Florida Divorce Laws: Filing for Divorce and Dividing Assets

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Updated on Wednesday, July 28, 2021

If you’re considering a divorce in Florida, a no-fault state, there are a few things to keep in mind in terms of assets, debts and financial obligations to your spouse and children. Knowing what to expect from the divorce process, and how much divorcing can cost you in both the short- and long-term, can help you be prepared along the way.

For those facing a divorce in the Sunshine State, it may be worthwhile to reach out to a Florida financial advisor, especially if you can find one who specializes in divorce. A financial advisor can be a valuable resource when it comes to dealing with financial planning concerns both during and after a marriage. For more on Florida divorce laws, read on.

How to file for divorce in Florida

Knowing what to expect from the divorce filing process in Florida can help you be as prepared as possible — saving you time, money and frustration in an already-challenging situation.

Residency requirements for divorce in Florida

In order to file for divorce in the state of Florida, you and/or your spouse must actually live there. According to Florida divorce laws, one or both of the parties involved in the marriage must reside in the state for a minimum of six months before you can legally file to end your marriage.

Residency can be proved by providing a valid Florida driver’s license or identification card, or a Florida voter registration card. You can also have a third-party submit a sworn statement.

Grounds for divorce in Florida

Florida is considered a no-fault state, which means that neither spouse has to specifically be “at fault” for the marriage ending in order for either person to request a divorce. As long as the marriage is considered irretrievably broken to at least one of the parties, a judge can grant the divorce.

A judge can also grant a divorce in Florida if one of the spouses is deemed mentally incapacitated. In cases where mental incapacity is claimed, this will need to be proven for a period of at least three years before a judge can rule on the divorce. The incapacitated person’s guardian and/or next blood relative will need to be notified of the divorce proceedings, so that they may to appear in court and act in that spouse’s best interests.

Divorce process in Florida

To file for divorce in Florida, the petitioning party will need to submit certain documents to the clerk of the circuit court of the county in which you and/or your spouse reside. This may include the following:

  • Petition for Dissolution of Marriage (there are multiple versions of this form depending on how simple or complex your situation is, such as children or shared property)
  • Family Law Financial Affidavit
  • Marital Settlement Agreement
  • Child Support Guidelines Worksheet (if you’ll be requesting child support)
  • Uniform Child Custody Jurisdiction and Enforcement Affidavit (to determine the custody and time-sharing of minor children)
  • Notice of Social Security number
  • Petition for Support (there are multiple versions of this document, depending on whether or not you have minor children and a parenting plan in place)
  • Service Summons
  • Various representation forms, depending on whether you are representing yourself or being represented by an attorney

In most Florida counties, the filing fee is $409, though the cost may ultimately vary depending on your county of residence. If you’re unable to pay this court cost, you can apply for indigent status to get a payment plan.

After the divorce petition has been filed, Florida divorce laws require a waiting period of 20 days before the process can move on to the next steps. This wait serves to not only let the parties get their ducks in a row and allow the non-petitioning spouse to respond, but also provides a bit of a cool-off period, if needed.

Once the waiting period has ended, the process can move forward. You’ll be given a hearing date, at which you and your spouse will need to appear. If you have a simple divorce with no minor children, are representing yourself and your spouse agrees to the terms of your divorce petition, a judge can sign off on the marital dissolution (divorce) fairly quickly.

However, if there are children involved, alimony or child support requested, marital property to divide or if the divorce is contested, expect the hearing process to be much more lengthy.

Division of assets and debts in Florida

One of the trickiest parts of divorce is fairly dividing up marital assets and debts.

Dividing assets in a divorce in Florida

In Florida, anything that was obtained during the marriage is fair game, in terms of shared marital property. Regardless of who obtained the property, funds or other assets, expect the court to divide them. This includes real estate, joint bank accounts, interspousal gifts, annuities, pensions, retirement funds, insurance benefits and more.

Exceptions would include assets acquired separately by either spouse, including assets that were brought into the marriage, non-marital gifts or an inheritance. Just note that how those funds were brought into the marriage also matters.

“Any property that is mixed together becomes marital,” explains Florida attorney Russell D. Knight. “There will be no tracing: If you put money in a joint bank account, it is now joint and thus divisible. If you sell a premarital home and deposit the proceeds in a joint bank account, it is now marital money. The only way to keep things separate is to keep them absolutely separate.”

In the end, it is up to the judge to decide how assets are divided and which assets are calculated as marital property.

Who gets the house in a divorce in Florida

Real estate is considered a shared asset in Florida if marital funds were used to purchase, rent or maintain the property. This is true whether the property was acquired during the marriage or even before.

Determining who gets the house in a Florida divorce depends on a few factors, including whether or not child support or alimony is being awarded and the value of the property. It is up to the presiding judge to decide which spouse is awarded exclusive use and possession of the home, or if the property is to be sold and the proceeds (or financial obligations) split.

Dividing debt in a divorce in Florida

Various liabilities, or debts, are also divided when divorcing in Florida. As with assets, these can be split up into marital and non-marital categories, depending on when and how the debts were obtained, and how they’ve been paid down thus far.

Generally, if a debt was acquired prior to the marriage — such as one party’s student loans — or incurred by forgery or the unauthorized signature of the other spouse, this is considered a non-marital debt and will be the responsibility of the party who acquired it. Otherwise, the court can determine which liabilities are marital property to divide them accordingly, and can even do so without regard to alimony for either spouse.

Estate planning in Florida

Since most assets will be considered marital in nature, you can expect them to be equitably divided in a divorce in Florida. This can potentially reduce your overall net worth and the assets included in your estate (and/or retirement) plan. If you have children — especially if those children are not shared with your spouse — a division of assets can affect their inheritance down the line.

Divorce can also shift your existing financial and retirement plans in other ways: For instance, you may need less funds to retire if you only need to support one person. Your life insurance coverage may also need adjusting (or the beneficiary changed) to account for your new marital status.

All in all, divorce can throw a wrench in estate planning. You should plan to revisit your overall estate strategy following a divorce to account for changes in your financial assets and obligations.

401(k) plans, retirement plans and IRAs in divorce

When it comes to divorce in Florida, your retirement and other savings accounts are typically considered marital property. This includes both vested and non-vested accounts, retirement funds, annuities, insurance plans and other profit-sharing programs. Because they are considered marital assets, you can expect them to be distributed accordingly.

In Florida, the rules are a bit different for service members. Distribution will depend on how long the marriage lasted, how long the spouse was a member of the federal uniformed services and if the division of marital property includes (or should include) uniformed services retirement pay.

Rather than withdraw from each spouse’s retirement accounts, the court may decide to credit one spouse’s portion of the marital assets in another way, depending on the divorcing spouses’ unique situation. For example, if your spouse is entitled to $40,000 of your 401(k) plan savings, the court may grant them a larger share of the proceeds from the sale of a family home instead.

If you have questions about how divorce will impact marital assets such as retirement accounts or trusts, you may want to consult a financial advisor in your area.

Child support and alimony under Florida divorce laws

There are many factors involved when evaluating child support requests and determining whether one spouse is eligible for alimony payments.

When it comes to child support, a judge will generally look at:

  • Each parent’s income, including earned income and business income from investments, annuities, investment properties, etc.
  • Each parent’s obligations, including alimony payments and non-marital debt
  • Whether it is necessary for either parent to stay home with the minor child(ren) in question, leading them to be underemployed or unemployed
  • The number of shared children involved
  • Time-sharing schedules, or the agreed custody arrangement, and how many overnight stays each parent has with the child(ren)
  • Additional expenses including child care, health care and extraordinary care or special needs

Providing monetary support for legally dependent children is considered the fundamental obligation of both parents, and the Florida courts take this obligation seriously.

When it comes to spousal support, or alimony, the rules are a bit different. Spousal maintenance payments can be awarded based on factors including the length of the marriage, each spouse’s income and net assets, the standard of living established during the marriage, the contribution of each party to marriage and family and the responsibilities that each party will have to shared minor children (which could impact their ability to earn an income).

“Florida is a very pro-alimony state,” says Knight. “There is no formula. If one party needs alimony and the other party can afford it, alimony is going to happen. So be prepared to support two households after divorce if you are the breadwinner of the family.”

Divorce in Florida FAQ

A Florida divorce will range in cost depending on whether you represent yourself or hire an attorney. Excluding attorney’s fees, the court costs involved with filing a divorce petition in Florida is typically around $409, but may vary slightly by county. The average cost of a divorce in Florida is $13,500 without children, or $20,3000 with children.

In Florida, a marriage can be annulled if it is considered void or voidable. Void marriages are those that are considered invalid from the start — such as when one party is still married to someone else — while voidable marriages include those that were entered under duress or certain false pretenses.

As long as one or both parties have resided in Florida for at least six months prior, you can file for divorce in Florida at any point in your marriage. There is a waiting period of 20 days after filing before the divorce can proceed.

In order to file for divorce in Florida, you’ll need to submit a number of documents to the clerk of the civil court in your county of residence. These forms will vary depending on your situation (whether you have minor children, are requesting child support or alimony or have assets or debts to divide, among others), but all can be found on the Florida courts website.

Standard divorce filing forms include, but are not limited to, a petition for dissolution of marriage, marital settlement agreement, notice of Social Security number, petition for support and child custody affidavit.

An uncontested divorce means that both spouses agree to everything in the original marital dissolution petition, which could include agreements for child support, marital maintenance and division of assets. Essentially, this means that neither party is contesting any aspect of the divorce petition and the court does not need to rule on these factors. Uncontested divorces are typically finalized much faster than contested divorces.

Though recent data has found that divorce rates in Florida have been steadily trending downward, the state still has a higher-than-average incidence of divorce, compared to the national average. Currently, Florida has a divorce rate of 8.0%, while the national average is 7.7%.

The state of Florida does not recognize legal separation, and it is one of only six states with this policy. With that said, couples looking to divorce in Florida can still enter into a court-ordered separation agreement that accounts for items like child support and alimony, especially while they wait for the marital dissolution process to be complete.

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