Home > Offices > Boca Raton, FL > Articles > Taking the Mystery Out of Divorce Cases: An Overview of Florida Dissolution of Marriage

Taking the Mystery Out of Divorce Cases: An Overview of Florida Dissolution of Marriage

by David A. Riggs

In the early days of a marriage, when a couple’s life together is exciting and new, the legal aspects of the marriage are often the furthest things from the spouses’ minds.

But when two people marry, it is not simply a matter of exchanging rings and becoming husband and wife. Both parties take on a particular legal status—that of spouses—and that legal status endows them with various rights and obligations that are important to understand. In the unfortunate event of the dissolution of the marriage, awareness of these rights, obligations, and legal responsibilities can help make the complex divorce process a little less stressful. The following overview of the fundamental issues of divorce cases in Florida may help take some of the mystery out of the intricate and often intimidating process of getting a divorce.

Basics of Florida Dissolution of Marriage

The basic purpose of a divorce case is to remove the legal status of being spouses from both parties. This is called the dissolution of the marriage and is typically the least contentious part of the divorce case. In addition to dissolving the marriage, however, divorce cases often involve a number of additional issues, including spousal support (also known as alimony), distribution of assets and liabilities, child custody and time sharing, and child support.

It is important to understand that in Florida, as in most states, a divorce case is a litigation. In other words, at its essence, a divorce case is a lawsuit.

A Florida divorce case is instituted by one spouse filing a document, called a Petition for Dissolution of Marriage, with a Florida circuit court. Once the Petition for Dissolution of Marriage has been filed with the court, it must be served (that is, formally delivered) to the other spouse in order to make that person legally aware of the case.

Florida has a residency requirement in order for a party to be eligible to file a divorce case. The rule is that at least one of the spouses in the case must have been a bona fide resident of Florida for at least six months immediately prior to the filing of the Petition for Dissolution of Marriage.

Assuming the residency requirement is met, there has to be grounds (a legal reason) for the dissolution of the marriage. Many years ago, in most states, one party had to prove a “fault” ground, such as abandonment or adultery, in order for a court to be able to dissolve a marriage. Today in most states “no-fault divorce” is the rule, and Florida is a true no-fault divorce state. The standard for a court granting a divorce in Florida is that the marriage must be “irretrievably broken.” That is, the court must find that the marriage is in such a condition that nothing can bring the parties back into a working marital relationship.

There is no requirement in Florida that the parties become legally separated for any period of time. In fact, Florida law does not recognize the concept of a legal separation. If the marriage is irretrievably broken, Florida will permit the parties to dissolve their marriage with a minimum 20-day waiting period after the filing of the Petition for Dissolution of Marriage. Typically, however, the Florida courts will not permit a dissolution of marriage to become finalized if the financial issues and child-related issues have not been completely resolved.

In many ways, the actual dissolution, or legal termination, of the marriage is the simplest part of a Florida divorce case. Other than evidence of meeting the six-month residency requirement, not much else is required.

The remainder of the divorce case, however, is not always so simple. Assuming the presence of minor children in a dissolution of marriage case, there are four major components once it has been determined that the marriage is irretrievably broken. These are:

• equitable distribution of marital assets and marital liabilities;
• alimony obligations from one spouse to the other;
• child custody and time sharing between the parents and the minor child or children; and
• child support.

Although fault is not an element in the actual termination or dissolution of a marriage, fault can be a factor in each of the remaining four components of a divorce case.

Equitable Distribution

Equitable distribution is a fairly simple concept. The theory is that a married couple is an economic partnership with two equal partners. Upon the dissolution of this economic partnership, the parties are to distribute the partnership assets (referred to, in a divorce case, as marital assets) and liabilities (in a divorce case, marital liabilities or debts) between the husband and wife in an equitable manner. Generally speaking, this equitable distribution is an equal distribution.

This sounds simple and, in a number of cases, it is. As is frequently the case, however, the devil is in the details. In many cases, particularly those involving substantial assets, family businesses, inherited assets, second marriages, and other complexities, equitable distribution is anything but simple to carry out.

The first thing that must be determined by the court is what is a marital asset and what is a marital debt. In simplest terms, and assuming no prenuptial agreement, a marital asset is any asset that was acquired by one or both of the parties during the marriage. A marital liability is a debt acquired by one or both of the parties during the marriage. The fact that a marital asset or marital liability is in the name of only one spouse is not relevant.

An exception to this general definition of a marital asset, however, is an asset acquired by one spouse during the marriage by gift or inheritance from someone other than the other spouse. As long as the gifted or inherited asset is not commingled with marital assets or put in the joint name of both spouses, it should retain its status as a nonmarital asset. Generally speaking, a gift made from one spouse to the other during the marriage is a marital asset.

Assets that a spouse owned prior to a marriage (commonly referred to as premarital assets) are by definition nonmarital assets and are not supposed to be subject to equitable distribution. Of course, there can be exceptions to this and to most of the other rules.

The next requirement for equitable distribution, after identification of the marital assets and liabilities, is the determination of the value of the marital assets. This frequently requires the services of a professional appraiser, whether the asset is real estate or a business. This can be very complex and much more expensive in situations where the parties cannot agree on a single appraiser. At that point the case becomes one of “competing” experts who, if the case does not settle, present their appraisals to the judge.

There can also be contention about the proper date for valuing a marital asset. Unless the parties otherwise agree, Florida law utilizes the date of the filing of the Petition for Dissolution of Marriage as the date for fixing the existence of the marital assets and liabilities. The date for valuing the marital assets and liabilities, however, does not have a comparable “bright line.” The judge has the right to choose the appropriate date for valuation of marital assets and liabilities based on the goal of obtaining an equitable result.

For example, if one of the marital assets is stock in a corporation worth $100,000 on the date of the filing but by the time of the conclusion of the divorce the stock has greatly appreciated or declined in value, the judge may decide that it is more equitable to value the asset at a date closer to the conclusion of the case to take into account market fluctuations. The same can hold for the valuation of real estate in a rapidly appreciating market such as the one we have seen recently in South Florida.

Alimony

Alimony is financial support of one spouse by the other pursuant to a court order. There are various types of alimony under Florida law, but the most common are permanent alimony and temporary alimony.

Permanent alimony is the classic form of financial support of one former spouse by the other. It is typically paid monthly after the conclusion of the divorce case and continues until the remarriage of the recipient spouse or the death of either spouse.

Temporary alimony is financial support paid by one spouse to the other while the divorce case is pending—that is, while the parties are still legally married. Like permanent alimony, it is typically paid monthly. However, it ends at the conclusion of the divorce case.

These types of alimony are based on a number of factors. In the case of permanent alimony, one factor is the duration of the marriage. Typically the longer the marriage, the more likely it is that permanent alimony will be awarded. There are a number of other factors set forth in the applicable Florida statutes that a court must consider in an award of alimony.

The determination of alimony and the amount of any alimony award is made by the judge after the calculation of equitable distribution. This is because two of the major factors in alimony awards are the paying spouse’s ability to pay the alimony and the recipient spouse’s need for financial support. If both spouses receive substantial assets through equitable distribution, there may be a substantially reduced need for an award of alimony.

Under Florida law, alimony is gender neutral. The wife may become obligated to pay alimony just as easily as the husband.

Custody of Minor Children and Time Sharing

If the parents of one or more minor children are divorcing, one of the parents is typically designated the primary residential parent. The other parent is known as the secondary residential parent.

In certain cases, the parents share equal time with the minor children. This is commonly known as rotating custody. Currently, rotating custody is more the exception than the rule, but it is gaining notice.

Florida’s policy is to be gender neutral in the determination of which parent is to be the primary residential parent. The father and mother are given equal consideration. In making decisions that affect the minor child or children, the judge is charged with doing what is in the best interest of the child or children.

Under Florida law, the primary residential parent is the parent with whom the minor children spend more of their overnights each month. Typically, but not always, the primary residential parent is the parent who is paid child support by the secondary residential parent.

Other than that, in most cases the primary residential parent is given no more rights or responsibilities with respect to the minor children than the secondary residential parent. This is because Florida has adopted a concept called shared parental responsibility.

Under shared parental responsibility, both parents are to be as fully involved with the upbringing of the minor children as would have been the case if the marriage had not ended. Both parents are to have input on such matters as schooling, medical and psychological care, religious upbringing, and all other aspects of child rearing. The goal of shared parental responsibility is to put into effect the declared public policy of the State of Florida that both parents are responsible for the raising of children.

The parents are permitted to work out their own schedule of time sharing of the minor children. Frequently a schedule is drawn up which provides that the children spend alternate weekends with each parent and one or more nights during the week with the secondary residential parent. The time-sharing schedule will also take into account school holidays and vacations. As with all matters affecting children, time-sharing schedules can call for a lot of patience on the part of both parents.

If the parents cannot agree which parent should be the primary residential parent, the judge will decide. Divorce cases in which the determination of custody of the minor children is an issue are usually among the most difficult for the parties involved and among the most expensive to litigate.

Child Support

Under Florida law, as with most states, the amount of child support for the minor children of a dissolved marriage is determined pursuant to child-support guidelines. The amount of the child support depends on the combined incomes of the parents and the number of children in the family.

Child support is typically paid by the secondary residential parent to the primary residential parent, although in unusual cases the primary residential parent can be required to pay child support to the secondary residential parent. Generally speaking, child support is paid until the child attains the age of 18.

There are a couple exceptions to this general rule. If an 18-year-old child is in high school and planning to graduate prior to his or her 19th birthday, the judge can require child support to be continued until the child graduates from high school, but in no event past the child’s 19th birthday. If a child has special physical or mental health needs that developed during the child’s minority, the judge can require child support for as long as necessary, despite the child being over 18 years of age.

Other matters can affect the amount of child support, including private schooling, special needs, day care or after-school care, and the lifestyle established during the marriage. Child support can extend to summer camps, tutoring, and extracurricular activities. Child support will also include a requirement to provide health care for the child if it is reasonably available plus the payment of uninsured medical and dental expenses.

Understanding the Law

Divorce in Florida can be extremely complex, depending on the circumstances of the spouses. Understanding your rights and obligations as a spouse is crucial to the successful dissolution of a marriage. The consequences of acting precipitously in this area—and without qualified advice—could be regrettable.