It might start out at a higher amount and decrease each month or each year. Ultimately, these decisions are made on a case-by-case basis.
In Florida, alimony is based on several factors, including one side’s need for alimony versus the other side’s ability to pay it. There are multiple types of alimony. When the divorce is pending, there is what’s called temporary alimony, which just maintains the status quo. For example, if one party has been paying the mortgage and car payment and the other has been paying the utility bills, then that arrangement could be maintained on a temporary basis during the divorce process. Likewise, one party might also directly pay his spouse a certain amount of alimony on a temporary basis. Once the divorce is finalized, lifetime or durational alimony may be awarded, which would mean that one spouse would receive a certain amount of money every month for as long as the paying spouse is alive or until the receiving spouse remarries. There’s also bridge-the-gap alimony, which helps someone transition from being supported in a relationship to being on their own. Rehabilitative alimony has a purpose associated with it, such as the purpose of getting a nursing degree in order to be self-sufficient. When making the decision about alimony, the court will consider the incomes of each party, the lifestyle that the parties have become accustomed to during the marriage, and other things of that nature. People often get divorced while only one spouse is working outside the home and the other is raising the kids. If the parties have enough money to maintain that arrangement, it might be in the best interest of the children to keep the arrangement in place after the divorce. In Florida, there’s no formula for determining the amount of alimony; it is determined on a case-by-case basis. Child support, however, is based on a mathematical formula that takes into account the parents’ income and schedules.
Mediation is a way of trying to resolve disagreements by compromise and negotiating. A case starts when someone files for divorce, and it will end in one of two ways: by the parties making their own settlement, or by going to trial and letting the judge decide all issues. People are either going to decide what happens to their assets, income and children, or the judge will make the decision for them. In Palm Beach County, a trial date will not be granted until the parties have attempted mediation. With that said, you are entitled to a trial. However, mediation could end up saving you a lot of money, time and stress. In addition, anything that occurs during mediation remains confidential unless an agreement is reached. So, there is very little downside to attempting mediation.
An uncontested divorce case will take at least 20 days to get resolved. Other cases can take years to get resolved. The average divorce takes six months or so to get resolved. It comes down to getting the paperwork filed, exchanging financial information, attempting mediation, and if necessary, requesting a trial date. If the judge has a busy schedule, then you may not be able to get a trial date for several months. If things move quickly and everyone is doing what they are supposed to do, no one is asking for extensions, and no one is dragging their feet, then there is no reason that a divorce cannot be resolved within six months. If people start asking for extra time for one reason or another and not doing what they’re supposed to do, then a case can drag on for years. I’ve dealt with a nine-month marriage taking three years to get resolved. You have to pick your battles and decide what you want to fight for. You have to do a cost-benefit analysis in terms of money, stress and time. There are a lot of factors that come into play as far as how long the divorce can take, but six months is the average length of time.
To prepare for an impending divorce, you should photocopy every document you can get your hands on. Compile a complete set of financial records, tax returns from the previous several years, bank statements, credit card statements, titles, deeds, insurance policies, appraisals, photographs, and anything else that you don’t want to disappear. A lot of times, the parties separate and one spouse will take all the financial records with them. Under those circumstances, we are at a tremendous disadvantage to recreate what we can remember or what we can determine exists. If you recognize that there is a real risk of divorce your future, then you should definitely make a duplicate set of records and keep them in a safe place.
The divorce process starts when someone files a Petition for Dissolution of Marriage. The Petition will include information regarding your demands for custody, time-sharing, child support, alimony and the equitable distribution of assets. Once served with the papers, the other side might file a counter-petition saying that they also want a divorce, as well as custody, visitation and child support. Next, there must be an exchange of financial information, such as bank statements, credit card statements, investment statements, records pertaining to properties or automobiles that you own, assets, liabilities, insurances and other things of that nature. If you are asking a judge to divide the marital property, then the judge needs to have a complete picture of what makes up the marital estate. If there are issues that need to be addressed while the divorce is pending, then we can ask the judge for “temporary” relief. Once financial records are exchanged, you would expect informal settlement negotiations to begin between the lawyers. Alternatively, formal negotiations might occur through a third-party mediator. If we can resolve the case at mediation, then that’s terrific; if we cannot, then we will tell the judge and request a trial date. The discovery phase involves the exchange of financial records and lasts until just before the trial begins. It involves demanding records, issuing subpoenas and taking depositions of witnesses who may testify. We conduct investigations, carrying out due diligence and get a clear picture of the entire marital estate and the parties involved. We would then get our trial date and work towards preparing for trial. The parties or the judge may decide that we could benefit from mediation. If we settle at mediation, a written agreement would be drawn up. In divorce cases, a settlement agreement must be in writing to be enforceable. That written agreement is signed by everyone and presented to the judge. Assuming the judge finds it acceptable, you will be granted a final judgment for dissolution of marriage. The judge would probably be very happy that you were able to resolve it without the necessity of a trial. Mediation is typically better for both the parents and children, and is typically more cost-effective than litigation. However, if the other side will not agree to anything that is fair at mediation, then there may not be anything to lose by going to trial.
It is very common for divorced people to return to court. Over time you or your ex-spouse’s income can substantially change, which can dramatically affect child support and alimony. Timesharing schedules often must be adjusted to accommodate changing work schedules or school commitments. After a divorce is finalized and the Final Judgment is signed, there are only two things you can do: enforce the existing court ruling or modify the current ruling. Enforcing the existing Final Judgment means asking for something that was already agreed or ordered by the judge, but your ex-spouse is not obeying. Modifying a Final Judgment means asking to change something that has already been agreed or ruled upon. In Florida, there is no grace-period or limitation on modifying child support, meaning that you could get a divorce and a child support order established today. If you win the lottery tomorrow, then your spouse would be entitled to go back to court and seek modification of the existing court order. To get the modification, the legal standard is a substantial, involuntary, permanent and unanticipated change in circumstances. Receiving a significant raise or losing a job altogether would meet the legal standard for modification. Modification is typically in regards to post final judgment rulings and is very common with alimony or financial awards for child support. Sometimes a time-sharing schedule or visitation schedule needs to be modified based on the change of the children’s schedules or the parties’ obligations.
Some states require couples to be separated for months and months after filing for a divorce before granting the Final Judgment. Not Florida. Florida does not require you to wait or be separated for any period. There is only a 20-day waiting period from the day you’re served with the petition for dissolution. So, it’s like the due process requirements for the summons. By statute, the judge is not supposed to grant the final dissolution until after the 20 days expire.
Florida is considered a no-fault state, which means you do not need to have any specific reasons for seeking a divorce (such as adultery, abandonment or abuse). A person must simply testify that the marriage is “irretrievably broken”. Those are the words that the judge needs to hear. Bad behavior may be relevant if there’s a waste of marital assets. Otherwise, your judge probably doesn’t want to know the reasons you’re getting a divorce.
Andrew Merlo, Esq.

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