Family Matters

Florida has the 8th highest divorce rate in the United States. It takes two to tango, and relationships are no different. Often I may suggest counseling. Try to make it work and try to communicate with your spouse or partner. But if you cannot make your relationship work, stop blaming it on yourself.  It’s natural to feel sadness and grief during the divorce process. Divorce is a traumatic process, and it forces people to change how they view themselves, and their future.  I think the biggest fear for many clients is fear of the unknown. His or her future has been turned upside down, and now they’re unsure of what’s next.  That’s a natural feeling, because divorce isn’t just ending something – it’s starting something new.  So if you’re ever faced with a life changing event like a divorce, take heart. Somewhere nearby is someone who has had the same experience. Seek out and find people who can support you. And if there is a legal issue, we’re here to help.

Florida is a  "no fault" state. What this means is that you do not have to prove "fault" in order to get a divorce.  Additionally, there is no separation requirement in Florida like there are in many other states. 

One of the parties is required however to have resided in Florida for at least six months before filing for divorce to satisfy the jurisdictional requirement called "subject matter jurisdiction."

Through divorce, you and your partners assets and liabilities will be divided through a process called "Equitable Distribution." This is the legal term that is used when referring to splitting up the assets and liabilities. Assets and liabilities may include: bank accounts, retirement accounts (401k, annuities, pensions), credit cards, tangible assets (homes, property, vehicles, boats, furniture, pets, etc.), essentially anything you gathered during the marriage that is considered a "marital asset." Marital assets can sometimes be difficult to asses, but the main concept is if it was acquired during the marriage it typically falls into this category. Gifts and anything pre-marital (that you did not co-mingle or add your spouse's name to) should typically remain pre-marital. Generally speaking, spouse's are not entitled to anything that is pre-marital and is typically left out of equitable distribution upon showing that it is pre-marital.

If you have children in common with your spouse, you will need a Parenting Plan. A parenting plan will include what parent the children are with and on what days, this is called "time sharing".  Time-sharing is the legal word that most people refer to as custody. It will also include a holiday timesharing provision that will dictate the holiday timesharing schedule (spring break, summer break, thanksgiving, winter break, and any other holidays). Child support along with any and all other matters pertaining to the children will be included in the Parenting Plan. 

Typically about midway through a divorce case, the parties will need to attend Mediation. Mediation is a neutral setting that is guided by a Mediator. The mediator is a third party (neutral) who is present at mediation not to give legal advice, but to "referee" the process and make sure that everything goes smoothly and everyone is treated fairly.  The parties and their attorneys are typically separated into separate room. The Mediator then goes back and forth between rooms as is necessary. It is strongly recommended that parties resolve at mediation simply because both of you are one hundred percent in control of what the outcome in your case is at this phase of the case. If/when you go to trial, the option to resolve and have a say in your outcome is no longer on the table and the Judge is the one that decides what happens. Mediations can typically take anywhere between two hours to all day, depending on the complexity of the case and the temperament and hostility of the parties towards each other. Mediation can resolve in a few different ways: full agreement (the parties agree on everything), partial agreement (the parties only agree to some of the issues), or no agreement at all.  It is STRONGLY encouraged that the parties resolve at mediation.

If there is no agreement at mediation, than the case moves towards Trial. Trial is in front of a Judge (there is no jury in family matters). Trial is where we present to the Judge your position and why the court should rule your desired way and give you what it is you desire. This is done through presenting evidence to the Judge. Trial is very complex and intricate as the rules of evidence apply and often times not everything you want to get in front of the Judge for them to look at is allowed to be presented. After both sides have presented their case, the Judge makes a ruling and makes decisions on all issues that were presented. 

In Florida there are three different options on how to approach a divorce:

1.  Simplified Divorce- A simplified divorce is when both spouses do not have children, are not seeking alimony and have no joint debts, assets, or liabilities. 

2.  Uncontested Divorce- A uncontested divorce is when both spouses agree that the marriage is broken, have no children, and agree on division of property, assets, and debts.

3.  Contested Divorce- A contested divorce is when there is one or more issues that are unresolved between the spouses. Issues can involve a disagreement on custody, alimony, property, or other martial issues. Florida is no fault divorce state. This means that any spouse may seek a divorce by stating that the marriage is irrevocable. There is no proof needed to get a divorce and a spouse can bring a divorce without the consent of the other’s spouse.

As you can see from the lengthy information above, Divorce it is not a matter you should tackle alone.  It involves lots of complex issues that are time sensitive and difficult to handle without the proper legal knowledge.  There are many twists and turns that require precise navigation as to arrive at the best desired outcome. Call today to set up your consultation. 

If you have not been established by a Circuit Court or the Department of Revenue to be the legal parent of your child, there is a high chance you do not have legal rights to your child. It is a very frightening and scary concept that a lot of people end up finding out after the fact. Being the BIOLOGICAL parent of a child versus being the LEGAL parent of a child are two different matters in the eyes of the law. Biological parents typically do not have rights to a child, while legal parents do have rights. In Florida, if you have a child outside of wedlock, the legal guardian defaults to the biological mother.  This means that the mother by default has all the rights to the child, and the Father does not. To establish your legal rights, a Paternity action needs to be done through the Courts to establish yourself as the legal father of the child. Through the Court process, a Parenting Plan will be established that not only establishes the legal rights of each parent, but it also sets out a timesharing schedule (custody) and child support. This Parenting Plan will be signed signed by a Judge and is enforceable. What this means is that once  a Parenting Plan has been established and signed off by a Judge, both parents are legally bound by the Parenting Plan and must comply with its terms. Having Paternity established and  a Parenting Plan in place is PARAMOUNT to preventing a parent from withholding the child from the other parent. 

If you have questions about Paternity or how to establish your rights as a legal parent give us a call today.  

Child Support is defined as a court-ordered obligation of the financial support for the care, maintenance, training, and education of the child. It is typically established through Divorce, Paternity, or an initial child support proceeding initiated by The Department of Revenue. 

Child Support is calculated based on several factors: the income of the parties, amount of timesharing (custody) each party has with the children, health insurance costs being paid on behalf of the parties and the children, and daycare/babysitting expenses. 

Florida Law allows a party seeking child support to go back twenty-four months from the date of filing their request with the Court and ask for what is called "retro-active" child support going back those past twenty-four months. That is why it is important to always contribute to the other party financially and keep electronic proof of these payments. Those electronic proof of payments can then be submitted if necessary to help reduce the retro-active child support figure. 

The Department of Revenue often times establishes child support through an administrative process, NOT a Circuit Court. The process is run by their attorney's, their administrative hearing officer's, and tends to be a one-sided operation that often does not result in a fair child support calculation. 

It is important to understand that the Department of Revenue does not address timesharing (custody), and therefore the child support matter will not result in a court enforceable Parenting Plan. This typically results in a significantly higher child support figure than should be (because your timesharing with the child in the calculations is set at zero timesharing),  and the huge disadvantage that there is no court enforceable Parenting Plan. What this means is that you are now legally responsible for paying a child support figure without the legal right to see your child.  To avoid this problem, we object to the administrative process and file in Circuit Court. 

Dealing with the Department of Revenue is very complex as it deals with lots of math calculations and strict  timelines to object to the administrative process. If you've been served child support papers or want to discuss these matters further call us today. 

The word “contempt” is used to describe the situation when an individual has intentionally disobeyed a court order. In family law, a finding of contempt is a way for the Court to enforce child support, spousal support, custody and visitation orders (Parenting Plans) that a party has violated. 

Either a person’s action or inaction can lead to him/her being in contempt. Some common examples of being in contempt of court that typically occur during or after divorce proceedings include:
•    Violating a restraining order.
•    Not paying child support that has been ordered.
•    Not paying spousal support (alimony) that that has been ordered.
•    Refusing to allow the other parent visitation as ordered in the parenting plan.
•    Failure to return the child to the other parent at the end of the visitation period.

 •   Failure to comply with any provision of a Court's order. 

An Enforcement proceeding is similar to a Contempt proceeding but slightly different. If a Court order, Marital Settlement Agreement, or Final Judgment orders a party to do something relating to Equitable Distribution (essentially ordering a party to do something that does not include any kind of support) and they have not done it; you can file for Enforcement  and have the court order them to do it immediately without delay.

If you have questions related to Contempt, Enforcement, or want to know more about these type proceedings give us a call.

Florida law has several different types of injunctions that can provide you protection (domestic violence, sexual violence, dating violence, repeat violence, stalking). If you have been the victim of domestic violence or fear that you or your children are in immediate harm; the law allows you to file for an injunction to protect you and/or your children. There are several type of injunctions that are available depending on your particular set of circumstances. If you have not been a victim of domestic violence (or fear immediate harm) there is a separate type of injunction for stalking that can be filed if you are receiving harassing communications from someone that serve no legitimate purpose.  It often times can be confusing to figure out which injunction to file for if you are representing yourself. If you have questions regarding injunction please give us a call today. 

Prenuptial Agreements (also known as antenuptial agreements) are legally binding contracts/agreements entered into both parties before marriage (but can be done during the marriage "post nuptial"). These agreements limit and control the outcome of a potential divorce by dictating what each party receives or doesn't receive in the event of a divorce. In these agreements , the parties have the ability to waive most things that would end up being divided during a divorce (equitable distribution). It should be noted that child support and temporary alimony cannot be waived in these agreements. 

 In cases of marriage dissolution or petition for paternity, parents who will share time with their minor child or children are required by Florida law to have a written parenting plan. For it to be approved by the court, it must detail a plan of how the parents will share responsibilities in daily parenting tasks, health care, school-related matters, and other activities. The parenting plan should also outline the child’s time-sharing schedule and the communication methods and technologies that the parents will use to communicate with each other and the child. However, when it comes to the negotiation and agreement of shared parental responsibility and time-sharing/parenting time in a child custody matter, decisions are not made by whichever parent or primary caregiver has spent the most time with the child. While they may feel they know the child best, a judge ultimately makes decisions in child custody disputes using the “best interests of the child” as the primary consideration if the parties are not in agreement.

What does “best interests of the child” in Florida mean? 

Florida Statute 61.13(3) provides a list of 20 factors to help determine “the best interests of the child.” The judge may consider any factor that is relevant to the individual situation. The 20 factors can be categorized under the demonstrated capacity and disposition of each parent to fulfill parenting responsibilities, the health and safety of the child, the child’s emotional and developmental needs, and the moral fitness of each parent. Here is a summary of the 20 factors:

1. Demonstrated capacity and disposition to honor the time-sharing schedule and maintain a close parent-child relationship
2. The anticipated division of parental responsibilities
3. Demonstrated capacity and disposition of each parent to act upon the needs of the child
4. Length of time the child has lived in a stable environment
5. Geographic viability of the parenting plan
6. Moral fitness of the parents
7. Mental and physical health of the parents
8. The child’s home, school, and community record
9. The child’s preference
10. Demonstrated knowledge of each parent to be informed and involved in the child’s life, including knowing the child’s friends, daily activities, and favorite things
11. Demonstrated capacity of each parent to provide a consistent routine
12. Demonstrated capacity of each parent to communicate with the other parent
13. Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect
14. Evidence that either parent has knowingly provided false information to the court
15. The extent of the parenting tasks performed by each parent
16. Demonstrated capacity of each parent to be involved in the child’s school and extracurricular activities
17. Demonstrated capacity of each parent to maintain a substance-free environment for the child
18. The capacity of each parent to protect the child from ongoing litigation
19. Demonstrated capacity of each parent to meet the child’s developmental needs
20. Any other factors relevant to the parenting plan, including the time-sharing schedule.

The Court MUST consider all of these factors when making a determination of what is in the best interest of the minor children.