Florida Family Law

  1. Child Custody

    1. Introduction

      In Florida, the court determines all matters relating to parenting and time-sharing of minor children in accordance with “the best interests of the child” and the Uniform Child Custody Jurisdiction and Enforcement Act. The court’s decision “binds all persons served” and is “conclusive as to all decided issues of law and fact.”1 The court generally tries to assure that each minor child has frequent and continuing contact with both parents after a separation or divorce, and encourage the parents to share rights/responsibilities.2

    2. Text of Statute(s)

      1) Fla. Stat. § 61.507 – Effect of Child Custody determination. A child custody determination made by a court of this state which had jurisdiction under this part binds all persons who have been notified in accordance with s. 61.509 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

      2) Fla. Stat. § 61.13 – Custody and support of children; time-sharing; powers of court in making orders.3

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      A Florida court will order each spouse to pay child support because the State prioritizes making parents support their children.

      The law requires support from both parents although the primary residential parent normally retains his or her payment to use it directly for the children.

      Child support payments are a property right of the children, not of the parents, so parents cannot mutually agree for child support that is vastly different from the amounts set forth in the chart.

    1. Fla. Stat. § 61.507. 

    2. Fla. Stat. § 61.13. 

    3. Because the full text of the statute is quite lengthy, I’ve included a link rather than summarize/rewrite the full text: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0061/Sections/0061.13.html/ (last visited July 18, 2012). 

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  2. Divorce

    1. Introduction

      Florida is a “no fault” divorce state, so either party may seek a divorce without proving anything other than no longer wanting to be married. The spouse seeking a divorce must file a Petition for Dissolution of Marriage, which outlines any claims for things like child support, custody, alimony and division of properties. To obtain a divorce in Florida, one spouse must have been a Florida resident for the six months immediately before seeking a divorce, and need only state that he or she considers the marriage “irretrievably broken.”Florida law provides for an equitable distribution of the marital property. Put simply, this means that the marital property should be divided “fairly and justly” between the parties. However, this does not necessarily mean that the property will be divided equally. In addition to the marital assets, the court must determine how it should divide the marital liabilities (debts), and the court also sets apart any existing non-marital assets and liabilities.1 While Florida law does address the issue of how to choose the valuation date for marital assets, it does so only broadly, and its plain language offers judges little guidance. Thus, an analysis of the case law interpreting the statute helps guide the choice of a valuation date. The overarching consideration to determine the appropriate date is the examination and analysis of the cause of increase or decrease in the valuation of the subject asset because between the date of separation and the date of trial. If the increase or decrease is caused primarily by passive forces, equity mandates that both parties share in the increase or decrease, and, thus, the later date should generally be used. Conversely, when the increase or decrease in the value of the asset is due to active forces, e.g., a party’s positive efforts or malfeasance, the earlier date will be used to direct the increase or decrease in the valuation of the asset between separation and trial date to the party responsible for the change in the valuation.

    2. Text of Statute(s)

      1) Fla. Stat. § 61.075 - Equitable distribution of marital assets and liabilities.

      (1) In a proceeding for dissolution of marriage, in addition to all other remedies available to a court to do equity between the parties, 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 shall set apart to each spouse that spouse’s nonmarital assets and liabilities, and 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, including:

      (a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as a 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 or, or the incurring of 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.

      (2) If the court awards a cash payment for the purpose of equitable distribution of marital assets, to be paid in full or in installments, the full amount ordered shall vest when the judgment is awarded and the award shall not terminate upon remarriage or death of either party, unless otherwise agreed to by the parties, but shall be treated as a debt owed from the obligor or the obligors estate to the oblige or the obligee’s estate, unless otherwise agreed to by the parties.

      (3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection

      (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:

      (a) Clear identification of nonmarital assets and ownership interests;

      (b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;

      (c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;

      (d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.

      (4) The judgment distributing assets shall have the effect of a duly executed instrument of conveyance, transfer, release, or acquisition, which is recorded in the county where the property is located when the judgment, or a certified copy of the judgment, is recorded in the official records of the county in which the property is located.

      (5) If the court finds good cause that there should be an interim partial distribution during the pendency of a dissolution action, the court may enter an interim order that shall identify and value the marital and nonmarital assets and liabilities made the subject of the sworn motion, set apart those nonmarital assets and liabilities, and provide for a partial distribution of those marital assets and liabilities. An interim order may be entered at any time after the date the dissolution of marriage is filed and served and before the final distribution of marital and nonmarital assets and marital and nonmarital liabilities.

      (a) Such an interim order shall be entered only upon good cause shown and upon sworn motion establishing specific factual basis for the motion. The motion may be filed by either party and shall demonstrate good cause why the matter should not be deferred until the final hearing.

      (b) The court shall specifically take into account and give appropriate credit for any partial distribution of marital assets or liabilities in its final allocation of marital assets or liabilities. Further, the court shall make specific findings in any interim order under this section that any partial distribution will not cause inequity or prejudice to either party as to either party’s claims for support or attorney’s fees.

      (c) Any interim order partially distributing marital assets or liabilities as provided in this subsection shall be pursuant to and comport with the factors in subsections (1) and (3) as such factors pertain to the assets or liabilities made the subject of the sworn motion.

      (d) As used in this subsection, the term “good cause” means extraordinary circumstances that require interim partial distribution. . . . 2

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Nothing relevant at this time.

    1. Fla. Stat. § 61.075. 

    2. Because the full text of the statute is quite lengthy, I’ve included a link rather than summarize/rewrite the full text: http://www.leg.state.fl.us/statutes/index.cfm?mode=View%20Statutes&SubMenu=1&App_mode=Display_Statute&Search_String=61.075&URL=0000-0099/0061/Sections/0061.075.html (last visited July 18, 2012). 

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