What Is An Uncontested Divorce?

An uncontested divorce is one where both parties agree that the marriage is over and they come to a fair division of their property and debts, work out a reasonable parenting plan for children, agree to child support under Florida's child support guidelines, and agree on alimony if it is applicable. The agreement can be arrived at by the parties together, or with the assistance of a mediator and/or an attorney.

If you decide to use an attorney to either help you arrive at or draft the agreement, or review an agreement that you and your spouse have developed, your attorney must be given a good overview of your situation. This office uses checklists to organize and gather the detailed information needed to properly prepare or review the Marital Settlement Agreement. Once it has been signed by both parties, the Marital Settlement Agreement is filed with the Court to become a part of the final judgment.

You cannot have an uncontested divorce unless both parties have reached an arrangement that is agreed to by both sides and that complies with Florida law regarding the division of property and the care and monetary support of children. Smith Family Law Center can help you gather the necessary information to develop a fair settlement in your divorce. Every marriage is different, so it is hard to predict how much time is needed to work with you on the settlement. However, many people need only a small amount of our time to develop and outline a fair settlement.

What Makes Up a Fair Settlement?

Of course, every case, like every marriage is different. But there are certain guidelines that can guide every case in settlement discussions. We find it helpful to employ the PEACE plan when working out an agreement. The PEACE plan, by the way, is also helpful when developing a plan for a divorce trial, but that is for a different discussion.

Parental responsibility is perhaps the most difficult aspect of any divorce settlement, although in most cases it can be the easiest. Florida law has evolved over time to a point where now the norm is shared parental responsibility and frequent and continuing contact with both parents. Society, however, has not necessarily caught up with these notions, as most people still think in terms of child “custody”, where one parent has “full” parental rights while the other has only “visitation” and must pay support. The new parenting law removed the terms “custody”, “primary residential responsibility”, “secondary residential responsibility”, and “visitation” from the law, replacing them with a “parenting plan” that includes a “timesharing” schedule.

A parenting plan that complies with the new law will identify how the parents will share the rights, responsibilities and joys of child rearing. With regard to parental responsibility, the law allows for three options, although parents that are cooperative can come up with what works for them. The three options referred to by the law are 1) shared parental responsibility, 2) shared parental responsibility with ultimate decision-making authority, and 3) sole parental responsibility. Most agreements will employ shared parental responsibility. Ultimate decision-making authority can be used to allow a parent to ‘break the tie” when each parent has a different opinion about a subject. For example, one parent may be given ultimate decision-making authority over the children’s mental health, so when the parties cannot come to an agreement on whether or not to use a counselor or the type of counselor, the parent with decision-making authority will make the decision. Some areas that lend themselves to ultimate decision-making authority are medical and psychological issues, education, religion, financial planning (for children that earn income), and representation of the children in legal disputes. In general, ultimate decision-making authority or sole parental responsibility should be discussed only when there is a deep division in the values of the parents. Healthy post-divorce parental relationships require honest discussions between the parents for the good of the children.

Timesharing schedules that work are those which take into account the developmental needs of the children, the schedule of availability of the parents, logistics of transportation, and the myriad other ever-changing aspects of raising children. There is no magic formula that works for everyone, except flexibility and good faith. Short of that, though, the timesharing schedule should ensure that the children are able to spend time with each parent and their families. 50-50 schedules can be fashioned that work for some families, while other families will benefit from alternating weekend schedules. Consider vacation time, both the children’s vacations from school and the parents’ vacations from work, as well as holidays. A good rule of thumb is to put yourself in the shoes of the other parent and consider whether the proposed timesharing schedule would work for you if the times were reversed.

Equitable distribution is the next item that should be considered in a marital settlement agreement. It is the first financial consideration that should made because it sets the stage for the other financial issues to be determined. Florida law favors an even division of the marital assets and liabilities, although an equal division is not required. The spouses are free to work out any distribution plan that works for them.

In general, all assets acquired and all debts incurred during the term of the marriage (date of marriage through date of filing divorce petition) are marital and should be considered in a distribution plan. Some special rules apply to assets and debts that are brought into the marriage or are acquired through nonmarital means (such as gifts, inheritance, and profits earned by selling items owned prior to the marriage), but if you are able to come to an agreement with your spouse then it is not likely going to be disturbed by the court because adults are free to make good or bad bargains among themselves. The court only concerns itself with children issues when reviewing a marital settlement agreement.

Here are some categories of assets and debts to consider. The list is not intended to be all-inclusive. It is intended to be a reminder of what is considered to be an asset or debt that should be considered in a distribution plan: a) cash or cash equivalent (including bank accounts, CDs, money market accounts, PayPal™ accounts, and the like); b) investments (including individual stocks, bonds, brokerage accounts, etc.); c) retirement accounts (including pensions, 401k, 403b, KEOUGH, SEP, FRS, IRA, etc.); d) real estate and related debt (such as first and second mortgages and equity lines of credit, deposits, etc.); d) insurance policies (to the extent that they have cash surrender value and/or loans; term policies generally have no value to be divided, but ownership should be clarified); e) transportation (cars, boats, trailers, motorcycles, etc.); f) tangible assets (jewelry, furniture, collectibles, electronics, equipment, tools, etc.); g) business interests (such as corporations, limited liability companies, partnerships, sole proprietorships, and loans against such interests); h) intangible assets (patents, trademarks, copyrights, etc.); i) secured and unsecured loans (such as credit card debt, loans from family members, signature loans, collateralized loans, etc.); j) contingent assets and debts (tax liabilities for past years, pending lawsuits, lottery tickets, etc.).

Alimony should always be included in a marital settlement agreement, even if there is going to be a waiver of alimony. Alimony is for the support of a spouse who cannot provide for themselves in the manner established by the marital lifestyle. It is meant to protect a spouse from going from prosperity to poverty in one fell swoop. There are many forms of alimony to fit all situations, but alimony is not required in every case. In fact, in short-term marriages (those of 7 years or less) there is a presumption against permanent alimony.

Alimony is not the equivalent of a spouse “winning the lottery”. The mere fact that one spouse earns more or has greater financial than the other does not entitle a spouse to alimony. In the context of a settlement agreement, alimony should be approached from the standpoint that one of the spouses needs financial assistance that the other spouse is willing to provide. In this context, alimony can be for a specified period of time, or a lump sum, or permanent, depending upon what the parties can agree upon.

There are a number of special tax rules that apply to alimony. For this reason, it is important to understand all of the aspects of alimony before agreeing to provide or accept it. We strongly recommend that you confer with either an attorney or an accountant before agreeing to paying or receiving alimony. Serious mistakes can be made that will affect your financial future if the wrong decisions are employed.

Child support should be considered after the other financial considerations have been set, as the receipt or payment of alimony, or the distribution of income-producing assets, will affect the income of both spouses and thus will affect the calculation of child support. Child support in Florida is based upon guidelines that have little flexibility, and the court will scrutinize the child support agreement to make sure that the guidelines are complied with. The guidelines do allow for some adjustments, but these must be spelled out in the agreement, and they must be of a type that the law allows.

Child support is the right of the child, not of the parents paying and receiving it, and consequently the law does not allow child support to be waived or adjusted in a manner that leaves the children without adequate support. As stated previously, there are some adjustments that the law allows, but those must be discussed in detail in the agreement if they are to be used.

The specific parenting plan agreed upon is also important when considering child support. Parents that split timesharing where each parent has the children overnight at least 40% of the time will see that the guidelines allow for a significant adjustment. This is because having the children overnights generally means that the parent will be feeding and transporting the children, and generally relieving the other parent of some of the financial burden. Other aspects of child support include day care costs, health insurance costs, and uncovered medical expenses. While it is not a requirement, it is recommended that an attorney assist you in calculating child support.

Everything else is the final part of the PEACE plan. That may seem humorous, but in reality the majority of the settlement agreement will have been resolved when the previous four categories are finished. The things that remain are the variable items that are unique to each marriage and each situation. “Everything else” can refer to anything that matters to the parties and their unique situation. When there has been ongoing litigation, one aspect of “everything else” may be the attorney fees that have been incurred to date; some agreement must be reached on who will pay or how it will be split. There may be contingencies, such as pending lawsuits or the possibility that the IRS will audit past returns. These items should be considered. Consider everything, because if you leave something out then fixing it after the fact may prove difficult.

Filing The Divorce Petition

Once the Marital Settlement Agreement has been finalized and signed by both parties, the next step is to obtain the divorce. A divorce is begun by filing a Petition for Dissolution of Marriage. The petition filed when there is already an agreement is a very “vanilla” document that simply sets forth the request for a divorce and to ratification of the agreement.

Your petition for an uncontested divorce must state when and where you were married, and that one of the spouses has been a resident of Florida for at least six months before filing the Petition. Most importantly, the petition must state that the marriage is irretrievably broken. This is the only appropriate “ground” for divorce when both parties agree.

The Petition will state that a marital settlement agreement has been negotiated and finalized. The original agreement will be attached to the Petition and made a part of the Court's file. Also filed at this time will be a financial affidavit from each of the parties. This is an indispensible requirement, as it will allow the court to determine if child support has been calculated according to the guidelines. A filing fee is paid at this time and the Clerk of Court will assign a court case number. The judge’s selection is handled by the Clerk of Court using a random selection process.

Answering the Petition

Generally when a divorce petition is filed, it must be answered before the court is able to make decisions that affect the parties. In an uncontested divorce, however, it is more likely that the Answer is filed at the same time as the petition. This office will help you prepare the appropriate Answer for signature by your spouse, and we will file it at the same time as the petition to avoid delay. This method also avoids the additional cost of having the petition formally served upon the other party, and also avoids the embarrassment that service of process can cause. The answer in an uncontested matter may also waive the necessity for that spouse to attend any hearings on the divorce. This is routinely done to minimize the expense of providing formal notice.

Special Interrogatories

In most places in the state of Florida an uncontested divorce requires a single court appearance by one of the parties so that the court can take testimony that the law requires. In the 20^th Judicial Circuit (Lee, Collier, Glades, Hendry and Charlotte Counties), however, this testimony is given in a written form called "Special Interrogatories". They are signed by one of the parties after the marital settlement agreement has been signed by both parties. Our office will prepare them and assist you in having them signed before a Notary. This will do away with the need for either of you to appear in court.

Finalizing The Divorce

In addition to the petition, answer, marital settlement agreement and special interrogatories, the court must be provided with a few other items, including the Final judgment of Dissolution of Marriage, which we will prepare for you. Please note, though, that if you have minor children, the court will not sign the Final Judgment until both of the parents attend a class called "Parents, Children and Divorce.” It is offered several times per week in a variety of locations. You only have to attend one time, and you are not required to attend together. Both parents must receive and file certificates of completion before the court will grant your divorce. Call (239) 693-8893 for dates and registration. The cost includes a workbook.

Children between the ages of 6 and 17 must also attend The Sandcastles Program before a divorce will be granted. The Sandcastles Program is also held in a variety of locations. Call 239-693-8893 for pre-registration, which is required. The cost includes a workbook, materials and a snack. The program is 3 ½ hours in length. Children are organized in age appropriate groups which will help them see that they are not alone and that their thoughts and feelings are similar to many others who are experiencing divorce.

Once the Divorce Is Granted

A divorce is final when the Judge signs the Final Judgment of Dissolution of Marriage and forwards it to the Clerk of Court for filing. A copy of the Final Judgment is sent directly to you and our office by the Judge. There may be additional matters that need immediate attention once the divorce is granted. Titles to cars or boats may need to be transferred. Deeds to real estate may need to be prepared and recorded. Specialized court orders transferring pension rights may need to be prepared and served on a plan administrator. We can provide these services for an additional charge should you need help.