Family Law

Divorce/Dissolution of Marriage

In Florida, a divorce is called a “dissolution of marriage.” Florida is one of the many states that have abolished fault as a ground for dissolution of marriage. The only requirement to dissolve a marriage is for one of the parties to prove that the marriage is “irretrievably broken.” Either spouse can file for the dissolution of marriage. You must prove that a marriage exists, one party has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken. The reason for the irretrievable breakdown, however, may be considered under certain limited circumstances in the determination of alimony, equitable distribution of marital assets and debts, and the development of the parenting plan.

Parenting & Child Support

In determining parental responsibility, the court will approve or devise its own Parenting Plan, which includes responsibility for the daily tasks of child-rearing, the time-sharing schedule, and decision-making authority relating to health care, school and related activities. The plan also will specify any technology that will be used for parent-child communication. The parents may agree on a Parenting Plan and submit it to the court for approval, or the court will determine these issues. The statute includes a list of factors for the court to consider in making these decisions.

You and your spouse each have a responsibility to financially support your children in accordance with your income and their needs. Child support may be by direct payment or by indirect benefits, such as mortgage payments, insurance or payment of medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches age 18, marries, is emancipated, joins the armed forces or dies.

Dividing Up Marital Property -- Assets & Debts

One of the most difficult and complex areas of dissolution of marriage is the division of assets and debts. Assets may include cars, houses, retirement benefits (pensions and 401(k) plans), business interests, cash, stocks, bonds, bank accounts, personal property and other things of value. Debts (also called “liabilities”) include mortgages, car loans, credit card accounts and other amounts of money you and your spouse owe to third parties.

There are two types of assets and debts in Florida — non-marital and marital. Generally, any asset or debt acquired during the marriage is considered marital and subject to distribution. The parties also may have assets or debts that are considered non-marital and should be awarded to only one party.

Alimony/Spousal Maintenance

After equitable distribution, the court may consider an alimony award. The court may grant alimony to either spouse. For the court to award alimony, the requesting spouse must demonstrate a need for alimony and the ability of the other party to pay. Once the requesting spouse has established a need and an ability to pay, the court must determine all relevant factors to determine the property type and amount of alimony to award.

For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and a long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.

Same-Sex Marriages

The laws and legal procedures for a Florida divorce apply equally to both same-sex and opposite-sex couples. As an initial matter, certain criteria must be met for a Florida court to have jurisdiction over a divorce action. First, the parties must be legally married to each other. A valid marriage certificate issued by any state is sufficient proof of a legal marriage. Second, residency must be established.

To satisfy the residency requirement, at least one of the parties must have resided in Florida for six months prior to filing the petition for dissolution of marriage. Finally, there must be grounds for divorce. Florida, like many states, provides for no-fault divorce, which only requires one party to prove that the marriage is irretrievably broken. If you meet these qualifications, you can get divorced in Florida.

Tax Considerations

There are important tax considerations in any dissolution of marriage, including the dependency deduction for children, taxability and deductibility of child support and alimony in their various forms, and effects of property transfers. Know the tax consequences of your settlement agreement before finalizing your dissolution of marriage. It may be too late after the signing of a marital settlement agreement or entry of a final judgment to correct mistakes that have been made. You may want to obtain the services of an accountant in conjunction with your attorney to become better informed about this part of the dissolution process.

Enforcement & Modification of Child Support

An order to pay child support can be changed (or modified) by the court or administrative agency that issued the order if the circumstances of either parent change after the order is issued. Until an order is changed, terminated or vacated, the amount ordered is owed and legally enforceable. The parent seeking to change (or modify) a support order has the burden to prove a change in circumstances. In most cases, before an order can be changed, a parent’s change in circumstances must be substantial, permanent, and involuntary.

If it has been less than three years since the support order was issued, reviewed or changed, a substantial change means that the change in circumstances would cause a change in the order amount that is at least 15 percent but not less than $50. If it has been more than three years since the support order was issued, reviewed, or changed, a change in circumstances means the change would cause a change in the order amount of at least 10 percent but not less than $25.

Paternity

Under Florida Paternity Laws, if a woman is married when she gives birth to a child, it is assumed that the father of the child is the husband. But that doesn’t mean that fathers that aren’t married to their child’s mother do not have any legal rights.

Many fathers will not discover the paternity of a child until well after it is born. Florida statutes recognize that and give fathers the right to file a paternity action from birth up to eighteen years of age. Whether the child is an infant, elementary school age, or a teenager, fathers have a right to file a paternity action so they can be a part of that child’s life.

To be able to file a petition for paternity in the state of Florida, the person has to be a resident of Florida for at least six months.

Adoption

Adoption is the legal procedure by which a child becomes, through court action, part of a family other than that of the child’s birth parents.

Adoption is a serious matter for all concerned. It determines the future of the child, because it permanently severs ties with birth parents and relatives and transfers the child into a new family where the child will remain permanently. The new family is responsible for providing the care and guidance that will determine the kind of adult that child will become. To the birth parents, adoption usually means relinquishing the child forever without the privilege of seeing the child or being otherwise involved in the child’s life. However, in some types of adoptions, called open adoption, birth parents retain the right to communicate or visit the child. Additionally, the birth parents are permanently relieved of all responsibilities of the child’s care and financial needs. To the adoptive parents, adoption means providing for and undertaking the care of a child to whom they will have the same obligations as to a child naturally born to them.

Any minor (a person under 18 years) present within the state when the petition for adoption is filed may be adopted. Sibling groups may be adopted together. An adult also may be adopted.

Pre-Nuptial & Post-Nuptial Agreements

Prenuptial or premarital agreements in Florida are similar to a postnuptial with the difference being when they are signed. Nuptial simply refers to a legal civil marriage ceremony. The term “nuptial” refers to a legal civil marriage AND the difference between the prenuptial and postnuptial is simply whether the agreement is signed prior to OR following the initiation of the legal marriage.

Both types of nuptial agreements are otherwise similar AND both are actually very important agreements that pertain to Florida asset protection when entering into a new and perhaps untested marriage. They are also both critical documents for estate planning in Florida and both variations of the nuptial (marital) agreement involve similar rules and concerns to make sure they’re enforceable.

There is little difference in the terms that can be included in a valid prenup and a valid postmarital agreement. However, the court will scrutinize a postmarital agreement under a more rigorous standard than a prenuptial agreement

Estate Planning After a Divorce

Florida law provides that all provisions in favor of a divorced spouse in a will are to be treated as if the surviving former spouse predeceased (i.e., is already dead) the testator (i.e. the person signing the will). By way of example, if Mark dies following his divorce from Wendy, any provision in Mark’s will naming Wendy may be treated as if Wendy died before Mark died.

Fla. Stat. § 732.507(2) states:
Effect of subsequent marriage, birth, adoption, or dissolution of marriage. Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.