Uncontested Divorce, Is Attorney Needed?
By Uncontested Divorce Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2005
Features of Uncontested Divorces
An uncontested divorce agreement is one where both parties have agreed on all of the terms, the distribution of property, alimony, if any, and a time-sharing schedule for the children and child support obligations. It can be done with or without an attorney. When done with an attorney, it costs less than a contested divorce because your attorney does not need to prepare for adversarial hearings or trials or attend a formal mediation.
Since Florida has a “no fault” divorce law, the only thing required to actually initiate the divorce procedure is for one spouse to declare that the marriage is “irretrievably broken”. From there, a divorce becomes strictly about settling the aforementioned issues. In other words, the question is not whether the divorce will be granted, but rather, what will the final terms look like.
For couples that can agree on those issues, there are two types of uncontested divorces in Florida: (a) 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 divorce issues arise (listed below) and (b) going through the regular uncontested divorce procedure, with agreement of all the terms by both parties.
There advantages of an uncontested divorce, besides costing less are that: (a) it is simpler and can be done more quickly, (b) it avoids unhappy recriminations, and (c) it reduces post-divorce arguments. Generally, the court proceedings are more relaxed and the marriage ends on better terms.
Simplified Dissolution of Marriage
To qualify for a simplified dissolution of marriage the divorcing couple are both referred to as the Petitioners and 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:
a) Agree to cooperate in the preparation and signing of all the required papers.
b) Agree to forgo the right to a trial or to an appeal.
c) Agree that they do not have to give or receive any financial information in addition to what is included in the Family Law Financial Affidavit form that is required to be filled out for the divorce.
d) Appear at the office of the Clerk of the Court to sign the Petition requesting the dissolution of marriage.
e) Attend a brief court hearing.
f) File a Petition for Simplified Dissolution of Marriage in the Circuit court of the county where they reside stating 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 simplicity of a simplified dissolution of marriage 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, and
3. If there are major assets to be divided, the method that will be used to
An uncontested divorce can result in one of two ways:
The Joint Way
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).
The 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: (a) with dependent or minor children, (b) with property but no dependent of minor children or (c) with no property or dependent children or property. 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 Family Law Financial Affidavit together with a Certificate of Compliance with Mandatory Disclosure and a Notice of Service of Standard Family Interrogatories.
After all these forms are filed, in certain counties like 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.
In Florida, you are not legally required to hire a lawyer in 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 in a divorce, even if it is an uncontested divorce. Therefore, just bring yourself to the consultation.
How We Can Help
At AAA Family Law, we have represented many spouses in an uncontested divorces. The first thirty minutes of any consultation are free and we charge by the hour for any additional time you need during the consultation. Please read the page Family Lawyer Retainer Fees for more information on the hourly rate.
At the consultation I will ask you to present what you expect to accomplish in an uncontested divorce, the outline a plan to accomplish it I will also quote you my attorney retainer fee, a flat rate for the total amount, not an hourly rate whose total is unpredictable.
Our attorney retainer fees for an uncontested divorce range between $1,000 and $1,500 depending on the complexity of the case.
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