Frequently Asked Questions by Divorce Clients III
- What is Dissolution of Marriage?
- What is the meaning of "no-Fault"?
- What is the difference between a "divorce" and a "legal separation"?
- What are the three phases of a divorce case?
- How is a divorce final judgment enforced?
Dissolution of marriage is the current legal term for what used to be called a divorce. It is legal termination of invalid marriage. When "no-fault" was enacted by the legislature, "Divorces" became "dissolutions". Practically speaking, dissolution of marriage is a divorce. Legally speaking, the marriage is dissolved (ended) when the court enters the Final Judgment of Dissolution of Marriage.
Florida is a no fault state. This means that the law no longer requires reasons for the breakup of the marriage. It is only necessary to state that "the marriage is irretrievably broken". It is no longer necessary to prove one of the traditional grounds as a basis for divorce such as mental cruelty, adultery, or physical abuse. Under the old fault law the party who did not file for divorce did not have to allow the divorce where there was no mental or physical abuse or other ground. If one of the grounds did not exist, the parties had to lie about the existence of the grounds i.e. mental cruelty in order to obtain a divorce. No-fault has eliminated that practice. Now, either party may attain a divorce if he or she believes the marriage is "irretrievably broken" regardless of who caused the breaking.
In past years when a divorce was considered by some to be a "stigma" parties would enter into a "legal separation" instead of obtaining a divorce. In Florida, a legal separation is called a proceeding for alimony and/or child-support unconnected with dissolution. A petition for support unconnected with dissolution of marriage can be brought with or without minor children, depending upon the circumstances of the parties. The purpose is to establish alimony or child support, without dissolving the marriage (divorce). The court in this type proceeding does not have authority to make decisions concerning the parties assets and debts. When there is only a "legal separation" neither party can remarry.
Most cases involve three different phases: pleading, discovery and trial.
Pleadings. A divorce case is started by the filing of a petition for dissolution of marriage. The other party has 20 days to respond by filing an answer and sometimes a counter petition. If a counter petition is filed the other party has 20 days to file an answer to the counter petition. That usually completes the pleadings phase.
Discovery. In divorce cases, the first discovery that is done is mandated by the court. This called mandatory disclosure and requires both parties to produce a list of financial documents and to prepare a financial affidavit. Additionally, there are other discovery tools available to the attorney: interrogatories, depositions, request for production of documents, request for admissions and infrequently, request for mental and physical exam.
Trial. After the pleadings are closed and the discovery is completed, the case must be prepared for trial (file hearing). The pleadings frame the issues to be presented at the trial and the discovery provides the evidence and information that is needed to prove the essential facts at the final hearing.
A final judgment may be enforced by filing a motion for contempt. The court may hold a party in contempt for willfully failing to comply with the court order, such as failure to pay child support. If the party has the present ability to pay the back child support owed at the time of the hearing on the motion for contempt the court can hold the party in contempt. If a party is held in contempt, he can be ordered to pay a "purge" amount. This is typically a lump sum that must be paid in a short period of time in order to avoid going to jail. The violator is said to have the "keys to the jail" in the sense that he has the power to and the incarceration. Final judgments may also be enforced by a motion to enforce or by obtaining a money judgment for an amount due of child support or alimony.
The law offices of West Palm Beach divorce attorney, Jessica Mishali, take pride in its professionalism and aggressively defend the rights of his clients. Please call our office at (561) 833-2772 for a consultation or contact us online.