Divorce and Family Law

What follows are some general questions and answers about divorce and family law in Florida. If you’d like more information, or you don’t see an answer to the question you want answered, check out our Blog, which is updated every couple of days, and is a searchable guide to many interesting questions about divorce, custody, child support, visitation, and other areas of family law.

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Some answers about Florida divorce and family law :

Who can get a divorce in Florida?

You or your spouse must have lived in Florida for at least 6 months immediately prior to filing for divorce to get a divorce in Florida.

Does Florida require that we be legally separated or living apart before we get a divorce?

No, I’ve actually had couples get divorced while they were still living together! Weird, huh?

What are the grounds for getting a divorce in Florida? What is “no fault” divorce?

Florida has no requirement that you be separated from your spouse or that you have specific grounds for divorce. In Florida, you only have to prove that the marriage is ” irretrievably broken.” It’s pretty much the same as saying, “At least one of us doesn’t want this marriage to continue anymore.” This is called “no fault” divorce. In other words, you don’t have to prove anything (like infidelity) to get a divorce in Florida. Florida also allows you to allege “mental incapacity” of the other person as grounds for divorce, but it’s rarely done.

Can I get a divorce without a lawyer?

Florida has done a great deal to help people who can’t afford lawyers, especially in the area of divorce. The Florida supreme court has created the forms you will need to file divorce. These forms are available for free on the internet or for a small fee from most clerks’ offices in the state. But whether you should file for divorce without a lawyer is a different question. If your divorce is a simple one, that is, you have no children, no major property or debt to split, and you and your spouse agree to everything, then you may not need a lawyer. Otherwise, you probably ought to find a lawyer. Don’t even think about filing for divorce without a lawyer if children are involved: divorce will be one of the most important events in your life, imagine how important it is in theirs. If you are thinking about filing for divorce without a lawyer, at least sit down with a lawyer and discuss it first, since most law firms (including Orsini & Rose) offer free consultations. Also, a law firm can probably direct you to a paralegal who can help you prepare the paperwork if the cost of a lawyer is more than you can handle.

Can I hire a lawyer to handle only part of my case?

Probably. Florida allows lawyers to act as “divorce coaches.” This means that, for example, they can prepare paperwork, give you advice on settlement, or appear as your lawyer for just a mediation or a trial. You can save money by hiring a lawyer just to perform certain tasks and not handle the entire divorce. Be aware, though, that most divorce lawyers are not comfortable with handling only a portion of a case, and finding a “divorce coach” may be difficult. At Orsini & Rose, we do allow our lawyers to occasionally act as divorce coaches, so contact us if this is an idea your are considering.

How will a judge decide custody?

Hopefully, the judge won’t decide custody. Hopefully, you’ll work out an agreement on custody with your spouse. Your children are the most precious and important part of your life. Having the government (that is, the judge) decide where they will live should be the last possible thing you’d want to happen. If you are going to work out any of your divorce issue with your spouse, work this out. When you’re negotiating custody, try to remember that you aren’t deciding who “gets” the kids; you are trying to decide how much time each parent gets to spend with the children. Absent extraordinary circumstances like child abuse, the judge will grant “shared custody.” This means that both parents control the future of the child, including where the child will go to school, what activities the child will participate in, where the child will go to the doctor, etc. Both parents must agree on the big issues; one parent is not allowed to just take control. However, one parent will probably be designated as having “primary residential” care or custody. This person will almost always be the person with the larger timeshare. The “primary residential” parent does not have greater control over the child, just more time.

There is a common misconception that one parent gets “custody” and controls the life of the child while the other parent gets “visitation,” and is only allowed to have a limited role in the child’s life. It doesn’t help that, until recently, Florida law still used terms like “custody” and “visitation.” Now Florida uses the term “timeshare,” meaning that each parent spends a determined amount of time with the child. Both parents, together and by agreement, control the future of the child. So, for example, divorcing parents could agree that one parent will have the children on Sunday, Monday, and Tuesday nights, the other parent will have the children on Wednesday and Thursday nights, and the parents will alternate weekends and holidays.

Some judges may allow you to alternate weeks, so that one parent has one week with the children, and the other parent has the next week with the children, and you alternate each week. This type of agreement is called a “rotating custody agreement.” Although to some it seems the most fair way to do things, some judges won’t allow it. Judges have been taught that this type of arrangement is not the best arrangement for the children. They have been taught that the children need more stability, that they shouldn’t be moved around so much. This is an old idea, though, and many psychologists are suggesting that the amount of visitation between parents should be more even, not heavily skewed toward one parent, as most arrangements are today.  In Tampa, for instance, many judges have decided that “rotating custody” should be allowed in more cases, whereas, for example, in St. Petersburg and Clearwater, more traditional timesharing arrangements are prefered by judges.

If you aren’t able to negotiate an agreement with your spouse, the judge will have to decide how the timeshare will be alotted. To make this decision, judges consider a number of factors. The primary factor to be considered is “What’s in the best interest of the children?” You read that question and you feel like saying, “Well, duh!” It’s a pretty nebulous question, but what it really means is that the judge will consider your history as a parent, your health, your morals, your history of any history of drug or alcohol abuse, your ability to bond with and care for the children, etc. If your child is older (say, 14 or 15), the judge may consider where your child wants to live, though allowing the child to decide or even testify about his or her preference is very, very rare.

Another thing to bear in mind is that, although Florida law says that a judge should not consider the mother to be a better parent simply because she is a woman, the simple fact is that about 80% of the children in Florida end up with the mother having the greater timeshare.  As I said earlier, though, this seems to be changing. 

How is child support determined?

Judges don’t have much discretion on this, since child support in Florida is usually determined by an official chart. To use the chart, you add your income to your spouse’s income and find the total on a row on the chart. You then find the column equal to the number of children that will be supported. This will tell you how much the total child support should be. Each parent is responsible for a percentage of the child support equal to the percent they contribute toward the total of the combined income.

For instance, let’s suppose that the father makes about $60,000 per year, and the mother makes about $30,000 per year, and they have two children together. This means that they have a combined income of $90,000, with the father contributing 66% to the total and the mother contributing 33%. The official chart says that total monthly child support for two children is about $1700 per month when the parents make a combined income of $90,000. Assuming the mother will be the primary residential parent (i.e., she gets “custody”) the father would have to pay 66% of $1,700, which is about $1,100 child support per month.

If you settle on child support, you are not strictly required to follow the chart, and the judge will probably be okay with your settlement agreement as long as you don’t deviate a whole lot. If you decide to deviate substantially from the chart, you may have to give the judge a good reason why, or your settlement may not be approved.

If you let the judge decide child support, he or she may deviate somewhat from the guidelines (either up or down) if there is a good reason to do so.

Will I have to take a parenting class?

If you had your children with the spouse you are divorcing, you and your spouse will be required to take a parenting class. This requirement is almost always mandatory.

When is someone entitled to alimony?

Usually alimony is only awarded in “marriages of long duration,” though there are many exceptions to this rule. A marriage has to last around ten or twelve years or more to even start being considered long duration in the Tampa Bat area, and around seventeen to twenty years in other parts of Florida. Even if you’ve been married for ten years or more, you’ll have to prove that you need alimony. To do this, you’ll have to prove that you need the money to maintain your standard of living (meaning you make drastically less than your spouse and need the money to live the same lifestyle you did when you were married), or that you need the money to go to school (maybe you put off school or your career to get married and raise a family), or some other good reason why you need the money.

Alimony is a very, very complicated area of the law, and if you intend to claim alimony or think you may be liable for alimony, you should call us to discuss it.

How will our property be split?

This is a tough question, and every case is different. Here are some guidelines: you’ll usually each keep your own cars (and you’ll each keep the car payment); you’ll each keep any property you had before you got married; you may have to sell the house and split the proceeds (if there are any proceeds); you’ll each keep any inheritance you received during the marriage unless you put it in both your names, in which case you split it; if you owned the house before you got married, you’ll probably be entitled to the amount you had “in the house” before you got married; and you’ll have to both decide on your own who gets the smaller pieces of property (judges love to say they “don’t do pots and pans”).  Everything else that was acquired during the marriage, including retirements, stocks, land, even debt, gets split evenly between you.  Of course, as usual, there are lots of exceptions.

Didn’t find the answer you were looking for?  This page is just a very brief overview of family law.  To get more information, please feel free to email us, call us at the numbers below, submit a case or question using the form below, or check out our family law blog.

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