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If you or your spouse are considering a divorce, you need to determine which type of divorce needs to be filed. This article will address the methods of obtaining a dissolution of marriage in Florida along with any requirements and certain procedures at different stages of the proceedings. Further, there are certain terms and procedures that you should know and think about.
First, you should know that in Florida, the official term for "divorce" is "dissolution". Marriage and dissolution are not the private acts of individuals, but rather the official recognition by the state of the existence or termination of a legal relationship. Dissolution of marriage is a purely statutory cause of action and a marriage cannot be terminated without the entry of a court order.
It follows then that, in Florida, common law marriages are not recognized. They were abolished in 1967.
Second, there are two ways in which to go about getting a dissolution in Florida.
A shorter and easier way is called a simplified dissolution marriage. The other
way, and most commonly used is a regular dissolution of marriage.
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Chapter 61 of the Florida Statutes governs dissolution of marriages in Florida. In 1971, the legislature eliminated the requirement that fault of either party be alleged in order to sustain an action for dissolution. The provision of a "no-fault" divorce was enacted. Along with the elimination of "fault", the defenses commonly asserted such as condonation, collusion, recrimination, and laches were also abolished.
Currently, two alternative, but mutually exclusive, grounds exist which allow for the entry of a judgment of dissolution of marriage: 1) the marriage is irretrievably broken, 2) one of the parties has been adjudged mentally incapacitated for at least three years. For almost all dissolutions in Florida, the ground asserted is that the marriage is irretrievably broken. This ground must be alleged in the petition and requires testimony to the effect nothing can be done to save the marriage.
If the responding party to the action, in the answer, responds or disagrees that the marriage is irretrievably broken, the court, pursuant to Statute, may, especially where children are involved, order the parties to counseling, continue the action for a maximum of three months to enable the parties to reconcile, or take such other actions as may be in the best interests of the parties or the minor children of the marriage.
Therefore, if there are concerns about whether your marriage is "irretrievably broken", before a petition is filed, you may want to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi, or other qualified person.
As to the mental incapacity allegation, Florida Statute § 744.331 provides
the procedure and criteria for adjudicating a person to be incapacitated, as
Florida Statutes § 61.052(1)(b) does not defing mental incapacity.
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While the method of a simplified dissolution of marriage is shorter and easier, this method cannot be used by everyone seeking a dissolution. In order to file this method of dissolution, at least one of the parties must have resided within the state of Florida for six months immediately before the filing of the petition. Only couples: 1) who both agree that their marriage is irretrievably broken; and 2) are able to appear before a circuit court clerk to sign the joint petition for simplified dissolution of marriage, and later, to appear before a judge; and 3) who have no children under the age of 18 or no dependent children together, and the wife is not pregnant, and 4) who have made provisions about how personal belongings, assets, property, and their debts are are going to be divided once they are no longer married to each other can use the simplified method.
When there are no personal belongings, assets, debts, or property such as homes, cars, etc., the process can be even simpler because there is no need for a property settlement agreement.
If a property settlement agreement is to be drafted, the parties are encouraged to independently seek the advice of an attorney, who will be able to determine the "equity" or fairness of the distribution. Where the parties are open and honest about their financial situation, or there is a minimal amount of property to be distributed, the parties should be able to draft the agreement themselves.
In a simplified dissolution of marriage, there is no trial and no appeal. Further, neither spouse can request alimony (support) from the other spouse, regardless of how much income one person has and how much the other person may need support. No alimony is allowed in a simplified dissolution of marriage because the court generally makes a determination as to the need and ability to pay alimony. The judge's determination is based on, among other things, factors included in Florida statute § 61.08.
Nevertheless, the main difference between the simplified dissolution of marriage and the regular dissolution of marriage is that the petition for a simplified dissolution of marriage is a joint petition.
Both parties must complete and file a family law financial affidavit. The law
now provides for a different form depending on the income of the party. One
type of Family law form should be used if the money you get each year (your
annual gross income), and the money you spend each year (annual expenses) are
less than $50,000. However, when the money you get each year (annual gross income)
or the money you spend each year (annual expenses) is $50,000 or more a different
form is used. The family law forms are usually available from the clerks of
the circuit court, or from legal aid offices for a small fee.
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The regular dissolution of marriage method has varied levels. There are many
which model the "simplified" dissolution of marriage, where the parties have
entered into a marital settlement agreement. These agreements usually add the
extra elements of children, alimony and the like. Some regular dissolution of
marriage actions also mirror "simplified" dissolutions in that there are no
children, assets, alimony, or property involved. These actions differ from "simplified"
actions in that the parties do not file a joint petition. Further, where there
is no agreement about property and other matters, a judge will conduct a trial
or hearing, typically called the final hearing. The Florida Family Law Rules
of Procedure allow for certain temporary matters to be heard by General Masters.
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The party initiating the dissolution action is the petitioner. Without a joint filing of the petition, the petitioner must either personally serve the defending party, the respondent, or must give constructive notice of the dissolution action. Constructive notice of the dissolution action is given when the petitioner publishes notice of the action in a local newspaper.
In order to file notice of the action constructively, the petitioner must first conduct a diligent search and inquiry to attempt to locate the respondent. Accordingly, an affidavit of diligent search and inquiry must be filed with the petition for dissolution. Family law form 12.913(b) provides a complete checklist for the affidavits of due diligence.
Once the notice of action is published the statutes require that it runs in the publication for four consectutive weeks. If no response is filed within this time period, a motion for default may be filed by the petitioner.
Where the respondent is personally served or served through a person who is over sixteen residing at the respondent's residence, the respondent will have twenty days in which to respond to the petition.
A summons, a form which indicates an action against the respondent, must be patterned after particular Family Law forms and must contain certain warning language pursuant to Florida law. This language can be found in the Florida Family Law Rules of Procedure.
The responding party to the Petition is free to assert viable defenses to the
Petition in an Answer and/or submit a counter-petition for dissolution of marriage.
Usually, a counter-petition is filed when the petition failed to raise other
issues in the marriage, such as other assets, or liabilities, payment of support.
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The most common tools of discovery used in contested dissolution actions are interrogatories and depositions. Interrogatories are written questions submitted by a party for the opposing party to answer under oath, as the answer must be notarized. Florida rules provide for the initial interrogatories which shall be sent and additional interrogatories which may be sent. If a party whose income or expenses are $50,000 or more, that party shall automatically submit the answers to the interrogatories. On the other hand, if a party's mandatory discovery requirements are for income and expenses less than $50,000, the party may serve the interrogatories. When the initial interrogatories do not capture all the information sought, additional interrogatories may be sent. There is a limit to the number of questions that may be asked. If too many are asked, a motion for protective order may be granted protecting the party from having to answer all the questions. This is if permission to ask more questions was not obtained from the court first. The answers to the interrogatories are made under oath. It becomes a document which ties the answering party to the answer provided should there be any inconsistency during trial.
Depositions are similar in that the deponent (the party being asked the questions) must answer under oath. Depositions can last as long as there are questions relevant to the dissolution action to ask. Depositions allow a party's counsel to follow up on the answers, instead of being stuck with the answer provided in an interrogatory. Further, depositions are helpful because the party is able to judge the demeanor of the deponent so as to determine what their demeanor may be when testifying during trial. Again, depositions lock the deponent into their responses.
The major consideration for conducting a deposition versus sending interrogatories is the cost. There is a cost for the short-hand reporter to be present and a potentially steep cost for the transcript of the testimony. The cost of deposing an expert witness may also be steep.
Other discovery tools include requests for production of documents and things
and requests for admissions.
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To have "custody" of a child in Florida is to be the "primary residential parent".
This is the parent with whom the children will primarily reside, or live with.
If there is no agreement as to which parent shall be the primary residential
parent, the issue is thereby contested. Each party will need to conduct some
discovery in order to ascertain the other party's weaknesses on this issue for
presentation at trial, or a General Master if temporarily requested. The court,
if having to decide the primary residential parent, will make the decision using
the "best interest of the child" standard and will consider and evaluate the
factors set forth in the law. Some of these factors include, but are not limited
to:
a) which parent is more likely to allow the child frequent and continuing contact
with the other parent;
b) the love, affection, and emotional ties existing between the parties and
the child;
c) the capacity and disposition of the parents to provide the child with food,
clothing, and medical care;
d) the moral fitness of the parents; and
e) any other factors considered to be relevant to the facts of the case.
Therefore, in a contested action it would be important to plan your presentation
or testimony of the facts around the above factors.
Note also that with the abolition of the "tender years doctrine", the law now requires the court to give equal consideration to both parents in determining primary residence regardless of the gender or age of the children.
The parent who is awarded primary residence of the child will be known as the custodial parent. The other parent will be known as the non-custodial parent.
Public policy maintains that it is in the best interests of the child for the parents to share parental responsibility. That is, the parents, together, will continue to make the major decisions affecting the welfare of the child Major decisions regarding the child include, but are not limited to, the education, religion, and medical needs. The parents muxt confer as to the major decisions so as to mutually arrive at a decision. Even though shared parental responsibility is awarded, whether it is followed by the parties, especially by the custodial parent, greatly depends on the parents' ability to amicably communicate.
Where the shared parental responsibility may not be in the best interests of
the child, the law requires the party seeking sole parental resonsibility to
show detrimental effect to the child. This is a very high standard that is usually
not satisfied given the public policy.
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Once the primary residence of the child has been determined, the court will next decide the issue of child support. Florida law dictates that both parents owe a duty to support the child of the marriage. Child support is in the best interests of the child and will be based on the custodial parent's need for support and the non-custodial parent's ability to pay support. Child support cannot be waived by the custodial parent. Florida law gives a child support guideline. The child support chart gives monthly net incomes in $50 increments and the minimum support needed for one through six children. The guidelines establish the basic support obligation for parents whose combined net income is between $7,800 and $120,000 annually. The monthly net incomes of the parents must be determined usually from the financial affidavits and or recent pay stubs. From the net income, the minimum support can be determined. Each parent's share of the minimum support will be based in that parent's percentage of the net monthly income. This is the minimum child support amount because the figure does not take into account the payment of health insurance for the children, which must be ordered where reasonably available. The figure also does not include any day care or after school costs, special medical care costs, or any adjustments to the amount for either parent. Deviations by the court from the guidelines are allowed and governed by Florida law.
While the party's can agree to provide for the payment of child support directly
to the custodial parent, Florida law also allows the court to award the payment
either through the clerk of the court or by an income deduction order.
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The major area for many regular dissolution of marriage actions focus on the equitable distribution of marital assets and liabilities. Quite simply, marital assets and liabilities are those acquired during the marriage and used during that time by the parites. Non-marital assets are the opposite of marital assets. These assets were either acquired before the marital relationship, during the marriage and not comingled with other marital assets, such as through inheritance or as a gift. Anything earned or received after the filing of a petition for dissolution of marriage is also a non-marital asset. The assets and liabilities of the parties can be determined from either the petition for dissolution or from the financial affidavits of the parties.
The distribution of assets and liabilities are governed by Florida law. Most states in the United States are equitable distribution states, while few states, such as California, are community property states where the assets are automatically divided 50-50.
Many people are misinformed about the term "equitable distribution". Equitable distribution does not necessarily mean "equal" distribution. Courts in Florida generally start with an equal distribution of assets and then make an unequal distribution based on the parties' circumstances and justifications.
Factors parties should seek to prove before the court in order to justify an unequal division include: 1) contributions to the marriage by each spouse, including care and education of the children and services as a homemaker; 2) economic circumstances of both spouses; 3) duration of the marriage; and 4) any interruptions of personal careers or educational opportunities, by either spouse. Other factors are listed in Florida law.
Even though the fault of either party is removed as a basis for obtaining a divorce, fault is a relevant issue for equitable distribution. Fault is also relevant for alimony and child custody.
One of the major marital assets in need of distribution by the court is the marital home. Distribution of this asset greatly depends on the circumstances of the parties. When the children are involved, given other circumstances, the custodial party may receive the home. In some cases, the custodial parent may receive the home just until the youngest child reaches the age of 18. Then the home can be sold for the parties to divide the proceeds. To avoid that situation, the custodial parent could "buy out" the non-custodial parent's share by relinquishing other assets in distribution.
The process of equitable distribution requires close attention to values of
assets and time of acquistion. Liabilities on the other hand are basically divided
between the parties where there is evidence that both parties equally created
the liability. Liabiliteis for one party can be set off against that party's
share of assets received.
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After the equitable distribution of assets and liabilites, the court may grant alimony to either spouse. The forms of alimony are rehabilitative alimony, which is temporary support to allow for continued education and retraining, or permanent alimony. Alimony can also be awarded in a lump sum, in periodic payments or both.
Primarily, the first consideration for alimony is the length of the marriage.
The longer the marriage, the greater the possibility of an award for alimony.
There are certainly other considerations, including, but not limited to, the
standard of living established during the marriage, the age and physical and
emotional condition of each party, and all sources or available income to either
party. Florida law should be consulted for more information regarding alimony.
Adultery by either spouse can also be considered by the court.
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Each method of dissolution has a final hearing. The court, as previously mentioned,
must observe the testimony of at least one of the party's in order to grant
a divorce. The court listens to the testimony of the parties and any witnesses.
If there are children of the marriage or a distribution of property is alleged
in the petition, the petitioner must still provide proof of the respondent's
income or last known income to justify any award of child support. As to any
jointly held property which is a marital asset, the petitioner must provide
evidence of the jointly held property, i.e., proof of purchase during the marriage
with marital funds. Case law from earlier court decisions should be used to
support any decision you wish the court to make. Final hearings can be held
before a jury only if requested at the initiating of the process.
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In sum, the arena of dissolution of marriage is an ever changing and interesting area of law. While most simplified dissolutions can be accomplished by the parties themselves, it is advisable to seek the advice of counsel for a regular dissolution of marriage.
Further, the Florida Family Law Rules of Procedures and Florida Family Law
Forms provide valuable assistance to the unrepresented party.
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****The foregoing is not intended as an exhaustive review of dissolution of marriage law in Florida. This information is not to be regarded as legal opinion applicable to all circumstances. Each factual scenario is different and requires unique and individual advice. The information provided herein should not be relied upon and any person with inquiry or concern should consult an attorney.
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