Tag Archive for: florida

How Do I Get an Annulment in Florida?

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Marriage isn’t for everyone. Sometimes, we do not find this out until after the fact. If you want to dissolve your marriage in Florida, you can either get a divorce or annulment. Divorce is a simpler and less time-consuming process that just terminates the marriage. An annulment goes even further to say that the marriage is void and essentially never existed.

There are several reasons why a married person would want to seek an annulment. One of the most common is for religious reasons – for example, if your religious forbids or does not recognize divorce. So, how do you get an annulment in FL?

Annulments in Florida

Before we delve into the requirements for getting an annulment in Florida, we must first take a look at the options that the state provides. It is important to note that you can only seek an annulment if your marriage meets the criteria set forth by the court. If it does not, you can still obtain an annulment if you and your spouse never consummated the marriage or if the two of you never lived together. There is no statute under Florida law for annulments, which means the state does not provide the steps for seeking an annulment, like it does for seeking a divorce.

Under Florida law, any marriage that can be voided is one that can be annulled. A voidable marriage includes one that involves bigamy, where your spouse married you but was still married to someone else, or if you find out your wife is pregnant from another man after you get married. A voidable marriage is one in which either spouse has the option to either end the marriage or continue it.

Criteria for Annulment in Florida

If you wish to have your marriage annulled in Florida, it must meet one of the following criteria:

  • Lack of, or inability to consent: If you did not have the mental capacity to consent to the marriage, it can be annulled. This includes being under the influence of drugs or alcohol, having a mental disability, or having an illness that caused confusion.
  • Bigamy: This is when the person you married is already married to another person. Since it is not legal to be married to two people at the same time, a marriage could be annulled under this circumstance.
  • Impotence: This is when one of the spouses knows they are impotent and did not disclose it to the other spouse prior to getting married.
  • Fraud: The marriage can be voided if your spouse withheld certain facts from you that would have prevented you from marrying them in the first place.
  • Force: A marriage can be annulled if you are threatened into it by force, duress, or coercion.
  • Underage spouse: If you or your spouse are underage and the consent of the minor’s parents was not obtained, the marriage can be annulled.

Petitioning for Annulment

When the time comes to file a petition for annulment in Florida, you will need to prove that one of the above circumstances is present in your marriage. When you petition the court for an annulment, there will be no spousal support issued when the marriage is voided. Both spouses will also leave the marriage with the property they brought into the marriage. There will not be a division of marital property like there is in a divorce, because there is technically no marital property to divide.

As we discussed previously, obtaining an annulment case is not nearly as easy as obtaining a divorce. Make sure you have an experienced attorney by your side when filing for annulment, or else your case could end up being dismissed by the court.

Call Today to Speak to an Experienced Family Law Attorney

Do you want to have your marriage annulled in Florida? Are any of the circumstances listed above present in your marriage? If so, it’s time to speak to an experienced family law attorney about your situation.

Call the office of Crystal Collins Spencer at 850-912-8080 to schedule a consultation about your case. We will provide you with an explanation of the law and help you gather evidence that supports your petition for annulment – if your marriage qualifies. We have offices in Pensacola, Sandestin and Fort Walton Beach to better serve our clients.

Do Children Have a Say in the Custody Conversation in Florida?

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The issue of who ends up with the kids after a divorce if often the source of dispute among parents. Emotions can run high, and there can be heated disagreements about child custody. In Florida, “child custody” has been replaced with terms such as “parental responsibility” and “time sharing”. Parenting responsibility is the decision-making component of the parenting plan, covering areas such as education, health care, religious upbringing, and extra-curricular activities. Time-sharing is the determination of how much time each parent spends with the child during the year.

In Florida, there are three types of parental responsibility:

  • Shared Parental Responsibility: This is the most frequent arrangement and the one the state prefers. With shared parental responsibility, the parents must be willing to confer and make joint decisions regarding their child.
  • Shared Parental Responsibility with Decision-Making: This is a variation of shared parental responsibility in which one parent has ultimate decision-making authority in certain areas. For example, the mother could have decision-making authority over education while the father may be in charge of health care.
  • Sole Parental Responsibility: In this arrangement, one parent has sole authority over all decisions pertaining to the child. Sole parental responsibility is rare and only granted if the court believes it is in the child’s best interests.

There are also three types of parental time-sharing:

  • Majority Time-Sharing: This is the most common time-sharing arrangement in which one parent has the child for the majority of nights during the year.
  • Equal Time-Sharing: In this arrangement, both parents have the child for an equal number of nights. For example, a child may alternate weeks with each parent.
  • Supervised Time-Sharing: This is the rarest arrangement and it is usually only implemented by the courts when either of the other two arrangements would be detrimental to the child.

Initially, parents are supposed to work out parenting responsibility and time-sharing plans among themselves. However, in hotly contested cases in which the parents do not agree, it is left up to the courts to decide. There are several factors that the courts take into account when they determine the allocation of parental responsibilities. These include:

  • The willingness of each parent to encourage a good relationship between the child and the other parent, and to honor the parenting plan and time-sharing schedule;
  • The emotional attachment the child has with each parent;
  • The mental and physical health of each parent;
  • The moral fitness of each parent;
  • The child’s current living situation;
  • The current parental responsibilities and level of involvement each parent already has in the child’s life;
  • Any evidence of child abuse or domestic abuse;
  • The preference of the child (if the court believes the child has the understanding, intelligence, and experience to render a meaningful opinion);
  • Any other factors the court may deem relevant.

When do Children Have a Say in the Florida Custody Conversation?

Florida does not have an exact age in which the child’s preference is taken into account with regards to child custody. This is left to the discretion of the court. The judge decides whether a child should have a say in the custody conversation based on the child’s level of intelligence, experience, and understanding of the situation.

In some cases, the opinion of a child as young as 10 or 11 may be considered if the child is thoughtful, articulate, and able to meaningfully contribute to the conversation. Other times, the court may decide that the opinion of a 12 or 13-year-old should not be considered because they lack one (or more) of the aforementioned attributes. It is important to remember that, while the court can take the opinion of the child into account, it is one of several factors that are considered in making a final determination regarding parental responsibility and time-sharing.

Speak with a Knowledgeable Pensacola Family Law Attorney

Allocation of parental responsibility and time-sharing are very important issues during a divorce. When these issues are contested, it is important to have skilled legal counsel in your corner strongly advocating for your rights and interests. Crystal Collins Spencer, Attorney at Law, has over 30 years of experience representing clients in Florida for all types of family legal matters. Crystal is skilled and compassionate, and she understands the need to resolve child custody issues in a way that fully protects your interests and preserves delicate family relationships.

For a consultation with attorney Crystal Spencer, call our office today at 820-912-8080, or you may send us secure and confidential message through our online contact form.

What is a QDRO?

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Retirement accounts are individual in nature, and there is only one name listed on them. This is why during a divorce, many spouses mistakenly believe their IRAs, 401Ks, and other types of retirement accounts are not part of the marital estate. In actuality, they are considered marital property, and they are included in the division of property. Since accounts like these have heavy restrictions on how they are set up and used, a special financial vehicle is needed to divide retirement assets in-keeping with the law. This vehicle is known as a QDRO.

What is a QDRO?

A QDRO (Qualified Domestic Relations Order) is a special court order granting a person the rights to a portion of the retirement benefits of their former spouse which were earned through participation in an employer-sponsored retirement plan. A QDRO is generally prepared during a divorce proceeding but can also be filed after the divorce.

Within a QDRO, the “participant” is the person who earned the retirement benefit, and the “alternate payee” is the person designated to receive a portion of those benefits. A QDRO can provide benefits to the alternate payee while the participant is still alive and can award survivor benefits after the participant dies.

A domestic relations order is not necessarily the same thing as a QDRO. Any family law court can issue domestic relations orders, but these only become “qualified” once they are accepted by the retirement plan. QDROs refer to plans issued by private companies and non-profits. If the employer was a government entity, a different type of order might be required.

The first thing that you should know about obtaining a QDRO is that working with a lawyer is strongly recommended; you should not fill out QDRO forms yourself as there is significant room for error, which could impede your right to benefits. There are also different types of retirement and pension plans, and the specific information that each requires may vary.

For example, if you are seeking a Qualified Domestic Relations Orders in relation to benefits via the Florida Retirement System (FRS) Pension Plan, you will need to contact the division and request the appropriate QDRO forms. At the time your request is made, you must provide the member’s (your ex-spouse) name and Social Security number, the date of your divorce, and the date of your marriage. Next, forms must be completed in full and sent back to the division along with a copy of the final judgment of dissolution of marriage and your settlement agreement.

The division will review the forms. If approved, you will receive notice that the QDRO is conditionally approved. The next step is filing the QDRO with the court.

Note that when you file your QDRO, specific information must be included. At a minimum, the order should state that it applies to the plan participant and you (the alternate payee), include the name and address of both parties, specify the benefit that is to be paid to you, specify the manner of payment and when payments should commence, and contain a court-certified document.

What Happens If I Don’t Have a QDRO?

You may assume that because your divorce settlement and final judgment specify that you are entitled to a specific amount of your spouse’s retirement benefits, you will be paid this amount at the time that your spouse retires–or perhaps even immediately–without any issue. However, this is simply not the case. In fact, if your (ex-) spouse decides to retire before you have submitted the paperwork for a QDRO with the appropriate private or public entity and have had the QDRO approved and filed with the court, then the plan will pay all of the benefits to your ex.

The divorce judge who presides over your case is not responsible for contacting the private or public entity where benefits are held and instructing it to distribute benefits in a specific manner. This is your responsibility.

Why Do I Need a QDRO?

According to Federal law, retirement benefits can only be divided between former spouses if a QDRO has been issued. This means that the language in your divorce decree, even if it clearly states that retirement benefits will be split, may not be enough. While this can sometimes be used as a QDRO, a qualified plan is under no obligation to accept this document before disbursing funds to a former spouse.

Technically, you can get a QDRO after a divorce is finalized, but it is better to obtain this document and file it as soon as possible when getting a divorce. If your spouse, who is the plan participant, decides to retire after the divorce is final and there is no QDRO in place, the plan will begin paying out the full benefit only to them. If a QDRO is later filed, it will only apply to future payments.

A former spouse, who is the plan participant, could also pass away before a QDRO is put in place. If this happens, the retirement plan will still need to honor a QDRO, but it does not need to allow any changes to payment types or amounts that are not permitted by the plan. Finally, a former spouse (the plan participant) could remarry and divorce again. If the second spouse files a QDRO and you have not, this could also impact your benefits.

How Do I Obtain a QDRO?

QDROs are complex legal filings that generally require the assistance of a qualified professional. There are close to 700,000 private retirement plans in the U.S., and each has its own requirements and rules for filing a QDRO.

In general, every QDRO must include four key elements:

  • The name, current address, and social security number of the plan participant and the alternate payee;
  • The exact name of the plan to which the QDRO applies;
  • The percentage or dollar amount of the payments to be made to the alternate payee;
  • The time period for the order or number of payments included.

Speak with an Experienced Pensacola Family Law Attorney

Divorce can be an emotional and complex process. When it comes to asset division, your rights and future financial well-being should take top priority. Unfortunately, drafting and filing a QDRO often requires technical knowledge, and this is not something you want to leave to chance.

Crystal Collins Spencer specializes in handling complex family law cases that involve complicated financial issues. If you are going through a divorce or any other family law matter, Spencer Law can help. Contact our office now at 820-912-8080 to schedule your initial consultation. You may also send us a secure and confidential message through our online contact form.