Sunday, December 9, 2007

Florida Divorce Laws

Florida Divorce Laws

Residency Requirements for Divorce in Florida
One of the spouses must have been a resident for 6 months prior to filing for dissolution of marriage. The dissolution of marriage should be filed in either: (1) the county where the defendant resides or (2) the county where the spouses last lived together prior to separating.
[Florida Case Law and Florida Statutes Annotated; Chapter 61.021].

Legal Grounds for Divorce in Florida

1. No Fault Divorce: Irretrievable breakdown of the marriage.
[Florida Statutes Annotated; Chapter 61.052].
2. General Divorce: Mental incapacity for at least 3 years.
[Florida Statutes Annotated; Chapter 61.052].

Legal Separation in Florida
A spouse may file for separate maintenance and child support.
[Florida Statutes Annotated; Chapter 61.09].

Simplified/Special Divorce Procedures in Florida
Florida has a procedure for a Simplified Dissolution of Marriage. In order to qualify to use this procedure, the spouses must certify that:

1. There are no minor or dependent children of the spouses and the wife is not pregnant
2. The spouses have made a satisfactory division of their property and have agreed as to payment of their joint obligations
3. That 1 of the spouses has been a resident of Florida for 6 months immediately prior to filing for dissolution of marriage
4. That their marriage is irretrievably broken

The spouses must appear in court to testify as to these items and file a Certificate of a Corroborating Witness as to the residency requirement. Each must also attach a financial affidavit to the Simplified Dissolution Petition. Specific forms and an instruction brochure are available from the Clerk of any Circuit Court. In addition, sample forms for various aspects of a standard dissolution of marriage are available in the Florida Family Law Rules of Procedure. Financial disclosures are now mandatory in Florida.
[Florida Family Law Rules of Procedure Appendix 1; Rules 12.105 and 12.285 and Family Law Forms 12.900+].

Divorce Mediation or Counseling Requirements
If there are minor children involved, or if 1 of the spouses denies that the marriage is irretrievably broken, the court may delay the proceedings for up to 3 months and may order the spouses to seek counseling, order the spouses to attempt reconciliation, or order the spouses to attend mediation sessions.
[Florida Statutes Annotated; Chapters 61.052 and 61.183].

Divorce Property Distribution

Florida is an "equitable distribution" state. The spouse's non-marital property will be retained by each spouse. Non-marital property is all property acquired prior to the marriage, property acquired by gift or inheritance, and any property considered to be non-marital according to a written agreement between the spouses. The court is required to begin with the premise that all marital property should be equally divided. All of the spouse's marital property may be divided on an equitable basis, based on the following factors:

1. The contribution of each spouse to the acquisition of the marital property, including the contribution of each spouse as homemaker
2. The length of the marriage
3. The age and health of the spouses
4. The amount and sources of income of the spouses
5. The estate, liabilities, and needs of each spouse and the opportunity of each for further acquisition of capital assets and income
6. The standard of living established during the marriage
7. The time necessary for a spouse to acquire sufficient education to enable the spouse to find appropriate employment
8. Any other factor necessary to do equity and justice between the spouses

Marital misconduct is not specified as a factor in any division of property. There are also specific rules which govern whether a party is entitled to setoffs or credits upon the sale of the marital home. Regarding credit or setoffs upon the sale of a marital home, the court shall consider the following factors:

1. Whether exclusive use or possession of the home is awarded and the basis for such award
2. Whether alimony or child support is awarded to the spouse in possession of the home and whether such alimony or child support is awarded to cover the mortgage, taxes, or other home-related expenses
3. The value of the use and occupancy of the home to the spouse in possession and to the spouse not in possession
4. Which party will be able to claim any home-related tax deductions, including any capital gains event
5. Any other factors

[Florida Statutes Annotated: Chapters 61.075 and 61.077].

Alimony and Spousal Support
The court may grant rehabilitative or permanent alimony to either spouse in either lump-sum or periodic payments or both. Adultery is a factor in the award. Other factors which are considered are:

1. The time necessary to acquire sufficient education and training to enable the spouse to find appropriate employment and that spouse's future earning capacity
2. The standard of living established during the marriage
3. The duration of the marriage
4. The comparative financial resources of the spouses, including their comparative earning abilities in the labor market
5. The contribution of each spouse to the marriage, including services rendered in homemaking, childcare, education, and career-building of the other spouse
6. The age of the spouses
7. The physical and emotional conditions of the spouses
8. Each spouse's share of marital assets and liabilities
9. Any other factor the court deems just and equitable

Alimony payments made be ordered to be paid through a state depository.
[Florida Statutes Annotated; Chapter 61.08].

Spouse's Name After Divorce

There is no legal provision in Florida for restoration of a spouse's name upon divorce. However, there is a general statutory provision that allows for a person to change his or her name by petition filed with the court.
[Florida Statutes Annotated; Chapter 68.07].

Child Custody After Divorce

Joint or sole custody may be granted. Joint custody is referred to as "shared parental responsibility" and is preferred over sole custody. Both parents are given equal consideration in any award of custody. Custody is granted according to the best interests of the child, based on the following factors:

1. Which parent is more likely to allow the child frequent and continuing contact with the non-residential parent
2. The love, affection, and other emotional ties between the parents and the child
3. The ability and desire of the parents to provide the child with food, clothing, medical or remedial care, and other material needs
4. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity
5. The permanence, as a family unit, of the existing or proposed custodial home
6. The mental, physical, and moral fitness of the parents
7. The home, school, and community record of the child
8. The preference of the child if old enough to understand and express a preference
9. The willingness of each parent to encourage a close and continuing parent-child relationship with the other parent
10. Any evidence that a parent has supplied false information to a court regarding domestic violence
11. Any evidence of spouse or child abuse
12. Any other relevant factors

No preference is to be given because of parent's sex. Grandparents may be awarded visitation. Custody and visitation may not be denied based on the fact that a parent or grandparent may be infected with human immunodeficiency virus.
[Florida Statutes Annotated; Chapter 61.13].

Child Support After Divorce
The court may order either parent to pay child support during and after a dissolution of marriage proceeding in an equitable amount, based on the nature and circumstances of the case. There are specific child support guidelines set out in Florida Statutes Annotated; Chapter 61.30. In addition, there are specific factors for consideration upon which the child support guidelines may be adjusted:

1. Extraordinary medical, psychological, educational, or dental expenses
2. Independent income of the child
3. The custodial parent receiving both child support and spousal support
4. Seasonal variations in a parent's income or expenses
5. The age of the child, taking into consideration the greater needs of older children
6. Any special needs of the family
7. The terms of any shared parental arrangement
8. The total assets of the parents and the child
9. The impact of any IRS Dependency Exemption
10. Any other reason that should be considered in order to make the child support payments equitable

Health insurance for the child and life insurance covering the life of the parent ordered to pay support may be required by the court. Child support payments may be ordered to be paid through a state depository.
[Florida Statutes Annotated; Chapters 61.13 and 61.30].

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