Florida Divorce: Answers & Counter-Petitions

Answering the divorce petition is an important step in your DIY divorce. The purpose of the Answer document is to admit or deny what has been said in the petition. For each paragraph, your answer needs to indicate whether you "admit" or "deny" what is contained in that paragraph.

If you want to file a counter-petition, you must do it at the same time you file the Answer. A counter-petition is the Respondent's request that the divorce be granted and that the court order certain relief.

Why file a counter-petition? If you want the court to order specific things not requested in your spouse's petition, you may want to file a counter-petition. In a previous post we talked about the situations in which you need to make specific allegations in a divorce petition. If any of those situations apply to your case, you may want to file a counter-petition. If you definitely want the divorce and are worried that the petitioning spouse may not complete the divorce, you should file a counter-petition so that you can complete your divorce petition.

Kids & the Importance of Calendars

When involved in a contested custody case, you should keep a calendar of all significant events. Take the time to make a note of things like how often the other parent has the kids, when support payments are made, when important discussions are had with your soon-to-be-ex.

Sometimes these calendar notes can help determine the proper amount of child support. Most of the model schedules in use in Florida provide for almost 40% of time with the non-custodial parent. Since the law allows an adjustment for significant timesharing, child support is often reduced. If the non-custodial parent does not actually exercise the time allotted in the schedule, child support may need to be adjusted. Before you can adjust child support, you will need to know the exact number of days actually used by the non-custodial parent. A calendar makes this calculation far easier than trying to reconstruct missed visits many months down the road.

Similarly, a calendar can help document late pick ups and drop offs, refusals to cooperate, chronic late payments and other inappropriate actions of the other parent. If you are having any dispute with your soon-to-be-ex, try using a calendar to keep track of events. You should also be aware that your calendar can be subpoenaed by the other side, so you may want to use a separate calendar for your divorce disputes.

Guardians Ad Litem

Guardians ad litem are sometimes appointed in contested custody cases. With all the news coverage of the Texas polygamists, guardians ad litem have been in the news alot of the past few weeks. Just what is a guardian ad litem?

GALs are appointed by the court to represent the best interest of the child. GALs are required in child abuse cases in Florida. Each judicial circuit has a GAL program that trains volunteers to serve in the program.

In divorces, a GAL is appointed when one of the parties requests it by filing a motion and the court enters an order of appointment. GALs in divorce cases are usually attorneys in Florida.

Judges typically give the GAL recommendations great weight. You need to think about whether a GAL appointment would be helpful in your case. You should also speak with the proposed GALs prior to appointment because you and your child will be working with the GAL throughout the case.

Florda Divorce: The Statistics

Florida divorce statistics continue to show about 90,000 divorce cases filed per year. For the first six months of 2007 (latest available numbers) there were just over 48,000 dissolution cases filed in Florida. This number is slightly lower than the same period in 2006.

The National Center for Health Statistics also follows marriage and divorce statistics. Their latest national numbers (2005) show that there were over 2.2 million marriages and a national divorce rate of 3.6 per 1,000 people - the lowest rate since 1970. Nevada had the highest divorce rate at 6.4.

The overall Florida divorce rate continues to fall from its high of 6.9 in 1990. Strangely, the highest divorce rates in Florida seem centered in Broward County. Pompano, Lauderhill, Hallandale, Hollywood, Davie, Ft. Lauderdale and Deerfield Beach all have divorce rates over 12%.

Florida Divorce Issues - What's First?

In a Florida divorce, judges consider the issues in a specific order. There are five possible major issues or areas in a divorce case. This is the order in which judges consider the issues:

Parenting Plan/Primary Residence, Parental Responsibility

Equitable Distribution/Property Division

Alimony/Spousal Support

Child Support

Everything Else/Name Change, Life Insurance, Court costs

If you are representing yourself in a Florida divorce, you should use the same PEACE order to analyze your case and later, to prepare the settlement agreement.

No Co-mingling Here

Non-marital assets and co-mingling can be a big headache when equitably distributing assets in divorce. Co-mingling is the term used when marital money or efforts are used on non-marital assets that belong only to one spouse.

Last week, the Fifth District Court of Appeal decided a case from Ocala that involved possible co-mingling. The wife had looked at 5 acres prior to the wedding, but the sale closed after the wedding.

During the divorce, the husband claimed that the land was marital because it was purchased during the marriage. The evidence showed that the down payment was made with money from the wife's mother. The payments were made with non-marital accounts of the wife and her mother and son. Later, the wife's mother sold her house and that money also went toward the 5 acres.

Even though the wife's pleadings failed to identify the land as non-marital, the judge found that the 5 acres were, in fact, non-marital. The lack of pleading did not matter to the court since the spouses argued the issue during the trial.

Take away two lessons from this case. First, if you have a non-marital asset be sure you do NOT use marital money to pay for it. Second, keep your pleadings accurate so you don't buy yourself an appeal in your Florida divorce case.

Basic Florida Divorce Law

You may have noticed that we've been posting here less in the past couple weeks. That's because we have been working on a new webpage for our tele-class launch.

The Basic Florida Divorce Law class will be available on a telephone bridge line. The class itself will be free, but you will have to pay for any toll charges (unless we find a fabulous provider that offers a toll free number at no cost on this end). With so many unlimited phone plans now, we don't think a toll call is a big price to pay for a 60 to 90 minute class.

So stay tuned right here at the DIY Divorce in Florida blog. We'll be announcing the date of the first class here in the next few weeks. Remember, we educate you so you can represent yourself in your Florida divorce.

Dismissal: What a Mess!

Notice of Dismissal is effective immediately. The First District Court of Appeal recently had to unravel the past several years of court actions and orders. Here's what happened:

The couple lived together, had a child and got married. The wife filed for divorce almost immediately. A year later, a Magistrate held a hearing and recommended a final judgment of divorce, custody, child support and equitable distribution. The wife filed a Notice of Voluntary Dismissal ten days after the Magistrate's recommendation. Apparently unaware of the dismissal, 20 days later the judge signed an order adopting the Magistrate's recommendations and both parties presumably got copies of a "final judgment."

Another year later, the husband filed to modify custody and visitation. There was a trial and the court denied the modification. The husband appealed. At that point, someone looked at the whole court file and realized that the judge did not have authority to enter any orders after the wife dismissed the case.

Granted, this case was unusual because the final hearing was held in front of a Magistrate. The case actually involves the issue of when a case is "submitted to the court for decision," as it relates to the ability to dismiss a case without a court order. Esoteric issue maybe, but I hope that none of you will allow a year to pass without a hearing in your Florida divorce case.