In Florida, either the Husband or Wife can file a divorce action. A party is eligible to file for divorce in the State of Florida so long as one of the parties has been a resident of the State of Florida for at least 6 months immediately preceding the filing of the divorce action. Florida is a no-fault state, which means the party seeking the divorce does not need to establish a cause of action for seeking the divorce, only needs to state that the marriage is irretrievably broken. Within a divorce case, the issues of equitable distribution of assets and liabilities, spousal support/alimony, timesharing and attorneys' fees, suit monies and costs will be addressed, as applicable.
Alimony & Spousal Support
Alimony is a monetary award paid from one spouse to the other spouse during the divorce action and/or after the entry of a Final Judgment of Dissolution of Marriage. Alimony, as provided for in Florida Statute Section 61.08, is awarded when the party seeking alimony establishes that he/she has an actual need for financial support and the other spouse has the ability to pay alimony. Currently, there are five types of alimony: temporary, permanent periodic, rehabilitative, bridge-the-gap, lump sum and durational. Alimony may be awarded in a lump sum and/or in periodic payments. For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and a long-term marriage is a marriage having a duration of 17 years or greater.
Distribution Of Property And Assets
Within a divorce action, the Court is to distribute the parties' marital assets and liabilities. Florida Statute Section 61.075 governs equitable distribution. The statute provides that the Court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution. There are several factors enumerated in the statute which the Court shall consider in making an unequal distribution. A parties' non-marital assets and liabilities are excluded from equitable distribution.
Child Custody And Support
In October 2008, the Florida legislature made significant changes in the way it viewed custody and visitation. The term visitation, primary residential parent, secondary residential parent and rotating custody were no longer used and abolished. Florida now uses the term timesharing and each parents' timesharing is detailed in a comprehensive "parenting plan," which regularly details when each parent exercises timesharing with their child. The parenting plan also details each parent's timesharing on holidays, summers and school breaks. In determining and creating a timesharing schedule and parenting plan, the Court shall evaluate the factors delineated in Florida Statute Section 61.13, with the best interest of the child being the primary consideration. The parenting plan should also address the children's healthcare, extracurricular activities, the methods in which the parents shall communicate with the children and each other and how the parents are to share various other day-to-day child related responsibilities.
Pre And Post-Nuptial Agreements
A prenuptial agreement is a legal contract prepared, negotiated and executed by all parties prior to their marriage. A prenuptial agreement must be in writing and executed only after the parties have exchanged full and frank financial disclosure. The purpose of a prenuptial agreement is to define each parties' rights and obligations in the event of a divorce. Each party to a Florida prenuptial agreement should ideally have the advice of an experienced family law attorney. A prenuptial agreement may not establish custody, timesharing and parental responsibility. A postnuptial agreement is similar to a prenuptial agreement except is completed after the parties are married.
Paternity And Father's Rights
A paternity action is filed by either of the parents of a child. In addition to making a judicial determination as to the legal and biological father of the child, the Court will also address the issues of parental responsibility, timesharing, child support, and attorneys' fees and costs.
Domestic Violence And Restraining Orders
Florida Statute Section 741.28 defines domestic violence as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. The individual seeking the injunction is the "Petitioner" and the person alleged to be the aggressor or abuser is the "Respondent." The Petition may be granted a temporary or permanent injunction against the Respondent should the Petitioner establish that he or she is the victim of domestic violence as defined in Florida Statute Section 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.