Frequently Asked Questions
Family Law
- What are grounds for divorce in Florida?
- Is there a residency requirement to divorce in Florida?
- What is marital and non-marital property?
- If you inherit assets or property after marriage, is this property considered a marital asset during divorce?
- How long must you continue to pay child support?
- Before getting divorced, what should you know about your finances?
Appeals
- How does the appeals process work in Florida Courts?
- What decisions may a court render in an appeal?
- How long does the appeals process take?
- Do you have to obey an earlier judgment while waiting for decision regarding your appeal?
Family Law
1. What are grounds for divorce in Florida?
Florida is a no-fault divorce state, which means that in order to divorce you must prove either that the marriage was irretrievably broken or that there was mental incapacity on the part of one of the spouses. In order to claim mental incapacity, under Florida statutes, there must be an adjudication of mental incapacity for at least three years.
2. Is there a residency requirement to divorce in Florida?
Yes. You must have resided in Florida for at least six months in order to file divorce.
3. What is marital and non-marital property?
Assets and liabilities are considered either marital or non-marital. Your home, business, investments, cars, retirement accounts, bank accounts, pension plans, equipment, furniture and so on are assets. Whatever you owe would be liabilities, such as credit card debt, mortgage, promissory notes, etc.
Non-marital property would include:
- Assets or debts acquired prior to marriage
- Gifts to a specific spouse only
- Inheritances
- Income derived from non-marital assets
- Assets or liabilities determined as non-marital by pre-nuptial or post-nuptial agreements
Marital property would include:
- Property acquired by both spouses during marriage
- Non-marital assets enhanced or appreciated in value through efforts of both spouses
- Gifts between spouses during marriage
- Retirement accounts, pensions, profit-sharing, annuities, insurance plans or deferred compensation acquired during marriage
- Co-mingled property
4. If you inherit assets or property after marriage, is this property considered a marital asset during divorce?
Although the State of Florida is an equitable distribution state, in most circumstances inherited property or assets would not be considered a marital asset subject to property division, as long as the asset was not titled in both spouses’ names, was not co-,mingled with marital assets, and marital funds were not used to maintain or support the property or asset.
5. How long must you continue to pay child support?
In most situations, child support ends when the child reaches adulthood, at 18 years of age, or after the child finishes high school. When a child is disabled or mentally challenged, support payments could continue for a longer period of time.
6. Before getting divorced, what should you know about your finances?
You should know what your assets and liabilities are. In order to determine that, you will need to be able to access the following information regarding your finances:
- Bank records
- Stock statements
- Stock certificates
- Bond certificates
- Deeds
- Wills
- Trust Agreements
- Partnership Agreements
- Insurance policies
- Retirement agreements
- Titles to property such as cars, boats, etc.
- Power of Attorney Documentation
- Business Documentation
- Tax Records
- Other Financial Documents
Appeals
1. How does the appeals process work in Florida Courts?
There are five Florida District Courts of Appeal, which are higher courts that hear cases from Florida Circuit Courts. The appeals attorney begins by filing a Notice of Appeal with the trial court and must file within the appellate deadline.
The appeals lawyer creates a written document referred to as a brief, which in its simplicity contains the following basic elements:
- Statement of the case
- Argument (judicial errors made by the trial court)
- Conclusion (statement of desired outcome)
A panel of three judges will determine the appeal. The lawyer may file a request for oral argument, which typically allows each side 20 minutes to address the court and respond to judicial questioning. The District Court of Appeal will render its decision in writing, which is called a mandate, and may or may not provide the legal reasoning that led to its decision, which is referred to as the appeal court’s opinion.
2. What decisions may a court render in an appeal?
Appeals address prejudicial defects in the judicial system, and if the appellate court upon reviewing the appeal finds no legal defect, the court will affirm the judgment, meaning that the ruling from the trial court stands. If the appellate court finds a defect, then it may either modify the ruling to correct the defect, or reverse part of or the whole decision. It may also remand the case to the lower court for further legal proceedings to remedy the defect, which could basically result in a new trial.
If the court finds a legal defect in appellate procedure on the part of the appeals lawyer, it may dismiss the appeal without review, which would in effect, reaffirm the lower trial court’s judgment.
3. How long does the appeals process take?
There are no strict time deadlines that an appellate court must follow to arrive at a decision regarding an appeal. On the average, a final appeal could take a year or possibly longer from the initial filing of notice for appeal until the court renders its decision.
4. Do you have to obey an earlier judgment while waiting for decision regarding your appeal?
Yes. Although you have filed an appeal, the trial court’s judgment must be followed during appeal, unless the trial court or appellate court grants a stay. A stay is a court order that suspends a case or a particular proceeding within a case. Under Florida statutes money judgments are automatically stayed when a bond is posted for the amount of the judgment plus twice the yearly statutory interest rates on that payment amount. Other types of stays may be denied or granted by the court based on bonds or court stipulated conditions.
