Knowing Your Rights During Divorce

By Jarbath Peña Law Group

Someone close to you may have told you to “just get a lawyer and fight for everything.” Someone else may have said you’re entitled to nothing. Your cousin has an opinion. Your coworker has a story. And somewhere in the middle of all of it, you’re trying to figure out what’s actually true.

That confusion is one of the most common things we see when clients come to us at the start of a divorce. The emotional weight is already heavy. Add the noise of conflicting advice, and it becomes overwhelming.

Think of your legal rights during divorce like the guardrails on a winding road—they don’t choose your destination, but they keep you from going off the edge. Understanding what Florida law actually gives you is not about being aggressive or starting a fight. It’s about making sure you can advocate for a fair outcome and build a stable future for yourself and your children.

Here’s what you need to know.

1. Florida Is a No-Fault State—And That Changes Everything

Let’s start with the foundation. One of the most common misconceptions we hear is that you need to prove your spouse did something wrong to get a divorce. In Florida, that’s simply not true.

Florida is a no-fault divorce state. The only thing either spouse needs to show the court is that the marriage is “irrretrievably broken.” That’s it. Try saying that five time fast. But more importantly, what does it mean? It certainly does not roll of the tongue and it is not language we typically use every day. Don't worry, we were not pleased with having to say it in Court all the time, even as lawyers, but I digress. It simply means that the marriage is broken and there is nothing that can be done to repair the marriage or for the parties to reconcile or get back together. Simply put, there’s no requirement to prove infidelity, abandonment, or any other wrongdoing to get the divorce granted. It may seem unfair, or contrary to the interest of justice if you are the aggrieved party and would like some sort of punishment the other side to face for their alleged bad behavior, but proving these grounds kep parties married for longer and cost a lot more money. So in reality, both parties ended up suffering for one person's wrong doing. Fault was removed from Florida's divorce system in 1972.

That said, behavior during the marriage isn’t always irrelevant. Factors like financial misconduct or, in some cases, infidelity can influence decisions about alimony. But they are never a requirement to end the marriage itself—and they don’t give a judge license to punish either spouse through the divorce proceedings.

2. Your Right to an Equitable Share of Marital Property

“What happens to our stuff?” This is usually the first practical question that comes up—and it’s a big one. The house, the cars, the bank accounts, the retirement funds, even the debt. In Florida, the governing principle is equitable distribution.

Equitable does not always mean equal. It means fair. Courts start with the assumption that marital assets should be split 50/50, but they can adjust that based on specific circumstances—like one spouse contributing to the other’s education or career, or one spouse intentionally wasting or hiding assets.

The most important distinction to understand:

•       Marital property is generally anything acquired during the marriage—regardless of whose name is on the title or who earned the money. If it came into the picture between the date of marriage and the date of filing, it’s likely marital.

•       Non-marital property includes assets you owned before the marriage, inheritances received by one spouse, and gifts given to one spouse specifically from a third party. These generally remain separate and are not subject to division.

You also have the right to full and honest financial disclosure from your spouse. Hiding assets is illegal under Florida law, and we have tools to uncover them—forensic accounting, subpoenas, and discovery—to make sure the division is genuinely fair.

3. Your Rights Regarding Alimony

Alimony is one of the most misunderstood topics in all of family law. It’s not a punishment for bad behavior, and it’s not a reward for being wronged. In Florida, alimony exists for one reason: to ensure that one spouse doesn’t walk away from a marriage at an extreme and unfair financial disadvantage.

Whether you may be entitled to receive alimony, or may have an obligation to pay it, depends on a judge’s evaluation of several factors:

•    Need and ability to pay. Does one spouse have a genuine financial need? Does the other have the ability to meet it?

•   Length of the marriage. This is one of the most significant factors. As of July 1, 2023, Florida significantly reformed its alimony laws—permanent alimony has been eliminated, and the duration of support is now more closely tied to the length of the marriage.

•   Standard of living during the marriage. The court considers the lifestyle both spouses shared and whether one spouse’s post-divorce financial situation would fall dramatically short of that standard.

• Contributions to the marriage. This includes non-financial contributions—raising children, managing the household, or supporting a spouse’s career while putting your own on hold.

You have the right to request alimony if you have a genuine need. You also have the right to defend against an alimony claim you believe is unreasonable. We help our clients navigate both sides of this equation.

4. Your Rights as a Parent

For most of our clients with children, this is the part that matters most. Florida law has moved away from the term “custody” and now uses “parental responsibility” and “timesharing.” The distinction isn’t just semantic—it reflects the law’s core belief that children benefit from having both parents actively involved in their lives.

•       Shared parental responsibility is the legal presumption in Florida. Both parents have the right to participate in major decisions about their child’s education, healthcare, and religious upbringing. A court will only grant one parent sole responsibility when shared responsibility would genuinely harm the child—such as in cases involving domestic violence or severe substance abuse.

•       A specific, written timesharing schedule is your right. That schedule must account for regular school days, holidays, breaks, and summer. It’s built around the best interests of the child—not what’s most convenient for either parent.

•       The right to information. Regardless of how the timesharing is divided, both parents have a legal right to access their child’s medical records, school records, and information about their activities and progress.

5. Your Right to Child Support

Both parents have a legal obligation to financially support their children. Child support in Florida is not a bargaining chip—it’s the child’s right. It’s calculated using a statutory formula that accounts for:

•       The net income of both parents

•       The number of overnights the child spends with each parent

•       Costs for health insurance and childcare

You have the right to review the financial documents used to calculate support to make sure the number is accurate and fair. If your co-parent underreports their income or leaves out allowances and bonuses, the resulting calculation will be wrong—and we can challenge it.

How to Protect Your Rights From Day One

Knowing your rights is the first step. The second is protecting them. Here are the most important things to do—and avoid—from the moment divorce becomes a real possibility:

1.    Gather your financial documents. Tax returns, bank statements, pay stubs, retirement account statements—collect them now. Assets and records have a way of becoming harder to access once divorce proceedings begin.

2.    Stay off social media. Don’t post about the divorce, your ex, your finances, or your social life. Anything you put online can be taken out of context and used against you in court. We’ve seen it happen.

3.    Don’t move out of the house without advice. If you have children, leaving the marital home—even temporarily—can affect a judge’s decision on a temporary timesharing schedule. Always speak with an attorney before making that move.

4.    Consult with a family law attorney. This is the single most important step. An experienced attorney can explain how Florida law applies specifically to your situation, protect you from common pitfalls, and make sure the decisions you make now don’t close off better options later.

Legal Guidance You Can Trust

Divorce is one of the most significant legal and personal transitions a person can go through. The rules are complex, the stakes are high, and the decisions you make during this time will shape your life—and your children’s lives—for years to come.

At Jarbath Peña Law Group, we work with clients throughout Miami and South Florida who are at exactly this crossroads. We’ll make sure you understand your rights, explain your options clearly, and build a strategy designed to protect what matters most to you—your financial future, your children, and your peace of mind.

You shouldn’t have to figure this out alone. And with the right guidance, you don’t have to.

Frequently Asked Questions

Can my spouse clean out our bank accounts before I file for divorce?

It happens—and when it does, it becomes a major issue in the divorce proceedings. Florida law prohibits the dissipation (wasting or hiding) of marital assets once a divorce is filed, and courts can sanction a spouse who does this by awarding the other spouse a larger share of what remains. If you believe your spouse is moving money, contact an attorney immediately so we can request a temporary injunction to freeze marital assets before more disappears.

How long do I have to be separated before I can file for divorce in Florida?

There is no separation requirement in Florida. You can file for divorce at any time—you do not need to live apart for a set period first. The only residency requirement is that at least one spouse has lived in Florida for six months before filing.

Is my spouse entitled to half my retirement account in a Florida divorce?

The portion of your retirement account that was earned during the marriage is generally considered marital property and is subject to equitable distribution. The portion you accumulated before the marriage is typically yours to keep. Dividing retirement accounts requires a specific court order called a QDRO (Qualified Domestic Relations Order)—this is something we handle carefully to avoid triggering taxes or penalties.

What happens to debt in a Florida divorce?

Debt is treated the same as assets—marital debt is subject to equitable distribution. That means credit card balances, car loans, and mortgages accumulated during the marriage can be split between both spouses. One important note: even if a divorce decree assigns a debt to your spouse, creditors are not bound by that order. If your name is still on the account and your spouse doesn’t pay, your credit can still be affected.

Can I date someone else while my divorce is still pending in Florida?

Technically yes—there is no law in Florida that prohibits dating during a pending divorce. However, it can complicate things. If you introduce a new partner to your children before the divorce is finalized, it can become an issue in custody proceedings. And if marital funds are spent on a new relationship, that could be raised as financial misconduct. Tread carefully and talk to your attorney before making any major life changes while your case is open.

Are you facing a divorce and unsure of your rights? Contact Jarbath Peña Law Group today at 305-615-1005 or visit us at www.jp-lawgroup.com for a confidential consultation. Let us help you protect your future.