Frequently Asked Questions

Legally there are only slight advantages to filing first.  The party that files first is the Petitioner and the other party is the Respondent.  Regardless of who files first, both parties will have an opportunity to fully present his/her case to the Court if the case progresses to trial.  Once the case is filed, generally speaking, the filing date controls the designation of marital versus non-marital property.  Although some marital and family lawyers opine that there are no legal advantages to filing first, there certainly are emotional or psychological reasons to assist you in determining when to file, these include: If you file first you have the ability to calmly interview prospective counsel and amass your team before the case is filed.  If you do not file first, in Florida you have to file a responsive pleading 20 days after you are served with process (the initial paper work).  If you do not file first, you may feel as if you are scrambling to look for legal counsel and experts. If two different counties or states can properly exercise jurisdiction over your case, the party that files first controls the choice of venue (the county in which the case proceeds).  By filing first, you make the choice on jurisdiction. If you are filing first, you control the timeframe within which the case progresses.  The date of filing determines the date by which discovery is due and often the date of valuation of assets. If you file first, you may prevent your spouse from hiding or moving marital assets before the valuation date is set.  You may actually be protecting assets. If you believe that your spouse procrastinates or will not be responsive to your attempts to participate in the process, by filing and serving process, you force your spouse to “play ball” within the timeframe prescribed by the rules of court. If your case progresses to trial, the Petitioner will present the evidence to the Judge first, which some may argue is a slight advantage.  However, if the presentation of the case is long, and spans several days, sometimes the Judge may remember more of what was presented last. The cost of filing the case to the Petitioner is slightly higher than for the Respondent. Some parties do not want to file first because they do not want to be the one to “ask” for the divorce for spiritual or other reasons. However, if you are not the first to file, do not fret.  Generally, when you respond to the Petition for Dissolution of Marriage filed against you, you will file a Counter-Petition for Dissolution of Marriage. Essentially this is a case within a case. This prevents your spouse from dismissing the petition and ending the proceedings without your consent. 

Maybe.  Florida statutes do authorize the trial court to require an opposing party to pay for, or contribute to, the other party’s reasonable attorney’s fees and costs in family law cases.  The court has broad discretion in determining whether such an award is appropriate. The primary factor for the court to consider is the financial resources available to each party.  In some counties, it is not necessary that one party be completely unable to pay attorney’s fees in order for the trial court to require the other party to pay such fees.  Thus, where one party’s income is substantially higher than the other, an award of attorney’s fees and costs may be appropriate. However, in other counties, if a party has the resources to pay their own attorney’s fees, even if the other party has a greater ability, there may be no fee award. The Florida Supreme Court has also stated that, in deciding whether to award a party attorney’s fees and costs in a family law case, the trial court may consider a party’s conduct throughout the litigation.  Such conduct includes the scope and history of the litigation; the merits of the respective positions; any bad faith, obstructive tactics; or whether the litigation is brought or maintained primarily to harass, frustrate, or stall. The court can award attorney’s fees and costs during the pendency of the proceedings or at the conclusion of the case. Add an answer to this item.

This is the most common question I get! Well-meaning friends love to give the advice of not "abandoning" our marital home. In short, if you leave it is still your marital home. With an impending divorce, the decision of who leaves the home and when, can be a very important one.  From a purely legal standpoint, there is no direct impact of one party voluntarily leaving the home. The vacating party has not “abandoned” ownership rights in the home or parental rights by moving out.  Further, whether or not a party is residing in the home at the time of trial is not a specific factor in equitable distribution or alimony. However, from a practical standpoint once someone leaves the home it is unlikely that they will be able to later move back in.  For this reason, the decision should be carefully considered.  You should consult your lawyer before you make this decision. The first important consideration is the parties’ minor children, if there are any.  Before either parent leaves the home, the parties should have an agreed temporary parenting schedule, preferably set forth in writing.  Otherwise, the parent remaining in the home with the children may take advantage of the situation when forming a timesharing schedule.  Another factor to consider is a big-picture consideration, which party is more likely to continue living in the home after the divorce is final.  This factor requires taking a number of potential facts into consideration and is best made with the assistance of legal counsel.  There are financial considerations involved as well. For example, the party moving out may be obligated to contribute to the expenses to maintain the marital home even after they move out.  Finally, the level of aggression between the parties must also be considered, and many times may be the sole factor, as personal well-being may trump all of the considerations.  

 A retainer or engagement fee is the upfront payment made to my firm in exchange for legal representation. The amount is usually paid in advance for services to be rendered. The specific amount you’re required to pay will depend on several factors, one of which includes how complex your legal issues are. Sometimes I will agree to a limited scope representation for document review or a court appearance, these are determined on a case-by-case basis. A typical dissolution case retainer is between $5,000 and $10,000. If your case should proceed to trial a trial retainer will be taken in advance of trial.  All retainers are further detailed in your retainer agreement. 

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