Common Misconceptions Concerning Divorce
People enter divorce proceedings with preconceived notions of their rights, or lack of them, and of what happens regarding assets, debts, alimony, child custody and child support. Three of the more common misconceptions are discussed here.
1. Mothers by default get full custody rights to the children.
Years ago, the courts did tend to favor mothers when determining custody. However, in recent years, there has been a growing movement of awarding fathers more and more custody. In fact, many judges believe it is in the children’s best interest that the parties have equal custody. In Florida, the notions of “custody” and “visitation” have been eliminated in favor of “time-sharing” and “parenting time” with the courts awarding either one parent majority time sharing or ordering equal time-sharing. The policy of the Florida courts, though, is shared parental responsibility (meaning both parties shall equal share in the decision-making regarding their children). However, Courts can order sole parental responsibility (in which one parent gets to make all of the decisions regarding the child) upon exceptional circumstances.
When the parents’ divorce, the parties attempt to agree on a parenting plan or agreement regarding time-sharing schedules for holidays, extracurricular activities, child care, contact between the parents and travel in and out of state. A court may grant one parent majority time-sharing if certain factors favor one parent such as stronger involvement with the child’s friends, teachers and health care providers; more consistency in daily routines and stability; and the moral fitness and conduct of a parent if it is detrimental to the child’s moral and ethical development. If the child is older and mature enough, the court may allow the child to decide which parent he or she prefers regarding majority time-sharing.
2. Marital assets are always divided 50-50.
Only a few states are community property states where marital assets are generally divided on an equal basis. Florida, however, has an equitable distribution statute whereby marital assets can be distributed to the parties based on fairness, though the courts do generally divide the assets equally. A marital asset is property acquired during the marriage including retirement accounts or any other benefits, whether they are vested or not. A Florida court can decide to divide your property on an unequal basis by considering the following circumstances:
The duration of the marriage.
Each party’s economic situation.
The contribution of each to improvement of the marital assets, regardless if you are an income earner or homemaker or primary caretaker.
If a party interrupted or delayed an education or job opportunity, or did so to contribute to the career of the other.
If a party destroyed or diminished the value of assets within two years of the divorce petition or after it was filed.
Whether a spouse unilaterally maximized a credit card or spent funds recklessly
You and your spouse can, of course, agree to how the assets and debts are to be divided and avoid court intervention.
3. Only wives are entitled to alimony and it is temporary.
A court does not consider gender in determining if alimony, or spousal maintenance, is appropriate. Alimony can also be permanent in some cases. Florida courts look to the parties’ individual circumstances, including:
Length of the marriage
If only one party was the wage earner
If the homemaker is currently unemployed
The earning potential or capabilities of the parties
The parties’ standard of living
The age, mental and physical condition of the parties
Tax consequences to each if alimony is awarded
Each party’s contribution to the marriage including child care and improving the career of the other spouse
Sources of income for each and available assets
Temporary alimony can be awarded during the pendency of the litigation in order to meet the obvious short term needs of one spouse.
Bridge-the-Gap: An award not to exceed 2 years to allow a party to transition to single life and who has legitimate short-term needs.
Rehabilitative: For those with a specific plan to become self-sufficient, this provides finances to assist the party in acquiring the capability for self-support.
Du-rational: This allows for financial assistance if permanent alimony is not appropriate.
Permanent: A party may be awarded permanent assistance from the other if these other forms of alimony are not fair and reasonable. For marriages of 17 or more years, the standard is whether the evidence supports the party’s need for alimony based on the factors listed above. If the marriage lasted between 7 and 17 years, the standard is clear and convincing evidence of the factors listed above. For marriages of less than 7 years, a party must present exceptional circumstances before a court will award permanent alimony. The paying party must also have the ability to pay.
While Florida courts do not have a formula or guidelines when awarding alimony, courts rely on the standard of “need and ability to pay” when determining if an alimony amount should be awarded, and if so, how much.
Regardless if permanent alimony is awarded, it is automatically terminated if the recipient party remarries. It can also be modified upon a substantial change in circumstances such as retirement. Alimony awards can further be modified or terminated if the receiving spouse is in a support relationship with another individual.