Dissolution of Marriage (Divorce)
While most people still use the term "divorce" to refer to the legal end of a marriage, this event under Florida law is termed a "dissolution of marriage." Florida does not require that "fault" is established. Rather, the parties must show only that the marriage is "irretrievably broken." However, fault may be considered under certain circumstances in determining equitable distribution of marital assets and liabilities, shared parental responsibility and alimony. Either the husband or wife can file for divorce so long as there is a valid marriage and at least one spouse has been a resident of Florida for at least six months prior to filing for divorce. Once the process begins, the husband and wife are referred to as "the parties" in the dissolution action.
There are very specific rules and laws that apply to such cases in Florida. At The McCall Moody Law Firm we will help you with the complexities of your case giving you the ability to focus on the emotional aspects that only you can attend to. Every family situation is unique; therefore the approach, handling and results of each divorce will be equally unique. While this is an important time to depend upon friends and family for emotional support, you should not create expectations regarding your dissolution of marriage based on tales of someone else's divorce.
The dissolution process begins with filing a petition for dissolution of marriage with the circuit court by either the husband or wife. By doing so, the person that files the petition becomes the petitioner. This document states the required facts as well as what action the petitioner, would like the court to take. Once that document has been appropriately provided to the other spouse (by process server or by acceptance of service by the individual or their attorney), that spouse must file an answer to the petition within 20 days with the court, becoming the respondent. As the name implies, this document sets out the response to what was requested in the petition. The answering spouse, the respondent, might even file a counter-petition asking for additional relief from the court to which the initiating spouse, the petitioner, then has 20 days to respond.
Both the husband and wife are required to provide to each other specified financial documents within 45 days of the service of the petition or before any temporary relief hearing. This is also true in modification cases. While there is some ability for the parties to modify these requirements, a financial affidavit is mandatory in all cases in which financial relief - equitable distribution, child support, alimony, attorney fees and costs - is sought. If you would like to see specifically what is required by the courts, use this link to view the Florida Family Law Rules of Procedure Form Financial Affidavits (Short Form for Gross Income Less than $50,000 per year and Long Form for Gross Income Greater than $50,000 per year) and Certificate of Compliance with Mandatory Discovery in which you can see a list of the documents required. When children are involved, a child support guidelines worksheet must also be filed with the court at or before any hearing on child support. This requirement may not be waived by the parties or the court.
Sometimes an agreement to divorce issues is reached very quickly, and sometimes an agreement is reached during mediation or before the case goes to court. Sometimes an agreement is reached that only settles some issues. In this case, the court must make the decision as to the rest. Other times, the parties are unable to agree and the entire matter must be decided in court.
Dividing a couples possessions and their debts is often a very difficult and complex area of divorce. See Documents Needed for Divorce. Very generally, assets acquired and liabilities incurred during the marriage are subject to division. Marital property may include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bank accounts, personal property and other things of value. Liabilities include mortgages, car loans, credit card accounts and other debts and financial obligations. Florida law provides that marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the title is held. This is based on many factors.
There is no fixed way to determine how you or the court should divide the property or debts. Factors to be considered by the court include the contribution of each spouse to the marriage; the duration of the marriage; and the economic circumstances of each spouse. This is called equitable distribution. You and your spouse may come to an agreement which the court will approve if it is found to reasonable under the law. If you cannot agree, then the court will divide the property and debts after a trial.
Equitable distribution is determined before alimony is considered because one of the factors the court considers in determining alimony is each spouse's financial resources and income-producing capacity of the assets they receive.
Once it has been determined through equitable distribution what assets each spouse will have, debts they will pay and any income from assets they will have available then the court may consider awarding alimony. Either spouse may be awarded alimony; it is based on one person's need as compared to the other's ability to pay and certain factors considered by the court such as: the parties' prior standard of living; length of the marriage; age and physical and emotional condition of both spouses; the time necessary to acquire sufficient education or training to find appropriate employment; and the services rendered in homemaking, child rearing, as well as education and career building of the other spouse. The court is entitled to consider any other factor necessary to do equity and justice between the husband and wife. The alimony may be permanent (until death, remarriage or cohabitation); for a limited period or specific purpose; or in a lump sum.
The court will determine alimony, if any, before calculating child support as alimony received will be counted as income for purposes of calculating support.
Shared Parental Responsibility for Children (Custody and Visitation)
In Florida, the term "shared parental responsibility" has replaced the commonly used "custody" and "visitation". The father is given the same consideration as the mother in determining parental responsibility regardless of their child's age or sex. The determining consideration is the best interest of each child. To assist parents in adapting to being divorced yet still co-parenting, Florida requires both the mother and father attend an approved parenting course before the final court order is entered.
In most cases, parental obligations are shared by both parents requiring them to confer and determine major decisions affecting the children together. However, the parents may agree or the court may order that one parent has ultimate responsibility over a specific aspect such as education or religion. Different types of parenting arrangements can be agreed to by the parties, or ordered by the court, which accommodate the child's needs, activities, schooling and the parent's work schedules, travel demands, etc. This can range from one parent having the primary residential responsibility to the parents having equal parenting time to rare cases when sole parental responsibility is assigned to one parent (a determination that shared parental responsibility would be detrimental to the child is required for this last result). Read more about Shared Parental Responsibility (Custody/Visitation).
Both parents are required to support their children. Issues to be considered when determining the amount of child support each parent is responsible for include: method of payment; methods to assure payments are made; circumstances allowing child support to be increased or decreased; which parent will claim the dependency deduction for tax purposes; etc. There may be other issues to address as well such as special needs of a child who has infirmities or specific activities or resources that in the past have routinely been funded by you and the other parent. Florida courts follow child support guidelines that have been placed into law and are based upon the income of the parents and the number of children with adjustments for substantial overnight contact.
NOTE: Failure to pay support, withholding support, or withholding access to a child because you believe the other parent is not doing what they are required to do is illegal.
After equitable distribution has been determined and alimony or child support, if any, awarded, the court may then consider an award of attorney's fees and costs. An award of attorney's fees may only occur in limited circumstances and generally requires a finding that one party's ability to pay is superior to the other. This is why the court first handles equitable distribution then support payments, because it must have an accurate view of the parties' financial abilities leaving the marriage to determine whether one has a superior ability to pay fees and costs.
Divorce also involves a variety of tax issues and potential tax consequences. In dividing property it may be important to consider cost-basis; if planning to sell property in conjunction with or near in time to the dissolution, capital gains should be taken into consideration; determining who will take certain available deductions occurring during the tax year if made from marital assets when the parties decide to file separately; assigning the deduction for child care if its cost is calculated into support; assigning the dependency deduction; considering the effect of potential property transfers; determining the taxability and deductibility of child support and alimony in their various forms; etc. At McCall Moody Law Firm we will work closely with your tax professionals to see that all tax aspects relevant to your circumstances are considered.