FAQ's About Family Law in Miami & Ft Lauderdale

What is meant by fault and no-fault divorce?

Up through the 1960’s, most states allowed for divorce only upon findings of marital misconduct or ''fault.''  Although the state laws varied, traditional fault grounds included:

• cruelty (inflicting unnecessary emotional or physical pain) – this was the most frequently used ground for divorce;
• adultery;
• desertion for a specified length of time;
• confinement in prison for a set number of years; or 
• physical inability to engage in sexual intercourse, if it was not disclosed before marriage.

In the 1970’s states began to allow for “no fault" divorces in which it was not necessary to prove a spouse’s wrongdoing.  It was enough for the petitioning spouse to declare that the couple could not get along due to "incompatibility," "irreconcilable differences," or "irremediable breakdown of the marriage."  Now almost every state has adopted some form of “no-fault” divorce.  However, in some states the couple must live apart for a period of months or years before they can obtain a "no-fault" divorce.

Prior to Florida’s enactment of the Marriage Dissolution Act in 1971, divorce was permitted only upon a showing of “fault” based upon impotence, adultery, extreme cruelty, a violent and ungovernable temper, intemperance or drug addiction, desertion for one year, a previous divorce in another state or country, a prior valid marriage, incurable insanity, or unlawful degree (i.e., an incestuous marriage).  The 1971 Act did away with the fault requirement, and instead permits a divorce on the basis that the marriage is irretrievably broken or that one spouse is mentally incapacitated.  The issue of fault or marital misconduct may still come into play, however, in determining alimony and the distribution of property. 

What is alimony and when can it be granted?

Alimony, also called spousal maintenance or spousal support; is a court-ordered allowance to be paid from one former spouse to the other.  Alimony is typically awarded to serve three purposes: to provide permanent support for a needy former spouse; to provide temporary support to allow a former spouse to acquire education or training that will enable him or her to become self-sufficient; or, to provide a means of achieving an equitable distribution of the marital property.  Although a court may order periodic alimony payments or a lump-sum, or both, the courts usually require the payment of a fixed monthly amount.  

The basic elements for determining an award of alimony in Florida are need by one spouse and the other spouse’s ability to pay.  ''Need'' in this respect does not require complete and permanent dependence on the other spouse.  Rather, a former spouse's needs are determined with reference to the standard of living established by the parties during the marriage.  A court must consider all relevant economic factors, and the court may consider any factor necessary to achieve equity and justice between the parties.

In determining the amount of alimony to be awarded, a court will generally consider such factors as:

• the standard of living established during the marriage;
• the duration of the marriage;
• the age and physical and emotional condition of each party;
• the financial resources of each party, including their non marital and marital assets and liability of each;
• the time necessary for either party to finish education or training to find appropriate employment;
• the contribution of each party to the marriage, including homemaking, child care, education and career building of the other party; and all sources of income available to either party.

With regard to the duration of the marriage, a long-term marriage gives rise to a presumption in favor of permanent alimony.  A short marriage raises a presumption against permanent alimony.

What is meant by child support, child custody, and visitation in Florida?

Both parents have a legal obligation to support a child, both during and after a divorce.  In a Florida divorce action, the court must order either or both parents to pay child support in accordance with mandatory guidelines set by the Florida Legislature, unless the court makes a specific finding that the guideline amount is unjust or inappropriate.  Determined directly from the parents' combined net monthly income, the statutory guidelines specify a minimum amount to be apportioned between the parents, based on each parent's ability to pay.

Prior to the 1982 enactment of Florida’s Shared Parental Responsibility Act, divorce courts typically awarded child custody to one parent, who was given both physical possession of the child and the right to make all decisions regarding the child’s care.  Under the current law, the court will order that parental responsibility be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.  In that case, the court may order sole parental responsibility over specific aspects of a child's welfare, such as primary residence, education, or medical and dental care, as determined to be in the child’s best interests.

One parent may be designated the “custodial” parent with whom the child maintains a primary residence.  In deciding which parent should have primary residence, the court may consider:

• which parent is more likely to allow the child frequent and continuing contact with the nonresidential parent;
• the love, affection and other emotional ties between the parents and the child;
• each parent's ability to provide the child with food, clothing, medical care and other material needs;
• the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
• the permanence of the existing or proposed custodial home;
• the moral fitness of the parents;
• the mental and physical health of the parents;
• the home, school and community record of the child;
• the preference of the child, if the child is intelligent, understanding and experienced enough to express a preference; and  evidence of domestic violence or child abuse.

How can a person gain protection against an abusive spouse?

There a several options.  Most states have both criminal and civil domestic violence laws to protect against spousal abuse.  Physical abuse may be reported to the police, which may cause the abuser to be arrested and charged, and perhaps jailed. The judge would likely impose a temporary protection order that prevents the abusive spouse from contacting the other spouse, and possibly their children.  Some states allow a spouse to file for a protection order without requiring a report to the police.

Florida law permits a domestic violence victim, or someone in imminent danger of becoming a victim, to apply for an injunction to restrain the abuser from committing acts of domestic violence such as any assault, aggravated assault, battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or other criminal act that results in physical injury or death.  Stalking includes following and repeatedly telephoning the victim.  Persons may seek domestic violence injunctions not only against spouses, but against any abusive household member.  The police have a duty to enforce a domestic violence protective order, and the person violating the order could be arrested or charged with contempt of court.

If a father does not have his name on a child’s birth certificate, does he still have rights as to the child? Does he need to take a paternity test to prove that he is the father?

Yes.  Whether a man's name is on a child's birth certificate does not determine his legal rights as a parent.  In most states, the husband of the mother is presumed to be the father of the child unless and until he questions paternity.  In Florida, the legal paternity of a child may be established through a paternity action initiated by the mother, putative father, or the child; by the father's marriage to the mother; by a foreign judgment of paternity; or by the father's acknowledgment of paternity.

Any party to a paternity proceeding may request that a blood test be given, or the court may order a test on its own motion.