A stack of cash with a sticky note tha says Alimony on it.

Alimony is financial support paid to an ex-spouse to help maintain the standard of living established during the marriage. There are many different types of alimony in Florida, which vary in amount, form, and duration. The policy behind alimony is to alleviate the financial disparity between the two parties. When determining if alimony should be awarded, Florida family law courts look at one spouse’s ability to pay alimony vs. the other spouse’s need for alimony.

Florida judges have a lot of discretion in awarding alimony, and if so, how much. There are no specific percentages of income or mathematical formulas in Florida alimony statutes. The Tampa divorce attorney in an alimony case can make a big difference in the type and amount of alimony that is awarded. Therefore, it is essential that you hire a divorce law firm in Tampa experienced in Florida alimony litigation.

Two easily confused types of alimony are Bridge-the-Gap and Rehabilitative alimony.  Bridge-the-Gap alimony is designed to help a person transition to become a head-of-household. On the other hand, rehabilitative alimony is to financially support a specific plan to obtain financial independence.

What is Florida Rehabilitative Alimony?

Florida Rehabilitative alimony is one of the many types of alimony that can be awarded in a divorce. Rehabilitative alimony is intended to provide financial support to a spouse until they are financially self-sufficient.  Rehabilitative alimony requires a specific plan that will provide for financial independence upon completion of the plan. See Florida alimony case Hill v. Hooten. Often, rehabilitative alimony plans will provide for the party to attend college to increase the likelihood of employment. A Florida family law judge must approve of the plan before the award of alimony can be granted.

The rehabilitative alimony plan can be based on the redevelopment of previous skills or credentials. Alternatively, the acquisition of education, training, or work experience necessary to develop appropriate employment skills can be a basis as well. The end goal for the rehabilitative plan should be an increase in knowledge or skills so that the party can support themselves.

The Policy of Rehabilitative Alimony in Florida

The purpose of rehabilitative alimony is to help a spouse who served in a supportive role to learn new skills to live a fruitful life independently. See Florida divorce case Canakaris v. Canakaris. Some common examples of rehabilitative spousal support are attending college, trade school, or assistance with obtaining a professional license. To receive this form of alimony, you must have a specific plan and intent to execute that plan.

It is important to remember that alimony and child support are different. Child support payments are to provide financial support for the necessities of the children. On the other hand, alimony is financial support for an ex-spouse. Alimony is intended to provide the former spouse with financial means to maintain the standard of living established during the marriage.

How To Receive Rehabilitative Alimony in Florida

Rehabilitative alimony in Florida is financial support intended to provide a former spouse with the opportunity to establish the capacity for self-support, proportionate to the standard of living during the marriage. See Florida Statute 61.08. The length of the marriage will play a factor in alimony cases, but it is not dispositive. Instead, the focus should be on the impact the marriage had on the earning potential of the spouse seeking alimony. For instance, if the party seeking alimony after a 5-year marriage abandoned their career to take care of the couple’s children, rehabilitative alimony may be appropriate.

The length of the marriage will play a factor in rehabilitative alimony cases but is not the only significant factor. Typically, the impact of the marriage on the spouse’s career will likely be the driving force. Conversely, if a party seeks rehabilitative alimony after a 10-year marriage but cannot provide evidence that the marriage hindered their earning capacity, rehabilitative alimony should not be awarded.

Rehabilitative alimony in Florida should only be awarded to spouses who genuinely need it. If there was no decline in earning potential due to the marriage, alimony should not be awarded. See Ritter v. Kiezkowski. Further, if the spouse cannot show that the rehabilitative alimony will permit economic self-sufficiency, it should not be granted. The party seeking rehabilitative alimony must provide a definite, detailed rehabilitation plan. See Cogen v. Cogen. Further, the plan must be feasible and not tentative.

The Legal Test for Alimony in Florida

When determining if rehabilitative alimony in Florida divorce cases is appropriate, a judge will apply the “need and ability to pay” test.  See Guiterrez v. Guiterrez. First, the party seeking rehabilitative alimony will have to establish there is a need for rehabilitative alimony. Under Florida divorce law, “need” does not mean basic living expenses such as rent, food, and clothing. Instead, the term “need” refers to the standard of living enjoyed during the marriage. See Griffin v. Griffin. The standard of living is based primarily on expenditures, not income. However, if a couple lives beyond their financial means, only the expenditures that could have been funded from the income will be included in the standard of living estimation.

Modifying Florida Rehabilitative Alimony

Florida rehabilitative alimony may be modified or terminated if there is a substantial change in circumstances. Additionally, modification can occur upon noncompliance with the rehabilitative plan, or once the rehabilitative plan is completed. What is considered a “substantial change in circumstances” is determined based on the facts and circumstances of each case. For an example of a qualifying substantial change in circumstances, see Antepenko v. Antepenko.

Rehabilitative alimony can be modified or terminated based on the fulfillment, or lack of fulfillment of the rehabilitative plan.  For example, if the rehabilitative plan was to attend cosmetology school and the recipient drops out, rehabilitative alimony may be terminated.  Conversely, if one determined that cosmetology school was not for him or her, the rehabilitative plan could be revisited (with the assistance of a divorce law firm ideally), so that a new plan can be established or modified.

Consult a 5-Star Divorce Law Firm in Tampa

Rehabilitative alimony is a complicated topic and there are many types of alimony in the state of Florida. You should speak with an experienced divorce attorney in Tampa to ensure that you are receiving or paying the right type and amount of alimony. If you are contemplating filing for divorce or your spouse has already filed for divorce, call us to speak with a Tampa divorce attorney.

Our divorce lawyers in Tampa are skilled litigators with experience in all types of divorce matters, including Florida rehabilitative alimony. Our years of experience allows us to cater our services to each client’s specific needs. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help. Call us today at 800 990 7763 to schedule your free initial consultation with a divorce attorney in Tampa.

Cash Envelope for Permanent Alimony in Florida

Alimony, which is also frequently referred to as maintenance or spousal support, is payment from one ex-spouse to the other. The fundamental principle guiding an award for Florida permanent alimony is the disparity in the financial resources of the two parties. However, the disparity in financial resources alone is not enough to justify an alimony award. See Segall v. Segall. Instead, Florida law looks at one spouse’s ability to pay alimony vs. the other spouse’s need for Florida permanent alimony. See Canakaris v. Canakaris.

Florida family law allows for many different types of alimony, which can vary in duration, amount, and purpose. Florida courts have a lot of discretion in awarding alimony, and if so, how much. The Tampa divorce attorney in an alimony case can make a big difference in the type and amount of alimony that is awarded. Therefore, you must hire a divorce law firm in Tampa that is experienced in Florida alimony litigation.

How Alimony in Florida is Determined

The amount and duration of alimony will be determined on a case-by-case basis. The court will first determine if there is a need for alimony by one party. Secondly, the judge will consider if the other party can pay alimony. Once that is determined, then the court must weigh the factors outlined in Florida divorce law 61.08. The statute also provides that all other relevant factors can be considered when determining the amount and duration of alimony. Therefore, the judge can also consider evidence not listed explicitly in the Statute. Also, an award of alimony may not leave the payor with significantly less net income than the income of the recipient unless there are exceptional circumstances found by the court.

What is Florida Permanent Alimony?

Florida permanent alimony is periodic payments of financial support paid to an ex-spouse for an indefinite duration. The purpose of Florida’s permanent alimony law is not to divide future income. Instead, it is to provide for the needs of a former spouse, as they were established during the marriage. See Mallard v. Mallard. Permanent alimony is only proper when the evidence shows a permanent inability of the ex-spouse to become self-sustaining. Further, permanent alimony is typically only awarded upon the divorce of a long-term marriage.

Permanent alimony in Florida is appropriate when a party in the marriage cannot meet their needs and necessities of life following a divorce. The needs and necessities of life of that party are determined by the standard of living during the marriage. Therefore, the employment history, income, and expenses of each party will be significant factors in a Florida alimony case.

Alimony may be paid as a lump sum, periodic payments, or both. Although adultery is not considered in determining if a divorce should be granted, the court may consider adultery when deciding alimony.

Florida Divorce Law Requirement for Permanent Alimony

Florida applies a two-part test to determine alimony, the need & ability test. The first part of the test is to establish if there is a need for alimony. The term “need” does not mean basic living expenses, such as rent, food, and clothing. Instead, the term “need” refers to the standard of living that was enjoyed during the marriage. See Griffin v. Griffin. It is important to note, “need” can include many things that most of us would consider luxuries. See Firestone v. Firestone. Once the “need” is established, the spouse will then have to prove that the other spouse can pay the alimony sought.

How Long Does a Marriage Have To Last for Florida Permanent Alimony?

An award of permanent alimony is typically awarded after a marriage of long duration. A marriage of long duration is a rebuttable presumption of a minimum of seventeen (17) years. This is the presumed number, but the court can determine this to be inappropriate, given certain circumstances. The length of the marriage is the period starting from the date of the marriage until the date of the filing of an action for dissolution of marriage (divorce).

An award of permanent alimony can be awarded after a marriage of moderate duration if such factors from Florida Statute 61.08 are considered, and an award is determined to be appropriate based on clear and convincing evidence. The rebuttable presumption of a moderate duration marriage is between seven (7) and seventeen (17) years. Short-term marriages (marriages lasting less than seven years) are also eligible for permanent alimony, but the recipient must prove there are exceptional circumstances and that no other form of alimony is fair or reasonable under the circumstances

Modification or Termination of Alimony

Florida permanent alimony can be modified or terminated if there is an unanticipated, substantial, material, and involuntary change in the circumstances of either party, that was not contemplated for at the time the alimony was awarded. See Florida alimony law 61.14.  For instance, alimony may be modified upon remarriage or entering into a supportive relationship.  Additionally, alimony automatically terminates upon detain.

If a modification or termination of permanent alimony is sought due to a supportive relationship, the divorce attorney seeking the change has the burden of proving the supportive relationship warrants a modification. Determining whether the supportive relationship is grounds for an alimony modification will depend on the specific circumstances of the case. Therefore, you should seek the counsel of a Tampa divorce attorney.

Consult a 5-Star Tampa Alimony Law Firm Today

A skilled divorce lawyer in Tampa can make a significant impact in a divorce involving a claim for Florida permanent alimony. If you are contemplating filing for divorce or your spouse has already filed for divorce, call us today to speak with a divorce attorney in Tampa. The divorce attorneys at Florida Law Advisers, P.A. have years of experience advocating for and against alimony. With years of experience in family law litigation, we are more than ready to present a compelling case on your behalf and stand firm for what is fair. If you would like to speak with a divorce attorney at our firm, call us today at 800 990 7763 to schedule a free consultation.

Image of a group of homes or property for the division of marital assets in a Florida divorce

When a married couple files for divorce in Florida, there will be an “equitable distribution” or the division of marital assets and liabilities. See Florida divorce law 61.075. Usually, the court will divide marital assets and liabilities 50/50 unless there are factors that would make an equal split inequitable. Usually, the first step is to determine if the asset or debt is marital or separate property. Only marital property/ debt is subject to equitable distribution by a court.

Divorce can be a stressful and frightening time; it is the end of a marriage. There is a lot at stake in the outcome and especially for high asset divorce cases. There are unique challenges to a divorce when the parties involved have a substantial net worth. In cases such as these, it is crucial to hire an attorney who knows the law and can understand complex financial investments. Additionally, you will want an attorney who has a good reputation with expert witnesses to be used in your case. Typical witnesses include forensic accountants, auditors, appraisers, and social investigators. If you need assistance with a divorce, call Florida Law Advisers to speak with a high asset divorce attorney in Tampa.

Will I Lose My Assets in The Divorce?

Generally, the first step is to classify each asset and debt as either marital or separate property. Only marital property/ debt is subject to equitable distribution; separate property will remain the property of the spouse who owns it. Usually, this is a straightforward process; however, it can be very complex in high asset divorces. Therefore, it is crucial to hire an attorney who is well versed in high asset divorces and can aggressively represent your interests.

Under Florida divorce law, separate property may be classified as marital property under certain circumstances.  For instance, if the separate property has been commingled with your spouse or other marital property, it may be subject to equitable distribution. See Woodard v. Woodard.  A typical example of a comingled property is when a couple lives in a home purchased before the marriage by one spouse and uses marital funds to pay the mortgage or make home improvements. Generally, when equal access to the separate property is granted to the spouse, it may become marital property. See Florida divorce case Terreros v. Terreros. Determining if a separate property has been commingled with marital property is based on the specific facts of each case. Therefore, you should seek the counsel of an experienced Tampa divorce attorney for information about a particular set of circumstances.

Will The Home Be Divided in a Divorce?

When a homeowner wants to sell the property as part of a divorce, they will need to include a partition claim in the divorce paperwork. If the partition is granted, the home may be divided amongst the parties or sold, with the proceeds being divided amongst the couple. If the home is divided, an appraisal will likely be needed. Otherwise, it may be complicated to assign a correct value to the home.

Typically, if the home is not sold as part of the divorce, one spouse will be required to make the monthly mortgage payments. However, if the spouse is required to make payments fails to pay, both parties may still be liable to the bank. If both parties signed the promissory note, the divorce settlement would not abolish a spouse’s obligation to the bank. The bank is not a party to the divorce case and did not consent to any such agreement. Instead, the spouse will need to seek indemnification from the party required to pay under the divorce settlement agreement. A common way to avoid this issue is requiring a refinance to be completed to release the non-paying party from liability by the bank.

Who Keeps The Pets in a Divorce?

Under Florida divorce law, the court will not allow for any time-sharing orders of pets. Instead, one of the parties will have sole ownership of the pet. Thus, if a couple wants to share custody of their pet, they have to work it out themselves. A Florida family law judge cannot order the couple to share custody of a pet. See Florida divorce case, Bennett v. Bennett. They cannot share custody of a pet because Florida law views pets as property and applies Florida property law, not custody law. If the party with sole ownership decides to share time with the pets, it will be at his or her discretion.

Are Credit Cards Divided in a Florida Divorce?

Credit cards and other debts acquired during the marriage are also subject to equitable distribution. Credit card debt incurred during the marriage is usually marital property, even if only one spouse is on the account. Therefore, the credit card will be subject to equitable distribution and potentially divided amongst the spouses.

Student Loans in Divorce

Student loan debt can be an enormous amount of money and, in some cases, even more significant than a couple’s mortgage. Generally, student loan debt incurred during the marriage is a marital liability and subject to equitable distribution. See Adams v. Cook.  Thus, the debt will be equally divided be unless there are factors that would make an equal split inequitable. That a non-borrowing spouse will not receive any benefit from the student’s education is not enough for an unequal division. See Smith v. Smith. Future earnings as a result of the higher education will also likely not be considered in the case. See Hughes v. Hughes

In Rogers v. Rogers, the parties filed for divorce after eight years of marriage. During the marriage, the wife incurred over $23,000 in student loan debt; the husband did not incur any student loans.  The court ruled that the student loan debt was to be divided equally between the husband and wife, despite the fact the wife did not begin working as a paralegal until after the divorce.

Prenuptial Agreements

Premarital agreements, commonly known as prenups, are essentially a contract the couple signs before the marriage. The contract determines the distribution of assets, debts, alimony, and other issues in the event of a divorce.  A prenuptial agreement can allow you to modify specific provisions of Florida divorce law to fit your particular circumstances better. A well-executed Florida prenuptial agreement will allow you to set forth the terms of the divorce. Rather than a judge dictating the distribution of your assets and the amount of spousal support awarded.

How To Receive More Than 50% of The Marital Property

Generally, the judge in a Florida divorce case will start with the premise of dividing marital assets 50/50 between the two parties. In Florida, the law requires that a court equally distribute a marital asset unless a “legally sufficient justification for an unequal distribution is given based on the relevant statutory factors.” Foley v. Foley. For help with how to unequally divide marital assets, contact a divorce attorney in Tampa. Obtaining an unequal distribution of a marital asset in Florida can be very difficult without legal counsel.

The relevant statutory factors under Florida Statute 61.075 include the following:

(a) The contribution to the marriage by each spouse.

(b) The economic circumstances of the parties.

(c) The duration of the marriage.

(d) Any interruption of personal careers or educational opportunities of either party.

(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.

(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.

(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.

(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage.

(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

Consult a 5-Star Tampa Divorce Law Firm

If you are contemplating filing for divorce and are concerned about how to divide marital assets, call us today to speak with a divorce attorney in Tampa. Our divorce lawyers have years of experience helping people with their divorce and child custody disputes. Every divorce is different, and our vast experience allows us to cater our services to each client’s individual situation. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help. We are available 24 hours a day, 7 days a week, and offer a free initial consultation. Call us today at 800 990 7763 to speak with a divorce attorney in Tampa.

 

Image of a house to signify the division of real estateproperty

Under Florida divorce law,  an “equitable distribution” of the marital assets and liabilities is required. This also includes real estate owned by the parties. The court will divide marital assets and liabilities 50/50 unless there are factors that would make an equal split inequitable. Usually, the first step is to determine if the real estate is marital or separate property. Only marital property/ debt is subject to equitable distribution by a court; separate property will remain the property of the spouse who owns it.

If a homeowner wants to sell the property as part of a divorce, they will need to include a partition claim in the divorce paperwork. If the partition is granted, the home may be either divided amongst the parties or sold with the proceeds being divided amongst the couple. Divorces involving real estate can be very complicated. If you need assistance contact a Tampa divorce law firm with experience in divorces involving real estate.

Will The Home Be Divided in a Divorce?

Generally, most income, assets, and debts obtained during the marriage are marital property. Property that was individually acquired prior to the marriage will likely be treated as separate property. Under Florida law, separate property is not subject to equitable distribution. However, separate property may be classified as marital property under various circumstances.  For instance, if the deed has both parties as an owner it may be subject to equitable distribution. Comingling can also be grounds for separate property to be divided in a Florida divorce. See Farrior v. Farrior.

Comingling is an important consideration when filing for divorce in Florida. Generally, when equal access to the separate property is granted to the spouse it may become marital property. See Amato v. Amato. Determining if a separate property has been commingled with marital property is based on the specific facts of each case. Therefore, you should seek the counsel of an experienced Tampa divorce attorney for information about a specific case.

Division of Separate Property in a Divorce

Real estate that is determined to be separate property may still be subject to a partial distribution in a Florida divorce case. For instance, if marital funds were used to pay down the mortgage balance, the equity gained in the home may be subject to equitable distribution. See Mitchell v. Mitchell. Additionally, when marital funds or labor are used to improve the property, the increase in value due to such expenditures may be treated as marital property and subject to equitable distribution.

What Happens To Our Mortgage in a Florida Divorce?

Normally, if the home is not sold as part of the divorce, one spouse will be required to make the monthly mortgage payments. However, if the spouse required to make payments fails to pay, both parties may still be liable to the bank. If both parties signed the promissory note, the divorce settlement will not extinguish a spouse’s obligation to the bank. The bank is not a party to the divorce case and did not consent to any such agreement. Instead, the spouse will need to seek indemnification from the party required to pay under the divorce settlement agreement.

Alternatively, divorce lawyers will require the spouse who keeps the home to refinance the mortgage in just their name. Otherwise, if they remain on the mortgage they can still be liable to the bank even if they no longer own the property.

When drafting divorce settlement agreements for cases involving real estate, pay special attention to any clauses regarding a sale of the property or assumption of the mortgage debt. For instance, in McDonald v. McDonald, the former wife sought to force a sale of the property due to the ex-husband’s failure to pay the mortgage, as required by the settlement agreement. The court denied the ex-wife’s request for a forced sale because the conditions triggering the right to force the sale were not properly drafted in the settlement agreement.

How To Sell a Jointly Owned Home in a Divorce

In order to force the sale of a home, a partition claim will need to be filed with the Court. You must file a separate case for the partition or specifically raise the partition in the divorce proceedings. A Florida judge court cannot simply partition the property as an incident to the divorce case. See Valentine v. Valentine and Bergh v. Bergh. Regardless, whether the demand for partition is raised in the divorce proceedings or subsequent to the divorce, the petition must be filed in the county where the property is located. See Harvey v. Mattes. Additionally, the demand for partition must include the following:

  • Description of the property.
  • Names and addresses of the owners and other parties with an interest in the property. For example, if the property is rented, the current tenants would have to be included.
  • The share or interest each party has in the property.

Tenancy By The Entireties

Under Florida Statute §689.115,  when a married couple jointly purchases a home or other personal property it is presumed that the property will be held as a tenancy by the entireties. In a tenancy by the entireties, the property is owned by the marital union, rather than by the individual spouses.

With a home held as tenancy by the entireties, each spouse will have a half interest in the marital union, which in turn owns the property. The parties to the marriage will jointly be entitled to any profits from the property. Further, the parties will be jointly liable for debt associated with property held as tenancy by the entireties. Neither spouse can transfer their interest in the property without the other spouse joining or consenting to the transfer. Additionally, a creditor of one spouse may not encumber property held as a tenancy by the entirety without both spouses being a party to the agreement.

If the title is held as tenants by the entireties it will be presumed to be a marital asset. This will be true even for a property that was acquired prior to the marriage. The party asserting a home held as tenancy by entireties is not a marital property will have the burden of overcoming the presumption that it is marital property. On the other hand, real estate acquired prior to the marriage that does not include the other spouse on the title will be presumed to be separate property, even if both spouses live in the property. See Abdnour v. Abdnour.  In circumstances such as this, the spouse will typically need to show the home was purchased with joint funds to overcome the presumption of separate property.

How To Create a Tenancy By The Entireties

In order to hold property as a tenancy by the entireties, the following six characteristics must be present.

  1. Joint ownership and control.
  2. Identical interests in the property.
  3. The property interests originated in the same instrument/ transfer.
  4. The interests commenced simultaneously.
  5. The right of survivorship – death upon one spouse will automatically vest all of the property in the surviving spouse.
  6. The parties were married at the time they jointly acquired the property.

The tenancy by the entirety will remain in effect until the death of a party, divorce, or agreement terminating the tenancy. In the event of a divorce, the parties will retain the property as tenants in common with no right of survivorship, unless the divorce decree says otherwise.

Tenancy by the entireties is not reserved solely for real estate. For instance, personal property may also be held as tenancy by the entireties.  Further, a tenancy by the entireties will be the presumed type of ownership for personal property transferred to the spouses. However, the transfer of an automobile to a married couple may not create the presumption of tenancy by the entireties. See Xayayong v. Sunny Gifts

Divorce Cases With Homestead Real Estate

Additional considerations should also be paid to property that is classified as homestead under the Florida Constitution. If the home is registered as homestead additional steps may be necessary to complete the process. Property which is properly designated as homestead is exempt from levy by creditors and may also benefit from reduced taxes. The purpose of homestead is to promote stability and welfare by allowing homeowners to continue to reside in their homes despite financial misfortune and the demands of creditors to levy the property. See Public Health Trust of Dade County v. Lopez.

Homestead property held by a married couple may not be sold or encumbered unless both spouses’ consent. For instance, a mortgage cannot be placed on the property unless both spouses agree to it. Further, a spouse cannot give the homestead property to a third party in a will unless the other spouse agrees to the terms.

Homestead can be claimed by any person, regardless if the person is single or married. However, two married persons may only claim a single homestead unless they otherwise qualify for homestead and can prove there are legitimate reasons for living in separate residences.  See Law v. Law. To qualify for homestead protection, the resident must be the owner of the property and occupy the property with the intention to remain there. Additionally,

  • The homestead must be established before the levy of a judgment creditor.
  • The person claiming homestead must be a resident of Florida.
  • The protection is limited to ½ acre of contiguous land within a municipality. Property located outside a municipality is protected up to 160 acres of contiguous land.

Consult a 5-Star Divorce Law Firm in Tampa

If you are contemplating filing for divorce and are concerned about keeping your fair share of the assets call us to speak with Tampa divorce attorney. Our divorce lawyers have years of experience in divorce cases with real estate. Every divorce is different, and our vast experience allows us to cater our services to each client’s specific situation. Whether a couple mutually agrees to the terms or are engaged in fierce litigation, Florida Law Advisers can help. We are available 24 hours a day, 7 days a week and there is no cost for the initial consultation.

Image of a man signifying default divorce

Florida is commonly referred to as a no-fault divorce state. Under Florida divorce law, you don’t need to prove adultery or other reasons for a divorce. See Florida divorce law 61.052. All Florida law requires is there be irreconcilable differences to obtain a divorce. Further, a divorce can be granted in as little as 20 calendar days, if no response to the case is filed.

If you have received notice of a divorce or child custody case, it is crucial to respond quickly and correctly. When a party does not respond to a petition, a default divorce can be entered. Typically, when served with a Florida divorce petition, there are only 20 days to file a response. If a response is not filed on time, the petitioner (person filing the case) can request a default divorce be entered against the other party. Default divorce judgments can be helpful but are not right for every case. If you need legal advice, you should contact a divorce attorney in Tampa for a consultation.

Default Divorce in Florida

If a response is not filed within 20 calendar days of being served the petition, a default may be entered. If a default is entered, the case can continue without participation by the defaulted party. Moreover, the Court can enter the default without even conducting a hearing on the matter. If the Court enters a default, the defendant/ respondent will not have an opportunity to contest the merits case or raise defenses. See Residential v. Rector. Moreover, if you have been defaulted, you may not even be entitled to notice of future court hearings or other activity. See Florida Family Law Rules of Procedure.

Clerk Default Divorce vs. Judicial Default Divorce

Under Florida law, there are two types of default: clerk and judicial. Clerk default occurs when a party fails to respond in any form to the petition. The second category of default, judicial default, occurs when a party fails to plead or defend against the claims. A party can plead or defend claims against them at any time before a default is entered against them. Conversely, once the default is entered, the defaulted party is deemed to have waived their defenses. The defaulted party is now treated as having admitted all the allegations. See State Farm v. Horkheimer.

A clerk’s default can be entered without even a hearing or notice to the other party. On the other hand, a judicial default generally requires a hearing and notice of the hearing to be sent. At the hearing for a judicial default divorce, the party will have an opportunity to persuade the judge not to enter the default divorce.

How to Overturn a Default Divorce in Florida

After default has been entered, judicial, or clerk, it is possible to have the default set aside. See Federal Rule of Civil Procedure. However, the requirements to set aside a default can be very difficult to satisfy without the assistance of a Tampa divorce lawyer. Every case is different, and the likelihood of success will depend on the circumstances of each case. If you have questions about a specific case you should contact a divorce law firm for assistance.

Generally, Florida divorce law requires three elements to be shown to set aside default judgment; excusable neglect, a meritorious defense, and due diligence. Failure by the defendant to prove all of these elements will result in the default being upheld. See Schwartz v. Business Cards Tomorrow, Inc. If the default is not vacated, the defendant will be treated as admitting all of the plaintiff’s allegations and be barred from raising defenses to the lawsuit.

Excusable Neglect

To successfully have a default set aside, a defendant must first show there was excusable neglect. Excusable neglect means there was a legitimate reason for the failure to answer the summons within 20 days. Lack of knowledge of the law or rules is not excusable neglect. Common examples of excusable neglect include a major life emergency, hospital stay, or illness that interfered with answering the summons on time. See Elliot v. Aurora Loan Services.

Meritorious Defense

The second requirement to overturn a default divorce in Florida is to allege a meritorious defense properly. For the defense to meet the requirement, it must be made in a pleading or affidavit. See Yelvington Transport, Inc. v. Hersman. For assistance with drafting a formal pleading or affidavit for your meritorious defense, contact a divorce attorney in Tampa for legal counsel.

Due Diligence

Lastly, to set aside a default divorce in Florida, the defendant must show they acted with due diligence in responding quickly after learning the default had been entered. Again, because there is no bright-line rule for determining if default may be set aside, the facts of each case play an important role. For this reason, it is essential to consult an experienced attorney. There is no one size fits all approach for analyzing due diligence in default cases.

Limitations for a Default Divorce in Florida

A default divorce in Florida can be helpful, but it may not resolve all the issues in your case. There are limitations on the type of relief you can receive in a default divorce in Florida. For more information about Florida divorce laws concerning a default, contact a Tampa divorce lawyer for assistance.

Tampa Divorce Law Firm

Going through a divorce or custody battle can be a highly stressful and emotional experience. It is vital to have a divorce attorney at your side who is knowledgeable of the law and can aggressively defend your rights. We invite you to call us today to schedule a free consultation with an attorney at our firm. During your consultation, you will discover why so many people in the Tampa Bay Area turn to us for help with their legal needs. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help. Call us today at 800 990 7763 or fill out the “free case review” form on our website for more information.