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Divorce/Dissolution of Marriage
What type of
divorces are available in Florida? No-Fault Divorce: Florida is a no fault divorce jurisdiction, meaning that the spouse filing for divorce does not have to show that the other spouse was at fault (i.e. that he/she did something to cause the filing spouse to file for divorce). What grounds for divorce are available in Florida? 1. Generally, there are two grounds for divorce in Florida: a. The marriage is irretrievably broken. b. The non-filing spouse has been adjudicated (found by a judge to be) mentally incompetent. 2.
There are two ways to qualify for a no-fault
divorce in Florida: a. The petitioning spouse (the person filing for divorce) must state that the marriage is irretrievably broken. b. The petitioning spouse can show that the other spouse has been adjudicated mentally incompetent, for a period of three (3) years prior to the filing for dissolution of marriage. What is a
contested divorce? In general, a "contested" divorce is any divorce in which there is a disagreement. The parties may be filing for a "no-fault" divorce and still be in disagreement about the division of property, custody of the children, spousal support, child support, visitation or a multitude of other issues. If there is disagreement over these types of matters, the divorce is considered contested. Often, these types of issues can be worked out between attorneys or with a property settlement agreement. If they are not resolved, they remain contested, and the parties generally end up having to go to trial. When a trial is necessary, a divorce will take longer, and cost more, than an uncontested divorce. How long does it
take to get a divorce? Generally, in Florida an uncontested divorce takes about 90 days. Florida has a 20 day waiting period from the date the respondent spouse is officially 'served' the divorce papers. The person filing for the divorce is the only party who has to sign any of the documents. The other spouse does not have to sign any pleadings or papers and does not have to appear for the divorce hearing. Uncontested divorces are done in front of a judge. The petitioning spouse must show that he/she has lived in the jurisdiction for a period of six (6) months prior to filing for divorce. The petitioner can produce a driver’s license to show, or bring a witness to attest to, his/her residency. The court process usually takes no more then half an hour. What about an
annulment? Annulments in Florida can be difficult to get, and there
are very limited grounds. There are
no "trial" marriages in Florida.
An annulment cannot be based on the fact that the marriage was short;
certain grounds must be shown for a court to grant an annulment of a marriage.
In general, those grounds are: 1. The party did not know what he/she was doing when he/she got
married. For example, a person could be so intoxicated that he/she did not
know he/she got married. 2. The marriage was illegal. Certain types of marriages are illegal in Florida. For example, you cannot marry certain members of your family. 3.
There was fraud involved that goes to the heart of the marriage. A fraud-based
annulment may be difficult to prove, and it must involve something essential to the marriage.
Property Rights. There are several types of property in Florida. 1.
Separate Property.
Separate property is property owned by a spouse prior to the marriage.
Property inherited by one spouse or given to that spouse, during the marriage, by
a third party, is also separate. Sometimes,
separate property can become partially or wholly marital if the other spouse
makes a personal contribution to increase its value or if it is commingled
with marital property, such that the separate property cannot be traced.
Also, if separate money is used to purchase a marital asset, the asset
may end up being part separate and part marital.
This is a complicated issue and should be discussed with Ms. Solomon if
you have any questions in this area. 2.
Marital Property.
Marital property is any property acquired during
the marriage. Often times, one
spouse thinks that because he/she used his/her paycheck to pay for an item, it
belongs to him/her. This is not the
case. Money earned during the
marriage is marital money. Debts
incurred during the marriage are marital debts, even if they are only in one
spouse's name, unless the debt is for something unrelated to the marriage. Retirement accounts accumulated during the marriage are
marital, including any additions to retirement accounts that existed prior to
the marriage. Florida uses a system
of "equitable distribution," not community property, to distribute marital assets
between the parties. Accordingly,
distribution is dependent upon the particular facts of the marriage. 3.
Part Separate and Part Marital
Property. Some property may be
part separate and part marital. For
example, if one spouse uses separate money
Spousal Support. In Florida, the obligation to support a spouse is
reciprocal. The extent of support
depends, among other things, upon the needs of one spouse and the ability of the other spouse to pay.
In determining alimony, the court will consider length of the marriage,
standard of living, age, physical and emotional condition of each party, time
needed to obtain education or training, financial resources, contribution to the
marriage, all sources of income available to either party, and other factors. There are five types of spousal support in Florida: pendente lite (temporary); permanent periodic; rehabilitative;
bride-the-gap; and lump sum. 1. Pendente Lite Spousal Support:
Temporary spousal support paid, during the proceedings, while the parties are
separated, and up until the parties are divorced, and the court distributes the
property. The Courts in this area
use a calculation based on each spouse's earnings and other factors to determine
how much the pendente lite support will be, and, generally, award support in
that amount. The amount of
temporary support is not representative of how much, if any, permanent alimony
will be awarded. A party may be
awarded pendente lite support, even for a very short marriage, while that spouse
may not qualify for any other type of support after the divorce.
However, if one spouse makes significantly more money than the other,
pendente lite support will most likely be awarded.
Either spouse may petition for pendente lite support.
This issue usually arises only in "contested" divorces. 2. Permanent Periodic Alimony: Spousal support which, absent an agreement to the contrary, terminates upon the death of either spouse or the remarriage of the recipient spouse. PPA is paid regularly to support a spouse who has neither the resources nor the ability to be self-sustaining. This type of support usually applies to long-term marriages, often when one spouse has been out of the workforce a long time. An award of permanent spousal support is discretionary with the court. Whether or not the court awards permanent spousal support is based on many factors, including the length of the marriage, the relative financial abilities of the parties, the need of the spouse seeking support, the amount of property divided between the parties, the standard of living established during the marriage, and several other factors. Either spouse may petition for permanent periodic spousal support. 3.
Rehabilitative Alimony: Temporary spousal support usually awarded to
allow one spouse to get back on his/her feet financially, to receive additional
training or education or for other rehabilitative reasons. 4. Bridge-the-Gap Alimony: Temporary spousal support usually awarded to help one spouse to make the financial transition from married to single life. 5. L ump Sum Alimony: An award of a definite sum of money or property to be paid by one spouse to the other. It does not terminate. The court uses lump sum alimony to make up for non-vested interests. The court can order the money to be paid in separate payments or all at once. Awarding lump sum alimony is a way to equitably (fairly) distribute assets. This award creates a vested interest not subject to defeasance or modification. It is final and survives the death of either spouse. Lump sum alimony must be justified on some basis beyond one spouse’s need and the other’s ability to pay (e.g., to ensure a fair division of property). Custody. There
are several types of custody arrangements available in Florida, and parties may
agree on an arrangement that best suits the parties and the best interests of
the child(ren), even if they do not pigeonhole with the below categories of
custody. Best Interest of the Child(ren): In Florida, as in many states, the standard of awarding custody and visitation is the best interest of the child(ren), with neither party having a superior claim: regardless of the child’s age. The child's welfare is the primary consideration when determining primary residential responsibility. Factors the court considers when determining best interest include, but are not limited to, health of the parties, ties to institutions such as schools and religious institutions, pecuniary welfare, natural ties to siblings, and child preference. The weight given to a child’s preference is affected by the age and maturity of the child. 1.
Shared
Parental Responsibility (Joint Legal Custody):
Shared parental responsibility means that both parents retain full legal rights over
their children.
Parents must confer and make major decisions jointly.
In Florida, a court will order shared parental responsibility unless it
is not in the best interest of the minor.
2.
Primary Physical Custody.
Physical custody is custody of the child's body (i.e. the child him/herself).
Parents often share joint legal custody, with one parent having physical custody
of the child. a.
Primary Care. Primary care is similar in concept to physical
custody. A parent with primary care is responsible for the principal care of the
child. Again, parents often share joint legal custody, with one parent having
primary care of the child. b.
Primary Residence. This
concept is similar to primary care. It means that the child's primary residence
is with that parent. Primary residence can be alternated. For example, one
parent could have primary residence during the school year and the other during
the summer. 3.
Joint Legal and Physical Custody/Rotating Custody. Joint legal and physical custody
means that each parent has an equal voice in major decisions affecting the child
and an equal right to the child him/herself. It does not, necessarily, mean that
each parent has the right 50% of the time, although that is sometimes done in
this type of arrangement. Rather, it means that each parent has equal rights as
noted above. The time the child spends with each parent depends on the
arrangements agreed to by the parents and/or ordered by the Court. Custody and
Visitation. This type of arrangement means that one parent has custody, both
legal and physical, and the other parent has visitation rights. Visitation
rights may be worded as "reasonable visitation" or "liberal
visitation," or visitation may be spelled out in detail including dates,
holidays and times. Visitation is worded to suit the needs of the parents and
child(ren) and
depends, again, in great part on whether the parents are able to communicate
regarding the child. Visitation. The
visitation schedule may be agreed upon by the parties and designed to suit both
parents' schedules and the needs of the child(ren). A somewhat standard
visitation schedule consists of visitation with the non-custodial parent every
other weekend and, sometimes, one day per week. Additionally, holidays are
generally shared and alternated, and provisions are usually made for extra
visitation time during the summer. Fathers Day is, generally, with the Father,
and Mothers Day is, generally, with the Mother, no matter whose weekend it is.
Different visitation schedules work for different parties, and much depends on
how well the parents work together and communicate regarding the child. Child Support. Child support is based on the Florida Guidelines for child support. The following information is used to calculate the amount of child support: 1. Each parent's net annual income from all sources.
2.
The cost of health insurance for the child. The additional amount 3. The employment-related daycare/childcare expenses for the child.
4.
Any extraordinary medical expenses for the child. These numbers are used in the formula. Then, the
Guideline amount is calculated from the income chart. It is unusual for a
Court to deviate from the Guideline amount, but, occasionally, there are reasons
for a deviation. A court must show cause for deviating more than 5% from the
guidelines. Name Change: A wife has the right to change her name back to her maiden name or her former married name when she is divorced. A husband may not change the wife's name without her consent. A request for a name change is simply included in the divorce documents filed with the Court. The Court does not charge to record the name change if requested at the time of the divorce. .
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