It does not matter who files for divorce first in the state of Florida. Having said that, the timing of filing for a divorce may be important. Even though there’s not a big difference to who files first, there might be a reason why somebody wants to file at a specific time. For example, if somebody realizes that there is about to be a significant change in the financial status of one party or the other, it may be a good idea to file sooner than later. Generally, marital and non-marital assets are recognized by the courts as of the time somebody files for a divorce, which means that timing of the filing might be important. If you receive something of value after you file for a divorce, that item would generally be viewed as a non-marital asset, which is not subject to the court’s jurisdiction to distribute between the parties.
If you have a valid and enforceable pre-nuptial agreement, this may make absolutely no difference. However, as in most litigated and contested cases, the parties are not really certain as to whether the court will enforce the terms of the agreement, so that the timing of the filing might be another added layer of security to protect your assets from the other spouse. If you are looking to protect assets that you know that you’ll be acquiring in the near future, the timing of the filing for the divorce may be much more important than the possibility of who files first.
Is Mediation Possible When There Is Already A Marital Agreement In Place?
If there is a pre- or post-nuptial agreement in place, and one party contests the validity of the terms of that agreement, then mediation is not only possible but probably required, before the court will set a trial date to determine the agreement’s validity. Often, there have been major changes in the finances and lifestyle of the parties between the time that they entered into the agreement and the time that they are looking for a divorce. If one party or the other is not happy with the terms of the agreement, then mediation is always not only required but also desired as a means to try to work out any differences. Often we can get one party or the other to possibly change the terms of the agreement instead of going forward with the trial.
For example, if an agreement provides a certain amount of alimony for certain limited amount of time, and that agreement may have been drawn up 20 years prior to a divorce, certainly the numbers that should be looked at 20 years ago are not the same numbers you are looking at now. Before taking it to court and having a judge decide whether the court will uphold or set aside the agreement, often it makes more sense to sit down with the other person and say, “Look, this is something that we entered into 20 years ago, but things have changed. Perhaps it makes more sense just to agree to change this portion of the agreement, and we can let the court enforce everything else”.
This is a good option for parties, rather than spending excessive amounts of money fighting over everything, see what you can agree to. Perhaps a tweak here or there that everybody can agree to will avoid the costs of going to trial, both emotionally and financially. Mediation is both possible and desirable, in the event that one party is contesting the terms of a pre- or post-nuptial agreement.
Can You Provide a Brief Timeline Of The Divorce Process When There Is A Marital Agreement Involved?
As in any other divorce situation, it is best to go speak with a lawyer. In the event that there has been a pre-nuptial or post-nuptial agreement entered into between the parties, and both of the parties still desire the court to uphold the terms of the agreement, then it’s a rather simple process. Either person goes to a lawyer, the lawyer will file a document stating that the marriage is over, called the Petition for Divorce. The document will state that one or both parties desires a divorce, that prior either to the divorce or marriage, the parties had entered into an agreement, and both parties want the terms of the agreement enforced.
That can be very simple and relatively inexpensive. In that situation, a lawyer will file the paperwork on behalf of the client who states they want the divorce. The responding party has 20 days to file their response as to whether the terms of pre-nuptial agreement should be enforced or not. If the person files a response in 20 days stating that they agree that the terms should be enforced, then the court can schedule a brief 5-minute, uncontested hearing within a week. The entire divorce process could be accomplished in under 30 days, if both parties are agreement that the terms of the pre- or post-nuptial agreement should be upheld and enforced by the court.
If one party decides to contest the terms of the pre- or post-nuptial agreement, the responding party’s lawyer will file a document stating that they don’t agree with the terms of the agreement. They will list the reasons it should be set aside or modified. It’s hard to say when the divorce will be finalized, as there will be mediation, possible financial discovery, and eventually a trial if the parties cannot agree to either oppose or modify the terms of the agreement.
For more information on Filing First For Divorce In Florida, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (954) 755-0126 today.