Florida Family Law: Divorce Outline

TABLE OF CONTENTS
by Arlene Richman, Esq.

I. Florida Family Law Overview
II. Residency Requirements
III. Division of Property ("Assets")
IV. Marital Debts & Liabilities
V. Non-Marital Assets
VI. Non-Marital Liabilities
VII. Uniform Child Custody & Enforcement Jurisdiction Act (UCCJEA)
VIII. Child Custody, Visitation, & Shared Parental Responsibility
IX. Visitation Schedule
X. Child Support
XI. Alimony
XII. Classes for Parents & Children of Divorcing Parents

I. FLORIDA FAMILY LAW OVERVIEW

Florida Statutes: Chapter 61 of the Florida Statutes, the written laws passed by the Florida legislature, governs the elements required to obtain a divorce between a Husband and a Wife, individually often called the "Party" to a divorce action.

To review the statute Click here.

The Statutes provide guidance on the distribution of your "assets" or your property, and your "liabilities" or your debts.

The Statutes provide guidance to determine whether the Husband or the Wife will pay the other Party support, called "Alimony."

The Statutes provide guidelines to determine how much each parent must contribute to the needs of any child that was born from a union of the Husband and Wife, or adopted during the marriage. This contribution is called child support. Child support is calculated through specific mathematical guidelines based on the income and assets of the parents. The amount is calculated using the Child Support Guideline Worksheet.

The Statutes state that both the Husband and the Wife must prepare a Financial Affidavit. The Financial Affidavit provides information concerning each Parties earnings, expenses, assets, and liabilities. The information on the Financial Affidavit is used by the court to calculate child support, and other support issues, and in determining the distribution of assets and liabilities of the Parties. There are two different financial affidavit forms, one for people earning $50,000 or more per year and one for people earning under $50,000.00 per year.
Florida Case Law: The Florida Statutes are interpreted by using decisions in actual cases that are decided by different judges throughout the State. These cases are argued before a family court judge. If any spouse does not agree with the judge’s decision they have the right to have that decision reviewed by a "higher" court, which is known as the Appeals Court. It is the decision of the Appeals Court that forms the Case Law used to interpret the Florida Statutes.

II. RESIDENCY REQUIREMENTS

Chapter 61.021 of the Florida Statues requires that one Party, the Husband or the Wife, must be domiciled at least 6 months in the state before filing a Petition for Dissolution of Marriage.

To review the Statute Click here. If there are any question as to domicile, an attorney should be consulted.

III. DIVISION OF PROPERTY ("ASSETS")

Chapter 61.075 governs the distribution of Marital and Non-Marital assets and liabilities.

To review the statute Click here.

The Marital Settlement Agreement is the document that is filed with the court which tells the court how you want to divide your assets and liabilities. If there is any question as to the status of an asset as marital or nonmarital, or the terminology, an attorney should be consulted.

Florida Statute section 61.075 states that "Marital Assets and Marital Debts": includes:

All assets and liabilities acquired during the marriage, no matter whether it is only in one Parties name or in joint name.

Assets include, for example:

Money. Funds that were accumulated during the marriage from earnings whether kept in joint or separate accounts, and all money in joint accounts. (This is usually referred to as "Marital Funds.")
Jewelry, furniture, electronic equipment, automobiles, etc. ("Personal Property").
Land or houses ("Real Property") Property placed in both names.
Real Property.
1. Real Property Acquired Prior to a Marriage and Placed in Both Names. If a property was bought prior to the marriage, but is placed in both names, it is presumed that a gift was made from one Party to the other and the property is considered marital and subject to division. If there is a question as to whether a Party is entitled to a portion of the equity of a property, or the increase in value, an attorney should be consulted.
2. Real Property Acquired Prior to a Marriage and Not Placed in Both Names. If a Party purchased a property prior to the marriage, kept it solely in their name, and the property increased in value, the other Party might be entitled to a portion of the increase in value depending on their contribution to the increase. This may include, contributing towards expenses, repairs, or improvements either with money or work effort. There is no exact amount that determines the answer. If there is a question as to whether a Party is entitled to a portion of the equity of a property, or the increase in value, an attorney should be consulted.
Gifts Given To One Party By The Other.
A Business, Business Interest, or a Profession. If one Party started a business, professional association, or corporation during the marriage, the assets of the business are generally considered a marital asset. If there are partners, that Parties portion of the business assets would be considered a marital asset. If a business was started prior to the marriage, then a determination would be required as to what portion of the business should be considered marital. If there is a question as to whether a Party is entitled to a portion of the equity of a business, or the increase in value, an attorney should be consulted.
Valuation Of The Business. The "value" of the business and whether a Party is entitled to a portion of that "value" is a complex question. It requires a valuation by an account or business valuator and a legal determination as to the value of that individual to the business. If there is a question regarding the value of a business, and whether one Party is entitled to a portion of the value of the business as part of their fair share of the assets of the marriage, an attorney, and/or an accountant and business valuator should be consulted.
Pensions, Annuities, Insurance Plans, etc. (Retirement Funds). Florida Statute 61.076 governs the distribution of retirement funds. To review the statute. Click here.
Valuation of Retirement Accounts.
1. Valuation of Retirement Accounts. Since only those retirement funds accumulated during the marriage are subject to division, if a retirement account was started prior to the marriage it would be necessary to value what portion of the account was obtained during the marriage and what portion was obtained prior to the marriage. This includes at least two factors. The first is how much was contributed directly to the account during the marriage. The second would be how much the account grew from funds held prior to the marriage. If there are questions as to the value of a retirement fund a Pension Valuator, or Accountant, who is credited and licensed in their field, be consulted, as well as an attorney.
2. Division of Retirement Funds. In order to avoid the tax consequences of dividing a retirement account, the Florida Legislature has permitted the creation of a Qualified Domestic Relations Order called a QDRO. This Order, used in divorce actions, allows the division of retirement accounts between Husband and Wife without penalty so long as all funds remain in a qualified retirement account. If a retirement fund is to be divided, it is recommended that an Attorney, an Account, or a Pension Valuator, who is credited and licensed in their field, be consulted. IDivorce does not provide a form QDRO and it is recommended that an attorney or specialist in this area be consulted.
Equitable Distribution. Florida Case Law provides that marital assets and liabilities accumulated during the marriage are subject to division between the Parties. The division is called "Equitable Distribution." Equitable Distribution means to give each party their fair share of the marital assets and marital liabilities. In most cases, unless there are unusual circumstances, equitable distribution means that the Husband and Wife are each entitled to one half of the assets and are responsible for one half of the liabilities. If there are questions regarding equitable distribution, an attorney, and/or accountant, should be consulted. If there are question whether an asset is a marital asset, an attorney should be consulted.

IV. MARITAL DEBTS AND LIABILITIES

Chapter 61.075 governs the distribution of Marital and Non-Marital assets and liabilities.

The Marital Settlement Agreement is the document that is filed with the court which tells the court how you want to divide your assets and liabilities. If there is any question as to the status of a debt as marital or nonmarital, or the terminology, an attorney should be consulted.

To review the statute Click here.

Florida Statute section 61.075 states that "Marital Assets and Marital Debts": includes: All assets and liabilities acquired during the marriage, no matter whether it is only in one Parties name or in joint name.

Florida Case Law generally provides that Marital Debts includes, for example:
1. Credit card debt. If there is an issue as to credit card liability, an attorney should be consulted.
2. Mortgages and Liens.
3. Student Loans.
Equitable Distribution. Florida Case Law provides that marital assets and liabilities accumulated during the marriage are subject to division between the Parties. The division is called "Equitable Distribution." Equitable Distribution means to give each party their fair share of the marital assets and marital liabilities. In most cases, unless there are unusual circumstances, equitable distribution means that the Husband and Wife are each entitled to one half of the assets and are responsible for one half of the liabilities. If there are questions regarding equitable distribution, an attorney, and/or accountant, should be consulted. If there are question whether an asset is a marital asset, an attorney should be consulted.

V. NON-MARITAL ASSETS

Chapter 61.075 governs the distribution of Marital and Non-Marital assets and liabilities. To review the statute Click here.

Non-Marital Assets and Liabilities are those assets and liabilities that are not subject to division as "Equitable Distribution" or equal division between the Husband and the Wife.

Chapter 61 of the Florida Statutes states that "Non-Marital Assets " includes:

Assets Acquired Prior to the Marriage by Either Party. Florida Case Law has generally provided that so long as the asset was kept separate and apart from any Marital Asset, and the other party made no contribution to the maintenance of that Asset, it would remain non-marital and not subject to Equitable Distribution. If there is a question as to whether an asset is marital or non-marital, an attorney, should be consulted.
Real and Personal Property Acquired Prior to the Marriage. Florida Case Law has generally provided that so long as the asset was kept separate and apart from any Marital Asset, and the other party made no contribution to the maintenance of that Asset, it would remain non-marital and not subject to Equitable Distribution. If there is a question as to whether an asset is marital or non-marital, an attorney, should be consulted.
Increase in Value of Non-Marital Property. If a Party acquired an asset prior to the marriage, kept it solely in their name, and the asset increased in value, the other Party may be entitled to a portion of the increase in value depending on their contribution to the increase. There is no exact amount of money or work effort contributed by the other Party that determines the answer. If there is a question as to whether one Party should share in the increase in value to a property that was acquired prior to a marriage, an attorney should be consulted.
Pensions, Annuities, Insurance Plans, etc. (Retirement Funds). Florida Statute 61.076 governs the distribution of retirement funds. In general, if a pension fund was started during the marriage, it is subject to Equitable Distribution. To review the statute. Click here. If there is a question as to whether a retirement account is marital or non-marital, an attorney, should be consulted.
Retirement Accounts.
1. Valuation of Retirement Accounts. Since only those retirement funds accumulated during the marriage are subject to equitable division, if a retirement account was started prior to the marriage it would be necessary to value what portion of the account was obtained during the marriage and what portion was obtained prior to the marriage. This includes at least two factors. The first is how much was contributed directly to the account during the marriage. The second would be how much the account grew from funds held prior to the marriage. If there are questions as to the value of a retirement fund because a portion was obtained prior to a marriage, it is recommended that a Pension Valuator, or Accountant, who is credited and licensed in their field, be consulted, as well as an attorney.
2. Division of Retirement Funds. In order to avoid the tax consequences of dividing a retirement account, the legislature has permitted the creation of a Qualified Domestic Relations Order called a QDRO. This Order, used in divorce actions, allows the division of retirement accounts between Husband and Wife without penalty so long as all funds remain in a qualified retirement account. If a retirement fund is to be divided, it is recommended that an Attorney, an Account, or a Pension Valuator, who is credited and licensed in their field, be consulted. IDivorce does not provide a form QDRO and it is recommended that an attorney and specialist in this area be consulted.
Gifts or Inheritances. If a party receives a gift or inheritance from someone other than the spouse, and it is kept separate apart from marital assets, the gift or inheritances is generally considered a non-marital asset. If there is a question whether an asset is marital or non-marital, an attorney should be consulted.

VI. NON MARITAL LIABIITIES

Chapter 61.075 governs the distribution of Marital and Non-Marital assets and liabilities. To review the statute Click here.

Chapter 61 of the Florida Statutes states that "Non-Marital Assets and Liabilities" includes Liabilities acquired prior to the marriage.

If there is a question as to whether a liability is a marital liability, or a nonmarital liability, an attorney should be consulted.

VII. UNIFORM CHILD CUSTODY &
ENFORCEMENT JURISDICTION ACT

The Uniform Child Custody, Jurisdiction and Enforcement Act ("UCCJEA") requires that each parent file an affidavit, the UCCJEA affidavit, when there are any children born or adopted from the marriage. To review the UCCJEA. Click here.

iDivorce provides a form UCCJEA linked to the iDivorce Wizard.

The purpose of the UCCJEA is as follows:

Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being.
Promote cooperation with the courts of other states to the end that a custody decree is rendered in the state that can best decide the case in the interest of the child.
Discourage the use of the interstate system for continuing controversies over child custody.
Deter abductions.
Avoid relitigating the custody decisions of other states in this state.
Facilitate the enforcement of custody decrees of other states.
Promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child.
Make uniform the law with respect to the subject of this part among the states enacting it.

VIII. CHILD CUSTODY, VISITATION &
SHARED PARENTAL RESPONSIBILITY

Florida Statutes section 61.13 relates to issues of Custody, Visitation and Shared Parental Responsibility. To review Section 61.13 Click here.

Both parents are initially presumed to be equally capable of caring for their minor children.

Shared Parental Responsibility. Florida Statutes and Florida Case Law provide that no matter where the child is living, unless there are unusual circumstances, both parents have equal rights and obligations to the child or children. Both parents are entitled to participate in all major decisions, both parents have access to all school and medical records, both parents are entitled to the love and affection of the children.
Custody arrangements. There are several different types of custody arrangements. They include:
1. Primary Residential Custody. The Court can award Primary Residential Custody to either the Father or the Mother. Primary residential custody of one parent does not negate the rights or obligations of the other parent.
  Primary Residential Custody means that the child resides the majority of the time with one parent and has visitation with the other parent, called the non-custodial parent. There are many factors to consider when determining Primary Residential Custody, but the main factor is the best interest of the child. Other factors include, but are not limited to:
  1. The parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent.
  2. The love, affection, and other emotional ties existing between the parents and the child.
  3. The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical 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 moral fitness of the parents.
  7. The mental and physical health of the parents.
  8. The home, school, and community record of the child.
  9. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
  10. The willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
  11. Evidence that any party has knowingly provided false information to the court regarding a domestic violence proceeding pursuant to s. 741.30.
  12. Evidence of domestic violence or child abuse.
  13. Any other fact considered by the court to be relevant.
  If Primary Residential Custody is an issue, it may be necessary to obtain a psychologist, social worker, or other professional familiar with this issue, to assist the Parties in determining the best solution, and also, an attorney.
2. Rotating Custody. In a Rotating Custody schedule the child lives for part of the time with one parent and part of the time with the other parent. The specific arrangement depends on the circumstances of the Parties and the child or children. Florida law provides that the court may order rotating custody if it would be in the best interest of the minor child. Florida Statutes Section 61.121 relates to Rotating Custody. To review Section 61.121. Click here.
3. Sole Parental Custody and Responsibility. When one parent has problems that may affect the well being of a child, and it is not in the best interest of the child to have joint custody or shared parental responsibility one parent may be designated as having sole parental custody and responsibility. When one parent as sole parental custody, this also usually includes no visitation, or supervised visitation.

If custody and the type of custody, is an issue, it is recommended that the Parties obtain a psychologist or other professional familiar with this issue to assist the Parties in determining the best solution, and also, an attorney.

The Marital Settlement Agreement is the document that is filed with the court that tells the court the custody arrangement that you have agreed upon with your spouse.

IX. VISITATION SCHEDULE

The visitation schedule should be determined by the circumstances of each party and the best interest of the child.

iDivorce provides an interactive chart to help determine and outline a weekly and monthly visitation schedule.

The visitation schedule should include a provision for all major holidays, as well as Father’s day, Mother’s day, and the child’s birthday.

If there are problems determining a visitation schedule, or problems with visitation, a psychologist, parenting coordinator, or some other professional in this area should be consulted, as well as an attorney.

X. CHILD SUPPORT

Florida Statute Section 61.30 governs issues regarding child support. To review Section 61.30 Click here.

Child support is usually required to be provided until the youngest child reaches 18, or up to 19 years of age if the child is still in high school with a reasonable expectation of graduation within the required time, or until the child becomes emancipated, marries, dies, or becomes self supporting. If there are special circumstances regarding a child, such as a disability, the court can adjust the child support amount and duration accordingly. If you believe that there are special circumstances that should impact the amount or duration of child support, an attorney should be consulted.

Child Support When the Child Spends Less than 40% of Overnights with One Parent. Child support is calculated based on the net income of each parent and the amount of overnight visitation the child spends with the non-custodial parent. Child support includes a calculation for medical expenses and after care or day care expenses. Child support is calculated using a Statutory Child Support Guideline Worksheet.
Child Support When a Child Spends over 40% of Overnight time with the Non-Custodial Parent. If the non-custodial parent (the parent who does not have Primary Residential Custody), spends 40% or more of the overnight time with the minor child during their visitation period, the child support is adjusted to reflect the additional time spent with the minor child. Child support includes a calculation for medical expenses and after care expenses. Child support is calculated using a Child Support Guideline Worksheet.

IDivorce provides a Child Support Guideline Worksheet. The Child Support Worksheet is calculated using the information provided by the parents using the iDivorce Wizard.

XI. ALIMONY

ALIMONY is a payment by one party, either the Husband or the Wife, to the other, for spousal support. Alimony is governed by Florida Statute section 61.08. To review Section 61.08 Click here.

There are several different types of Alimony. They include, for example:

Type of Alimony.
1. Permanent, Periodic Alimony. This is payment by one spouse to the other at certain intervals, usually on a monthly basis. Permanent Periodic Alimony usually continues until the other party dies or gets re-married.
2. Rehabilitative Alimony. This is payment by one spouse to the other while the other spouse obtains an education, or obtains re-training in order to improve or obtain employment. It is for a limited period of time.
Standards of Awarding Alimony. The Florida Statutes list several different elements to determine when an award of alimony is justified. They include:
1. The lifestyle established during the marriage.
2. The length of the marriage.
3. The age of the parties.
4. The physical and emotional health of each party.
5. The amount of money each party has, and would have after the divorce. Where applicable, the time necessary for the other party to re-train to obtain employment.
6. The contribution of each party to the marriage, this would include, for example, child care, career building and homemaking.
7. All sources of income available to either party.
8. The court can consider any other factor necessary to reach a fair result.

The parties may agree on one or more of the different types of alimony depending on the specific facts of each case and the needs of each spouse.

There is no specific set of facts, which will cause alimony to be paid by either spouse.

If alimony is an issue, an attorney should be consulted. The Marital Settlement Agreement is the document that is filed with the court that tells the court the form and amount of alimony that you have agreed upon with your spouse.

XII. CLASSES FOR PARENTS &
CHILDREN OF DIVORCING PARENTS

If there are minor children, some circuit courts (the court where you filed the Divorce action) requires the parents to take a parenting course. In some circuit courts the minor child or children of the parties are also required to take a class dealing with children of divorce. At the final hearing to dissolve your marriage and obtain an divorce each parent is required to submit a certificate stating that they have taken the course, or, if necessary, that their child has taken a course. The Florida courts have an internet site that lists each county and identifies the circuit court number of that county. To view the site Click here. The circuit courts on this site provide additional links for information about that circuit court, including the address of the court, the phone number for the court or the clerk of the court, the name of the judges, and other information. Call the clerk of the court in your jurisdiction (the court where you file) to determine if you and/or your child are required to take a course. If you, and/or your child are required to take a course, the instructor will provide the certificate you are required to file with the court to demonstrate that you have taken the course.