Do I Need an Attorney for an Uncontested Divorce in Florida?
By Uncontested Divorce Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
Features of Uncontested Divorces
In an uncontested of divorce both parties have agreed on all of its terms, which are: the distribution of property, time-sharing custody, child support and any alimony. And it can be done with or without an attorney. But, even when done with a lawyer, an uncontested divorce costs less and is faster than a contested divorce, because your attorney does not need to attend a formal mediation or prepare for adversarial hearings or trials.
In the Florida no-fault divorce law, the only thing required to start the divorce process is for one spouse to declare that the marriage is “irretrievably broken”. The question is never whether it will be granted. The question is what will be its terms for distribution of property, time-sharing custody, child support and any alimony, if any.
For couples that can agree on those terms, there are two types of uncontested divorces in Florida: (1) the Simplified Dissolution of Marriage procedure, which is simple enough to do without a lawyer, but can only be used where only a limited number of issues arise (listed below) and (2) going through the regular uncontested divorce procedure, with agreement of all the terms by both parties.
The advantages of being uncontested are: (1) that the divorce costs less, (2) it is a simpler and quicker divorce, (3) it avoids unhappy recriminations, and (4) it reduces post-settlement arguments about its terms. Generally, the court proceedings are more relaxed and the marriage ends on better terms, which is particularly important when children an involved.
Simplified Dissolution of Marriage
To qualify for a simplified dissolution of marriage the divorcing couple are both referred to as the Petitioners, and they must meet the following requirements:
1. At least one of the spouses must have been a Florida resident for a minimum of six months.
2. Neither spouse can have a dependent child, which means that he or she is under 18 or disabled.
3. The wife is not pregnant and she will not require that her former name be restored.
4. Neither spouse is asking for spousal support (alimony).
In addition, both spouses must:
1. Agree to cooperate in the preparation and signing of all the required documents.
2. Agree to forgo the right to a trial and to an appeal.
3. Agree not to have to give or receive any financial information beyond what is in the Financial Affidavit form.
4. Appear at the office of the Clerk of the Court to sign the Petition requesting the dissolution of marriage.
5. Attend a brief court hearing.
6. File a Petition for Simplified Dissolution of Marriage in the Circuit court of the county of residence.
7. This petition states several of the items on this list and that the marriage is “irretrievably broken”.
With the Petition, the husband and wife include their respective Financial Affidavits, which lists their incomes assets and debts, and their Marital Settlement Agreement. This agreement is what determines how their assets and debts will be divided. (See the practice area page Property Distribution In Divorce for more information.)
The simplified dissolution of marriage is an easier and quicker divorce. But it can act as both a blessing and a curse. If the spouses own only a small handful of simple assets (such as vehicles or furniture) the simplified route can adequately settle how to distribute these. However, when dealing with more complex assets such as real estate or investment accounts, one spouse should hire a family law attorney to ensure that all of the various contingencies are addressed. If you decide to forgo hiring an attorney, you should contact the clerk of your county court to obtain the simplified dissolution of marriage forms.
Regular Uncontested Divorce
In a regular uncontested divorce there are three additional possible issues that the divorcing spouses have to agree on:
1. If they have dependent children, (a) time sharing and (b) child support.
2. If there is going to be spousal support (alimony), how much and for how long.
3. If there are major assets to be divided, the method that will be used to distribute them.
Two Ways to Complete a Regular Uncontested Divorce
(1) Both Spouses Jointly
Both spouses can negotiate and ultimately sign a Marital Settlement Agreement form that contains all of the terms of the divorce. One spouse (the Respondent) signs an Answer, Waiver, and Request for a Copy of Final Judgment. The rest of this process is the same as the Simplified Divorce in that both spouses also have to file the Financial Affidavit, sign the Petition at the Clerk of the County Court and attend a brief court hearing (in certain counties).
(2) By Default Judgment
If one spouse does not cooperate, the other one (the Petitioner) can serve that spouse (the Respondent) a Summons and a Petition for Dissolution of Marriage. The Respondent must file an answer to this summons within twenty days. If no answer is filed within that time, a default judgment will be issued. This means an acceptance of all the terms of the divorce specified by the Petitioner. This method can be described as the "unplanned uncontested divorce" because if your attorney serves the other spouse with a petition for dissolution of marriage, that usually means that he or she is expected to file an answer contesting the allegations.
The Petitioner also has to file one of the three Petition of Dissolution of Marriage forms that applies in each of these situation of the couple: (1) with dependent or minor children, (2) with property but no dependent of minor children or (3) with no property or dependent children. In addition, if the couple is caring for minor children the Petitioner also files the form Uniform Child Custody Jurisdiction and Enforcement Act to provide information about the children. And if there is child support involved you must complete the Child Support Guidelines Worksheet.
The Petitioner also has to file a Family Law Financial Affidavit (which lists assets, debts and income), a Notice of Current Address and the Settlement Agreement. This is the agreement that specifies which property will go to each spouse, how child custody and support will be distributed and what alimony payments would be made, if any. It normally has to be filed with the Certificate of Compliance with Mandatory Disclosure. This states that the other spouse has provided the required financial information about himself or herself.
You may also have to file a Standard Family Law Interrogatories for Original or Enforcement Proceedings to expand on the information on the Financial Affidavit together with a Certificate of Compliance with Mandatory Disclosure and a Notice of Service of Standard Family Interrogatories.
After all these documents are filed, in some counties, such as Orange County, the Petitioner schedules a brief court hearing for the final judgment. In this hearing, the judge simply reviews the submitted forms to see if they meet the legal requirements and establishes that the Petitioner has resided in Florida for at least six months.
The Role of a Family Lawyer
In Florida, you are not legally required to hire a lawyer for a divorce. However, there are many forms to complete, and some of them may require assistance. Neither a judge nor a clerk or any court employee is allowed to answer legal questions. In that case, you should consult a lawyer to review your documents before turning them into the court. If not, you may end up paying too much or receiving too little alimony or child support, or lose property or time-sharing with your child. Keep in mind, however, that the Florida Bar Rules prohibit lawyers from representing both spouses, even if it the divorce is not contested. Therefore, just come yourself to the consultation.
How We Can Help
At AAA Family Law, we have represented many spouses in contested and uncontested divorces. Call us at (407) 260-6001 to schedule an initial consultation.
At the consultation I will ask you to present what you expect to accomplish in your case, then outline a plan to accomplish it. I will also quote you our attorney fee, which is a flat rate for the total amount, not an hourly rate whose total is unpredictable.
Our uncontested divorce costs range between $1,200 and $1,800 in attorney retainer fees, depending on the complexity of the case. Please read the page Family Lawyer Retainer Fees for more in information on the costs of our services.
Please read the Articles section for more information on Family Law topics.