Five Myths Related to Divorce

Thanks to popular culture certain misconceptions around family and divorce law have become accepted as true. Even though some of these ideas are true and some are not, when it comes to legal matters, it is a good idea to check with a competent and experienced attorney before taking any action.

Here are a few popular myths divorce law in the state of Florida:

Reality: The state of Florida divides everything involving the couple as evenly as possible. While property and money may be divided equally, debt may be as well. The same is true for property. Just because a property is in one person's name, that does not mean that person will receive sole ownership of that piece of property. Through methods like valuation, at the very least the value of a property will be split among divorcees, if not there may be the necessity for a sale and equitable distribution of what it received from the sale. The important thing to remember is that it does not matter how a debt or an asset is titled. What needs to be analyzed is whether the debt is considered marital and what funds were used to purchase the asset. Debts incurred in pursuit of an extra marital affair or to sustain a gambling or substance abuse addiction will likely not be considered marital and should be assumed solely by the party incurring such debt. Those debts are often referred to as “dissipation” of assets because they were not incurred for marital purposes. An asset acquired with marital funds would likely be considered marital, subject to equitable distribution between the parties. However, if a property was purchased or an asset was obtained through pre-marital funds or an inheritance, that asset would be considered separate property and would likely not be divided equally between the parties.

Reality: Per Florida law, a child is defined as under 18 years of age and does not have the legal standing to make a choice of where to live. Parents, as well as the courts, may take that into consideration when deciding custody, but the ruling will not necessarily follow the wishes of the child. Even then, a child needs to be a certain age before a judge may take their preference into consideration. A judge may decide a child is developed enough mentally and emotionally to make such a choice and give that more weight. It is often handled on a case by case basis at the discretion of the judge.

Reality: In many cases this is true, but not always. The courts try to rule in a way that is in the best interest of the child when considering custody issues, which is determined by the judge handling the case. Judges recognize the importance of a child having frequent and continuous contact with both parents. A separate assumption is that courts will automatically award equal time-sharing for the parents. This also is not the case. Courts will evaluate the facts on a case by case basis to determine what is in the child or children’s best interest.

Reality: Long-term marriage alimony may be considered permanent in theory, but it can always be modified. Judges take into consideration several factors, including things like the needs of the person receiving the payments and the ability of the other person to pay. As situations change, court rulings in these smatters may change as well. Permanent alimony is only an option, and not a guarantee, in marriages that last 17 years or more before a dissolution action is filed. Even then, “permanent” alimony may be modified, depending on the parties’ agreement, and is subject to termination upon the death of either party, retirement of the paying party, and remarriage of the recipient party. Spouse support can also be subject to recalculation or termination if the recipient party cohabitates with someone else who is paying a portion of the expenses.

Reality: Technically this is true, as there is no legal mechanism for separation. However, couples may make any arrangement they like, and organize a separation in any way they wish, as long as both are in agreement. Such an agreement should be in writing, signed by both parties in the presence of a notary and witnesses.

Article updated October 28, 2020.