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Divorcing in Florida

An insider's guide to divorce in FLA

Introduction

By definition, divorce ends the bonds of matrimony and the union of both husband and wife. In legal jargon, it's known as a Petition for Dissolution of Marriage and the person who initiates the divorce is called the Petitioner. The Respondent, who is legally served with a copy of said Divorce Petition, has the right to file an Answer and Counter-Claim.

Jurisdiction

The six month residency rule applies pursuant to the Florida Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) before parties can legally move for dissolution of marriage.

Limitations

Florida is a No-Fault State, which means if either party believes the marriage is over and files paperwork in Court stating so (e.g. the parties have achieved irreconcilable differences and the marriage is irretrievably broken), a Judge will grant the divorce. Consistent with No-Fault grounds, no proof or evidence is required to obtain said divorce. The exception to the rule is if one party can prove the other party suffered mental incapacity for a preceding period of at least three years - F.S. 61.052

Collaborative Divorce and Mediation

If at all possible, "settle" your case through mediation or a process called Collaborative Divorce, especially if you have children. Otherwise, if you resort to high-conflict litigation in Court, it will be emotionally, fiscally, and legally challenging for the litigants. And, of course, the real losers in the end are always the children. For a small fee, a court appointed mediator will hammer out an amicable settlement between and for the parties, and if approved by the same, will become a stipulated consent order signed by the Court. - F.S. 61.183

Time-Sharing and Shared Parental Responsibility

If you have children and mediation has reached an impasse and your case is considered "high-conflict," Florida law does not offer joint physical custody. In fact, the words visitation and custody have been removed from the Florida Statutes. A Judge will decide by a preponderance of the evidence, post-trial, that one parent will become the primary residential parent and the other parent will enjoy "time-sharing." Both parties can still be awarded joint legal custody whereby they would have a 50-50 say so in the major health, education and welfare decisions with respect to their children. Although Florida Statute 61.121 allows for rotating custody a/k/a split custody of minor children, there is a presumption in Florida that rotating custody is not in the best interest of the child. Rotating custody involves the child(ren) living with each parent on an equal annual basis amounting to at least six (6) months total with each parent.

Florida law requires the custodial parent to foster and nurture the children's relationship with the opposing parent, but in essence both should do so. It is recommended you always place the needs of your child(ren) in front of your own, and that you never vilify or denigrate the opposing parent in front of the children. Likewise, neither parent should discuss the court case in front of or with their children.

This is War: Take no Prisoners, aka Expect the Unexpected

While we must work to protect children and women at all costs, sometimes the law and system can be wielded as a sword. F.S. 741.30 affords women the right to protection via a statement of fear of threatened harm with no proof or evidence, and likewise 1-800-96-ABUSE can be used as an open invitation to malicious slander. Do not place the kids in the middle of your legal battle, using them as pawns, weapons and tools. The negative effects of divorce are far reaching enough and parents need not exacerbate an already incendiary situation by launching false abuse allegations against the other parent in order to gain equity-at-law in Court. Remember - The best parent is both parents. F.S. 61.125 allows the Court to appoint a Parenting Coordinator (PC) to oversee the acrimony and issues of warring parents in custody cases.

Modification

Any child custody court order is based on a substantial change of circumstances in the child's best interest.

Property Distribution

Florida is an equitable distribution state, meaning marital assets are divided on an equitable basis. That said, there are factors a Court will consider which can induce same to order an unequal distribution of marital assets including:

(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the non-marital assets of the parties.

(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition. This is also known as marital waste and includes filing false abuse allegations that cause a litigant to expend unnecessary monies.

(j) Any other factors necessary to do equity and justice between the parties.