Frequently Asked Questions
What is the difference between an annulment and a divorce proceeding?
An annulment proceeding is instituted for the purpose of determining by a judicial ruling that a valid marriage never took place due to some defect that existed at the time the parties were married. By contrast, a divorce proceeding is instituted in order to terminate a valid marriage for reasons that occurred after the marriage was entered into.
What is meant by fault and no-fault divorce?
Traditionally, a divorce was granted upon proof of "fault" by a spouse who committed marital misconduct. The grounds for showing fault included cruelty (inflicting emotional or physical pain), adultery, desertion for a specified length of time, confinement in prison for a set number of years, or the physical inability to engage in sexual intercourse, if it was not disclosed before marriage.
No-fault divorces of some form have now been adopted in every state. Instead of having to show fault, couples need only show "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage" in order to be granted a divorce or dissolution of marriage. Florida’s enactment of the Marriage Dissolution Act of 1971 did away with the fault requirement and instead permits a divorce on the basis that the marriage is irretrievably broken or that one spouse is mentally incapacitated. The issue of fault or marital misconduct may still come into play, however, in determining alimony and the distribution of property.
I just moved to Florida and wish to file for a divorce. Does Florida divorce law have a residency requirement?
Yes. Florida does have a residency requirement to obtain a divorce. One of the parties to the marriage must reside six months in the state prior to the filing of the petition for the dissolution of marriage.
What is legal separation?
Some states permit a limited divorce or legal separation in which the spouses live separately but their actual marriage is not affected. Legal separation is not explicitly recognized in the Florida. However, Florida law does provide for separate maintenance proceedings in which the parties may determine alimony and child support obligations that are to be paid while the spouses are residing apart without terminating their marriage.
How is child custody determined?
Prior to the 1982 enactment of Florida’s Shared Parental Responsibility Act, divorce courts typically awarded child custody to one parent, who was given both physical possession of the child and the right to make all decisions regarding the child’s care. Under current law, courts generally order that parental responsibility be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. In that case, the court may order sole parental responsibility over specific aspects of a child's welfare, such as primary residence, education, or medical and dental care, as determined to be in the child’s best interests.
In deciding which parent should have primary residence, courts may consider:
- which parent is more likely to allow the child frequent and continuing contact with the nonresidential parent;
- the love, affection and other emotional ties between the parents and the child;
- each parent's ability to provide the child with food, clothing, medical care and other material needs;
- the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
- the permanence of the existing or proposed custodial home; • the moral fitness of the parents;
- the mental and physical health of the parents;
- the home, school and community record of the child;
- the preference of the child, if the child is intelligent, understanding and experienced enough to express a preference; and
- evidence of domestic violence or child abuse.
Does the fact that Florida is a "no-fault" divorce state mean that marital misconduct is never at issue in divorce proceedings?
No. Although a party may file and obtain a divorce in Florida merely by establishing that the marriage is irretrievably broken or that one of the parties is mentally unfit, the issue of fault and any marital misconduct by the parties may be considered in determining issues of alimony and property distribution.
How is alimony determined in Florida?
In awarding alimony, Florida courts consider all relevant economic factors, as well as any factor necessary to achieve equity and justice between the parties. Among the factors that courts evaluate are:
(1) the standard of living established during the marriage.
(2) the marriage's duration;
(3) the parties' respective ages and physical and emotional conditions;
(4) the parties' respective financial resources, including the marital and nonmarital assets and liabilities distributed to each party;
(5) all sources of income available to either party; and
(6) each party's contribution to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of a party.
With respect to the duration of the parties' marriage, a long-term marriage gives rise to a presumption in favor of permanent alimony. A short marriage raises a presumption against permanent alimony.
What is family mediation?
All family matters pertaining to dissolution of marriage or divorce, division of marital and non-marital property, child custody, and visitation rights can be negotiated by a family mediator. Counsel for each party may attend the mediation conference and privately communicate with their clients. However, presence of counsel is not required, and, at the discretion of the mediator, and with the agreement of the parties, mediation may proceed in the absence of counsel unless otherwise ordered by the court.
Who is responsible for child support before and after divorce?
In Florida, both parents have a duty to support their children during the marriage and after divorce. After divorce, an award of child support from one parent to the other enforces that duty.
What are the rights of a non-custodial parent?
Usually, a judge will order "shared parental responsibility" for minor children when the parents separate or divorce. This means that both parents have a right to have full information about the children and to share in making major decisions for the children. The fact that a child lives primarily with one parent does not give that parent greater authority in the child's upbringing. A divorce decree usually directs that the non-custodial parent has the same rights and equal authority as the custodial parent to make all important decision regarding their children.
What is "equitable distribution" during a divorce?
Florida is an "equitable distribution" state, which means that a court can equitably distribute the parties' marital property as part of the divorce proceeding. Marital property covers tangible and intangible property acquired by either or both spouses during the marriage. Each spouse can usually retain his or her non-marital property. "Non-marital property" means (1) property acquired before marriage; (2) property acquired during marriage by gift or inheritance; or (3) any property that the spouses designate as non-marital property in a written agreement.
How are visitation rights decided?
Visitation rights are the rights of a parent, grandparent, and nonparent to visit with a minor child. Normally, it is within the child's best interest to award visitation rights to the noncustodial parent.
A parent who is not granted shared parental responsibility of his or her child may be allowed visitation rights, unless the presence of that parent is likely to affect the child's welfare. As in shared parental responsibility proceedings, the reputed father of an illegitimate child generally must establish the paternity of the child before seeking visitation rights unless all parties stipulate that he is the father.
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