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Frequently Asked Divorce Questions
Most people have the same common questions about divorce. As such we really have a handle on the rumors and misinformation that prevents folks from making good decisions.
Usually, it won’t matter who files for divorce first. If you actually end up litigating your divorce (God forbid!), then the person who files first will present his case first, so it could make a difference. Presenting first can be an advantage because the initiating party sets the stage for the trial. But the other spouse’s evidence may be fresher in the judge’s mind when she rules, so it is difficult to say which is better.
If you choose a form of courtless divorce or alternative dispute resolution, which most people do, the race to the courthouse becomes irrelevant. In fact, then you can wait to file until you have completely resolved all of your divorce issues.
Divorce court should be gender neutral, considering the best interests of the kids and therefore treating both parents equally, regardless of their sex. While there is always a possibility, if you go to court, that you will end up with a judge who does suffer from gender bias, if you choose a form of alternative dispute resolution, like collaborative practice, you do eliminate that risk.
Absolutely not! This especially becomes a critical issue if one of the spouses is staying in the home under the mistaken impression that s/he would be abandoning his/her interest in the investment if s/he moves out. However, if the conflict between the two spouses has become so intense that domestic violence is likely to result, you should move. Your safety is always paramount.
Do note, however, that, while you will likely still have a right to your share of the equity in the home as an investment, you may diminish your argument that you should receive the home to live in if you have moved out and made other living arrangements while your spouse has not.
If your spouse has become violent, or even close to it, it is important that you go to the courthouse to file a petition for a protective injunction. Emotions are heightened during a divorce, and violence that would normally seem unthinkable may erupt.
Even more important than getting an injunction, which may take time if your significant other has not been removed from the home already, protect yourself and your children. And your pets, if necessary. This may mean relocating yourself and them from your home.
In most states, child support is computed using a statutory guideline that considers a number of factors. These considerations usually include the number of children, each parent’s net income, their contributions to the children’s daycare expenses and health insurance, and the number of overnights with the children each parent enjoys per year. You can use this calculator to plug in your personal numbers to get a rough working child support amount.
Whether you will have to pay alimony depends on many factors such as whether you have income available to pay it, whether your spouse has a need for it, and the length of your marriage. Courts are veering away from high permanent alimony awards as spouses are now more similarly educated and able to take care of themselves.
If you kept your premarital property completely separate from your marital property, it may have kept its premarital status, meaning that your spouse has no right to it. However, premarital property is often commingled with marital property, which means your spouse may have a right to a portion of it.
Prenuptial agreements are important if either party has premarital property she wishes to keep separate or if a party has a much higher premarital net worth. Additionally, premarital agreements can provide for how the spouses will handle issues that may arise during the marriage, like adultery.
If you choose a form of alternative dispute resolution like mediation or collaboration, you’ll only need to go to a brief uncontested hearing to finalize your divorce, rather than litigating all of your issues.
Postnuptial agreements are like prenuptial agreements, except they are drafted and executed during the marriage rather than prior to the marriage. Sometimes postnuptial agreements are created as the parties are coming into significant assets or debts, and they want to define how these assets and debts will be handled during or, in the event of divorce, after the marriage.
As Florida does not recognize legal separations, postnuptial agreements can be drafted to help parties define their rights as they are going through a trial separation. Not only can they discuss the division of assets or debts and the provision of alimony/spousal maintenance, once a postnuptial agreement is executed, it may be submitted to a court to address immediate issues of child support and a parenting plan as part of an action unconnected to a divorce.