Can I file for divorce on my own in Florida?

Written By: Lenorae C. Atter, Attorney
Wood, Atter & Wolf, P.A.

1197499_stop_1.jpgDeciding to use your own agreement in a Florida divorce can be more costly than what you originally budget. Florida is a “no-fault” divorce state and the parties are able to receive half of everything accumulated during the marriage, including retirement; therefore, many people they can handle their own divorce with a form they find online or at the courthouse. While I am a family law attorney in Jacksonville, Florida, my interest in providing the “why not” to a DIY divorce is not related to my bottom line, but yours.

When your transmission goes out; do you normally fix it yourself? Unless you are a licensed mechanic, the answer to that question is probably, “no.” When you do not properly fix your car you end up paying more to get it fixed. The same is true in a divorce. When you try to do the paperwork on your own, without the proper education on what should and should not be included and what the future problems may be, then you may end up paying more to fix it down the road.

What typically happens when parties decide to handle their divorce without assistance is that the properties are not fairly divided; one party winds up with more debt than she/he can actually afford; one party is given excessive alimony and/or child support; and retirements are not properly divided. While the agreement may have seemed fair at the time they were divorcing, ultimately something will happen down the road to cause one or both parties to return to court.

When a post-divorce issue arises, the one thing that cannot happen is that the original agreement be simply overturned by the court. For example, if the Wife agreed to pay the Husband too much in child support originally, then without the Wife’s or Husband’s income significantly changing the child support will not be modified. Simply finding out later that you agreed to pay more than the child support guidelines mandates is not good reason for a judge to overturn the original agreement. The same is true with offering to pay excessive alimony or agreeing to allow the other spouse to have his/her retirement.

So what then happens when someone cannot actually afford the agreement that she/he entered? Generally, the party that was meant to receive the alimony, child support, retirement, etc. that is not receiving the same will file a Motion for Contempt against the other party. The reason is that the court can enforce the prior orders, regardless of their fairness because both parties actually agreed based on their present incomes and expenses at the time. Also, the nonpaying party will generally file a Petition for Modification. However, to be successful with a modification the requesting party must be able to prove to the court that she or he has had a substantial change in circumstance (e.g. demotion at work).

Now, both parties have hired attorneys and both parties now have to pay attorney fees to work out what may have been avoided in the beginning. The cost of fixing the prior agreement can actually be much more expensive than if the parties had simply hired attorneys in the very beginning. The reason is that the attorney for each party would be able to educate the husband and/or wife on what their rights and options are initially. Also, a divorce lawyer may be able to educate the husband/wife on what she/he can truly afford and what she/he is giving up if one agrees to waive his/her right to retirement, alimony, properties, etc.

Before deciding to file for divorce on your own with a form you found online, it is a good idea to actually meet with a lawyer and better understand the process. An experienced divorce attorney can actually educate you on potential outcomes and what may be fair for both spouses. Generally, divorce attorneys are happy to help formalize an agreement the parties have, but do so in a way that makes sense for both of you. As a divorce lawyer, it is not my job to simply fight because you are getting divorced, but to actually protect your interests and represent your needs and what you would like as an outcome. I am always happy to have an uncontested divorce because the parties do not necessarily need to fight over everything, but they do need to know what they are actually agreeing to. Entering an agreement without knowledge is no better than grabbing a tool and deciding to start fixing that transmission.