Family Law Handbook

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CONGRATULATIONS!

You’re getting married – hopefully, for the rest

of your life. It may surprise you to learn that

the State of Florida has an interest in your

marriage. Not in the number of bridesmaids, or

the flavor of the cake, or even the color of the

flowers- but in whether the marriage is long

lasting and happy.

There are four main things you need to TAKE GOOD CARE OF in times

ahead:

• Your COMMITMENT to each other

• YOURSELF

• Any CHILDREN you might have or adopt

• Your “STUFF” (money, property, stocks, etc.)

The Florida Legislature decided that a law was needed to recognize how

important marriage is to families in the state. In 1998 lawmakers passed

that law based on the knowledge that:

• The divorce rate has been accelerating.

• Just as the family is the foundation of society, the marital

relationship is the foundation of the family. Consequently,

strengthening marriages can only lead to stronger families,

children, and communities, as well as a stronger economy.

• An inability to cope with stress from both internal and external

sources leads to significantly higher incidents of domestic

violence, child abuse, absenteeism, medical costs, learning and

social deficiencies, and divorce.

• Relationship skills can be learned.

• Once learned, relationship skills can facilitate communication

between parties to a marriage and assist couples in avoiding

conflict.

• Once relationship skills are learned, they are generalized to

parenting, the workplace, schools, neighborhoods, and civic

relationships.

• By reducing conflict and increasing communication, stressors can

be diminished and coping can be furthered.

• When effective coping exists, domestic violence, child abuse, and

divorce and its effects on children, such as absenteeism, medical

costs, and learning and social deficiencies, are diminished.

• The state has a compelling interest in educating its citizens with

regard to marriage and, if contemplated, the effects of divorce.

[Chapter 98-403, Laws of Florida.]

What does all that mean? It means that staying happily married is hard

and more and more couples are giving up and getting a divorce. The best

marriages are not marriages where there is no conflict. The best

marriages are marriages where couples know how to work through the

rough spots. Just like learning how to drive, you can learn to handle

problems in your marriage.

For you, the new law means you have to read this handbook, you could

save $32.50 on your marriage license fee if you take a premarital

education course, and under some circumstances you might have to wait

three days for your marriage license to become effective if you don’t

take a course. If you decided not to take premarital education course

before getting married - it’s not too late. Education courses that teach

relationship skills are known to be helpful at any time during a

relationship.

Marriage and parenthood are two of the most important and most

difficult jobs anyone can have. Oddly enough, you don’t have to have any

training or education, and you don’t have to take a test. You don't even

need a license to be a parent.

If you just can’t make it work and returning to single life is what you

choose to do, you need to know that single life may not be as simple as it

was before you were married. Divorce will affect many areas of your life

- some that you might not even have thought about before you walk down

the aisle.

Things You Need to Know

Getting married is more than just

pledging to live together until death (or

divorce). It is more than agreeing to live

away from your parents with another

person. It is more than legal permission

to have consensual sexual relations with your partner. Getting

married is entering into a serious legal relationship that has many

diverse consequences on your ownership of your money and

possessions; the way you will raise your children; and the way you will

relate to your partner. Because this is a serious legal action, the

Florida Legislature requires that all persons getting married receive

information about what getting married means. When people talk

about what it means to be married and how they will handle their

finances, children's issues, religious issues, work decisions and the

like BEFORE they get married, they have a far greater ability to

remain happily married throughout their lives.

This pamphlet is not designed to give individualized legal

advice, but it is meant to tell you generally about the marriage

contract and the marital relationship in accordance with the laws in

effect through the summer of 1998. The laws dealing with the

marital relationship are constantly affected by changing statutes

and by the entry of court decisions in the appellate courts of

Florida. This area of the law has detail that changes on a weekly

basis. If you have any questions, you are advised to see a lawyer who

has an understanding of family law issues BEFORE you get married.

MARRIAGE IS A LEGAL RELATIONSHIP

When two people marry they form both a social and an

economic partnership. That partnership does not need to be

renewed every year, as you would a car registration. Rather, it

exists until either one party dies or the parties’ marriage is

dissolved (divorce). Because the State of Florida has an interest in

protecting and maintaining its citizens and in protecting and

advancing families, many laws exist that control what will happen to

a person's estate when a person dies and that control the process

of divorce. In order to dispose of a person's property after death,

and in order to end a marriage, court actions may be required.

Those actions, in large part, define and are controlled by Florida law.

Persons who are considering marriage may enter into a

written agreement that will determine the economic issues between

them should the marriage not survive or should one of them die.

Generally, such "prenuptial agreements" may create a special

contract between the parties that, if properly entered into after

full disclosure of financial information by both parties and without

undue pressure being applied by one party against the other, can

structure the financial aspects of the parties’ divorce. Although a

party cannot agree not to receive child support, and cannot contract

away temporary financial support during the pendency of an action,

you and your spouse can agree, before you get married, to specific

distribution plans for assets and liabilities and for specific spousal

support (alimony) if the marriage does not work out. A lawyer who

handles family law matters can discuss this with you and help you

reach these types of agreements.

Even after a divorce, if things change, most types of

alimony, child support, and parental responsibility issues may be

modified by later court proceedings.

ECONOMIC ISSUES

(DURING THE MARRIAGE/UPON

DISSOLUTION OF MARRIAGE)

ASSETS (THE THINGS YOU OWN)

In most cases, unless there is a

written agreement to the contrary, money earned by either you or

your spouse during the marriage, assets purchased by either of you,

and debts incurred by either of you are considered to be "marital

assets and liabilities ." These "marital assets and liabilities" will be

equitably distributed to you and your spouse if you divorce. This is

true even if an asset is bought in one name alone with the money

earned by that person. Title to property alone does not determine

distribution.

Any asset owned by a person before he or she gets married

that he or she keeps separately titled (e.g., a home) will generally

be distributed to that person upon divorce. Such an asset is called

nonmarital property. However, if that asset has increased in value

due to the expenditure of marital funds, or funds of non-owner

spouse during the marriage, or if that asset has increased in value

due to the work efforts of either partner (even if it is only the

work of the one that owned it before), then the increased value may

be considered a marital asset that can be distributed to both

husband and wife upon divorce.

If either spouse changes into joint names the title to an

asset that he or she owned before marriage; or, if the person mixes

the asset with marital assets (for example, if the spouse puts his or

her house into both names or puts the money that he or she earns

into a stock account he or she had before the marriage) then the

whole asset may be considered to be a marital asset and may be

distributed to both husband and wife upon divorce.

Gifts given by one spouse to the other are marital assets

and can and will generally be divided should you divorce. Gifts given

by outside persons to one party or the other individually, and not

thereafter mixed with marital assets, are not marital property and

will generally be awarded to the recipient of the gift upon divorce.

LIABILITIES (THE MONEY YOU OWE)

If a person owes a debt prior to the marriage and that debt

still exists at the time of the parties’ divorce, the person who owed

the debt still will be solely responsible for it unless the other party

has legally agreed to pay the debt during the marriage. Debt

incurred by either party during the marriage is generally "marital

debt" and can be assigned for payment to either party upon divorce.

HOW THE COURT DIVIDES ASSETS AND LIABILITIES UPON

DIVORCE

Unless the husband and wife enter into an agreement that

sets out who gets which assets and who gets which liabilities, the

circuit court will have a trial after which it will decide who gets

what and who will pay what.

The current statutes require a court to begin the process

of dividing assets and liabilities by setting aside those assets that

are defined as "nonmarital," typically those assets which either

were owned prior to the marriage or inherited during the marriage

and not mixed with marital assets, or those properties specified in a

written agreement between the parties as nonmarital.

Next, the court will divide marital assets and marital

liabilities, starting with the presumption that such assets and

liabilities will be distributed equally. The court may distribute

unequally marital assets and marital liabilities based upon a series of

factors including: the contributions of each party to the marriage,

the contribution of one party to the career or educational

opportunities of the other, the intentional depletion or destruction

of marital assets by one party, and other equitable factors. The

court may award a cash payment from one party to the other to

balance out assets and liabilities. It is not necessary for a court to

divide each and every asset between the parties. Instead, the

court may award some assets to one party, some to the other, and

balance the difference through a cash payment.

If proper pleadings are filed, a trial judge may order

particular items of real or personal property sold and the proceeds

awarded to one or both spouses.

SPOUSAL SUPPORT (ALIMONY)

Upon separation or divorce, in some cases a judge may order

one party to pay spousal support (alimony or separate maintenance)

to his or her spouse. If awarded, the type, duration, and amount of

alimony will be determined primarily by the length of the marriage,

the need of one party for support, the ability of the other party to

pay the support, and the standard of living the parties have enjoyed

together.

A trial judge may order temporary support from the time of

the filing of a dissolution of marriage action (divorce case) or the

time of the filing of a petition for support unconnected with

dissolution of marriage. At the time of the final judgment, the trial

judge may order permanent alimony (to continue until the death of

either spouse or the remarriage of the receiving spouse),

rehabilitative alimony (support for a specific purpose that is meant

to fund a plan to allow the receiving spouse to become educated or

otherwise qualified to work at a particular job), and/or lump sum

alimony (a specific sum designated for support purposes). Typically,

permanent alimony and rehabilitative alimony are paid on a monthly

basis and may have substantial tax consequences.

The factors considered by a court when determining issues

of alimony include: the age of the parties, the duration of the

marriage, the health, education, and skills of each party, and other

factors. Generally, marital misconduct, such as adultery, is only

considered when it has an economic consequence.

An Income Deduction Order may be entered that will

require the employer of the person paying alimony to deduct the

support from the paying spouse's paycheck and send it directly to

the other spouse or to a central depository, which will keep track of

the payments and forward the funds to the receiving spouse.

Failure to pay spousal support when it has been ordered is

enforceable by contempt, and willful failure to pay may result in a

person being jailed. A party may be ordered to maintain life

insurance or provide other security to ensure the continued

payment of alimony.

As an additional component of support, a judge may order

one party to pay the attorney’s fees and costs incurred by his or her

spouse. The primary factor to be considered in an award of fees is

the need of one spouse and the ability of the other spouse to pay.

More and more, however, the courts are considering the

reasonableness of the positions of each party in determining the

amount of fees and costs awarded.

UPON THE DEATH OF A HUSBAND OR WIFE

A husband or wife has certain rights to assets of his or her

spouse upon death, unless the couple has a written agreement to the

contrary. For example, a spouse may be entitled to a portion of the

deceased spouse’s property that is subject to probate

administration, an allowance of a certain sum of money, and use of

the family home.

Transfers of property from one spouse to another may

receive beneficial tax treatment. Couples who have valuable assets

may wish to consult an attorney who is familiar with estate planning

for advice that is appropriate for their particular situation.

CHILD RELATED ISSUES

(DIVORCE OR SEPARATION)

PAYING FOR CHILDREN'S EXPENSES

AFTER DIVORCE

Both parents have a duty to

support their children. On divorce, that

duty ordinarily is enforced through an award of child support from

one parent to the other. To calculate child support, the court will

usually follow a process in the child support guidelines statute. That

process requires the court to consider the gross earnings of each

party, subject to certain specified deductions, and to apply those

earnings to a chart. Child care expenses and child health insurance

premiums ordinarily are added to that charted figure. Alimony paid

is considered income to the receiving spouse and is a deduction from

the income of the person who pays. Each parent's percentage of

support is then calculated and a support figure is generated. The

judge is then permitted to vary the support amount based upon a

series of factors directed to circumstances existing within that

particular family. Where it is reasonably available, payment of

health insurance premiums will be required and the cost of

uncovered medical, dental and prescription needs will be allocated.

Except in special circumstances, an Income Deduction

Order will be entered that will require the employer of the parent

paying child support to deduct the support from the paying parent's

paycheck and send it directly to a central depository, which will

keep track of the payments and forward the funds to the receiving

parent. Failure to pay child support when it has been ordered is

enforceable by contempt, and willful failure to pay may result in a

person being jailed. A party may be ordered to maintain life

insurance or provide other security to ensure the continued

payment of child support.

It is not acceptable or appropriate to fail to permit a

parent to spend time with children because that parent has not paid

child support. It is equally unacceptable to fail to pay support

because the other parent has not made the children available. Two

wrongs don’t make a right. Under either set of circumstances, the

statutes provide methods for enforcement of the court orders.

Assistance in obtaining a child support order may be

available. The precise location of that assistance varies from

county to county. For information related to the agency assisting in

support enforcement and establishment in your county, contact your

local Department of Revenue, Child Support Enforcement Program.

MAKING DECISIONS FOR THE CHILDREN AFTER DIVORCE

In most circumstances, a judge will order "shared parental

responsibility" for minor children when the parents separate or

divorce. This means that both parents have a right to have full

information about the children and to share in making major

decisions for the children. Just because a child lives primarily with

one parent does not give that parent greater say in the child's

upbringing.

A judge may determine that one parent or the other should

have the ultimate responsibility to make decisions in a particular

area of a child's life, if the judge finds that it would be in the best

interest of the child to do so.

If the parents, after good faith efforts, are unable to

agree about a major decision affecting the child, (e.g., the parents

cannot agree which private school the children should attend) the

court, upon motion, may decide the issue, or designate the parent

who will make that decision.

Sole parental responsibility may be awarded to one parent

when shared parental responsibility would be detrimental to the

child. Evidence of child or spousal abuse is a consideration and,

depending upon the degree of abuse, may be a presumptive factor in

determining whether shared or sole parental responsibility will be

awarded. A court will also consider evidence that a person has

provided false information in a domestic violence proceeding.

WHERE THE CHILDREN WILL LIVE AFTER DIVORCE

When parents separate or divorce it is important that both

parents maintain contact with the children. Ordinarily, one parent

will be designated the "primary residential parent" and the other

parent will be designated the "secondary residential parent."

Alternate arrangements, including situations where one parent has

sole custody or where neither parent is designated a primary

residential parent (rotating custody), can be agreed to or ordered in

specific circumstances.

Both parents are entitled to equal consideration as primary

residential parents, notwithstanding the age or sex of the children.

After divorce, if a primary residential parent wants to move

and the move would materially interfere with the other parent's

contact with and access to the children, there are a series of

statutory factors that a court will be required to consider before

issuing an order that permits a parent to move with the children. It

is possible that a parent will be denied permission to move with the

children. This may occur if the other parent has been an involved

parent, the move is not in the best interest of the children, and a

substituted schedule of contact with the children may not be

sufficient to maintain the secondary residential parent’s

relationship with the children.

CONTACT WITH CHILDREN

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. Furthermore,

many agreements provide that if a parent is going to be away from

the children overnight the other parent will be given the opportunity

to have the first right to take the child or children for that night

before any other person is provided that opportunity.

If a primary residential parent wrongfully deprives the

other parent of his or her time with the children, the court may

enforce that other parent's right to time with the children and has

a large variety of sanctions that can be imposed – ranging from

make-up time to a full change of primary residential custody.

WHAT IF ONE SPOUSE ALREADY HAS A CHILD?

Unless a person has adopted the child of his or her spouse,

the stepparent does not obtain either parental rights or

responsibilities. Therefore, if the couple divorces, a stepparent will

not have a right to contact with his or her stepchildren nor will a

stepparent have an obligation to support stepchildren, even if he or

she voluntarily has done so during the marriage. If a person has

adopted a stepchild during the marriage, then that stepparent is

the child's parent in all respects and will be given the same

consideration for parental rights and responsibilities, as would any

natural parent.

DOMESTIC VIOLENCE AND

CHILD ABUSE

No person has a right to

physically hit, push, shove, shake, or

abuse another person, even if that person is his or her spouse or

child. Domestic violence and child abuse are crimes and will be

prosecuted as such.

Florida Statutes provide an expedited process for obtaining

an "injunction for protection against domestic violence."Forms have

been established for seeking immediate injunctions when a person

reasonably believes that he or she is in imminent danger of harm

from a domestic partner. Available relief includes immediate

exclusive use of the home, immediate temporary custody of the

children (with or without temporary visitation) and where

appropriate, financial relief. The petition must be submitted under

oath and must factually lay out a basis for a reasonable fear that

without this special order the person applying for the order will be

hurt. Generally, an evidentiary hearing will take place within 15 days

to allow the other party a chance to dispute the charges and to allow

a judge to determine how the case will then progress. A person

against whom a domestic violence injunction is issued, may not own

or possess a firearm or ammunition. Domestic violence injunctions

are enforceable nationwide.

Florida law provides that evidence of domestic abuse, or a

false allegation of domestic abuse, may be considered as a factor in

determining a child's primary residence and parental responsibility.

Similarly, false statements under oath in domestic violence cases

may result in criminal prosecution for perjury.

THE PROCESS FOR ENDING A

MARRIAGE (DIVORCE)

In order to end a marriage, a person

must obtain a final judgment from a circuit court

dissolving the marriage. In that judgment, all

property, support and child-related issues

ordinarily will be determined. To obtain that judgment a person

must file a petition to start a lawsuit, legally serve (notice) his or

her spouse, provide and obtain financial information to and from his

or her spouse, if children are involved, take a class, and either have

an agreement prepared and brought to the court at an appropriately

noticed final hearing or have a trial before a judicial officer at

which evidence will be taken to allow the judicial officer to make

decisions. A person is not required to have a lawyer to obtain a

divorce. However, because this is a legal process with rules and

procedures to be followed, it is advisable to obtain legal counsel.

To obtain a divorce, there must be a legally acceptable

reason. There are two legally acceptable reasons in Florida. One is

that one party has been declared legally incompetent for a period in

excess of three years. The other is the more common basis – that

the marriage is "irretrievably broken." That means that there is

nothing that the court can do (such as sending the couple to

counseling) to induce the couple to reconcile. If there are children,

and a person answers a petition for dissolution of marriage by

denying that the marriage is irretrievably broken, then the court

may order the parties to counseling and may delay the proceedings

for up to three months to encourage and/or permit the parties an

opportunity to reconcile.

Once a petition for dissolution of marriage is filed, it must

be legally served upon the other party. That party must then file a

written answer with the court. Forms for dissolution of marriage

proceedings are available, and many courts have self-help units to

assist people without lawyers in finding those forms.

There are specialized rules of procedure dealing with family

courts, which are available at public libraries and law schools. Those

rules require each party to provide the other with financial

information within a certain number of days of the beginning of a

case. Except in cases involving domestic violence, most courts will

also require all couples to attend mediation sessions – which are

settlement conferences with the assistance of a trained person who

tries to help couples achieve a settlement between themselves. If

children are involved, all parties will be required to attend parenting

classes, details of which are provided when the divorce action is

filed. Some courts require the children to attend special classes as

well.

Divorce proceedings are public proceedings, and the files

are available at the courthouse for public review. Under certain

limited circumstances, portions of the file may be sealed by order

of the court.

While a divorce action is pending, a trial judge may enter

orders dealing with support, possession or maintenance of any

individual asset, where the child or children will live, the time the

child or children will spend with each parent, and attorney's fees

and costs.

COMMUNITY RESOURCES -

WHERE TO GO FOR MORE

INFORMATION OR HELP

The laws dealing with marriage,

dissolution of marriage, partition (forced sale) of property,

enforcement of support, and injunctions for protection against

domestic violence are primarily found in chapters 61, 64, and 741 of

the Florida Statutes. Those statutes are available for review at all

public libraries. Recent legislative changes can be accessed online

at http:\\www.leg.state.fl.us.

Many courthouses have opened self-help clinics that

provide access to forms required for dissolution of marriage

proceedings. The forms may also be retrieved online as the "family

law forms" contained within the rules maintained at

http:\\www.flcourts.org.

Couples undergoing marital strain are encouraged to seek

the assistance of a mental health professional specializing in family

counseling. The yellow pages in your local phone book contain a

variety of such mental health professionals. Clergy are also available

for assistance and/or referrals.

The statewide toll-free hotline to report child abuse is 1-

800-96-ABUSE.

The statewide toll-free hotline to obtain assistance with

protecting yourself or your children from domestic violence is 1-

800-500-1119.

Couples who wish to attempt to settle their cases with the

assistance of a professional mediator can contact their local family

court services division, court administrator, or clerk of court for a

list of certified family mediators in their area. Many mediators also

advertise in the yellow pages. The Florida Supreme Court’s Dispute

Resolution Center can also provide the names of certified mediators

in Florida. The number is 850-921-2910.

In most counties, The United Way maintains information on

local agencies that provide a variety of services for children and

families to prevent and reduce the incidents and effects of child

abuse and neglect, and spousal abuse.

Referrals to attorneys who can assist in family law matters

can be obtained from local bar associations, local legal aid

organizations, and from The Florida Bar's Lawyer Referral Service

at 1-800-342-8011.

Attorneys handling family law cases can also be found in the

yellow pages of your local phone book. The hiring of an attorney is a

serious matter, and attention should be given to the attorney's

qualifications and background prior to engagement.

This handbook has been prepared as a public service by The Family Law

Section of The Florida Bar and has been reviewed for accuracy by The Family

Court Steering Committee established by The Florida Supreme Court. This

public document was produced at a cost of $.13.