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No Fault Divorce

Below is a list of commonly asked questions that Palm Beach Divorce Lawyers receive about divorce in Florida. Clicking the question will provide you with a detailed answer.

Common Divorce Attorney Questions

  • Marital misconduct may be brought to the judge’s attention either in the petition for dissolution of marriage or as an affirmative defense. When within the petition for dissolution of marriage, the marital misconduct should be included in the paragraph stating the marriage is irretrievably broken. After professional and ethical consideration, and assuming there is admissible evidence to support the claim, the accused spouse should be notified. If used as an affirmative defense, marital misconduct should be raised as a claim for alimony and equitable distribution awards.

  • According to F.S. 61.16 each party should have access to “similar ability to secure competent legal counsel.” In agreement with this statute, fault has usually not been a deciding factor in the court’s decision to sustain or deny attorney’s fees. Despite this, recent cases have brought about alternative elements for sustaining or denying attorney’s fees. The court will analyze how the litigation is handled by each party and use this as a factor for determining legal fees. If it is apparent that one party is inducing unnecessary litigation, the court may consider this conduct while awarding attorney’s fees.

  • When determining parental responsibility, F.S. 61.13 states that the “moral fitness of the parents” should be investigated and considered. The most important aspect of the parent’s moral fitness is whether or not it has a negative impact on the child. Marital misconduct alone is not grounds to influence the court’s decision on parental responsibility. It must be shown that said conduct has been detrimental to the child. In other words, there must be a nexus between the immoral conduct and resulting detrimental impact on the child in most in most instances. F.S. 61.13 also indicates that if a parent has been convicted of a third degree felony or higher involving domestic violence there is a “rebuttable presumption of detriment to the child.” Any evidence of domestic violence or child abuse will be a factor in the court’s decision.

  • F.S. 61.08 provides that fault or misconduct is not considered as a factor in equitable distribution unless said misconduct is “intentional dissipation, waste, depletion, or destruction of marital assets.” Normal day to day expenditures, unintentional loss on investments, and other substantial expenditures do not meet these qualifications. In order to classify waste as intentional dissipation, one spouse must intentionally use marital funds for his/her benefit for a reason unconnected to the marriage. If this is the case, the misconduct may be considered by the court and lead to an unequal division of marital assets.

  • The primary element in the court’s decision regarding alimony awards is financial need and ability to pay. Therefore, cohabitation and/or remarriage alone is not grounds to terminate or modify an alimony arrangement. However, F.S. 61.14 now grants the court the ability to adjust or terminate the alimony award if it is evident that the party receiving alimony has entered into a “supportive relationship” since the dissolution. Rehabilitative alimony payments are treated slightly different. Since the goal of rehabilitative alimony is to support and rehabilitate, only the amount for support is subject to modification.

  • Temporary alimony is also based upon the financial need of the petitioning spouse and the ability to pay of the other spouse. However, marital misconduct will be considered in determining an award of temporary alimony if said misconduct reflects a lack of dependence from the petitioning spouse. Abandonment of the marriage is an example of misconduct that shows a lack of dependence. If the party seeking alimony has left his/her spouse and shows no need for financial support, the court may consider this while awarding alimony.

  • The court can award alimony as periodic, lump sum, or some combination of the two. Often times, when there is an issue of marital misconduct the court will order a lump sum payment. The reason being the court wants to sever all ties between the two parties. Having periodic payment of alimony requires more contact between spouses, which in many cases can lead to further problems or litigation.

  • Physical abuse is treated in a similar manner as adultery when it comes to monetary awards. Alimony is not granted or denied on the basis of punishing one party for an act of physical abuse. However, physical abuse can have an impact on the amount of alimony awarded. The party who physically abuses his/her spouse should be required to pay any medical bills resulting from said abuse, as well as provide assistance during the abused spouse’s recovery time.

  • Under F.S. 61.08, the only “fault” explicitly mentioned as a component for determining alimony is adultery. However, adultery is not the primary deciding factor and offers no guarantees. The statute rather allows the court to use discretion when considering adultery and establishing whether a monetary award should be granted and the amount of said award. Alimony cannot be awarded or withheld simply on the basis of punishing an adulterous spouse. The Florida Supreme Court ruled “the primary standards used in fashioning an equitable alimony award are the needs of one spouse and the ability of the other to pay” Noah v. Noah, 491 So.2d 1124, 1127 (Fla. 1986). In order for adultery to be considered, the misconduct must have lead to depletion of marital property. The unfaithfulness of either spouse does not take precedence over financial need and ability to pay.

  • Sexual relations by the parties taking place throughout the dissolution proceedings is not alone grounds to deny the dissolution. However, some judges in Palm Beach County divorce cases will unilaterally dismiss a divorce case if the parties have become intimate during the proceedings. There are some defenses to a dissolution left open from F.S. 61.044 including: the parties are not married, the marriage is not broken, the party alleged to be mentally incapacitated is not so or has not been incapacitated for at least three years, or the court lacks jurisdiction to grant a dissolution.

  • Under F.S. 61.052, mental incapacity of a spouse is the only other basis for divorce. In order to qualify as “mentally incapacitated,” a person must meet the criteria stated in F.S. 744.331 for a minimum of three years. If these conditions are met, mental incapacity must be the basis for the divorce. In order to maintain due process of the law, F.S. 61.052 illustrates strict provisions described below.
    “Notice of the proceeding for dissolution shall be served upon one of the nearest blood relatives or guardian of the incapacitated person, and the relative or guardian shall be entitled to appear and to be heard upon the issues.”
    “If the incapacitated party has a general guardian other than the party bringing the proceeding, the petition and summons shall be served upon the incapacitated party and the guardian; and the guardian shall defend and protect the interests of the incapacitated party.”
    “If the incapacitated party has no guardian other than the party bringing the proceeding, the court shall appoint a guardian ad litem to defend and protect the interests of the incapacitated party.”
    ” In all Dissolutions of marriage granted on the basis of incapacity, the court may require the petitioner to pay alimony pursuant to the provisions of s. 61.08.”
    If there is adequate evidence supporting the need for a divorce, the guardian may begin dissolution proceedings on behalf of the incapacitated.

  • There are circumstances in which the judge may order both parties to attend marriage counseling classes. Most often, it is a result of one party denying that the marriage is broken or when there are minor children involved. It is not mandatory for the court to require counseling classes when the marriage meets these conditions. Many judges will not require counseling if one party is adamantly against it, for if they do not approach the classes with the right attitude, its efforts could be useless. In the case of having minor children, the judge may order counseling with the purpose of informing the parents on how to make the process less damaging to the children. In Palm Beach County practice, orders requiring parents to a counseling session are rare.

  • The most common basis for seeking a divorce in Florida is that the marriage is irretrievably broken. In order to claim this as the grounds for the divorce, the court must reach the conclusion that “for whatever reason or cause the marriage relationships for all intents and purposes ended, no longer viable, a hollow sham beyond hope of reconciliation or repair” Ryan v. Ryan, 277 So.2d 266,271
    Florida divorce law does not require both parties to agree that the marriage is irretrievably broken. It is the court’s decision that if one party has made the decision to end the marriage it may be said that the relationship is broken.
    Although Florida does not require proof of “fault,” the judge still must be presented with factual evidence that the marriage is “irretrievably broken.” A simple agreement by the parties advocating that the marriage is over is inadequate. However, in most cases the court will not require a detailed investigation, and a statement from one party saying “I don’t love him/her anymore and don’t want to stay married” is enough. There are other facts which help to support the claim of a broken marriage including: mental and/or physical abuse, basic unsuitability, or years of permanent separation. In Palm Beach County dissolution of marriage cases, a spouse need only answer “yes” to the question “Is your marriage irretrievably broken?” No detail or explanation is required.

  • Prior to 1971, there were only nine legitimate arguments for the dissolution of marriage. In 1971, the legislature passed the Dissolution of Marriage law, which repealed this statute and stated that “fault need not be proved to entitle a spouse to the dissolution of marriage.” Why the transition to a no-fault policy? The State of Florida, and all 49 other States for that matter, have found the no-fault policy to provide the best means for handling a dissolution of marriage. The purpose is to encourage both parties to dissolve the marriage without becoming adversaries and to encourage reconciliation by decreasing the need of reciprocated accusations.

  • Currently under Florida Marital Law, there are two grounds which allow a person to a judgment of dissolution of marriage. The first being the marriage is “irretrievably broken,” and the second being that one of the parties has been “adjudged mentally incapacitated for at least three years” F.S. 61.052.

  • In Florida Family Law, marriage is not classified as the private doings of two persons, but rather is formally observed by the state. Therefore, a marriage must be filed with the state in order to be considered official. It is the court’s opinion that dissolution of marriage is also a statutory cause of action. Therefore, it is the court’s job to determine the conditions upon which the divorce will be authorized. The right to a dissolution of marriage and all privileges and burdens in connection with it are regulated by F.S. Chapter 61, “Dissolution of Marriage.” See F.S. Chapter 61, “Dissolution of Marriage.”