How can I get a dissolution of marriage (divorce) in Florida?
One party needs to testify that the marriage is "irretrievably broken." This means that it cannot be put back together through marriage counseling or any other means. Generally speaking, few people ever contest whether the marriage is irretrievably broken. Also, one party of the marriage must be a Florida resident.
Am I required to prove my spouse did something wrong in order to get a divorce?
No. Florida has adopted a no-fault divorce standard. Generally, the court will grant your request for a divorce upon a showing that the marriage is irretrievably broken. We will discuss the grounds for divorce in your particular situation with you at your Initial Consultation.
How long must I live in Florida before I can file for divorce?
You must be a Florida resident for six months prior to filing for a divorce. There are some limited exceptions.
If I am a Florida resident but temporarily reside out of state, can I still consider myself a resident for purposes of getting a divorce?
That issue will be up to the Court, but if the Judge decides that you are truly a Florida resident, who is for example working for a corporation outside the state, or visiting elsewhere for a short period, etc., you will probably be considered a Florida resident and can get a divorce. On the other hand, if the Court determines that you really have no intention of coming back, or that you realistically are permanently living elsewhere, even though you may travel back and forth to Florida from time to time, you probably will not be considered a Florida resident. Also, if you are in the military, the fact that you are stationed outside of Florida does not detract from your Florida residency.
How do I start the divorce process?
The filing of a petition containing all the facts of the marriage starts an action for divorce. The petition also outlines the requests you may have regarding child custody, child support, property division, attorney's fees and/or court costs. If you have received a petition from your spouse, you have 20 days to file a written response with the court.
My spouse and I are in agreement that we should divorce. What happens to us?
If you and your spouse agree to ALL matters regarding custody, support, alimony, property division, payment of liabilities, court costs, and attorney fees, you can get a divorce without a trial. You will still need a lawyer to help you prepare your paperwork.
Can one lawyer represent both parties and does each party always have to have a lawyer?
One lawyer should not represent both parties. In general it is impossible to represent the interests of two people who may in fact have different goals. Do not rely on your spouse's attorney to protect your interests as that lawyer is getting paid to be your adversary. On the other hand, if an agreement can be reached, then the spouse who does not have a lawyer can still communicate with the other parties' attorney to work out details and hence avoid hiring a lawyer (as long as they recognize that that attorney is their adversary).
Is there any way to get help now? I can't make it until my divorce trial.
If you require help with support or other issues while your divorce is pending, the court will have an evidentiary hearing to determine what temporary relief you need before your trial. There is a procedure for going into the Court after the case is filed to get an order of temporary child support, alimony, or other relief, such as visitation rights and custody rights until such time as the case can be fully heard.
Must a husband and wife live apart when a divorce complaint is filed?
No, but the spouses must be considered separated in a legal sense before one can file for a divorce. Spouses may be considered separated even if they are living in the same house if they are not sharing the same room and/or not having a sexual relationship.
Is there a way to live apart without getting a divorce?
A party who wishes to live apart permanently, but who does not want to get a divorce, may file a "separate maintenance" action. The spouses will remain legally married although living apart. The court may order that alimony or child support be paid by one spouse to the other.
What is the processing time for a divorce?
- If both sides can agree on the terms of the divorce, including division of property, child custody and visitation, the amount of child support, and entitlement to alimony, the length of time to get a divorce and the expense of the divorce is considerably lessened. The divorce may be granted any time after 31 days have passed since service of the petition on the defendant (or filing acknowledgement of service). If the parties have not gone so far as to provide a written agreement on everything, but the divorce is uncontested, the divorce may be granted any time 46 days after service on the defendant (unless the time for response has been extended by court order).
- When a matter cannot be resolved prior to filing a divorce, the action is considered contested. The cost of a contested divorce is usually much higher and normally takes a lot longer. Often the process is slowed down because of property division, alimony, custody of children and child support.
What happens to "our" property in a divorce?
The division of marital property is all property acquired during the marriage, except for that property received by gift from a third party or by inheritance. Each spouse is entitled to an equitable share of all marital property acquired during the marriage. A claim for division of property can be tried before a court, or the parties may agree upon a property settlement and have it incorporated into the decree. Once a division of property is made part of the judgment, it may be enforced just as any other part of the judgment may be enforced.
What is alimony?
Alimony is payment by one spouse to the other for the other's support and maintenance. Alimony payments may be temporary or permanent. Alimony may be awarded to either spouse based upon the need of the spouse and the ability of the other to pay. Temporary alimony includes an award necessary to meet the financial crisis that may result during a separation and a pending divorce proceeding. If alimony is granted, it is enforceable by either an action for contempt, or by garnishment and execution on property.
What if I do not want a divorce but do want the Court to determine child support and/or alimony?
A petition can be filed to accomplish this.
What happens while I wait to go to a final hearing?
Either of the spouses may request a temporary hearing. A temporary hearing resolves the issues of child custody, visitation, child support, alimony, debts and possession of real and personal property on a temporary basis until the final decision can be made. The judge will issue a temporary order that applies until the time of the final trial. The temporary order may also prohibit one party from interfering with the other party or the children and prevent the transfer and selling of assets.
What is decided at the final trial?
The judge at the final trial decides questions of child custody and visitation. The judge alone will resolve all of the financial issues of the marriage, such as division of property, division of debts, alimony and child support. At the final trial both spouses present evidence by their own testimony and may call other witnesses. The decision rendered by a judge is written into a court order that is binding upon both parties. The wife's maiden or former name can be re-established if she so desires.
Do I have to disclose all information concerning assets and debts?
Yes, if you do not disclose all the information concerning assets and debts, the final award or agreement may be subject to an action to have it set aside. All assets acquired during the marriage are usually divided equally between the two parties. Also, all debts acquired together or separate may be divided equally between the two parties.
Who gets to stay in the marital residence?
It is based upon the needs of the family or the potential for Family Violence. However, as a general rule the custodial parent stays with the children in the marital residence.
Equitable Distribution Division FAQ
Who will divide our property?
If you and your spouse are able to agree about the division of your property, then your arrangement will be documented with a separation agreement. If you are unable to agree, it will be necessary for you to go to court. The court will not decide your property distribution case for a period of time as the litigation process moves forward. During that time, the individual with possession of the property will have the use of that property unless a judge issues an order directing otherwise.
How is property divided in Florida?
As a general rule, property acquired during the course of the marriage is divided 50/50 regardless of whose name it's in. However, the Courts can in an extraordinary case change the percentages. Note that a spouse may well be entitled to ½ the value of a business including good will, equipment and accounts receivable etc. (Although, if the business would no longer generate income if the spouse who works it walks away, then good will may not be a factor.)
What factors are considered by a judge?
Among the factors considered are:
- The income, property and debts of each party
- Support obligations for prior marriage
- The length of the marriage and age and health of the parties
- Custody of children
- Expectation of retirement benefits which are separate property
- Efforts made by each spouse to acquire the property
- Contributions of one spouse to the education of the other spouse
- Direct contributions to increased value of separate property
- Liquid or non-liquid nature of property
- Difficulty in valuing interest in a business
- Tax consequences
- Actions taken by either party to preserve or waste marital assets
- Other factors.
How is responsibility for marital bills and debts decided?
Quite often the Court will order each party to pay a portion of the debts consistent with their income. In other words if the Husband makes three times as much as the Wife, he may be ordered to pay three times more than the Wife towards the bills. On the other hand if one party ran up totally unnecessary bills, then they may be responsible for more than they otherwise would. Be aware however that the credit card companies or other creditors can still come after you for your share of any debt that you are legally responsible for, despite the fact that the divorce judge ordered that your spouse should pay the particular bill.
If I move out of my home, and my spouse has the exclusive use of it, have I abandoned any rights and do I have to help with any of the mortgage?
You will not be abandoning any rights to the property by leaving. As to whether you will have to help with the mortgage or other home related expenses, you may be responsible for alimony or child support which practically speaking will be used for the mortgage. But aside from alimony and child support, you do have an obligation as a co-owner to contribute towards the expenses of this joint marital asset.
What happens if I own some property such as a house before the marriage and then put the property into joint names during the marriage?
In the case of a house, it is presumed that you intended to make a gift to your spouse and it will therefore by joint property to be divided upon divorce. You can try to rebut this presumption with proof that you put it into joint names for some other reason besides a gift. As far as money, if you take some that you had before the marriage and put it into a joint account and commingle (mix) it with marital funds, in general the Court is going to find that it is marital property subject to division between the parties upon divorce.
If my spouse gets to keep the marital home for whatever reason, can I still be held responsible for the mortgage?
Yes, if you were originally on the mortgage, in general your deeding the property to your spouse does not relieve you of the responsibility for the mortgage. Therefore, if your spouse fails to pay the mortgage the bank can come after you. You may want to talk to the bank about being removed from the mortgage but in general banks do not do this. Unfortunately this may mean that you will have a very hard time getting another mortgage if you want to buy another home. The alternative is to ask the Court to order your spouse to refinance the property, but this may not be financially feasible.
Are pension or retirement program assets divided the same as other property?
Yes, in general pension rights (whether vested or unvested) and other retirement assets are divided on a 50/50 basis, although it can be a complicated process to divide them without incurring any liabilities for early withdrawal of the funds. And don't forget that $10,000 in a bank account is not the same as $10,000 in a pension or 401K type program. If you try and take money out of the latter, you may well incur penalties for early withdrawal and have to pay income tax on the money you take out.
What assets are subject to the 50/50 split?
Property acquired during the course of the marriage by one or both parties is basically subject to a 50/50 split unless there are extraordinary circumstances that require different percentages. There is usually going to be a 50/50 split even though for example one spouse worked ten hours a week while the other spouse worked forty. The acquired property will still be considered a marital asset. In general the Court is not going to start looking into how hard each party worked during the marriage to contribute, although in extreme cases the Court can consider the level of contribution.
Are gifts from one spouse to the other during the course of the marriage in general subject to a 50/50 split?
Yes.
What if I inherited money or an asset, or a third party gave a gift given solely to me (and not my spouse)?
As long as the inherited property is not put into joint names it will most often remain the separate property of the inheriting spouse even though the inheritance took place during the marriage, and thus will not be divided 50/50. The same holds true for gifts solely to one spouse from a third party during the marriage, it will remain that party's separate property not subject to 50/50 split.
What if I had property before the marriage or attained property during the marriage through inheritance or gift from a third party, and the property grows in value during the marriage?
If the property grows in value because of natural market forces or inflation, then no portion of the increased value will go to the other spouse. On the other hand, if for example the property involves a business, and the value of the business increases during the marriage because of the efforts of one or both parties (or because of the contribution of marital assets), then that increased value may well be divided 50/50. The same example can be given for stocks or other assets. Although the stock or asset may be the separate property of one spouse because it was attained prior to the marriage, or during the marriage through inheritance for example, if it can be shown that the efforts of either or both parties during the marriage led to an increase in value of the asset, then that increase in value may be divided 50/50.
What if my spouse is hiding or wasting assets or I don't know what assets there are?
You may be able to get an injunction stopping your spouse from touching assets and records can be subpoenaed to uncover what assets there are. Also, if you can show that your spouse wasted marital assets, you may be entitled to a credit for your portion of what was wasted when the marital assets are divided at the end of the case. Each party needs to fill out and sign a sworn financial affidavit. If your spouse does not lie about the assets, you will get a complete picture of finances through this and other means.
What property is neither marital nor separate?
Some property is not, properly speaking, either marital or separate. For example, property acquired after separation does not fall within the statutory definitions of either marital or separate property. Post-separation appreciation of marital property is itself neither marital nor separate but, rather, must be treated as a distributional factor.
