DIVORCE IN FLORIDA
RESIDENCY REQUIREMENTS: One of the parties to the marriage must reside for at least six months in the
state before the filing of the petition. The divorce petition can be filed in the county in which either or both spouses reside.
GROUNDS
FOR DIVORCE: The grounds for divorce in Florida are: 1). Irretrievable breakdown of the marriage or 2). Mental incapacity
of one of the spouses. There are NO fault grounds for divorce in Florida. Florida does NOT require that the spouses live
apart for any specific period of time before a divorce is filed.
HOW DO COURTS IN FLORIDA DECIDE HOW TO DIVIDE UP MARITAL PROPERTY: It is important to understand that, in the vast majority of cases in Florida, the parties themselves decide how to divide up their
property--a Judge does not decide these matters. Parties in Florida are fully capable of making a contract between themselves to settle
their personal and property rights in the event of a divorce. This agreement is usually called a Separation and Property Settlement
Agreement. Except in a very unusual circumstance--such as a claim of fraud or duress in the negotiation or signing of the agreement--this
Agreement is fully binding upon both parties in the event of a divorce and in most cases is incorporated unchanged into the parties'
final divorce decree. However, in the event that the parties are unable to agree upon a division of their property rights, either
just between themselves or with the aid of attorneys representing each party, there must be a procedure whereby the Court can determine
how to divide up parties' property.
Florida is what is called an "equitable distribution" state. What that means is that, in determining
how to divide marital property, a Florida Court is required to determine what is "equitable" or "fair"--but not necessarily what is
"equal", as between the parties. Florida judges are required to start out with the assumption that all marital property should be
divided equally. However, there are a number of factors in the statute which the Court can use in deciding to award an UN even
division of propty. Some states have what is called "community property", which, in a very simplified manner, means that everything
that belongs half to one spouse automatically belongs one half to the other spouse. That is not the case in Florida.
The first task that a Judge must undertake in deciding how to divide the assets of a marriage is to determine which property is "separate" and which property is "marital". However, determination of what belongs to each spouse is not controlled by whose name is on the title. For example, just because a house or a car is titled only in the name of the Husband or the Wife does not mean that the other party has no interest in that property. In general, "separate" property is all property (real or personal) acquired by either party before the marriage OR any property acquired by bequest, devise or gift from a source OTHER than the other party. Marital property is basically everything else.
