USA – FLORIDA Law and Practice Contributed by: Elisha D. Roy and Carolyn Ware, Sasser, Cestero & Roy
Parties identify the subject assets through the discov ‑ ery process. The discovery process is the exchange of financial and other documents (either formally or informally) so as to be able to properly identify and value the marital assets. In a family law case, the par ‑ ties are subject to “mandatory disclosure”, pursuant to Fla. Fam. L. R. P. 12.285. Mandatory disclosure is the compulsory production of certain financial records by both parties to the other party. As part of a party’s mandatory disclosure, the parties are required to exe ‑ cute a complete Florida Family Law Financial Affidavit. However, recent changes to the Family Law Rules of Procedure allow for Financial Affidavits to be waived if certain requirements are met, especially in cases where parties’ respective incomes are necessary for calculating child support. This is a sworn affidavit wherein the parties are obligated to list their income, expenses and all of their current assets and liabilities. In addition, parties are able to request the production of additional financial records beyond what is required by mandatory disclosure. Fla. Fam. L. R. P. 12.350 governs the production of documents. Further, the parties can be subject to depositions, which is a wit ‑ ness’s out-of-court testimony that is reduced to writ ‑ ing (usually by a court reporter) for later use in court or for discovery purposes. Fla. Fam. L. R. P. 12.310 governs the deposition process. There are other dis ‑ covery mechanisms to ensure the disclosure of assets and liabilities. The court can compel the production of financial records from third parties. This is done through the court’s subpoena power. A subpoena is a writ or order commanding a person to appear before a court or oth ‑ er tribunal, subject to a penalty for failing to comply. (Subpoena, Black’s Law Dictionary (11th ed. 2019)). The court’s subpoena power is governed by Fla. Fam. L. R. P. 12.351 and 12.410. Additional recent changes to statutes regarding dis ‑ tribution of assets include a clarification that any gift of real property to a spouse must be in writing. In addition, if it is necessary for there to be a payout over time of cash to equalise the distribution of assets and liabilities, the court may award security assuming that the full award vests on the date of the award and requires a reasonable rate of interest on same.
There are no property regimes in Florida. Florida courts do recognise the concept of trusts. Under Florida law, an irrevocable trust is a trust that cannot be revoked by the settlor (the individual who established the trust) and is treated as a separate and distinct entity from the settlor. Se e Nelson v Nelson , 206 So. 3d 818, 820 (Fla. 2d DCA 2016). However, a revocable trust, which is a trust that can be revoked (“undone”) by the settlor, is still treated as the property of the settlor and subject to equitable distribution. See Collier v Collier , 343 So. 3d 183, 186 (Fla. 1st DCA 2022) (recognising that property held in a revocable trust remains the property of the settlor). Therefore, the nature of the trust will affect the court’s approach ‑ es and powers over the trust for both property dis ‑ tribution and support. Generally, property held in an irrevocable trust is not subject to equitable distribution under § 61.075, Fla. Stat. because it is viewed as its own entity owned by neither party. Alternatively, prop ‑ erty held by a revocable trust, where one or both of the parties is a settlor, is subject to equitable distribution because it is still considered within the ownership of one or both of the parties. 2.4 Spousal Maintenance Spousal maintenance in Florida is referred to as ali ‑ mony. Alimony is codified under Florida law pursuant to § 61.08, Fla. Stat. Effective 1 July 2023, Florida’s approach to alimony changed drastically. An alimony award is based upon the respective parties’ “need” for the support and the other party’s “ability to pay”. The requesting spouse has the burden to prove their need and the other party’s ability to pay. For the purposes of determining an alimony award, the courts will look to the length of the marriage; short-term marriages are less than ten years, moderate-term marriages are more than ten years but less than 20 years, and long- term marriages are longer than 20 years. Temporary alimony can also be awarded during the pendency of a case, based on the same need and ability factors. The length of the marriage is not a bar to this tempo ‑ rary award. There are three primary types of alimony awarded in Florida.
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