Grounds for Divorce
Florida is a No-Fault divorce jurisdiction: the sole standard for granting the divorce is that the marriage is “irretrievably broken,” or beyond the point of reconciliation. It is not necessary for a party to prove the other party is guilty of fault. Divorce is referred to as Dissolution of Marriage.
Commencing the Process of Divorce
You should discuss with your attorney if you wish to file a Petition for Dissolution of Marriage. Alternatively, your attorney can write a letter to your spouse or your spouse’s attorney indicating your position regarding filing a Petition or negotiating a settlement agreement. In the event you proceed to file a Petition, it is necessary for a sheriff or process server to serve the papers on your spouse, who then has 20 days to respond. Additionally, you should discuss with your attorney various types of temporary relief.
There are several types of temporary relief which can be requested from the Court before a final resolution of your case, such as the following:
1. Injunction Against Domestic Violence: If there is physical abuse, or harassment by your spouse of you or your children, consider discussing with your attorney filing for protection against this type of behavior. You can ask that the abusive spouse be removed from the marital residence if the conduct is especially harmful.
2. “Freezing” Assets: If you suspect that your spouse will dissipate or hide any of your marital assets, you should discuss with your attorney the possibility of “freezing” certain bank accounts, IRA accounts, pension accounts, other financial accounts, or business assets to preserve the property of the marriage.
3. Temporary Alimony: If you need funds immediately, and your spouse is unwilling to assist you in handling the finances during the divorce, you can request that temporary alimony be awarded while the matter is pending.
4. Temporary Child Support: In the event there are children under the age of 18 who are not self-supporting, it will be necessary that you and your spouse determine together how you are going to provide for their financial support during the case. If your spouse is unwilling to financially assist you, then you can ask the Court for relief. Florida has very strict child support laws which the courts are required to follow and enforce. The amount the Court will set is contained in specific guidelines set forth by the legislature which are based upon the total of both parties’ incomes, and allocated proportionately between you. Additional expenses for the children, such as health care and insurance, child care, after-school and summer activities and religious or private school are typically also proportionately allocated between the parents based upon their respective incomes.
5. Temporary Attorney’s Fees and Litigation Expenses: If you are not financially able to afford an attorney and your spouse has the financial ability to provide funds for you to obtain an attorney and for the expenses of litigation, you can request that the Court award these fees and costs during the course of the lawsuit so that you may fund your case.
6. Temporary Custody: If your spouse is no longer residing in the marital residence with you and custody is an issue, you can request that your attorney help you obtain temporary custody of the minor children.
7. Temporary Denial of Passport Services or Order Regarding Removal of Minor Children: If you believe your spouse will remove the minor children from the state or your locality and will hide or prevent you from having meaningful contact with your children during the pendency of the litigation, then you can discuss these options with your attorney.
Division of Assets and Liabilities
The Florida Legislature has adopted a statute which determines the division between the parties of their property and debts. The law requires that all marital assets and liabilities are to be divided between the parties in an “equitable” or fair manner. There are many factors listed in the statute that the Court has discretion to utilize in making an equitable distribution of property.
The Court usually orders “shared parental responsibility” in instances where it finds the parties can cooperate on issues regarding their children. This means that both parties are jointly responsible for making major decisions regarding the general welfare and well being of their minor children (education, religion, health and extracurricular activities). The parent with whom the minor children will reside during the majority of the year is designated the “primary residential parent.” The other parent will be provided with reasonable rights of access and visitation with the minor children. The Court will direct both parents to separately attend an approved Parenting course before granting the Final Judgment for Dissolution of Marriage.
In some cases, however, one party may be awarded sole custody, which is when just one parent is responsible for the general well-being and making decisions on behalf of the minor children. The other parent will then usually have specified visitation and contact times with the children. This is usually the case when, for example, domestic violence is an issue.
If the Court determines that there may be a problem with visitation, it can require that the visitation be supervised by an agreed-upon neutral party or agency. Speak to your attorney about this possibility if it is of concern.
In all instances, both parties are responsible to provide child support to their minor children until age 18 or otherwise “emancipated” (usually, self-supporting, or until high school graduation if the child is still attending high school when he/she becomes 18). This is achieved by ordering that the non-custodial parent pay to the custodial parent a sum of money based upon the paying parent’s proportionate share of combined parental incomes and the number of children. The Legislature has adopted Child Support Guidelines, which designate the total amount of child support to be provided by the parents. Other items to be included in the child support equation are health insurance, after-school care, day care and babysitting expenses. Additionally, costs such as summer camp, extracurricular activities, and special needs of the minor children will be provided for in the Final Judgment. Life insurance should also be sought to secure the amount of child support to be paid by the nonresidential custodial parent in the event that the payor parent dies before the children become emancipated. Sometimes, the amount of child support will vary from the “guideline” amount, due to the children being with non-residential parents for an extended period of time regularly (such as long summer vacations). There is also a mandatory change in basic guideline amounts of child support if the child spends 40% or more of the overnights during the year with the non-primary residential parent. Speak to your attorney about this and how equal or almost equal time sharing of the children by parents can effect the amount of child support that is paid.
There are three forms of periodic alimony which are awarded for the purposes of spousal support: rehabilitative alimony, “bridge-the-gap” alimony, and permanent periodic alimony. Permanent alimony is an amount of money paid periodically (i.e. each month) during the lifetime of both parties. These payments terminate upon remarriage of the recipient or death of either spouse. Rehabilitative alimony is a certain sum of money paid over a specific period of time, to provide training for job skills or assist support needs until the recipient can become self-supporting. These payments terminate at the date specified in the award, or upon the death of either party, but not necessarily upon remarriage of the recipient spouse. Bridge-the-gap alimony is paid for a short period of time, usually no longer than one year, to allow a spouse to “bridge” the financial transition of going from married to unmarried life.
The amount and type of alimony is based upon the demonstrated needs of the recipient spouse and the ability of the paying spouse to provide these funds. The Court must consider the length of the marriage, the parties’ standard of living during the marriage, how the property and debts of the marriage have been divided, and other factors all specified by law.
Divorce settlements usually involve financial issues. Some areas to consider in the division of property and debts are:
1. The marital home and other real property: In Florida, all property acquired during the marriage through marital funds, labor, efforts and/or services are the marital assets of both parties. You must make a determination of how you wish to distribute your property and if you desire to continue to reside in the marital residence for a specific period of time after your divorce. In order for one party to maintain the marital residence, you must consider the expenses related to that residence and whether you can afford it with or without support provided by the other spouse.
2. Other Assets: Consider the following assets for distribution of marital property:
- Profit Sharing plans
- Other retirement benefits, IRAs
- Stereo, computer, TV, and electronic equipment
- The value of a business or professional practice
- The value of business property
- Household property
- Stocks, bonds, portfolios and stock options
- Cars, vehicles, boats, recreational vehicles
- Cash and respective bank accounts
- Mutual funds, savings bonds and other investment items
- Collectibles, guns, tools antiques
- Art work
- Any other assets which have a fair market value or a sentimental value
Other Settlement Considerations:
Take into consideration other items of relief you request in preparing for your divorce settlement, such as:
- Health insurance for the spouse and minor children
- Life insurance to secure a child support and/or alimony award
- Disability or accidental insurance to protect the child support and/or alimony award.
- Annuity or trust to secure a settlement.
It is always important to consider any and all debts (liabilities) that have been incurred during your marriage when making an adequate determination of the distribution of your property. The mere fact that a settlement agreement designates that one party should be responsible for a third-party debt may not protect you. It is necessary to discuss with your attorney clauses regarding indemnification, being “held harmless” and the effect of those clauses in your divorce settlement.
There are several other issues that are necessary for you to discuss with your attorney regarding your divorce settlement. One is the effect of your spouse filing for personal and/or corporate bankruptcy. It is important for you to determine if you will be financially protected if this occurs.
In every divorce settlement, it is necessary to obtain the advice of an accountant or tax attorney to become fully aware of the tax implications regarding the distribution of your assets as well as the tax impact of maintenance payments. It is also helpful to seek the advice of a certified financial planner to discuss investment of assets transferred to you.
“Experts” in Divorce Cases
Discuss with your attorney what other professionals (experts) should be utilized in your divorce case. Experts that might be utilized, depending on the facts of your case, can be an accountant or certified financial planner, business valuator, real estate appraiser, antique appraiser, therapist, psychologist, psychiatrist, vocational therapist, or physician.
Going though a divorce is a significant and emotional time in your life, and it may be necessary for you and your children to obtain therapeutic counseling before, during and after the divorce process. It is suggested that you utilize someone who has therapeutic training in assisting you and your children in the divorce process other than relying on a friend to be your counselor, since a skilled professional can identify certain emotional problems that one experiences during divorce and can provide immediate intervention which could successfully help you or the children through the entire process.
Going though the divorce process is an extremely emotional experience in your life. Quite often, emotions might cloud judgment due to feelings of anger, hostility, fear and disloyalty that you might experience. Your main objective is to maintain an emotionally healthy state of mind during this process in order to ultimately obtain a successful settlement of your divorce. It is important to protect your minor children during this process and to protect them from becoming involved, as it will have an extremely overwhelming effect on them, which could create certain destructive behavior, both during the process and afterwards. It is important to be aware of your minor children’s feelings during this process and to protect them and provide adequate therapeutic intervention, if necessary, to assist them in dealing with their own feelings while you are going though your divorce. The decisions you make before and during your divorce will have a lasting effect for your future and that of your children.