Getting Divorced in Florida: Top 4 Tips

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Getting Divorced in Florida: Top 4 Tips

Getting divorced in Florida can be difficult, but if your divorce is uncontested is can be much easier. There is still a lot to consider, but I help with that. First, I’d like to present my top 4 tips when you are getting divorced in Florida.

 

1. Deal with Emotions Civilly

The first thing couples considering divorce should do is try to discuss the issues like adults.  It is very difficult to separate the many emotional issues that come into play from the business of dissolving a marriage.  That’s right, “business”.  The emotional aspects are, and should remain, a completely separate issue.

This does not, at all, discount the emotional toll this process can take.  The emotions are very real, and can be very painful, but they have little or nothing to do with the “dissolution” process.  In my experience they are the very thing that are most likely to discourage a successful and easy resolution.   Florida is a “no fault” state which has essentially taken that aspect out of the process of getting divorced in Florida.

No Fault Divorce

A no fault divorce refers to a type of divorce in which the spouse that is filing for divorce does not have to prove any fault on the part of the other spouse. All a spouse has to do is give any reason that the state honors for the divorce.  In Florida that reason is termed “irreconcilable differences”.   Once that is stated then all that is left is to determine who gets what, who pays what and how the children’s issues will be dealt with.

Win the Battle

If these issues can be dealt with without being clouded by anger and vitriol both parties stand a much better chance of moving through the process without adding to their emotional distress.   To be frank, arguing over many issues only serves to pay more to the attorneys handling the case than the value of the issue itself.  People understandably hate to lose and especially to the person they are divorcing but the old saying does apply and that is you can “win the battle but lose the war”.

You have to ask yourself, is it really wise to pay two attorneys $300.00 an hour to fight over who gets the high school yearbook?  When you are getting divorced in Florida, resolve your issues so that you can achieve an uncontested divorce and save a considerable amount of time, money and emotional toll.

2. Prioritize and Agree on Division of Assets and Debt

When parties getting divorced in Florida they will be faced with the daunting task of listing all of the things they own and all of the debts they owe.

How Hard Is It?

For couples that have been married a long time this can be one of the most difficult and complex areas of dissolution of marriage.  Assets may include cars, houses, retirement benefits (pensions and 401(k) plans), business interests, cash, stocks, bonds, bank accounts, personal property and other things of value. Debts (also called “liabilities”) include mortgages, car loans, credit card accounts and other amounts of money you and your spouse owe to third parties.

Many clients ask about debts or assets that they had before the marriage.

Nonmarital and Marital Assests and Debts

There are two types of assets and debts in Florida – nonmarital and marital. Generally, any asset or debt acquired during the marriage is considered marital and subject to distribution. Likewise, any asset or debt acquired prior to the marriage is generally considered nonmarital and not subject to distribution.  This basically means that if you had it before the marriage you keep it whether it is a debt or asset.  This rule does not always apply, however, so a discussion with your attorney is important.

Equitable Distribution

If parties don’t find a way to agree on how to divide assets and liabilities, the courts in Florida will attempt to determine an “equitable distribution” of marital assets and debts. The court must begin with the presumption that all marital assets and debts are to be divided equally (50 percent each) between the parties, the court may distribute the marital estate fairly or equitably (not necessarily equally) between the parties, regardless of how title is held.

Factors to be considered by the court include the contribution of each spouse to the marriage; the duration of the marriage; and the economic circumstances of each spouse.

3. Consider Fair Alimony/Spousal Support

Once the court has determined equitable distribution of debts or assets, the court may consider an alimony or spousal support award.

Who Gets Alimony?

The court may grant alimony to either spouse. For the court to award alimony, the requesting spouse must demonstrate a need for alimony and the ability of the other party to pay. Once the requesting spouse has established a need and an ability to pay, the court must determine all relevant factors to determine the property type and amount of alimony to award.

What Kind of Support?

When getting divorced in Florida, the courts can award several different types of spousal support depending on the circumstances of the marriage. Sometimes one spouse needs financial assistance in the transition from being married to being single. This is called “Bridge-the-gap” alimony. Bridge-the-gap alimony is designed to assist a spouse with legitimate, identifiable short-term needs. There are limits as to the length and conditions of a bridge-the-gap alimony award.

The courts can also consider awarding what is called “Rehabilitative alimony”.

What is Rehabilitative Alimony?

Rehabilitative alimony may be awarded to assist a spouse in achieving self-sufficiency 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. The court must articulate a specific rehabilitative plan to award alimony so both parties clearly understand the expectations placed on the alimony recipient.

Durational Alimony

“Durational alimony” may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a spouse 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. There are limitations as to the length and modifiability of a durational alimony award.

The courts are moving away from awards of “permanent alimony.”

Permanent Alimony

Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a spouse who lacks the financial ability to meet the needs and necessities of life following a dissolution of marriage. Typically permanent alimony is only considered by the courts when there has been a “long term” marriage.  A long term marriage is typically one that lasts more than 17 years.

Florida Statutes

Florida Statutes 61.08(2) tells us what considerations the courts takes into account when determining alimony/spousal support award.

In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) 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 party to find appropriate employment.

(f) 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.

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) 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, nondeductible payment.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.

(3) To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.

4. Parenting Plan Considerations – Prioritize the Childrens’ Needs

You can see what a Florida Supreme Court approved parenting plan sample looks like by clicking on the link below.

http://www.flcourts.org/core/fileparse.php/533/urlt/995a.pdf

The Biggest Issue When Getting Divorced in Florida With Children

One of the biggest issues parents with children will face will be what is in the children’s best interest when the parents are getting divorced in Florida.  All too often one or both parents will approach these issues as though the children are “my” children instead of “our” children.

getting divorced in Florida - a son and father sit together in a hammock tied to trees

How the Courts See Things

This is not the way the Florida courts will look at it when parents are getting divorced in Florida.  If parents can’t agree on issues related to the children, the court will determine any or all of these matters.  Judges try to do the best they can in sorting things out but parents should try to avoid leaving these things in their hands if it can be avoided.  The courts will always use the “best interests of the child” standard when making their determination concerning parenting issues.

What a Judge Will Try To Do

The judges in Florida will try to ensure that each minor child has frequent and continuing contact with both parents after the parents have divorced and to encourage parents to share the rights and responsibilities, and joys, of child-rearing. The court gives both parties the same consideration in determining parental responsibility and time-sharing, regardless of the child’s age or gender.

Shared Parenting

In most cases, parental responsibility for a minor child will be shared by both parents so that each retains full parental rights and responsibilities with respect to their child. Shared parenting requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly. When getting divorced in Florida, you and your spouse may agree, or the court may order, that one parent have the ultimate responsibility over specific aspects of the child’s welfare, such as education, religion or medical and dental needs.

Sole Parenting

In very rare cases, the court can order sole parental responsibility to one parent when getting divorced in Florida. To do so, the court must determine that shared parental responsibility would be detrimental to the child.

Below are the things the Florida statute says the court should consider when determining the best interests of a child when getting divorced in Florida.

Florida Statutes

61.13(3) For purposes of establishing or modifying parental responsibility and creating, developing, approving, or modifying a parenting plan, including a time-sharing schedule, which governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child, the best interest of the child shall be the primary consideration. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:

(a) 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.

(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

(c) 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.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

(j) 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.

(k) 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.

(l) 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.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.

(n) 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.

(o) 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.

(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.

(r) 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.

(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.