Copyright © 2012 by Mira Staggers White; revised 08/2012
Dissolution of Marriage, Another Name for Divorce
Marriages in the State of Florida are ended in divorce, which is called a “Dissolution of Marriage”. Under Florida law, a Dissolution of Marriage is not granted based upon the fault or misconduct of either or both of the parties. There are two grounds for Dissolution of Marriage in Florida: 1) the parties’ marriage is “irretrievably broken”; or 2) one of the parties is mentally incompetent.
The usual reason for obtaining a Dissolution of Marriage is that the marriage is irretrievably broken. Irretrievably broken means that the parties have difficulties or disputes that they cannot settle and that these difficulties and disputes are so serious that they have caused a total break down of the marriage. In short, the parties are incompatible and can do nothing to salvage the marriage.
A Dissolution of Marriage is rarely granted based upon the incompetency of one of the parties. Incompetency can only be the grounds for a dissolution if the party alleged to be incompetent has been declared incompetent by a Court and has been in that condition for at least three years.
In order to obtain a Dissolution of Marriage in Florida, one of the parties must live in that state for a least six months prior to the beginning of the legal proceeding. The Petition is typically filed in the Circuit Court of the County in which the parties last lived together.
Issues to be Resolved
In a Dissolution of Marriage, the major issues generally involved include: 1) the division of marital assets and marital debts; 2) the parenting arrangement for the parties’ children; 3) payment of child support; 4) payment of spousal support or alimony; and 5) payment of attorney fees and costs.
Division of Marital Assets and Marital Debts
Under Florida law, the parties must make an “equitable distribution” of marital assets and debts. “Equitable” does not always mean an “equal” or a “50/50” division. However, the starting point for dividing marital property is an equal distribution. Courts typically do not deviate from an equal distribution unless there are a very compelling reasons. Many factors, including the parties’ contribution to the marriage, the length of the marriage, the economic circumstances of the parties, and the parties’ contribution toward acquiring the assets or debts, are considered when determining the division of marital property. (CLICK HERE to view the factors considered when making an unequal division of marital assets and debts.)
Marital assets and debts are not necessarily limited to those held or incurred in joint names. As a general guideline, all assets acquired during the course of the marriage and all debts incurred during the marriage are classified as marital assets and marital debt. Marital assets typically include all items of value acquired during the marriage by either spouse including, but not limited to, pensions, retirement accounts, cars , houses and furniture. Likewise, marital debts generally include all debts incurred by the parties jointly or by each spouse individually. Thus, if your spouse incurs a debt on a charge card in his sole name during the marriage, it is normally classified as a marital debt.
This is general guideline for classifying marital property has many exceptions, and some items acquired duing the marriage would be "non-marital" and not subject to division between the parties. Common examples of non-marital property which is not subject to equitable distribtion are inheritances and gifts that were received during the marriage that were kept separate and not commingled with marital earnings or other marital properties.
Parental responsibility refers to the rights and obligations of both parents as they relate to their children, including the right to make decisions about the rearing of the children and the right to have information concerning such matters as the children's educational and medical records. Parental responsibility can either be “shared” or “sole”. Under Florida law, there is a presumption that parental responsibility will be shared unless it can be proven that shared parental responsibility is detrimental to the children. Thus in the vast majority of cases, parental responsibility will be shared. Shared parental responsibility is a relationship in which both parties retain full parental rights and obligations with respect to their children.
Sole parental responsibility is a relationship in which only one parent makes the decisions regarding the parties’ minor children. Sole parental responsibility is rarely granted. It is typically only granted in situations where one of the parents, due to imprisonment, illness or for some other reason, can not meaningfully participate in the decision making for the children.
Prior to 2008, one party was usually designated as the primary residential parent of the minor children, that was the parent with whom the children spent most of their time. In 2008, the Florida legislature significantly revised the statutes so to eliminate the designation of "primary residency", and use of the terms "primary residential custody", "custody", and "visitation". Additionally as part of the statutory revisions, in all divorce actions involving minor children a Parenting Plan must be developed. A Parenting Plan is a very detailed document that sets out how the parents are going to make decisions regarding their children and how they will spend time with the children.
Under Florida law, the best interest of the children determine the type of Parenting Plan. In developing a Parenting Plan, there a many factors to consider, including the parent's historical and anticipated relationship and involvement with the children. (A list of the statutory factors to be considered in devising a Parenting Plan by CLICKING HERE.) In setting a Parenting Plan, it is important to note that neither parent has a statutory presumption to spend the most time with the children, and the stated public policy of Florida is "that each child has frequent and continuing contact with both parents...and to encourage parents to share the rights and responsibilities, and joys, of childrearing". Fla. Stat. 61.13(2)(c)(1)(2012). Although the full impact of the 2008 statutory changes remains unclear, the trend clearly is for both parents to spend significant time with the children, and it is not uncommon to now see parenting arrangements that provide for equal timesharing between the parents..
****CLICK HERE to read article regarding change in Florida custody laws.
Child Support is typically paid by the higher earning spouse to the lower wage earner. Child support is to be used to help pay for shelter, food, clothing, education and necessities of the children.
The amount of child support will, of course, depend upon the needs of the children, the financial circumstances of the parties, and the parties' timesharing arrangement. In Florida, guidelines, established by the legislature, are used to help determine the amount of support. Under the guidelines the amount of base child support is calculated upon the parties’ monthly “take home income”. The cost of health insurance and child care expenses, caused by the parties' employment or schooling, are added to the base amount of support to determine the total support paid.
Florida Statute 61.08 is used to determine the appropriateness and amount of an alimony award. Alimony or spousal support is awarded primarily based upon one party’s need and the other’s ability to pay. Additional factors, such as the length of marriage, the standard of living enjoyed during the marriage, the parties’ financial resources, the relative health of the parties, the age of the parties, their education and skill level, and their employment histories are often considered when determining whether an award of alimony is justified. The factors the considered in awarding alimony can be viewed by CLICKING HERE.
Florida Statute now defines a marriage as "long-term", "moderate duration" and "short-term" based upon the number of years the parties have been marriage. A long-term marriage is a marriage of 17 or more years. A moderate duration marriage is one of more than 7 years but less than 17. A short-term marriage is one that last less than 7 years. These are statutory guidelines or presumptions, and a Court may consider the parties' unique circumstances when defining the length of the marriage as long, moderate, or short. The length of the marriage is one of the critical factors in determining the type of alimony award.
Alimony or spousal support may be permanent, durational, rehabilitative, bride-the-gap, temporary, or lump sum. Permanent alimony is paid periodically, usually monthly, by one party to the other. Permanent alimony is normally awarded in long-term marriages where there is a large disparity in the parties' incomes, and in situations where no other form of alimony would be fair. Permanent alimony generally continues until one party dies, the remarriage of the obligee, or the cohabitation of the receiving party with another person in a financially supportive relationship.
Durational alimony is a new form of alimony created by the legislature in 2010. Durational alimony is to be awarded in short-term marriages or moderate duration marriages, when an award of permanent alimony is not appropriate. Durational alimony is awarded for a set period of time, no longer than the length of the parties' marriage. Durational alimony, like permanent alimony, terminates on the death of either party, the remarriage of the obligee, or the cohabitation of the recipient with another person in a financially supportive relationship.
Rehabilitative alimony is used to help support a spouse for a set period of time until that party can renew old skills or obtain new skills with which to support him or herself. Rehabilitative alimony is usually for a relatively short duration and usually does not terminate upon the remarriage or cohabitation of the receiving party.
Bridge-the-gap alimony is used to help a party pay for legitimate short term needs that arise when making the transition from married life to single life. Statutorily bridge-the-gap alimony may only be awarded for a period of two years and in non-modifiable. Bridge-the-gap alimony terminates on the death of either party or the recipient's remarriage.
Temporary alimony can be awarded to help support a party during the dissolution process. In awarding temporary alimony, the focus is primarily on the ability to pay and the need for financial assistance.
Lump sum alimony is payment of a definite sum of money or property to the dependent party. Lump sum alimony is unique in that it is a vested property right that survives the death of both parties and cannot be modified. Lump sum alimony should only be awarded in special circumstances, and, as such, is rarely granted.
Attorney Fees and Costs
Florida Statute 61.16 provides for an occasional award of attorney fees, suit money and costs to one of the parties, so to ensure that both parties have equal ability to hire competent legal representation. The award of attorney fees and costs is based upon the parties’ relative financial need and the ability to pay. Attorney fees and costs awards can be made on a temporary basis to help a spouse pay for an attorney while the divorce is pending or at the end of the case.
The laws governing dissolution of marriage in Florida are complex and constantly changing. As such, you should only rely on this overview as a general outline of the law in Florida, and not as specific legal advice. To determine how these laws affect your situation and to answer your specific questions, you should conferred with an attorney licensed to practice law in Florida.