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Florida’s No-Fault Divorce Law Summaries
By Orlando Divorce Attorney Eduardo J. Mejias
Practicing Exclusively Family Law Since 2011
Divorce has four major components: (a) the parenting issues, if the couple has children, (b) the distribution of marital assets between the divorcing spouses, (c) the payment of the attorney retainer fees and (c) the possibility of alimony or spousal support.
The parenting issues deal with the types of responsibilities of each parent, such as the child support payments to the parent that has most of the custody (see Child Support and Child Custody pages). Marital assets and debts are those acquired between the date of the marriage and the date of separation or the filing on the divorce petition, and are divided equally (see Property Distribution page). The attorney retainer fees of the party with low ability to pay may have to be paid by the person with the greatest ability to pay (see Cases With Attorney Fee Awards page).
Florida’s No-Fault Divorce Is a Dissolution That Distributes Responsibilities, Incomes and Assets
In Florida, divorce law: (1) the spouse seeking a divorce does not have to have any justification for it, other than having irreconcilable differences and (2) is a process of making decisions about (a) the division of the marital assets net of debts, (b) the decision of whether or not alimony is awarded to a former wife or husband and for how much, and (c) the distribution of custody and support of their children.
Except for child custody time sharing, a spouse’s questionable behavior, including adultery, seldom matters. And a parent’s “moral fitness” represents only one factor that a judge must consider when creating a child time-sharing schedule.
Injecting inflammatory accusations into the divorce process usually backfires, irrespective of its merits. And all court decisions about child custody will be based only on the best interest of the children.
To prepare for a divorce you must first complete the Financial Affidavits form, supported by the Mandatory Disclosure Documents. These documents are the basis for determining the terms of the divorce, such as alimony or child support (if applicable) and the distribution of assets and debts. You should also consult with an experienced family lawyer to protect your rights.
If you are married and a divorce is imminent, you should first: (1) gather the financial disclosure documents that you will need to show to your divorce attorney, your spouse and the family court, (2) make a list of the values of all the properties (assets) and debts (liabilities) that are in your name, (3) draft your financial affidavit, which will help prepare you for your divorce and will expedite it and (4) read the Our Retainer Fee Policies as a guide to the what you will need to pay, then make arrangements to for these payments.
Divorce Myth 1: You Need Legitimate Grounds For Divorce. To obtain a divorce, you just have to state that the marriage is "irretrievably broken".
Divorce Myth 2: Adultery Is Penalized in Family Courts. Florida appeals courts have ruled that adultery affects the terms of the divorce only when the philandering spouse has depleted marital assets on the affair.
Divorce Myth 3: Florida Is A 50-50 State On Child Custody. There is no presumption favoring any particular time-sharing schedule. The most important factor considered in child custody time sharing is what is in the best interests of the children.
Divorce Myth 4: If Divorce Is Uncontested, No Lawyer Is Needed. Divorces involve multiple issues that a good divorce lawyer will make you aware of. Even if you and your spouse agree on all the issues, you will benefit from having a family law attorney draft an enforceable and sustainable marital settlement agreement. Child custody time-sharing and support, alimony, and the distribution of the marital assets and debts needs to be clearly defined during the divorce process. Otherwise, the divorcing spouses are setting themselves up for a future legal battle because they did not foresee all the possible conflicts that arise after the divorce
An uncontested divorce in Florida could be done in either of two ways: (1) with the simplified form, or (2) the regular way.
Using the simplified form is easier and takes less time. However, it only applies to couples with no dependent children where there are no request for alimony, and has several other restrictions explained on the full page.
A regular uncontested divorce has more forms to complete and takes longer. Most people in a this type of divorce would benefit from having a consultation with a lawyer to make sure that the terms they agreed on do not contain unexpected adverse consequences that are not understood. But a lawyer is not allowed by the rules of ethics to consult with both parties.
Of course, you would not hire a lawyer to represent you in court in this type of divorce. Since it is uncontested, meaning that both parties agreed to it its terms in writing, there are no legal issues for lawyers to argue in court.
1. Florida Divorce Law is Complex
The text of the law is complex enough, but one needs to also know about the precedents of how the courts have interpreted it. In addition one needs to know the administrative and procedural practices, some of which can vary between counties.
2. Divorces Are Too Emotional for Self-Representation
Even family lawyers would not have the necessary detachment from the family situation to make good representation decisions for themselves. Divorces involve too many emotions for spouses to make good decisions regarding their own cases.
3. You Will Save Money by Hiring a Family Lawyer
You are likely to get less favorable terms on alimony, child support, property distribution and custody time sharing when you represent yourself. In addition, in many cases, people who represent themselves end up having to hire a family lawyer after the divorce to modify the agreements or make them more enforceable.
It is very important to complete the mandatory disclosure forms promptly to avoid lengthening the time of the divorce process. These forms are:
1. The Financial Affidavit
On this document, list your gross monthly income, net monthly income, monthly expenses, assets, and liabilities. If you earn $50,000 or more annually, you must complete its long form. This is required even for an uncontested divorce.
2. Other Mandatory Disclosure Documents
These are: (a) pay stubs, (b) the last three years of tax returns, (c) the last three months of checking account and credit card statements, (d) the deed or lease to your house and (e) the last three 401K or pension statements. These are the most common but there may be others. They should be produced before the mediation.
3. Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) Affidavit
Only the divorce petitioner has to file this document and it only applies to divorces with minor children. List the birth dates of your children, where they have lived and whom they have lived with during with the last five years.
4. Parenting Class Certificate
Finally, if you have minor children, both parents must complete a parenting course before obtaining the final judgment of the divorce.
5. Additional Requests by Opposing Attorney
Bedsides the mandatory documents, sometimes the opposing attorney asks for more documents and lists of questions in an Interrogatory. See Requests to Produce Documents and Interrogatories In Divorce and Paternity Cases.
Mediation is the recommended and most used way to settle the issues that arise in a divorce, and it is required before going to court. Divorcing couples go to court only if they fail to agree on the terms of the divorce at the mediation.
A mediator is an impartial negotiator that helps divorcing couples to come to a voluntary agreement on the terms of the divorce. Only the document with the agreed terms is seen by the judge. What is spoken during the negotiations is confidential so that it cannot be used against one of the spouses in the court in cases there is no agreement at the mediation. Mediators can be employed by the county or they can be private individuals.
Why Mediations Are More Conducive to Achieving a Settlement
The divorcing couple and their attorneys are present in one room discussing the prospect of settling their disputes. In comparison, negotiations through e-mails and phone calls are inefficient and unreliable.
The confidentiality of the discussions in a mediation allows the parties to make offers and concessions with no fear of having their statements used against them later in court.
Mediators, unlike a judges are actively seeking to bridge the divide between the parties and facilitate a resolution. They cannot take sides or order the parties to do anything, and must remain neutral. However, skilled mediators can subtly nudge one stubborn litigant into compromising enough to forge a settlement.
Why Mediation is More Enforceable, Less Expensive and Less Risky
Mediating a divorce results in a more enforceable and less expensive outcome than going to a trial. It is more enforceable because when both parties contribute to the terms of a mediated agreement, so they feel more invested in it than they would in a ruling from a family law judge. And mediation settlements eliminate the extra cost in attorney fees and court fees of a trial.
Finally, the appeal of risk-avoidance cannot be overstated. Even seasoned family law attorneys cannot precisely predict how a judge will rule. Settling at the mediation saves litigants from the anxiety that surrounds this uncertainties of a trial.
Florida judges have considerable discretion in deciding the amount and duration of alimony. There are four types of alimony: (1) bridge-the-gap, which cover short term need for up to two years and cannot be modified, (2) rehabilitative, which covers a period of job skills training or education and can be later modified, (3) durational, which is for a set period of time not exceeding the length of the marriage and could be modified if there are changes in circumstances and (4) permanent, for a spouse that will need financial help for life, which are reserved for marriages of 17 or more years.
The amount of alimony depends on the length of the marriage, the recipients financial needs and the paying spouse's ability to pay. Florida judges have considerable discretion in deciding the amount and duration of alimony.
No formula exists that establishes the precise amount of alimony. There are no “alimony guidelines”. Family law judges have discretion in awarding it, and if so, setting the form and size of the payments. However, there are safeguards to protect a spouse from having to pay excessive alimony, such as:
A long-term marriage does not necessarily result in permanent alimony, or any alimony. Awarding of alimony depends on three considerations: (a) the length of the marriage, (b) the present ability of the payer to pay it and (c) the present need of the payee to receive it.
How much the alimony recipient needs matters. The goal of alimony is not to equalize the parties’ incomes or to replicate their lifestyle during the marriage. The goal of alimony is to provide both ex-spouses a degree of post-divorce economic security.
Appellate courts have ruled that an alimony award should not impoverish the payer. Judges rarely order an alimony payment that exceeds a third of the payer’s net monthly earnings. And the most common rage for monthly alimony is 20%-30% of the payer's net monthly income.
Custodial parents planning to move with their children by more than fifty miles from where they live must file a notice of relocation with their county court. The non-custodial parents can also file with the court a written objection to their children's relocation within thirty days of being served the relocation notice.
When planning to relocate with your children after a divorce:
Do: (1) prepare a cost-benefit analysis of the impact of the relocation, and a new custody time sharing plan, to present to the family court and (2) consider having your children testify in court about their preferences regarding the move.
Do not: (1) make the separation of the children from your ex-spouse a reason for the move, (2) expect a resolution that is quick and final or (3) put all of your eggs in the relocation basket.
These are three conflicts that create tensions during the relocation process:
1. Reconciling Relocating Quickly with The Difficulty in Scheduling a Hearing
Clients seeking to relocate usually have to be in their new home within a certain time period. Although Florida family law requires that the relocation hearing be held within 30 days, many family law judges resist scheduling these during this short period due to their heavily booked calendars.
2. Reconciling the Family Court Judge Reaching a Compromise Ruling With the All-Or-Nothing Nature Of How the Relocation Issue Is Resolved
Family judges have been known to resolve some disputes among divorced parents through compromise. But in a relocation case the decision can usually be only one of “yes you can relocate” or “no you cannot” If the moving parent lives in Orlando and has a great job offer in Washington DC, relocating halfway in Atlanta is no different then having the relocation denied. When unable to make compromise decisions, judge's, who are required by law to make decisions in the interest of the children, place a higher burden of proof on the relocating parent.
3. Reconciling the Relocation With the Child's Continuity and Stability That Is Favored By Florida Family Law
Florida family law gets interpreted to prefer minimizing disruption in children’s lives. A move to another state disrupts a child’s life and routine. And the move will also take away some of the time that he or she enjoys with the parent that is not relocating. This is why judges need to hear very solid reasons why parents are willing to let these two things happen to their children.
If a divorcing couple cannot come up with an agreement on property distribution during mediation, the distribution will be decided in family court. The judge will determine which assets are marital and which are individual, and the marital assets will be divided equally between the spouses.
Assets and debts acquired before the marriage are individual and those acquired after the marriage are marital. Increases in the value of individual assets during the marriage are also divided equally. Divorcing spouses are not allowed to sell assets for a period before the filing up to the time the divorce has gone into effect.
How the Income of the Litigants Affects the Outcomes of Many Family Law Cases
In divorce or paternity cases involving the time-sharing of children, each parent’s net monthly income is factored into the Child Support Guidelines. In divorces, the spouses' incomes largely determines whether alimony is available, and if so, how much it should be. And in dependency cases, the Department of Children and Families (DCF) always seeks verification of offending parents' income before agreeing to a reunification with their children.
How Florida Family Courts Measure Each Type of Income
Individuals who earn a fixed or very stable income just have to include it in the Financial Affidavit and produce their most recent pay stub.
For commissions and tips family court judges examine the party’s last three annual tax returns, and if all other factors are equal, calculate their average. If the individual has only earned that income for less than two years, the court will average several months of pay stubs.
If you’re more likely than not to receive a bonus at a certain point in the year, it will be considered income for child support and alimony purposes.
Expense allowances are also considered income even when the employee never actually receives the allowance because the employer pays it directly to landlord, hotel, car rental agency, etc.
Alimony from a previous marriage is considered income, but child support is not.
In family law, underemployment is being unemployed or earning substantially less than in the past. The underemployed are imputed an income based on how much more they could earn if fully employed. Typically, the higher the imputed income the higher alimony or child support payments that have to be made or the lower that are received. These issues arise when determining underemployment and how much income is imputed to it:
If the opposing party can prove that the paying parent deliberately earns less money in an effort to avoid paying child support or alimony, most family court judges will set an imputed income for underemployment based on a previous higher actual income. However, the burden of proof remains with the party arguing underemployment.
A wife (or husband) who once had a career, but has been recently working at home for the family can also be considered underemployed. If able-bodied, under 65 and receiving alimony, she (or he) will have her income imputed, at least, at the minimum hourly wage for 40 hours per week. If this person has some relevant job experience or a college degree, the family court may assign her (or him) an imputed income higher than a minimum wage, but never higher than she has ever earned before.
Imputed income can also be assigned to a parent in a divorce who is transitioning from a well-established career to a lower-paying new one, or is temporarily foregoing a good income to pursue higher education. To minimize an imputed income, the party who is making the career change has to prove that the this will later earn a higher income while the children are still minors. Parents that can prove that are just assigned a minimum wage. However if the parent is changing careers merely to “find themselves”, the family court judge will impute the former income.
Business expenses, such as employee wages, office rent, business supplies and business travel, are deducted from gross income to arrive at net income. This information is presented in an income statement, also known as a profit and loss statement. This is the practice in accounting, tax rules and family law. For family law purposes business income is net income.
But what constitutes “ordinary” business expenses can generate controversy in a divorce. Business trips and meals, as long as they are not lavish in nature, usually qualify as legitimate business expenses. Conversely, a family law client that simply pays to eat at Denny’s while on a business trip cannot deduct this payment from the gross business income.
Many divorce clients are leaving marriages that are involved in a family business. Often, they are helping their spouse with the business. Other times, one spouse operated the business, while the other pursued a different career. In either case, the income derived from the business needs to be established with precision because it affects the amount of any child support or alimony payments.
Saying that a certain percent of the marriages end up in divorce is only meaningful if one also specifies after how many years it ends up in divorce. So there are really many different percentages of marriages ending up in divorce, depending on how many years after the year of marriage one looks at.
Or we can look at the marriage survival rate, which is the percentage of the marriages surviving after each number of years. When we graph a marriage survival rate that starts with marriages of a given year or years, it looks like a curve that declines as the age of the marriage increases, but at a declining rate of decline.
These curves vary in height depending on the year of marriage. The higher the marriage survival rate, the lower the divorce rate. It is these curves that answer the question of how have divorce rates changed over time.
Generally speaking marriage survival rates in the United States dropped quite significantly between the marriages made during 1960 to 1964 and those of 1970-1974 and 1975-1979. But the marriages that started during 1990-1994 and 1995-1994 recovered about one third of the drop in survival rates of that 1970-1974 and 1975-1979 marriages had compared to those marriages that started between 1960 and 1964. Please click on the link that appears on the title of this summary to see the actual numbers.
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