In Florida “divorce” is formally known as “dissolution of marriage”. When a husband or wife petitions the court for a dissolution of their marriage, aside from legally terminating or “dissolving” the marriage, the court must also resolve various issues related to the marriage. For Example, the court will determine questions related to the ownership of personal property, alimony, possession and eventual ownership of the marital home, and if there are minor children, time sharing and child support.
The divorce process in Florida is controlled by Chapter 61, Florida Statutes. This portion of Florida law controls how family law judges decide key issues in divorce cases.
Division of Property or “Equitable Distribution”
Part of the divorce process involves determining the property and debt that each spouse will take once the marriage is dissolved. Under Florida law dividing property and debt between the spouses is referred to as “Equitable Distribution”. Section 61.075, Florida Statutes controls equitable distribution and provides a judge guidelines to apply when dividing the marital property and debt.
Florida law Presumes a 50/50 split of property and debt
Florida law requires the judge to initially “begin [the analysis] with the premise that the distribution should be equal”. This means that barring additional information, the husband and wife will walk away from the marriage with an even 50/50 split of martial property and debt. However, the judge may order an “unequal split”, when “there is a justification for an unequal distribution based on all relevant factors”. § 61.075, Florida Statutes.
If either the husband or spouse claim that there should be an unequal distribution of the marital property (i.e. 60/40, 70/30, etc.) the court will look to “all relevant factors”, including the factors enumerated under § 61.075, Florida Statutes. The following is a list of the factors mentioned above, that the judge will consider before deciding to divide the marital property/debts unequally. The factors include:
- The contribution to the marriage by each spouse. This includes contributions to the care and education of the children and services as homemaker
- The economic circumstances of the parties.
- The duration of the marriage.
- Any interruption of personal careers or educational opportunities of either party.
- The contribution of one spouse to the personal career or educational opportunity of the other spouse.
- The desirability of retaining any assert, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
- 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 nonmarital assets of the parties.
- The desirability of retaining the marital home as a residence for any dependent child of the marriage.
- The intentional dissipation, waste, depletion, or destruction of marital assets after filing of the petition or within 2 years prior to the filing of the petition.
- Any other factors necessary to do equity and justice between the parties.
As you probably have guessed, there is no “one size fits all” here. There will always be arguments for and against the equal or unequal distribution of the marital property and debt. For this reason, it is essential that your divorce lawyer has a firm understanding of your marriage.
Alimony or Spousal Support
The terms alimony or spousal support/maintenance basically refers to the legal obligation of one spouse to financially support the other spouse. Florida law, specifically § 61.08, Florida Statutes establishes the forms of alimony under Florida law as well as the guidelines judges must follow before granting a spouse the right to alimony.
Rehabilitative Alimony is designed to assist a party in establishing the capacity for self-support through either the redevelopment of previous skills or credentials or the acquisition of education, training, or work experience necessary to develop appropriate employment skills or credentials. See § 61.08(6), Florida Statutes.
Durational Alimony: is meant for the purpose of providing a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis. See § 61.08(7), Florida Statutes.
Permanent Alimony: is meant to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. See § 61.08(8), Florida Statutes.
How to Get Alimony In Florida
In Florida,before you can get alimony a judge must determine that “[the] party has an actual need for alimony or maintenance and whether [other spouse] has the ability to pay alimony or maintenance.”See § 61.08(2), Florida Statutes.
In other words the judge will not order the other party to pay alimony if it is clear that you can support yourself and maintain the same standard of living you had during the marriage. Likewise, the judge may not order alimony if your spouse does not have the ability to pay for alimony. See § 61.08(2), Florida Statutes.
Assuming, the court finds a spouse’s need for alimony and the other spouse’s ability to pay alimony, the next question is the type of alimony to be awarded. Florida law says in determining the type of alimony to award, a judge should consider “all factors” including the factors listed under§ 61.08(2), Florida Statutes. Those factors include:
- The standard of living established during the marriage.
- The duration of marriage.
- The age and the physical and emotional condition of each party.
- The financial resources of each party, including the nonmarital and marital assets and liabilities.
- The earning capacities, educational levels, vocational skills, and employability of the parties, and when applicable the time necessary for either party to acquire sufficient education or training to enable such a party to find appropriate employment.
- The contribution of each party to the marriage, including but not limited to services rendered in homemaking, child care, education, and career building of the other party.
- The responsibilities each party will have with regard to any minor children they have in common.
- The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductable payment.
- All sources of income available to either party, including income available to either party through investments of any asset held by that party.
- Any other factor necessary to do equity and justice between the parties.
Child Custody or “Timesharing”
Under Florida law, Child Custody is now referred to as “timesharing“. Timesharing is controlled by § 61.13, Florida Statutes.
In Florida is there a presumption that the child’s mother gets more time than the father?
The law in Florida is clear that“[t]here is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.” In other words the law requires the judge to view each party equally when deciding the time sharing plan.
In fact, Florida law says that “[t]he court shall order that the parental responsibility for a minor be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.” § 61.13(2)(c)2., Florida Statutes.
How Does the Judge come up with the time sharing plan? What does the Best Interest of the Child Mean?
Florida law states that “the best interest of the child” is the “primary consideration” when the judge is creating or modifying parental responsibility and creating, developing, approving, or modifying a parental plan , including a time-sharing schedule. See § 61.13(3)(a)-(t), Florida Statutes.
The “best interest of the child” standard is very fluid, meaning it is not a black and white test. Instead, Florida law requires the judge to take a variety of factors into consideration, including the “welfare and interests of the particular minor child and the circumstances of that family”.
Moreover, § 61.13(3)(a)-(t), Florida Statutes contain all of the factors that the judge must consider when deciding on a parenting plan and answering the best interest of the child question. The factors include, but are not limited to:
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- The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time sharing schedule, and to be reasonable when changes are required.
- The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
- The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
- The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
- The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time spent traveling to effectuate the parenting plan.
- The moral fitness of the parents.
- The mental and physical health of the parents.
- The home, school, and community record of the child.
- The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
- The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
- The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline and daily schedules for homework, meals, and bedtime.
- The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
- Evidence of domestic violence or child abuse or neglect.
- Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
- The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
- The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
- The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
- The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
- The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
- Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
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