A Q&A guide to family law in the United States: Florida.
The Q&A gives a high-level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements and matrimonial property regimes; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; controversial areas and reform; and the effect of COVID-19.
This Q&A is part of the global guide to family law.
This global guide is published in association with the International Academy of Family Lawyers.
Jurisdiction and conflict of law
1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?
Sources of law
In general, family law matters in the Florida courts are considered to be proceedings in equity. Divorce is strictly dealt with by statute and the legislature is responsible for determining the terms on which a dissolution of a marriage is allowed (Goldberg v Goldberg, 642 So.2d 656 (Fla. 4th DCA 1994)).
State law. The main sources of family law in Florida are:
Marriage: the primary source of law is chapter 741 of the Florida Statutes.
Marital breakdown (dissolution of marriage) and the welfare of children in Florida: the primary source of law is chapter 61 of the Florida Statutes.
Juvenile proceedings related to children: the primary source of law is chapter 39 of the Florida Statutes.
Adoption: the primary source of law is chapter 63 of the Florida Statutes.
Domestic violence: the primary source of law is chapter 741 of the Florida Statutes.
Paternity actions: the primary source of law is chapter 742 of the Florida Statutes.
The reported decisions of the Supreme Court of Florida and of Florida's five District Courts of Appeal (mid-level) also provide a source of law.
Federal law. Federal law on family law issues is binding in the Florida state courts, including the:
International Child Abduction Remedies Act (ICARA), 22 U.S.C. 9001.
Decisions of the Supreme Court of the US and the US Court of Appeal for the Eleventh Circuit (when involving family law issues).
The Circuit Court has jurisdiction for proceedings of dissolution of marriage because the proceedings are in equity (Fla. Const. art. V, §20(c) (3)). Family law proceedings are heard by Circuit Court judges that have been appointed to the Family Division by the Chief Judge of that particular circuit (with a few exceptions in very small counties). Proceedings are generally in public, except for paternity proceedings, which are private.
2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?
A Florida court has jurisdiction to grant a divorce, if one of the parties was a resident of the state of Florida for a period of six months prior to the filing of the action (with an exception for military service) (Fla. Stat. § 61.021, 2019). If the residence requirement has not been met, the court lacks subject matter jurisdiction. Subject matter jurisdiction over the marriage allows a Florida court to grant only a divorce. Personal jurisdiction is required for the adjudication of all other issues, including property disputes and the provision of support. It is important to note that a person can be a legal resident of Florida without actually being a US citizen (Markofsky v Markofsky, 384 So.2d 38 (Fla. 3d DCA 1980)).
The court must have both subject matter and personal jurisdiction over both parties in order to adjudicate property disputes and support (Orbe v Orbe, 651 So.2d 1295, 1297 (Fla. 5th DCA 1995); Marshall v Marshall, 988 So.2d 644, 648 (Fla. 4th DCA 2008)). A party can submit to the personal jurisdiction of a Florida court, and personal jurisdiction over the other party can be obtained by effecting service within Florida. If not, determining whether personal jurisdiction can be obtained is a two-prong analysis:
The complaint must allege sufficient facts to bring the action within the reach of Florida's long-arm statute, Fla. Stat. § 48.193 (2019).
If the first prong is satisfied, then the petitioner must be able to prove that the respondent has sufficient minimum contacts with the state of Florida to satisfy the constitutional due process requirements.
(Marshall, 988 So.2d at 648.)
In order to obtain personal jurisdiction over someone who is not in Florida, it must be proven that in relation to a proceeding for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, they had maintained a matrimonial domicile in the state at the time of the commencement of the action or, the defendant had resided in the state preceding the commencement of the action (whether cohabiting during that time or not) (Fla. Stat. § 48.193(1)(a)(5) (2019)).
The court presiding over an action of dissolution of marriage has the authority to approve, grant or modify a parenting plan for any minor child of the marriage (Fla. Stat. § 61.13(2) (a) (2019)). It is not necessary for a child to be physically present in Florida for the court to make a custody determination if it appears that the child was removed in an attempt to avoid the court's approval, creation, or modification of a parenting plan.
Jurisdiction in matters regarding the custody of children, parenting and time-sharing is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (Fla. Stat. § 61.501 (2019)). A Florida court has jurisdiction to make an initial child custody determination only if:
Florida is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from the state but a parent or person acting as a parent continues to live in the state.
A court of another state does not have jurisdiction under the bullet point above, or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum, and:
the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with Florida other than mere physical presence; and
substantial evidence is available in Florida concerning the child's care, protection, training and personal relationships.
All courts having jurisdiction under the first two bullet points have declined to exercise jurisdiction on the grounds that a court of Florida is the more appropriate forum to determine the custody of the child under section 61.520 or section 61.521.
No court of any other state would have jurisdiction under the criteria specified above.
Home state means the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding (Fla. Stat. § 61.514 (2019)). In the case of a child younger than six months of age, the term means the state in which the child lived from birth with any of the parents mentioned (Fla. Stat. § 61.503(7) (2019)).
A Florida court has temporary emergency jurisdiction if:
The child is physically present in the state or the child has been abandoned.
It is necessary to protect the child because the child, or a sibling or parent of the child, has been subject to or threatened with mistreatment or abuse.
(Fla. Stat. § 61.517(1) (2019).)
The purpose of a temporary emergency order is to protect the child until the parties can obtain an order from the state with jurisdiction.
Florida's version of the Uniform Child Custody Jurisdiction and Enforcement Act has international application (Fla. Stat. § 61.506 (2019)). A child custody decision of a foreign country that substantially conforms with the Uniform Child Custody Jurisdiction and Enforcement Act will be recognised and enforced in Florida (unless the child custody law of the foreign state violates fundamental principles of human rights).
Domicile, nationality and habitual residence
3. How do the concepts of domicile, nationality and habitual residence apply in relation to divorce, financial arrangements, and children?
Under Florida law, residence and domicile are not synonymous (Latta v Latta, 654 So.2d 1043 (Fla. 1st DCA 1995)). In Florida, residence is the key concept in relation to divorce and financial arrangements. It is important to note that a person can be a legal resident of Florida without being a US citizen (Markofsky v Markofsky, 384 So.2d 38 (Fla. 3d DCA 1980)). Therefore, one need not be a U.S. national to be divorced in Florida. One need only be a Florida resident.
Residence is also the primary factor with regards to children, as provided under the Uniform Child Custody Jurisdiction and Enforcement Act. However, the issue of habitual residence applies in proceedings under the Hague Convention on civil aspects of international child abduction (1980 Hague Convention) (42 U.S.C. § 11601).
Conflict of law
4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?
A party can request to stay proceedings in Florida by filing for a motion to stay or for an anti-suit injunction, if the foreign jurisdiction was first to exercise jurisdiction (see below).
The case of Martinez v Martinez, 15 So.2d 842 (Fla. 1943) involved a domestic relations dispute, and the Florida Supreme Court held that when a conflict between courts of concurrent jurisdiction arises, the court first exercising jurisdiction acquires control to the exclusion of the other (Mabie v Garden Street Management Corp., 397 So.2d 920 (Fla. 1981) (citing Martinez, 15 So.2d at 842)). The exercise of jurisdiction occurs when the summons is served (Mabie, 397 So.2d at 920). The concept provided by the Florida Supreme Court in Martinez is known as the principle of priority and was reaffirmed by the Florida Supreme Court in the case of Mabie.
In Bedingfield v Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982) the court admitted that the principle of priority is not applicable between sovereign jurisdictions as a matter of duty. However, as a matter of comity, a court of one state can use its discretion to stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state.
The principle of priority has been repeatedly applied in cases concerning jurisdictional disputes between states and foreign countries (Reuther v Reuther, 524 So.2d 1035 (Fla. 4th DCA 1988)). In Reuther, the court applied the principle of priority and ordered the abatement of a Florida action in favour of a divorce action in Germany, because service of process was perfected in the German case first.
There is an exception with regard to children's issues. If the Florida court finds that the children were resident in Florida for the six months before filing, and Florida was the home state of the children, the Uniform Child Custody Jurisdiction and Enforcement Act is applicable and supersedes the principle of priority (Fla. Stat. § 61.514(1)(a) (2019)). However, the court can grant a stay regarding all other issues in the case while retaining jurisdiction over the child-related issues (Norris v Norris, 573 So.2d 1085 (Fla. 4th DCA 1991)).
5. Are foreign nationals treated differently on divorce?
It is important to note that a person can be a legal resident of Florida without being a US citizen (Markofsky v Markofsky, 384 So.2d 38 (Fla. 3d DCA 1980)). Therefore, non-U.S. nationals can divorce if the residency requirement is met. Florida law will be applied unless there is an enforceable marriage contract, in which case the law of the place where the contract was made will be applied to the validity and enforcement of the contract.
Service of proceedings
6. What are the requirements for service of divorce, financial and children proceedings in your jurisdiction?
As an overview, actual service of process is required when a petition in a dissolution of marriage action seeks alimony, child support, division of property, and the court must have personal jurisdiction over the respondent (Garrett v Garrett, 668 So.2d 991 (Fla. 1996)).
Personal service is effected by delivering a copy of the process to the person to be served, with a copy of the petition (Fla. Stat. § 48.031 (2019)). In divorce actions, substituted service of process can be made by leaving the copies at the person's usual place of abode with anyone who resides at that address and who is 15 years of age or older and by informing the person who accepts service of the document contents. The rules for service of process in Florida are quite complex and specific, and therefore one should thoroughly review the applicable statute and related case law before service.
The United States is a signatory to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). (Ratified by 20 U.S.T. 361.) It is also signatory to the Inter-American Service Convention and Additional Protocol, in force with many Latin American countries not signatory to the Hague Service Convention.
Pre- and post-nuptial agreements and matrimonial property regimes
Validity of pre- and post-nuptial agreements
7. To what extent are pre- and post-nuptial agreements binding?
Florida has long recognised pre-nuptial agreements.
Florida pre-nuptial agreements entered into after 1 October 2007 are generally referred to as pre-marital agreements and the Uniform Premarital Agreement Act (UPAA) governs the validity of such agreements (Fla. Stat. § 61.079 (2019)). Under the UPAA, a pre-marital agreement will not be enforceable if the person against whom the enforcement is sought is able to prove that:
The party did not execute the agreement voluntarily.
The agreement was the product of fraud, duress, coercion, or overreaching.
The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
was not provided with fair and reasonable disclosure of the property or financial obligations of the other party;
did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
Florida pre-marital agreements entered into before 1 October 2007 are governed by substantive case law, with the primary cases being Del Vecchio v Del Vecchio, 143 So.2d 17 (Fla. 1962) and Casto v Casto, 508 So.2d 330 (Fla. 1987).
Post-nuptial and marital settlement agreements have also long been recognised in Florida, and the Casto case is the leading authority in this area.
For pre-nuptial and post-nuptial agreements entered into prior to 1 October 2007, there is a two-prong analysis to determine the validity of the agreement. The agreement can be set aside if either prong is met:
Prong One. A spouse can set aside or modify an agreement by establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.
Prong Two. The spouse asserting invalidity must establish that the agreement makes an unfair or unreasonable provision given the circumstances of the parties. Once the spouse asserting invalidity establishes that the agreement is unfair or unreasonable, the burden shifts to the spouse asserting that the agreement is valid, who must prove validity by establishing that:
there was full and frank disclosure of the assets, liabilities and income of the parties before the signing of the agreement (Casto, 508 So.2d at 333); or
the spouse seeking to set aside the agreement had a general and approximate knowledge of the character and extent of the marital property sufficient to obtain a value by reasonable means, as well as a general knowledge of the income of the parties.
With regard to foreign pre-nuptial and post-nuptial agreements, Florida follows the conflicts of laws rule that the US Supreme Court established in Scudder v Union Nat' l Bank, 91 U.S. 406, 23 L.Ed. 245 (1876). In cases where the place of making and performing the contract are not the same, the laws of the place where the contract was made will govern matters of execution, interpretation and validity. The Florida Supreme Court follows this rule. The court in the Sturiano v Brooks 523 So. 2d 1126 (1988) case recognised that the doctrine of lex loci contractus (law of the place where the contract was made) is inflexible, but that the inflexibility was necessary to ensure stability in contracts (Estate of Nicole Santos, 648 So.2d 277 (Fla. 4th DCA 1995)). Therefore, Florida will apply the law of the place where the contract was made in determining matters of execution, interpretation and validity of pre-nuptial and post-nuptial agreements (unless the terms are against the public policy of the state).
8. Do matrimonial regimes exist in your jurisdiction and is there a default matrimonial property regime?
Equitable distribution of marital assets and liabilities is the regime for property distribution unless modified by the parties in a premarital or marital agreement (Fla. Stat. § 61.075 (2019)).
In a proceeding for either:
Dissolution of marriage.
Disposition of assets following a dissolution of marriage by a court which lacked jurisdiction over the absent spouse or lacked jurisdiction to dispose of the assets.
In addition to all other equitable remedies available to a court, the court:
Allocates to each spouse that spouse's non-marital assets and liabilities.
Distributes the marital assets and liabilities between the parties, beginning with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including:
the contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker;
the economic circumstances of the parties;
the duration of the marriage;
any interruption to either party's personal career or educational opportunities;
the contribution of one spouse to the personal career or educational opportunity of the other spouse;
the desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party;
the contribution of each spouse to the acquisition, enhancement and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the parties' non-marital assets;
the desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court first determines if it would be in the best interest of the dependent child to remain in the marital home, and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home;
the intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within two years before the filing of the petition; and
any other factors necessary to do equity and justice between the parties.
(Fla. Stat. § 61.075(1) (2019).)
9. How are foreign separation of property agreements and pre- and post-nuptial agreements treated by the courts in your jurisdiction?
With regard to foreign pre-nuptial and post-nuptial agreements, Florida follows the conflicts of laws rule that the US Supreme Court established in Scudder v Union Nat' l Bank, 91 U.S. 406, 23 L.Ed. 245 (1876). In cases where the place of making and performing the contract are not the same, the laws of the place where the contract was made will govern matters of execution, interpretation and validity. The court in Sturiano v Brooks 523 So.2d 1126 (1988) recognised that although the doctrine of lex loci contractus (law of the place where the contract was made) is inflexible, the inflexibility was necessary to ensure stability in contracts (Estate of Nicole Santos, 648 So.2d 277 (Fla. 4th DCA 1995)).Therefore, Florida will apply the law of the place where the contract was made in determining matters of execution, interpretation and validity of pre-nuptial and post-nuptial agreements (unless the terms are against the public policy of the state).
Divorce, nullity and judicial separation
Recognition of foreign marriages/divorces
10. Are foreign marriages/divorces/civil partnerships recognised?
Foreign marriages are generally recognised under the doctrine of comity. However, Florida will refuse to recognise marriages that are considered to be in violation of Florida's public policy.
Florida gives force and effect to a foreign divorce decree under the doctrine of comity. To activate the doctrine of judicial comity, a foreign judgment must include elements that would be supported if the judgement was obtained in the US. For example, the grounds relied on must be sufficient under Florida law and the petitioning party must satisfy the jurisdictional requirements relating to domicile. It has long been held that Florida courts do not recognise a foreign national's divorce decree unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the decree was given (Re Estate of Schorr, 409 So.2d 487 (Fla. 4th DCA 1981)). In addition, Florida typically does not recognise divorces granted without notice and due process.
There are no reported cases on the recognition of a foreign annulment. However, it can be assumed that a foreign final judgment of annulment will be recognised under the doctrine of comity where the parties have been given notice and the opportunity to be heard, where the foreign court had original jurisdiction, and where the foreign decree does not offend Florida's public policy (Nahar v Nahar, 656 So.2d 225 (Fla. 3d DCA 1995)).
A civil partnership is equivalent to a marriage and therefore subject to dissolution via chapter 61 of the Florida Statutes (Brassner v Lade, (Fla. Cir. Ct. 2014)). A civil partnership of a foreign country would be recognised under the doctrine of comity, although there is currently no case law to that effect.
11. What are the grounds for divorce?
Florida Statutes § 61.052(1) (2019) provide two grounds that entitle a person to a judgment of dissolution of marriage:
The marriage of the parties has irretrievably broken down. If the court finds the marriage to be irretrievably broken, it must dissolve the marriage (Fla. Stat. § 61.052(2) (2013)). Florida is a no-fault jurisdiction, and therefore the irretrievable break down of the marriage does not need to be proven. The parties' state of mind is the main consideration (Riley v Riley, 271 So.2d 181 (Fla. 1st DCA 1972)).
A party has been declared as mentally incapacitated for at least three years under Florida Statutes § 744.331 (2013).
A marriage can be annulled for any reason that has prevented the parties from contracting a valid marriage. The invalidity of a marriage can arise from:
A lack of legal capacity to contract a marriage, or a statutory prohibition against the type of marriage in question.
A lack of mental capacity to contract a marriage.
A lack of actual consent to contract a marriage.
Consent that has wrongfully been procured by force, duress, fraud or concealment.
A lack of physical capacity to consummate the marriage (Sack v Sack, 184 So.2d 434 (Fla. 3d DCA 1966)).
Judicial separation does not exist in Florida.
12. What is the procedure and timeline for divorce?
The Florida Supreme Court has a guideline that family law cases, from commencement to final judgment, should be completed within six months. However, this guideline is not binding.
Judicial separation does not exist in Florida.
Religious marriage and divorce
13. Are religious marriages and divorces recognised in your jurisdiction?
You must get a state marriage licence for a religious marriage to be recognised. Generally, under the doctrine of comity, a foreign religious marriage will be recognised by the courts if it would be recognised in the jurisdiction where the marriage occurred, unless the marriage was against Florida's public policy.
Finances/capital and property
14. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?
Florida has an equitable distribution scheme for the division of marital assets and marital liabilities. This is established in §61.075 of the Florida Statutes. The section requires the trial court to set apart each spouse's non-marital assets and liabilities before making an equitable distribution of the marital assets (Lagstrom v Lagstrom, 662 So.2d 756 (Fla. 4th DCA 1995)). The starting point in equally distributing marital assets is an even division of the assets. This is unless the trial court expresses a reasonable and logical justification for an unequal division of the assets. Assets and liabilities acquired or incurred during the marriage, individually or jointly, are presumed to be marital (Fla. Stat. § 61.075(6) (a) (1)). If the efforts of either party during the marriage cause an appreciation in the value of a non-marital asset, the increase in value will be considered as a marital asset which is subject to equitable distribution (Chapman v Chapman, 866 So.2d 118 (Fla. 4th DCA 2004)). In general, the test for determining whether assets are marital, and therefore subject to equitable distribution, is not how they are titled but whether they were acquired legally and beneficially during the marriage by one or both of the parties (Buttner v Buttner, 484 So.2d 1265 (Fla. 4th DCA 1986)). A company or business acquired during the marriage is a marital asset, subject to equitable distribution (Esposito v Esposito, 651 So.2d 1248 (Fla. 2d DCA 1995)). Generally, marital assets in a revocable trust are subject to equitable distribution (Stith v Stith, 384 So.2d 317 (Fla. 2d DCA 1980)). In most cases, a truly irrevocable trust's assets are not marital and subject to equitable distribution, although the trust itself may be joined as a party to the action and/or trust modification can be sought (see Nelson v Nelson, 206 So.2d 818 (Fla. 2d DCA 2016)). This general rule does not preclude an argument that a spouse unilaterally dissipated a marital asset by placing it in to an irrevocable trust, and that the spouse should be charged with same in equitable distribution (Schneider v Schneider, 864 So.2d 1193 (Fla. 4th DCA 2004)).
During divorce proceedings, a court can make an interim partial distribution of marital assets if good cause is shown (although extraordinary circumstances are required) (Fla. Stat. § 61.075(5) (2019); DeFanti v Russell, 126 So.3d 377 (Fla. 4th DCA 2013)).
15. What factors are relevant to the exercise of the court's powers?
Section 61.075 of the Florida Statutes provides that the court must start by determining an equal distribution of the marital assets and liabilities, unless there is justification for an unequal distribution based on all relevant factors. Factors include:
The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as a homemaker.
The economic circumstances of the parties.
The duration of the marriage.
Any interruption of either party's personal career or educational opportunities.
The contribution of one spouse to the personal career or educational opportunity of the other spouse.
The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the non-marital assets of the parties.
The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party. This must be in the best interest of the child or that party, and be financially feasible for the parties to maintain the residence until the child reaches adulthood or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court must first determine if it would be in the best interest of the dependent child to remain in the marital home, and, if not, whether it would be more equitable to give any other party exclusive use and possession of the marital home.
The intentional dissipation, waste, depletion or destruction of marital assets after the filing of the petition or within two years prior to the filing of the petition.
Any other factors necessary to promote equity and justice between the parties.
16. What is the court's current position on the division of assets?
Section 61.075(3) (2019) of the Florida Statutes requires the trial court to identify and value all marital assets and liabilities. Distribution of the marital assets and liabilities must be supported by factual findings in the judgment or order based on competent and substantial evidence. All assets acquired and liabilities incurred by either spouse after the date of the marriage and not specifically established as non-marital assets or liabilities are presumed to be marital assets and liabilities (Krift v Obenour, 152 So.3d 645 (Fla. 4th DCA 2014)).
17. How does ongoing spousal maintenance operate following marital breakdown?
Maintenance in Florida is mainly based on the need and ability to pay. A Florida court has broad discretion in determining the amount of maintenance, and the decision of the court will not be disputed on appeal unless no reasonable man would take the view adopted by the court (Canakaris v Canakaris, 382 So.2d 1197 (Fla. 1980)). A final judgement for maintenance can only be made after the court has distributed marital assets and liabilities (Fla. Stat. § 61.075(9) (2019)). Florida Statute § 61.08 (2019) provides for the following types of alimony (spousal support):
Temporary alimony (during pendency proceedings).
Rehabilitative alimony (to allow the receiving spouse to become self-supporting).
Bridge-the-gap alimony (to allow a party to make the transition from being married to being single).
Durational alimony (to provide a party with economic assistance for a set period of time following a marriage of short and moderate duration, when permanent alimony is inappropriate).
Permanent alimony (until the judgment is modified, or until either party dies or the receiving spouse remarries).
Lump sum support alimony (a monitory sum or form of real property awarded in a fixed, definite and unchangeable form of support, for which extraordinary circumstances are required).
18. Is it common for maintenance to be awarded on marital breakdown?
It is difficult to judge how common it is for maintenance to be awarded on marital breakdown because of the broad discretion awarded to trial judges.
19. What is the court's current position on maintenance on marital breakdown?
A trial court is required to make specific findings regarding the seven statutory maintenance (alimony) factors provided in Fla. Stat. § 61.08(2) (2019) (Jain v Jain, 915 So.2d 711 (Fla. 4th DCA 2005)). In determining the type and amount of alimony, the court must consider all relevant factors, including, but not limited to:
The standard of living established during the marriage.
The duration of the marriage.
Each party's age and physical and emotional condition.
Each party's financial resources, including the non-marital and marital assets and liabilities.
The parties' earning capacity, educational level, vocational skills, and employability and, when applicable, the time necessary for either party to acquire sufficient education or training to find appropriate employment.
Each party's contribution to the marriage, including, but not limited to homemaking, child care, education and career building of the other party.
The responsibilities each party will have with regard to any minor children they have in common.
The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a non-taxable and non-deductible payment.
All sources of income available to either party, including income available to either party through investments of any asset held by that party.
Any other factor necessary to do equity and justice between the parties.
(Fla. Stat. § 61.08(2) (2019).)
20. What financial claims are available to parents on behalf of children within or outside of the marriage?
Financial claims that can be brought on behalf of children are established in Florida's child-support statute. Child support is calculated in accordance with the income-shares model (see below). The establishment of child support is generally monetary in nature and not subject to capital claims or transfers of property. As part of child support under the statutory scheme, health insurance and the allocation of uncovered medical expenses must be addressed in any child support order. The court may order child support to be secured by life insurance (Fla. Stat. § 61.30 (2019)). A married person can seek child support unconnected with a dissolution of marriage (Fla. Stat. § 61.09 (2019)).
21. On what basis is child maintenance calculated?
Section 61.30 of the Florida Statutes establishes child support guidelines that are used to determine the amount of child support. The child support guidelines are based on the income-shares model, which takes into account the obligation of both parents to contribute to the support of their children. In summary, the guidelines operate as follows:
The parents' net monthly incomes (as defined by the statute) are added together to determine a combined net monthly income.
The guidelines schedule provided in the statute is applied to the combined net monthly income of the parents to determine the minimum child support need.
Employment child care costs are added to the basic obligation.
The cost of health insurance and medical, dental and prescription medications that are not covered are added to the basic obligation.
Each parent's percentage share of the child support need is determined by dividing each parent's monthly net income by the combined monthly net income.
The actual amount in USD of child support owed by each parent is finally determined by multiplying the total minimum child support need by each parent's percentage share of the combined monthly net income.
If a parent is responsible for the child overnight for more than 20% of the time, child support is adjusted based on the calculation using the percentage of overnight stays for each parent.
22. What is the duration of a child maintenance order (up to the age of 18 years or otherwise)?
In Florida, child support lasts until the child reaches 18 years of age, or beyond if the person is:
Dependent in fact.
Between the ages of 18 and 19.
Still in high school.
Performing in good faith with a reasonable expectation of graduation before the age of 19.
(Fla. Stat. § 61.14(2019).)
There are no provisions for tertiary education.
23. Can a child (whether of legal maturity or otherwise) make a claim directly against their parents?
A child cannot make a claim directly against their parents for child support past the statutory limits listed in Question 22. They cannot seek support for university/tertiary education support.
Enforcement of financial orders
24. What are the main methods of enforcement to ensure compliance with financial orders following divorce/dissolution in your jurisdiction?
The answer to this question is complex, and differs as to enforcement of property distribution versus support.
The enforcement of a financial order for property distribution is only enforceable with remedies available to creditors against debtors. Article I, Section 11 of the Florida Constitution prohibits imprisonment for debt. See Williams v Williams, 958 So.2d 994 (Fla. 5th DCA 2007).
Support orders (spousal support, child support and related) are enforceable through a myriad of procedures, including civil contempt, criminal contempt, garnishment, sequestration, writ of ne exeat, and income deduction orders. For an in-depth review of enforcement procedures, see Bowen v Bowen, 471 So.2d 1274 (Fla. 1985).
25. What is the legal position on the reciprocal enforcement of financial orders?
Florida enforces a foreign nation's divorce decree (including financial orders) under the doctrine of comity. To activate the doctrine of judicial comity, a foreign judgment must include elements that would be supported if the judgement was obtained in the US. For example, the grounds relied on must be sufficient under Florida law and the petitioning party must satisfy the jurisdictional requirements relating to domicile. It has long been held that Florida courts will not recognise a foreign nation's divorce decree unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the decree was declared (Re Estate of Schorr, 409 So.2d 487 (Fla. 4th DCA 1981); Albassam v Klob, 238 So.3d 311 (Fla. 4th DCA 2018)).
Financial relief after foreign divorce proceedings
26. What powers are available to the court to make orders following a foreign divorce? If such a power exists, what is the legal basis for making such an application?
If the foreign divorce is enforceable in Florida under the doctrine of comity or under statute, the following applies:
The well-established rule in Florida provides that since property rights in a dissolution of marriage action are fixed and vested at the time of entry of the final judgment of dissolution, the trial court cannot subsequently modify the rights, unless there is a specific reservation of jurisdiction to do so (Mandy v Williams, 492 So.2d 759 (Fla. 1986)).
The courts can generally enforce the property rights of a foreign divorce judgment once it has been properly domesticated (Fla. Stat. § 55.601 (2013)).
A Florida court cannot modify a spousal support order issued by a tribunal of another state or country that has "continuing exclusive jurisdiction" over the order throughout the existence of the support obligation (Fla. Stat. § 88.2051, §88.1041 (2013)).
In general, a party seeking to enforce an out-of-state alimony or spousal support order can file a complaint to domesticate the judgment (Cardenas v Solis, 570 So.2d 996 (Fla. 3d DCA 1990)). If enforcement of the alimony or spousal support is the relief sought, an exemplified, certified and apostilled copy of the foreign judgment must be attached (Fla. Fam. L. R. P. 12.130).
A petition to enforce and/or modify a child support order of another country can be filed in conjunction with a foreign child support order that has been registered in Florida (Fla. Stat. § 88.6161 (2013)). The Florida courts cannot modify a foreign child support order if the country issuing the order maintains continuing exclusive jurisdiction (Fla. Stat. § 88.6111 (2013)).
27. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?
It is public policy in Florida that each minor child has frequent and continuing contact with both parents after the parents separate (if unmarried) or the marriage of the parties is dissolved. Parents are encouraged to share the rights and responsibilities of childrearing (Fla. Stat. § 61.13(2) (c) (1) (2019)). A court is required to enter a parenting plan. See Question 28.
28. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?
A parenting plan determines the level of access and contact following the breakdown of a relationship or marriage. There is no presumption for or against the father or the mother of the child, or, for or against any specific time-sharing schedule when creating or modifying the parenting plan.
A parenting plan is a document created to govern the relationship between the parents relating to decisions regarding the minor child. It must also contain the time-sharing schedule for the parents and child. The issues concerning the minor child can include, but are not limited to, the child's education, healthcare, and physical, social and emotional well-being. In creating the plan, all circumstances between the parents, including their historic relationship, domestic violence, and other factors must be taken into consideration (Fla. Stat. § 61.046(14) (2019)).
In general, a court must award shared parental responsibility or sole parental responsibility. Shared parental responsibility is a court ordered relationship where both parents retain full parental rights and responsibilities with respect to their child and where both parents jointly decide on major decisions affecting the welfare of the child (Fla. Stat. § 61.046(17) (2019)). Sole parental responsibility is a court-ordered relationship where one parent makes sole decisions regarding the minor child (Fla. Stat. § 61.046(18) (2019)). The court can also make an order for the ultimate decision-making authority of one parent on specific issues (Kasdorf v Kasdorf, 931 So.2d 257 (Fla. 4th DCA 2006)).
Children are not entitled separate representation, however the court has the authority to appoint an attorney ad litem to represent the child in certain circumstances, when necessary to protect the child's best interests (Fla. Stat.§ 61.401 (2019)).
29. What is the legal position on international abduction?
On 21 July 1988, the US became a signatory to the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). The central authority is the Department of State, Office of Children's Issues. The implementation law, known as the International Child Abduction Remedies Act (ICARA) can be found at 42 U.S.C. §§ 11601. An action under the law can be filed in the US District Court or Florida's Circuit Court, Family Division.
Florida Family Law Rules of Procedure form 12.941(a) also provides a form for a "Verified Motion to Prevent Removal of Minor Children and/or Denial of Passport Services". The Hague Child Abduction Convention is not the exclusive remedy for enforcement of foreign child custody orders. International remedies under Florida's version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Federal Parental Kidnapping Prevention Action (PKPA) are also available.
In February of 2020, the US Supreme Court entered the landmark decision of Monasky v Taglieri, which in pertinent part held that a child's habitual residence under the Hague Child Abduction Convention and ICARA depends on the totality of the circumstances, suggesting fact sensitive inquiry (Monasky v Taglieri, 140 S.Ct. 719 (2020)).
Leave to remove/applications to take a child out of the jurisdiction
30. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?
Florida laws directly address the removal and relocation of a child to another jurisdiction. Relocation means a change in the location of the principal residence of a parent or any other person at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be a location at least 50 miles from the residence, and must be for at least 60 consecutive days (not including temporary absence for the purposes of vacation, education, or the provision of health care for the child (Fla. Stat. § 61.13001(1)(e) (2019)).
Relocation can be done by agreement or by petition (contested). Unless an agreement can be reached as provided by statute, a parent or other person seeking relocation must file a petition to relocate and serve it on the other parent, and every other person entitled to access to or time-sharing with the child (Fla. Stat. § 61.13001(3) (2019)). A presumption in favour or against a request to relocate the child does not arise if a parent or other person seeks to relocate and the move will materially affect the current schedule of contact, access, and time-sharing with the non-relocating parent or other person (Fla. Stat. § 61.13001(7) (2013)).
The court must evaluate all of the following when reaching a decision regarding a proposed temporary or permanent relocation:
The nature, quality, extent of involvement and duration of the child's relationship with the parent or other person proposing to relocate with the child and with the non-relocating parent, other persons, siblings, half-siblings and other significant persons in the child's life.
The child's age and developmental stage, the child's needs and the likely impact the relocation will have on the child's physical, educational and emotional development (taking into consideration any special needs of the child).
The likelihood of preserving the relationship between the non-relocating parent or other person and the child through alternative arrangements that take into consideration the planning of contact, access, and time-sharing, as well as the financial circumstances of the parties. Are the factors sufficient to foster a continuing meaningful relationship between the child and the non-relocating parent or other person? What is the likelihood of compliance with the alternative arrangements by the relocating parent or other person once they are out of the court's jurisdiction?
The child's preference, taking into consideration the child's age and maturity.
Whether the relocation will enhance the general quality of life for the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
The reasons each parent or other person is seeking or opposing the relocation.
Each parent's or other person's current employment and economic circumstances and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
Whether the relocation is sought in good faith and the extent to which the objecting parent has fulfilled their financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
Career and other opportunities available to the objecting parent or other person if the relocation occurs.
A history of substance abuse or domestic violence by either parent, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
Any other factor affecting the best interest of the child or as provided in Fla. Stat. § 61.13.
The parent or other person wishing to relocate has the burden of proving by a majority of evidence that relocation is in the child's best interest. If the burden of proof is met, the burden will shift to the non-relocating parent or other person to show by a majority of evidence that the proposed relocation is not in the child's best interest (Fla. Stat. § 61.13001(8) (2019)).
Surrogacy and adoption
31. What is the legal position on surrogacy agreements in your jurisdiction? Is surrogacy available to individuals and cohabiting couples (both heterosexual and same-sex)?
Surrogacy agreements are recognised in Florida if they are compliant with Fla. Stat. § 742.15.
The law provides that prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract must be made between the commissioning couple and the gestational surrogate. A contract for gestational surrogacy will not be binding and enforceable unless the gestational surrogate is 18 years of age or older and the commissioning couple are legally married and are both 18 years of age or older.
The commissioning couple must enter into a contract with a gestational surrogate only when (within reasonable medical certainty as determined by a physician licensed under chapter 458 or chapter 459 of the Florida Statutes):
The commissioning mother cannot physically gestate a pregnancy to full term.
The gestation will cause a risk to the physical health of the commissioning mother.
The gestation will cause a risk to the health of the foetus.
A gestational surrogacy contract must include the following provisions:
The commissioning couple agrees that the gestational surrogate will be the sole source of consent with regard to clinical intervention and management of the pregnancy.
The gestational surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions about her pre-natal health.
The gestational surrogate agrees to surrender any parental rights on the child's birth and to proceed with the judicial proceedings prescribed under § 742.16 of the Florida Statutes (provided neither member of the commissioning couple is the genetic parent of the child).
The commissioning couple agrees to accept custody of and to assume full parental rights and responsibilities for the child immediately on the child's birth, regardless of any impairment of the child (provided neither member of the commissioning couple is the genetic parent of the child).
The gestational surrogate agrees to assume parental rights and responsibilities for the child born to her if it is determined that neither member of the commissioning couple is the genetic parent of the child.
The commissioning couple can agree as part of the contract, to pay only reasonable living, legal, medical, psychological and psychiatric expenses of the gestational surrogate that are directly related to the pregnancy.
32. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?
Florida has a statute that governs the laws on adoption.
The state has a strong interest in:
Providing stable and permanent homes for adoptive children in a prompt manner.
Preventing the disruption of adoptive placements.
Holding parents accountable for meeting the needs of children.
Adoptive children have the right to permanence and stability in adoptive placements. Adoptive parents have a constitutional privacy interest in retaining custody of a legally adopted child.
An unmarried mother faced with the responsibility of making important decisions about the future of a newly born child is entitled to privacy, has the right to make timely and appropriate decisions regarding her future and the future of the child, and is entitled to assurance regarding an adoptive placement.
An unmarried biological father has an undeveloped interest that acquires constitutional protection only when he demonstrates a timely and full commitment to the responsibilities of parenthood, both during the pregnancy and after the child's birth. The state has a strong interest in requiring an unmarried biological father to demonstrate that commitment by providing appropriate medical care and financial support and by establishing legal paternity rights (Fla. Stat. § 63.022(1) (2019)).
In general, a husband and wife jointly, an unmarried adult or a step-parent can adopt (Fla. Stat. § 63.042(2) (2019)). The statute provides that homosexuals cannot adopt (Fla. Stat. § 63.042(3) (2013)). The provision banning homosexual adoption was found to be unconstitutional, as it had no rational relationship to a legitimate government objective, and under the rational basis test, the statute violated the equal protection clause of the Florida Constitution (Fla. D.C.F. v Adoption of XXG, 45 So.3d 79 (Fla. 3d DCA 2010)). Therefore, homosexual adoptions can now proceed in Florida.
33. What legislation (if any) governs division of property and financial claims for unmarried couples on the breakdown of the relationship?
There is no legislation in Florida that governs the division of property for unmarried couples on the breakdown of their relationship.
Family dispute resolution
Mediation, collaborative law and arbitration
34. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?
Private mediation is available to resolve family law disputes. In many parts of Florida, low-cost mediation programmes exist for low income litigants. The Supreme Court of Florida certifies family mediators. Mediated agreements that are not contrary to Florida law or public policy, are generally accepted.
The collaborative law process in Florida is voluntary and is now regulated by statute (Fla. Stat. § 63.55-58 (2019)).
Private arbitration is also available, and the decisions can be binding on the parties (except for issues relating to child custody, visitation rights or child support).
35. What is the statutory basis (if any), for mediation, collaborative law and arbitration?
The Florida courts have authority to order parties in a divorce case or a case involving children to mediation (Fla. Stat. § 61.183 (2013)). Pre-trial mediation is generally mandatory in family cases, with the requirement forming part of an order setting trial.
The Florida Collaborative Law Process Act now governs collaborative family law disputes in Florida. It is found at Fla. Stat. § 63.55-58 (2019).
Arbitration in family law matters is not binding unless all parties agree (Fla. Stat. § 44.104 (2013)). Any dispute involving child custody, visitation rights or child support cannot be the subject of binding arbitration, even with the agreement of the parties (Fla. Stat. § 44.104(14) (2019)).
Civil partnership/same-sex marriage
36. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?
Florida does not have civil partnerships.
The Florida Statutes specifically prohibit the sanctioning and recognition of same-sex marriages (Fla. Stat. § 741.212 (2019)). However, same-sex marriages have been recognised in Florida since 6 January 2015. The US District Court for the Northern District of Florida found that the fundamental right to marry was protected by the Due Process and Equal Protection Clauses of the US Constitution which includes the right to same-sex marriage (Brenner v Scott, 999 F.Supp.2d 1278 (N.D. Fla. 2015)).
Media access and transparency
37. What is the position regarding media access to and press reporting of family law cases?
Dissolution of marriage actions are public events and there is a strong presumption of public access to these proceedings and their records. The parties to a dissolution of marriage action are not entitled to a private court proceeding just because they are required to utilise the judicial system. Dissolution proceedings are regulated by statute and are unique because the state is considered an interested third party to protect the public welfare (Barron v Florida Freedom Newspapers. 531 So.2d 113 (Fla. 1988)). As such, members of the public and press have access to proceedings and court files/exhibits, unless there is an order restricting such access. It is rare for files to be sealed or proceedings closed (see Fla. R. Jud. Admin. 2.420; Fla. Fam. L.R.P. 12.400).
In paternity proceedings, the judge has the authority to have any hearing in chambers and restrict access to persons (Fla. Stat. § 742.031 (2019)). Adoption proceedings, hearings and records are generally confidential in nature (Fla. Stat. § 63.162 (2019)).
Controversial areas and reform
38. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?
The areas currently undergoing major change in Florida family law are as follows:
Requests from foreign countries for evidence.
Alimony (spousal support/maintenance) guidelines and reform.
39. What has been the impact of COVID-19 and the resultant social distancing and lockdown measures on the family court system in your jurisdiction?
The courts in the state of Florida are physically closed for all proceedings except domestic violence and other emergency proceedings. Hearings and non-jury trials are conducted electronically as authorised by the chief judge of each judicial circuit. Courts will reopen when certain criteria, established by the Florida Supreme Court, have been met. Notarisation requirements have been relaxed in certain instances. See Supreme Court of Florida Administrative Order #AOSC20-32 (2020) and amendments. In most circuits, child timesharing requirements have not been suspended.
Professional and academic qualifications. Admitted to the Supreme Court of Florida and all other Florida Courts; Board Certified in Marital and Family Law by the Florida Bar; admitted to the United States Supreme Court; admitted to the United States District Court, Southern District of Florida; admitted to the United States District Court, Middle District of Florida; Juris Doctor, Florida State University; BA, Criminal Justice, University of Florida
Areas of practice. International and domestic marital and family law.
Recent transactions. The partners of Sasser, Cestero & Sasser, PA have acted for captains of industry, entertainment celebrities, authors, professional athletes, business owners, other professionals, homemakers, and working men and women.
Languages. English, Spanish
Professional associations/memberships. Fellow, American Academy of Matrimonial Lawyers; Fellow, International American Academy of Matrimonial Lawyers; Master, Susan Greenberg Family Law Inn of Court; Member and past Chair, Family Law Section of The Florida Bar; Family Law Section, American Bar Association.
Professional and academic qualifications. Admitted to the Supreme Court of Florida and all lower Florida Courts; Board Certified in Marital and Family Law by the Florida Bar; admitted to the United States Supreme Court; admitted to the United States District Court, Southern District of Florida; Juris Doctor, University of Florida; BA, English and History, College of William & Mary
Areas of practice. International and domestic marital and family law.
Recent transactions. The partners of Sasser, Cestero & Sasser, PA have acted for captains of industry, entertainment celebrities, authors, professional athletes, business owners, other professionals, homemakers, and working men and women.
Languages. English, Russian
Professional associations/memberships. Fellow, American Academy of Matrimonial Lawyers; Fellow, International American Academy of Matrimonial Lawyers; Diplomate, American College of Family Trial Lawyers; Member and past Chair, Family Law Section of The Florida Bar; Family Law Section, American Bar Association.