Orlando Divorce & Family Law FAQ
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Orlando Divorce
How do I start the divorce process?
The filing of a Petition for Dissolution of Marriage, containing all the facts of the marriage, starts an action for divorce. The petition also outlines the requests you may have regarding custody, child support, property division, attorney's fees and/or court costs. If you have been served with a petition from your spouse, you should immediately contact an attorney because you only have 20 days to file a written response with the court.
How long must I live Florida before I can file for divorce?
You must be a Florida resident for six months prior to filing for a divorce.
My Spouse and I were married outside the United States, can I file for divorce in Florida?
You must file your Petition for Dissolution of Marriage in the state where your marriage was last evidenced. Therefore, if you and your spouse last lived in Florida as a married couple then you can file your divorce in Florida.
Am I required to prove my spouse did something wrong in order to get a divorce?
No. Florida has a no-fault divorce standard. Generally, the court will grant your request for a divorce upon a showing that the marriage is irretrievably broken. During your initial consultation with Longwell & Gentle, P.A., we will discuss the grounds for divorce in your particular situation.
My spouse and I are in agreement that we should divorce. What happens to us?
If you and your spouse agree to ALL matters regarding custody, support, alimony, property division, payment of liabilities, court costs, and attorney fees, you can get a divorce without a trial. You will still need a lawyer to help you prepare your paperwork.
Is there any way to get help now? I can't make it until my divorce trial.
If you require help with support or other issues while your divorce is pending, the court will have an evidentiary hearing to determine what temporary relief you need before your trial.
Custody
How is Parental Responsibility and Visitation Determined by the Court in Florida?
The court must determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act.
It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing.
After considering all relevant facts, the father of the child must be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child. FL ST 61.13 (2)(b)1.
Parental Responsibility
The court must order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence, as defined in s. 741.28 and chapter 775, or meets the criteria of s. 39.806(1)(d), creates a rebuttable presumption of detriment to the child. If the presumption is not rebutted, shared parental responsibility, including visitation, residence of the child, and decisions made regarding the child, may not be granted to the convicted parent. However, the convicted parent is not relieved of any obligation to provide financial support.
If the court determines that shared parental responsibility would be detrimental to the child, it may order sole parental responsibility and make such arrangements for visitation as will best protect the child or abused spouse from further harm. Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child. FL ST 61.13 2.
In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those responsibilities between the parties based on the best interests of the child. Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family. FL ST 61.13 2. a.
If the court orders that parental responsibility, including visitation, be shared by both parents, the court may not deny the non-custodial parent overnight contact and access to or visitation with the child solely because of the age or sex of the child. FL ST 61.13 (8)
The court must order "sole parental responsibility, with or without visitation rights, to the other parent when it is in the best interests of" the minor child. FL ST 61.13 2. b.
The court may make specific orders for the care and custody of the minor child as from the circumstances of the parties and the nature of the case is equitable and provide for child support in accordance with the guidelines in s. 61.30. An award of shared parental responsibility of a minor child does not preclude the court from entering an order for child support of the child. FL ST 61.13 (5)
The court may not deny shared parental responsibility, custody, or visitation rights to a parent solely because that parent is or is believed to be infected with human immunodeficiency virus; but the court may condition such rights upon the parent's agreement to observe measures approved by the Centers for Disease Control and Prevention of the United States Public Health Service or by the Department of Health for preventing the spread of human immunodeficiency virus to the child. FL ST 61.13 (6)
The court may order rotating custody if it finds that it is in the best interests of the child. FL ST 61.121
Visitation
Unless contact would be detrimental to the children, both parents are entitled to spend time with the children. In most circumstances, a schedule will be established that will designate which days and nights will be spent with each parent. This schedule
usually will include specific holiday planning, vacation planning, and a method for modifying the schedule when the need arises.
Overnight visitation may not be denied based upon the age or sex of a child .
Ordinarily, each parent should have telephone contact with the children when they are with the other parent. FL ST 61.13
Child Support
What are the rules for determining child support?
Florida has Child Support Guidelines for determining child support. The amounts can be increased or decreased at the discretion of the court. Child Support is determined by the joint monthly income the parties. Income may be imputed to a party if the court has reason to believe that one party is intentionally unemployed or misstating their income.
Can Child Support Be Awarded Retroactively?
Yes. In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition.
In Florida the court must consider the following when determining retroactive child support:
(a) The court must apply the guidelines in effect at the time of the hearing subject to the obligor's demonstration of his or her actual income, as defined by FL ST 61.30, subsection (2), during the retroactive period. Failure of the obligor to so demonstrate will result in the court using the obligor's income at the time of the hearing in computing child support for the retroactive period.
(b) All actual payments made by the non-custodial parent to the custodial parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.
(c) The court should consider an installment payment plan for the payment of retroactive child support. FL St 61.30 (17)
Once child support is issued by the court, can the amount of child support that is paid be changed?
Yes. The amount of child support is modifiable under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.
Division of Property
How is Our Property Distributed upon the Dissolution of our Marriage in Florida? In Florida there is Equitable distribution of marital property. Separate pre-marital property remains separate. The court classifies property into separate and marital estates, and then distributes the marital estate. In a proceeding for dissolution of marriage, or in a proceeding for disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets, the court must first determine and must set apart to each spouse that spouse's non-marital assets and liabilities.
In distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors.
The factors that must considered by the court in determining whether there is a justification for an unequal distribution are:
(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker;
(b) The economic circumstances of the parties;
(c) The duration of the marriage;
(d) Any interruption of personal careers or educational opportunities of either party;
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse;
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party;
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the non-marital assets of the parties;
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court must first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home;
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition;
(j) Any other factors necessary to do equity and justice between the parties.
For Purposes of Equitable Distribution in Florida, What is the Cut-Off Date for Determining Marital Assets and Liabilities?
The cut off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge's discretion, the circumstances require.
Are Retirement Plans, Profit Sharing, Deferred Compensation Plans, Insurance Plans, Pension Plans and Annuities Considered to Be Marital Assets Which are Subject to Equitable Distribution in Florida?
Yes. All vested benefits, rights, funds accrued during the marriage in retirement, pension, profit sharing, annuity, deferred compensation, insurance plans and programs are marital assets which are subject to equitable distribution.
ALIMONY
Does the Court Award Alimony and Spousal Support in a Dissolution Proceeding in Florida and What Factors Does it Consider?
Yes. The court may grant alimony to either party. Alimony may be permanent or rehabilitative in nature. The court may order periodic payments or payments in lump sum, or both. The court may consider the adultery of either spouse and the circumstances of the adultery in determining the amount of alimony, if any, to be awarded. In determining a proper award of alimony or maintenance, the court must consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the non-marital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.