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Florida Divorce
Divorce, also known as "dissolution of marriage",
can be a highly emotional and traumatic experience. Marriage
partners often do not know their legal rights and obligations.
Therefore, each individual should consult a lawyer to learn
what their rights are, how to evaluate their options, and
what to expect if the case goes to trial.
In order to obtain a divorce in a Florida, the filing party
must have been a Florida resident for at least six months.
Florida is a ""no fault"" divorce state.
That means that the court will grant a divorce upon any showing
that the marriage is irretrievably broken. If either party
is unwilling to remain married, the marriage is considered
irretrievably broken. The fault or absence of fault on the
part of either party is generally irrelevant. However, many
types of marital misconduct may be considered in the award
of alimony and determination of custody issues.
Because Florida is a ""no fault"" divorce
state, it does not matter that one of the parties objects
to the divorce. The court will ultimately grant one regardless.
However, a party who wishes to reconcile may request that
the Judge order the couple to participate in marriage counseling
for a period of time.
The Dissolution Process in a Nutshell
One party files a petition with the court:
The dissolution process usually begins with one of the parties
filing a petition for dissolution of marriage. The petition
for dissolution is filed with the circuit court by the husband
or wife, which states that the marriage is irretrievably broken
and sets out what the person wants from the court. Either
spouse can file for the dissolution of marriage. There is
no specific advantage to filing first.
The other party files an answer:
The other partner must file an Answer within 20
days, which shows his or her response to the requests the
first party made in the initial petition and raises any additional
issues the answering party wishes to raise. Failure to answer
the petition within 20 days can result in the answering party
losing his or her opportunity to be heard and can consequently
result in the loss of valuable assets and rights.
The parties provide financial documents to each other:
Each party must provide certain financial documents
and a completed financial affidavit to the other party within
45 days of the service of the petition. Failure to provide
this information can result in the court dismissing the case
or not considering that party's requests. The parties or the
court can modify these requirements except for the filing
of a financial affidavit, which is mandatory in all cases.
The parties engage in settlement negotiations / mediation:
The vast majority of divorcing couples settle all
or some of the aspects of the divorce prior to going to trial.
Each divorce case is unique and therefore settlements vary.
Some couples agree on property settlements, child custody,
and other post-divorce arrangements before or soon after the
original petition is filed. They then enter into a written
agreement signed by both parties that is presented to the
court. In this case, a divorce can become final in a matter
of a few weeks.
If the couple can not agree on all issues, the Judge usually
requires them to attend a mediation conference. A mediation
conference is a meeting where the parties, usually accompanied
by their attorneys, meet with a third-party mediator who is
specially trained to facilitate settlement negotiations. The
parties may meet across the table from each other or be placed
in separate rooms, with the mediator going back and forth
in an effort to facilitate a full or partial agreement on
the issues of the case. Mediation allows both parties to actively
participate in deciding all the issues of the case rather
than letting a Judge who does not know them make critical
decisions that will affect their lives. Mediation avoids a
long drawn out trial, saves the parties legal fees, and helps
to protect individual privacy by avoiding a public trial.
Parties should know their rights and their financial status
prior to entering into any settlement negotiations. They should
also develop a negotiation plan and learn negotiation techniques
that will help to ensure that they get the best possible settlement.
Final hearing/Trial:
The divorce ends with a final hearing before a Judge
or General Master. Florida does not allow jury trial in divorce
cases.
If the parties were able to reach a full settlement agreement,
the final hearing may involve nothing more than the Judge
signing the parties’’ written agreement, in order to make
it a binding court order. In this case, only one of the parties
need attend the final hearing, the other may opt to waive
his or her appearance.
If the parties have not been able to reach a full settlement
agreement, each is given an opportunity to present their requests
and supporting arguments to the Judge at a trial. Each party
has the right to examine and cross-examine the other as a
witness. They are also allowed to call other witnesses and
to present other evidence to support their position.
Before going to trial, Parties should develop a trial strategy
and prepare an effective presentation that will convince the
Judge of their position. They should provide the Judge with
ample evidence, which he can use in making his decision.
Divisions of Property/Assets
Marital property may include cars, houses, retirement benefits
(pensions), business interests, cash, stocks, bonds, bank
accounts, personal property and other things of value. Whatever
property was acquired by either party during the marriage
is a marital asset subject to division regardless of whose
name it is in. Property acquired by one party prior to the
marriage is non-
marital and remains the property of that party after divorce.
Some gifts and bequests are considered non-marital property
too.
Florida statutes and case law provides for an "equitable
distribution" of marital property. In essence, the marital
property should be divided fairly or equitably between the
parties regardless of how the title is held. Generally the
parties list all marital assets and their value. Each party
is entitled to an equal share of the total value the marital
assets. It is preferred that the parties work together to
decide who will get which assets as part of their half. If
they cannot decide the Judge attempt to equitably divide them.
In some special cases, a court may determine that one party
is entitled to a greater share of the assets than the other
party. This is called special equity.
Retirement benefits/pensions:
Each party is entitled to one half of the other’’s
retirement benefits that were acquired during the marriage.
A special order called a QDRO must be prepared and submitted
to the benefits administrator to ensure that the spouse receives
his or her share of the other’’s retirement benefits.
Marital home:
The Court has numerous options available when deciding
how to divide the equity in the marital home.
- The home can be sold and proceeds split.
- One party can buy out the other party’’s share of the
marital home.
- The home can be granted to one party as a form of lump-sum
alimony.
- If the parties have children, the party who has primary
residential custody of the children can remain in the home
until the youngest child is no longer eligible for child
support, at which time the home is sold and proceeds split.
There is no fixed way to divide the property/assets. Debts/Liabilities
must be considered. Other factors include the nature and
extent of the property and whether it is marital property
or non-
marital property; the duration of the marriage; and the economic
circumstances of each spouse. If you and your spouse can agree,
and if your agreement is reasonable, it will generally be
approved by the court. If you cannot agree, the court will
divide the property after a trial.
Division of Debts/Liabilities
Marital debts/liabilities include mortgage payments, income
tax liabilities, credit card debts, personal loans, car payments
and other debts. Any debt/liability incurred during the marriage
is a marital debt and will be equitably divided, regardless
of whose name it is in. Marital debts/liabilities are divided
much the same as marital property/assets. The parties list
all the marital debts and the balanced owed then they or the
Judge attempt to equitably distribute the debts/liabilities.
In some special cases, a court may determine that one party
should be held soley responsible for specific debts/liabilities.
This is usually occurs in one of three instances:
- the party wasted marital funds on extra-marital activities
or
- the party engaged in destructive or negligent behavior
that resulted in an unnecessary loss of marital assets or
money.
- Extreme disparity between the parties incomes.
Alimony
The court may grant alimony to either spouse if one has a
need and the other has the ability to pay. There are three
types of alimony.
Temporary Alimony:
Money paid by one spouse to help support the other from the
time of filing for the divorce until the final hearing.
Rehabilitative alimony:
Support paid by one spouse to help support the other for a
limited period of time to assist in redeveloping skills and
financial independence.
Permanent alimony:
Support paid by one spouse to help support the other until
the receiving spouse remarries or either party dies.
The court determines eligibility for alimony on a case by
case basis. The Judge may grant one or more types of alimony
to a recipient. The court also has the discretion to order
that a party make a large lump-sum alimony payment of money
or property.
In awarding alimony, the court considers all relevant economic
factors, such as: the parties' prior standard of living; length
of the marriage; age and physical and emotional condition
of both spouses; each spouse's financial resources and income-producing
capacity of the assets they receive; the time necessary to
acquire sufficient education or training to find appropriate
employment; and the services rendered in homemaking, child
rearing, and education and career building of the other spouse.
The court may also consider the marital misconduct or any
other factor necessary to do equity and justice between the
husband and wife.
The court retains the power to modify the amount of the alimony
at any later time if there is substantial change in the circumstances.
A substantial change in the circumstances could include a
change in the income of either of the parties or an increase
in the recipients needs.
Taxes
There are very important tax considerations to be aware of
in any divorce, including the dependency deduction for children,
taxability and deductibility of child support and alimony
in their various forms, and effects of property transfers.
It is important to find out how these laws affect you before
you get divorced.
Child Custody/Visitation
One of the most difficult and painful parts of a dissolution
of marriage concerns children. Many times the parents will
work out the problems concerning their children between themselves
and avoid a court fight. Sometimes the parents will be unable
to decide how they will share their child or children, and
the case must be decided in court.
It is the public policy of Florida to assure each minor child
frequent and continuing contact with both parents after the
parents have separated or divorced, and to encourage parents
to share the rights and responsibilities of child rearing.
The father is given the same consideration as the mother in
determining custody regardless of their child's age, sex,
or other factors.
In Florida child custody is divided into two parts: parental
responsibility and residency.
Parental responsibility:
Parental responsibility can be shared by both parents or sole
parental responsibility awarded to one parent. Shared parental
responsibility means both parents must confer with each other
in good faith on all major decisions such as education, religion
or medical needs affecting the welfare of the children. Sole
parental responsibility grants one parent the right to make
all the decisions regarding the minor children. The Court
will order that parental responsibility be shared unless one
parent has abandoned or abused the child or has perpetuated
domestic violence on the other parent to the point that the
child or other parent’’s health and welfare would be compromised
if the parties were ordered to confer.
Residency:
The Court will usually order that one parent have
primary residency (the child lives with them) and the other
have specific visitation rights. However, the parties may
rotate residency back and forth when it is in the best interest
of the child. In determining residency the court will consider
the following factors:
- Which parent is more likely to allow the children frequent
and continuing contact with the other parent.
- The love, affection and other emotional ties existing
between the children and each parent.
- The level of devotion of each parent to the best interests
of the children.
- The ability of each parent to provide financially for
the food, clothing, shelter, medical and other needs of
the children.
- The court will also be concerned with the stability of
each proposed home.
- The morals of each parent.
- The physical and emotional health of each parent.
- The preference of the children, if they are mature enough
to express an opinion.
- Incidents of domestic violence.
- Any other fact that is relevant.
The court also has the power to change the parenting arrangement
if it is not working in the best interest of the children
at any time until a child reaches the age of 18 and or is
otherwise "emancipated."
Visitation:
If the parties cannot agree on a visitation schedule, the
Court will order a schedule based on set guidelines. Guideline
visitation generally allows for the child to visit with the
non-residential parent every other weekend, one night per
week, alternating holidays, four to six weeks in the summer,
one week of Christmas break, one week of spring break, plus
any other visitation the parties agree to. The court strictly
enforces a non-residential parent’’s visitation rights.
Child Support
In Florida, child support is determined using specific state
guidelines. The child support guidelines is a formula for
determining a reasonable amount of child support. It is based
on the parents' incomes, the needs of the children and the
number of minor children. The guidelines include an adjustment
for medical and dental insurance and child care costs. In
the rare case a judge deviates from these guidelines, he or
she must explain why. If a parent is unemployed, or under
employed, a court may impute an income to that parent based
their prior employment, experience, and education.
The court also has the power to modify the amount of the
support at any later time until the child reaches the age
of majority if there is substantial change in the circumstances.
A substantial change in the circumstances could include a
change in the income of either of the parents or an increase
in the child's needs.
Failure to pay child support can result in serious penalties,
which could include incarceration of the non-paying parent.
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