Dealing with a family law matter can be extremely stressful, so it is important to hire the right attorney who will be on your side. Divorce is arguably one of the most common family law issues, and unfortunately, divorcing couples often forget how important it is to discuss child support, alimony, and other issues when they are ending their marriage. Sorting out these important issues can be difficult, and we can help you to make the best decisions for your family.
At Stanford Law Firm, we handle all aspects of family law, including:
- Child Custody/Visitation
- Child Support
- Contempt and Enforcement
- Divorce (Uncontested or Complex Contested Divorce)
- Domestic Violence Injunctions
- Father's Rights
- Parental Responsibility
- Property Division
When it comes to a family law case, timing is everything. Don't wait in pursuing representation, as you need to know what your rights are before you lose them. Contact us today to talk about your family law matter.
In order to file for divorce in Florida you must reside in Florida 6 months prior to filing. Florida Statutes, Section 61 covers DISSOLUTION OF MARRIAGE (Divorce); SUPPORT; TIME-SHARING 61.021 Residence requirements.—To obtain a dissolution of marriage, one of the parties to the marriage must reside 6 months in the state before the filing of the petition.
Florida does not recognize legal separation; Obligations
61.031 Dissolution of marriage to be a vinculo.—No dissolution of marriage is from bed and board, but is from bonds of matrimony. Florida does not recognize a legal separation (dissolution from bed and board). Rather, dissolution in Florida releases the parties from their marital bonds, but one or both parties may not be released from their financial obligations that accrued during the marriage or as a result of a child born of the marriage. A spouse may be ordered to provide support in the form of alimony, and child support temporarily (during the divorce proceeding) while waiting on a trial or during a continuance and/or until the child reaches 18 or graduates from high school. The parties may agree that child support will continue after the age of 18 or graduation from high school. There also may be certain special situations impacting whether child support continues after the age of 18 or finishing high school. Alimony and Child Support can be complicated issues, and the pitfalls are explained more in detail below. It is advisable to retain an attorney to navigate these issues.
Required Grounds For Divorce
The party filing for dissolution (divorce) must serve the complaint and all documents on their spouse. You cannot file for dissolution secretly and not apprise your spouse that you have filed. Even if your spouse leaves the home, county and/or state, or even the country, you must attempt to contact them and serve your spouse with the petition for dissolution so they can answer the petition. Florida is a no fault state. It is not necessary to prove that one party is at fault in the complaint/petition, and either party may file. The only requirement in most marriages in Florida is to prove that the marriage is “irretrievably broken” 61.052 Dissolution of marriage.—
(1) No judgment of dissolution of marriage shall be granted unless one of the following facts appears, which shall be pleaded generally:
(a) The marriage is irretrievably broken.
(b) Mental incapacity of one of the parties. However, no dissolution shall be allowed unless the party alleged to be incapacitated shall have been adjudged incapacitated according to the provisions of s. 744.331 for a preceding period of at least 3 years.
The majority of divorces are granted bases on the grounds in (1)(a) that the marriage is irretrievably broken. The petitioning spouse may merely plead that the marriage is irretrievably broken to satisfy this requirement.
However, Florida Statutes dictate: If, at any time, the court finds that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage. If the court finds that the marriage is not irretrievably broken, it shall deny the petition for dissolution of marriage. The Court will also refuse to enter a divorce if it finds neither of the parties resided in Florida for the 6 months prior to filing.
If there are children born of the marriage, their status is not affected by the divorce. Florida Statutes, Section 61.052 (4) states: A judgment of dissolution of marriage shall result in each spouse having the status of being single and unmarried. No judgment of dissolution of marriage renders the child of the marriage a child born out of wedlock. Children, however, are often negatively impacted by a divorce, and may need counseling to assist in processing any negative feelings they may have as a result of their parents' divorce. Parents are encouraged to co-parent peacefully for the sake of their child(ren), and Florida Courts require that parents with a minor child(ren) attend a Parent Education and Family Stabilization course and obtain a certificate of completion before granting a divorce. Currently, parents may attend a Department of Children and Family approved course online or in person, and the Court provides a list of these approved courses with its order dictating parents' attendance.
Additionally, in a majority of dissolution proceedings, the Courts will sign an order incorporating a parenting plan signed by the parties which outlines in details the obligations of each party with regard to co-parenting communication, sharing information, transportation, and many other issues that ensure each parent is exercising their time-share, visitation and parental rights in good faith. Each parent is expected to assist the other in connecting with the child(ren) and fostering a good relation between the other parent and child(ren). It is presumed in Florida that contact with both parents is in the child(ren)'s best interests. Florida Statutes, Section 61.13 explains that It is the public policy of this state (FL) that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.
Florida statutes do not provide an actual calculation to determine alimony so this can be a complicated area to navigate without an attorney. Florida Statutes do provide a guide for the Courts in making their decision with regard to alimony in Florida Statutes, Section 61.08.
The Court will award alimony if circumstances dictate, but will not award alimony until it finds that the paying party has the ability to pay alimony and the receiving party has the need for alimony. Florida Statutes, Section 61.08 outlines the factors that determine the amount of alimony only after the ability to pay and need for maintenance. Here the Court can take adultery into consideration only in determining the amount of alimony. Typically, the Court will also listen to adultery claims when reviewing ability to pay, and one party can show the other party used marital funds on the paramour in whatever form.
(1) In a proceeding for dissolution of marriage, the court may grant alimony to either party, which alimony may be bridge-the-gap, rehabilitative, durational, or permanent in nature or any combination of these forms of alimony. In any award of alimony, the court may order periodic payments or payments in lump sum or both. The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.
(2) 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.
Florida Statutes do provide guidelines and calculations so parties, lawyers and courts have definite instructions to ensure the child(ren) receive adequate support. Florida Statutes 61.13 (1)(a) In a proceeding under this chapter, the court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent or, in the case of both parents, to a third party who has custody in accordance with the child support guidelines schedule in s. 61.30. Florida Statutes, Section 61.30 provides a long list of guideline amounts for child support that are determined based on the combined net monthly income of both parents. The Statute also explains what amounts to include in gross and net income of each parent. The amount of child support may also may be impacted by the number of overnight stays one parent may have with the child(ren) so that the parent has the child(ren) the majority of the time is not burdened with essentially full support of the child(ren).
Other Factors in Divorce-Jointly owned businesses and Military Service
Some spouses may own businesses together. This situation presents many challenges. It is important to choose an attorney who is willing to address this complicated issue. Other spouses may be in the military. Military divorces present complications because the Courts must follow Florida law and must also know and follow the requirements of Federal or military law. The military will often provide personnel to assist and guide through some of the issues related to divorce, however, the military lawyers do not represent military personnel in Circuit Court.
Splitting Retirement and Pensions can be an emotional undertaking. Fortunately, the Federal law dictates when a former spouse is entitled to a military retirement or pension. The former spouse may be entitled to Military Pension/Retirement depending on when and how long they have been married to the military. For a division of retired pay as property award to be
enforceable by direct payments, the former spouse must have been
married to the member for a period of 10 years or more, during which the member
performed at least 10 years of service creditable towards retirement eligibility. This time
requirement does not apply to the court's authority to divide military retirement pay but
only to the ability of the former spouse to get direct payments from DFAS.
Per 10 U.S. Code Section 1408(a)(4), a state divorce court is authorized to divide a member's disposable retired pay, which is the total pay (aka "gross pay"), minus:
- Amounts owed to the government for previous overpayments -(this is not common),
- Forfeitures adjudged by a court-martial (this is not common),
- Pay waived to receive VA disability (common), and
- SBP premiums for the benefit of the former spouse seeking a share of the retirement (common).
Contact our office to handle your military divorce.