Florida Family Law Guide

Florida Family Law Guide

The Florida Family Law Guide was created by McKenzie Law Firm to help residents going through complex issues of family like like divorce, child custody, child support, and alimony.

Florida Family Law Guide

Whichever way you put it, family law matters and divorce are a fairly miserable thing to have to go through. With the help of an experienced attorney, however, it can be easier. We will meet with you to discuss the particular details of your case and guide you in the right direction. This is a difficult journey that you are getting ready to embark on, but it can be made easier when you find the right Florida family law attorney to help you along the way.

The right family law attorney will have the knowledge of the process required to give you a smooth experience and that will hopefully ease a lot of the anxieties you have about the situation. Florida divorce law can be complicated, which is why we strongly discourage you going this alone. There have been changes and modification to the laws regarding divorce in Florida; not being up to date with those rules can be detrimental to your case.

Florida Grounds for Divorce

If you are getting a divorce in Florida, you can have a no-fault divorce. This exists so that there is no mandated fault that has to be put on either party in order to file for divorce; in other words, you can divorce for any reason. This is good because you will experience less headache and the process will go by quicker and cheaper. You would simple label the cause of divorce as irreconcilable differences. Both parties have to agree to this for it to be a no-fault divorce. It is required that one of you has lived in Florida for at least six months before filing for divorce. If you meet that requirement, a divorce can theoretically be finalized within twenty days.

Uncontested Divorce vs Contested Divorce

Uncontested Divorce vs Contested Divorce

Uncontested divorces are possible when both parties are able to comes to terms about what will logistically happen after the divorce without conflict. They will typically settle things outside of court and without the decision of a judge. It is much faster and cheaper to go the route of an uncontested divorce because of these factors. Our attorney understands that when you are ready to move on from this marriage and you want things to be amicable, it is possible to do so and it does not have to be stressful. We avoid disaster every step of the way by working closely with you. You are the priority in this scenario and we want to ensure that this goes as smoothly as possible.

It is not always possible to put aside big tensions and clashing personalities when heading towards divorce. There are options for people who really cannot work out these tough issues, which means you would have a contested divorce. There may be issues involved the custody of children or division of property; these big issues have the ability to explode and turn what could have been a simple divorce process into a court battle. If you are working alongside a trusted Florida divorce attorney, you are looking at getting the best case scenario as your outcome. You don’t have to feel like you are being bulldozed by your spouse’s demands. We will help get you the results that you deserve in this trying time.

Alimony

There are several different ways someone can receive alimony. Depending on the length of your marriage, it will be categorized as either short, moderate, or long-term. Short-term marriages are fewer than seven years, moderate-term marriages are between more than seven but less than seventeen years, and long-term marriages are more than seventeen years. Alimony types are broken down by purpose. There is temporary alimony which is awarded during the divorce process. Bridge-the-gap alimony is meant to be given to a spouse to transition from married to single life. Rehab alimony will be given to a spouse if they decide to pursue a career to become self-sufficient and need funds to do so. Duration alimony is for short or moderate-term marriages and is a pre-determined award that will not exceed the length of the marriage. Permanent alimony is for moderate and long-term marriages and is awarded to a spouse if they are not able to have the same kind of life after the divorce.

Division of Property

Florida is a state that follows equitable distribution. A common misconception is that your assets will be split down the middle, but equitable means that the assets will be divided in a way that each party gets as much that makes it fair which does not always mean 50/50. It will be based on many factors that includes how long the marriage lasted, each party’s financial situation, the contribution of each party, their impact on marital assets, as well as their future earning capacity.

Child Custody

In terms of custody, the courts are going to favor the children’s best interest. There are many issues that need to be address when it comes to a divorce when you have children that includes child support, where the child will reside, medical decisions, if there will be visitation, etc. There can be primary custody awarded to someone or there can be shared custody. Whoever is granted parental responsibility will be able to decide on matters like education, health, religion, etc. Florida tends to try to favor shared parental responsibility where each parent has equal power.

Child Support

Child Custody

In Florida, both parents have an obligation to provide financial support for their children. Child support amounts are set according to a guidelines chart in Florida Statute § 61.13. The current guidelines chart considers number of children, income of each parent, number of overnights spent with each parent, health insurance cost, day-care costs, and any special needs of the children. These calculations can be complex and the assistance of a lawyer is important to make sure the amount of child support is established correctly.

Child support in Florida for each child continues until that child’s 18th birthday, with the following exceptions:

  • The person is between the ages of 18 and 19 and is still in high school, performing in good faith with a reasonable expectation of graduating before turning 19; or
  • The person is considered dependent due to a mental or physical incapacity. Such incapacity must have begun prior to the child turning 18.

Child support can also be established by the Florida Department of Revenue (DOR) through administrative proceedings. The DOR is a State agency that is assigned the tasks of establishing, enforcing, or modifying child support orders. All child support orders can be enforced through an income deduction order. This authorizes the DOR to collect child support directly from the employer of the parent paying child support.

Parental Responsibility & Time-sharing

Parenting is one of the most rewarding life experiences, but as most of us know, it can also be challenging at times. Co-parenting between two people who do not always agree can add to those challenges. When children are involved, it is important to remember that the children’s interest come first and must always be protected.

Divorce is stressful for both spouses and emotions sometimes get the best of people. Unfortunately in a divorce, children often get stuck in the middle between two opposing parents. At McKenzie Law Firm, we always strive to provide our clients with guidance and representation that will protect your parental rights and your children’s best interest.

What is parental responsibility?

Parental responsibility is what used to be more commonly referred to as “custody.” Parental responsibility concerns decision making authority over the children. Florida law recognizes three different types of parental responsibility: 1) shared parental responsibility; 2) shared parental responsibility with ultimate decision making authority; or 3) sole parental responsibility.

Shared parental responsibility aims to keep both parents involved with daily life and decision making authority over the children. Judges usually favor shared parental responsibility, unless it would be detrimental to the children.

Shared parental responsibility with ultimate decision-making authority is when both parents try to agree and make joint decisions regarding the children, but if the parents cannot agree, the court can award one parent ultimate decision-making authority (i.e., final say). This means that if the parents cannot agree on issues relating to education, healthcare, or similar issues, one designated parent gets to decide.

Sole parental responsibility means that one parent has the right to make all decisions affecting the children without needing to consult the other parents. Sole parental responsibility is only reserved for cases where one parent cannot be trusted to care or make decisions for the children, there is abuse or neglect, or for some other reason that would be detrimental to the children.

Relocation

The parent who wants to move with the minor child at least 50 miles from his or her residence at the time the last parenting plan was entered, must comply with Florida Statute § 61.13001 to do so. Under the Statute, the parent who wants to move must either obtain a written agreement from the other party or file a verified Petition to Relocate and get permission from the judge.

The judge will ultimately then decide whether the relocation is in the best interest of the child. In doing so, the judge will follow the factors laid out in Florida Statute § 61.13001.

Paternity

Paternity disputes arise when the parents of a child are unmarried at the time of the child’s birth. Paternity can be established in different ways in Florida:

  • Through voluntary acknowledgment of paternity
  • Through a private suit and court order by a judge
  • Through administrative proceedings by the Department of Revenue to establish child support

If paternity has already been established by the State through the DOR, a father might still want to petition the court to establish a parenting plan, with time-sharing and parental responsibility. The DOR can only establish paternity for purposes of ordering child support, but it cannot order time-sharing and parental responsibility. Please see our separate time-sharing and parental responsibility section for information about those issues.

A paternity suit can be brought by the mother in order to establish child-support or other custody rights. A paternity suit can also be brought by the father in order to establish time-sharing and parental responsibility.

Frequently Asked Family Law Questions

How Do I Pick a Divorce Attorney?

Choosing a Divorce AttorneyChoosing your divorce attorney is probably the most important part of getting a divorce. The second part of that now is who’s going to be your lawyer. What I tell people is to schedule a consultation with several attorneys; don’t just go to one and hire that person.

I also tell clients to check reviews online, such as Google reviews. Avvo is another great resource to find reviews. Check the attorney’s website, read the bio, and check to see what their experience is. Do they handle cases like yours? For example, if it’s a high net worth divorce and there are a lot of assets and potential business evaluations, does your attorney have experience dealing with appraisals? You want to make sure that your attorney has an understanding of what you’re dealing with for your specific case.

Another important factor that you have to keep in mind is developing a good relationship with your attorney. You’re going to be working with this person intimately over the next coming months, if not years, so you need to be confident in your attorney. You need to have a level of trust. Sometimes it’s just more of a personality fit – am I going to be able to work with this attorney? It’s important that you’re able to get along so that you feel comfortable throughout the entire process.

How Do We Divide the Marital Home?

Who gets the house is a hot topic in every divorce. The first part is identifying if this is even a marital asset. If it’s something that was owned prior to the marriage, then that would be considered a non-marital asset. Some exceptions to that are when you’ve both refinanced a house and maybe the other party transferred the deed to put it in both your names. In those circumstances it would most likely be considered a marital asset.

Then the issue is, who gets to keep it? If both parties want to stay in the house, the court will look to see who can afford to live there, post-divorce. Sometimes you may want to stay in the house until the children grow up. In some circumstances, the court can award one parent the house so that the children can stay there until they’re 18. Then, at the point when the youngest child has turned 18, the courts may require that the house be sold. At that point, most likely, whatever the sales proceeds are would be divided 50/50 between the parties. Again, that’s very fact specific.

If the court finds that either party can’t afford to stay in the house after the divorce, it can order that the house be sold, whether the parties like it or not. It’s very important that before you file for your divorce, or when you are responding to a divorce, that you request a separate count for partition of real property. If either party has requested a partition or property, the court does not have jurisdiction to order the sale of the house. In those circumstances, the court has no choice but to give the house to either party.

Some of the evidence that you can gather prior to meeting with an attorney about the house is purchase records, when was it purchased, the deed, and if there’s been refinancing. In some instances, even though the house technically is not a marital asset, any enhancement in value of that property could be considered marital property. During division of assets, you could potentially be eligible to receive 50% of that increase in value.

What Are Division of Assets?

Division of AssetsA question that frequently comes up during divorce proceedings is how assets will be divided in Florida. The first and most important thing is identifying what the assets are. If we don’t know what the assets are, they can’t be divided.

Identifying the assets is usually done on the financial affidavit, which is required that both parties file. The financial affidavit will have all your assets listed, and also if there’s any non-marital assets. Then we need to identify the assets of the other spouse. Although they are supposed to list all the assets on their financial affidavit, in many cases people don’t disclose everything they have. We have to do a little bit of digging, such as looking through financial records, examining bank transfers from checking account statements, or even hiring forensic accountants.

Sometimes you can do asset searches if you think that your spouse might have property in other states or sometimes even other countries. There are ways of getting to that — step one, identifying all the assets that you have and all the assets that your spouse has;

step two is assigning a valuation or a value to each asset; and, finally, step three is dividing the assets.

Although Florida is an equitable distribution state, which is usually 50/50, who gets what asset sometimes depends on who wants what asset. Of course, if the other party doesn’t agree to that, then it will ultimately be up to the judge to decide. The steps again are identifying all the assets, assigning a value to all the assets, and then deciding who gets what with the goal of it being as close to 50/50 as possible.

What is Equitable Distribution?

When you’re going through a divorce, one of the big issues is dividing the property between the parties. In Florida, we call this equitable distribution. Equitable distribution is the division of marital assets and debt. When we’re going through the equitable distribution portion of your divorce, we try to identify what’s marital and what’s non-marital. Anything that you enter into the marriage with is usually your non-marital property.

Then when we’ve identified the marital property, we then have to assign a value and a valuation date. Distribution of assets in Florida is equitable, which means fair. It doesn’t always mean 50/50. The court will do its best to try to get as close to equal as possible. However, you may have to prove to the court why you should be awarded one asset over the other.

At the end, if it’s not exactly a 50/50 split, the court can give what we call an equitable distribution payment, which would be one party has to write a check to the other party for whatever the difference is. Equitable distribution is very important in Florida, which is you need to make sure you have an experienced attorney to guide you. There are lots of issues that can arise and go wrong if you don’t do it the right way.

What Happens with Inheritance in a Divorce?

What Happens to My InheritanceIn Florida, inheritance is considered non-marital property. It stays with whoever inherits that money during the divorce. There are, as with most things, exceptions to that general rule. The big one to keep in mind is not to co-mingle any of your inheritance with marital funds. For example, do not deposit the check into a joint bank account. Once you do that, it’s co-mingled. Your spouse could potentially be entitled to half of that.

It’s very important that you keep the non-marital characteristic of that inheritance intact. You will want to make sure everything is set up separate and apart from your spouse so that you can still show that is has non-marital character. Any money that you or your spouse earn during the marriage is considered to be marital income. By virtue of depositing a portion of your paycheck into that IRA that you funded with inherited money, you have now commingled the accounts. That’s something you do not want to do if you’re concerned about inherited funds.

What Happens with Personal Property in a Divorce?

Personal property in a divorce is treated under the equitable distribution scheme that the court will come up with. Any real assets or investment accounts are considered property that needs to be divided. If you have any personal property, such as clothes and personal belongings that were yours prior to the marriage, they will remain in your possession. In terms of things that are purchased during the marriage, usually it will be split 50/50 in equitable distribution.

Judges do not like it when people go into the court room and fight over personal property. Usually it’s not worth your time or the court’s time to sit there and fight over who’s going to get trivial household items. Personal property is one of those things that I try to tell clients not to use the attorneys to fight about unless it’s absolutely necessary. It becomes very expensive anyways. You’re going to end up spending more in attorney fees than what it would cost you to buy a replacement item. Other than that, personal property works the same — everything purchased during the marriage is equitably distributed.

Can We Avoid Trial?

A lot of our clients want to avoid having to go to court for their divorce case. We understand that this can be uncomfortable. In Florida, we have something that’s called an uncontested divorce. For example, once the parties have reached an agreement of divorce, you can submit what we call a special affidavit for an uncontested divorce. What that allows the court to do is sign off on the divorce agreement without needing the parties to appear in person, so you can get a divorce in Florida without ever having to step foot in the courthouse.

What Are the Benefits of Mediation?

Mediation is a great way to resolve the issues in your case without having to go to court. Litigating your case can get very costly. Going to trial and having the judge ultimately decide your case is very costly and time consuming. There is also the emotional aspect from having to go through depositions and testifying in front of a judge. It’s nerve-wracking and it’s emotionally painful for people to be dragged through that, so we always tell clients that mediation is very beneficial. Settling your case at mediation can ultimately save you tens of thousands of dollars.

What Is Contested vs Uncontested Divorce?

Contested DivorceIn Florida, there are two types of divorces: contested and uncontested. An uncontested divorce is when both parties agree on all the issues, such as child custody, parenting time, and division of assets. It depends on what the issues are in your specific case. You will still need an attorney to guide you through the process, and to advise you what your rights and obligations are.

Uncontested divorces are less stressful than contested divorces. Usually, it’s two mature adults that have decided their marriage didn’t work out, and they’re going to be fair with each other and work with each other to reach an agreement. It keeps the costs low because there will be no hearings or depositions.

On the other hand, you have a contested divorce. It is time consuming and can be emotionally taxing on all the parties involved. For example, if you are having disagreements over child custody, you will have to go to court and ultimately let the judge decide. It’s like litigating any other case, whether it’s a personal injury lawsuit or criminal case. You are going to have to go through discovery, go to a hearing, and you’re going to have to testify in front of a judge who ultimately gets to decide your future following the divorce. This can be not only emotionally taxing, but it also can get very expensive.

What is Divorce Mediation?

Mediation is required for all divorces in Florida. Before you can get to a final hearing, which is when the judge will decide all the issues in your case, you will be required to mediate. Mediation is an opportunity for both parties to enter into a settlement that will resolve all the issues, and is conducted before a Supreme Court-certified mediator. Both parties, husband and wife, and their respective attorneys will be at the mediation.

In mediation for family law cases, we usually don’t have a joint session. This means that you and your attorney will be in one room, and your spouse and his or her attorney will be in a separate room. The mediator will go back and forth between the two sides and bring settlement negotiations back and forth. They’ll sit down with both parties and try to get an understanding of the issues involved. The important thing to keep in mind about mediation is that it is a compromise.

There are many benefits that go along with mediating your case. The first one is certainty — you know that if you settle your case at mediation that it’s over. On the other hand, if you do not settle at mediation, and you decide to go in front of the judge, there’s no certainty what will happen.

The second most important benefit of mediation is that it manages your costs. You’re getting an early resolution to your case. Once you settle your case at mediation, it means the case is over and you’re not going to be incurring any attorneys’ fees. It’s a great way of managing costs and also to manage certainty for your future.

Can I Divorce a Missing Spouse?

In Florida, if you are seeking a divorce but can’t find or locate your spouse, you can get what’s called service by publication. In order to do so, you have to follow some very specific steps. You need to send letters and contact family members, and will also have to show the court that you are making a good faith effort at being diligent in locating the other spouse.

Once you’ve followed all the steps in the statute, then you can file an affidavit of diligent search with the court. Once the court determines that you have done all you could in an effort to locate your spouse, they will deem that the petition for dissolution of marriage has been served by publication. What this does is it gives the court jurisdiction over your spouse to enter a divorce decree. What’s important about that, though, is that the court can divorce you and your spouse, but they cannot rule on any other issues. If there’s any property division or issues concerning the kids, unfortunately the court does not have the authority to rule on those issues because service by publication only gives the court the power to dissolve the marriage. You might still have to face dealing with property divisions and child custody further down the road.

What is the First Step in the Divorce Process?

First Step in the Divorce ProcessThe first step in the divorce process is to start gathering all your records – financial records and any other documents that you feel may be relevant, like photographs and emails – especially if this is going to turn out to be a child custody case. Once the divorce gets filed – and unfortunately this happens more frequently than not –   the other party may start hiding financial records and start building their case. That is why you need to gather records as soon as possible. It may be important for the divorce lawyer to review some of these documents, too, at the initial consultation so that you can come up with the best strategy for your case.

What Are the Grounds for Divorce?

In Florida, you don’t need to prove grounds or fault for a divorce. So long as one party can say that the marriage is irretrievably broken, that party will get a divorce. In some states you have to prove fault of the other party in order to get a divorce, such as mistreatment or infidelity, but in Florida that doesn’t matter and you don’t need to have any grounds to get the divorce.

How Long Does a Divorce Take?

The length of a divorce case depends on a lot of factors. It depends on the issues that are involved in your case, such as property division, potential alimony or spousal support, and custody disputes. Sometimes, if it’s a high asset case and there are a lot of businesses involved, you might need appraisals or to hire vocational experts to determine the earning capacity of the parties.

The biggest factor is how willing the parties are to work together to reach a resolution. The more the parties disagree, the longer it’s going to take. It can take anywhere between three months up to a year or even longer if the parties disagree on different issues of the divorce.

How Can We Lower Divorce Expenses?

Divorce costs and expenses, including attorneys’ fees, are a concern to most clients. You should take your money very seriously. A way that you can manage your costs is by being organized and prepared. When you bring documents to your attorney, try to have them organized. The less time your attorneys have to sort through paperwork, the cheaper it is for the client in the long run.

Another aspect that you can take into consideration is that the more you fight with your spouse and disagree on issues, the more money it’s going to cost. Mediation is a great way to keep divorce expenses low. Early resolution of your divorce case is probably the biggest factor in keeping costs to a minimum.

How Do We Manage a Divorce?

Managing a DivorceGoing through a divorce is something that is very personal, not only because it often deals with finances, but also the emotional aspect of losing a family. One of my first questions I always ask clients when they come into my office for a consultation is, “Have you tried counseling?” I want to make sure that they have exhausted every means available to avoid going through a divorce because there’s nothing pretty about a divorce, whether it’s uncontested or not. One party might be happy about getting out of the marriage, but usually it’s hard on both ends.

Hire a good lawyer that will not only help you through the legal process but that also counsel you. That’s why it’s important to have a good personal connection with your lawyer. They will be guiding you through a very difficult time in your life.

What Happens with Out of State Divorce?

If your spouse lives out of state and you have been separated for some time, you can still file for divorce in Florida. You must show the court that you have subject matter jurisdiction and personal jurisdiction. What that means is that the court needs to have jurisdiction to hear the type of case that you’re bringing forward, and it also has to have jurisdiction over both parties to the divorce.

In Florida, as long as one party has lived in Florida for at least six months leading up to the filing of the petition, the court has jurisdiction to dissolve the marriage. In order to have jurisdiction over the other party, you would have to show that there is some sort of minimum contact that party has maintained with Florida. As long as one party has been in Florida for at least six months and the other party has, at least for some period of time, lived in Florida, the state of Florida would have jurisdiction not just to dissolve the marriage, but also to deal with issues of the children, alimony, and also property division.

Sometimes it can get a little tricky when there are children involved who have moved also. You will need to know what court has jurisdiction over the kids. As long as you file for your divorce here in Florida, within six months after your spouse moves with the children, the Florida court would still have jurisdiction to hear the issues concerning the children. If your spouse takes the children to another state and lives there with the children for at least six months, then the court in the other state would now have jurisdiction to address any issues pertaining to the children. Jurisdiction is very fact specific and depends on the issues involved and what it is you’re asking the court to do.

How Do We Prepare for a Consultation?

When preparing for your initial consultation with a divorce attorney, bring whatever you think may be relevant. If you have deeds or other documents concerning assets, or even if you maintain a separate list of the properties you own, bring anything that you think the attorney needs to know about. If there are any potential allegations of misconduct by one party, such as hiding finances, and if you have any evidence, then bring that to your attorney. Also, if you have already been served divorce papers, the most critical thing for you to bring is the papers that you have been served with.

Another thing that is important to keep in mind is if there’s a prenup that was signed prior to the marriage, make sure that your divorce attorney has a copy so they can review it to see what the rights and obligations are under the prenup. The more information that you can give to your divorce attorney during that initial consultation will give the attorney a better idea of what they’re looking at in terms of developing a strategy for your case.

How Do I Respond to Divorce Papers?

Responding to Divorce PapersIf or when you get served with divorce papers in Florida, the most critical thing to do is pay attention to the dates. Once you have been served, you have 20 days to file a response or the other party can get a default against you. Our advice is to find a divorce attorney. Even if you think that you could go at this alone or that you and your spouse may just work everything out and reach an agreement, schedule a consultation with a divorce attorney to at least discuss what your options are.

Once that agreement is signed, you can’t go back and reverse it. It’s very difficult in divorce cases to get a modification after the initial judgment has been done. To do so, you will have to show that there’s been a substantial change in circumstances since the initial divorce decree was entered, in order for you to get a modification of alimony or child support. It’s very important to consult with an experienced attorney right away after being served with divorce papers.

How Are Divorce Papers Served?

One important part of getting a divorce in Florida is having your spouse served with divorce papers. Unless your spouse is personally served or has waived personal service by a process server, your divorce can be dismissed for failing to properly serve the person. In other words, the court doesn’t have jurisdiction to hear your case.

Serving divorce papers can be accomplished any number of ways. You can have the divorce summons served by a process server on the other party. Another way is getting your spouse to accept a letter saying that they agree to waive service of process. They’ll have to complete a form that will need to be filed with the court.

If you are worried about serving your spouse because of domestic violence issues, your best option would be to have them served by a process server. We will make sure the timing is appropriate and that you are informed of when they are going to be served.

In some cases, clients come in and the spouse already knows that they’re filing for divorce. In those circumstances, we can mail the divorce package to your spouse with a waiver of the service of process and just proceed that route.

Can We Share a Home During a Divorce?

Whether or not you should share the home after either party has filed for divorce in Florida depends on the circumstances of your situation. If you are getting along and there’s no reason for the two of you to live separate, then you can continue to live together. There are a lot of factors that go into that. Can you afford to move? Can the other spouse afford to move? If the answer to that is no, then sometimes you will just have to stay living in the house.

Sometimes the court can order what’s called exclusive use and possession of the home to one party while the litigation is ongoing. In order to get that granted by the judge, you would have to show that there are some sort of circumstances that would justify the parties to live apart during the litigation. For example, if there’s a lot of fighting in the household and there are children involved, it’s not in the best interest of the children for the parents to remain living together with a toxic relationship.

Another factor that’s important to take into consideration is that the court is not just going to throw one party out on the street if they have no alternative residence available to them. Maybe they have a parent nearby or a family member or friend that they can live with, or maybe they have the financial means to rent another place while the divorce is ongoing, but it all really depends on if you and your spouse are willing to work together and stay in the house.

What is Uncontested Divorce?

The time limit to get an uncontested divorce in Florida ranges anywhere from three to six months. If you come to our office because you want to get an uncontested divorce, which means that you and your spouse have pretty much agreed on everything already, we still have to file the final divorce package with the court. Sometimes it can take a little bit of time because the judges’ dockets are full. Even though everything gets submitted to the court, you may have to wait several weeks before the divorce is actually signed off on by the judge.

Who Will Pay the Attorney Fees?

Paying Attorney FeesSomething that frequently comes up during consultations with our clients is attorneys’ fees. They are worried about how they’re going to afford to pay their fees, or they’re concerned that they may have to pay for the other parties’ fees. In Florida, there is an attorneys’ fees statute that allows one party to get his or her attorneys’ fees paid for by the other spouse if there is a need and inability to pay. The court will look at the financial circumstances of the party, and then determine whether one party has a need to pay by the other spouse.

It’s something important that you need to talk to your attorney about early on because the cost of litigation needs to be something that you’re mindful of the entire time. You don’t want to go through a divorce and write checks of several thousand dollars to your divorce attorney, only to get to the end and find out you have to pay for your spouse’s attorney too. On the other hand, you shouldn’t be scared to go through a divorce because you can’t afford to pay for it. If you are in a marriage where your spouse has money or assets, then you could get your attorneys’ fees paid for by that spouse.

In some circumstances, the parties both know that a divorce is coming, and one party starts draining assets. In these cases, you would go to the judge and request that the court award you a temporary attorneys’ fees, based on an anticipation of what we think the divorce is going to cost. The whole purpose of the attorneys’ fee statute in divorce cases in Florida is to provide relief for a party at an unfair, financial disadvantage.

Can There Be Alimony for an Unemployed Spouse?

If you have a spouse that is voluntarily not working, you can ask that the court impute income to that person. They can’t avoid having to pay child support or alimony just because someone voluntarily decides they’re not going to work anymore. Whether you’re the person considering throwing in the towel because you don’t want to be on the hook for paying, or you’re the one who is concerned because your spouse has told you that they’re just going to quit working so they don’t have to pay you any money, there are ways around that. You can request that the court impute the income to that spouse.

The way you would do that is to get discovery on the historical earnings of that underemployed spouse to show what they have made. You also have the option of retaining a vocational expert that can come in and testify as to the employability of that spouse. Also, they can bring in evidence of available jobs in the local area and how much they would pay.

Then what the court would do is they would impute that income to the spouse for either child support or alimony or both. Don’t let threats deter you or scare you away because you think you’re going to get left with nothing.

What is Alimony?

AlimonyA big issue in most divorces is alimony. Either a spouse wants alimony or the other party is scared of paying alimony. It’s usually the big issue when you’re talking money in a divorce. Alimony in Florida is also called a spousal support. It’s the payment of money to assist the other spouse with meeting basic living expenses.

In Florida, when you’re evaluating alimony, the court looks first at need and ability to pay. When you look at the need of one spouse, you look at their financial circumstances. First of all, what are the living expenses? What is it going to cost to pay rent and utilities? Whatever you may have, the court first has to find a specific number for what they need.

Let’s say, for example, you have a need for $10,000 a month. That spouse is currently employed and after taxes makes $5,000 a month. That spouse has a need of another $5,000 a month from the other spouse in alimony. Once you’ve gotten through that part, you then go to the ability to pay. The ability to pay is on the spouse that would be required to pay the alimony.

The hard part is having the ability to prove that the other spouse can pay it. Obviously, you’re going through a divorce. You’re going from one household to now having two separate households, so more bills on the same amount of available income. You have to show that the other person has the ability to pay. It’s the same thing.

You look at the income and what that paying spouse’s living expenses are going to be post-divorce. There are other factors that get taken into consideration too; the duration of the marriage, the standard of living during the marriage, the contribution of each spouse to the marriage, etc. That’s secondary. All those other factors come into consideration when the court determines the type and the amount of alimony to be awarded.

When it comes to the duration of the marriage, Florida has statutes set for three different types of marriages. You can have a short-term marriage, which is anywhere up to seven years. Then you have a moderate-term marriage, which is 7 to 17. Anything that’s 17 years and above is considered a long-term marriage. In those marriages, there’s actually a presumption in favor of permanent alimony. Alimony is very fact specific. It depends on what each party did before, during, and what they’re going to be doing after the marriage.

If, for example, one spouse gave up a career to stay home and raise the children while the other spouse built their career that is usually when you have a pretty good chance of getting an alimony award because one party has a lesser earning capacity. That’s an example of a case where you would have the possibility of getting an alimony award. Let’s say somebody didn’t pursue a college education because the other party was going to do that and the other spouse staid home. In those circumstances, if you can show the court that you want to go back to college and you have a specific plan, you could get some rehabilitative alimony until you can go back to school and get your degree.

Alimony is complex in Florida. There are not set guidelines as with child support. Alimony is very fact specific. It’s based on the evidence and the circumstances of your case. It’s very important that you consult with an attorney that has experience dealing with alimony cases because you want to make sure that if you need the alimony, you are going to get the most alimony that you can get.

On the other hand, if you’re concerned about being on the hook for paying alimony permanently or for a very long time, you need to make sure you have an attorney that’s going to be able to assess the situation and properly advise you throughout that process.

What Are the Different Types of Alimony?

Types of AlimonyIn Florida, we have several different types of alimony. The main one is permanent alimony, which is exactly what it sounds like. It’s until one party passes away or remarries.

Then we also have durational alimony. Durational alimony is usually set at a monthly amount for a set duration of months. It can be two years or ten years. The thing to keep in mind about durational alimony is that the duration can never be longer than the term of the marriage. If you were married for nine years, the court cannot give you durational alimony in excess of nine years.

Then we also have rehabilitative alimony, which the court could award to one party that needs assistance to maybe get their career back on track or finish up a college degree that they may have dropped out of or be in the middle of completing. That party is going to need some financial assistance to finish off the degree and get some on-the-job training. For rehabilitative alimony, you have to show the court exactly what your plan is in terms of expected graduation date and the specific steps you’re going to do in order to get there. If you don’t follow those steps after the court awards you rehabilitative alimony, the paying spouse could modify or terminate the alimony obligation because you didn’t comply with the steps that you had proposed to the court.

There’s also something called lump sum alimony, which the court could award one party in the divorce. It’s one payment that is made up front. Lump sum alimony can be awarded in circumstances where there is the need and the ability to pay. There could be a concern that the paying spouse isn’t going to pay it and they have some assets that can immediately offset or be given as a lump sum alimony.

Let’s say you split all the assets down 50/50. The court may give the spouse needing alimony another $100,000 of assets that characterize it as lump sum alimony instead. They know if you award any other alimony, the paying spouse is not going to pay it. There is some sort of history of intentionally hiding money or just showing a pattern of not complying with terms of support issues.

What Happens if Someone is Refusing to Pay Alimony?

Not complying with court orders is a big issue that arise in post judgment enforcement issues. Courts don’t like it when you have nonpayment of financial obligations such as child support or alimony. If you have a court order that entitles you to alimony and your spouse isn’t paying, you need to file a motion for enforcement and contempt. That’s a remedy that you have available.

Alimony is considered support, so the remedy available for that is contempt. That means if the judge finds that the other spouse’s nonpayment was willful and that the person had the ability to pay it but chose not to, the court could order that the nonpaying spouse be incarcerated and that they have to pay a purge amount. On the other hand, if you have an alimony order that you are obligated to pay and you found yourself in a situation where you can no longer afford to pay it, it’s very important that you consult with an attorney to see about getting the alimony either reduced or terminated. The sooner, the better because the court cannot go back even if the court finds that there should be a termination or a downward modification of the alimony obligation. They can’t go back go back further than the date of filing.

Whatever alimony obligations you’re currently incurring every month, they will just keep adding up. The sooner you can consult with an attorney to see if this something that you can get changed, the better.

How Is Child Support Calculated?

Calculating Child SupportAnytime there is children involved in a divorce, the court has to award or consider child support. Child support in Florida is something that cannot be waived. The court will look over the child support guidelines and see whether or not there is a child support obligation due.

In Florida, child support is set by a statute, working pretty much like a formula. Each parent’s respective income is plugged in and the end result determines if there is any child support obligation due from one side to another. Even if one party isn’t working, the court can and will impute at least a minimum wage to that parent.

The court also looks at if there are any deductions to the gross income. Deductions to the gross income would include any federal and state taxes. That would be a deduction from the gross income. Then also, if you or your spouse are paying any mandatory retirement dues or health insurance, this is also deducted from the gross income.

Once the courts have examined the income of the parties, they can use the support guidelines to determine what the minimum support obligation will be. If there’s a disparity in the income, whoever earns more will usually bear a larger portion of the child support obligation.

Other factors that the court considers when calculating child support includes daycare, health insurance, and visitation schedules. When issues arise, it’s important that you have an attorney to help prove the other party’s income and make sure you are getting a fair deal.

Do I Still Need to Pay Child Support If They Don’t Visit Me?

If your child no longer wants to participate in visitation following a divorce, you are still obligated to pay child support in Florida. You cannot withhold child support just because you’re not seeing your child. Even though there is a court order that gives you time with your child, even if the other parent is intentionally keeping the child from you or if the child doesn’t want to go, it does not excuse the child support obligation. There are other ways to address this issue, such as hiring an experienced family law attorney.

This law works both ways. For example, if you fall behind on your child support obligation because you lost your job, the other parent cannot withhold your visitation rights. The best thing to do is consult with an experienced child support attorney to discuss your options.

Do I Get Child Support for College Expenses?

After a divorce in Florida, there is no obligation for either parent to pay for the cost of college. This is usually something that is just a privilege that the parents can provide. The court cannot order either parent to contribute to the cost of college. However, that doesn’t mean that it can’t be addressed, especially in an uncontested divorce or at mediation. It’s something that you can request. In some cases, especially if the parties are high earners with a lot of assets, it can be worked into the settlement agreement that one or both parents will contribute a certain amount of money towards college expenses.

It can also come into play when you have a Florida Prepaid College Plan or a 529 account set up for the children. Then the issue becomes who gets those accounts after the divorce. At this point, it would be considered a marital asset and subject to equitable distribution. In some circumstances, you can get the other party to agree to make certain contributions to either the Florida College Savings Plan or to a 529.

Do I Get Child Support for Extracurricular Activities?

Child Support for Extracurricular ActivitiesWhen you’re going through a divorce, it’s important that you consider childcare expenses such as extracurricular activities because these are not one of the expenses that get factored into the court’s child support guidelines. If you don’t address the extracurricular activities in the divorce, there’s really nothing that you can do. You have no recourse available in order to enforce any extracurriculars. If your ex-husband or ex-wife is not agreeing to pay anything for the extracurriculars, then, unfortunately, you’re left having to pay for all of it.

Usually, our lawyers will like to include some language in the divorce agreement where we request that the other spouse be responsible for paying 50/50 of the extracurricular activities. It’s something that you should consider and discuss with your attorney early on so that it can be addressed in the original divorce.

How Do I Collect Child Support?

If you have a child support order in place and your ex-spouse owes payments, there are different ways of getting that child support order enforced. You can obtain an income withholding order, which is a separate order from your divorce decree that gets sent to your ex’s employer. They will automatically take the child support obligation out of his or her paycheck. They can also intercept income tax returns. If your former spouse files their taxes and is due a refund, they can come in and take that refund and apply it towards the past due child support.

It’s very important that you go meet with an attorney to figure out approximately what your child support amount should be. If you’re the one who could potentially be paying the child support, start paying right away because you do not want to find yourself in a situation where you’re owing a lot of arrearage in back payments. Nonpayment of child support is serious. If the party who is obligated to pay child support is not paying, they could be fined in contempt of court and could face jail time.

How Long is Child Support Paid in Florida?

A child support obligation is due for as long as the child is a minor. In Florida, a child is considered a minor until they turn 18. It’s also important to note that child support obligations cannot be waived. There are two ways in which child support can be extended past this date.

If your 18-year-old child is enrolled in high school is still reasonably expected to graduate before their 19th birthday, the child support can get extended until the child graduates high school. The rationale is that a child is still dependent on their parents for financial support while still in high school. Either 18 or until the child graduates. If the child is held back and will not graduate before their 19th birthday, this exception does not apply.

Another reason child support can be extended beyond the age of majority in Florida is if the child has special needs. In this situation, the support could be extended indefinitely, depending on the circumstances of the child’s condition. If you are the party that is seeking extended child support, it is important that you file a petition before the child turns 18.

How Do You Modify Child Support?

Child support is probably the one thing that’s the easiest to modify after a divorce. You must prove that there has been a significant change in financial circumstances. Under the child support guideline statute, as long as there is at least a 15% increase or decrease in the child support obligation from your original income, then the support order can be modified accordingly.

For example, if one parent was paying for daycare and health insurance at the time the original order was made, but isn’t doing so anymore, then this may be enough to modify the arrangement based on the 15% threshold. This also occurs when one parent has lost their job. If this has happened to you, it is important that you file for modification of child support as soon as you can.

What Are the Benefits of a Child Custody Lawyer?

Benefits of a Child Custody LawyerFor obvious reasons, the most contested issue in a divorce is the kids, and when two people do not agree or there are concerns with one party’s parenting ability, the custody arrangements end up getting disputed. In those situations, it’s really important that you have an experienced custody attorney to better understand what your rights and obligations are.

Once a custody arrangement has been ordered by the court, it is very hard to get it overturned via an appeal in Florida. You must show the court that there has been a substantial, unanticipated change in circumstances in order to get a change in the time-sharing agreement. You also have to show that a change in the time-sharing agreement or custody arrangement is in the best interest of the child.

It’s very important that you get it done right the first time, because once that initial custody determination is entered, it is very difficult to have it changed down the road. Consult with an experienced custody attorney that can advise you as to what your rights are and also the consequences of not getting the custody or time-sharing agreement right off the bat because it is very hard to change it down the line.

Can a Child Choose Where to Live?

In Florida, the desire of the child is a factor when determining the time-sharing plan, but it depends on the age and the maturity level of the child, and is determined on a case by case basis. When you have a child that may be of sufficient age and maturity to have input in the custody arrangement, it’s usually a teenager or someone that’s a little bit older. A parent can’t go up to the judge and express what the child’s preferences are; the child will have to appear and testify in court. One alternative, also, is to have a guardian ad litem appointed. The guardian ad litem can then talk to the child and report their desires back to the judge. However, it’s not something that is easily done.

If you want to bring a child into court to testify, you have to seek approval from the judge; you can’t just bring your child to the custody hearing. You have to file a separate motion on whether or not this specific child is of sufficient age and maturity in order to be able to testify. Once the court determines that the child can testify, then the child will do so. Judges normally don’t like to get the children involved unless absolutely necessary. In fact, one of the factors in the time-sharing statute is the ability of the parents to keep the children out of the litigation. Judges do not like when one party is dragging a child into litigation. That is something that should be left between mom and dad. The child’s wishes sometimes would get taken into consideration, but it’s in very rare circumstances, and it’s usually when the child is older.

Does Child Custody Affect Support Obligations?

Child support in Florida is dependent on numerous factors. One of those factors is the number of overnights or who the primary custodial parent is that the child spends the most time with. A question that sometimes arises is, if the child wants to live with the other parent after a few years, does the child support change? The short answer to that is most likely, but it depends. The court will go back and re-look at the child support guidelines to see if it’s a 15% increase or decrease warranted based on the change in the time-sharing schedule.

Let’s say the schedule is going to change and the child is now going to live with dad more than mom, so the child support guidelines or the amount of child support would change based on that. The court will still look at what the current income levels of the parties are. Let’s say mom, who was receiving the child support, has received a substantial raise since the time the last child support order was entered. That will get factored in, too. When you go back and change the child support guidelines for one reason, the court will still look at the precedent circumstances of the parties. It may turn out that there isn’t a change because something else might factor out the change of physical residency of the child.

What is Child Custody Relocation?

Relocation in Florida pertaining to minor children is usually very difficult to get. Both parties must obtain approval from the court before moving, either with or without the child. Whether or not the parent has sole custody or not, any time a parent wants to move at least 50 miles away from its residence at the time the last custody order was entered, you have to file a petition to relocate with the court. In doing so, you must give the other party certain notice requirements, and in some circumstances, the other party may not object. If the party objects, you have to go to a hearing and let the judge decide.

This applies not only to a parent that wants to move with the child, but also to a parent that wants to move without the child. Because the parenting plan will change regardless, you still need to go to court to file a petition to relocate. Those are the proper steps that need to be followed. If you are considering possibly moving or relocating at the time of your initial divorce decree or custody ordered is entered, it’s something that should be brought up at that time because you will have to go back to court and readjust this issue. If this is something that you know could potentially be on the horizon, it’s better off to just deal with it in your initial divorce decree.

If you are considering moving or you are nervous that your ex-spouse might move and want to take the children with them, it’s very important that you consult with an attorney. Relocation cases are very difficult. You want to have an experienced attorney that has dealt with these before. These cases are very fact-specific and there are many factors that get taken into consideration by the court. It’s also very important that you follow the proper procedural steps under the relocation statute.

How Is Child Custody Determined?

Determining Child CustodyIn Florida, the judges will determine parental responsibility, which is either shared parental responsibility or sole custody. They will also determine the parenting plan as to when the child will be with mom or dad respectively. There is no presumption for or against either party. It’s all based on the best interest of the child, and the court follows statutory factors.

An example of some of the factors that the court considers is the history of the parties – who has been the primary caretaker throughout the child’s life? For example, what extent of the parenting responsibilities will be delegated to third-parties? Should that party have visitation? Another factor is any history of drug abuse, mental illness, and mental health issues. Another big factor is the ability of the parent to put the needs of the child before the needs of themselves. In some limited circumstances, provided the child is old enough, the child’s preferences could be taken into consideration.

Do Courts Favor the Mother?

In Florida, there’s no presumption at all in favor of mothers or fathers. This is something that comes up all the time in divorce consultations. There’s this preconceived notion that mom gets the children. That’s not true. In Florida, the judge will follow the standard of whatever is in the best interest of the children.

In situations where you have a contested custody dispute, the court has a set of factors that will be taken into consideration when deciding who will be the primary residential parent and what the time-sharing schedule would be. Some of the factors that the court looks at is the history between the parties and who has historically been the primary caretaker of the child (who took the child to doctor’s appointments, attended school functions, and things like that). Also, if there is any history of mental illness or substance abuse, those are other factors that the court can take into consideration. Once the children get older, probably close to teenage years, the desires of the child are something that the court also can take into consideration.

What Are Grandparents’ Rights?

Unfortunately, grandparents have no legal rights to time-sharing with their grandchildren in Florida. Unless there is some issue with the parent that makes them unfit or unable to care for the children, the grandparents have no visitation rights; it’s only between mom and dad. Sometimes, Florida courts encourage parents to allow the children to spend as much time as possible with the grandparents, either side, in order for them to develop those bonds and the relationships. Aside from that, a grandparent cannot intervene in a divorce or try to be part of the custody arrangement between mom and dad.

In the event that one parent is completely unfit, then maybe a grandparent can get temporary custody. Usually, it’s strictly between mom and dad, and grandparents have no rights in Florida.

Can We Modify a Parenting Plan?

If you’re trying to get a modification of a parenting plan in Florida, you have to show a substantial change in circumstances from the time the parenting plan was finalized. For example, bad communication between the former spouses is not enough to warrant a modification; it must be something significant.

There has to be something tangible that you can bring to the court to say something has changed since this parenting plan was entered, and this reason is negatively impacting the child, and so it would be in the child’s best interest to have the plan changed. Usually it has to be something that pertains directly to the child, that deals with the welfare of the child. There has to be some sort of concern, and there also has to be some nexus back to the child and the child’s well-being.

What is Parenting Time?

Parenting TimeIn Florida, when we are talking about child custody, an issue that comes up that has to be addressed is the parenting time with the children. In Florida, there are certain considerations that the court must look at when making a custody determination. The parenting plan is an agreement, a document that’s separate and apart from the divorce agreement, that assigns parental responsibility, which is either sole parental responsibility to either parent or shared parental responsibility between both parents.

The other aspect of the parenting plan is the time-sharing schedule. That is the actual schedule of when the child will be residing with either mom or dad. It gets very specific. It will have every single overnight that the child is supposed to spend with mom and every overnight that the child is supposed to spend with dad, and then it also takes into consideration or will have provisions for holiday time-sharing. Usually a standard holiday time-sharing schedule will be rotating holidays. If mom gets the children for Thanksgiving one year, then dad will have the children for Thanksgiving the next year. It also takes into consideration and will address time-sharing during school vacations and other holidays.

The parties are always free to deviate or change a parenting agreement to fit their needs. To do so, you will have to communicate with your former spouse and let them know that you need a change in the schedule. Work with your former spouse because that usually tends to work out best for the children in the long run, and that’s what the court wants the parties to do. They want you to be flexible and work with the other parent if any changes are necessary.

If the parties cannot agree on any changes, then the fallback plan is always the parenting schedule. The parenting plan becomes very important, and it needs to have certain minimum requirements within the plan in order for it to be signed off by the judge. It needs to address the schedule, and it needs to be specific. Usually it has in it the mode of communication between the parents, transportation responsibilities, doctor’s appointments, school responsibilities, etc.

Everything will be delineated in that agreement. It will also address the situation of if the plan ever needs to be modified, or if one party is going to relocate after the parenting plan has been entered. It’s the one document that will govern how the two parents are going to co-parent after the divorce. If you can’t agree, then the fallback plan is always the parenting plan, and you want to make sure that you’re trying to work with your spouse.

How Do We Make a Parenting Time Schedule?

Clients often ask what a parenting time schedule should look like. The answer to that is that there is no set way of doing things. It can be done a number of different ways. There are some people that rotate custody on a weekly basis, or it may be a case where the child lives primarily with mom or dad and then goes to the other parent every other weekend.

There’s a number of different ways it could be done, so whatever will be done in your case depends on the needs of the child and also the circumstances of the parents. What are their work schedules like? Does anybody work a night shift? What works best for you and your spouse under your circumstances? If you can work that schedule out, that’s great. If you cannot agree on the schedule, then the court is going to have to decide, and the court will have to decide that based on the best interest of the child.

How Does Sole Custody Work?

Sole CustodyCustody is something that always needs to be addressed in a divorce where there are children involved, or even in instances where the parents were never married, but they had a child together. In Florida, there are two different types of legal custody of the child. The first one is sole custody. Sole custody is when one parent has all the decision-making authority pertaining to the child. That means if, for example, mom has sole custody, mom can enroll the child in whatever school she likes without the consent of the dad. She can sign legal documents, obtain passports for the child, and make health decisions. If the child needs surgery, mom can make all the major decisions concerning the child on her own.

The other type of custody in Florida is shared parental responsibility. This means that both parents must confer with each other and talk about all the major decisions. Where will the child go to school? Where will the child go to the doctor? What doctor is he going to see? Those are all decisions that need to be jointly discussed and agreed upon by both parents. You have equal rights in the say of how your child is raised.

There is also something that is called shared parental responsibility with ultimate decision-making authority. In some circumstances, the parents may not agree. Let’s say the parents have issues communicating. The court can give one parent ultimate decision-making authority, if requested. Let’s say, for example, mom gets ultimate decision-making authority over healthcare decisions. She still has an obligation to confer with dad about any medical decisions that they want to make, but if they’re deadlocked and can’t come to an agreement, she gets to decide without having the court get involved if she has ultimate decision-making authority.

In instances where neither party has ultimate decision-making authority and you find yourself in a situation where you and your former spouse can’t agree, then sometimes you’ll have to get mediation or you’ll have to file a motion with the court to determine the best option for the child.

Ultimate decision-making authority is something that I usually request for my client when we file the initial divorce paperwork. However, just because you ask for it, doesn’t mean that you will get it. The judge needs to have a legitimate reason why one party should have the right to have ultimate decision-making authority.

Contact Our Florida Family Law Attorney Today

If you need a strong, dedicated, and supportive Florida family law attorney, please call our office today. We are here to guide you through this process every step of the way and make sure you are informed, well advised, and comfortable. We will treat your case like the priority it is. Call us today and see how we can help you.