Frequently Asked Questions
1. What are the requirements for filing for divorce in Florida?
To file for divorce in Florida, at least one spouse must have been a Florida resident for the six months leading up to the petition. The spouse filing must also state that the marriage is “irretrievably broken.” If neither spouse is mentally incapacitated, these are the basic requirements for filing. To discuss the finer points of filing for a divorce, please contact Florida Family Law, and set up a consultation.
2. Do you have to file for divorce in the state where you got married?
No, your place of marriage does not determine where you can file for divorce. For example, if you were married in Ohio but have been a Florida resident for the past six months, you or your spouse can file for divorce in Florida.
3. Do I have to separate with my spouse prior to filing a divorce?
Florida is a no-fault state, meaning you can file for divorce without proving any wrongdoing. To file, one spouse must simply testify that the marriage is “irretrievably broken”, and have been a resident of the State of Florida for 6 months prior to filing the action. There’s no requirement to be separated for a specific period before filing for divorce.
4. Is mediation mandatory for divorce in Florida?
In most jurisdictions in Florida, contested divorce cases are usually required to attend meditation. However, this doesn’t mean you have to resolve your divorce through mediation. Couples have several options: they can settle the divorce on their own, use voluntary mediation, or participate in court-ordered mediation after the divorce is filed.
5. What assets are divided in a divorce?
Any asset obtained during the marriage, regardless of whose name it is in, is presumed to be marital property (unless the couple has agreed otherwise, such as through a pre-or postnuptial agreement). This includes bank accounts, retirement funds, real estate, and even the income of each working spouse. Funds saved during the marriage, even if earned by one spouse and deposited into an account solely in that spouse’s name, may contain a marital portion that will be considered in a divorce.
6. What debts are divided in a divorce?
Like marital assets, marital debts refer to debts incurred during the marriage for marital purposes, regardless of whose name is on the account. However, as with marital assets, parties can choose to exclude certain debts from being considered marital through a pre-or postnuptial agreement. In the absence of such an agreement, marital debt may include mortgages, home equity loans, credit card balances, student loans, car loans, medical bills, and more.
7. What is “equitable distribution”?
Equitable distribution refers to the legal process used to divide property in a divorce. The court aims to divide property in a way it considers fair to both parties, typically starting with a 50/50 split. However, the court can adjust the distribution based on factors such as but not limited to:
- Each party’s contribution to the marriage; and
- The economic circumstances of each party.
8. How are assets and debts divided in a divorce?
In Florida, there is a presumption that marital assets and debts should be divided equitably, which often results in a 50/50 split, though this is not always the case. A 50/50 division does not necessarily mean every asset is divided in half. For example, it doesn’t automatically require the sale of the marital home and splitting the equity between the parties (although that could be one possible outcome). The goal is for each party to receive a fair share of the marital assets and debts, which could involve one party keeping the marital home while the other receives a marital bank account with a similar value to the home’s equity. On the other hand, if one party is assigned more than half of the marital debt, they may receive more than half of the marital assets to balance the debt distribution. There are various ways to equitably divide a marital estate. Florida Family Law can assist in negotiations regarding asset and debt division.
9. How is the marital home divided?
You may be wondering who keeps the jointly owned home in the case of a Florida Divorce. If there are minor children, and it is financially viable for one party to manage the mortgage and upkeep of the home, the court may grant that party exclusive use and possession of the home while the children are minors to minimize disruption. The court may consider “what is in the best interest of the family / children” as a major factor when determining this matter. The other party may have to wait to receive their share of the home’s equity until the property is sold, which is likely to happen when the children graduate high school. Nevertheless, there must be strong reasons to justify delaying the non-occupying party from accessing their portion of the home’s equity.
10. Is Litigation Mandatory When Divorcing In Florida?
Not in the slightest. Many divorce cases are resolved through mediation or other settlement negotiations. A spouse can also come to Florida Family Law after reaching a full agreement with their spouse on all divorce-related issues, to help with uncontested divorce proceedings.
Florida Family Law is here to help you negotiate all aspects of your divorce, keep your legal costs low, and reduce friction between all parties. However, if settlement discussions break down, you always have the option to ask a judge to decide the issues, in which Florida Family Law will look to assist in a strategic and aggressive manner.
11. Can I move out of the house?
In Florida, a married person can move out of the marital home without abandoning their rights to the property. However, moving out doesn’t necessarily relieve them of any financial obligations, especially if there’s a joint mortgage or other shared expenses. Even if one spouse moves out, the court can still order them to contribute to the mortgage or upkeep of the marital home. Florida Family Law helps clients navigate divorce-related financial matters, including settlement negotiations and court proceedings.
12. Can I withdraw money from a joint bank account?
Without a court order, either spouse has the right to withdraw funds from a joint bank account. However, this decision is more complex. If a withdrawal is made, the court may consider factors such as the amount taken, who took it, and how it was used during a divorce proceeding. It’s best to consult an attorney before making any large withdrawals.
13. How long does it take to get a divorce?
The length of a divorce depends on the circumstances. If both spouses agree to the divorce and the terms of the settlement, the process could take just a few months. However, if there are disagreements on divorce or settlement issues, the litigation process can take much longer.
14. What do I do with the kids before a court order is in place?
In Florida, married parents, whether living together or separated, both have equal rights to their children unless a court order specifies otherwise. Coordinating time with the children before a court order is in place can be challenging unless both parents can work together to create a temporary arrangement. Denying the other parent access to the children without justification may influence the court’s time-sharing decision during the divorce. This is something to keep in mind as both parents navigate separation and divorce. At Florida Family Law, we assist both mothers and fathers in creating parenting plans and time-sharing schedules.
15. At what age can a child decide which parent to live with?
In Florida, a child cannot independently decide which parent to live with or create their own time-sharing arrangement. While the court may allow the child to provide testimony about time-sharing and related issues depending on their age and maturity, the ultimate decision is made based on the child’s best interests, which may differ from the child’s preference.
16. What is time-sharing?
Time-sharing, previously known as visitation and custody, refers to the amount of time each parent spends with their child, as outlined in the parenting plan included in the divorce judgment.
17. Do I have to pay child support before the divorce is filed?
Child support is a responsibility for both parents after they separate, and this obligation can exist even before the divorce is finalized. Child support can be retroactively applied for up to 24 months in Florida, and the court will typically give credit to the paying spouse for any amounts already paid. The amount of child support each parent is responsible for is influenced by both parents’ incomes and the time-sharing arrangement. If you’re unsure of your child support obligations, consulting with an attorney is a good idea to clarify your situation.
18. My ex-spouse is filing for bankruptcy. Will they stop paying child support?
Filing for bankruptcy does not absolve your ex-spouse from their child support obligations. They are still legally required to pay child support, on time and in full.
19. Can my spouse and I share the same attorney?
No, in Florida, an attorney can only represent one spouse in a divorce. However, in an uncontested divorce, it’s common for one spouse to hire an attorney to draft the necessary documents, such as the settlement agreement, petition, and final judgment. While the attorney can aid the spouse in whom they were retained by, they cannot provide legal advice to the non-represented spouse, and it must be very clear that the attorney is only representing one party.
20. If my spouse and I agree on the divorce, do we still need an attorney?
While hiring an attorney isn’t mandatory, it’s generally advisable, even in an uncontested divorce. An attorney can help you draft a marital settlement agreement to avoid future complications. Handling this yourself might lead to ambiguities or overlooked issues, which could cause costly disputes after the divorce.