Learning about a Dissolution of Marriage can be overwhelming. Not only does a person have to deal with the feelings of uncertainty about finances and their future, they’re also trying to understand what to ask the Court to do for them and how to prove their case.
Anyone filing for divorce in Florida should consult an experienced Florida family lawyer. The purpose of this article is not to provide legal advice, but rather to provide ideas about what a party needs to know for how the Court will make decisions regarding their children and finances.There are three key issues:
CHILDREN: What happens with my kids?
The first and most important issue in most Dissolution matters, “What is going to happen with my kids?” The court has been ordered by the legislature that it, “shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child…” Fla. Stat. 61.13(1)(c).
You’ll notice that Florida courts have removed the term “custody” and replaced it with the concepts of “parental responsibility” and “time-sharing.” Parental responsibility refers to the right of a parent to make decisions regarding their child’s upbringing. Time-sharing refers to the time the children will spend with each parent.
For parental responsibility, courts are required to begin from a place of shared parental responsibility unless a party can show that it is detrimental to the minor child for the court to order shared parental responsibility.
As of July 1st, 2023, the legislature of Florida requires that the courts begin with equal timesharing arrangement. 61.13(1)(b). The legislature stated that, “there is a rebuttable presumption that equal time-sharing of a minor child is in the best interests of the minor child.”
A “presumption” refers to a rule that allows people to assume something is true until it is proven otherwise in court.
In order to overcome this presumption, a party must prove by a “preponderance of the evidence” that equal time-sharing is not in the best interests of the minor child. A “preponderance of the evidence” means that one side’s argument must be more convincing and carry more weight than the other side’s. Think of it like a scale. If the evidence tips the scale even slightly in favor of one side, that side wins.
Reasonable people can disagree about what is or is not in a child’s best interest, so the legislature provided Florida courts with twenty factors to weigh as it makes its determination.
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These factors are:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect or evidence that a parent has or has had reasonable cause to believe that he or she or his or her minor child or children are in imminent danger of becoming victims of an act of domestic violence, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
While it’s not required that a person who is beginning this process remember every word of these rules, it is important to be familiar with these issues. A person beginning a dissolution to marriage will be able to inform their attorney of these issues and factors as the case progresses and to understand how the judge will determine the outcome.
ALIMONY: How do I survive financially after this?
Alimony is a spouse’s legal obligation to provide financial support following a marriage. Alimony can be agreed upon between the parties as part of their divorce settlement or can be ordered by a court.
As of July 1st, 2023, permanent alimony has been eliminated from Florida Law. However, there are a number of other forms of alimony that may be granted in a dissolution of marriage. Before the court does anything else, there must be a showing that one party has a need for alimony and the other party has the ability to pay. If either “need” or “ability to pay” cannot be established, then the Court does not need to look at any other factors.
The factors that the Court must evaluate for the purpose of determining alimony are:
(a) The duration of the marriage.
(b) The standard of living established during the marriage and the anticipated needs and necessities of life for each party after the entry of the final judgment.
(c) The age, physical, mental, and emotional condition of each party, including whether either party is physically or mentally disabled and the resulting impact on either the obligee’s ability to provide for his or her own needs or the obligor’s ability to pay alimony and whether such conditions are expected to be temporary or permanent.
(d) The resources and income of each party, including the income generated from both nonmarital and marital assets.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties, including the ability of either party to obtain the necessary skills or education to become self-supporting or to contribute to his or her self-support prior to the termination of the support, maintenance, or alimony award.
(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) The responsibilities each party will have with regard to any minor children whom the parties have in common, with special consideration given to the need to care for a child with a mental or physical disability.
(h) Any other factor necessary for equity and justice between the parties, which shall be specifically identified in the written findings of fact. This may include a finding of a supportive relationship as provided for in s. 61.14(1)(b) or a reasonable retirement as provided for in s. 61.14(1)(c)1.
Once again, what’s most important is not remembering the factors, but having a familiarity in order to get advice from counsel about the likelihood of the Court ordering alimony and the amount of the alimony award.
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EQUITABLE DISTRIBUTION: What happens to our property?
In the course of a dissolution of marriage, the Court must separate the assets and debts of the marriage. The general rule is that everything acquired during the marriage is marital. This includes debts or assets, whether they are in one person’s name or both parties names. There are exceptions to this rule, which is why having an attorney evaluate the finances is crucial in determining what assets or debts should be considered marital.
This means that items that do not fall within this period are often considered nonmarital. Parties will usually retain their nonmarital assets and they are not subject to the court distributing them between the parties.
Once the Court identifies the marital assets and debts, then the court must distribute these items between the parties. Under Florida Statute 61.075, it must begin with a presumption that the the distribution should be equal.
A party can justify an unequal distribution based on a list of factors cited within the statute, including:
(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 liabilities to, both the marital assets and the nonmarital 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 shall 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.
Once again, it’s important to have a familiarity with these factors so you know what to tell your attorney.
Once of the biggest take-aways from this conversation should be that “you must plead for the relief you would like to receive.” This means that in your initial petition for dissolution of marriage, you MUST ask for whatever you wish. There are a number of examples in Florida of cases where the Court has granted an award or relief that was not in the pleadings, only for the appeals court to overturn the decision. One of the reasons we recommend having an attorney review your initial pleadings is to ensure that you request everything that you wish to receive and an explanation of what needs to be proven in order for the court to grant your request.
To anyone new to this process, the amount of information can feel overwhelming. For professionals, they may feel like this is an oversimplification. However, each family law case has its own quirks and issues. Understanding the general factors that the court uses to determine issues regarding Children, Alimony, and Equitable Distribution can assist in unlocking a better outcome in your family law matter.
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