Grounds for Divorce
Florida is a no-fault state, which means you don’t need to allege that your spouse engaged in bad behavior (such as adultery) in order to obtain a divorce. Either spouse can file for divorce and simply allege that the marriage is “irretrievably broken” , which is just a fancy way of saying the couple can’t get along anymore. However, a court may consider allegations of “fault” or wrongdoing when deciding how much alimony to award.
At least one spouse must be a resident of Florida for six months before filing for divorce.
Simplified Dissolution of Marriage
As its name suggests, a simplified dissolution of marriage (divorce) is supposed to be a quicker, easier way to get divorced in Florida. Couples may use the simplified procedure if they meet all of the following requirements:
- at least one spouse has lived in Florida for the six months preceding the filing of the divorce
- both spouses agree the marriage cannot be saved
- there are no minor (under 18) or dependent children of the marriage
- the wife is not pregnant
- neither spouse is seeking alimony from the other
- both spouses have filed financial affidavits (written disclosures of financial information) with the court or agree that they don’t need financial affidavits
- both spouses have agreed on, and are satisfied with, the division of their assets and debts, and
- both spouses agree to the simplified procedure which includes giving up the right to a trial and appeal.
The spouses are responsible for filing all necessary documents and must appear together before a judge who will grant the divorce. If you do not meet all of the criteria set forth above, you’ll need to file a petition for a regular dissolution of marriage in order to get a divorce.
Regular Dissolution of Marriage
The regular dissolution process begins when either spouse files a form titled “Petition for Dissolution of Marriage” with the court. Click here for more information on various Florida family law forms including the regular petition for dissolution of marriage. This petition states that the marriage is irretrievably broken and sets forth what the filing spouse wants in terms of division of property, alimony, custody and child support. The other spouse must prepare an answer to the petition and file it with the court.
When couples agree … Most couples find that they can reach an agreement on all of the issues presented by their divorce, and are able to sign a settlement agreement (contract) memorializing what they’ve decided.
When couples disagree… Other couples disagree on some issues, work out their differences, and appear for a final hearing with a proposed settlement agreement that must receive court approval. A judge may suggest that some couples attend mediation – a procedure whereby both spouses meet with a mediator (a neutral third party trained in mediation). The mediator’s job is to assist the spouses in reaching an agreement on their divorce issues. Mediation may help divorcing couples avoid a long, drawn-out court process.
When couples really disagree … Some couples simply cannot agree on much of anything and must go to trial. In these cases, the divorce process is generally long, unpleasant and expensive. At trial, a judge will make decisions on all contested issues.
In a regular dissolution, each spouse has the right to examine and cross-examine the other as a witness, and obtain documents regarding the other spouse’s income, expenses, assets and liabilities before going to trial or settling the case.
Florida law provides for an “equitable distribution” of marital property (property or assets acquired during the marriage). This means that marital property should be divided fairly – not necessarily equally. The division is based upon all facts of the case and both spouses’ contributions to the marriage.
The division of property is considered in conjunction with awards of alimony and interests in property. If you and your spouse can enter into a reasonable settlement agreement about the division of property, that agreement will be approved by the court. If you can’t agree, it will be up to the court to determine how assets and debts will be divided.
The court may grant alimony to either spouse. Generally, an award of alimony will be based on the requesting spouse’s need for financial support and the paying spouse’s ability to pay. Although adultery does not prohibit 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.
When awarding alimony courts consider all relevant factors, including:
- the standard of living established during the marriage
- the length of the marriage
- both spouses’ financial resources, including the marital and non-marital assets and debts distributed to each spouse as part of the divorce
- the time necessary for one spouse to obtain educational training, which would allow that spouse to find appropriate employment
- the services rendered by one spouse during the marriage in homemaking, child rearing, and supporting the other spouse’s education and career advancement, and
- any other factor necessary to do equity and justice between the spouses.
The court may grant the following types of alimony:
Bridge-the-gap alimony. This is meant to assist the supported spouse in transitioning from being married to being single and to cover short-term needs. This award may not exceed two years.
Rehabilitative alimony. This may be awarded to assist a party in becoming self-supporting by allowing that party to redevelop work skills or credentials, or to obtain new education or training necessary to find a job.
Durational alimony. Typically, durational alimony is awarded in order to provide a party with financial assistance for a set period of time following a short-term marriage (less than seven years) or moderate-term marriage (more than seven but less than 17 years).
Permanent alimony. This is typically reserved for marriages of a long duration (17 years or greater). The purpose is to provide for the financial needs of the supported party so he or she may continue to meet the standard of living that was established during the marriage.
Combination of all of the above. In some cases, a court may award some combination of the above. For example, a spouse may receive bridge-the-gap alimony during the divorce and until the court orders a permanent support order.
The court may order periodic payments of alimony or a lump-sum (one-time) payment. For a complete description of the various types of alimony in Florida, see Fla. Stat. Ann. § 61.08
Child Custody and Visitation
In most cases, parental responsibility for making major decisions regarding the welfare (health, education, and religion) of a minor child will be shared by both parents. If parents can’t agree on these types of issues, a court will make the final decision for them. With respect to physical custody, courts prefer that both parents continue to be a part of their children’s lives. Although the court will designate one parent’s home as the primary residence of the child, the other parent is usually entitled to frequent and continuing contact with the child. The exception to this is where the court finds that visitation will not be in the child’s best interest. For example, if there is a history of physical abuse of that child, or documented domestic violence, a court may find that visitation with the abusive parent is not in the child’s best interest.
When you need us, Pamela Fero Law, PLLC is here for you.
Original article by DivorceNet.