Getting a Divorce in Florida? Divorce Law Cheat Sheet for the State of Florida
1. What are the residency requirements for filing for divorce in Florida?
You or your spouse must be a resident of the state for at least six months before filing for a divorce in Florida.
2. Does Florida have a waiting period?
The court will not grant a divorce until at least 20 days after you file — unless there is some unusual circumstance that would make that waiting period unfair.
3. Does the state have grounds for divorce?
There are two grounds for divorce in Florida:
- The marriage is irretrievably broken, meaning there’s no hope of getting back together.
- Or your spouse has been found to be mentally incapacitated and has been for at least three years. See Fl. St. 61.052 (1)(b). That means you have to wait at least three years to commence a divorce at that point. Also if during a divorce, a spouse is adjudicated mentally incapacitated and this becomes the grounds for divorce, then the divorce can’t begin until three years have passed.
If you and your spouse don’t have any young children, your spouse doesn’t deny that your marriage is irretrievably broken, and the court agrees, your divorce can proceed.
If you and your spouse do have children, or if your spouse argues that your marriage is not irretrievably broken, the court may order:
- One or both of you to seek counseling;
- You to put everything on hold for as long as three months to see whether you can work things out;
- Or it can take some other action it decides is in the best interests of you and your child.
This rarely happens. Most Florida judges take the attitude that it takes two willing parties to make counseling work. However, a conservative judge may grant the motion.
4. How does Florida determine the division of property?
You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your assets and liabilities for you. The court must commence with the presumption that the division should be equal, unless there is a justification for an unequal distribution. The court first will determine what is non-marital property and exclude that from consideration. It will then divide your marital property according to what would be most equitable, or fair. To decide whether there will be an equal or unequal division of marital assets and liabilities, the court will look at:
- You and your spouse’s contributions to your marriage, including caring for your home and children.
- You and your spouse’s economic situations.
- How long you were married.
- Any interruptions in you or your spouse’s careers or education.
- Any contribution you or your spouse made to the other’s career or education.
- Whether it would be best for one of you to keep some property such as interest in a business or professional practice without any interference from the other.
- What role you and your spouse each played in acquiring, improving or generating income from both your marital and non-marital property (this goes for whether you or your spouse incurred debt from that property, too.)
- Whether it would be best for one of you to keep your home as a residence for your child or whether there is some other reason for one of you to keep your home.
- Whether you or your spouse intentionally wasted or destroyed any marital property during the two years before you filed for divorce or since you filed for divorce.
- Any other factors the court decides are relevant.
Florida defines marital property as:
- Any income, asset, or debt you or your spouse acquired while you were married, whether you singularly or both of you together acquired it.
- Any increase in value to your non-marital property that came as a result of efforts by you or your spouse while you were married or from some contribution of marital funds gifts you and your spouse gave to each other while you were married.
- Any benefits you or your spouse acquired while you were married, such as retirement, pension and profit-sharing benefits your home, whether it was acquired before or after you were married.
Florida defines non-marital property as:
- Property acquired before you were married, as well as any property that you receive in exchange for that property.
- Property acquired by gift from people other than your spouse, or inheritance, as well as any property that you receive in exchange for that property.
- Any income you earned from your non-marital property during your marriage, unless that income was used or relied on as marital property.
- Any property you and your spouse agree to leave out of the discussion.
- Any debt that resulted from you or your spouse forging the signature of the other — this debt will be the responsibility of the person who committed forgery, unless the other spouse later OKed the debt.
- Alimony is not taken into consideration when the court divides your marital property — that’s decided afterward.
5. Does Florida require mediation before a divorce is granted?
Mediation is not a standard requirement for a divorce in Florida, though the court may order mediation to resolve disagreements about responsibility for your child, where he or she will live, visitation or support.
6. How does the state determine child custody?
Florida does not use the terms legal or physical custody. It currently uses primary residency and parental responsibility (decision making), which can be shared by the parties just as if they were married, solely decided by one parent (if shared decision making is established to be harmful to the child) or ultimate decision-making (after discussion by the parties of an issue, and no agreement can be reached on an issue, then the parent with ultimate decision-making power is entitled to have the final say or decision on that issue).
A parent can be awarded sole or ultimate decision-making power on all issues of a child’s life or on one or more decisions. Please note that a new parenting law is about to be signed by the governor of Florida. When he does so, the nomenclature will change again (in November, the effective date of the amendments). However, even then the terms: legal and physical custody will not be used.
Legal custody and physical custody are two different things. Legal custody outlines how involved each parent is in the major decisions of a child’s life — where a child goes to school, what faith he or she is raised in and other biggies.
Physical custody addresses where a child will live and with whom. Visitation is then negotiated based your physical custody arrangement.
The court’s main concern is for your child’s best interest, including frequent and continuing contact with both you and your spouse, if appropriate. The court will order shared parental responsibility for your child, unless that’s not in your child’s best interest — one of you has been convicted of a third-degree felony involving domestic violence, for example. The court may award your child’s grandparents visitation rights if that’s in your child’s best interest.
To determine what is in your child’s best interest, the court will evaluate the following:
- Which of you is more likely to allow your child frequent and continuing contact with the other parent.
- The love and affection between your child and each of you.
- You and your spouse’s abilities to provide food, clothing, medical care and other basic needs.
- How long your child has lived in a stable environment and whether it’s best to continue that situation.
- The permanence of the family in the home where your child might live.
- You and your spouse’s level of morals.
- You and your spouse’s mental and physical health.
- Your child’s adjustment to his or her home, school and community your child’s preference, if the court thinks he or she is mature enough to have a preference.
- You and your spouse’s abilities to encourage a close relationship between your child and the other parent.
- Any evidence that you or your spouse knowingly gave false information to the court regarding domestic violence.
- Any evidence of domestic violence or child abuse.
- Anything else the court might consider relevant.
You and your spouse will be required to complete a Parent Education and Family Stabilization Course before the court will grant a divorce. This course is designed to cover the legal aspects of child-related issues between you and your spouse, the emotional effects of separation and divorce on adults and children, family relationships, spousal or child abuse and neglect, and general relationship skills.
7. How does the state calculate child support?
Florida adheres closely to a set of guidelines that call for you and your spouse to share child support in proportion to your incomes. The court has the discretion to deviate plus or minus five percent after considering all relevant factors, including the needs of the children, station in life, standard of living, and the financial status and ability of each parent. See FL St. 61.30 (1)(a).In addition, the court has the ability to deviate more than five percent of the guideline amount based on the following factors: See Fl St. 61.30 (11)
- Unusual medical, psychological, educational or dental expenses.
- any income your child might have any necessary support that you or your spouse provides for your parents.
- Seasonal variations in you or your spouse’s incomes or expenses your child’s age (assuming that older children have greater needs).
- Any special needs, such as for a disability, that your family has been paying for you, your spouse and your child’s total assets.
- Which of you should be allowed to claim your child as a dependent with the IRS.
- Whether the guidelines mean you or your spouse is paying more than 55 percent of your gross income for child support.
- Your shared parenting arrangement, if your child will be spending significant amounts of time with his or her non-custodial parent, or if the non-custodial parent refuses to get involved in your child’s activities.
- Any reasonable existing expense or debt.
If your shared parental arrangement means that your child will spend a substantial amount of time with each of you, the court will adjust the child support amount according to a complex but decisive series of calculations. In Florida, “substantial amount of time” means that the non-custodial parent has visitation for at least 40 percent of the overnights in a year.
Your child support order will include a provision for health care coverage, uncovered medical expenses and work-related child care costs.
8. How does the state determine and calculate alimony?
Alimony isn’t a given in a divorce case, but the court may award it to you or your spouse as appropriate. Alimony may be awarded as periodic payments or as a lump sum or both. The court may take into account any adultery on the part of you or your spouse in deciding whether to award alimony and how much. In determining an alimony award, the court will consider:
- The standard of living established during your marriage
- How long you were married.
- You and your spouse’s ages and physical and emotional conditions.
- You and your spouse’s financial resources, including non-marital and marital assets and debts.
- How long it might take for you or your spouse to get the education or training necessary to find a job.
- What each of you contributed to your marriage, including caring for your home or children and supporting the education and career of the other.
- You and your spouse’s sources of income any other factors the court decides are relevant
9. Is there a waiting period before remarriage in Florida?
No, you are free to remarry after the court delivers the final judgment ending your marriage.
FOR MORE INFORMATION
You can find Florida’s state statutes online by clicking here.
Florida provides forms and other helpful information by clicking here.
MEET THE ATTORNEY
Name: Charles D. Jamieson, Esq.
Years in Practice: 29
Law School: University of Maine School of Law
Firm: The Law Firm of Charles D. Jamieson
Concentration: Divorce and Family Law Firm
Web site: www.cjamiesonlaw.com
Firm Telephone Number: 561-478-0312
Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.