Legal Overview

Divorce in Florida requires that one of the parties has been a resident for at least six months. There are no specific “grounds” that are required to get a divorce in Florida, other than one spouse’s belief that the marriage cannot continue. Read our detailed legal summary of Florida including Regular and Simplified dissolutions, tax and debt, alimony, property, custody, child support, appeals, and attorney fees.

In Florida all that is required for a divorce is that the marriage be “irretrievably broken.” All that has to be proved is that a marriage exists, one party has been a Florida resident for six months, and the marriage is broken. Fault, however, may be considered under certain circumstances in the award of alimony and determination of custody issues.

Court procedures must be strictly followed or you may lose certain rights forever. It is recommended that you obtain the services of an attorney concerning legal questions, your rights in a divorce, your children’s rights, your property rights, your responsibilities resulting from the marriage or tax consequences. A knowledgeable lawyer can analyze your unique situation, and can help you to make decisions in the best interest of you and your family.

Divorce Process

Regular Dissolution of Marriage

The regular dissolution process begins with a petition for dissolution of marriage, 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. The other partner must file an Answer within 20 days.

Court rules governing divorces require that each party provide certain financial documents and a completed financial affidavit to the other party within 45 days of the service of the petition or before any temporary relief hearing. 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.

Some couples agree on property settlements, child custody, 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 such an uncontested case, a divorce can become final in a matter of a few weeks. Other couples disagree on some issues, work out their differences, and appear for a final hearing with a suggested settlement which is accepted by the judge.

Mediation is a procedure to assist you and your spouse in working out an arrangement for reaching agreement without a protracted process or a trial. Its purpose is not to save a marriage, but to help divorcing couples reach a solution to their problems and arrive at agreeable terms for handling their dissolution. Many counties have mediation services available; some are mandatory. Finally, some couples cannot agree on much of anything and a trial-with each side presenting its case-is required. The judge makes the final decision on contested issues.

Simplified Dissolution of Marriage

Certain Florida couples are eligible to dissolve their marriage by way of a simplified procedure. These dissolutions are “do-it-yourself” and were designed so the services of an attorney may not be necessary. Couples are responsible, however, for filing all necessary documents correctly, and the couple is required to appear before a judge together when the final dissolution is granted. If you desire the services of an attorney for this dissolution process, it can usually be completed relatively inexpensively.

The simplified dissolution of marriage process is designed for couples who do not have dependent children and have agreed on a division of their property and debts. Therefore, not everyone can qualify. A husband and wife can use the simplified dissolution of marriage only if:

• they both agree to the use of this form of dissolution proceeding;
• they have no minor (under 18) or dependent children;
• have no adopted children under the age of 18;
• the wife is not pregnant;
• at least one of the parties has lived in Florida for the past six months;
• the parties have agreed on the division of all of their property (assets) and obligations (debts); and
• both parties agree that the marriage is irretrievably broken and want to end their marriage because of serious permanent differences.

Couples wanting to use the simplified process must meet all these conditions. If not, they must use the regular dissolution of marriage process. With a simplified dissolution neither the husband nor the wife can receive support (alimony) from the other.

If the husband and wife agree on a dissolution, and prefer to use the simplified form of dissolution, then they should both contact the clerk of the circuit court in their area and obtain a copy of the booklet titled “Simplified Dissolution Information” for more detailed information and forms.

Attorney’s Fees and Costs

The more complex your affairs and the more contested the issues, the more the dissolution will cost. At an initial meeting, your attorney should be able to provide an estimate of the total cost of a dissolution based on the information you provide. Your lawyer will expect you to pay a fee and the costs of litigation in accordance with the agreement you make.

Division of Property

One of the most difficult and complex areas of divorce is the division of marital property. Marital property may include cars, houses, retirement benefits (pensions), and other things of value. According to Florida law, the marital property should be divided fairly or equitably between the parties regardless of how the title is held.

The division of marital property is considered in conjunction with all other awards of alimony and interests in property. There is no fixed way to determine how you or the court should divide the property. Debts as well as assets must be considered. Other factors include the nature and extent of the property and whether it is marital property or non-marital property; the duration of the marriage; and the economic circumstances of each spouse.

Spousal Support

The court may grant alimony to either the husband or the wife. Rehabilitative alimony may be for a limited period of time to assist in redeveloping skills and financial independence. Permanent alimony continues until the receiving spouse’s remarriage or the death of either party. The court may grant some combination of the two. Also the court may order through lump-sum alimony one party to pay the other party a lump-sum payment of money or property. Although adultery does not bar an award of alimony, the court may consider the adultery of either spouse and the circumstances of that adultery in determining the amount of alimony to be awarded.

In awarding alimony, the court considers all relevant economic factors, such as: the parties’ prior standard of living; length of the marriage; etc. The court may consider any other factor necessary to do equity and justice between the husband and wife. You have the right to find out about all your spouse’s income and assets through the use of discovery procedures which your attorney will explain to you.

Child Custody

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 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.

You and your spouse may agree, or the court may order, that one parent have the ultimate responsibility over specific aspects of the child’s welfare, such as education, religion, removal from the area, and medical and dental needs.

In rare cases, the court can order total parental responsibility and to one parent. To do so, the court must determine that shared parental responsibility would be detrimental to the child. In considering issues between parents and their children, the best interest of the child is the primary consideration by the courts.

Child Support

You and your spouse each have a responsibility to support your children in accordance with their needs and your financial abilities. Support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches 18, marries, or becomes financially independent.

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.

Taxes and Debts

There are very important tax considerations to be aware of in any divorce, including the dependency deduction for children, taxability and deductability 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. Afterwards, it may be too late to correct mistakes that have been made. Often this may require the services of an accountant in conjunction with your attorney.
Any debts that the husband and wife may have should also be resolved at the time of the divorce. The question of who should pay mortgage payments, income tax liabilities, credit card debts, personal loans, car payments and other debts should not be overlooked.

Appeals

After a regular dissolution of marriage, if you feel the judge’s decision was incorrect, you may appeal that decision, provided that certain procedural steps are taken. Just because you do not like the judge’s decision is not a reason for an appeal. If the trial judge makes an error of law, or has abused his discretion, the decision may be reversed.