As you begin to consider and plan for divorce it is important to understand your options and what items will be needed. These things are important for you to address with your attorney as you move forward in a collaborative manner.
One: Residency Requirement
You or your spouse must be a resident of the State of Florida for at least six (6) months prior to filing for divorce in Florida. A Florida divorce legally starts when you or your spouse files a “Petition for Dissolution of Marriage” in the local circuit court. The non-filing spouse is served with the paperwork and has twenty (20) days to respond. If both you and your spouse agree on how to divide property, debt and responsibilities for any children, the divorce can be finalized without a trial.
Two: Marital Assets and Debts
Any assets and debts accumulated during the marriage, whether real or personal property, tangible or intangible, are presumed to be marital assets or debts and are subject to division between the parties. Any assets or debts one had prior to the marriage, or any assets inherited during the marriage, are generally considered “non-marital assets” or “non-marital debts” if they are maintained as “non-marital” property during the marriage.
Three: Division of Marital Property
Typically all marital assets and debts will be divided equally between the parties. In some circumstances one spouse or another may be entitled to an “unequal” distribution. Factors to be considered in an unequal distribution include, but are not limited to, contribution of each spouse to the marriage including the care and education of any children, the economic circumstances of the parties, duration of the marriage, the contribution of one spouse to the personal career or educational opportunities of the other, and any other factors necessary to do justice and equity between the parties. “Non-marital” assets or debts are not subject to division between the parties.
Alimony is an extension of a spouse’s obligation to financially support the other during the marriage. Factors the courts must consider include: the need of one spouse to receive alimony and the other’s spouse’s ability to pay; the standard of living established during the marriage; the length of the marriage; the age and physical condition of each spouse; the financial resources of each party; the contributions of each spouse to the marriage; the earning capabilities of each party; the tax treatment and consequences of the alimony award; and all sources of income available to each party.
Five: Parental Responsibility and Timesharing
Florida no longer has primary and secondary parental custody of minor children. Divorcing parents with a minor child(ren) will enter into a parenting plan which addresses parental responsibilities and timesharing. If you and your spouse are unable to come to an agreement on these issues, the court will make a decision based on the “best interests” of the child. Generally, the parties will maintain shared parental responsibility for the major decisions parents must make on behalf of a child, such as education, health and religion. The “timesharing” schedule is established after a careful consideration of numerous factors including, but not limited to, a parent’s ability to provide and care for the child, school and community record of the child, and each parent’s willingness to facilitate the child’s relationship with the other parent. There is no presumption for or against the father or mother in establishing a parenting plan. Working with a licensed mental health professional may be helpful in the process of establishing a parenting plan.
Six: Child Support
Florida uses child support guidelines to determine the necessary financial support for each child and/or dependent. The guidelines consider each parent’s income, the timesharing schedule and any health and employment related daycare costs. Child support obligations typically end when a minor child turns eighteen.
Seven: Documents You Will Need
Copies of tax returns, bank statements, mortgage documents and any other financial information are necessary to evaluate your case. A list of major household and family possessions and a detailed household budget is also helpful.
Property transfers, taxability of alimony payments and dependency deductions for children may all affect your taxes. Working with an accountant along with your lawyers will help you avoid making mistakes you may not be able to fix after the divorce.
Mark T. Flaherty, Esquire