Ending a Marriage
In Florida, divorce is known as “Dissolution of Marriage.” You can file a petition for Dissolution of Marriage if you or your spouse have been a resident of Florida for at least six months. You do not have to be represented by an attorney, but it is always best to get the advice of one if you can. CLSMF is able to provide assistance to people who are seeking a divorce by giving brief advice, limited services, or representation.
WHAT ARE MY RIGHTS?
You may file a “Simplified Dissolution” in Florida if you have no issues for the court to decide other than the divorce. You may file this type of case if you have no children, there is not a current pregnancy, there are no debts or assets to be divided, and neither party is asking for alimony.
In a Non-Simplified Dissolution of Marriage, a married person may seek a Parenting Plan, Parental Responsibility, Equitable Distribution, Alimony, Child Support and for their status to be restored as single. Because other issues are involved with this type of case, it may be best for you to be represented by an attorney.
A Parenting Plan is a legal document that explains how the parents will share their child. Florida law no longer uses the term “custody” in divorce cases; instead, parents receive time-sharing. Time-sharing and custody mean the same thing. To receive a final order about the children, each party must complete a 4-hour parenting course. The parties can take the course in person or online. After completing the course, you must file the certificate of completion with the court.
- A Parenting Plan is a detailed legal document that orders the following:
- When a child spends time with each parent.
- How the parents will exchange the child.
- How to make major decisions concerning the child.
- How the parents will communicate with the child when the child is with the other parent.
- How the parents will communicate with each other.
- How the parents will share holidays and breaks.
- How the parents will handle extracurricular activities.
- What will happen if a parent wants to take a vacation with the child out of the state or country.
When entering a child-related order, the court uses specified “Best Interest Factors” to determine what is in the best interest of a child. These factors are covered under Florida Statute Section 61.13(3) (Read it in its entirety online here).
The court evaluates the best interests of the child by following the considerations below (paraphrased from the Florida Statute Section 61.13(3) for ease of understanding):
- Has each parent proven they are willing and able to encourage and allow a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when the other parent requests changes or adjustments?
- How will parental responsibilities be divided after the case and how many parental responsibilities will be delegated to third parties such as babysitters, friends, or family members?
- Has each parent proven they are willing and able to determine, consider, and act upon the needs of the child rather than their own needs or desires?
- How long has the child lived in a safe and comfortable environment and how important will it be for them to continue living in that environment?
- What are the locations of each parent and how much travel time will be required for the parenting plan to work, with special attention paid to the needs of school-age children? This factor does not create a presumption for or against relocation of either parent with a child.
- What is the moral fitness of each parent?
- What is the mental and physical health of each parent?
- What is the home, school, and community record of the child?
- What are the child’s desires, so long as the court believes them to be intelligent and aware enough to tell the court their desire?
- How willing and able has each parent been to stay aware of important factors in the minor child’s life, such as the child’s friends, teachers, medical care providers, daily activities, and favorite things?
- How willing and able has each parent been to provide a consistent routine for the child, such as discipline and daily schedules for homework, meals, and bedtime?
- How likely is each parent to communicate with the other parent and keep them up to date on issues and activities regarding the minor child, and how willing are they to cooperate on all major issues when dealing with the child?
- Is there 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 abuse or neglect, it must state in writing that such evidence was considered when evaluating the best interests of the child.
- Is there evidence that either parent has knowingly provided false information to the court regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect?
- How were parenting tasks and responsibilities divided before and during the divorce, including any parenting responsibilities that may have been undertaken by third parties, such as babysitters, friends, or family members?
- How willing and able has each parent been to participate and be involved in the child’s school and extracurricular activities?
- How likely is each parent to maintain an environment for the child which is free from substance abuse?
- How willing and able is each parent to protect the child from the court case process by not talking about it with them, not sharing documents or electronic media related to it with them, and not making negative comments about the other parent to them?
- What are any specific needs due to the child’s age and development and how willing and able are each parent to meet those needs?
- Are there any other factors that have not been mentioned but could have an impact on a specific parenting plan, including the time-sharing schedule?
Parental Responsibility is the legal term for a parent’s right to make major decisions about their child. Usually, the court awards Shared Parental Responsibility, which means parents must talk to each other and reach an agreement about the decisions they make for their child. Sole Parental Responsibility means one parent makes all decisions about the child. Parents may agree that one parent will have Sole Parental Responsibility or the court may order Sole Parental Responsibility in cases where requiring the parents to make decisions together will be harmful to the child or in a case with domestic violence.
“Equitable Distribution” refers to the way that spouses in Florida divide their assets (things that they own) and debts (things that they owe) in a divorce. Florida law requires a fair division, also called an “Equitable Division.”
In a divorce, property held between the spouses is typically divided equally. Unless a couple has a valid written agreement stating otherwise, marital property in Florida includes all assets and debts either spouse acquires during the marriage. Assets include money, property, and benefits such as retirement accounts, deferred compensation, or profit-sharing. It does not matter if the property or debt was acquired by one or both spouses, titled jointly, or held only in one spouse’s name. For example, if your spouse opens a credit card account and your name is not on it, you are still jointly responsible for the charges on the card, even if your spouse did all the spending. However, if the spending was reckless, a court could find that your spouse wasted assets resulting in different responsibilities for the debt.
While courts strive to divide marital property and debt equally, that is not always fair. There are multiple legal considerations that guide a court’s decision about how to divide assets and debts. It is a good idea to speak to a lawyer about your specific situation.
Employment benefits, such as retirement accounts, are marital property if acquired during the marriage. Regardless of whether they are “vested and non-vested” benefits, rights, or funds. If they were accumulated during the marriage as part of any retirement or insurance plan, they are marital property and subject to Equitable Division. This is true whether the right to receive the employment benefit is absolute or whether vesting depends on some future situation, such as working an additional term of years. Because employment benefits are marital property, they are subject to Equitable Distribution.
Property that was owned by a spouse before the marriage typically remains the sole property of that spouse. Gifts or an inheritance to one spouse during the marriage is non-marital property. The court does not divide or separate “non-marital” property through the divorce. If the court mentions non-marital property in the final judgment, the judgment will state that the property is non-marital and which party owns it.
The increase in value of non-marital property during the marriage might be subject to Equitable Distribution. If a non-marital asset becomes more valuable due to the work of one or both of the spouses, or because one or both spouses spent marital funds or assets on improving it, the increased value, or “enhancement” might be considered marital property. The amount of the enhancement, which is the difference between the present value of the asset and the value of the asset before the marriage, will be divided equally. Keep in mind that there are different rules depending on whether the enhancement in value was due to active labor, marital money investment, pay down on a mortgage, or passive market appreciation.
A spouse can change the non-marital property into marital property by gifting all or part of the property to the other spouse. This can occur by changing the title of the property and including your spouse as a joint owner. A Florida court will presume that any property a couple owns as “tenants by the entireties” is marital property, even if one spouse acquired the property separately before marriage.
A spouse can also turn the non-marital property into marital property by mixing it with marital property and the court must consider this in the distribution. Mixing non-marital property with marital property is called “commingling.” There are many ways this can happen, such as depositing marital funds into a premarital bank account, or paying the mortgage on a non-marital property with marital earnings. A court might treat all of the property as marital in these examples. The spouse claiming that part of the property is separate would have to trace the separate source of the funds using detailed financial records.
Spousal support, or alimony, refers to the payments made to one spouse by the other during a pending a divorce or after a divorce. It is based either on an agreement between the couple or by a determination of the court. The court may grant alimony to either party. The court’s first alimony consideration is whether the person requesting alimony needs the financial support and whether the other party has the ability to pay it.
The award of alimony may not leave the payor with significantly less net income than the net income of the recipient, unless there are written findings of exceptional circumstances.
In some circumstances the court may order a party who is required to pay alimony to purchase or maintain a life insurance policy, bond, or to secure the alimony award with any other assets which may be suitable for that purpose.
The court will also consider the following factors:
- The standard of living established during the marriage.
- The duration of the marriage.
- The age and the physical and emotional condition of each party.
- The financial resources of each party, including the non-marital and marital assets and liabilities distributed to each.
- 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.
- The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, childcare, education, and career building of the other party.
- The responsibilities each party will have with regard to any minor children they have in common.
- 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. The applicability of this rule depends upon the tax law in effect at the time of your divorce; tax laws frequently change.
- All sources of income available to either party, including income available to either party through investments of any asset held by that party.
- Any other factor necessary to do equity and justice between the parties.
The court may consider the adultery of either spouse, but this does not automatically mean that the spouse who committed adultery won’t receive alimony. The court can also consider if the person requesting alimony is in a supportive relationship. A supportive relationship is a relationship where the spouse lives with another person, and that person helps pay their bills and therefore reducing their need for advocacy.
Judges have general guidelines for support awards that are based on the length of the marriage. In Florida, courts are likely to award permanent alimony payments only for long-term marriages — those lasting longer than 17 years. Shorter-term marriages may qualify for other types of alimony depending on the circumstances.
The length of a marriage is the period from the date of marriage until the date of filing of an Action for Dissolution of Marriage. A short marriage is typically a marriage that is less than seven years. A moderate-term marriage is one that is longer than seven years but less than 17 years. A marriage of a long duration is 17 years or more.
Florida law provides for five different types of alimony:
- Temporary Alimony can be awarded to a party while the divorce is pending.
- Bridge-the-Gap Alimony is designed to help a party go from being married to being single. It is designed to help with short-term needs. A bridge-the-gap alimony award may not be longer than two years. An award of bridge-the-gap alimony ends upon the death of either party or upon the remarriage of the party receiving alimony. The court cannot modify the amount of the payment that is awarded.
- Rehabilitative Alimony is designed to help a person become self-supporting and redevelop skills they once had. For example, if a person had been a nurse but no longer had certifications they needed to work, rehabilitative alimony might help them pay to get the certifications. Rehabilitative alimony can also be awarded to help a person get education, training, or work experience they need to become self- supporting. You must present the court with your detailed plan to become self-sufficient. For example, you might present the court with your course schedule and the fee statement for those classes. You should explain to the court, through your testimony, what your final goal is, how long it will take to reach, and what it will cost. Rehabilitative alimony can be changed or ended based on a substantial change in circumstances, completion of the plan, or not following the plan presented to the court.
- Durational Alimony is alimony that the court awards for a set length of time. The court can award durational alimony when a party is not eligible for permanent alimony. The purpose of durational alimony is to provide a party with financial assistance for a set period following a marriage of short or moderate duration. Durational alimony may also be awarded in a marriage of long duration, if there is no ongoing need for support permanently. The amount of an award of durational alimony may be changed or ended based upon a substantial change in circumstances; however, the court cannot change the length of an award of durational alimony except under exceptional circumstances. The length of the award may not exceed the length of the marriage. An award of durational alimony ends upon the death of either party or upon the remarriage of the party receiving alimony.
- Permanent Alimony may be awarded to provide for a party’s needs as established during the marriage. The court can award permanent alimony following a marriage of long duration. In special cases, the court can award permanent alimony in cases with a marriage that was less than 17 years. Permanent alimony ends upon the death of either party or upon the remarriage of the party receiving alimony. An award may be changed or ended based upon a substantial change in circumstances or upon the existence of a supportive relationship.
You must make a request for alimony in your divorce proceeding. You will not be allowed to request it after the divorce case is over.
Child support is money paid by one parent to the other parent to help support the children. Child support guidelines consist of a mathematical formula set by law, which the court follows to determine the child support amount. The court almost always sets the child support amount based on the figure determined by the guidelines, but there are some rare exceptions. Usually, but not always, the parent who has less time with the children owes child support to the other parent. The purpose of child support is to make income available to the children between both parents’ homes.
The guidelines consider the following:
- Each parent’s income.
- How many children are included for support.
- How many overnights each parent received through the Parenting Plan.
- How much a parent pays toward health insurance for themselves and the children.
- How much a parent is paying child childcare.
- Whether the parent pays child support or alimony in a prior court case.
- Any other considerations the court deems necessary.
Court orders about children’s health insurance and uncovered medical expenses must state who will be responsible for obtaining health insurance on the children. The court can order one parent to be responsible for health insurance, or that the parents share the expense. The court must also determine how the parent will share the financial responsibility of the child’s uncovered medical expenses. A parent could be ordered to pay all of the uncovered expenses, a portion of the expenses, or none of the expenses
Courts can order one parent to carry a life insurance policy on their life, naming the child as a beneficiary. The purpose of an order of this kind is to make sure that money is available to the children if the parent paying child support dies. Life insurance must be reasonably available to the parent required to carry the policy for the court to order it.
Courts may order one parent to allow the other parent to claim the children for income tax purposes. If you want a court order explaining who will claim the children for tax purposes, you will need to include a request in your petition. The forms located on the Florida Courts website do not include a selection for tax exemption information, so you will need to add your request to the petition.
The court may order one party to pay the other party’s reasonable attorney’s fees and court costs. The court will evaluate the parties’ financial situations to determine whether one party needs the other to pay the expenses, and whether that party can afford to pay those expenses.
The court could also order a party to pay the other’s attorney fees for wrongful conduct during the litigation, for example, not appearing to a scheduled mediation.
WHAT DO YOU NEED TO DO?
The Florida Supreme Court has approved forms that can be used to file your divorce on your own. The forms can be found at www.flcourts.org under the self-help section of the site and contain detailed instructions to assist with completion and filing.
There are different Petitions for different situations (which may all be found at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms):
- Petition for Simplified Dissolution of Marriage – form 12.901 (a)
- Petition for Dissolution of Marriage with Dependent or Minor Child(ren) – form 12.901 (b)(1)
- Petition for Dissolution of Marriage with Property but No Dependent or Minor Child(ren) – form 12.901 (b)(2)
- Petition for Dissolution of Marriage with No Dependent or Minor Child(ren) or Property – form 12.901 (b)(3)
Cases where there are children involved must include the Uniform Child Custody Jurisdiction and Enforcement Affidavit – form 12.902(d).
“Application for Determination of Civil Indigent Status.” This form is used to avoid paying the filing fees when a person filed for divorce. The form is found on the website but does not have a number. You may also obtain a copy from your local clerk but remember to ask for it directly by name.
Every case will require the following forms, also available on the Self Help section of the Florida courts website:
- Summons – form 12.910(a)
- Family Law Financial Affidavit – form 12.902(b) or 12.902(c)
- Notice of Social Security Number – form 12.902(j)
- Cover Sheet for Family Court Cases – form 12.928
- Notice of Related Cases – 12.900(h)
You must file the documents listed above in the county where the other party lives or where you last lived as married spouses. The clerk will complete the Summons with an official seal. The Summons must be served to the other party.
Service is the process of sending court documents to the other party — delivered by a process server or a sheriff. This legal notification process informs the other party that the case was filed and provides them the opportunity to respond to the court. For divorce, you may be required by law to serve the other party the divorce petition that you file with the court.
After you have filed the Divorce case, the clerk may help you by sending the documents to the local sheriff for service to the other party. If the court sends the court documents to the sheriff, then the sheriff will take the papers to the other party so they know about the case. If the clerk does not forward the documents on your behalf, you will need to send a copy of each document that you filed to the sheriff in the county where the other party lives so the sheriff can complete the service process.
Upon receiving the documents, the other party has 20 days to file a written response with the court and mail you a copy. If the other party does not file a written response, the clerk may enter a Clerk’s Default against them. You may also file a Motion for Default, which is a written request to the court to make a decision about a case. If the other party never participates in the case, the court will likely grant your Motion for Default and you will likely receive everything you have requested in your petition. Even if the other party has a default entered against them, they may still appear before the court.
On the other hand, if the other party does file a written response, they will file an Answer, which might also include a Counterpetition. The other party is not required to file a Counterpetition, only an Answer. A Counterpetition is the other party’s request to the court. You are required to respond to a Counterpetition by filing an Answer. The Answer will list whether you agree, disagree, or if you are unable to answer due to lack of knowledge. You may answer the Counterpetition with form 12.903 (d) titled Answer to Counterpetition, available at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.
If a sheriff or process server serves you with a Petition for Dissolution of Marriage, you may file an Answer by using form 12.903 (b), Answer to Petition for Dissolution of Marriage. You must file the Answer within 20 days to avoid having a default entered against you. If the clerk enters a default against you, you may lose your right to participate in the case and may owe support. You must file your Answer with the same court where other party filed the petition and mail the other party a copy of your Answer.
If you want to make requests to the court, you should file an Answer and Counterpetition. If you do not file a Counterpetition, you may waive your right to seek what you want out of the divorce. For example, if you want alimony, you should file a Counterpetition and request it. You may use one of the following Counterpetition forms:
- Answer to Petition and Counterpetition for Dissolution of Marriage with Dependent or Minor Child(ren), form 12.903 (c)(1)
- Answer to Petition and Counterpetition for Dissolution of Marriage with Property but No Dependent or Minor Child(ren), form 12.903 (c)(2)
- Answer to Petition and Counterpetition for Dissolution of Marriage with No Dependent or Minor Child(ren) or Property, form 12.903 (c)(3)
All forms can be found online at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.
Forty-five days after service on the responding party, each party is required to exchange certain financial documents, such as pay stubs and tax returns. The documents that are required will be listed on the Certificate of Compliance with Mandatory Disclosure, form 12.932. Parents do not file their documents with the court; they give them to the other parent. If a person does not have a required document on the list because it is not something they have ever had, then there will be nothing to give the other party. If a document on the list is not in that person’s possession but is something they can get, such as a bank statement, the person needs to get the document and give it to the other party. The form is the only document filed with the court. Complete the form by placing a check next to the item provided to the other parent, then sign the form under oath before a notary or a clerk. The Certificate of Compliance with Mandatory Disclosure can be found at https://www.flcourts.org/Resources-Services/Court-Improvement/Family-Courts/Family-Law-Self-Help-Information/Family-Law-Forms.
Once each party has filed their initial documents as discussed above, the court may schedule a Case Management Conference, which is a hearing set by a judge to make sure the case moves forward. The Case Management Conference is typically not a time for the court to receive evidence from the parties. The court will likely check to see if the necessary documents are in the file from each party, and may schedule mediation.
In most family law cases, the court will require mediation. Mediation is a process where the parties sit down with a neutral third party to work on resolving their case without the judge. The parties to a case may resolve all issues, some of their issues, or none of their issues at Mediation. Issues not resolved at Mediation will be dealt with by the court at a final hearing or trial.
WHAT TO CONSIDER BEFORE TAKING ACTION?
A divorce will affect your right to inherit from your spouse, may impact your ability to collect Social Security Benefits from them, and will likely end your ability to be covered on their health insurance.
When a court case is pending before the court or a final Parenting Plan is in place, the laws about relocation apply. A parent may not move with the children without following the relocation law. Relocation is when a parent moves further than 50 miles for longer than 60 days. The relocation law sets the rules that a parent must follow when relocating with the other parent’s agreement and rules to follow without the other parent’s agreement. Failure to follow the relocation law can cause a parent to be forced to move back to the area where they used to live, pay the other party’s court costs, and could even cost them their time with the children. For more information, visit the CLSMF informational page about Changing a Parenting Plan.
You must request alimony in your divorce proceeding. You will not be allowed to request it after the divorce case is over.