Divorce Process in Florida & Giving Up Rights

by Cindy Chung, studioD
Spouses may avoid a divorce trial by negotiating a settlement.

Spouses may avoid a divorce trial by negotiating a settlement.

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When a husband and wife divorce in Florida, each spouse has rights and responsibilities set by state law. Although spouses can litigate contested issues in court, each spouse may choose to give up certain rights by agreement and without extensive litigation. Before signing a settlement agreement, each spouse should know their rights under Florida divorce law and understand the consequences of giving up those rights.

Divorce Paperwork

To start a Florida divorce, the spouse requesting the divorce must file a petition for dissolution of marriage in state court. The other spouse has a 20-day period to file an answer, which states the spouse's responses to the legal issues in the divorce petition. The answer may also include a counter-petition raising additional issues. A non-petitioning spouse's failure to answer and lack of a counter-petition may relinquish that spouse's right to object to legal issues raised by the petitioning spouse. In addition, Florida state laws require financial affidavits and complete financial information provided by each spouse. However, the spouses may waive a full disclosure of financial information as long as they each submit a financial affidavit.

Fault in Divorce

Florida divorce laws do not currently allow fault-based divorce based on a spouse's misconduct, such as adultery. The state of Florida mostly grants divorces based on irreconcilable differences. However, a state court may consider each party's fault in ending the marriage and marital misconduct when deciding legal issues such as property division, alimony and child custody. Accordingly, a spouse who gives up a trial or court hearing on alleged fault or misconduct might affect the court's determination of major issues in the divorce.

Divorce Trial

If spouses cannot agree to dissolve their marriage or resolve the legal issues in their divorce, they have a right to a trial in state court. However, a couple may waive the right to a trial by negotiating a marital settlement on their own or with the help of lawyers. In addition, some couples may qualify for simplified divorce which does not require a trial. Spouses can choose simplified divorce if they meet the residency requirement, do not have children, do not need a court to award alimony and have negotiated their own property settlement.

Property and Alimony

Florida divorce laws establish each spouse's rights regarding property division and alimony at the end of a marriage. Each spouse has a right to request alimony and ask the court to determine an alimony award based on factors in Florida law. However, either spouse may agree to give up the right to request alimony as part of the couple's marital settlement. Florida law also requires property division according to the principles of equitable distribution; however, the spouses may give up their rights to property division by a judge and create a marital settlement on their own terms, as long as the court approves the settlement.

Child Custody

Married parents generally both have the right to request child custody, known as parenting responsibilities, as part of a Florida divorce case. Although the state courts presume that children's best interests require parenting time with both parents, a parent may choose to give up custody rights and allow one parent to take sole custody. However, giving up custody rights does not eliminate a parent's obligation to pay child support.