DISSOLUTION OF MARRIAGE
Divorce in Florida is called a dissolution of marriage.
To qualify for a divorce in Florida, you must prove the following:
That you are married.
That you or your spouse has been a resident of the State of Florida for at least six months prior to the filing of your divorce lawsuit.
That your marriage is irretrievably broken (or that one spouse has been adjudicated mentally incompetent for the required period of time pursuant to section 61, Florida Statutes).
Most of you have heard that Florida is a “no fault state.” What this means is that you are no longer required, nor is it appropriate or even permissible, to plead any fault-based ground to qualify for a divorce in Florida. In a fault-based divorce action, the party seeking the divorce must allege a fault-based ground such as adultery, abandonment, or cruelty. Such grounds are no longer recognized nor permitted in the state of Florida.
Although many people will say that Florida is a no-fault state, they will mistakenly apply fault-based concepts to the matters in their Florida divorce. For instance, I am often asked by my client or potential client if they are able to move out of the marital residence. They fear that the court will find that they have abandoned their spouse or home. Abandonment, a fault-based concept, is not a concern in Florida if one decides to leave the marital residence before or during the divorce. However, there may be several other reasons not to leave the marital residence. Abandonment is just not one of them.
Many spouses believe that they can stop a divorce, and it is not uncommon for such persons to say “I will never give you a divorce” or “I don’t agree to a divorce, so I will stop it.” Neither spouse is empowered to stop a divorce. If one party does not want to remain married, the divorce will happen if the other party testifies or signs an affidavit under oath that the marriage is irretrievably broken and that there is no hope of reconciliation.
The issues in a divorce are often referred to under the PEACE acronym. The P stands for parenting plan, the E - equitable distribution, the A - alimony, the C - child support, and the E - everything else - - most commonly, attorney’s fees; however, that did not fit conveniently into the acronym. The order in which the court will consider the issues in your divorce is also in the order of the PEACE acronym. The court will first establish a parenting plan.
After the parenting plan is established, the court will determine equitable distribution. As a part of equitable distribution, the court will consider whether it is feasible for one of the parents to remain in the home for the benefit of the minor child.
In the court’s consideration of the A – alimony - in the acronym PEACE, the court will look at the responsibilities for each parent related to the minor child as one of several factors in its alimony award. Additionally, the court will factor in the need and ability of pay of the parties after equitable distribution.
After the court considers the issue of alimony, the court will determine child support, which is a function of the combined net incomes of the parties. There are other elements to child support that are also considered, but in the initial step of determining the net incomes of the parties, the court will first apply the transfer of monies from one spouse to the other for alimony as a part of their final incomes.
In the E, everything else, the court will then look at the total financial pictures of the parties after the parenting plan, equitable distribution, alimony, and child support have been decided, to determine whether one party has a need for a contribution by the other party for the payment of their attorney’s fees, and whether the other party now has the ability to pay.
There are several ways to proceed in obtaining a divorce: simplified dissolution of marriage, uncontested dissolution of marriage, contested dissolution of marriage, and a collaborative dissolution of marriage. A simplified dissolution of marriage is one in which the parties have no children and no property, and each agrees to the divorce. In an uncontested dissolution of marriage, the parties must agree to absolutely everything that is a matter in their divorce. They must agree to every prong of the PEACE acronym that applies to their situation. If there is even one unresolved issue, one thing that cannot be agreed to, then this will not be an uncontested dissolution of marriage. If there is even one issue that cannot be agreed upon, you have a contested dissolution of marriage.
For a detailed explanation of the collaborative divorce process, please select the Collaborative link on the pull-down menu on my home page of this website under practice areas.