Marriages in Florida can end through an annulment or by divorce. Legal separation is not recognized or permitted in the state. Florida is a no-fault state, and a spouse only needs to claim that a marriage is “irretrievably broken” or that one of the parties is mentally incapacitated. There are requirements that must be met to claim mental incapacity. You can view them here.
There are also residency requirements When it comes to filing for divorce in Florida. At a minimum, one spouse or the other must have lived in the state for at least six months prior to initiating a divorce.
After a dissolution of marriage has been initiated, there is a 20-day waiting period that a couple must go through before a case may be heard and a Judge of the Circuit Court signs a Final Judgment of Dissolution of Marriage. This is a best-case scenario in an uncontested divorce. Many divorces often require more time to sort through issues such as child support and custody, alimony (e.g., which type will be the most appropriate, like bridge the gap or other), and a division of assets among many other things.
There are several laws on the books that cover specific parts of the Florida divorce process. The laws that govern marriage in the state are found in Chapter 61 of the Florida Civil Practice and Procedures.
Here are some of the most common legal questions and issues that come up during a divorce in Florida:
The distribution of marital assets and debts in Florida is covered by Chapter 61 of the Florida Statutes. While some states are known as community property states, Florida is governed by equitable distribution. This means that all marital property is divided fairly among two divorcing spouses. It does not mean that the division will be a 50/50 split, but rather what is considered appropriate based on a number of circumstances.
Only marital property (generally all assets acquired during the marriage) is considered for equitable division.
Assets acquired before a marriage or after a couple separates, or property that was given to one spouse as a gift or through inheritance, as well as some personal injury settlements, are deemed non-marital property.
When a divorce in Florida takes place, assets that are legally deemed non-marital property do not need to be considered among the assets that need to be divided equitably between spouses.
But there are exceptions.
Inheritance given to only one spouse that acquired during a marriage is considered non-marital property but if the assets of the inheritance are commingled (i.e., in a bank account, or if both people live in an inherited residence), then it may be possible to claim that the inherited assets have become marital property.
In cases where the home was bought before two people married, if both people live in the home during the marriage and both contribute to mortgage payments, then the case can be made that the house is no longer separate property, but a marital one.
Deciding what is marital vs. non-marital property will have a big impact on how assets are divided as well as on child support and alimony determinations.
Courts prefer that a couple tries to decide how marital assets will be divided which can be laid out in a Marital Settlement Agreement. This covers a division of assets, debts, custody and support issues and what all the terms of a dissolution of marriage will be. Asset division often leads to disagreements, and in Florida, attendance at a mediation is often required to try and achieve a reasonable agreement.
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Florida is an equitable distribution state, which means debts are distributed in a fair manner which may or may not mean a 50/50 split. In some cases, a spouse with more income will be required to take on more debt. If one spouse was a reckless spender, or accumulated most of the debt, then they might be responsible for a majority of paying it off.
Premarital debt that was acquired before marriage is considered to be the responsibility of the spouse who incurred it, unless the debt is commingled during the marriage. For example, if either spouse had a credit card before marriage, but both spouses used the credit card during the marriage, then both are responsible for the debt.
Non-marital debt means that a debt is listed in only one spouse’s name, such as with a credit card or with a business loan. If only one spouse benefitted from the debt, then they are responsible for it in a divorce.
Most debt in a marriage is joint debt, meaning that it was incurred during the marriage and both spouses are responsible for it. This can be credit cards, auto loans, home loans or other debt incurred to buy personal goods.
Florida is an equitable distribution state and that means assets will be divided in a fair and equitable manner, but not necessarily with a 50/50 split. Judges will start with the premise of making an equal distribution but will then adjust the division based on several possible factors that may result in either spouse receiving more than the other.
Some of these factors will include:
One challenge when it comes to dividing assets in Florida is when one spouse or the other claims that an asset is a separate property instead of marital property. This can lead to complicated disagreements.
Separate property is defined as an asset that was acquired before a couple was married or acquired after the date of separation.
There can also be questions and challenges when one spouse receives an inheritance, which is considered separate property, but then proceeds to commingle it with community property assets. For example, if a spouse receives a lump sum of cash as a gift and deposits it into a joint bank account, this could be considered commingling.
In Florida, any gifts that were given to one spouse either before a marriage or after the date of separation are considered separate non-marital property and not subject to a division of assets.
Gifts given by one spouse to another during the marriage are considered marital property, whether it’s a car, jewelry or even a separate bank account that one spouse opened for the other – even if you’re designated as the sole owner.
Gifts given to one spouse by someone else are considered non-marital property. The exception to this is if the gift is commingled with marital assets. For example, if you receive an inheritance and put it into a joint bank account, then it is a commingled asset.
Inheritance may or may not be considered a marital asset in Florida. If it was left to both spouses, then it must be part of an equitable distribution. If it was left to one spouse only and that spouse kept it separate, then it is a non-marital asset and will not be included in the equitable distribution.
However, if a separate inheritance is commingled with marital assets, then it will also become a marital asset. For example, if you inherit a home but both you and your spouse move into the home, it could be considered community property.
At all times, it is best to keep inherited assets separate if there is a possibility of a dissolution of marriage that looms in the future. One other way to protect an inheritance is to have your spouse sign a postnuptial agreement whereby he or she agrees that the inheritance is yours, no matter how it is used in the marriage.
Just like any other asset in a Florida divorce, pensions, IRAs, 401Ks and retirement plans are considered marital property. However, only the amount of the retirement asset that was earned during the marriage is subject to division.
It may be possible to negotiate keeping a larger part of a retirement fund in exchange for one spouse receiving a larger interest in other community assets, such as a home.
Legally splitting pensions and other retirement funds are a multi-step process. First, a divorce decree must order that these assets be divided. A qualified domestic relations order, more commonly referred to as a QDRO, must then be created.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator who must also approve it. This establishes that a spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.
All property and all debt accumulated during the marriage in Florida belongs to both spouses. However, any assets acquired before marriage or after a couple separates, or property that was given to one spouse as a gift or through inheritance, as well as some personal injury settlements, are deemed separate property.
When a divorce in Florida takes place, assets that are legally deemed separate property do not need to be considered among the assets that need to be divided equitably between spouses.
But there are exceptions when it comes to separate property. Inheritance given to only one spouse that was acquired during a marriage is considered separate property but if the assets of the inheritance are commingled (i.e. in a bank account, or if both people live in an inherited residence), then it may be possible to claim that the inherited assets have become marital property.
In cases where the home was bought before two people married, if both people live in the home during the marriage and both contribute to mortgage payments, then the case can be made that the house is no longer separate property, but a marital one.
During a Florida divorce, the court may grant either permanent or rehabilitative (temporary and for a fixed period) alimony to either spouse. Payments may be made monthly, in a lump sum, or a combination of both. While Florida is a no-fault state, when adultery can be proven, it may be a factor in deciding how much alimony is awarded and for how long.
The court will consider a variety of factors in determining alimony which can include:
• The length of the marriage.
• The earning capacity of each spouse
• The standard of living while married
• Age and health of both spouses
• Financial information about each spouse – financial resources (debts and assets)
• Child custody arrangements and whether or not the primary care spouse can hold a job while taking care of the children
• Did one spouse help the other with education, career training or other ways to assist them in advancing their career.
• Does one spouse need time to seek training or education to help them find appropriate employment
• All sources of income for each spouse
Courts also have the discretion to consider any other factor necessary to bring about a fair and just resolution of the alimony issue.
In some cases, the courts may also require that the spouse paying alimony to purchase a life insurance policy or a bond to secure the alimony award in case he or she passes away or becomes incapacitated prior to the end of the obligated support period.
There are specific child support guidelines laid out in Florida Statutes, but a judge may order either parent to pay child support based on the nature and circumstances of a case. Child support is typically calculated using a Child Support Worksheet which determines the amount of support based on a number of factors including each parent’s income, taxes, retirement contributions, and others.
There are specific factors that will be considered that will possibly adjust child support amounts. They include:
Parents who fall behind on child support payments or completely disregard their obligation based on the divorce decree can face legal repercussions if they do so. The state may step in to assist in collecting payments and could resort to income withholding, intercepting income tax refunds, property liens or seizures, revoking professional licenses or driver’s licenses, and in serious cases, filing contempt of court charges which could result in jail time.
Florida courts prefer that parents come up with an appropriate plan for child custody. However, when they are not able to do so, the court will step in and make the decisions for them.
Florida bases child custody on the best interests of children in a dissolution of marriage and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act. Assuming there are no negatives, courts will seek to ensure that both the mother and the father play an active role in raising children.
Fathers will also be given the same consideration as mothers in determining the primary residence of the child without being influenced by the age or the sex of the child.
Some of the factors a court will consider may include the age and health of the child, emotional ties to each parent, personal preferences of the child, childcare and after school care arrangements, religious, social and school activities the child may be involved in, and medical care, as well as other factors. Courts definitely want to know if there are any negative factors in a child’s life as well, such as if a parent has a substance abuse problem or if domestic abuse has taken place.
When deciding custody, courts may grant one parent ultimate decision-making responsibility for major decisions regarding welfare such as education, medical and dental care, religious affiliations and other major life-defining issues. In other instances, both parents may share those responsibilities, depending on what is determined to be the best interests of the child.
In Florida, grandparents can also seek visitation rights with a minor child if it is also in the child’s best interests. However, a court cannot order that a child be kept in Florida solely for the purpose of permitting visitation by grandparents.
Because Florida is a no-fault state and one spouse only needs to state that a marriage is irretrievably broken to start a divorce, substance abuse does not need to be cited as a reason for ending a marriage. However, when substance abuse is present in a marriage, it can have an impact on the final outcome in a couple of ways.
Because the courts put a child’s best interests above all else when deciding custody, if substance abuse can be proven, then it may have a big impact on custody and visitation issues.
Another way substance abuse may impact a dissolution of marriage is if it can be shown that one spouse spent considerable community asset resources to feed their habit. This will influence the courts regarding a division of assets and possibly on spousal support as well.
Substance abuse can be proven by the testimony of family members, through testing, or by having
representatives from social services agencies or other parties who have an interest in the outcome of the divorce providing insights.
Bifurcation means that both parties in a dissolution of marriage can legally be declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the dissolution of marriage from being finalized.
States throughout the country treat bifurcation differently. Some states permit it while other states do not. Florida will grant bifurcation in some instances and will only postpone decisions on property issues.
Laws regarding bifurcation tend to be complicated, so it is best to check with an attorney who will be able to provide legal advice on the legal ramifications and requirements of bifurcation in Florida.
If you are granted a bifurcation, and you took the last name of your spouse, you can legally restore your name to your maiden name. Another thing to be aware of is that if a spouse maintains health insurance for the other, then he or she must continue to provide coverage, when possible.
There are mandatory disclosures you must make about your finances when you get a divorce in Florida. Each spouse must disclose to the other the amount and type of assets they have so there can be an equitable division of those assets as well as for child support and alimony as part of the final divorce decree. This includes all bank account information, titles and deeds, retirement account statements, tax returns, pay stubs or income information and debt information. Each party must file a Florida Family Law Financial Affidavit.
Each spouse must submit this information under the penalty of perjury. This means that each spouse is swearing under oath that the information is complete and true.
If a spouse lies on a financial affidavit, then they may be liable for both criminal and civil penalties. The amount of those penalties will depend on the extent and severity of the falsified information. Often times you can end up losing assets to your spouse or you may be required to pay them a fine.
If a person refuses to exchange this information with their spouse, the court may order the spouse to do so, and also make them pay any associated attorney’s fees. If you submit an affidavit but later determine that you inadvertently left out an asset, you can file an amended disclosure.
When a person files for divorce in Florida, the respondent must file an answer within 20 days as an Answer to the Petition. If a respondent does not reply within 20 days, the petitioner can file a Motion for Default.
This lets the court know the respondent has not filed an answer within the 20-day deadline window.
After a default is granted, the terms of the petition can’t be charged. This is why it is critical to respond in a timely manner. Petitioners will request a final hearing after the default motion is granted and this means the judge will grant the divorce requests that are in the original petition.
The exception to this rule is when children are involved. In these instances, defaults must be set aside because courts have ruled that child custody should be determined by what is best for the child and not because of a parent’s default.
Judges do not like to grant divorces based on defaults, so if a respondent can meet a standard for excusable neglect or made a demonstrated attempt to obtain relief from default by working with an attorney and submitting proper documentation, then a default may also be set aside.
When domestic violence is present in a marriage in Florida, it can come about as a result of any kind of physical abuse, emotional abuse, stalking, or any other kind of harassment including those made through phone calls, mail, or social media inflicted on one spouse by the other.
Above and beyond how it impacts a marriage, when a person is a victim of domestic violence, their first priority should be to protect themselves and any family members who are at risk, no matter how remote the possibility might be. If you are in immediate danger, call the police.
In all cases, where the threat is real, you must take your children and leave the residence where the abuser is living. You should immediately seek to have a temporary restraining order put in place which will prevent the abuser from taking any violent actions against you, including stalking or making threats.
Domestic violence will most certainly have an impact on child custody and visitation rights in Florida. A judge will not order shared custody where the threat of violence may be present. This can be documented by presenting evidence of a prior conviction on a charge of domestic violence or evidence that domestic violence exists, even without a conviction.
Domestic violence may also impact spousal and child support, if it can be shown that a spouse’s physical or emotional health, income, earning power or employability where adversely affected by domestic abuse.
If you are covered under a spouse’s healthcare plan in Florida, after a dissolution of marriage you are no longer considered a dependent and your healthcare coverage will end. You will need to get coverage from another source.
You may be able to negotiate a spouse paying for health insurance as part of spousal support or you can also apply for COBRA benefits which is a law that protects people from losing health coverage during major life transitions. It allows you to continue with your spouse’s current coverage for up to three years as long as you pay the premiums.
If you’re 65 or older, you may be eligible for Medicare. If you are low income, then you might be able to get coverage through Medicaid.
If children are involved, then any child support will need to include health insurance coverage for children, either by one or both of the parents’ contributions.
Infidelity and adultery, more commonly known as “cheating” takes place when one married person has voluntary sexual intercourse with someone who is other than their spouse.
Florida is a “no-fault” state, meaning that the person filing for divorce does not need to prove any specific reason for the divorce. They only need to cite that the marriage is “irretrievable
broken” with no hope of getting back together.
However, if a spouse has committed adultery, then the other spouse may use that as leverage in making child custody decisions because it could be argued that adultery could have an adverse impact on any children in the marriage.
Adultery can have an impact on the division of assets and debts as well, if it can be shown that one spouse spent marital assets on their partner.
Certain state and federal laws come into play if a member of the military is involved in a divorce in Florida. The grounds for a military dissolution of marriage are the same as for a civilian divorce. to meet residency requirements, the service member or their spouse must live in or be stationed in Florida.
Once forms have been filed to begin the divorce, copies must be served on the spouse to give him or her a chance to respond. When one spouse is in the military, they have certain protections afforded to them by the Servicemembers Civil Relief Act that allow them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition due to military service commitments.
The Servicemembers Civil Relief Act eases many legal and financial burdens of military personnel and their families who face the added challenges of active duty. It also prevents active-duty military members from being held in default for failing to respond to a divorce action.
Federal law dictates that child and spousal support awards may not exceed 60% of a service members’ pay and allowances if they are single. That amount drops to 50% if the servicemember remarries and has a new family they must support. Child support is determined using normal Florida child support guidelines and worksheets to determine an appropriate amount that must be paid.
Normal Florida property division laws are used in a military divorce, but the federal government also has put in place the Uniformed Services Former Spouses’ Protection Act that dictates how military retirement benefits are calculated in a divorce. For a spouse to receive any of the service members pay, they must have been married for at least 10 years while the service member was on active duty.
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Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
