Divorcing in California Vs. Florida
By Beverly Bird
If you have a choice between filing for divorce in California or Florida, there might be big or minimal difference in the outcome, depending on what’s most important to you. The states’ laws are remarkably similar in some ways and very divergent in others. If you want to ensure you won’t come out of your marriage with less than half the property you and your spouse accumulated, California is your best bet.
Grounds and Filing Requirements
Both Florida and California require that you live in the state for six months before you file for divorce. Neither state recognizes traditional fault grounds, such as adultery or cruelty. In Florida, you can file on the no-fault ground of “irretrievable breakdown of the marriage.” California’s no-fault ground is “irreconcilable differences.” Both mean the same thing -- the filing spouse doesn’t want to be married anymore. Both states also recognize insanity as grounds for divorce. California requires the testimony of an expert medical witness that your spouse was incurably insane at the time you filed for divorce, and that the circumstance hasn’t changed by the time the court grants your divorce. Florida requires that your spouse be “mentally incapacitated” for a period of at least three years.
The greatest difference between California and Florida divorce laws is in the way they divide marital property. California is a community property state, so the court will scissor your marital assets and debts right down the middle, awarding half each to you and your spouse. Florida is an equitable distribution state. This means a judge will begin with the assumption that you should each receive 50 percent of the marital property, then consider other factors that may ultimately result in a 60/40 or even a 70/30 split. One such factor is which spouse contributed more to the acquisition of the property, so it’s not uncommon for the higher wage-earner to come out of the marriage with a greater share of marital property.
Both Florida and California courts base custody decisions on the best interests of the child. However, California has gone a step further. It specifies certain criteria for "best interests" in its legislative code. For example, if your spouse has a history of domestic violence -- either against you, your child or any other individual -- the court will almost certainly deny him custody. California’s state code also contains language denying custody to a parent with a confirmed history of drug or alcohol abuse. Florida courts favor joint custody.
Both states use the income shares model to calculate child support. The formula first determines how much of parents' combined monthly incomes should be dedicated to their child. If you provide 40 percent of the combined monthly income and your spouse earns 60 percent, you would be responsible for 40 percent of the amount dedicated to your child’s needs. Your spouse would be responsible for the other 60 percent. For example, if the court says you and your spouse should dedicate $1,000 a month to your child, and if you are the custodial parent, you would contribute $400 a month toward her housing and other needs while your spouse would pay $600 a month in child support.
Florida has historically had a reputation for being very alimony-friendly toward spouses seeking financial support. However, legislation passed in 2011 has brought it more in line with other jurisdictions. The 2011 law specifically provides that alimony must not reduce the paying spouse’s income to the point where he must live on less money than the receiving spouse. After the 2011 changes, both Florida and California favor fixed-term alimony over permanent alimony. In California, judges usually award it for a period of time equal to half the duration of the marriage. In keeping with its anti-domestic violence legislation, California courts will also consider abuse when deciding whether to order alimony.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.