Frequently Asked Questions (FAQ’s), And Answers, About Florida Divorce

By: Jodi Furr Colton

What does it mean that Florida is a no-fault divorce state?

In Florida, the only grounds for divorce are that the marriage is “irretrievably broken” or that one spouse has been mentally incapacitated for a period of time.  No-fault divorce in Florida means that one spouse simply has to allege that the marriage is “irretrievably broken”, and a divorce can be granted even if the other spouse doesn’t agree and doesn’t want to get divorced. Neither party has to prove the other was at fault for the breakup of the marriage in order to get a divorce.

How long will my divorce take?

I am often asked how long it takes to get divorced in Florida. That really varies, depending on lots of factors, but it is very rare for a divorce to be finalized in less than 6 months. Some cases go on for years. Even a relatively amicable divorce can take about a year.  Some of the factors are how quickly both parties gather the necessary financial information, whether depositions or hearings are needed along the way, how complex the assets are, and whether there are disagreements relating to the children. If you use the Collaborative Process, your divorce is likely to be much faster than a traditional litigated divorce.

I’m getting divorced. Now What? (A quick overview of the process.)

Once a divorce is filed, the first step is to exchange what is called “Mandatory Disclosure”, which includes production of certain documents (like bank statements, tax returns, pay stubs, and credit card bills) and preparation of a Financial Affidavit that lists all of your income, expenses, assets and liabilities.  Florida law requires that spouses exchange this information at the beginning of the case and the law contains a detailed list of the documents and information that must be provided.

The next step is for the lawyers to analyze and understand the preliminary financial information.  They may have follow-up questions, or feel more information is needed. Gathering that information is called “discovery” and it includes any or all of the following: written requests for more documents from the other party (a Request for Production), written questions that the other party must answer (Interrogatories), gathering documents from third parties (Subpoenas), or questioning the other party and/or other witnesses under oath (depositions).

The lawyers will also determine if they need the help of a specialist to evaluate, understand and/or value various assets. They may hire experts including accountants, business valuation experts, or appraisers to assist.

All of the information received is analyzed to determine what assets are marital and non-marital, the value of those assets, and how they should be allocated between the Parties. The lawyers will also be looking to determine whether either party has a claim for alimony, and how much child support is to be paid if the parties have minor children.

During this time hearings may be needed to resolve issues that come up, like where the kids will be living while the divorce is ongoing (temporary timesharing), who will pay household bills, children’s expenses, attorney’s fees and other costs (temporary support).

Once the parties feel they have sufficient information, they will schedule a mediation. Every case in Florida must go to mediation to try to resolve the issues before going to Court. Many, many cases settle either at mediation or shortly after.  If not, then the parties and attorneys will continue to prepare for trial. At any point along the way, the parties can agree to resolve some or all of the issues through settlement.  If not, a judge will decide for you.

Can I force my spouse to move out of the house?

In most instances, one spouse cannot be forced to move out of the marital home during a Florida divorce.  If the situation becomes extremely difficult and it is having negative ramifications for the children, or if one spouse is abusive toward the other, you can file a motion with the Court asking for what is called “exclusive occupancy” or “exclusive use and possession”.  Frequently, people will agree that once spouse move out and the lawyers can negotiate the terms of financial support and timesharing on a temporary basis while the case is ongoing. Other people will end up living together throughout the divorce.

Can I move out of the house if I want to?

Sure!  If you are unhappy living with your spouse during the divorce and have the financial means to go elsewhere, you can absolutely leave.  Unlike in some states, in Florida you can move out of your house during a divorce without fear of abandoning it.  However, if you think you will ultimately want to remain in the house post-divorce, it may be strategically disadvantageous to leave.

Does it matter that my spouse has been having an affair?

The short answer is not really. The fault of one spouse is not taken into consideration in deciding most aspects of a divorce.  In other words, you don’t get more money, or more assets, or more timesharing, or more alimony just because your spouse cheated.  However, if your spouse spent money on a paramour during the marriage, you may be able to reclaim some of that money based on the “dissipation” of marital property. Marital assets are considered to be owned 50/50 by both spouses.  If one spouse used marital money for an improper purpose, like an affair, the equitable distribution statute and case law permits the court to reimburse the other spouse for his or her share of the money spent.

Will my spouse have to pay my legal fees?

In Florida, if one spouse is unable to afford to pay some, or all, of his or her legal fees, the other spouse may be required to pay.

Do I have to pay alimony? For how long?

Alimony in Florida is not awarded in all cases. The threshold question is whether one spouse has a need for support.  The next question the court has to answer is whether the other spouse has the ability to pay support. How long depends on a number of factors in the alimony statute, including the length of the marriage.  Currently, there are four types of alimony in Florida.

• Permanent Alimony is presumed to be appropriate in long term marriages over 17 years.
• Durational Alimony is for a set time period of time. The maximum duration is the length of marriage) and it is used when permanent alimony is not appropriate.
• Bridge-the-Gap Alimony is for an even shorter period (up to a max of 2 years) and is appropriate in a very short term marriage.
• Rehabilitative Alimony is used in specific circumstances where there is a need for the spouse to have some kind of specialized training or incur an expense for a limited purpose to increase his or her earning capacity.

How much alimony will I have to pay?

In Florida, there is no formula for determining alimony.  It varies substantially case to case and is determined based upon one spouse’s needs, the other spouse’s ability to pay, and the factors found in the alimony statute, Fla.Stat. 61.08.

Who gets custody of the kids?

Florida does not use the word “Custody”.  Instead, we call it “parental responsibility” and “timesharing”. Parental responsibility has to do with the right to make decisions about the children and timesharing is about how much time the children spend with each parent.  Florida used to describe the parents as primary and secondary parent, but no one wants to be “secondary parent”.  That created a lot of litigation over titles.  Now we start with the notion that both parents are equally parents for purposes of decision making, but there is no presumption in the law about how the timesharing should be allocated.

Is timesharing always 50/50?

Not always, but frequently.   The public policy of this state is for children to have “frequent and continuing contact with both parents,” but there is no requirement or presumption in the law that parents have equal timesharing and the timesharing is determined in each case based upon the best interest of the children.  However, 50/50 timesharing is increasingly common.

What is Shared Parental Responsibility?

There is a presumption in the law in favor of shared parental responsibility, which means that major decisions about the kids are to be made jointly, and both parents are equally responsible for these decisions.  But, shared parental responsibility is not the same as equal timesharing in Florida.  Parents may have equal decision making power, but the timesharing schedule can vary. Children may spend half the time with each parent, or they may spend more time with one parent then the other. In making those determinations, the Court looks at multiple factors listed in the statute.  All issues relating to children are determined based on the best interest of the child.

What is a Parenting Plan?

A Parenting Plan in Florida is an agreement by the parents of a child, or created by the Court if the parents can’t agree, that governs the relationship between the parents regarding the child. The Parenting Plan is required in every case where the parties have minor children and it must address all of the following things:

• Details about how parents will share daily tasks;
• Timesharing schedule that will specify the time the child will spend with each parent;
• Designation of who will be responsible for health care, school matters and other activities; and
• Methods and technologies parents will use to communicate with each other and the child.