Your FAQs About Family Law Answered Today

Attorney Jesse Philippe-Auguste understands the emotions and stress behind a divorce or any other family law matter. Seeking to ease the anxiety arising from these types of legal issues, he answers frequently asked questions about family law in Florida.

What Are Grounds For Divorce In Florida?

Florida is considered a no-fault state. This means that there is no preceding requirement or act of infidelity necessary to seek a divorce. The grounds for divorce in Florida are whether or not the marriage was “irretrievably broken.” If one of the parties alleges that the marriage is in fact irretrievably broken, then the court is required to enter an order for dissolution.

When Parents Are Not Divorced Yet, Can One Parent Move With The Children Out Of Florida?

If the divorce has been filed, then usually no. That is because the court will issue a temporary standing or administrative order barring either spouse from moving away with the children during the divorce proceeding. Additionally, the Florida relocation statute specific to divorce prevents either parent from moving away with the children further than 50 miles away from the other parent. The one exception might be if there is an allegation of abuse or domestic violence. In those cases, the children may need to be separated from the abusing spouse. There are specific timelines and rules if one of the parents would like to petition the court to move beyond the 50-mile limit or out of state. The biggest concern, however, is what is in the best interests of the child. Therefore, if you are considering leaving the state or being more than 50 miles from the other parent, and you do not have your spouse’s written consent, you should certainly consult an attorney to determine what your options are.

What If My Spouse Cannot Be Found Or Evades Service Of The Divorce Papers?

In that case, then an attorney would have to proceed with a divorce but attempt to serve the other party by a process called service by publication. That means that you are essentially publishing and providing public notice of your intent to seek a divorce. To serve by publication, you have to receive permission from the court to serve the other spouse by publication. That involves demonstrating to the court that you have exhausted reasonable good faith efforts to reach the other party to no avail and need to file for divorce by publication. Once you receive permission, your attorney will then actually go through the process of publishing service and then wait for a period of time for the other party to answer. If they do not answer, then it becomes a default situation, and your attorney could then proceed with the divorce.

Is My Spouse Entitled To A Portion Of My Business In Florida?

Your spouse may be entitled to a portion of the value of the business if it is determined to be a marital asset. A business, like any other asset, can be considered marital property if it is acquired or created during the marriage and is therefore subject to equitable distribution. However, even if the business was created before the marriage, a spouse may be entitled to a portion of the value of the growth of the business during the marriage. Typically, the court will consider that spouse’s contribution to the business, and a business appraisal expert is usually brought in to value the business and/or its growth rate during the marriage to determine how to best compensate the spouse for their contribution to the business.

In My Florida Divorce Case, Can I Use My Spouse’s Affair Against Them?

With respect to grounds for divorce, a spouse’s affair is irrelevant in seeking a divorce petition. Because Florida is a no-fault state, it does not matter whether one of the spouses had an affair. If the marriage is irretrievably broken, then a divorce can be filed and granted. However, a spouse’s affair can become relevant with respect to the issue of equitable distribution. If the cheating spouse used marital assets or wasted funds gifting or spending on the other party, then the money spent will be put back in the pool of property to be distributed and go against the cheating spouse. However, the alimony statute does not provide for, nor will a court allow, a spouse to be otherwise punished simply for committing adultery. In other words, the cheating spouse, unless they spent marital assets, would still be awarded the same amount of alimony had they not cheated.

How Is Annulment Different From Divorce?

Divorce is the termination of a marriage that was validly formed. The court recognizes the marriage as having legally existed and terminates it. An annulment, however, is essentially a declaration by the court that a marriage never legally existed. Annulments are rare because a party seeking an annulment typically has to show that they were deceived in some way before marrying, or entered into a marriage under unknowing circumstances, or some type of duress. Grounds for an annulment include bigamy, incest or incapacity, such as one party being underage or the common example of getting married in Vegas but having no memory of it. A party may not be able to seek an annulment, however, if they have cohabitated, consummated the marriage or otherwise ratified or accepted the marriage. So oftentimes they’d have to seek a divorce.

How Does Collaborative Divorce Work In Florida?

Collaborative divorce is essentially a team-based approach to divorce. It allows the parties to dissolve the marriage without the court, in private, and in a manner that seeks to avoid the hostilities traditionally associated with divorce proceedings. While each spouse has his or her own attorney, the approach is team-based. All team members work together to find the best solutions to issues raised in the divorce process. Often a neutral financial expert is involved, along with a mental health professional, a time-sharing specialist if there are children involved, etc. If the spouses cannot agree, then the attorneys on both sides will have to withdraw, along with the experts, and the spouses will have to retain new attorneys to litigate the divorce. There is, therefore, an incentive to resolve the divorce amicably during a collaborative divorce.

How Can I Keep My Spouse From Selling Property Before We Divorce In Florida?

If the property in question is real estate or other assets in which there is a title, hopefully the names of both spouses appear on the deed in the case of real estate or title in the case of other assets. If both names are on the deed, for example, then the transfer of real estate can only occur with the signature of both parties. However, if the property in question is only under one spouse’s name, or is under the name of a corporation, then the best way to prevent a spouse from selling property before the divorce is to file for divorce immediately. Once a divorce is filed, the court will force both spouses to refrain from selling, transferring or relinquishing any assets until there is a determination during the divorce proceedings that the property has been fairly distributed. This is done through the use of administrative orders. If either spouse sells property during this temporary order, then they could be held in contempt.

Do I Have To Pay Alimony In A Divorce In Florida?

It depends. Courts are required to follow Florida Statutes in determining the award for alimony in a divorce. And within the Alimony Statute is a long list of factors and criteria the court must use to determine the award. The fundamental question, however, in determining the alimony award is the need of one party for alimony versus the ability of the other party to pay. The court is most interested in allowing both parties to enjoy the standard of living the couple enjoyed while married. However, the factors the court considers are the length of the marriage, the bills for each home, one’s ability to contribute to their own cost of living, whether they are employable, or whether they will need time to get on their feet after the divorce, etc. So a lot is considered in determining alimony, and one should certainly see a skilled attorney during the divorce process to ensure that the award for alimony is fairly awarded.

Can I Oppose A Divorce In Florida?

Technically yes. If one of the parties denies that the marriage is irretrievably broken, then the court must allow that party to be heard on the issue. Practically speaking, however, this will have very little effect. Because Florida is a no-fault state, a party needs only to allege that the marriage is irretrievably broken, and the court will usually order a dissolution of marriage as a result. The party opposing the divorce can possibly seek an order requiring that the couple attend counseling to save the marriage. However, the court can likely still find that the marriage is irretrievably broken if, after the counseling, there is still no improvement in the relationship or one of the parties still wants to pursue a divorce.

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