How do you get a divorce in Florida is a common question. Most individuals have the same initial questions that need answered. The first thing to know is Florida is a no fault state. This means, you can get a divorce without proving misconduct on your spouse. It also means that infidelity is irrelevant in terms of proving a divorce or getting a better settlement. There are instances where an affair may be used in a divorce to gain an advantage financially, but it requires several elements of proof that are not present in your basic case of infidelity. The second thing to know about Florida is there is no separation requirement, meaning you do not have to be separated for any length of time before filing for divorce or before finalizing a divorce. The average person can expect a divorce in Florida to take between 6 months to a year. Most of the timing has to do with time periods to produce financial documents and the court’s busy calendar. The third thing is that mediation is required in all divorce actions. This means that before you get to a Judge and have a trial, you must attend mediation. There is no requirement to settle, but a good faith effort is required. Lastly, if the divorce involves children, the best interest of the children is the primary concern of the courts. This is important, because sometimes evidence that would otherwise be inadmissible, in a case with children, the character of your spouse and behavior can be used by the court to make determinations of child custody, visitation and those things can influence child support as well. The only way to determine the factors that will help you achieve your goals in a divorce is to speak with an experienced family law attorney that can provide you with the best advice for your case.
Collecting on child support that is owed to you by a former spouse or the mother/father of your child, takes court action. In Florida, a child support worksheet is required when finalizing a divorce. A child support guideline worksheet details the income of both parents and based upon the percentage of time spent with each parent, a child support amount is calculated and printed on the worksheet. This serves as the basis for the child support amount to be paid by either the mother or the father. In the original proceeding, a family law lawyer should have advised you to seek an income deduction order and have payments made through the Florida State Disbursement Unit. This provides a record of all payments made and any arrears will be easily proven. When the State of Florida is involved in disbursing child support, the Department of Revenue (DOR) may assist an individual in collecting on that support. The DOR can help you collect arrearages from tax returns and can also cause the payors license to be suspended for non-payment of support. These efforts help most individuals to receive support and help with enforcement of child support orders. In the event you are unable to get help from DOR, you should contact a divorce attorney to file a motion for contempt against your child’s parent for non-payment. The courts have the power to order payments through income deduction and can also use the threat of incarceration to motivate non-payors. I have seen a few individuals go to jail for non-payment, with what is called a purge amount. Instead of bail, you will have to pay $2500 to get out of jail and that money will go towards you back child support. If you are in a situation where you are owed support or behind on your payments, it is important to consult with a divorce lawyer so you understand your options.
In a Florida divorce, is there such thing as non-marital property? Florida is a separate property state for the purposes of a divorce, meaning it is not a community property state like California. Therefore, when you enter into a marriage, any property you own or assets in your name are non-marital. In young couples who stay married for many years, most pre-marital assets and property are generally combined with marital property or sold and invested into a marital account. When that happens, your pre-marital house that was sold and used as a down payment for your marital home will have lost its “non-marital” character and determined to be a gift to your spouse.
The issue of non-marital property comes up most frequently in a Florida divorce of an older couple, or a couple who entered the marriage with substantial assets. I see this in a second marriage and each person has a 401(k), a home and savings. Generally, no one signs a pre-nuptial agreement, so the determination of marital property is important. In this type of divorce, if there is a dispute over the character of marital and non marital property, a detailed analysis of the assets and liabilities must be conducted. The factors to be evaluated include a look at whether or not marital money was used to support the other property and to what extend. In retirement plans, how much has the asset grown over the marriage, what where the contributions made during the marriage. What if the wife kept her non-marital home and rented it out and the husband sold his house and used the proceeds to purchase a new marital home for them to share? Would the law recognize the husband’s contribution to the home and give him credit or would it be a 50/50 split? Most likely it would be a 50/50 split and the wife’s non-marital property would remain her own and the husband’s non-marital funds used for the marital home would be deemed a gift. When looking at filing for divorce in Florida, it is important to bring up all of these issues with a Florida Divorce lawyer in the beginning, so that your goals are clear and your expectations are realistic.
Many clients ask if it is possible to get a joint custody in a Florida Divorce arrangement when seeking a divorce. The answer is, it depends. The terms used in a Florida divorce regarding custody is time sharing of the children, shared parental responsibility and the child’s primary residential parent. In almost all cases, shared parental responsibility is ordered, but this has nothing to do with the amount of time the child spends with you. Shared parental responsibility means that the parents share in decision making for the children as it relates to school, medical care, religion and extra curricular activities. It also means that both parents will communicate with one another regarding the children and decisions that are made. Anyone who has been through a divorce knows that communication between former spouses is not always easy, but it is necessary to raise your children.
Joint custody has many implications on your children’s lives and also financially. If you have your children 50% of the time, you will generally not have to pay child support. Unfortunately, many times this is used in divorce as a negotiation tool. I do not advocate this type of divorce.
If you have generally been the primary care giver of your children, it is natural that you will continue in that role after divorce. If you work 50-60 hours per week, frequently travel and can’t remember the last time you went grocery shopping or bathed the children, it is not appropriate for you to request custody of your children or even joint custody. This is not gender specific either. I have represented many men who are the primary care giver and the wife has been the primary wage earner. The point being if you haven’t been participating in the daily care giving of your children, it is not appropriate to petition the court for a joint custody or 50/50 time sharing as a tactic to get an advantage in a divorce. It is certainly appropriate to seek a greater time sharing schedule because of your desire to spend more time with your children and the courts are inclined to give parents, particularly men, more time with their children than the every other weekend that most jurisdictions award in a divorce. In any situation, contact a Florida Divorce lawyer to discuss how you should proceed in an original divorce with a parenting plan or ask a divorce lawyer how to modify your existing parenting plan.
After divorce with children in Florida, most parents follow some type of structured visitation schedule as part of their child custody order. In Jacksonville, there are standard visitation guidelines that are followed, providing each parent with holiday visitation time for each holiday. The most common is to provide each parent with Thanksgiving on every other year, for example the father gets the children for Thanksgiving on the odd years and it begins as soon as the school holiday begins. On Christmas, the visitation begins when the children get out of school and usually the exchange of the children occurs on Christmas day, so both parents can spend Christmas day with their children.
If you are getting a divorce in Florida now, the law has changed to require a parenting plan to be presented to the courts. A parenting plan is a detailed plan of how and when each parent will spend time with their children. The ideal situation is one where the mother and the father can work together and create a parenting plan that accomplishes the time sharing to meet their individual family. All families have traditions and annual ski trips or family reunions that if incorporated into a parenting plan will alleviate a lot of future stress and court intervention. If your parenting plan needs to be modified, contact a Florida divorce lawyer to discuss the necessary procedure.
At this time of year, we so many parents who are struggling with getting enough time with their children. As divorced parents go on with their lives, they remarry begin new traditions and want to alter their holiday schedule. Ideally, there will be good communication with their former spouse and be able to make adjustments in the holiday schedule. Unfortunately, that does not happen in many post divorce cases that I see and it necessary to go to the Court to get the schedule adjusted to allow for a special vacation or adjustment to the time sharing schedule. It is important to plan ahead with your divorce lawyer, so that a hearing can be scheduled with enough time to plan your vacation with your children.
Florida Law has very strict laws regarding relocation and child custody after divorce or pending divorce. Many clients are in a position where they have a new job offer that will require relocation outside of Jacksonville. When there are minor children involved, the court requires you to either get consent from your ex-wife or ex-husband before you can move with the children. It is important for your divorce lawyer to explain the premise behind the laws, the better understanding you have the more equipped you can be for the upcoming court hearings. The courts are primarily concerned with the child’s relationship with their parents and how the time-sharing/visitation arrangement if going to be affected. Secondly, the court is going to consider the purpose of the relocation and will that be in the best interest of the child. There are some cases where the parent with primary custody just wants to live elsewhere, sometimes for the purpose of getting away from their ex-spouse. Of course, this is not a winning argument if you are seeking court approval. The most common I see are for a job relocation, whether that is because of the parent or the parent’s new spouse.
When a parent is seeking relocation after a divorce, the best advice your lawyer can give you is to follow the court procedure and don’t just move without consent or approval of the court. The Judges, particularly in Jacksonville, do not take look favorably upon parents who willingly violate the Florida law.
In 2011, substantial Alimony changes were made in Florida Divorce law. My last post discussed the changes that your divorce lawyer should inform you of prior to representation. Just this past week, a bill has been forwarded by Florida State Senator Diaz de la Portilla of Miami to again amend the alimony statute. This proposed legislation could be detrimental to divorcing spouses with no education or future employability. The proposed legislation requires that alimony terminates upon the payor (usually the husband) reaching age of retirement, whether he retires or not. The most detrimental aspect of the proposed bill is to limit alimony to no more than 20% of the payor’s net income. What this law means to florida divorce law and the attorneys is that alimony laws will be tougher on the recipient. Which is in direct conflict with the purpose of alimony, protecting the spouse who supported the Husband through the marriage, watching and supoprting his career advancement, will now be penalized if she is divorced.
This bill needs to be followed by all Jacksonville divorce lawyers and potential clients.
Most men cringe at the mention of alimony after divorce and in Florida when you are going through a divorce, alimony is a reality. Florida divorce law changed this summer to clarify the statute on what is termed “spousal support.” This change was meant to make things clearer and more predictable for those going through a divorce. What changed primarily is the length of the marriage is now clearly defined in Florida.
When evaluating support, the courts look at a marriage in 3 ways, short term (less than 7 years), moderate term (7-17 years) and long term (over 17 years). Based upon the evaluation of time, you can estimate your exposure to paying alimony. In a long term marriage, the husband will most likely pay permanent alimony, if he is the major breadwinner. In long term marriages, if the parties earn equal amounts, there will be no permanent alimony. In addition to the time evaluation, the next step is need versus ability to pay. So, this is looked at by the divorce lawyer as well to advance the position of the client. Although in today’s market, women are ever present and competitive in the job market. Traditionally, we continue to see the husband making more income. This can be due to several factors of the marriage, the most common being the stay at home mom. Many women, if they have the option, put their careers on hold to be the primary caregiver of the children and homemaker. In these situations, women are at a disadvantage when they want to return to the workforce and Florida alimony accounts for that with what is called “bridge the gap” or “rehabilitative” alimony. Most husbands can understand that concept and agree that alimony for a period of time is reasonable. The problem comes up when husbands and wives are subjected to paying permanent alimony, meaning for the rest of the ex-spouse’s life. This concept does not promote self reliance and the ability to support yourself. Particularly when the parties are reaching retirement and they faced with the prospect of continuing to pay alimony based upon social security income.
After divorce, both parties will have to sustain a home on a single income and the financial strain of paying alimony, after losing 1/2 of your assets and 1/2 of your retirement, sets out dreary prospective retirement. In Florida the group Florida Alimony Reform, http://www.floridaalimonyreform.com/ , is working to change the law and make alimony more about rehabilitation for the spouse and less punitive against the husband. There are always areas of the law that remain open to interpretation, so if you are facing divorce, you need a florida divorce lawyer to analyze your exposure to paying alimony and how that will be factored into child support as well as a fair distribution of the marital assets.
Florida Child Custody laws have changed. The most important change is the language for child custody. The term now used is “time-sharing”. What this really means is that the minor child or children will share time between the parents. The intent of the change in the law is to encourage and foster parents to continue to get along and share their time with the children, rather than one parent having primary custody of the child. When you are considering filing for divorce and researching the divorce laws in Florida, it is important to understand not only how the courts view child custody, but also how that will impact child support and your overall divorce. If you are in a situation where both parents are communicating and in agreement on the raising of your children, this will not pose too much difficulty. However, as is typical in a divorce, the Husband and Wife are not effectively communicating on many levels, so issues related to the children and visitation are sometimes difficult to achieve. Because of these difficulties, it is important to retain a divorce lawyer who understands your point of view and who is willing to advocate on your behalf to accomplish your goals. With the new laws related to time-sharing, Fathers are not necessarily only provided every other weekend and a “dinner night”, one evening a week. If the Father can show he is willing and able to spend more time with the children, it is likely the Court will order a time-sharing plan that is similar to a joint custody arrangement. You need to talk to your lawyer about how the different types of time-sharing arrangements can affect the child support that is ordered as well as alimony, equitable distribution and even the marital home. Despite the change in the name in Florida from child custody to time-sharing, all decisions are going to still be based upon what is in the best interest of the child.