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Florida Divorce & Family Law Information
Florida Residency Requirements
In order for the court to have subject-matter jurisdiction to enter dissolution of marriage, one of the parties must reside in the state of Florida for six months before the filing of the petition for dissolution of marriage and must have the intent to remain a resident of Florida at the time of filing. There is no residency requirement for a separate maintenance action (Petition for Support Unconnected with Dissolution).
Grounds for Divorce in Florida
Dissolution of marriage grounds are as follows: (a) The marriage is irretrievably broken. (b) Mental incapacity of one of the parties. (Florida Statutes – Chapters: 61.052)
Non-Marital vs. Marital Property
Florida is an equitable distribution state as opposed to a community property state. The court must begin with the premise that all marital assets and debts are to be divided equally; however, the court may divide assets and debts unequally to do equity and justice between the parties.
Marital assets and debts include any asset acquired or debt incurred by either party or both parties during the marriage, inter-spousal gifts, income earned during the marriage, and enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage or from the expenditure of marital funds.
There is a presumption that all real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, is marital; however, this presumption can be overcome by clear and convincing evidence that there was no gift intended by virtue of the joint titling.
Furthermore, if marital funds are commingled with non-marital funds so as to become untraceable, a presumption is created that the spouse made a gift to the other spouse of an undivided half interest in the funds. Again, the presumption may be overcome by clear and convincing evidence that no gift was intended.
Non-marital assets and debts include all assets acquired and debts incurred by each party prior to the marriage, assets acquired in exchange for pre-marital assets, all income derived from non-marital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset, assets acquired by inheritance, and passive appreciation of non-marital assets.
Alimony in Florida
The factors the court looks to when deciding to award maintenance or alimony include the need of one spouse and the ability to pay of the other spouse, the length of the marriage, the standard of living during the marriage, the age and physical and emotional condition of each party, financial resources of the parties, contributions to the marriage, the earning capacities, the responsibilities each party will have with regard to the parties minor children, and any other factor necessary to do equity and justice between the parties.
The different types of alimony include permanent, rehabilitative, bridge-the-gap, lump sum, nominal, and, beginning July 1, 2010, durational. Permanent alimony is presumed in long-term marriages and there is a presumption against permanent alimony in short-term marriages. Definitions for long-term and short-term currently vary throughout jurisdictions; however, commencing July 1, 2010, a short-term marriage is defined as a marriage less than 7 years and a long-term marriage is defined as a marriage 17 years or more.
There is no legal term “custody” and Florida abolished primary and secondary residential parent designations. Both parents are entitled to frequent and continuing time-sharing with their children and the court will order a time-sharing schedule that is in the best interests of the child based on statutory factors.
A Florida Supreme Court Parenting Plan must be included in all final judgments of dissolution of marriage. The Parenting Plan includes provisions for time-sharing, holiday time-sharing, the division of cost for extra-curricular activity, out-of-state and out-of-county travel, transportation and the exchange of children, communication between the parents and the parents and children, and decision making.
Parental responsibility, which is making major decisions regarding the child’s education, healthcare, and general welfare, is presumptively shared by the parents. Neither party can relocate with a child more than 50 miles from that parent’s residence without consent by the other parent or court order.
The court has the discretion to order a social investigation and parenting plan recommendation to aid the court in establishing a parenting plan. A mental health professional conducts a social investigation and recommends a parenting plan based on the best interests of the child.
Both parents are responsible for child support. Child support is statutory and based on a mathematical calculation. Once the statutory child support obligation is determined, the parties each pay a percentage based on their respective income. Health insurance, uncovered medical expenses, and necessary daycare costs are also factored into the calculation as is the percentage of overnights.
Each parent must attend a court-approved family stabilization course that focuses on how the dissolution will affect children and how parents can alleviate the trauma of a broken family.
Paternity in Florida
If the parties have a child in common but are not married, the father must file a petition with the court to legally establish paternity. Once paternity is established, the court will order a parenting plan and child support.
Overview of the Dissolution of Marriage Action
The Petitioner files the petition for dissolution and must personally serve the Respondent. Once the Respondent is served, he or she has 20 days in which to file an answer.
Within 45 days of service of the petition, both parties must exchange a financial affidavit and financial documents including bank account statements, credit card statements, retirement account statements, and tax returns. Both parties are entitled to seek additional documentation and information relevant to any issue in the dissolution.
Once this “discovery phase” has ended, the parties are required to attend mediation in most circuits. Mediation is an alternative dispute resolution process using a neutral third party, the mediator, to facilitate negotiations for settlement of all issues.
If the mediation ends in an impasse, the parties will schedule a trial and the court will decide all unresolved issues.