no-fault-divorce

It used to be that you needed a reason to file for a divorce in any state; typical reasons include extra-marital affairs, abuse of spouse and/or children, drug addiction, or criminal activities. While each of those situations likely merit a divorce, Florida is a no-fault divorce state which means you can ask for a divorce without coming up with a reason other than stating the marriage to be “irretrievably broken” (also known as “irreconcilable differences”).

No-Fault Divorce vs. Traditional (At Fault) Divorce

Before the establishment of no-fault divorces, the spouse filing for divorce needed to have a valid reason for requesting the breakup. Sometimes the reason would be the safety of the spouse and children (in the event of an abuser) but more often the reason was a moral issue, the most popular being a spouse having a love affair while married. When one spouse has been hurt by the actions of the other spouse, be it emotional, mental, or physical, it is not surprising that the injured spouse would seek extra compensation for their suffering.

In many at-fault divorce situations, accusations are flung, creating even more upsetting feelings and episodes that interfere with determining the splitting of assets and structuring of alimony and/or child support payments. A no-fault divorce shifts the focus from “unacceptable behavior and acts” towards the more important objectives of resolving financial matters and child custody concerns fairly for both parties and to the benefit of the children.

Alimony and Child Support In a No-Fault Divorce

It must be understood that no-fault does not equal no financial obligation. In most cases, child support will be required from one spouse and even alimony may be determined in a no-fault divorce in Florida; it entirely depends on each family’s unique situation.

For example, one spouse may elect to stay at home and raise the children while the other spouse enters the workforce to support the family financially. In this case, the stay-at-home spouse has sacrificed their opportunity to build their own career during those child-raising years; this can be a substantial period of time, easily 20 years or longer for a family with more than one child. In such a scenario, alimony could be paid to the stay-at-home spouse.

Regardless of the earning power of each spouse, all earnings by both spouses during the marriage is considered equally owned by both spouses; likewise, all assets acquired during the marriage is jointly owned, even if the title is in the name of only one spouse. The courts take these factors into account when determining alimony and child support payments as well as the sharing of marital assets.

Filing a No-Fault Divorce in Florida

To initiate a no-fault divorce in Florida, the party must file a Petition for Dissolution of Marriage. However, there are multiple forms from which to choose, depending upon the filing party’s marital situation; a few divorces will qualify for the simplified dissolution of marriage, while most other petitions will use one of the three standard dissolution of marriage petitions.

Petition for Simplified Dissolution of Marriage

As already mentioned, the Petition for Simplified Dissolution of Marriage is rarely used because both spouses must meet all of the below qualifications:

  • Both spouses agree that the marriage is irretrievably broken,
  • There are no children between the spouses, nor is the wife pregnant or had minor or dependent children born during the marriage,
  • Both spouses have satisfactorily agreed on the splitting of assets and liabilities,
  • Neither spouse is seeking alimony from the other,
  • Both spouses forfeit their right to trial and appeal,
  • Both spouses agree to sign the petition in the clerk’s office (though not required to appear together), and
  • Both spouses agree to appear together for the final hearing.

The Simplified Dissolution of Marriage works in those rare cases when both spouses are willing to work amicably on the divorce, while also not having any children between them and are able to divide assets and liabilities to each other’s satisfaction.

Petition for Dissolution of Marriage

The petitioner for a normal dissolution of marriage must choose between one of the three forms listed below:

Note that the last two petitions can be used instead of the simplified form when spouses cannot agree on splitting property or one spouse is seeking alimony from the other. In no situation can the simplified form be used when there are minor children from the marriage.

When an Affair Can Affect the Divorce Proceedings

While it was earlier stated that unacceptable behavior and acts are not grounds for awarding a higher financial settlement to the wronged spouse, there are circumstances when the courts will make adjustments to the financial settlement due to an ongoing love affair. Specifically, if a spouse is having an extramarital affair and uses personal funds to entertain, gift, and support their lover (and such expenditures can be documented), the courts will consider such transactions as being taken from the marital assets and will make adjustments accordingly.

While rarer, an extramarital affair could be grounds for the wayward spouse to lose custody or even visitation rights of their children. Although Florida laws do not punish a parent for “bad behavior,” there are situations where a parent’s lack of moral fitness could cause them to lose rights to share in raising their children.

A Case of Moral Unfitness

The following example illustrates a case of moral unfitness…

Sam has been married to Mary for 15 years; they have 3 children together. Sam found a new girlfriend, a stripper 20 years younger than him. His behavior and attitudes changed dramatically after starting this affair; he began buying and using drugs with her, as well as staying out all night. Mary later found texts on Sam’s phone to and from the girlfriend and consequently filed for a no-fault divorce.

Both parties agreed that the marriage was over, so they discussed shared parenting responsibilities. Sam wanted a 50/50 parental time-sharing agreement, to which Mary agreed. However, it turned out that Sam would hire a sitter for the kids and spend the night with his girlfriend, partying it up heavily. He would return in the mornings to get the kids off to school but was too exhausted to make them lunches or check to see if their homework was done. Mary soon received a concerned call from the school, saying the kids were often late, usually hungry and unkempt, and forgetting their homework.

Mary called her divorce attorney who is skilled and knowledgeable in divorce law; he advised her to seek full parental responsibility (sole custody) of the children and to nullify the parental time-sharing agreement. Upon review, the judge determined that Sam was morally unfit to enjoy visitation rights or to make decisions concerning the children and granted Mary sole custody.

Fortunately for Sam, one month later he realized that he was throwing away his life and relationship with his kids. He broke up with his girlfriend, went into rehab, and got back on track. After he was back on his feet, he asked Mary to reconsider their original arrangement, promising to take regular drug tests and stay home with the kids whenever they were with him.

In this instance, there were two actions by Sam that impacted the splitting of assets and sharing responsibilities of raising their children; spending marital funds on his girlfriend, and being negligent in the care of his children. Fortunately, the financial matter was easy to solve; it took Sam losing visitation rights to straighten up his life, which he did, earning back visitation rights and ultimately shared responsibility in raising the children.

While all married couples have the option of trying to file a petition on their own and finalize their divorce without legal counsel, there are too many nuances and unique concerns to face on one’s own; without a qualified divorce attorney on your side, the potential for errors and an unsatisfactory settlement of assets are too high to risk. Furthermore, when there are minor children involved there is even more reason to obtain advice and guidance from an expert and knowledgeable divorce attorney.

Finally, the right divorce attorney will work to keep emotions to a minimum and to expedite the process to reduce stress. At Florida Law Advisers, we pride ourselves on our ability to focus on legal matters while also remaining sensitive to the needs of the divorcing spouse. We have experienced many different scenarios, both amicable and very unfriendly, and know-how to wade through the turmoil and keep our clients focused on the final result: a clean and final divorce with a fair settlement for our client. Contact us today and learn how we can help you through this most difficult period of life.

Frequently Asked Questions

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