Frequently Asked Questions About Divorce

The divorce lawyers of Tobaygo Law provide answers to the most common questions asked regarding divorcing in Florida. If you have a question that is not answered here, please contact our family law and divorce law firm in Sarasota. We're happy to learn about your family's situation and provide a free case evaluation.

Divorce FAQs

What is the difference between divorce and annulment?

In Florida, an annulment declares a marriage invalid and essentially as though the marriage never existed. Though much less common than a divorce, an annulment can be sought in Florida and requires that the petitioning party prove that the marriage was a sham or fraudulent in some way, therefore attacking the legitimacy of the marriage itself. Annulments are fact and case specific, requiring a complex analysis with respect to whether it is the appropriate course of action. Issues involving minor children, property and support would not be addressed in annulment action, however would be able to be addressed in a divorce.

A divorce in Florida is based on a finding that a marriage existed and that the marriage is “irretrievably broken.” Within a divorce, or dissolution of marriage action, all issues related to the marriage are to be addressed, including but not limited to timesharing, parental responsibility, child support, equitable distribution of marital assets and debts, alimony or spousal support and attorney’s fees.

Contact our family law firm to discuss whether a divorce or an annulment is appropriate in your case.

Are divorce and marriage dissolution the same thing?

Yes, in Florida, the terms “divorce” and “marriage dissolution” are the same thing. A divorce is initiated with the filing of a Petition for Dissolution of Marriage and finalized with the entry of a Final Judgment of Dissolution of Marriage.

Do I need a divorce lawyer?

Parties involved in a dissolution of marriage case are not required to hire a lawyer or have representation related to their divorce. However, the process of getting divorced and dealing with all of the issues related to your marriage are complex.

At Tobaygo Law, our divorce lawyer will assist in determining whether an asset or debt is marital or nonmarital, addressing equitable distribution, identifying exposure or entitlement to alimony or spousal support and attorney’s fees, analyzing parenting issues and timesharing, calculating child support.

What are the benefits of obtaining a divorce lawyer?

An effective divorce lawyer will help you identify issues and understand how the law applies to the issues in your case. At Tobaygo Law, we are experienced in family law and divorce related matters. We assist with all aspects of your case, from the filing or responding to the Petition for Dissolution of Marriage, through discovery requests and responses, to preparation and attendance at mediation, hearings and even trial. Our role, as your advocate, is to advise you with respect to potential outcomes in your case and assist you in making decisions that are best for you, your family, and your finances.

What happens in a divorce?

In a divorce, numerous issues will need to be addressed, either by agreement of the parties or by order of the court. The filing of a Petition for Dissolution of Marriage, or Counter Petition for Dissolution of Marriage, will set forth the main categories that are need of resolution. Though the issues related to a divorce can be numerous, the main categories are typically those which deal with minor children, property, and support.

Florida law requires that issues related to minor children are addressed in a document known as a parenting plan. The Parenting Plan will need to address a timesharing schedule, including holidays vacations and travel, parental responsibility,

When is the best time to divorce?

It is often said that there is never a good time to get a divorce, however there are number of ways to approach the dissolution of your marriage which may make the process better for you and your family. Contact our office to discuss your questions and concerns and to determine the best approach to your dissolution of marriage.

What happens to our property and debt if we get divorced?

In Florida, parties to a divorce must identify whether an asset or debt is marital or nonmarital. All marital assets and debts are subject to equitable distribution, which typically means they are divided equally, or 50/50 between the parties. Non-marital assets and debts are not subject to distribution. It is not uncommon for parties in a divorce to disagree as the marital and nonmarital nature of assets and debts.

What’s the difference between community and noncommunity property?

Florida does not use the terms “community” and “noncommunity” property and, instead, requires the identification of property, both real and personal, as either marital or nonmarital. Marital assets are commonly defined as any property, real or personal, that are obtained or acquired during the marriage, and marital debts are liabilities that are incurred during the marriage and up to the date of filing.

Who gets the house?

The distribution of the marital home and “who gets the house” is often a subject of much contention in a divorce. The marital home is typically both a marital asset which carries a significant marital debt. Market values, mortgages, home equity lines of credit, property taxes, homeowner's insurance and association dues can all impact the amount of equity in a marital home.

The analysis of “Who gets the house” is one that involves a number of different factors. A family law attorney can help identify which of the parties are on the mortgage and title to the property and can work with other professionals to determine the value of the home.

Once the equity, if any, in the home is identified, other factors to consider include, but are not limited to: each party’s ability to refinance the home or sustain the monthly mortgage, the desirability of maintaining the home as a residence for the minor children until they reach the age of majority, whether one party can “buy out” the other party or if there are other assets to distribute and achieve equity between the parties, or if one or both of the parties believe the home should be sold.

As you can see, “who gets the house” is a complicated matter and involves a number of different factors. Contact our office today to discuss the options related to this and other issues related to your divorce.

What are the residency requirements?

In order to obtain a divorce or file for a dissolution of marriage in Florida, at least one of the parties to the marriage must reside in Florida for at least six (6) months prior to the filing of the petition for dissolution of marriage. Florida residency is proven or established by a valid Florida Driver’s license, valid Florida voter’s registration card, or a valid Florida identification card issued to one of the parties, reflecting an issue date of at least six (6) months prior to the date of the filing of the petition for dissolution of marriage. Florida residency can also be established by the testimony or affidavit of a third party, who corroborates that one of the parties has resided in Florida for at least six months prior to the filing of the petition for dissolution of marriage. (Fla. Stats. 61.052

What if I didn’t get married in Florida?

If at least one of the parties has been a resident of Florida for at least six months prior to the filing of the petition for dissolution of marriage, then a divorce can be sought in Florida, regardless of where the marriage took place. The appropriate county for the filing of the divorce action is deemed to be the location in which the parties last resided together as Husband and Wife.

What do I have to prove in order to get divorced?

In order to obtain a divorce, or Final Judgment of Dissolution of Marriage, one of the parties must allege that the marriage is “irretrievably broken.” The Petition for Dissolution of Marriage must allege, generally, that the marriage is irretrievably broken. Though other issues related to infidelity and financial responsibility may be relevant to other issues related to the marriage, there is no requirement that the parties state the basis for the divorce or assign fault related to the same.

What if I don’t want to get divorced?

If there are no minor children of the marriage and if the responding party does not deny that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of marriage if the court finds the marriage is in fact irretrievably broken. If there is a minor child of the marriage and the responding party denies by answer to the petition that the marriage is irretrievably broken, Florida Statute 61.052 states that the court may do one of the following: (1) order either or both parties to consult with a marriage counselor, mental health professional, priest, minister, rabbi or other person deemed qualified by the court and acceptable to the party or parties ordered to seek consultation; (2) continue the divorce proceedings for a reasonable period of time not to exceed 3 months, to allow the parties to attempt a reconciliation, or (3) take such other action as may be in the best interests of the parties and the minor child(ren) of the marriage.