Search Site
Menu
Divorce 101/Paternity

Pre-divorce advice:

1) Copy all the current financial information of your household. “Current” means at least most recent to a year.
2) Understand and write down your family budget and the budget you project you will have living apart from your spouse. If your spouse carries your health insurance and/or car insurance, get quotes of what your own insurances will cost because most insurance companies will not allow your spouse to claim you after the divorce because you are no longer a “dependent”.
3) Take pictures and/or video and itemize the furniture and furnishings and things in your household and/or storage.
4) Develop a mindset of patience with your attorney and the process. The court process is slow.

Welcome to Divorce 101

In Florida, the formal term for a “divorce” is “dissolution”. (I call it “divorce” because it is a more common term, but in court, I refer to the legal term “dissolution”). There are only two basic requirements for divorce: 1) that you or your spouse have been a continuous resident in the state for at least six months, and 2) that your marriage is “irretrievably broken“. In other words, only one party must state that the marriage is broken for good. This is a “no fault” state, meaning that though you are suffering from the consequences of adultery, abuse or abandonment, Florida does not require that you prove those issues as a prerequisite to divorce. Adultery is a consideration in alimony, and abuse and abandonment could be considerations for child custody.

Divorce or “dissolution” is governed by laws. Those laws are found in the Florida Statutes and the Florida Family Law Rules of Procedure and the Florida Rules of Civil Procedure and the case law from the courts that interpret the statutes and rules.

If you do not have children then your divorce is divided into three categories. If you do have children then your divorce is divided into five categories, which include the first three categories. Note: if you have children, the court will first determine the parenting plan and parental responsibility then move to the financial issues. If there are no children, then the court looks at the issues, as follows:

I. EQUITABLE DISTRIBUTION

Equitable distribution is governed by statute 61.075. Here are some basic rules you need to know (realize that as with ALL things in life, these basic rules are subject to exceptions and the judge’s idea of what is fair and equitable):

1. Statute 61.075 only deals with assets and debts, not income. Statute 61.075 dictates that the court must FIRST take out pre-marital and non-marital assets. In general, pre-marital assets and debts are presumed to be those assets and debts that you and your spouse owned prior to the marriage. These assets and debts are NOT considered to be part of the marital assets and debts (hereinafter referred to as “marital pie”), unless they were co-mingled or used during the marriage or there was an extraordinary contribution.

2. The Court then presumes that all assets and debts acquired during the marriage, regardless of whose individual name that asset and debt is acquired in, IS part of the marital pie.

3. The Court then MUST divide the marital assets and debts 50/50.

4. The Court can consider distributing the assets and debts unequally.

5. Any assets and debts accumulated AFTER the filing of the petition date are presumed NON-marital.

II. ALIMONY

Statute 61.08 governs the law on alimony. The law regarding alimony changed on July 1, 2010. The legislature is currently considering remarkable changes for 2015, and if the legislation passes, the terms for alimony

1. That alimony is based on NEED and ABILITY TO PAY. Thus, first the Court will look at whether you have the need and the spouse has the ability to pay. The Court will look to the financial affidavits and any supporting determination to determine the same.

2. If the court finds both of the above then it will consider the following:

  • a. Standard of living during the marriage (usually determined by financial affidavits and bank statements and credit card statements)
  • b. Duration of the marriage (under 7 years a short term marriage where alimony is NOT presumed; 7 to less then 17 years moderate term marriage and look to factors; 17 years and above longer is a long term marriage where alimony is presumed.
  • c. Age, physical, emotional condition.
  • d. All of the financial resources of the parties -marital and non-marital
  • e. Earning capacity and employability and time necessary to become employable.
  • f. Contribution to marriage – homemaking, child care, etc.
  • g. Responsibilities to minor children
  • h. Tax treatment of alimony, including whether non-taxable/non-deductible
  • i. All sources of income available to either party.
  • j. Any other factors necessary to do justice.

3. The court then looks to the type of alimony or combination to award:

  • a. Permanent periodic – usually for long term marriages and considered for short term marriages where exceptional circumstances are present. Terminates upon remarriage of payee or death or either party, and can be modified.
  • b. Bridge-the-gap – usually for short term marriage for short term needs. It is for a specific duration of less then 2 years and non-modifiable.
  • c. Rehabilitative alimony – to assist a party in becoming employed. It may be modified.
  • d. Durational alimony – usually where permanent alimony inappropriate and lasts no longer then the years of marriage and is modifiable and terminates upon remarriage of payee or death.
  • e. Lump sum alimony – usually only awarded in exceptional circumstances that must be proven.
  • f. Temporary alimony – awarded during the time the case is open until the final judgment.

III. ATTORNEY’S FEES

Attorney’s fees are based on statute 61.16 NEED AND ABILITY TO PAY. The court will consider ALL sources of assets and income.

IV. CHILD CUSTODY (NOW TIME-SHARING/PARENTING PLANS)

The terminology used to be “child custody“. This category is governed by F.S.S. 61.13 (3). Prior to October 1, 2008 child custody was broken into two separate and distinct categories: parental responsibility and residential custody. Parental Responsibility was and still is termed “shared”, “sole”, and “ultimate”. Residential custody was termed “primary/secondary” and “joint and rotating”. After October 1, 2008, the terminology for where the child spends his or her time is no longer called “child custody”. Now we refer to it as “time-sharing”. “Parental responsibility” is simply the decisions you make as a parent and your rights to make decisions for your child and access records. This has nothing to do with where the child sleeps at night. Parental responsibility can be “shared” or “sole”. Most parents have “shared parental responsibility”. Only in rare and extreme incidents does one party have “sole parental responsibility”. Such incidents are a conviction for child abuse or molestation or extreme current drug or alcohol abuse that is documented and situations supported by evidence.

The public policy of the state of Florida under F.S.S. 61.13(2) is that BOTH PARENTS, WHETHER FATHER OR MOTHER, SHOULD HAVE SUBSTANTIAL TIME SHARING WITH THE CHILD(REN).

The time sharing that will be enjoyed by you will be determined by what is in the child’s best interests. There is a list of 20 factors that the judge must consider and evaluate when making the determination as to the time sharing of the parents. See F.S.S. 61.13(3). A couple of those factors include the demonstrated capacity of each parent to facilitate and encourage a close continuing parent-child relationship, and the anticipated division of parental responsibilities after litigation. The judge must now look at the schedule of the family and these factors for time sharing versus this circuit’s previous child contact schedule of every other weekend. Though every other weekend may be appropriate, the judges are not to accept the old standard of one size fits all.

V. CHILD SUPPORT

The last category is child support, which is governed by F.S.S. 61.30. Child support is a formula calculated to support a child based on the household income as if the family were to stay intact. Basically, the parties’ gross incomes are added less statutory deductions, thus, arriving at a net income then the basic guideline amount is determined. Day care expenses and/or health insurance expenses for the children are determined on a percentage basis and calculated in the formula. Both parties are liable for the support of their child.

CONCLUSION:

All of the foregoing information is just a general overview of family law, and is never a substitute for the hiring of an attorney to help you. Each family is unique and the same laws will apply differently to each family. The information or the results given to you by your well-intentioned friends and family members about their divorce case will most probably NOT apply to you. Any attorney, no matter how high priced or great of a reputation, can ever guarantee an outcome. If you leave the decision up to the judge, you should understand that most judges will follow the law, BUT how the judge views the facts and the importance of those facts may be different from your view, thus, you may get a much different ruling from the judge on an issue or issues then the one you expected or desired.