Family Law Overview

The reference to “Family Law” encompasses many different legal actions ranging from Dissolution of Marriage Actions (a/k/a Divorces) to Adoptions. The law concerning family matters (dissolution of marriage, custody, visitation, alimony) in Florida is set forth primarily in Chapter 61 of Florida Statutes.

Please find below a brief and very general overview of Florida law in Dissolution of Marriage actions. Please note that the information contained below is general in nature and should not be exclusively relied upon. There are exceptions to every basic principal set forth below, the application of which depends on the circumstances of your particular case. Family law is a complicated area of the law and you should consult an attorney of your choosing to discuss your rights and obligations before taking any action.

OVERVIEW OF DISSOLUTION OF MARRIAGE ACTIONS IN FLORIDA

“IRRETRIEVABLY BROKEN” AND “JURISDICTION”

In order to obtain a dissolution of marriage in the State of Florida the marriage must be found to be “irretrievably broken.” In Florida no other reason (i.e. adultery, abandonment, etc.) is required in order to request a dissolution of the marriage.

In addition to the marriage being “irretrievably broken”, at least one of the parties must have resided in the State of Florida for at least six (6) months prior to filing the Petition for Dissolution of Marriage. This six month period of residence is referred to as “jurisdiction” and is a prerequisite to maintaining an action for dissolution of marriage in Florida.

Provided these first two (2) criteria are met, the Court thereafter has authority to divide assets and liabilities, determine custody and visitation issues, determine child support obligations, determine whether alimony is appropriate, and determine whether one party should contribute toward or pay for the other party's attorneys fees and/or costs. If the parties do not, however, believe that the marriage is “irretrievably broken or do not meet the six month jurisdictional requirement, they cannot obtain a dissolution of marriage in Florida.

DIVISION OF ASSETS AND LIABILITIES

In dissolution of marriage actions, Courts have the authority to divide both marital assets and marital liabilities. As a general principal, marital assets are those assets that are acquired during the marriage and marital liabilities are those debts incurred during the marriage. Florida applies the principle of “equitable distribution” to the division of marital assets and liabilities. Equitable distribution, which refers to the “fair” distribution of assets and debts, often results in a 50/50 split of assets and debts.

Assets acquired prior to the marriage are considered non-marital assets. Likewise, debts acquired prior to the marriage are considered non-marital debts and are, as a general principal, not subject to equitable distribution. There are, of course, many exceptions to these general principals and a lawyer can advise you if they apply to the particular facts of your case.

CHILD CUSTODY AND SUPPORT

Florida requires most parents to abide by “Shared Parental Responsibility” which requires that parents cooperate with each other and keep each other informed of the legal, educational, medical and other major decisions affecting the minor children of the marriage. For the most part, parents who have not committed egregious acts of violence and who participate in the rearing of the minor children will have shared parental responsibility. Most “custody” battles are waged not over the issue of shared parental responsibility vs. sole parental responsibility, but instead over the issue of primary residence. Florida Courts use the criteria of “Best Interest of the Child” as set forth in Chapter 61 of the Florida Statutes, to make the determination of which parent should be named the Primary Residential Parent. The Secondary Residential Parent receives visitation or “parenting time” with the child as determined to be appropriate under the circumstances of any given case. Florida Courts also recognize and consider a rotating custodial arrangement wherein the minor child resides with each parent on an equal or relatively equal basis, but said arrangement must be shown to be in the best interest of the child in order to be considered.

Child Support in Florida is based on the income of the parties and not the expenses of the parties. Child support is calculated via a statutory formula set forth in Chapter 61, F.S. Basically, the net income of the parties is combined and the base child support amount is already pre-figured on a chart prepared by the legislature and incorporated into the statute. Daycare and health insurance premiums are added to the base child support and the parties divide the total child support obligation according to the percentage of the total income earned by each party. As a general principle, the court does not take into account the expenses of the parties, but instead looks at child support as the first and most important financial obligation.

ALIMONY/SPOUSAL SUPPORT

Alimony or spousal support can be ordered where one party has a need for support and the other party has the ability to pay support. There are many different types of alimony including temporary, bridge the gap, rehabilitative, and permanent alimony. Each type of alimony has different requirements and the need for alimony must be proven to the court as well as the other party's ability to pay. Unlike child support, there is no statutory guideline amount or length of alimony in Florida. As a general principal, permanent alimony is granted in long term marriage cases where one party does not have the ability to earn monies sufficient to support themselves in the standard of living enjoyed during the marriage. It is not sufficient, however, to show only that one party has a need for alimony. The other party's ability to pay support must also be proven. Rehabilitative alimony is a vehicle to assist spouses in becoming self-supporting and is granted for the purpose of allowing the non-working spouse to attend school or to receive vocational training. Rehabilitative alimony requires a very specific plan of rehabilitation with the anticipated cost, length of time and future earnings set forth for the court's consideration. Alimony is a complicated area of the law and must be evaluated on a case-by-case basis.

ATTORNEY'S FEES/COSTS

Courts in Florida have the authority to order one party to contribute and/or pay for the other party's costs and/or attorneys fees in a divorce action. As in alimony cases, whether the award is granted depends upon an assessment of the need of the requesting party and the other party's ability to pay.

PROCEDURAL OUTLINE:

Dissolution of Marriage actions are instituted by the filing of a Petition for Dissolution of Marriage. The Petition must be personally served on the other party and the other party has twenty (20) days to file an Answer. If the Answering party files a Counter-Petition, the filing party has another twenty (20) days to file and Answer to the Counter-Petition. After these documents have been filed, the parties are generally required to attend Mediation where they attempt an amicable settlement. If the mediation fails and the parties do not settle some or all of the issues between them, the matter proceeds to trial. As a practical matter, most contested dissolution of marriage actions take at least six (6) months to progress to the trial stage.