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 their divorce prior to going to trial. Each divorce case is unique and therefore settlements vary.
Some couples agree on property settlements, a parenting plan, 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 all or some 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.
The divorce ends with a final hearing before a Judge or General Master. Florida does not allow jury trials 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.
Division of Property/Assets
Marital property/assets may include cars, real estate, 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. Debts associated with a specific asset should be considered. 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 will attempt to equitably divide them.
Retirement Benefits / Pensions
Each party is entitled to one half of the other party’s retirement benefits that were acquired during the marriage. Often, a special order called a Qualified Domestic Relations Order (QDRO) must be prepared and submitted to a benefits administrator to ensure that the former spouse receives his or her share of the other’s retirement benefits.
The Court has numerous options available when deciding how to divide the equity in the marital home.
- The home can be sold and proceeds/loss split.
- One party can buyout the other party’s share of the marital home.
- The home can be granted to one party as a form of lump-sum alimony.
- In some cases, exclusive use of a home can be granted to one party as a form of periodic alimony.
- If the parties have minor children, the party who has the children the majority of the time 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/loss split.
Division of Debts/Liabilities
Marital debts/liabilities include mortgage payments, income tax liabilities, credit card debts, personal loans, car payments and any 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 balance 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 solely responsible for specific debts/liabilities. This usually occurs in one of the following instances:
- The party was granted the asset subject to the debt ie. auto with lien.
- The party wasted marital funds on extra-marital activities.
- The party engaged in destructive or negligent behavior that resulted in an unnecessary loss of marital assets or money.
- To provide a more equitable result when there is extreme disparity between the parties’ incomes.
The court may grant alimony to either spouse if one has a need and the other has the ability to pay.
Alimony may be bridge-the-gap, rehabilitative, durational, or permanent in nature or any combination of these forms of alimony. In any award of alimony, the court may order periodic payments, payments in lump sum, or both. The duration of the marriage is usually key in determining whether and what type of alimony is appropriate:
- a short-term marriage is less than 7 years,
- a moderate-term marriage is 7-16 years,
- a long-term marriage is 17 years or greater.
Bridge-the-gap alimony is designed to assist a party to make a transition from being married to being single by helping to meet legitimate identifiable short-term needs. The length of an award may not exceed 2 years.
Rehabilitative alimony assists a party in establishing the capacity for self-support through either:
- Redevelopment of previous skills or credentials; or
- Acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials.
Durational alimony provides a party with economic assistance for a set period of time following a marriage of short or moderate duration. The length of an award of durational alimony may not exceed the length of the marriage.
Permanent alimony provides for the needs and necessities of life as they were established during the marriage. Permanent alimony may be awarded following a marriage of long duration, following a marriage of moderate duration if such an award is appropriate upon consideration of the factors, or following a marriage of short duration if there are exceptional circumstances ie. severe medical disability which occurred during the marriage. Permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony.
The court retains the power to modify the amount of the alimony at any later time if there is substantial change in circumstances. A substantial change in circumstances could include a change in the income of either of the parties or an increase in the recipients needs.
In determining the proper type and amount of alimony or maintenance, the court also considers relevant factors such as: the parties’ standard of living established during the marriage; the age and physical/emotional condition of each party; the financial resources of each party; the earning capacity, education, and vocational skills of each party; the special contribution of each party to the marriage, (ie. homemaking, child care, education, and career building of the other party); the responsibilities each party will have to their minor children; and the tax consequences to both parties of any alimony award. The court may also consider the adultery of either spouse and the circumstances thereof in making an alimony determination.
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. It is recommended that you consult with an accountant or other tax specialist.
Parental responsibility can be shared or sole parental responsibility. 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 except in the rare case where one parent has abandoned or abused the child(ren) or has perpetuated domestic violence on the other parent to the point that the child(ren) or other parent’s health and welfare would be compromised if the parties were ordered to confer.
Parenting Plan / Time Sharing
In every case involving minor children, a detailed parenting plan must be entered by the court. A parenting plan can be temporary (providing a plan for co-parenting during the interim until the final hearing / trial) or permanent (providing a plan for co-parenting until the child(ren) are grown. In either case, parenting plans can be modified by the agreement of the parties to address changes in circumstances.
The parenting plan specifies a time sharing schedule and details how the parties will otherwise co-parent their child(ren) for the best interest of their child(ren). Many times, divorcing parents meet and complete the parenting plan themselves. A blank parenting plan form can be obtained from an attorney or downloaded from various web sites. If parents are unable to agree how they will co-parent their child(ren), the Judge will develop a parenting plan for them after a trial on the issues.
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 time sharing regardless of their child's age, sex, or other factors.
In determining time sharing the court will consider all of the factors affecting the welfare and interests of the particular minor child(ren) and the circumstances of that family, including, but not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child(ren) as opposed to the needs or desires of the parent.
(d) The length of time the child(ren) have lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child(ren).
(i) The reasonable preference of the child(ren), if the court deems the child(ren) to be of sufficient intelligence, understanding, and experience to express a preference. Warning: The Court rarely allows children to testify and if the Court suspects a parent has coached a child regarding his/her preference it will be held against the offending parent in the final decision.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child(ren), including, but not limited to, the child(ren)'s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child(ren), such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child(ren), and the willingness of each parent to adopt a unified front on all major issues when dealing with the child(ren).
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child(ren)'s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child(ren) which is free from substance abuse and or pornographic material.
(r) The capacity and disposition of each parent to protect the child(ren) from the ongoing litigation as demonstrated by not discussing the litigation with the child(ren), not sharing documents or electronic media related to the litigation with the child(ren), and refraining from disparaging comments about the other parent to the child(ren).
(s) The developmental stages and needs of the child(ren) and the demonstrated capacity and disposition of each parent to meet the child(ren)'s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Relocation of a Child
Florida Statutes prohibit either parent from relocating with a child to a location greater than 49 miles away unless they have the written permission of the other parent or a court order allowing the move. The Court is reluctant to allow long-distance moves that separate a child from a parent who is actively engaged in regular time-sharing / visitation. Parents anticipating a move must comply with the provisions of Florida Statute 61.13001
prior to the relocation.
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 number of minor children, and the time the child(ren) spend with each parent (counted in overnights). 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 on their prior employment, experience, and education.
The court also has the power to modify the amount of the support 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 parents or an increase in the child's needs.
Failure to pay child support can result in serious penalties including incarceration.