Some laws, such as the right to vote, are national although the implementation of them is governed by the state. Divorce is similar. Some laws related to marriage, such as income tax laws, are regulated at the federal level. Other laws related to marriage and divorce are regulated at the state level.
Whether you are the petitioner who is asking for divorce in Florida , or are the respondent who has been asked for a divorce, it is important that you have a working knowledge of how the divorce process works. Your attorney can be your guide in the legal process and offer you advice, although any decision you make regarding your divorce should be an informed decision.
- ADR Available: Yes
- Fault or No Fault: No Fault
- Parenting Plan Required: Yes
- Property Distribution: Equitable
Dissolution Of Marriage In Florida
There are three basic types of divorce or dissolution of marriage in Florida. One form for simple divorces or short marriages is a Simple Dissolution of Marriage. This type of divorce is for couples who have no children, the wife is not pregnant, and the couple has filed a Financial Affidavit and a Property Settlement Agreement. Both spouses are considered a petitioner in a Simple Dissolution of Marriage.
The other types of divorce are:
- Uncontested Dissolution of Marriage in which the petitioner and respondent agree to the terms of the divorce
- Contested Dissolution of Marriage in which one or both parties disagree with one or more portions of a potential divorce agreement
Grounds For Divorce In Florida
Florida is a so-called “no-fault” divorce state. Essentially if you OR your spouse want a divorce you can have one on the grounds of irreconcilable differences. In addition, a divorce can be granted if there is mental incapacity of one spouse for three years immediately preceding the divorce request.
Divorce Waiting Period
The time to get a divorce that is required by law and the time it can actually take to get a divorce are two different matters. First, there is a six-month residency requirement before filing for divorce in Florida. Second, there is a 20-day waiting period between the date the petition is filed and the date a judgment can be officially entered.
As a practical matter, there are meetings with lawyers, financial statements to prepare and many discussions to be had before agreement is typically reached. Six months is a typically realistic time frame although some divorces may take much longer.
Alternative Dispute Resolution (ADR)
Florida allows ADR as a means to obtain a divorce or Dissolution of Marriage. These various ADR methods can be used as a first step to gain agreement between the petitioner and respondent.
- Mediation: A neutral third party helps the couple communicate in a productive manner to achieve agreement.
- Arbitration: A neutral third party (usually a retired judge) will hear both sides of the issues and make a decision. The decision can be either binding (a legal determination) or nonbinding (a recommendation).
- Collaborative Divorce: Each spouse has his or her own attorney and all parties agree to work together to come to an agreement and to work toward avoiding court. The attorneys, petitioner and respondent are all working toward the same goal. If the collaborative divorce doesn’t reach an agreement, you and your spouse will both need new attorneys to proceed to court.
Another way of ending a marriage is to have it annulled. An annulment is a way of voiding the marriage and saying that it was never legal in the first place. Only specific conditions can be cause for annulment. Those conditions are:
- Coercion (One party was forced into the marriage)
- Fraud (One party was tricked into marrying)
- Incapacitation (One party was drunk or for some other reason unable to consent)
- Underage (One party was not yet 18 years old at the time of the marriage)
Child Custody Determinations
The court makes child custody determinations in Florida according to the best interests of the child or children. In general if parents agree to a child custody arrangement, the court will agree to it as well unless there is a pressing reason to make some other determination.
There are two types of child custody:
- Legal custody: The power to make decisions regarding religious upbringing, education and important medical decisions such as whether or not to have a surgery
- Physical custody: The ability to care for the child in terms of food, shelter, emotional support and other aspects of caregiving
In Florida both legal and physical custody are shared unless there is a reason to do otherwise. Reasons to not grant child custody include domestic violence, sexual violence, child abuse, child abandonment or lying about any of those situations.
In Florida a parenting plan is defined as a “document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child and must contain a time-sharing schedule for the parents and child.”
Both parents are assumed to be responsible for supporting the child or children from the marriage. The amount of child support that may be owed by one party or the other depends upon each party’s net income.
The way that it works is that the couple’s net income is added together, a chart determines the amount that is owed, and each party is responsible for a corresponding percentage of the child’s support. The state-supplied chart determines the amount for one child or two or more children.
To use round numbers, if a couple has a net income of $5,000 per month, the amount of support one child needs is $1,000, and two children would require $1,551 according to the chart. If the parents each earned $2,500 per month, and share physical custody, child support may not be ordered in that case.
Child Support Enforcement
Child support ordered by the court must be paid. If it is not paid, the court has the authority to garnish wages, intercept income tax refunds, place a lien on motor vehicles and take other measures to obtain payment.
There are two exceptions to this:
- Property that belonged to the parties prior to the marriage continues to belong to the individuals unless the property has been mingled with other marital property.
- Property that was inherited by one of the parties remains that individual’s property as long as it has remained separate and not comingled with marital property.
Marital property in Florida is divided in an equitable fashion, which is not the same as an equal division. For example, one spouse may retain the family home and the other may retain a corresponding amount of value in stocks or retirement assets. The assets which are divided include:
- Real estate including vacation properties
- All motor vehicles, boats and similar possessions
- Household furniture and clothing
- Retirement savings
- Stocks, bonds, 401(k)s and similar assets
- Collections (artwork, guns, dolls or similar)
It is important to note that assets are divided and so, too, are the debts. For example, if a home is owned and the mortgage is greater than the estimated value of the home (the mortgage is underwater), the home could be treated as a debt, rather than an asset. Each married couple’s financial situation is unique and will result in a slightly different division of property determination.
There are many factors that go into a court’s determination of an alimony or spousal support award. Although Florida is a no-fault divorce state, fault such as adultery can be considered by the court when determining whether to award alimony. Either temporary alimony can be awarded, or permanent alimony, or both.
Temporary alimony is sometimes transitional until the divorce is finalized, or can be until additional schooling or training has been completed that allows a stay-at-home spouse to become self-supporting.
Prenuptial And Postnuptial Agreements
According to The Centers for Disease Control and Prevention, the probability that a first marriage will last at least 10 years is 68 percent for women and 70 percent for men. The probability that a first marriage will reach the 20-year mark is 52 percent for women and 56 percent for men. Additionally, the National Center for Health Statistics showed that nearly half of those who were recently married included at least one spouse who was remarrying.
These numbers are important because they show two reasons why a prenuptial agreement is important. First, because many marriages end in divorce, a prenuptial agreement can protect both parties. It states how you and your new spouse would handle the property division, alimony and child custody issues for children who may be conceived. Secondly, many marriages are remarriages in which the spouses could be bringing significant assets as well as children into the new marriage, and a prenuptial agreement would protect those assets.
A postnuptial agreement has the same considerations as a prenuptial agreement, although it is created after the couple is married. Sometimes a postnup is created because the couple just didn’t get the prenup signed or created before the wedding. Other times a postnuptial agreement is used during a time of stress in the marriage such as when an addiction develops or there is other tension. The prenup is created before issues become too volatile to discuss.
If there is one thing that can be counted on it is that circumstances change. When the situation changes significantly, there may be a need for a court-approved post-divorce modification. Some reasons for a post-divorce modification include:
- Long-term unemployment (change in support payments)
- Significant illness of a parent (change in parenting plan)
- Major health condition of a child or children
- Parent relocation to another state or county (change in parenting plan or custody)