WHAT IS DISSOLUTION OF MARRIAGE?
The official term for divorce in Florida is “dissolution of marriage.” The regular dissolution process begins with a petition for dissolution of marriage, filed with the circuit court, in the county where you last lived together as husband and wife or in the county where either party resides. Either the husband or wife may file for dissolution of marriage. The petition sets out what the person wants from the court. The other spouse must file an answer within 20 days of being served, addressing the matters in the initial petition and, if he or she wishes, including a counter-petition for dissolution of marriage raising any additional issues the answering party requests the court to address.
WHAT IS A SIMPLIFIED DISSOLUTION OF MARRIAGE?
Not everyone can use this simplified procedure. A husband and wife can use the simplified dissolution of marriage only if all the following requirements are met: (a) they both agree to the use of this form of dissolution proceeding; (b) they have no minor (under 18) or dependent children; (c) they have no adopted children under the age of 18; (d) the wife is not pregnant; (e) at least one of the parties has lived in Florida for the past six months; (f) the parties have agreed on the division of all of their property (assets) and obligations (debts); (g) neither party is seeking alimony; and (h) both parties agree that the marriage is irretrievably broken. If you cannot meet all of the above requirements, you will have to follow the procedure of the regular dissolution of marriage process.
DOES IT MATTER WHO IS AT FAULT?
Florida is one of the many states that has abolished fault as a ground for divorce. The only requirement to dissolve your marriage is to prove that your marriage is “irretrievably broken.” Either spouse can file for the dissolution of marriage. You must prove that a marriage exists, one party has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken. Fault, however, may be considered under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and determination of parental responsibility.
HOW LONG DOES A DIVORCE TAKE?
Each divorce case is unique and, therefore, results vary from case to case. In each case, the issues are different, which can include the division of property and possessions, responsibility for support, and parental responsibility and time-sharing with children.
CAN I GET ALIMONY?
After equitable distribution, the court may consider an alimony award. The court may grant alimony to either the husband or the wife. In awarding alimony, the court considers 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 consider any other factor necessary to do equity and justice between the husband and wife.
Florida House Bill 907 made some big changes to to the types of alimony awarded in Florida, the rules for awarding alimony and the legal presumptions a court makes when considering whether to award alimony. These changes apply to new alimony awards entered on or after July 1, 2010. There are now three additional factors for a judge to consider when making an alimony award in Florida:
1. The responsibilities each party will have with regard to any minor child they have in common.
2. The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.
3. All sources of income available to either party through investments of any asset held by the party.
If you are married less than 7 years, it is considered short term marriage. If you are married more than 7 years but less than 17 years, it is a moderate term marriage and over 17 years it is a long term marriage. These lengths are measured from the date of marriage to the date of filing of a petition for dissolution of marriage.
WHAT ARE THE DIFFERENT TYPES OF ALIMONY?
Rehabilitative alimony may be for a limited period of time to assist in redeveloping skills and financial independence. Parties requesting rehabilitative alimony must have a plan for their rehabilitation such as the cost of going to school to improve skills and marketability. Bridge-the-gap alimony allows a party to make the transition from married to single life which may include the need to obtain a vehicle and/or money to find a place to live. Permanent alimony continues until the receiving spouse’s remarriage or the death of either party. The court can also order alimony for a certain period of time, which is called durational alimony.
Rehabilitative, permanent, and durational alimony generally are paid periodically (i.e., monthly or semi-monthly); bridge-the-gap alimony can be paid in a lump sum at one time, or may be paid over a very short period of time. The court may also order lump-sum alimony where one party pays to the other party a lump-sum payment of money or property. Although adultery does not mandate or bar an award of alimony, the court may consider the circumstances of adultery in determining alimony.
Florida House Bill 907 also clarified the requirements for different types of alimony that can be awarded in Florida. The biggest difference is the creation of a “durational” alimony. Durational alimony is meant for situations in which one party needs economic assistance for a set time after a short term (less than 7 years) or a moderate term (7-17 years) marriage. The most important principle of the new durational alimony award in Florida is that the amount of a durational alimony award may be modified or terminated based upon a substantial change in circumstances. The length of durational alimony may not be modified absent exceptional circumstances. It terminates if either party dies or if the recipient remarries. The length of a durational alimony award cannot be longer that the length of the marriage.
HOW WILL PROPERTY BE DIVIDED?
One of the most difficult and complex areas of divorce is the division of marital assets and debts. Marital property may include cars, houses, retirement benefits (pensions and 401k plans), business interests, cash, stocks, bonds, bank accounts, personal property, and other things of value. Debts, also called liabilities, include mortgages, car loans, credit card accounts, and other amounts of money you and your spouse owe to third parties. Generally, any asset or liability acquired during the marriage is considered marital and subject to distribution. The parties may also have assets or liabilities that are considered non-marital and should be awarded to only one party.
Florida statutes and case law provide for an “equitable distribution” of marital assets and liabilities. Marital property should be divided fairly or equitably (not necessarily equally) between the parties, regardless of how title is held. A court decides equitable distribution before considering alimony. Equitable distribution is based on a long list of factors the court is required to consider.
Factors to be considered by the court include the contribution of each spouse to the marriage; the duration of the marriage; and the economic circumstances of each spouse. The court should approve your agreement if the court finds it to be reasonable. If you and your spouse cannot agree, the court will divide the assets and liabilities during trial.
HOW IS CHILD SUPPORT DETERMINED?
The parties each have a responsibility to support your children in accordance with their needs and your income. Ordinarily, the obligation to support your child ends when that child reaches age 18, marries, is emancipated, joins the armed forces, or dies.
Some of the issues concerning child support which must be considered include: (a) the amount of support; (b) the method of payment; (c) ways to assure payments are made; (d) when child support may be increased or decreased; and (e) who claims the dependency deduction for tax purposes. Other questions may need to be answered, depending on the circumstances of your case. Guidelines for the amount of support apply to all cases and are based on the income of the parents and the number of children with adjustments for substantial overnight contact.
WHAT CAN I DO IF CHILD SUPPORT IS NOT BEING PAID?
If you have a problem getting support payments from your spouse or former spouse, or the time-sharing plan is not being followed, you should bring this matter to the attention of the court. It is not legal to withhold time sharing or child support payments because either parent fails to pay court ordered child support or violates the time-sharing schedule in the parenting plan.
WHAT IS SHARED PARENTAL RESPONSIBILITY?
The courts use the Best Interests of the Child Standard when considering parental issues. It is the public policy of Florida to ensure each minor child has 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. In most cases, parental responsibility for a minor child will be shared by both parents so that each retains full parental rights and responsibilities with respect to their child. Shared parenting requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly. In very rare cases, the court can order sole parental responsibility to one parent. To do so, the court must determine that shared parental responsibility would cause harm to the child.
WHAT IS A PARENTING PLAN?
In determining parental responsibility, the court will approve or devise its own a parenting plan that includes responsibility for the daily tasks of child rearing, the time-sharing schedule, and decision-making authority relating to health care, school, and related activities. The plan will also specify any technology that will be used for parent-child communication. The parents may agree on a parenting plan and submit it to the court for approval or the court will determine these issues. The statute includes a list of factors for the court to consider in making these decisions.
DO I HAVE TO ATTEND A PARENTING CLASS?
Florida law requires both parties to attend a parenting course prior to entering a final divorce. Some courts require children of parents going through divorce to attend a class specifically designed for them.
WHAT IS MEDIATION?
Mediation is a procedure that allows parties, assisted by counsel or not, to craft solutions that become an agreement to fit their unique circumstances and address all of their concerns; solutions that may not be available in the courtroom. Additionally, resolution of cases at mediation can save time and money.
Parties to all family law cases are required by the Court to participate in mediation before you can go to a temporary relief hearing or trial. Attorney Johnson is a Florida Supreme Court Family Mediator who uses her skills to empower parties to devise agreements that meet their specific needs and thus produce stable agreements that are more likely to inspire long-term compliance by the parties.
