«Last Revision July, 1999 CONGRATULATIONS! You’re getting married – hopefully, for the rest of your life. It may surprise you to learn that the ...»
Family Law Handbook
Created by the Family Law Section
of the Florida Bar
Last Revision July, 1999
You’re getting married – hopefully, for the rest of your life. It may surprise
you to learn that the State of Florida has an interest in your marriage. Not in
the number of bridesmaids, or the flavor of the cake, or even the color of
the flowers - but in whether the marriage is long lasting and happy.
There are four main things you need to TAKE GOOD CARE OF in times ahead:
Your COMMITMENT to each other √
YOURSELF√ Any CHILDREN you might have or adopt √ Your “STUFF” (money, property, stocks, etc.) √ The Florida Legislature decided that a law was needed to recognize how important marriage is to families in the state. In 1998 lawmakers passed that law based on the knowledge
• The divorce rate has been accelerating.
• Just as the family is the foundation of society, the marital relationship is the foundation of the family. Consequently, strengthening marriages can only lead to stronger families, children, and communities, as well as a stronger economy.
• An inability to cope with stress from both internal and external sources leads to significantly higher incidents of domestic violence, child abuse, absenteeism, medical costs, learning and social deficiencies, and divorce.
• Relationship skills can be learned.
• Once learned, relationship skills can facilitate communication between parties to a marriage and assist couples in avoiding conflict.
• Once relationship skills are learned, they are generalized to parenting, the workplace, schools, neighborhoods, and civic relationships.
• By reducing conflict and increasing communication, stressors can be diminished and coping can be furthered.
• When effective coping exists, domestic violence, child abuse, and divorce and its effects on children, such as absenteeism, medical costs, and learning and social deficiencies, are diminished.
• The state has a compelling interest in educating its citizens with regard to marriage and, if contemplated, the effects of divorce.
[Chapter 98-403, Laws of Florida.] What does all that mean? It means that staying happily married is hard and more and more couples are giving up and getting a divorce. The best marriages are not marriages where there is no conflict. The best marriages are marriages where couples know how to work through the rough spots. Just like learning how to drive, you can learn to handle problems in your marriage.
For you, the new law means you have to read this handbook, you could save $32.50 on your marriage license fee if you take a premarital education course, and under some circumstances you might have to wait three days for your marriage license to become effective if you don’t take a course. If you decided not to take premarital education course before getting married - it’s not too late. Education courses that teach relationship skills are known to be helpful at any time during a relationship.
Marriage and parenthood are two of the most important and most difficult jobs anyone can have. Oddly enough, you don’t have to have any training or education, and you don’t have to take a test. You don't even need a license to be a parent.
If you just can’t make it work and returning to single life is what you choose to do, you need to know that single life may not be as simple as it was before you were married.
Divorce will affect many areas of your life - some that you might not even have thought about before you walk down the aisle.
Things You Need to Know
Getting married is more than just pledging to live together until death (or divorce). It is more than agreeing to live away from your parents with another person. It is more than legal permission to have consensual sexual relations with your partner. Getting married is entering into a serious legal relationship that has many diverse consequences on your ownership of your money and possessions; the way you will raise your children; and the way you will relate to your partner. Because this is a serious legal action, the Florida Legislature requires that all persons getting married receive information about what getting married means. When people talk about what it means to be married and how they will handle their finances, children's issues, religious issues, work decisions and the like BEFORE they get married, they have a far greater ability to remain happily married throughout their lives.
This pamphlet is not designed to give individualized legal advice, but it is meant to tell you generally about the marriage contract and the marital relationship in accordance with the laws in effect through the summer of 1998. The laws dealing with the marital relationship are constantly affected by changing statutes and by the entry of court decisions in the appellate courts of Florida. This area of the law has detail that changes on a weekly basis. If you have any questions, you are advised to see a lawyer who has an understanding of family law issues BEFORE you get married.
MARRIAGE IS A LEGAL RELATIONSHIP
Rather, it exists until either one party dies or the parties’ marriage is dissolved (divorce).
Because the State of Florida has an interest in protecting and maintaining its citizens and in protecting and advancing families, many laws exist that control what will happen to a person's estate when a person dies and that control the process of divorce. In order to dispose of a person's property after death, and in order to end a marriage, court actions may be required. Those actions, in large part, define and are controlled by Florida law.
Persons who are considering marriage may enter into a written agreement that will determine the economic issues between them should the marriage not survive or should one of them die. Generally, such "prenuptial agreements" may create a special contract between the parties that, if properly entered into after full disclosure of financial information by both parties and without undue pressure being applied by one party against the other, can structure the financial aspects of the parties’ divorce. Although a party cannot agree not to receive child support, and cannot contract away temporary financial support during the pendency of an action, you and your spouse can agree, before you get married, to specific distribution plans for assets and liabilities and for specific spousal support (alimony) if the marriage does not work out. A lawyer who handles family law matters can discuss this with you and help you reach these types of agreements.
Even after a divorce, if things change, most types of alimony, child support, and parental responsibility issues may be modified by later court proceedings.
In most cases, unless there is a written agreement to the contrary, money earned by either you or your spouse during the marriage, assets purchased by either of you, and debts incurred by either of you are considered to be "marital assets and liabilities." These "marital assets and liabilities" will be equitably distributed to you and your spouse if you divorce.
This is true even if an asset is bought in one name alone with the money earned by that person. Title to property alone does not determine distribution.
Any asset owned by a person before he or she gets married that he or she keeps separately titled (e.g., a home) will generally be distributed to that person upon divorce. Such an asset is called nonmarital property. However, if that asset has increased in value due to the expenditure of marital funds, or funds of non-owner spouse during the marriage, or if that asset has increased in value due to the work efforts of either partner (even if it is only the work of the one that owned it before), then the increased value may be considered a marital asset that can be distributed to both husband and wife upon divorce.
If either spouse changes into joint names the title to an asset that he or she owned before marriage; or, if the person mixes the asset with marital assets (for example, if the spouse puts his or her house into both names or puts the money that he or she earns into a stock account he or she had before the marriage) then the whole asset may be considered to be a marital asset and may be distributed to both husband and wife upon divorce.
Gifts given by one spouse to the other are marital assets and can and will generally be divided should you divorce. Gifts given by outside persons to one party or the other individually, and not thereafter mixed with marital assets, are not marital property and will generally be awarded to the recipient of the gift upon divorce.
LIABILITIES (THE MONEY YOU OWE)
If a person owes a debt prior to the marriage and that debt still exists at the time of the parties’ divorce, the person who owed the debt still will be solely responsible for it unless the other party has legally agreed to pay the debt during the marriage. Debt incurred by either party during the marriage is generally "marital debt" and can be assigned for payment to either party upon divorce.
HOW THE COURT DIVIDES ASSETS AND LIABILITIES UPON DIVORCEUnless the husband and wife enter into an agreement that sets out who gets which assets and who gets which liabilities, the circuit court will have a trial after which it will decide who gets what and who will pay what.
The current statutes require a court to begin the process of dividing assets and liabilities by setting aside those assets that are defined as "nonmarital," typically those assets which either were owned prior to the marriage or inherited during the marriage and not mixed with marital assets, or those properties specified in a written agreement between the parties as nonmarital.
Next, the court will divide marital assets and marital liabilities, starting with the presumption that such assets and liabilities will be distributed equally. The court may distribute unequally marital assets and marital liabilities based upon a series of factors including: the contributions of each party to the marriage, the contribution of one party to the career or educational opportunities of the other, the intentional depletion or destruction of marital assets by one party, and other equitable factors. The court may award a cash payment from one party to the other to balance out assets and liabilities. It is not necessary for a court to divide each and every asset between the parties. Instead, the court may award some assets to one party, some to the other, and balance the difference through a cash payment.
If proper pleadings are filed, a trial judge may order particular items of real or personal property sold and the proceeds awarded to one or both spouses.
SPOUSAL SUPPORT (ALIMONY)Upon separation or divorce, in some cases a judge may order one party to pay spousal support (alimony or separate maintenance) to his or her spouse. If awarded, the type, duration, and amount of alimony will be determined primarily by the length of the marriage, the need of one party for support, the ability of the other party to pay the support, and the standard of living the parties have enjoyed together.
A trial judge may order temporary support from the time of the filing of a dissolution of marriage action (divorce case) or the time of the filing of a petition for support unconnected with dissolution of marriage. At the time of the final judgment, the trial judge may order permanent alimony (to continue until the death of either spouse or the remarriage of the receiving spouse), rehabilitative alimony (support for a specific purpose that is meant to fund a plan to allow the receiving spouse to become educated or otherwise qualified to work at a particular job), and/or lump sum alimony (a specific sum designated for support purposes). Typically, permanent alimony and rehabilitative alimony are paid on a monthly basis and may have substantial tax consequences.
The factors considered by a court when determining issues of alimony include: the age of the parties, the duration of the marriage, the health, education, and skills of each party, and other factors. Generally, marital misconduct, such as adultery, is only considered when it has an economic consequence.
An Income Deduction Order may be entered that will require the employer of the person paying alimony to deduct the support from the paying spouse's paycheck and send it directly to the other spouse or to a central depository, which will keep track of the payments and forward the funds to the receiving spouse. Failure to pay spousal support when it has been ordered is enforceable by contempt, and willful failure to pay may result in a person being jailed. A party may be ordered to maintain life insurance or provide other security to ensure the continued payment of alimony.
As an additional component of support, a judge may order one party to pay the attorney’s fees and costs incurred by his or her spouse. The primary factor to be considered in an award of fees is the need of one spouse and the ability of the other spouse to pay. More and more, however, the courts are considering the reasonableness of the positions of each party in determining the amount of fees and costs awarded.
UPON THE DEATH OF A HUSBAND OR WIFE
A husband or wife has certain rights to assets of his or her spouse upon death, unless the couple has a written agreement to the contrary. For example, a spouse may be entitled to a portion of the deceased spouse’s property that is subject to probate administration, an allowance of a certain sum of money, and use of the family home.
Transfers of property from one spouse to another may receive beneficial tax treatment.
Couples who have valuable assets may wish to consult an attorney who is familiar with estate planning for advice that is appropriate for their particular situation.