Divorce Laws in Florida: What You Need to Know - SmartAsset (2022)

Divorce Laws in Florida: What You Need to Know - SmartAsset (1)

Newlyweds usually think that their love is going to last a lifetime. Unfortunately, that isn’t always true. Data shows that some unions end in divorce. This is obviously difficult on an emotional level, but it can also cause legal and financial troubles.If you live in Florida, SmartAsset’s guide will take you through what you need to know about ending a marriage in the Sunshine State. You’ll learn how to handle everything from your retirement plan to child support so that your divorce doesn’t cause any more issues than it needs to. Working with a financial advisor can also make a divorce easier by helping you create a financial plan for your needs and goals.

How to File for Divorce in Florida

Eligibility

To file for divorce in Florida, one of the two parties to the divorce must have lived in the state for at least six months before filing with the court. One exception to this is if you are a member of the military who lives in Florida but is currently stationed outside of the state. The divorce filing must be made in the county in Florida where either of the two parties to the divorce resides.

Grounds for Divorce in Florida

Florida is a no-fault divorce state. The only reason that you have to give for filing for divorce is that your marriage is irretrievably broken. In other words, you must show that your relationship is over and you cannot repair it.Additionally, a spouse being mentally incapacitated for three years is also grounds for divorce in Florida.

Process to Divorce

If you meet the residency requirements for a divorce in Florida, you can move forward with filing in the courts. One of the two parties to the divorce will need to file a form called the Petition for the Dissolution of Marriage. The spouse who files the form is the petitioner, and the other spouse is the respondent.

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After the form is filed, the petitioner must give a copy to the respondent. This is known as serving the divorce papers. If your spouse agrees to the divorce, he or she can accept the service of the papers. The spouse will then need to fill out and file a different form called an Answer and Waiver of Service, which must be signed and notarized before it is filed.

Matters may become more complicated if your spouse will not accept the service of the divorce papers. In this case, you can get the sheriff from the county in which your spouse resides to serve the papers to your spouse. If you don’t know your spouse’s current location, you can serve them with what is known as a constructive service. This is done by paying to place an ad in a local newspaper (assuming you can find one in the area where your spouse lives) to alert your spouse that you are serving them with divorce.

Within 45 days of filing your petition, Florida requires you to turn over a signed financial affidavit. This involves disclosing information about your finances, including:

  • Income
  • Assets
  • Debts
  • Tax returns
  • Bank statements
  • Credit card statements
  • Personal financial statements

Mediation may be ordered after you file for divorce. During this process, a third party will attempt to help you and your spouse come to a divorce agreement without involving the court. If this doesn’t work, you’ll go to trial. Each side will present evidence and call witnesses, and a judge will make the final decision on all contested issues.

Some divorces may be eligible for a simplified dissolution of marriage. This option does not require a financial disclosure and attorneys may not be necessary. To qualify for a simplified dissolution of marriage, you must meet the following criteria:

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  • Both parties agree to the simplified dissolution of marriage
  • You and your spouse have no minor or dependent children, including adopted children under the age of 18
  • Neither spouse is pregnant
  • At least one partner has resided in Florida for six months
  • Both parties agree on how to divide all property and debts
  • Neither party is seeking alimony
  • Spouses agree the marriage cannot be saved

How to Split Up Assets During a Divorce in Florida

Divorce Laws in Florida: What You Need to Know - SmartAsset (2)

During a divorce proceeding in Florida, the court only divides marital assets and debts. For the purposes of a Florida divorce, the court considers any assets or debts acquired during the marriage by either party as marital assets.

The court does not divide separate assets, defined as property and money owned by only one of the spouses. Non-marital assets include anything that either spouse obtained before the marriage or anything that either spouse received as a gift or inheritance during the marriage. This does not include gifts between spouses. Adding your spouse to the title of an item such as a car makes it marital property.

How to Divide Property in Florida After Divorce

Once the couple decides what is and isn’t marital property, they must actually divide their property. First, the court assesses the value of non-monetary property. The court will work with the couple to determine the value of their property. Experts like appraisers or certified public accountants (CPA) may be consulted to determine property value.

The court divides the spouses’ property after assessing its value. In Florida, property must have an equitable distribution. This doesn’t necessarily mean that the court will split a couple’s property down the middle though. The court may consider the following factors when making its decisions regarding property distribution:

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  • Each spouse’s contributions to the marriage, including childcare and homemaking
  • Economic circumstances of both spouses
  • Length of the marriage
  • Interruption of career or education of either party
  • If one spouse helped the other to advance his or her career or education
  • Desirability of obtaining a specific asset, including for business reasons
  • How each spouse contributed to obtaining their assets
  • Whether it’s necessary for either spouse to stay in the family home for children
  • Any intentional wasting of assets during the two years prior to filing for divorce (this includes spending large amounts of money on a person with whom one spouse committed adultery)

How to Manage Child Support and Alimony Under Florida Divorce Laws

In Florida, the court can order the non-custodial parent to pay child support to the ex-spouse. The court may consider the following factors when calculating child support:

  • Expenses
  • Parent’s ability to pay
  • Needs of the child
  • Number of children to support

The court may also take into account the behavior of the spouses during the marriage, including incidents of adultery.

Additionally, the court may also order one spouse to pay alimony, also called spousal support. Factors taken into account when calculating alimony include:

  • Standard of living during marriage
  • Length of marriage
  • Age and health of spouses
  • Financial resources of both parties
  • Earning capacity and education of both parties
  • Contribution of each spouse to the marriage, including financial contributions
  • Tax treatment of both parties
  • Both parties’ parenting responsibilities
  • All income sources
  • Spouses’ behavior, including adultery

Remember that you’ll need to take both alimony and child support payments into consideration when filing taxes after divorce. You can deduct alimony payments that you make from your gross income, but you can’t deduct child support payments. While alimony payments you receive count as income, child support payments you receive do not.

401(k) and IRA and Divorce in Florida

In Florida, the court considers any money that either spouse puts into a retirement plan, like a 401(k) or an IRA, as marital property. Thus, the court splits up retirement plans the same way it divides other marital assets.

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One important thing to note is that the court only considers retirement or pension funds accrued during the marriage as marital property. Any money that either spouse deposited or earned before the marriage or after the divorce is separate property. Separate property is not subject to the court’s division process for marital property.

After the judge makes a ruling, you must submit a Qualified Domestic Relations Order to the plan administrator explaining how you’re dividing your retirement plan.

Divorce and Estate Planning in Florida

Divorce Laws in Florida: What You Need to Know - SmartAsset (3)

Divorce is already a not-so-fun topic, so it’s understandable if you’re not eager to add estate planning to the mix. Planning your estate becomes even more important when you go through a divorce though. If you get a divorce in Florida, the state will revoke any wishes stated in a will written during your marriage to leave property or assets to your spouse. For this reason, you’ll need to revise your will once your divorce is finalized to re-designate your heirs.

You’ll also want to take this time to work with your soon-to-be ex to determine who will take care of your children if something were to happen to both of you. Any decisions that you’d made during your marriage may no longer be applicable, so it’s important to revisit your plan.

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Bottom Line

Florida is a no-fault state when it comes to divorce. This means that you don’t have to give any reason to the court for why you want to end your marriage, other than that you want it to be over. The court divides all marital property in a way that it deems fair. This won’t necessarily result in a 50/50 split of all marital property. Though fault isn’t needed to a get a divorce in Florida, the court will consider misconduct like adultery when dividing property and determining alimony payments.

Financial Planning Tips

  • If you’re getting a divorce, you may want to consider finding a financial advisor to guide you through the process. SmartAsset’s free tool matches you with up to three financial advisorswho serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • A prenuptial agreement or a postnuptial agreement might be a good idea if you are still at the beginning of your marital relationship. These legal contracts can make matters easier down the road if your marriage doesn’t go as planned.

Photo credit: ©iStock.com/selensergen, ©iStock.com/Zolnierek, ©iStock.com/Korrawin

Ben Geier, CEPF® Ben Geier is an experienced financial writer currently serving as a retirement and investing expert at SmartAsset. His work has appeared on Fortune, Mic.com and CNNMoney. Ben is a graduate of Northwestern University and a part-time student at the City University of New York Graduate Center. He is a member of the Society for Advancing Business Editing and Writing and a Certified Educator in Personal Finance (CEPF®). When he isn’t helping people understand their finances, Ben likes watching hockey, listening to music and experimenting in the kitchen. Originally from Alexandria, VA, he now lives in Brooklyn with his wife.

FAQs

What assets are protected in a divorce in Florida? ›

Under Florida divorce law, marital property is subject to equitable distribution. Marital property includes almost anything acquired during the marriage, including the savings from one spouse. Therefore, you should contact a lawyer for advice on how to save your money.

Can I get half of my husband's pension in a divorce Florida? ›

In Florida, any property acquired during marriage, including a pension or 401(k) plan, needs to be split equitably between you and your spouse.

Can my wife take half my pension if we divorce? ›

Can My Spouse Take Half My Pension If We Divorce? Generally, your spouse is entitled to half of the earnings generated during the marriage; however, each state's law will determine the outcome. Some states are equitable distribution states, though this does not always mean a 50/50 split.

How is property divided in a Florida divorce? ›

The General Property Rule

In Florida, property is divided 50-50 if it is considered “marital property” – or property that was acquired by either spouse during the marriage. Non-marital property, which is property either spouse acquired before the marriage, is not divided equally.

Who gets the house in a divorce in FL? ›

How is property divided in a divorce? Under Florida divorce law, all marital property is subject to equitable distribution. Typically, the court will divide marital property 50/50, unless there are reasons why an equal split would be inequitable (unfair).

Is Florida an alimony state? ›

Yes, Florida is a state where one may be required to pay alimony. Florida is one of the few states that offers bridge-the-gap alimony, which helps the oblige/recipient spouse meeting legitimate short-term needs while transitioning from married life to single life.

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