Moving to the Sunshine State? Top Ten Things You Should Know About Florida Family Law

Moving from one state to another means a different set of laws may govern personal life along with business life. Gaining a basic understanding of these laws is an important part of making the move. Among the laws that affect personal lives are marital and family laws. Every state has its own set of marital and family laws. Those who have moved, or are contemplating moves to our state should not overlook Florida law, and its potential impact on Florida residents. While the law is complex and well beyond the scope of this article, here are our top ten things you should know about Florida family law.

1. Prenuptial Agreements are Valid and Enforceable.

Prenuptial Agreements are agreements made between prospective spouses in contemplation of marriage, to be effective upon marriage. Preparing Prenuptial Agreements requires a thorough understanding of the law as well as the dynamics that bring two people together, about to share their life, but not their money. Florida Prenuptial Agreements can address many issues raised in other sections below. One must understand a Prenuptial Agreement’s permitted scope (and limits) under Florida law.

The laws that govern Prenuptial Agreements vary from state to state. Prenuptial Agreements have been recognized in Florida for decades. In 2007, Florida adopted statutory provisions known as the Uniform Premarital Agreement Act (UPAA). The UPAA includes a framework for issues that may be covered by these agreements. Challenges to a Prenuptial Agreement’s validity under Florida law include fraud, duress, coercion, overreaching, and others. The legal theories that govern challenges are different depending upon whether the agreement was effective prior to enactment of the UPAA in 2007 or after its enactment.

Married people with existing Prenuptial Agreements governed by state laws other than Florida, who are now moving to Florida, often engage Florida attorneys to review their agreement. The purpose of this review varies, but often includes securing advice on whether the change in domicile affects their ability to enforce various agreement terms and conditions. This review could result in efforts to amend certain provisions.

2. Six Month Residency is Required Before Filing a Petition for Dissolution of Marriage, But That is Only the Beginning. 

For a Florida court to exercise jurisdiction over a divorce action, one of the parties must satisfy the statutory durational residency requirement. In order to dissolve the marriage, Florida law provides that one of the parties must reside 6 months in the state before filing the divorce action.

The jurisdiction analysis does not end with residency. In order to adjudicate certain rights and obligations, which could include distribution of property and alimony, in addition to subject matter jurisdiction enabling the court to divorce the parties, the court must have personal jurisdiction as well. Personal jurisdictional disputes can arise following moves from one state to another, or perhaps when one party claims they never moved. These issues are fact driven, requiring a thorough factual analysis.

3. Florida is an Equitable Distribution State.

Equitable distribution is the process of dividing the parties’ assets and liabilities. Most states are equitable distribution states, as opposed to community property states. Once again, each states has its own laws that govern property distribution issues.

While complicated, all court adjudicated equitable distribution determinations include an analysis of whether assets and liabilities are marital or non-marital, the value of these assets and liabilities, and the “equitable distribution” (division) of the marital estate awarded to each spouse.

All asset and liability components include their own straightforward or complex analysis. Asset valuation in particular can be quite complex. Complex valuations include closely held businesses, real estate interests, and corporate benefit valuations. As Florida law provides that the court must begin with the premise that asset/liability distribution should be equal, it is not hard to see why valuation often takes center stage.

4. Business Valuation, and the Difference Between Personal and Entity Goodwill. 

The marital value of business interests are subject to equitable distribution. The recognized standard of value is fair market value. Fair market value is generally described as the price at which the asset would be sold to a willing buyer by a willing seller, with neither needing to buy or sell. Without a pending transaction, there is no particular buyer and the “seller” is not actually selling anything. Thus, the legal interpretation of this standard injects a hypothetical buyer into a hypothetical transaction, dealing at arm’s length.

Business valuation, including the approach employed (which include the income, market, and asset-based approaches) are subject to each business valuation expert’s opinion; however, what business owners and their spouses need to know about Florida law is that not all goodwill is subject to equitable distribution. Goodwill is often referred to as the propensity of customers to return. In Florida, only goodwill attributed to the entity itself is considered. Goodwill attributed to the person, typically the business owner, is not subject to equitable distribution. As a result, valuation disputes often include not just the choice of which business valuation approach should be applied, but also whether personal goodwill exists, and its impact on value for equitable distribution purposes.

5. Do Not Forget About Taxes.

Tax considerations affect asset value. Florida courts permit expert testimony on tax considerations that may reduce intrinsic asset value. While property received from a spouse incident to divorce is generally not a taxable event, one must always be mindful of the tax basis and other tax considerations when ascribing a value to assets within a marital estate.  Florida law recognizes that under certain circumstances, a court can consider tax consequences, which affect property values.

6. Alimony (Spousal Support).

In June of 2022, Florida’s Governor vetoed our legislature’s most recent attempt at significant alimony reform. The now failed bill included the elimination of permanent alimony. No concept causes a stir quite like permanent alimony. Permanent alimony, while not always "permanent," is designed to provide for the necessities of life as established during marriage for a party lacking financial ability to meet such needs on their own. Although permanent alimony is most often applied to long-term marriages (currently defined as 17 years or more), it can be applicable in shorter marriages as well. While modifiable under certain circumstances, permanent alimony could result in long-term support payments; that is until death of either party, or the recipient's remarriage, whichever occurs first.

For now, permanent alimony is alive and well in Florida. In addition to permanent alimony, Florida recognizes multiple forms of alimony known as temporary, bridge-the-gap, rehabilitative, and durational alimony. The Court's discretion in determining the form of alimony awarded is "broad." Understanding a person’s entitlement to receive, or exposure to pay alimony, as well as the type of alimony to be received or paid, is an integral part of any dissolution of marriage analysis.

7. Children Issues.

When more than one state might have jurisdiction to enter orders related to parental decision making (parental responsibility) and time-sharing (custody), the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) determines when a Florida court may act on these issues. The UCCJEA is primarily intended to avoid jurisdictional disputes between courts of different states in matters of child custody, in order to create uniformity between states.

Determination as to a child’s home state is a critical issue in whether a Florida court will have jurisdiction over a child custody matter. If the child is older than 6 months of age, “home state” is defined to mean “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” If the child is younger than 6 months of age, “home state” is defined to mean “the state in which the child lived from birth with any of the persons mentioned.” The Act also permits “emergency jurisdiction” over child-related issues under certain circumstances. The Act has complexities and like most marital and family disputes, children’s issues are intensively fact driven.

Under Florida law, child support awards must be based on both the bona fide needs of the child and the financial circumstances of each parent. Florida law employs child support guidelines to determine the child support amount paid. The ultimate guideline calculation includes not just each parent’s relative ability to pay support; the time each parent spends with the children is also a factor. In matters where the parents have substantial economic means, child support is often a function of actual needs as opposed to a mathematical formula.

8. Estate Planning and Divorce, Joint Considerations.

Florida marital and family attorneys often work side by side with their trust and estate planning counterparts. This is particularly true during prenuptial agreement negotiations. These agreements often address entitlements upon death of a spouse. The complexity of certain provisions brings trust and estate lawyers to the table. Quite often, the force behind these agreements are wealthy parents of the couple about to wed. When this dynamic exists, trust and estate lawyers for a party’s parent are often consulted.

9. Attorney’s Fees.

In divorce matters, the party with the superior financial position often has exposure to contribute to, or pay their spouse’s reasonable attorney’s fees. Unlike many other lawsuits, in Florida, each spouse is entitled to be on a “level playing field” with one another.  The analysis of relative ability to pay attorney’s fees includes income and asset/liability analysis. In matters where there is significant marital wealth, the playing field can be sufficiently “level” resulting in each side paying for their respective professionals.

10. The Role of Alternative Dispute Resolution.

Most Florida marital and family matters are resolved and thus do not proceed to trial. Alternative dispute resolution, such as mediation, are well engrained within this practice area in our state. Florida marital and family proceedings are public proceedings. Resolution, including via mediation and other alternative dispute forums, afford parties greater control over confidentiality than heavily litigated matters.

Our state has much to offer to those fortunate enough to live and work here. Prior to relocating, most business people thoroughly investigate the laws that might affect their business and professional life; few investigate laws that might impact their personal life. So, pack up, join the hundreds of thousands who move to Florida each year; call your mover, and don’t forget to call your lawyer.

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