Legal Separation in Florida

Florida law does not formally provide for a legal separation (unlike the laws of most other states). However, if spouses are residing apart, one spouse generally may petition a court to adjudicate many of the same issues that the court would determine in an action for dissolution of marriage (for example, property division, alimony, child support, child custody, and visitation). Couples may generally also enter into a “marital settlement agreement.” Such an agreement should be drafted by an attorney. It is always best to consult an attorney when dealing with legal issues related to divorce and separation.

Initial considerations for Divorce in Florida

To file for divorce in Florida, at least one of the spouses must reside in the state for six months prior to filing. The dissolution of marriage must be filed in the Circuit Court of the County in which one of the parties resides. The Circuit Court has jurisdiction over matters of divorce including child support, custody, and property division.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. Florida recognizes two reasons for divorce: (1) that the marriage is “irretrievably broken,” and (2) that one of the parties is mentally incapacitated. The first reason is much more commonly used.

Division of Property

How is property divided in a divorce?

Everything a husband and wife own (whether individually or commonly) is divided into one of two categories under Florida law: (1) marital assets and liabilities, and (2) non-marital assets and liabilities. An asset is defined as money or property that is owned. A liability simply refers to money owed (a debt).

If property is determined to be a “nonmarital asset” it is kept by whichever spouse it belongs to. If a debt is determined to be a “nonmarital liability” it is up to the spouse that incurred the debt to pay it off.

If property is determined to be a “marital asset” it is said to be “distributed equitably.” Notice that Florida law does not say that marital assets should be distributed “equally.” Instead, the term “equitable” is used. This term essentially means that assets are distributed according to what is deemed to be fair, just, or right. While Florida courts do begin with the premise that the distribution of marital property should be equal, it does not necessarily mean that the actual outcome will be an equal or 50/50 distribution.

In order to determine what is “equitable,” there are ten factors that Florida courts consider. These include the economic circumstances of the parties, the contribution to the marriage by each spouse (including contributions to the care and education of the children and services as homemaker), and any factors necessary to do equity and justice to the two parties.

What constitutes a nonmarital asset or liability?

A non-marital asset or liability is one that is not a marital asset or liability (see the definitions for those terms below), as well as assets acquired by either spouse before the marriage.

What constitutes a marital asset or liability?

The definition of a “marital asset” and “marital liability” is complicated under Florida law. It includes several categories of assets and liabilities (debts). Some are simple to understand, while others are more complicated. For this reason, it is best to consult an attorney to determine if specific property might constitute a marital asset or liability.

In brief, Florida law defines a “marital asset” or “marital liability” to be any of the following:

• • An asset or liability incurred during the marriage (either by one spouse or by both spouses together);
• • An increase in value of a “nonmarital asset” either from the efforts of one of the spouses during the marriage or from such an increase in value of “nonmarital assets” due to the Contribution to or expenditure thereon of marital funds or other forms of marital assets, or both;
• • Gifts from one spouse to the other during the marriage (called “interspousal gifts”);
• • All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs; and
• • All real property (real estate) that is held by the spouses in a form of ownership called “tenancy by the entirety,” whether or not that real property was acquired prior to the marriage or during the marriage itself.

Alimony in Florida

Alimony (also referred to as maintenance or spousal support) is the court-ordered financial support of one spouse by the other spouse as part of a legal separation or a divorce (in Florida, a divorce is technically referred to as a “dissolution of marriage”).

The laws of Florida governing alimony are generally contained in Chapter 61 of the Florida Statutes (a link here). Section 61.08 is a good place to start for information about alimony (a link here).

It is a good idea to read the statutes carefully and to consult an attorney to determine the laws’ application in your particular situation.

Factors Affecting the Amount and Duration of Alimony in Florida

In Florida, alimony is not mandatory in a divorce or legal separation. A court may decide not to grant alimony or to limit the amount and duration of alimony depending on the ability of both parties to provide for their own needs.

A court may grant alimony to either party in a proceeding for dissolution of marriage.
There are different types of alimony in Florida. A few of these are:

• • Temporary alimony: This may be awarded while a proceeding for dissolution of marriage is pending.
• • Permanent alimony: More commonly awarded in cases of long-term marriages. Its purpose is so that both spouses can maintain the standard of living set forth in the marriage (or as close to it as possible).
• • Rehabilitative alimony: This may be awarded to the more financially-needy spouse to assist in adjusting to a new life and to aid in obtaining new skills and education.
• • Lump sum alimony: This may be awarded in lieu of permanent alimony. It often represents the amount of money owned from one spouse to another after the sale or division of property pursuant to a dissolution of marriage. Note that a court may award both a lump sum alimony payment and periodic alimony payments in some situations.

In determining whether to award alimony or the amount of alimony, a court may consider the adultery of either spouse, as well as the circumstances surrounding the adultery.

A court must consider a variety of economic factors when determining whether to grant alimony and in determining the amount and duration of alimony. These are set forth in Florida Statute 61.08. The factors include:

• • The standard of living established during the marriage.
• • The duration of the marriage.
• • The age and the physical and emotional condition of each party.
• • The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
• • When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
• • The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
• • All sources of income available to either party.

In determining whether to award alimony or the amount of alimony, a court may also consider the adultery of either spouse, as well as the circumstances surrounding the adultery.

The court may also consider any other factor necessary “to do equity and justice between the parties.”

As you can see, the law is complex. This explanation is intended only as a basic overview. It is always best to read the actual statutes carefully (see the links above) and to consult an attorney to determine the law in your particular situation.

Modifying or Terminating Orders for Spousal Support in Florida

A court may increase or decrease the amount of money paid as alimony if either spouse requests it from a court. It is generally required that a court determine that there has been a “substantial change in circumstances.” This is typically based on the financial circumstances and incomes of the parties and the parties’ access to alternative financial sources.

When do Alimony Payments End?

In general, permanent alimony terminates when either party dies or when the recipient remarries. In certain circumstances, Florida law also permits the termination of alimony payments where the recipient is cohabitating with a person to whom he or she is not married and in a supportive relationship with that person (see Florida Statute 61.14 for more information).

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.