Learn Something about Divorce law in Florida

Scott Smiley will be able to answer all of your questions concerning your dissolution of marriage or custody issues.  But this page contains a brief synopsis of Florida law on these issues.  These are not intended as answering your questions, instead they help you understand how the Court system operates and what factors may be involved in your case.

Residency and Filing Requirements:

In order to file for a dissolution of marriage (divorce) in Florida, resident requirements must be met. If the court discovers these are not me the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:

To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition. The dissolution of marriage can be filed in the county in which either or both spouses reside. (Florida Statutes – Chapters: 61.021)

Grounds: While Florida is a no fault divorce state, such that the court will ask nor care whose fault the divorce is, the Petition for Dissolution of Marriage must declare the appropriate grounds upon which the dissolution of marriage is being sought. The dissolution of marriage grounds are as follows:

(a) The marriage is irretrievably broken.

(b) Mental incapacity of one of the parties. However, no dissolution shall be allowed unless the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least 3 years. (Florida Statutes – Chapters: 61.052)

Filing Spouse Title: Petitioner. The Petitioner is the spouse who initiates the filing with the family law or domestic relations court.

Non-Filing Spouse Title: Respondent. The Respondent is the spouse who does not file the initial dissolution of marriage papers, but rather receives them by service.

Court Name: In Florida, divorces and all related court actions are brought in the in the Circuit Court in and for the County of __________, Florida. 

Primary Documents: Petition for Dissolution of Marriage and Final Judgment of Dissolution of Marriage. These are the essential documents needed to start and finalize a dissolution of marriage according to Florida law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Affidavit of Witness, Marital Settlement Agreement, Family Law Financial Affidavit, Answer, Waiver, and Final Disposition Form.

Court Clerk’s Title: County Clerk’s Office of the Circuit Court. The clerk or the clerk’s assistants will be the people managing and filing your paperwork with the court.

Property Distribution:

Since Florida is an “equitable distribution” state, the marital property will be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.

In a proceeding for divorce or “dissolution of marriage” in addition to all other remedies available to a court to do equity between the parties, the court shall set apart to each spouse that spouse’s non-marital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker if no paying job is held.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) 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 spouse.

(g) 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.

(h) 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 fair  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 grown 

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

(j) Any other factors necessary to do equity and justice between the parties. (Florida Statutes – Chapters: 61.075 and 61.077)

Spousal Support or Alimony

Not all cases involve support or alimony from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court’s discretion.

In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be temporary or permanent. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. This is usually the only area where adultery is relevant.

In determining a proper award of alimony or maintenance, the court should consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the non-marital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.

To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose. (Florida Statutes – Chapters: 61.08)

Child Custody

When minor children are involved in a dissolution of marriage, the Florida courts will do everything possible to help reduce the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order.

The court will determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act. It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.

The father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child.

The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.

In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family.

The court shall order “sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests of” the minor child.

Child Support

Florida child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent¹s income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2’s and child support worksheets are available at the courthouse.

The court has the right to order child support according the Florida Child Support Guidelines. These guidelines are based on the income of each parent along with applicable deviation factors that may exist. If the parents cannot come to a reasonable agreement on the child support amount the court will use the support guidelines located in the Florida Statutes.

Income shall be determined on a monthly basis for the obligor and for the obligee as follows: (a) Gross income shall include, but is not limited to, the following items:1. Salary or wages. 2. Bonuses, commissions, allowances, overtime, tips, and other similar payments. 3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income. 4. Disability benefits. 5. All workers’ compensation benefits and settlements. 6. Unemployment compensation. 7. Pension, retirement, or annuity payments. 8. Social security benefits. 9. Spousal support received from a previous marriage or court ordered in the marriage before the court. 10. Interest and dividends. 11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income. 12. Income from royalties, trusts, or estates. 13. Reimbursed expenses or in kind payments to the extent that they reduce living expenses. 14. Gains derived from dealings in property, unless the gain is nonrecurring.

The court may adjust or reduce the minimum child support award, or either or both parents’ share of the minimum child support award, based upon the following considerations: 1. Extraordinary medical, psychological, educational, or dental expenses. 2. Independent income of the child, not to include moneys received by a child from supplemental security income. 3. The payment of support for a parent which regularly has been paid and for which there is a demonstrated need. 4. Seasonal variations in one or both parents’ incomes or expenses. 5. The age of the child, taking into account the greater needs of older children. 6. Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines. 7. Total available assets of the obligee, obligor, and the child. 8. The impact of the Internal Revenue Service dependency exemption and waiver of that exemption. The court may order the primary residential parent to execute a waiver of the Internal Revenue Service dependency exemption if the noncustodial parent is current in support payments. 9. When application of the child support guidelines requires a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order. 10. The particular shared parental arrangement, such as where the child spends a significant amount of time, but less than 40 percent of the overnights, with the noncustodial parent, thereby reducing the financial expenditures incurred by the primary residential parent; or the refusal of the noncustodial parent to become involved in the activities of the child. 11. Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt which the parties jointly incurred during the marriage. (Florida Statutes – Chapters: 61.13 and 61.30)
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