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 from one if you can. CLS is able to provide assistance to people who are seeking a divorce by giving brief advice, limited services, or representation.
WHAT ARE YOUR RIGHTS?
In a 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. It may be best for you to be represented by an attorney due to the variety of issues that can arise.
You may file a “Simplified Dissolution” in Florida if you have no issues for the court to decide other than the divorce. This type of case only applies if you have no children and neither party is asking for alimony. You may file a Simplified Dissolution as long as there is no conflict over debts or assets to be divided. The form allows you to choose that you have already divided your debts and assets or you may include an attached Marital Settlement Agreement form. Both you and the other party must each be willing to go to the clerk of court and sign the petition.
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. Each party must complete a 4–hour parenting course for the court to enter a final Parenting Plan. The parties can take the course in person or online. You must file the certificate of parenting course 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 considers the Best Interest Factors.” These factors are covered under Florida Statute Section 61.13(3) (Read it in its entirety online here). The Court begins with the idea that the parents should equally share time with the child. However, this can change if a parent proves with evidence that equal timesharing is not in the child’s best interest, the court may award each parent a different amount of time with the child.
Best Interest Factors
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? For example, has the other parent followed the schedule or has the other parent withheld the children or bad-mouthed you in the children’s presence?
- 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? For example, does the other parent spend time with the children during their timesharing, or do they just drop off the children to another family member or friend?
- 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?
- Where does each parent live? How much travel time is required for the parenting plan to work? The court will consider where the child attends school. 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 does the child want? What the child wants might be considered if the court thinks the child is intelligent and aware enough to tell the court their wishes.
- 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? Does the parent have reasonable cause to believe they or their child will suffer domestic violence by the other party? This will be considered regardless of whether there is a prior or pending action relating to those issues. If the court accepts evidence of abuse or neglect, it must state in writing that the evidence was considered when evaluating the child’s best interests.
- 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? Were any parenting responsibilities handled 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? Substance abuse includes alcohol 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 the child?
- What are the child’s needs based on their age and development? How willing and able is each parent to meet those needs?
- Are there any other factors that have not been mentioned but could impact your 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 parents Shared Parental Responsibility.
Shared Parental Responsibility means parents must communicate with each other and coparent to reach an agreement about the decisions they make for their child. Shared Parental responsibility doesn’t mean time-sharing will be split equally 50/50.
If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child unless otherwise provided in the parenting plan.
Shared Parental Responsibility with Ultimate Decision-Making Authority means parents communicate with each other and attempt to reach an agreement. If the parents are unable to agree on a decision, the parent with Ultimate Decision-Making Authority will make the final decision regarding the specific area. The specific areas include, but are not limited to, education, healthcare, or extracurricular activities. Courts will not award ultimate decision-making authority for all aspects of the child’s life.
Sole Parental Responsibility means one parent makes all decisions about the child. Parents may agree that one parent will have Sole Parental Responsibility. The court may order Sole Parental Responsibility if requiring the parents to make decisions together will be harmful to the child. Courts often order Sole Parental Responsibility in a case with domestic violence or when the parent reasonably fears violence toward them or the child is imminent.
“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. An equal division does not necessarily mean each party will receive half of each asset. The goal is to award each party an equal share of the marital property. For example, one party may receive a vehicle worth 5 thousand dollars and the other spouse may receive stock worth 5 thousand dollars. This would be an equal division though each party only received one asset.
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 the benefits 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. Employment benefits are subject to Equitable Distribution because they are marital property.
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 became more valuable because marital funds were used to improve the asset, the increased value may be considered in the Equitable Distribution. Paying down on the principle of the non-marital mortgage during the marriage or an increase in value due to the market may also be considered.
A spouse can change 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 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 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 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 determined by the court. The court may grant alimony to either party. The court’s first alimony consideration is whether the person requesting alimony needs financial support and whether the other party has the can pay it. The burden of proving a need and the other party’s ability to pay is specifically placed on the party seeking support.
A court may require a party who is required to pay alimony to purchase or maintain a life insurance policy or secure the alimony award with other assets. If the court makes specific findings that there are special circumstances in the case, the court may order a party to purchase life insurance or a bond. The court may order both parties to pay a portion of the expense or just one party based on the determination that a party can pay the costs.
The court may terminate an alimony award based on the payor’s retirement. A petition to modify or terminate alimony based on retirement may not be filed more than six months before retirement.
The court will also consider the following factors:
- The standard of living established during the marriage.
- The duration of the marriage and the anticipated needs and necessities of life for each party after the entry of the final judgment.
- The age, physical, mental, and emotional condition of each party including whether either party is physically or mentally disabled and the resulting impact on either the recipients ability to provide for his or her own needs, or if the person to pay has the ability to pay alimony and whether such conditions are expected to be temporary or permanent.
- The resources and income of each party, including the income generated from both non-marital and marital assets.
- The earning capacities, educational levels, vocational skills, and employability of the parties including the ability of either party to obtain the necessary skills or education to become self-supporting or to contribute to his or her self-support prior to the termination of the support, maintenance, or alimony award.
- 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 whom the parties have in common.
- Any other factor necessary for equity and justice between the parties, which shall be specifically identified in the written findings of fact. This may include finding of a supportive relationship or reasonable retirement.
The court may consider the adultery of either spouse. The court can consider if the person requesting alimony is in a supportive relationship. A supportive relationship is when the spouse lives with another person and that person helps pay their bills, therefore reducing their need for alimony.
Judges have general guidelines for support awards that are based on the length of the marriage. 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–term marriage is one of less than 10 years. A moderate–term marriage is one between 10 and 20 years. A long–term marriage is one of 20 years or longer.
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. There is no formula to determine the payment amount. The award of alimony may not leave the payor with significantly less net income than the net income of the recipient. 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 or the length of the payments.
- Rehabilitative Alimony is designed to help a person become self–supporting and or redevelop skills they once had. The length of the award cannot exceed 5 years. Rehabilitative alimony can be modified or terminated based on a substantial change, not complying with the rehabilitative plan, or completing the plan early. An example of a plan would be 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. The Court must be presented with a detailed plan to become self- sufficient. For example, course schedule and the fee statement for the needed classes could be submitted. 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.
- Durational Alimony is alimony that the court awards to provide a party with economic assistance for a set period of time. Durational alimony may not be awarded in a marriage lasting less than 3 years. There are caps on the amount of time a person may receive durational alimony. The alimony may not be longer than 50% of the length of a short-term marriage, 60% of the length of a moderate term marriage, and 75% the length of a long-term marriage. Under exceptional circumstances the length of the award can be extended if the court finds with clear and convincing evidence that the recipient’s age and employability limit their ability support themselves; their resources limit their ability for self-support; they are mentally or physically disabled or have been diagnosed with such a condition, which will leave them unable to support themselves; or the recipient is the caregiver to a mentally or physically disabled child common to the parties.The amount of the payment will be whichever is less of 1. the amount of the recipient’s need or 2. an amount not to exceed 35% of the difference between the paying party’s income and the recipient’s income. Spousal support already ordered in the case will not count in the income determination.
You must make a request for alimony in your divorce proceedings. 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 parties’ children. The purpose of child support is to make income available to the children between both parents‘ homes.
The child support guidelines use a mathematical formula set by law, which the court follows to create 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 guidelines consider a variety of factors, such as:
- Each parent’s income,
- The number of children the parties have,
- How many overnights the children spend with each parent per the Parenting Plan,
- How much a parent pays for health insurance for themselves and the children,
- How much a parent is paying for childcare,
- Whether the parent pays child support or alimony in a prior court case, and
- Any other considerations the court deems necessary.
Court orders about children must state who will be responsible for obtaining health insurance for the children and how medical expenses will be shared. The court must also determine how the parents 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 Family Law Forms 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)
- Marital Settlement Agreement for Simplified Dissolution of Marriage – form 12.902 (f)(3)
- 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 can be downloaded HERE. 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)
- Designation of Current Address and E-mail Address – form 12.915
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.
You must designate an email address. If you do not have access to the internet or an email account, you can complete Form 2.601, Request to be Excused from E-mail Service by a Party Not Represented by an Attorney, which is a sworn document to declare you do not have internet or an email account. Court notices, pleadings, and other documents filed in the case will then be served to you by US Mail.
“Service” is the process of sending court documents to the other party – usually delivered by a sheriff. This informs the other party that the case was filed and tells them how to respond to you and the court.
After you have filed the case, the clerk may help you by sending the documents to the local sheriff for service to the other party. If the clerk sends the documents to the sheriff, then the sheriff will take the papers to the other party, so they know about the case. There is usually a small fee for the clerk to arrange service on your behalf. The fee might be waived if you qualify for indigent status.
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 of 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 may receive everything you have requested in your petition. Even if the other party has a default entered against them, they may still appear at hearing.
The court will want to make sure it knows what is in a child’s best interest before it enters an order. So, while the case is still open, the other party can present evidence about what is in the child’s best interest.
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 must respond to a Counterpetition by filing an Answer to Counterpetition. You must file your Answer within 20 days from when you are served. 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)
You should also designate an email for service of court documents during the case, form 12.915 Designation of Current Address and E-mail Address.
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. Parties do not file their documents with the court; they give them to the other party. 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 Certificate of Compliance with Mandatory Disclosure is the only document filed with the court. Complete the form by placing a check next to the item provided to the other party, 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 mediator cannot give either party legal advice. Mediation is a confidential process so if you are unable to reach an agreement at mediation, the Judge will not hear what you may have discussed as possible settlements.
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 law about relocation applies. 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 CLS 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.
For people who are trying to file a case in family court in Florida, visit the Florida Courts webpage for a self-help location in your county.
You may also email them at [email protected] or try out one of their mobile apps. https://help.flcourts.org/Other-Resources/Florida-Courts-HELP-App