FAMILY LAW

Florida is a no “fault” divorce state where couples can divorce without establishing any wrongdoing on behalf of the other party. The concept of fault is relevant in determining the amount a party may be awarded in alimony or the division of marital assets in some cases. In order to file for a divorce, either the respondent or the petitioner must have been a Florida resident for six months prior to filing of the petition. Once, jurisdiction is conferred in the circuit court, the court can determine most, if not all, aspects of the divorce ranging from property division, alimony, child support, modifications and enforcement of child support agreements.

• Division of Property – Florida division of marital assets rests on a principle called Equitable Distribution. Under this concept, the law attempts to apportion to each party what is equitable taking into account all circumstances surrounding the marriage. Courts have determined that marital assets, unless a special equity is established, include: property held as tenants in the entireties, accrued retirement plans, i.e. annuities, pensions, insurance plans, military retirement benefits, stock options owned by the parties at the time of the filing of the petition, some employee bonuses, and inter spousal gifts. Assets acquired before the marriage, inheritances and non-interspousal gifts are generally not considered as marital assets.
  
  
• Alimony- Alimony allows one party to receive either temporary payments from the other spouse, rehabilitative payments until the person receiving alimony is able to obtain a degree or education becomes self-sufficient or a lump sum alimony, a one time payment for present and future support. Court has broad discretion to decide whether to award permanent or rehabilitative alimony is. The court can consider the length of the marriage, standard of living, age of both parties, financial resources of the parties, fault, marital misconduct and contribution during the marriage. Raising the children, assisting a spouse obtain a career or a business enterprise or delaying school so that the other spouse obtains a degree are among some of the contributions that the court will consider.
  
  
• Child Support- Each parent has the obligation to provide support for their children. In determining the amount of payment for child support, the court relies on the child support guidelines after determining the net monthly income for both parents. F.S. 61.30. A court can impute income to an unemployed or underemployed parent if the court determines that the parent’s financial situation is voluntary and the parent can obtain gainful employment or higher earning employment. It is important to note, that child support obligation is independent of visitation rights. That is, a party’s failure to pay for child support does not grant the other party the right to withhold visitation rights. Withholding visitation rights could be used against that party on a modification proceeding. Likewise, a parent who is denied visitation rights cannot stop child support payments. The best course of action for a parent who is not receiving child support payments is to seek enforcement of the child support award and establish payment through the court system.

Persons undergoing a divorce often times just want to get things over with. This mode of thinking, although understandable due to the circumstances, is not the best way to proceed. The detrimental effects of entering into a divorce without taking into account all the legal ramifications can be devastating. These negative effects are oftentimes carried over for years after a final judgment has been entered and the divorce granted. The best course of action even if not too appealing in the present is to make sure that all the legal aspects of the divorce have been properly dealt with. Even “simple or uncontested divorces” if not handled properly can have adverse financial effects that will permeate other areas of a client’s life.