Uncontested Divorce: Is it Possible? Is it Right for You?

Not all divorces play out like your typical daytime soap opera. Most often a divorce will follow the traditional process with one party filing a Petition for Dissolution, and the other filing an Answer and Defenses, and sometimes a Counter-Petition. Frequently spouses will reach an agreement to resolve all issues at mediation, or somewhere along the way prior to trial. Sometimes, spouses can agree on all issues from the start of the process, this is called an uncontested divorce.

An uncontested divorce requires that both spouses agree to cooperate with each other and reach an agreement on each and every issue in the divorce. If any issues are not agreed upon then the divorce becomes contested. The spouses must reach an agreement on all applicable issues, including:

• Child custody: If there are children of the marriage, the spouses must agree to the division of parental responsibility and timesharing and must enter into an appropriate parenting plan.

• Child support: Where children of the marriage are involved, the spouses must have agreed an an appropriate amount of child support, (or if no child support is appropriate, they must agree that neither one will pay child support to the other).

• Spousal support: Both spouses must agree on whether or not spousal support/alimony will be paid, or whether spousal support/alimony is waived.

• Assets and Debts: Both spouses must agree on the division of all marital assets and debts.

There are numerous benefits to an uncontested divorce, the major benefits being speed, cost, and privacy. With an uncontested divorce all issues have been decided upon prior to filing, so the process from filing to final judgment is significantly shorter. The cost of an uncontested divorce as far less than with a contested divorce as there is less work involved for the lawyers and the court. In addition, an uncontested divorce requires less documents to be publicly filed, so the spouses have the advantage of increased privacy.

In some instances an uncontested divorce may not be the best option. Spouses should not enter into an uncontested divorce where there is a power imbalance or manipulation at play. In some cases one spouse may be at a disadvantage by entering into an uncontested divorce if they do not understand the terms as well as the other spouse and agree to terms that are unfair. The potential for one spouse to be manipulated is increased in an uncontested divorce, particularly if the spouses choose to be self-represented and do not consult with an attorney to make sure they understand their rights in the process.

If you are thinking about an uncontested divorce, contact Cody Law to discuss the process from start to finish and discuss your options and rights under Florida Law.

Holla “We Want Prenup, We Want Prenup”: Florida Prenuptial and Postnuptial Agreements

A Premarital agreement, known as a prenuptial agreement or “Prenup” is a contract couples sign prior to marriage, to become effective upon marriage to each other. The Prenup can determine what will happen if the couple divorces, including provisions for distribution of assets, debts, alimony, and other issues. A well executed prenup will set forth the terms of the divorce, rather than leaving those terms in the hands of the judge to decide.

A postnuptial agreement “Postnup” is essentially a different means to the same end. The difference is that a postnuptial agreement is executed sometime after the parties have married and there must be separate consideration to make the agreement binding.

Some of the benefits of prenups and postnups are avoiding costly litigation and stress if the marriage ends in divorce. Issues that cannot be decided in a prenup are child custody (in Florida this is known as parental responsibility and timesharing) and child support. These are considered rights of the children in Florida and cannot be waived.

Florida has adopted the Uniform Premarital Agreement Act, which expressly provides that parties may reach a binding contract on issues including:

• the parties’ rights and obligations concerning any assets and debts;

• the right to buy, sell, use, transfer, or dispose of property;

• Distribution of property in the event of separation, divorce or death;

• the right to alimony;

• the making of wills or trusts;

• disposition of proceeds from life insurance;

• Choice of law governing the premarital agreement.

To be valid, the prenuptial or postnuptial agreement must be entered voluntarily, without coercion or duress and must not be unconscionable. There there must have been a fair and adequate financial disclosure beforehand. When entering a prenup or postnup, each party must be separately represented.

If you are contemplating marriage, or already married, and believe you could benefit from a prenuptial or postnuptial agreement, contact our office to discuss the process.

Reasons why Equal Timesharing May be Denied in Court

After recent changes in Florida family law. Florida courts now begin with a rebuttable presumption that equal timesharing with each parent is in the best interests of the child. Either party can offer evidence to show why equal timesharing is not in the child’s best interest. The Court has a long list of “Best Interest Factors” it considers in making this determination. Four of the biggest reasons that a court may rule equal timesharing is not in the child’s best interest are:

• Substance abuse and alcohol abuse

  Abuse of alcohol or drugs by a parent is one of the reasons equal timesharing may be denied. Alcohol or substance abuse puts the child in danger and can significantly impact the parent’s ability to meet the child’s needs.

• Emotional or physical abuse or neglect

  Parents who abuse or neglect their child are considered unfit. Child abuse can be physical, emotional or sexual. Child neglect occurs when a parent fails to meet the needs of the child. This can include not providing proper hygiene, living environment, food, clothing, education or medical care.

• Parental alienation

  Parental alienation occurs when one parent engages in behavior to sabotage the relationship between the child and the other parent. This can be done through actions such as disparaging the other parent in front of the child, emotionally manipulating the child to take sides, or preventing the other parent from having contact with the child without justification. If parental alienation is shown to be serious enough, the alienating parent could lose custody of the child.

• Serious mental illness

  In certain instances, if mental illness is severe enough to affect one parent’s ability to properly care for the child it could result in a loss of custody. There is no set list of mental illnesses that affect custody but the court will consider the parent’s ability to meet the child’s needs.

This is not an all inclusive list and you should consult with an attorney who will consider your specific circumstances and discuss whether parental responsibility and timesharing may be allocated unequally in your case.

Step-Parent Adoption in Florida

Step-parent adoption allows a person to obtain full parental rights over their step-child. Step-parent adoption is best suited in a situation where the step-parent is already acting as the parent of the child being adopted and wishes to legalize the parental relationship already in place. The stepparent adoption just makes it official and legally valid and solidifies the relationship between the child and the adopting parent.

A step-parent adoption is available when one biological parent of the child and their spouse (the step-parent) want the step-parent to adopt the child, and the other biological parent of the child consents to the adoption. The adopting step-parent initiates the proceeding by filing a joint Petition, along with their spouse (the biological mother or father of the child). The adoption terminates the parental rights of the other biological parent.

The requirements for a Stepparent to adopt a Stepchild in Florida are:

• The stepparent and the stepparent's spouse first file a Joint Petition for Adoption.

• The other biological parent must either consent to the petition, or the petition must state the reason why the biological parent's consent is not required.

• The stepparent must be able to financially and morally support the stepchild.

• After filing the Petition the court will conduct a final hearing and enter a final judgment

• An amended birth certificate can be obtained for the child, listing the new mother and father.

  After entry of the final adoption judgment the birth certificate is amended to reflect that the stepparent and natural parent are the parents of the child. The result is as though the child was born to the natural parent and the stepparent. The birth certificate is amended to show the names of the natural parent and stepparent.

Benefits of Step-Parent Adoption include:

• Stability for the child.

• Estate planning purposes- once the step-parent adoption is completed the child can inherit from the step-parent's estate.

• So that family members can legally share the same last name

• legal protection for the child

• to build an emotional bond between stepparent and child.

At Cody Law, Step-Parent adoptions are one of our favorite and most fulfilling areas of practice. Contact our office to discuss with us further and see if a step-parent adoption may be available to you and your spouse.

Should I Move Out of the Marital Home?

During a Florida divorce many people are faced with the conundrum of whether to stay in the marital home. While there is clear-cut answer to this question there are several factors that should be considered in reaching a decision:

Safety

The first consideration should always be any personal safety risks involved in continuing to cohabitate in the family home. If the environment is unsafe it is important to get out of the situation and find other accommodations immediately.

Are There Minor Children Involved?

If there are minor children of the marriage, it may not be ideal to move out of the family home until the court enters a temporary or permanent parenting plan, outlining how each parent will split time with the children. If you need to move out prior to an official order on timesharing, you should at a minimum have an informal arrangement agreement in place with your spouse for each parent to maintain timesharing with the minor children. Moving out could potentially have an impact on the Judge’s decision on parental responsibility and timesharing, if your case makes it to trial. The Judge will consider the reasons for leaving the home and your continued contact or lack of contact with the children following the move.

Do You Intend to Keep the Marital Home?

If you plan to keep the marital home, moving out may not be in your best interest and the court could construe the move as abandonment.  If it’s likely you and your spouse will fight over who should be awarded the home, staying under one roof may be helpful in maintaining a strong claim to the property.

Short Term Expenses

Staying under one roof has it’s advantages.  While it could be uncomfortable to live together during the divorce, it will keep your short term costs lower.  unless you have friends or family who are willing to let you stay with them at no cost, you will most likely need to pay rent, utilities and other living expenses on a new living space, in addition to costs on your marital home. Consider your resources and whether moving out during the divorce is feasible.

Access to Personal Items in the Home

Moving out of the marital home will limit your access to and control of items of personal property within the home. If you leave the home you should make a list of items of personal property and photograph/video items in the home to help with division of marital assets.

Ultimately, there are many factors that should be taken into consideration when making the decision of whether or not to remain in the marital home. Cody Law can help guide you in making this difficult decision. Call or e-mail us for a consultation.