Florida Divorce Basics
Divorce in Florida is known as Dissolution of Marriage.
Residency Requirement:
To file for dissolution of marriage in Florida, either spouse must have lived in the state for at least six months prior to filing.
Filing:
The Petition for Dissolution of Marriage may be filed with the circuit court in the county where the Petitioner, spouse filing for dissolution, lives. The Respondent, the other spouse, must be notified of the Petition.
If the Respondent files an Answer and/or counter petition which disagrees with or denies anything in the Petition, the Petitioner may file a Notice for Trial and proceed with a contested dissolution.
Final judgment of dissolution of marriage may not be entered until at least 20 days after the date the Petition was filed, unless the court finds that an injustice would result from this delay.
Default:
The Respondent has 20 days to file an Answer the Petition for Dissolution of Marriage after being served. If he/she does not, the Petitioner may file a Motion for Default with the clerk of court, and after filing all the necessary paperwork, set a final hearing. The Petitioner must notify the Respondent of the hearing with a Notice of Hearing.
Uncontested:
If the Respondent files an Answer that agrees with the term in the Petition or an Answer and Waiver, and the Petitioner has complied with mandatory disclosure and filed all the necessary paperwork, he/she may set a final hearing. The Petitioner must notify the Respondent of the hearing with a Notice of Hearing.
Simplified Dissolution:
Florida provides for a streamlined, simplified dissolution procedure, if all the following conditions are met.
Both spouses agree the marriage cannot be saved;
There are no minor or dependent children of the marriage and the wife is not currently pregnant;
Both spouses have reached an agreement regarding division of property and debts;
Neither spouse is seeking alimony;
Neither spouse requires any financial information other than that which is provided in the court-approved financial affidavits;
The couple is willing to give up their right to trial and appeal;
Both spouses are willing to go to the clerk’s office to sign the petition (together or separately); and
Both spouses are willing to attend a the final hearing.
After filing the appropriate paperwork, the couple will obtain a date and time for a court appearance from the clerk of court. Both spouses must appear together before the judge at this hearing. At that time, if all papers are in order, the judge may grant a final judgment dissolving the marriage under the simplified dissolution of marriage procedures by signing a Final Judgment of Simplified Dissolution of Marriage which needs to be provided by the parties to the divorce.
Marital Settlement Agreement:
If a couple is able to agree on any or all of the related issues, they are advised to file a Marital Settlement Agreement for Dissolution of Marriage with Dependent or Minor Child(ren) or Marital Settlement Agreement for Dissolution of Marriage with No Dependent or Minor Child(ren), as applicable. If there are any remaining issues to be settled, they will be settled by a judge at the final hearing.
Spouse’s Name:
A wife may request that her maiden name be restored in a Petition for Dissolution of Marriage, and the judge will honor the request.
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Legal Grounds for Divorce
There are only two grounds for dissolution of marriage in Florida:
The marriage is irretrievably broken; or
Mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three years.
When dissolution is sought because the marriage is irretrievably broken and there is a minor child of the marriage, or the Respondent denies that the marriage is irretrievably broken in his/her Answer, the court may take any of the following actions:
Order either or both parties to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi, or any other person deemed qualified by the court and acceptable to the parties ordered to seek consultation;
Continue the proceedings for a reasonable length of time not to exceed three months, to allow the parties a change to reconcile; or
Take such other action as may be in the best interest of the parties and the minor child(ren) of the marriage.
Annulment
Annulment law in Florida is not defined in the statutes. Instead, it is based on years of previous case law.
The following are grounds one may allege to try to obtain an annulment in Florida.
One of the parties is under 18 years of age and did not obtain the consent of his/her parent or guardian to enter into the marriage;
One of the parties was under the influence of alcohol or drugs when she/her married and therefore did not have the mental ability to consent;
Physical incapacity to consummate the marriage;
Consent to the marriage was obtained as a result of fraud, deception, duress or force;
Bigamy; or
Mental incapacitation.
If the couple has consummated the marriage, it is generally seen as ratification and the marriage is no longer voidable, regardless of the previous circumstances. An annulment is filed as a lawsuit and the basic annulment procedure is similar to divorce.
Property Division
Florida is an equitable distribution state. Statute requires that marital assets and debts be distributed in a fair and equitable manner. Child support, time-sharing, and alimony awards may be considered when the court determines what is fair in the determination of how to divide the property and debts.
The court will consider the following factors when making determinations for property division.
The contribution to the marriage by each spouse, including contributions to the care and education of any child(ren) and services as a homemaker;
The economic circumstances of the parties;
The duration of the marriage;
Any interruption of personal careers or educational opportunities of either party;
The contribution of one spouse to the personal career or educational opportunity of the other spouse;
The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party;
The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the non-marital assets of the parties;
The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction;
The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years prior to the filing of the petition;
Any other factors necessary to do equity and justice between the parties.
All vested and nonvested benefits, rights and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation and insurance plans and programs are classified as marital property and, therefore, subject to distribution.
Alimony
Alimony may be granted to either party and is based on the requesting spouse’s need and the ability of the other spouse to pay. In Florida, there are four categories of alimony: bridge-the-gap, rehabilitative, durational, or permanent alimony. The court may order periodic payments, lump-sum payments, or both.
Marriages are categorized as short-term; moderate-term, or long-term. A short-term marriage is one which has lasted less than seven years. A moderate-term marriage has a duration of more than seven years, but less than 17 years. And a long-term marriage is one which has lasted for 17 years or longer.
Bridge-the-gap alimony is meant to help a spouse make the transition from being married to being single by providing support for legitimate identifiable short-term needs. The length of this type of award may not exceed two years and the duration is not modifiable.
Rehabilitative alimony is meant to help the receiving spouse achieve self-sufficiency by either redeveloping previous skills or credentials; or by acquiring the education, training, or work experience necessary to develop applicable employment skills or credential. A specific and defined rehabilitative plan must be included as part of the order. This type of alimony may be modified or terminated if there is a substantial change in circumstances, if the receiving party does not comply with the rehabilitative plan or upon completion of the plan.
Durational alimony may be awarded when permanent periodic alimony is not appropriate. Its purpose is to provide the receiving party with economic assistance for a set period of time following a marriage of short or moderate duration. This amount awarded with this type of alimony may be modified or terminated if there is a substantial change in circumstances. The length of the award, however, is generally not modifiable, except under exceptional circumstances, but may not exceed the length of the marriage.
Permanent alimony may be awarded to a spouse who lacks the financial ability to meet his/her needs and the necessities of life as they were established during the marriage. Permanent alimony may be awarded following a long duration marriage, or a moderate duration marriage if appropriate. It may only be awarded after a short duration marriage with exceptional circumstances. Permanent alimony may be modified or terminated if there is a substantial change in circumstances or upon the existence of a supportive, cohabitative relationship between the receiving spouse and a person not related by blood or affinity.
Bridge-the-gap, Durational and Permanent Alimony ends upon the death of either party or upon the remarriage of the receiving party.
If it is determined that there is a need for alimony by one party and that the other spouse has the ability to pay, the court will then review certain factors to decide on the proper type and amount of alimony to be ordered. These criteria include the following:
The standard of living established during the marriage;
The duration of the marriage;
The age and the physical and emotional condition of each party;
The financial resources of each party, including the non-marital and the marital assets and liabilities distributed to each;
The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to permit him/her to find appropriate employment;
The contribution of each party to the marriage, including services rendered in homemaking, child care, education and career building of the other party;
The responsibilities each party will have with regard to any minor children they have in common;
The tax treatment and consequences to both parties of any alimony award;
All sources of income available to either party, including income available to either party through investments of any asset held by that party; and
Any other factor necessary to do equity and justice between the parties.
The court may consider the adultery of either spouse and the relevant circumstances when deciding on the amount for alimony, if any, to be awarded.
If a court finds it necessary, it may order the paying spouse to purchase or maintain a life insurance policy, bond, or some other means of security for the alimony award.
To receive alimony, it must be requested in writing in the original Petition or Counter Petition. If it is not requested in writing before the final hearing, it is waived and cannot be requested later.
Child Custody and Support
Custody:
Child custody is determined based on the best interests of the child. It is public policy that minor children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities and joys of childrearing.
The court gives preference to shared parental responsibility, unless it finds that this would be detrimental to the child(ren), such as when a parent has been convicted of a misdemeanor of the first degree or higher involving domestic violence. A parent with this type of conviction may be prohibited from shared parental responsibility, including time-sharing with the child(ren), and decisions made regarding the child.
Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the minor child(ren) and the circumstances of the family, including the following criteria:
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;
The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties;
The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent;
The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
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, without bias towards relocation of a parent with a child;
The moral fitness of the parents;
The mental and physical health of the parents;
The home, school, and community record of the child;
The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference;
The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things;
The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime;
The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child;
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;
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;
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;
The demonstrated capacity and disposition of each parent to participate and be involved in the child(ren)’s school and extracurricular activities;
The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse;
The capacity and disposition of each parent to protect the child 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;
The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs; and
Any other factor that is relevant to the determination of a specific parenting plan, including time-sharing schedule.
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 this evidence was considered when evaluation the best interests of the child.
A court may order electronic communication between a parent and a child.
Support:
Florida uses the Income Shares Model to calculate child support obligations. The guidelines are based on the combined income of both parents and take into account the financial contributions of both parents.
Child support orders shall contain a provision for health insurance for the minor child(ren) when health insurance is reasonable in cost and accessible to the child(ren). Reasonable in cost generally means that the incremental cost of adding health insurance for the child(ren) does not exceed five percent of the gross income of the parent responsible for providing the health insurance.
If a court finds it necessary, to protect a child support award, it may order the paying spouse to purchase or maintain a life insurance policy, bond, or some other means of security.
Legal Separation
Florida does not recognize legal separation.
The court does have provisions addressing spousal and child support, custody and visitation unconnected with a dissolution action. A spouse who is living separate from his/her spouse and minor child can get court judgment of obligation to maintain his/her spouse and child(ren), if any. The court will hear and settle his/her financial obligations to the spouse and child and establish a parenting plan for them.
Links to State Resources
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