It is important to be prepared for the legal and financial aspects of a divorce; as you deal with permanently parting ways with a spouse. During the honeymoon phase of a marriage, most of us believe it will last forever. Statistically, that has just not always the case. The reality of a failed marriage can change this fairy tail into a nightmare.
From splitting of assets to payment of child support and alimony, this guide will help you with an overview of Florida’s divorce laws.
- Reason(s) for divorce
- Eligibility in Florida state
- The divorce process itself
- Splitting of assets and debts
- Child Support and Alimony
- Florida Divorce laws in relation to IRA and 401(k)
- Post-divorce Estate Planning
Divorce laws in Florida do not require petitioners to provide a particular reason for divorce filing. Florida is what is known as a “No Fault” state. If either of the following two statements are true, you have legally adequate grounds for filing for a dissolution of marriage:
- Irreconcilable differences: Simply put, there has been irreparable damage to your relationship with your partner.
- Mental incapacitation: In Florida, a spouse being mentally incapacitated for three years is adequate reason for divorce.
Once the issue of eligibility for divorce is established, the next step is the actual filing of the divorce papers in a Florida court in the county of residence. Two forms are necessary:
- The Dissolution Petition (Petition for Dissolution of Marriage): This is the first form. The Petition for Dissolution of Marriage form can filed by either party. The party who files the dissolution petition is called the Petitioner, while the other party is referred to as the Respondent. After filing the petition, the Petitioner must then serve the Respondent the papers (i.e., provide the Respondent with a copy of the dissolution petition).
- As part of the divorce process, the State of Florida requires the Petitioner to provide a signed copy of his or her financial affidavit within a 45-day period after filing the dissolution petition. This details information related to debts, income, tax returns, assets, personal financial statements, bank & credit statements.
- The Respondent, if they in agreement with the Petitioner in regards the divorce and accepts the service of the papers, will proceed to file a second form known as the Answer and Waiver of Service. The Respondent must ensure that this form has been signed and notarized before filing.
In some cases, complications may ensue if the other party refuses to accept the divorce papers filed by the Petitioner. The person who is dodging the process server in an attempt to avoid having the divorce proceed is called a known-avoider. In this scenario, divorce papers can be served by publishing an advertisement in their local newspaper; in serving of the divorce papers. This is called Constructive Service; the Petitioner places an advertisement in a local newspaper in the area where the other party resides.
Upon completion of the filing stage in the Florida divorce process, both parties will be required to use a third party mediator, to attempt to resolve any differences out of court. If the parties fail to come to a suitable agreement in mediation, the divorcing couple will proceed to trial. At the end of the trial, a judge will give a final judgment after both parties have been allowed to provide necessary evidence and witnesses.
In a Simplified Dissolution of Marriage, you might not be required to disclosure financial records or negotiate in the presence of attorneys. To qualify for a Simplified Dissolution of Marriage the following must be true:
- Both parties agree their differences cannot be reconciled.
- At least one of the parties must have been resident in Florida for six months prior to the divorce.
- Both parties must agree to a Simplified Dissolution of Marriage.
- Neither spouse is requesting alimony.
- Neither spouse has dependent children or minors (whether biological or adopted children under the age of 18).
- Neither spouse are pregnant.
- Both parties have an agreement on how debts and property will be split.
Splitting of Assets and Debts After Divorce in Florida
Divorce laws in Florida recognize certain assets and debts as marital and others as non-marital. This is important to note. Marital assets and debts are those acquired by either spouse during the marriage. During a divorce, assets are referred to as non-marital by the court when such assets were either received as inheritance or gifts by either party during the marriage or obtained by either party before getting married. Gifts between spouses are regarded as marital assets or property.
After separating marital from non-marital assets and debts, the Florida Court then works with the divorcing parties as well as any third party agents (Certified Public Accountants and Property Appraisers, etc.) to confirm the overall value of the marital assets (non-monetary assets first). The subsequent splitting of assets and property after divorce should be done in an equitable manner. This means that such assets and property will not simply be divided into two equal parts. Instead, the following factors are considered by the court:
- The respective contributions of each spouse in obtaining the marital assets
- The respective contributions of each spouse during the marriage (this will include homemaking and childcare)
- How long the marriage lasted
- The current economic situation of both parties
- Whether or not the education or career of either spouse was interrupted by the marriage
- The necessity for either party to stay in the family home for the well-being of children
- Whether or not the education or career of one spouse was advanced by the other
- Actions judged to be willful squandering of assets during the two years before divorce (including vast amounts of money spent on extramarital affairs)
According to Florida divorce laws, in divorce cases where dependent children are involved, the parent who is to be in custody of the children after the divorce will receive money (child support) from the noncustodial parent. The court decides how much one party pays the other in child support based on a standardized equation. There is some discretionary room for the judge furthermore the calculated child support. To establish how much more (or less) the party will pay in Child support might be based on factors such as the financial capability of the noncustodial parent, number of dependent children involved, spouses’ behaviors during the marriage, and the needs of the children.
Alimony is also known as spousal support. It is money paid (according to court ruling) by one spouse to the other for support. The court considers certain factors when deciding on alimony, including how long the marriage lasted, the financial capability of each spouse, health of each spouse, source of income of each spouse, adultery, tax, level of education of each spouse, the standard of living during the marriage, contribution of each spouse during the marriage, parenting responsibilities, and age of each spouse.
Alimony can be permanent, or bridge-the-gap. Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 years. An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony.
Both child support and spousal support are important in post-divorce tax filing. While spousal support (alimony) payments can be deducted from gross income, the same cannot be done for child support. While spousal support received is regarded as income, child support payment received is not.
Retirement plans are an important aspect of divorce proceedings in Florida. When the judge has made his ruling on the divorce, each party is expected to provide to the plan administrator a Qualified Domestic Relations Order about the splitting of retirement plan money (401(k) or IRA).
Basically, 401(k) and IRA of each spouse are regarded as marital assets as long as the funds were deposited during the marriage. Retirement plan funds deposited before marriage or after divorce are regarded as separate assets and are not part of the asset split.
If you have made a will and plans related to your estate in the event of your demise, generally speaking, divorce changes everything. For wills written during marriage, Florida laws revoke parts of your will involving leaving assets to your spouse after a divorce. Therefore, after the divorce, you will need to rewrite your will and re-establish your heirs.
Furthermore, you will have to discuss with your ex-spouse who will take care of your children in the event of your death.
Brandon Legal Group
1209 Lakeside Drive
Brandon FL, 33510