Meredith Cohen, Certified Mediator
Divorce by Mediation
605 East Robinson Street
Orlando, FL 32801
Phone: 407-977-0021
FAX: 407-641-8390
SOME POINTS OF
FLORIDA DIVORCE LAW
FOR
COUPLES IN MEDIATION
© 2004 -2009 Meredith J. Cohen
This pamphlet is a general explanation of some points of Florida divorce law to assist couples in mediation. Different facts can affect how the law is interpreted. The pamphlet does not explain all the Florida law on divorce for all factual situations, and does not give any legal advice to the Husband or Wife. A Mediator is not permitted to give legal advice even though he or she is an attorney. It is recommended that the Husband and Wife each consult a licensed Florida attorney for an explanation of his and her rights and for legal advice during the mediation. Before any agreement is signed, each should seek the advice of an attorney on whether the agreement is in his or her best interest.
FLORIDA IS A NO FAULT DIVORCE STATE
Florida is now a no fault divorce State. It is no longer required for one side to prove a ground for divorce to obtain a divorce. If the marriage is irretrievably broken, the marriage will be dissolved and the parties will be divorced. Even if one party refuses to agree that the marriage is irretrievably broken, the marriage will be dissolved. The Court may order marriage counseling , but if one party after marriage counseling still believes the marriage is irretrievably broken, the marriage will be dissolved and the parties will be divorced.
RESIDENCE REQUIREMENT
One of the parties must be a resident of Florida for at least six months before the action for divorce is filed with the Clerk. The County in which the parties last lived as husband and wife is the County where the divorce action must be filed.
CHILDREN ISSUES
Shared parental responsibility, time sharing of the children by the parents, and other matters affecting the children set out in the statute passed in 2009, are required to be set out in a detailed Parenting Plan in every divorce case with children. If the parties are not able to agree on a parenting plan, it will be decided by the Judge. The statute passed in 2008 abolishes the use of the word “custody”. No longer does one parent have custody and the other visitation. It is now all referred to as time sharing.
Shared parental responsibility under Florida law requires the parents to confer with each other and make joint decisions on all matters affecting the lives of the children after divorce. Shared parental responsibility also requires the parents to share time with the children so that the children have as much contact as possible with each parent. One time sharing arrangement is for one parent to have the children most of the time and for one parent to have the children on alternating weekends and part of holidays. Other time sharing arrangements may include more overnights for each parent or equal time sharing.
Child support is calculated by selecting from the child support guideline Statute the amount which applies to the combined net income of the parents and to the number of children, and by then giving credit to the parent who pays health insurance and day care for the children. The Judge must approve any agreement of the parents which changes this child support guideline amount. Since the obligation to pay child support stops at age 18, or on graduation from high school before the age of 19, parents are no longer legally obligated to pay college expenses. But if they agree to pay college expenses in their written agreement, it becomes a legal obligation which may be enforced in court. If the support paying parent more than 40% of the overnights in a year (more than 146 overnights) that will reduce the child support. If the parties equally share the over nights 182/183, the child support will be reduced further.
Child support must be paid to the Florida State Disbursement Unit in Tallahassee, which deposits the payor’s check and sends a State check to the receiving parent. If the Judge signs an Income Deduction Order, the payor’s employer deducts the child support from each pay check and sends it to Tallahassee. The Income Deduction Order is entered in almost every case now unless the paying parent is self employed, but on request the Judge may delay the implementation of the Order until the payor is 30 days delinquent in a child support payment.
Child support can be modified by the Judge in the future when there is a substantial change of circumstances such as a major increase of drop in the income of a parent.
EQUITABLE DISTRIBUTION
(DIVISION OF ASSETS AND DEBTS)
Under Florida law in a divorce the assets and debts accumulated during the marriage are fairly (equitably) divided between the parties. Assets owned before the marriage are separate property if they are kept separate. Property or money inherited or received by gift by one spouse during the marriage is separate property if kept separate. If there is an increase in value of a separate non-marital asset resulting from efforts or monetary contributions during the marriage, the increase in value may be considered a marital asset to be divided between the parties. As a starting point in Florida the assets and debts acquired during the marriage are divided equally by value, but it doesn’t have to be equal. Some of the factors to be considered in determining how to divide the assets and debts in Florida include (a) The contribution to the marriage by each spouse, (b) The economic circumstances of the parties and (c) The duration of the marriage.
ALIMONY (SPOUSAL SUPPORT)
When the net income of a parent plus the calculated child support are not enough to cover the reasonable monthly living expenses of the parent and children, alimony is one way to make up the shortage. Additional child support is another way. One type of alimony is permanent periodic alimony, a monthly amount usually awarded in longer marriages and payable until the receiving spouse re-marries or dies. Another type is rehabilitative alimony, a monthly amount payable for a set number of months or years to enable the receiving spouse to be educated for a career to become more self supporting. The third type of alimony is lump sum alimony, an amount that may be paid in cash or in a monthly amount over a set period of months or years. Lump sum alimony is not modifiable and is paid even if the receiving spouse remarries. Permanent alimony is modifiable when there is a substantial change of circumstances, and terminates on remarriage. Also rehabilitative alimony is modifiable unless the written agreement says it is not modifiable. An advantage of paying support in the form of alimony is that the alimony is deductible on the paying parent’s federal income tax return and taxable to the receiving parent, and usually results in more spendable money for the family. Some of the factors considered in determining a proper award of alimony under Florida law include (a) The standard of living established during the marriage, (b) The duration of the marriage, and (c) The age and physical and emotional condition of each party.
THE MARITAL RESIDENCE
The marital residence can be ordered sold if there are no minor children. With children it can still be ordered sold, but the primary residential parent may be given the exclusive use and occupancy of the marital residence until the children are 18. Then it can be sold and the proceeds divided. Or one party can agree to buy out the other party’s half interest. If the parties keep the property jointly titled after the divorce, their written agreement may cover who is to pay the mortgage payments, who is to pay for minor and major repairs, who is to deduct the mortgage interest on federal tax returns, and what credits are to be given the party paying the mortgage when the property is sold and the proceeds are divided.
©2009 Meredith J. Cohen, PA