Three Family Law Myths in Florida
As a family law attorney, I speak to people daily who don’t understand how the system works. It is important to dispel some of the common misconceptions about family law. The three myths that come up all the time in my family law practice are below.
1. Annulment vs. Divorce
In Florida, Annulment is a court order that essentially declares, from a legal standpoint, that the marriage was invalid; the Court declares that the marriage never existed. Courts will only grant annulments under limited and rare circumstances. These circumstances generally include: fraud, sham, or some other persuasive factor that the marriage was never real. There is no written provision in Florida statutes that discusses or authorizes Annulments; but, in the past, Courts will sometimes grant an annulment if the marriage is void or voidable. “Void marriages” are marriages that were invalid from the moment the parties said, “I Do” whereas “voidable marriages” are marriages that may not necessarily be void at the start. Examples of void marriages are where one party is legally married to another (bigamy), where the parties are closely related by blood (incestuous) or where one or more of the parties is not legally capable of consenting/agreeing to the marriage. Voidable marriages differ but generally include marriages where one party was at a deficit when the marriage started but later had the ability to acquiesce to the marriage and give their own voluntary consent. Apart from these “void” or sometimes “voidable” circumstances, Courts usually leave annulments to the discretion of religious courts and choose instead to focus on Divorces which are heavily discussed in Florida law.
In addition to being rarely granted, the annulment process is lengthy and usually more expensive than a “traditional” divorce. Also, at the end of the annulment process, the Court could refuse to grant the annulment whereas at the end of a divorce proceeding, the divorce is granted and the marriage is dissolved through a court order.
2. Injunctions are easily granted based on any facts
No. Injunctions are granted based on a reasonable fear that you are in imminent (i.e., immediate) danger of assault, battery, stalking, kidnapping, or any other criminal incident of physical injury. Reasonable fear or “reasonable cause” of imminent harm means more than a mere threat uttered sometime in the past. The Court will look at the history of the parties and the recent threats and incidents that were included in the initial Petition. Therefore, the more remote the incident (I.e. the more time that has passed since it happened), the more difficult it is to obtain a permanent injunction. However, if a pattern of behavior can be established, the Court maybe willing to hear about incidents that happened in the past. It is important to talk to an attorney who can talk you through whether or not we can establish sufficient facts and increase your likelihood of gaining a temporary restraining order (TRO). As we’ve written about before, see here, having an attorney by your side during the injunction process can increase your chances of obtaining protection.
I often get phone calls from worried individuals who have been told "when you leave, I'm going to get half of your money." It is almost always entirely untrue. Yes, Florida courts can award alimony depending on certain factors and economic circumstances but that does not mean that every party qualifies for an alimony award. There are several types of alimony: permanent periodic alimony, durational alimony, rehabilitative alimony, lump sum alimony, “bridge-the-gap” alimony, and temporary alimony. For most individuals, “permanent periodic alimony” is what most people think of when they think of “alimony”. The two primary elements a Court will consider are 1) the needs of one spouse for the funds and 2) the ability of the other spouse to provide the necessary funds. In a long-term marriage (i.e., a marriage lasting over 17.5 years) alimony is more likely to be granted in the form of permanent periodic alimony which is used to provide for the needs and necessities of life to a former spouse as they have been established during the marriage. The Court may award other types of alimony but any alimony award will be based on several factors. It is important to remember that the shorter the marriage, the less likely that any form of alimony may be granted!!
As you can see, ending a marriage or any significant relationship can be difficult and sometimes have religious complications; they always have emotional and financial complications. As we tell clients, every person and every marriage is different so therefore, every divorce is different. If you are in a situation where you think you need objective advice relating to divorce, injunctions, alimony or any other family law matter, please reach out to an attorney and take the time to ask the questions that keep you up at night. A 10 minute phone call with an experienced attorney can yield more advice than an afternoon of independent internet searching.