Family and Divorce

Guide to Getting a Divorce in Florida

If your marriage has reached a point of no return, then it’s important to know what your rights and responsibilities are as you go through your separation.

A divorce can be a trying time for any couple, especially if it was a long-term marriage. If your marriage has reached a point of no return, then it’s important to know what your rights and your responsibilities are as you go through finalizing your separation. Let’s take a look at everything you need to know about filing for divorce in Florida. 

How to File for Divorce in Florida

In order to file a divorce in Florida, you need to be sure you meet the eligibility resident requirements. To meet this, one of the filing parties must have lived in Florida for at least 6 months before they can move forward with filing for divorce in the court system. All filings must take place in the county where either of the parties lives. The only exception to eligibility residency requirements for getting a divorce in Florida is if one of the filing parties is a member of the military, has a residential address in Florida, but has been stationed outside of the state.

Grounds for Divorce in Florida

Florida is one of 17 states that follow the no fault divorce procedures. No fault divorce claims require nothing more than an explanation that your marriage is irretrievably broken. Usually, couples have gone through a rehabilitative plan or met with a marriage counselor or religious leader such as a priest or rabbi to save the marriage but have been unsuccessful. You can also claim divorce if your partner has been mentally incapacitated for at least 3 years. 

Filing Process

Once you have established that you’ve met eligibility requirements and that you and your spouse have reached a point of agreement that the marriage is no longer salvageable, you can move through with filing procedures. 

The first step is filing a form called the Petition for the Dissolution of Marriage. Only one spouse will need to file this original petition. Whoever files the form is considered the “petitioner”. The other person in the relationship who will be receiving the form is called the “respondent”. 

Once the form has been filled out, the petitioner must deliver the form to the respondent. This action is formerly known as serving the divorce papers. Once the divorce papers have been served, your partner will need to officially agree to the divorce. Once they have agreed to move forward with the divorce, the respondent will need to fill out a separate form called the Answer and Waiver of Service. A signature and a notarization is required on the form before it gets filed. 

In some instances, the partner in the marriage who is designated as the respondent may not be available or willing to accept the divorce papers. When this happens, you can involve your local authorities, typically the sheriff, to serve the divorce papers on your behalf. 

Property Issues and Financial Disclosure

Once your divorce papers and credentials have been filed, Florida requires a time period of 45 days for you to turn in a signed financial affidavit. A financial affidavit documents all the financials  in your marriage. They will typically include information regarding your income, any accrued assets, and any debts between you and your spouse. The financial affidavit will also include information regarding tax returns, credit card statements, bank statements, and any other personal financial statements such as those involved with a retirement account or a life insurance policy. The next step in the divorce proceedings will be to decide what each spouse will walk away from the marriage with. 

Marital Assets are Determined 

Florida is not a community property state meaning marital property does not need to be divided equally. Instead, Florida follows the majority of states in being an equitable distribution state. As an equitable distribution state for divorce, after a marriage is dissolved, the marital property is divided in an equitable manner which is equal and fair for both parties. As such, Florida courts only recognize marital assets and any marital debt that were acquired during the length of the marriage. This means that any assets or debts that were acquired during this time are eligible for consideration during divorce proceedings.

Florida courts will not take into consideration separate assets and divide them amongst both parties. Separate assets are recognized as any assets either tangible or monetary that are owned by only one partner in the marriage. Separate assets are also used to define gifts that one partner in the marriage received. Typically, separate assets are things like an inheritance received by one of the spouses. Gifts that are made between spouses such as one spouse adding another spouse’s name to a vehicle title or a property deed do not fall under separate assets. Before assets and debts are divided, both parties must determine what is marital property and what is not.

How Are Assets Divided In Florida

Once the marital property is determined, the next step is to have a division of that property in a marital settlement agreement. The first step in dividing the property amongst a couple is deciding how much that asset is worth. Most times, professionals such as accountants or appraisers may be called in to help determine the value of property.

Once the monetary value of the property in question is determined, the court will then determine how that property will be split. Because Florida is an equitable distribution state, assets splits do not need to be 50/50 down the middle. Instead, division occurs in a manner that is deemed equitable. A judge may consider a variety of factors when determining what the best way to split property is. Some of the factors include the following:

  • How many years the marriage lasted.
  • What each partner contributed to the marriage and to the acquisition of any assets gained during the marriage.
  • Whether or not one spouse put their career on hold to help further the career of their partner.
  • Whether or not one spouse contributed to childcare and to domestic responsibilities and if it hindered their work experience during the marriage.
  • Whether or not one spouse interrupted their education for the benefit of their partner.
  • Reasons one spouse may prefer to hold on to a specific asset. 

A judge will also consider whether or not one partner intentionally wasted or misused any asset in the two years leading up to the divorce. For example, a judge made look at whether or not one partner intentionally spent large amounts of money prior to  the divorce filings. 

Lastly, with asset divisions, factors including alimony and child support will play into who has to leave the house in a divorce. Depending on whether or not the couple can come up with a mutual agreement, a judge may decide what is the best outcome for all parties involved, specifically the children. 

Florida Divorce Laws on Alimony 

Florida divorce courts may order one spouse to pay alimony or spousal support to the other.  There are several factors a judge will take into consideration when determining alimony award payments. Some of the top factors include the following: 

  • The duration of the marriage.
  • The age of each spouse.
  • The standard of living that was maintained during the marriage.
  • Different financial resources each spouse will have access to after the marriage is over. 
  • The financial ability of each partner to support themselves. 
  • The health and wellness of each spouse.
  • The parenting responsibilities of each spouse and whether or not one spouse is the  primary caretaker of any children in the marriage. 

A judge can also take consideration whether or not a spouse has committed adultery or has cheated with an ex during the length of the marriage. A spouse’s behavior can affect both alimony and child support payments. 

Florida Divorce Laws on Child Support 

A divorce court may order the parent who is not granted full custody of the children in the marriage to pay child support according to the Florida child support law 39.01. In Florida, a parent is not allowed to waive their obligations for child support. When determining the amount the non-custodial parent must pay for child support, the courts follow the Florida Child Support Guidelines. These guidelines are usually strictly enforced, however judges can deviate from the guidelines in exceptional circumstances.

Child support is the monetary payment that is meant to cover a portion of the expenses associated with child rearing. These payments will typically cover necessities such as food, clothing, any educational expenses, any medical costs, and any other hobbies or activities that promote the well-being of the child. When a court is determining what the child support payment will be, they will typically factor in the following: 

  • The number of children requiring support.
  • What type of support the child needs and what the expenses entail.
  • The income of both parents and a parent’s ability to pay for the support 

If both parents have joint or shared custody, then the courts will use a four-step approach in calculating the child support payment. Typically however If parents share custody 50/50, then their responsibility will be 50% as well. 

In Florida, parents also have the ability to seek retroactive child support. This is typically a payment that is back owed and can be retroactive as far back as when the couple last lived together in the same home. Child support back pay however cannot exceed more than 24 months. This is a recent change in Florida divorce laws as it used to be that retroactive child support payments could go as far back as the child date of birth. 

Child Custody and Visitation in Florida

Florida’s custody and visitation laws are referred to as “time-sharing” or a parenting plan that is made with the best interest of the child in mind. There are different factors that the courts take into consideration when both parties are establishing custody and visitation rights. However, it is encouraged that parents seek to establish the time-sharing schedule amongst themselves outside of the court system. If the parents cannot do so, the court system will establish the time-sharing responsibilities of each parent. Courts take into consideration the following: 

  • The moral fitness of each parent. 
  • A parents ability to provide a stable environment and their economic circumstances
  • Whether or not a parent can put the needs of the child ahead of their own.
  • Evidence of any potential abuse (sexual, domestic, or otherwise) and if either the spouse or children were a victim of domestic violence. 
  • Geographic factors contributing to the child’s wellness.
  • The courts will arrange the residential, holiday, and summer vacation schedule. 

Other Issues: Retirement Accounts

Any contributions made into retirement accounts such as a 401K or an IRA during the course of the marriage are considered marital property. Because of this, these contributions can be divided up between both parties. Any money that was contributed to a retirement account before the marriage will not be considered as marital property and will instead be regarded as separate property. 

Finalizing a Divorce in Florida

Finalizing a divorice in florida is dependent on all paperwork being filed properly and whether or not you and your spouse end up going through a judge to work on division of property, child care, and spousal support. The whole process can take anywhere from three to 12 months depending on whether or not the separation is a contested divorce or an uncontested divorce. 

In some instances, after filing for divorce, you may be required to take part in mediation. Mediation is a process which requires a third party to work with you and your partner in finalizing your divorce. Along with the third-party, you and your spouse will work to reach a resolution without going to trial. If you are unable to reach a resolution, finalizing your divorce will require a trial in front of a judge. Once in front of a judge, each party will get the chance to argue on their behalf and present evidence along with any witnesses that may serve their case. 

In other instances, you and your spouse may be eligible to take advantage of a Simplified Dissolution of Marriage. This type of proceeding will allow you to finalize your divorce without working with attorneys and you are not required to provide a financial disclosure. There are some criteria you need to meet in order to proceed with a Simplified Dissolution of Marriage. They include the following:

  • Both spouses must agree to move forward with a Simplified Dissolution of Marriage.
  • Both you and your spouse have agreed that the marriage is damaged beyond repair.
  • You and your spouse should not have any children who are dependents including any adopted children who are under the age of 18. 
  • Neither you nor your spouse or pregnant.
  • At least one spouse must meet the eligibility requirement of having lived in the state for at least six months.
  • There is a mutual agreement between you and your spouse about how assets and debts will be spent.
  • Neither you nor your spouse will be seeking alimony.

Simplified Dissolutions of Marriage are typically clean cut, straight forward marriages, that don’t involve an extreme use of time and resources. 

Finding the Right Legal Council

Having the right legal counsel on your side as you go through a divorce in Florida is important in order to ensure you are walking away from the marriage without any unnecessary losses. When finding the right legal counsel, you want to make sure you are working with an attorney who specializes in family law. If your family already has an attorney that they have used for other affairs, they may be considered a conflict of interest and the attorney may be unable to represent either of you. 

You can check with The Florida Bar’s Lawyer Referral Service to find an attorney that can best meet your needs. As a constant rule, once your spouse has secured their attorney, it is unethical for you to seek advice or communicate with them. Rather, your attorney should handle communications regarding the divore proceeds with your spouse representation. Be sure to consider factors like your representations specializations and any attorney fees that go along with it. 

If your divorce will potentially be a complicated one riddled with debts, assets, child support, and alimony, it is best to secure a lawyer who has experience dealing with complicated divorces. If your goal in the divorce is to retain custody of the children, then you should seek an attorney that has experience with that aspect. Understand your goals and what you would like out of the divorce and seek an attorney that can help you achieve those goals. 

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