Florida Law
Florida Family Law
- Family Law
Family Law
Family law touches most people at least once in their lives. When people reach adulthood, get married, have children, or dissolve a marriage, they should to be aware of how their legal status changes. The law concerning family issues is governed largely, if not exclusively, by the state. And each state has its own requirements for events like marriage and divorce. Consequently, it is important for Florida residents to be familiar with their rights and obligations under Florida law. It is also important, given the delicacy of the matters involved, that anyone with a family law problem choose his or her attorney carefully. In addition to being trustworthy and competent, the attorney should be someone with whom you feel comfortable discussing what are often emotional and difficult issues.
Marriage
Approximately 140,000 couples get married each year in Florida. While marriage may be many things, according to the law it is first and foremost a contract with rights and obligations. To enter into a marriage contract, a couple must file an application with a county court in any of the 67 counties in Florida. Persons applying must be at least 18 years of age. However, anyone under 18 years but over 16 years old can marry with the written consent of a parent or guardian, and anyone under 16 years can marry with the consent of the court.
Some states have a waiting period after applying for a marriage license. Florida does not. As soon as the marriage application is processed, the license can be issued by a county court. After receiving a marriage license, a couple must "solemnize" the marriage by undergoing some form of ceremony in which both persons state their agreement to marry. The ceremony can be presided over by any judicial official, clerk of court, notary public, religious official, or any other person who, according to the rules and customs of the state, may join persons together in marriage. Within 10 days of the ceremony, the presiding official must certify the marriage license and return it to the office from which it was issued.
Under Florida law, same-sex marriages are not recognized, nor are common law marriages, which are marriages entered into privately and not according to the procedure set by state law. Proxy marriages are also not recognized. A person must physically be present in order to be married.
Though it may be traditional for some, state law does not require a wife to take a husband's surname. If a wife wishes to take a husband's surname, she may do so without using the legal process. However, if a wife wants to take a name that is neither her birth name nor her husband's surname (e.g., a hyphenated name consisting of both the husband's and wife's surnames), she must file a name change petition with a circuit court. This is also true for a husband. If marriage means a name change for either spouse, it is important to notify the Florida Department of Highway Safety and Motor Vehicles, the nearest Social Security and voter registration offices, and the military reserve commanding officer (if applicable).
Rights and Obligations Within Marriage
Years ago, marriage was considered to create one legal entity controlled entirely by the husband. Florida, however, has followed the national trend in eliminating legal impediments once imposed upon married women. Today, each spouse has the right to own and control real and personal property, and to sue and be sued in his or her own name.
In terms of obligations, both spouses have a duty to support one another financially and provide necessities such as food, water, shelter, and clothing. Spouses who are parents have a similar duty toward their minor children. Parents are also required to provide their minor children with an education and can be held liable for any willful or malicious destruction or theft of property caused by their minor children.
Marital Agreements
Marital agreements are agreements between people either before they are married (pre-nuptial or ante-nuptial) or during marriage (post-nuptial) which pertain to the division of property, alimony, child support, or a child's religious upbringing should there be a divorce or should one parent die. Marital agreements are upheld by the courts if agreed to voluntarily and without any undue influence. One major difference between pre-nuptial and post-nuptial agreements, at least as they pertain to probate rights, is that there is no duty to disclose the extent of a person's estate in a pre-nuptial agreement, but full disclosure is required in a post-nuptial agreement. In other words, before marriage it is permissible for a person to conceal his or her net worth, but not during marriage.
Annulment of Marriage
Though often confused, annulment is different from divorce in that an annulment declares a marriage to be invalid. That is, there is something wrong with the marriage in terms of its formation. In the case of divorce, there is no problem with the marriage's formation; the spouses simply want to end a valid marriage.
There are a variety of reasons a marriage may be annulled. A marriage may be annulled if one of the parties is already married; if the parties are too closely related by blood; if one of the parties did not freely consent to the marriage or lacked the ability to consent; if the marriage was performed merely for the purpose of obtaining citizenship; if one or both of the parties were underage; or if one of the parties is incurably physically impotent (and the other party was without knowledge of this fact). In some cases, the defect can be remedied and the marriage saved. Underage parties, for instance, can validate their marriage simply by remaining together upon reaching the age of 18.
Marriages which are annulled are considered never to have existed. Therefore, it is generally not possible to receive any sort of alimony or property division settlement after an annulment. Courts try to place the parties in the same positions they were in before the invalid marriage.
Dissolution of Marriage (Divorce)
Florida courts oversee approximately 80,000 marriage dissolutions each year. Nationwide, that figure puts Florida behind only California and Texas in number of annual divorces. Though the number of divorces remains high, Florida has made an effort to reduce the level of animosity and blame typically associated with the divorce process by renaming some of the relevant terms. For example, a divorce is now a "dissolution"; child custody is "primary residential care"; and visitation is "contact." All of these terms will be used interchangeably throughout this chapter.
Like most states, Florida has what is known as no fault divorce. This means that parties do not have to prove some form of fault, such as infidelity or mental cruelty, in order to terminate a marriage. Under Florida's no fault law, termination is permissible if (1) the marriage is irretrievably broken; or (2) a spouse has been adjudged incompetent for at least three years. The vast majority of dissolutions are based on a marriage being irretrievably broken.
Florida provides two procedures for obtaining a divorce: regular and simplified. The regular dissolution procedure is often a more protracted process, requiring attorneys and providing a forum in which parties dispute issues like property distribution, alimony, and child custody. If the parties fail to agree on all of their post-divorce arrangements, a trial is held and a judge settles whatever disputes remain. The simplified dissolution procedure is designed for couples who have agreed upon the distribution of their property and do not have any minor children, nor is the wife pregnant. Often referred to as a "do-it-yourself" dissolution, the simplified procedure may not require the services of an attorney. The parties are responsible for filing all requisite documents and must appear together before a judge when the divorce is finally granted. To use either the regular or simplified dissolution procedure, at least one of the spouses must have resided in Florida for at least six months before the case is filed.
It is important to note that in a regular dissolution, each spouse has the right to examine and cross-examine the other as a witness and to obtain documents concerning the other's income, expenses, assets and liabilities before having a trial or settlement of the case. In a simplified divorce, financial information may be requested but does not have to be given. Moreover, in a simplified dissolution there is no trial, no right to appeal, and neither the husband nor wife can receive financial support from the other. Simplified dissolutions are venued in the county court while regular dissolutions take place in the circuit court. (See the sample petition for a simplified dissolution of marriage below.)
PETITION FOR SIMPLIFIED DISSOLUTION OF MARRIAGE
The petition of Husband and Wife shows:
- This is a petition for dissolution of marriage.
- The Husband and the Wife or one of them has been a resident of
Florida for at least 6 months immediately prior to filling this
petition.
- Husband and Wife were married to each other on ________________,
19__.
- The marriage between the parties is irretrievably broken.
- There are no minor children or dependent children of the parties
and the Wife is not pregnant.
- The parties have made provisions for the division of their property
and the payment of their joint obligations. They are satisfied
with those provisions. [If appropriate, the property settlement
agreement entered into by the parties and a financial affidavit
of each party can be attached.]
- The parties understand that they may have legal rights against
each other arising out of the marital relationship and that by
signing this petition they may be giving up those rights.
- Each party certifies that he/she has not been threatened or pressured
into signing this petition. Each understands that the result of
signing this petition may be a final dissolution of the marriage
with no further relief.
- The parties understand that they are required to appear before
the judge to testify as to the matters contained in this petition.
- The address of each party is stated below.
- The Wife wishes to have her former name restored to her.
(Yes ___ No ___) If "Yes," state Wife's former name: _____________________
WHEREFORE Husband and Wife ask the court to dissolve the marriage existing between them.
UNDER PENALTY OF PERJURY, WE CERTIFY THE FOREGOING FACTS ARE TRUE.________________ __________________
Wife's Signature Husband's Signature
________________ __________________
Wife's Address Husband's AddressSWORN TO AND SUBSCRIBED before me this ____ day of _______, 19__.
Clerk of the Circuit Court
By ______________________
Deputy Clerk
Division of Marital Property
If the divorcing parties fail to agree on how the marital property should be divided, a court has the authority to make an "equitable distribution." Marital property is defined as any assets or liabilities acquired during the marriage by the efforts of one or both parties. The name under which property is held is irrelevant. Property owned prior to a marriage is considered non-marital property, as are gifts to a spouse from persons outside the marriage, or property excluded from the marriage by a valid pre-nuptial or post-nuptial agreement. Non-marital property is not subject to an equitable distribution.
When determining how to distribute the marital property, the court can consider a number of factors, such as the economic circumstances of each party, the duration of the marriage, the contributions to the marriage made by each party, and any other factors necessary "to do equity and justice between the parties." There is no set manner by which a court divides the marital property and courts are given considerable discretion in their decision making, but the court must provide justification for any unequal distributions. Unlike alimony or child support, a marital property settlement is final and cannot be modified. It may, however, be overturned for fraud.
Alimony
Alimony is a support payment from one spouse to another based on need and ability to pay. Though traditionally paid by the husband to the wife, alimony is available to either spouse and can be paid in a variety of ways. Rehabilitative alimony is meant to assist a spouse in obtaining the education and training necessary to find employment and support him or herself. Payments are required only as long as is reasonably necessary to obtain the requisite education or training. However, the alimony award is modifiable upon petition to a court. Rehabilitative alimony may not be appropriate in certain cases, such as where the spouse is older or would likely have difficulty in locating suitable employment.
Permanent periodic alimony is paid regularly and meant to support a spouse who has neither the resources nor ability to be self-sustaining. It is usually awarded in cases where the marriage lasted a long time or the spouse is ill, older, or incapacitated. Absent an agreement to the contrary, permanent periodic alimony is usually paid until the spouse receiving the payments remarries or dies. However, should there be a change in either a spouse's need or the other's ability to pay, the alimony award can be modified. Lump sum alimony permits a spouse to make one single payment of either cash or, in some cases, real property. Despite its name, lump sum alimony can be paid over time if necessary. Some commentators view lump sum alimony as something of a legal anachronism, used by judges to impose a property settlement at a time when the law did not permit it. Today, however, with the doctrine of equitable distribution and the discretion given to judges in making property settlements, lump sum alimony may become less important.
Child Custody, Visitation and Support
If the parties do not agree on child custody, visitation or support, the court will make these decisions based upon the perceived "best interests of the child." Determining what is in a child's best interests, however, is frequently an exceedingly difficult task. Florida law currently prohibits favoring one spouse over another when determining primary residential care. It is also seeks to assure each parent full parental rights, frequent and continued contact with the child, and encourages parents to make all major decisions jointly and to share the responsibilities of child rearing.
The court will choose the primary residential environment based upon all relevant factors, including the emotional relationship between a parent and child, the moral fitness of a parent, the mental and physical health of a parent, the likelihood a parent would allow frequent contact with the non-residential parent, and the preference of the child (if the court deems the child capable of an intelligent choice). The non-residential parent has the right to reasonable contact with the child. If problems develop and the primary residential parent denies the non-residential parent contact, the court may award the non-residential parent additional contact time, award custody to the non-residential parent, or find the custodial parent in contempt of court (punishable by fines or imprisonment). Custody and visitation determinations are modifiable by the court based upon a substantial change of circumstances affecting the child's welfare. Grandparents also have a right to contact with the child if they petition the court and it is in the best interests of the child.
Florida has adopted statutory guidelines regarding the amount of child support a non-residential parent must pay a residential parent. The guidelines make determining child support a relatively simple procedure based upon the respective incomes of the parents. Child support must be paid as long as the child is a minor or continues to be either mentally or physically dependent. Any subsequent children the non-residential parent may have will not usually be considered for purposes of reducing the level of payment, but child support orders can be modified for any substantial change in circumstances affecting the supported child's welfare or the non-residential parent's ability to pay.
Family Mediation
Family mediation is a confidential and non-adversarial method of assisting people dealing with divorce and divorce-related issues. Unlike litigation, where the parties are in opposition and a judge decides the terms of a couple's dissolution, mediation is a collaborative process in which a mediator facilitates a resolution that both parties craft themselves. A mediator does not make any decisions for the parties, but only helps to clarify issues and raise alternatives. Any agreement that results from mediation is voluntarily agreed to by the parties.
Attorneys may or may not be involved in the mediative process, depending upon the wishes of the parties and the mediator. A judge may order mediation or the parties can voluntarily mediate at any time during the divorce process. Mediators generally charge an hourly rate and parties are encouraged to share the expenses. If successful, mediation can be significantly less expensive than litigation, in addition to less emotionally traumatic. (For more information on mediation, see the Alternative Dispute Resolution chapter.)
Adoption
Adoption is a legal procedure in which a child becomes part of an adoptive family for all purposes, including inheritance, and all legal ties with the birth parents are severed. Adults can also be adopted, but this chapter deals only with the adoption of children.
Who Can Adopt?
Florida permits the following persons to adopt: a husband and wife; an unmarried adult; the unmarried, minor, natural parent of the person to be adopted; a stepparent (with the consent of the spouse); or a stepparent without the consent of the spouse if the spouse is missing or incapacitated or unreasonably withholds consent. An adoptive parent(s) must be a Florida resident, employed in Florida, have sufficient income to support a family, and have appropriate housing. Handicapped persons are not restricted from adopting unless the handicap renders them unable to perform normal parental duties. Homosexuals are expressly prohibited from adopting under Florida law.
Who Must Consent to the Adoption?
The birth mother of a child must consent to the adoption. The consent must be given freely and without any fraud or coercion. The birth father of a child must also consent if any of the following elements apply:
- The child was conceived or born while the father was married to the mother
- The child was his by adoption
- The child was determined by the court to be his
- He has acknowledged his fatherhood in writing with the Florida Department of Health and Rehabilitative Services (HRS)
- He has provided the child with support in a repetitive manner
If the child is more than 12 years old, the child must consent. If the adoptee is an adult, the adult must consent, as must his or her spouse. In some cases, the court may excuse a person's consent if it is in the best interests of the child to do so.
Adoption Services
A person or couple can adopt a child through the HRS, private placement agencies, or private intermediaries (usually doctors or lawyers). Private agencies or intermediaries can place any type of child, but the HRS places only "special needs children," defined as children at least eight years old, emotionally or psychologically disabled, part of sibling group (to be adopted together), or racially difficult to place. All private agencies must obtain a license from the HRS to place adopted children. Intermediaries who are not licensed physicians or attorneys must also obtain HRS approval. The caliber of adoption services varies widely. It is important to ask questions and be certain that the agency or intermediary is reputable.
Procedure
Before a child is placed with an adoptive parent(s), an agency or intermediary will conduct a home study to assure that the child's best interests will be served. No child can be placed in an adoptive home until a home study has been successfully completed and approved by the HRS. All necessary consents must also be obtained before a child can be placed in an adoptive home. After a child is placed in an adoptive home, there may be periodic monitoring, depending upon the policies of the agency or intermediary.
Florida law strictly forbids any contracts for the sale of children. No amount of money other than adoption costs, fees, medical and living expenses (not to exceed six weeks after the birth of the child) can be paid to the birth mother. Florida also prohibits fees paid for finding a volunteer mother or matching her with prospective adoptive parents.
An adoption is finalized when a court, recognizing all requirements have been met, issues a Final Judgment of Adoption. At this point, the adoptive parent(s) assumes all parental rights, the child's name may be changed, a new birth certificate is prepared and the old birth certificate is sealed (made inaccessible to the public). For all legal purposes, the adopted child is a now a full member of the adoptive family.
Adoption Registry
The Bureau of Vital Statistics, which is a section of the HRS, maintains an Adoption Registry for the benefit of adopted children. A birth parent can elect to be listed on the Adoption Registry. When an adoptive child turns 18, he or she has the right to request any information pertaining to his or her natural parent(s) on the Adoption Registry. The information will not be released unless requested by the adopted child. A birth parent, however, has the right to rescind any earlier authorization to release personal information. If a birth parent never authorizes release of information or rescinds authorization, no information will be released.
Paternity
Paternity is the condition of being the birth father of a child. Paternity lawsuits are usually brought to obtain financial support for a child. Any woman who is pregnant or has a child, any man who has reason to believe he is the father of a child, or any child may bring a paternity action. Proving paternity is easily accomplished by blood tests. Once paternity is established, the duty to provide child support attaches. Florida law remains unclear as to whether a newly identified father is responsible for past child support.
Domestic Violence
Over 120,000 incidents of domestic violence were reported to the Florida Department of Law Enforcement in 1994. Nationwide, domestic violence affects three to four million families every year. Under Florida law, domestic violence is defined as "any assault, battery, sexual assault, sexual battery, or any criminal offense resulting in physical injury or death" of a household member by another person who was or is also living in the same household. The Florida legislature has adopted a pro-prosecution policy regarding domestic violence. It has mandated that domestic violence is to be treated as a criminal act rather than a private matter, and has directed the Florida Attorney General's Office to maintain special units for the investigation and prosecution of domestic violence cases.
When anyone claims to have been a victim of domestic violence, a law enforcement officer is sent to investigate the incident. In addition to helping the victim obtain medical treatment if necessary, the officer must inform the victim of the nearest domestic abuse center and apprise the victim of his or her legal rights. The officer will give the victim a standard form containing the following information:
"IF YOU ARE THE VICTIM OF DOMESTIC VIOLENCE, you may ask the state attorney to file a criminal complaint. You also have the right to go to court and file a petition requesting an injunction for protection from domestic violence which may include, but need not be limited to, provisions which restrain the abuser from further acts of abuse; direct the abuser to leave your household; prevent the abuser from entering your residence, school, business, or place of employment; award you custody of your minor child or children; and direct the abuser to pay support to you and the minor children if the abuser has a legal obligation to do so."
Whether or not an arrest is made, when a law enforcement officer investigates an incident claimed to involve domestic violence, the officer is required to make a police report. Within 24 hours of receipt of the report, the officer's supervisor is required by law to send a copy of the report to the nearest domestic violence center for record keeping purposes. The Florida Coalition Against Domestic Violence as well as other domestic violence centers maintain 24-hour hotlines for persons in domestic violence situations (see the Resources section below for more information).
Child Abuse
The Florida legislature has created laws providing for comprehensive protective services for abused or neglected children. These laws not only require reporting of known or suspected child abuse, but grant the HRS the power and authority to investigate all child abuse incidents. If there is sufficient evidence, persons who abuse or neglect children may be prosecuted. Under Florida law, child abuse is defined as "harm or threatened harm to a child's physical or mental health or welfare by the acts or omissions of a parent, adult household member, or other person responsible for the child's welfare. . . ."
Any person who knows or has reason to suspect child abuse has a duty to report that abuse to the HRS. This duty is particularly applicable to persons in the medical and mental health fields, school teachers, social workers, day care workers, foster care workers, or law enforcement officers. It is a second degree misdemeanor to willfully not report a case of known or suspected child abuse, or to prevent someone else from reporting.
Persons who, for religious reasons, do not believe in medical treatment should be aware they may be exposing themselves to criminal liability by denying a child medical care. In a recent case, the parents of a Florida child who died after the parents chose to continue spiritual treatment in lieu of medical care were convicted of felony child abuse and third degree murder.
Resources
The Florida Bar publishes pamphlets on marriage, divorce, shared parenting after divorce, family mediation, and adoption. To obtain one or more of these pamphlets, call The Florida Bar at (904) 561-5834.
Forms for a Simplified Dissolution of Marriage can be obtained by calling the Clerk of Court Office of any circuit court.
More information about adoption in Florida can be obtained by calling the Florida Adoption Exchange at (904) 487-2383 or the Adoption Information Center at (800) 96-ADOPT or (904) 359-6169.
The Florida Coalition Against Domestic Violence maintains a 24-hour toll-free hotline for domestic violence counseling and information. The number is (800) 500-1119.
The Florida Department of Health and Rehabilitative Services (HRS) maintains a child abuse registry and tracking system for purposes of documenting any report of known or suspected child abuse. All records concerning reports of child abuse are kept confidential. The child abuse hotline can be reached at (800) 96-ABUSE.