Dissolution 101

Pre-divorce advice:

Get all the current financial information you can gather.  "Current" means at least most recent to a year. 

Understand and write down your family budget and the budget you will have living apart from your spouse.  If your spouse carries the health insurance or car insurance, most insurance companies will not carry you because you are no longer a "dependent" on your spouse's policy, so you will have to look for your own insurance and factor that into your future "needs".

Take pictures and video of the contents of the house and valuables. 

Welcome to Dissolution 101

In Florida, the formal term for a "divorce" is "dissolution". There are two basic requirements for dissolution: 1) You or your spouse has been a continuous resident of Florida for at least six months. prior to the filing for dissolution; and 2) Your marriage must be "irretrievably broken".  This is a "no fault" state, meaning that though you are suffering from the consequences of adultery, abuse or abandonment, Florida does not require that you prove those issues as a prerequisite to divorce. Adultery is a consideration in alimony, and abuse and abandonment could be considerations for child custody.

Divorce or "dissolution" is governed by laws. Those laws are found in the Florida Statutes and the Florida Family Law Rules of Procedure and the Florida Rules of Civil Procedure and the case law from the courts that interpret the statutes and rules.

 

I. Equitable Distribution

The Court must determine equitable distribution first. Equitable distribution is governed by statute 61.075. The Court must first look to equitable distribution prior to determining alimony and attorney fees. Here are some basic rules you need to know (realize that as with ALL things in life, these basic rules are subject to exceptions and the Judge's idea of what is fair and equitable) :

1. Statute 61.075 only deals with assets and debts, not income. Statute 61.075 dictates that the court must FIRST take out pre-marital and non-marital assets. Pre-marital assets and debts are presumed to be those assets and debts that you and your spouse owned prior to the marriage. These assets and debts are NOT considered to be part of the marital assets and debts (hereinafter referred to as "marital pie"), unless they were co-mingled or used during the marriage or there was an extraordinary contribution.

2. The Court then presumes that all assets and debts acquired during the marriage, regardless of whose individual name that asset and debt is acquired in, IS part of the marital pie.

3. The Court then MUST divide the marital assets and debts 50/50.

4. The Court can consider distributing the assets and debts unequally.  There is a list in the statute and case law that addresses those circumstances.  

5. Any assets and debts accumulated AFTER the filing of the petition date are presumed NON-marital.

 

II. Alimony

NOTE THAT THE LAW DID NOT CHANGE DURING THE LEGISLATIVE TERM 2015.

Statute 61.08 governs the law on alimony. The law regarding alimony changed on July 1, 2010. On that date, the legislature determined the following rules for the court:

1. That alimony is based on NEED and ABILITY TO PAY. Thus, first the Court will look at whether you have the need and the spouse has the ability to pay. The Court will look to the financial affidavits and any supporting determination to determine the same.

 

2. If the court finds both of the above then it will consider the following:

a. standard of living during the marriage (usually determined by financial affidavits and bank statements and credit card statements)

b. duration of the marriage (under 7 years a short term marriage where alimony is NOT presumed; 7 to less then 17 years moderate term marriage and look to factors; 17 years and above longer is a long term marriage where alimony is presumed.

c. Age, physical, emotional condition.

d. All of the financial resources of the parties -marital and non-marital

e. Earning capacity and employability and time necessary to become employable.

f. Contribution to marriage – homemaking, child care, etc.

g. Responsibilities to minor children

h. Tax treatment of alimony, including whether non-taxable/non-deductible

i. All sources of income available to either party.

j. Any other factors necessary to do justice.

 

3. The court then looks to the type of alimony or combination to award:

a. Permanent periodic – usually for long term marriages and considered for short term marriages where exceptional circumstances are present. Terminates upon remarriage of payee or death or either party, and can be modified.

b. Bridge-the-gap – usually for short term marriage for short term needs. It is for a specific duration of less then 2 years and non-modifiable.

c. Rehabilitative alimony – to assist a party in becoming employed. It may be modified.

d. Durational alimony – usually where permanent alimony inappropriate and lasts no longer then the years of marriage and is modifiable and terminates upon remarriage of payee or death.

e. Lump sum alimony - usually only awarded in exceptional circumstances that must be proven.

f. Temporary alimony – awarded during the time the case is open until the final judgment.

 

III. Attorney's fees

Attorney's fees are based on statute 61.16 NEED AND ABILITY TO PAY. The court will consider ALL sources of assets and income.

 

IV. Child custody ( Now called "Time-Sharing" and "Parenting Plans")

        NOTE THAT THIS SECTION MAY CHANGE WITH THE LEGISLATIVE SESSION 2015.

This section is governed by F.S.S. 61.13 (3). Prior to October 1, 2008 child custody was broken into two separate and distinct categories: parental responsibility and residential custody. Parental Responsibility was and still is termed "shared" and "sole". Residential custody was termed "primary/secondary" and "joint and rotating". After October 1, 2008, child custody is no longer termed "child custody", as it is now termed parental responsibility and time-sharing. Parental responsibility includes the decisions you make as a parent and your rights to make decisions for your child and access records. This has nothing to do with where the child sleeps at night. Parental responsibility is termed as "shared" and "sole". Most parents have shared parental responsibility. Only in rare and extreme incidents does one party have sole parental responsibility. Such incidents are a conviction for child abuse or molestation or extreme current drug or alcohol abuse that is documented and situations supported by evidence.

The public policy of the state of Florida under F.S.S. 61.13(2) is that BOTH PARENTS, WHETHER FATHER OR MOTHER, SHOULD HAVE SUBSTANTIAL TIME SHARING WITH THE CHILD(REN).

The time sharing that will be enjoyed by you will be determined by what is in the child's best interests. There is a list of 20 factors that the judge must consider and evaluate when making the determination as to the time sharing of the parents. A couple of those factors include the demonstrated capacity of each parent to facilitate and encourage a close continuing parent-child relationship, and the anticipated division of parental responsibilities after litigation. The judge must now look at the schedule of the family and these factors for time sharing versus this circuit's previous child contact schedule of every other weekend. Though every other weekend may be appropriate, the judges are not to accept the old standard of one size fits all.

 

V. Child support

The last category is child support, which is governed by F.S.S. 61.30. Child support is a formula to support a child based on the household income as if the family were to stay intact. Basically, the parties' gross incomes are added less statutory deductions, thus, arriving at a net income then subtracting any day care expenses and/or health insurance expenses for the children then arriving at a number for support for the child. Both parties are liable for the support of their child. 

 

Conclusion

All information is paraphrased as to dissolution; it is general in nature. Each family is unique and the same laws will apply differently to each family. The information or the opinions given to you by your well-intentioned friends and family members about their own divorce/paternity cases will probably NOT apply to you.  Any attorney, no matter how high priced or of great reputation, can ever guarantee an outcome.  If you leave the decision up to the judge, you should understand that a judge will generally follow the law, BUT how the judge views the facts and the importance of those facts may differ from your view.  Thus, results will vary.