Newlyweds usually think that their love is going to last a lifetime. Unfortunately, that isn’t always true. As statistics show, some unions end in divorce. This is obviously difficult on an emotional level, but it can also cause legal and financial troubles. If you live in Florida, this guide will take you through what you need to know about ending a marriage in the Sunshine State.
You’ll learn how to handle everything from your retirement plan to child support so that your divorce doesn’t cause any more issues than it needs to.
How to File for Divorce in Florida
Eligibility
To file for divorce in Florida, one of the two parties to the divorce must have lived in the state for at least six months before filing with the court. One exception to this is if you are a member of the military who lives in Florida but is currently stationed outside of the state. The divorce filing must be made in the county in Florida where either of the two parties to the divorce resides.
Grounds for Divorce in Florida
Florida is a no-fault divorce state. The only reason that you have to give for filing for divorce is that your marriage is irretrievably broken. In other words, you must show that your relationship is over and you cannot repair it. Additionally, a spouse being mentally incapacitated for three years is also grounds for divorce in Florida.
Process to Divorce
If you meet the residency requirements for a divorce in Florida, you can move forward with filing in the courts. One of the two parties to the divorce will need to file a form called the Petition for the Dissolution of Marriage. The spouse who files the form is the petitioner, and the other spouse is the respondent.
After the form is filed, the petitioner must give a copy to the respondent. This is known as serving the divorce papers. If your spouse agrees to the divorce, he or she can accept the service of the papers. The spouse will then need to fill out and file a different form called an Answer and Waiver of Service, which must be signed and notarized before it is filed.
Matters may become more complicated if your spouse will not accept the service of the divorce papers. In this case, you can get the sheriff from the county in which your spouse resides to serve the papers to your spouse. If you don’t know your spouse’s current location, you can serve them with what is known as a constructive service. This is done by paying to place an ad in a local newspaper (assuming you can find one in the area where your spouse lives) to alert your spouse that you are serving them with divorce.
Within 45 days of filing your petition, Florida requires you to turn over a signed financial affidavit. This involves disclosing information about your finances, including:
- Income
- Assets
- Debts
- Tax returns
- Bank statements
- Credit card statements
- Personal financial statements
Mediation may be ordered after you file for divorce. During this process, a third party will attempt to help you and your spouse come to a divorce agreement without involving the court. If this doesn’t work, you’ll go to trial. Each side will present evidence and call witnesses, and a judge will make the final decision on all contested issues.
Some divorces may be eligible for a simplified dissolution of marriage. This option does not require a financial disclosure and attorneys may not be necessary. To qualify for a simplified dissolution of marriage, you must meet the following criteria:
- Both parties agree to the simplified dissolution of marriage
- You and your spouse have no minor or dependent children, including adopted children under the age of 18
- Neither spouse is pregnant
- At least one partner has resided in Florida for six months
- Both parties agree on how to divide all property and debts
- Neither party is seeking alimony
- Spouses agree the marriage cannot be saved
How to Split Up Assets During a Divorce in Florida
During a divorce proceeding in Florida, the court only divides marital assets and debts. For the purposes of a Florida divorce, the court considers any assets or debts acquired during the marriage by either party as marital assets.
The court does not divide separate assets, defined as property and money owned by only one of the spouses. Non-marital assets include anything that either spouse obtained before the marriage or anything that either spouse received as a gift or inheritance during the marriage. This does not include gifts between spouses. Adding your spouse to the title of an item such as a car makes it marital property.
How to Divide Property in Florida After Divorce
Once the couple decides what is and isn’t marital property, they must actually divide their property. First, the court assesses the value of non-monetary property. The court will work with the couple to determine the value of their property. Experts like appraisers or certified public accountants (CPA) may be consulted to determine property value.
The court divides the spouses’ property after assessing its value. In Florida, property must have an equitable distribution. This doesn’t necessarily mean that the court will split a couple’s property down the middle though. The court may consider the following factors when making its decisions regarding property distribution:
- Each spouse’s contributions to the marriage, including childcare and homemaking
- Economic circumstances of both spouses
- Length of the marriage
- Interruption of career or education of either party
- If one spouse helped the other to advance his or her career or education
- Desirability of obtaining a specific asset, including for business reasons
- How each spouse contributed to obtaining their assets
- Whether it’s necessary for either spouse to stay in the family home for children
- Any intentional wasting of assets during the two years prior to filing for divorce (this includes spending large amounts of money on a person with whom one spouse committed adultery)
How to Manage Child Support and Alimony Under Florida Divorce Laws
In Florida, the court can order the non-custodial parent to pay child support to the ex-spouse. The court may consider the following factors when calculating child support:
- Expenses
- Parent’s ability to pay
- Needs of the child
- Number of children to support
The court may also take into account the behavior of the spouses during the marriage, including incidents of adultery.
Additionally, the court may also order one spouse to pay alimony, also called spousal support. Factors taken into account when calculating alimony include:
- Standard of living during marriage
- Length of marriage
- Age and health of spouses
- Financial resources of both parties
- Earning capacity and education of both parties
- Contribution of each spouse to the marriage, including financial contributions
- Tax treatment of both parties
- Both parties’ parenting responsibilities
- All income sources
- Spouses’ behavior, including adultery
Remember that you’ll need to take both alimony and child support payments into consideration when filing taxes after divorce. You can deduct alimony payments that you make from your gross income, but you can’t deduct child support payments. While alimony payments you receive count as income, child support payments you receive do not.
401(k) and IRA and Divorce in Florida
In Florida, the court considers any money that either spouse puts into a retirement plan, like a 401(k)or an IRA, as marital property. Thus, the court splits up retirement plans the same way it divides other marital assets.
One important thing to note is that the court only considers retirement or pension funds accrued during the marriage as marital property. Any money that either spouse deposited or earned before the marriage or after the divorce is separate property. Separate property is not subject to the court’s division process for marital property.
After the judge makes a ruling, you must submit a Qualified Domestic Relations Order to the plan administrator explaining how you’re dividing your retirement plan.
Divorce and Estate Planning in Florida
Divorce is already a not-so-fun topic, so it’s understandable if you’re not eager to add estate planning to the mix. Planning your estate becomes even more important when you go through a divorce though. If you get a divorce in Florida, the state will revoke any wishes stated in a will written during your marriage to leave property or assets to your spouse. For this reason, you’ll need to revise your will once your divorce is finalized to re-designate your heirs.
You’ll also want to take this time to work with your soon-to-be ex to determine who will take care of your children if something were to happen to both of you. Any decisions that you’d made during your marriage may no longer be applicable, so it’s important to revisit your plan.
The Bottom Line
Florida is a no-fault state when it comes to divorce. This means that you don’t have to give any reason to the court for why you want to end your marriage, other than that you want it to be over. The court divides all marital property in a way that it deems fair. This won’t necessarily result in a 50/50 split of all marital property. Though fault isn’t needed to a get a divorce in Florida, the court will consider misconduct like adultery when dividing property and determining alimony payments.
Financial Planning Tips
- If you’re getting a divorce, you may want to consider finding a financial advisor to guide you through the process.
- A prenuptial agreement or a postnuptial agreement might be a good idea if you are still at the beginning of your marital relationship. These legal contracts can make matters easier down the road if your marriage doesn’t go as planned.
Our attorneys are highly experienced with more than thirty years’ experience defending criminal matters. We will make all possible efforts to prepare and file any necessary motions to dismiss or motions to attempt to exclude evidence in an effort to maximize your opportunity for a positive outcome. We will work very hard to ensure your rights are fully exercised and that you are well represented.
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