Divorce Law

Florida is a “no fault” state as to reasons why the bonds of marriage are irretrievably broken. If one person simply does not want to be married to the other person any more, and counseling will not change the person’s mind, then the marriage is irretrievably broken and the divorce will proceed to final judgment. So, simple answer, “No, one person cannot force the other person to stay in a marriage he/she doesn’t want to be in.”

The key word in Equitable Distribution is “equitable.” The judge usually begins with an equal or fifty-fifty split of the marital assets and marital liabilities, and may adjust the distribution to get what he or she believes is a fair result after weighing all the circumstances in the case. Case law and statutory factors guide judges in determining how to apportion the marital assets and marital liabilities between the parties.

Retirement assets that are marital are usually valued on the date of filing of the petition, but could be valued as of the date of separation, or the date of final judgment, or any other date that seems fair under the circumstances. This is statutory law. The value of marital real estate can also be valued on any of these dates, but because people wait to get a house appraised, the date of a current appraisal is usually the date used, and that is usually later than the date of filing. Most appraisers can find comparable sales for any time period and appraise property as of past dates, but most people focus on using the current value of the marital real property as a practical matter in deciding with what to do with the property after the final judgment is entered. The valuation dates of assets is a type of issue that your attorney should be prepared to argue in your favor. The valuation date for homes is most critical in a rising real estate market, which could recur.

Case law and statutory laws assist the judge (and the attorneys) in determining what are marital assets and what are marital liabilities. The rule is that any asset or liability that came into being during the marriage is presumed to be marital, but there are exceptions. If a litigant believes the judge did not follow the law correctly in determining marital and non-marital assets and liabilities, then the trial judge’s ruling can be appealed on application of the wrong law, or on an abuse of discretion or on some other grounds. Every family law case varies because every set of marital assets and liabilities varies as to dates acquired, value when acquired, how the assets were treated, who paid what debts and whether there was a written loan agreement as to some debts (such as repayment of loans from family members), and other factors.

Generally, each party will initially pay his and her own attorney fees and court costs. Later, the judge may rule that one party has the ability to contribute toward the attorney fees and costs of the other party based on the need of one party and the ability of the other party to pay. If, however, there is child support and/or alimony being paid by the party that earns more money, then that may make that party less able to pay attorney’s fees of the the other party. Note that child support or alimony paid before there is a final judment is called “temporary” alimony or child support. Once a final judgment is entered, the alimony or child support is termed “permanent.”