Answers To Some Of Your Family Law Questions
Q? Can I get a divorce without a lawyer?
A. You can, but Florida divorce law can be very confusing even if you and your spouse have agreed to a simple, uncontested divorce. An attorney can help guide even collaborative divorce or amicable mediation to the benefit of all parties.
Q? What are the residency requirements to divorce in Florida?
A. You or your spouse needs to be a Florida resident for six months — even if you live apart.
Q? What is collaborative divorce? Is it allowed in Florida?
A. Collaborative divorce is a generally less stressful and acrimonious approach to marriage dissolution. In Florida, each party retains his or her own attorney, but the work is done outside of the courtroom. It is geared toward cooperating and reaching an amicable agreement in child support, alimony, child custody, property division and other issues.
Q? What are Florida's alimony guidelines?
A. Alimony is support paid to the dependent spouse that continues after the marriage has been dissolved. Alimony is also referred to as spousal support or maintenance.
Florida alimony awards are based on one spouse's need and the other spouse's ability to pay. The court will examine the standard of living established during the marriage, each party's age and physical and emotional condition, financial resources, and contribution to the marriage, including homemaking, child care, education and career building. The court will also look at all sources of income available to either party and the time necessary to finish education or training to find appropriate employment during this time of transition.
Long-term marriages are more likely to result in permanent alimony, which is not generally awarded in short marriages.
Q? How are assets and property divided in a Florida divorce?
A. In Florida, property is divided by the equitable distribution principle. This means that separate property is kept separate, while marital (jointly held) property is divided equitably.
In divorce cases that go to family law court, the judge will base property division on the length of the marriage, what each party has contributed to the marriage, total income and debts of both parties, the physical/emotional health of both parties, and other factors.
Q? How can I gain protection against an abusive spouse?
A. Under Florida law, a domestic violence victim or someone in imminent danger of becoming a victim may apply for an injunction to restrain the abuser from committing acts of domestic violence, such as assault and aggravated assault, battery, sexual assault and battery, stalking, kidnapping, or other criminal acts that result in physical injury or death.
Persons may seek domestic violence injunctions against any abusive household member. The police have a duty to enforce a domestic violence protective order, and the person violating the order could be arrested or charged with contempt of court.
Q? What are the laws on child support, child custody and visitation in Florida?
A. Florida Statutes do not use the word "custody" or designate a primary or secondary residential parent. In Florida, both parents have "time-sharing" with their children. The court will order a time-sharing schedule that is in the best interests of the children.
The court will order either or both parents to pay child support in accordance with mandatory state guidelines, unless the court makes a specific finding that the guideline amount is unjust or inappropriate. The statutory guidelines specify a minimum amount that is determined directly from the parents' combined net monthly income, apportioned according to each parent's ability to pay.
In Florida, under a time-sharing arrangement, the court may designate a custodial parent with whom the child maintains a primary residence, while the other parent is granted a schedule of time for visiting with the child. In a very few cases, the court may order sole parental responsibility over a child's welfare, primary residence, education or medical care, as determined to be in the child's best interests.
Factors the court reviews in order to determine physical custody include each parent's moral fitness, mental and physical health, and ability to provide the child's basic material needs. The court also considers which parent is more likely to allow continuing contact with the nonresidential parent, emotional ties, provision of a stable environment, and evidence of domestic violence or child abuse, among other factors.
Q? What is a parenting plan, and do I need one?
A. A parenting plan is a settlement agreement outlining how the parents will cooperatively parent their children. The plan may include the time-sharing schedule, holiday time-sharing schedule, provisions for extra-curricular activities, education, child care, contact between the parents, contact between the children and parents, and travel provisions and limitations.
Q? I want to move out of Florida. Will this affect my ability to retain custody?
A. If the children are Florida residents and the other parent objects, the courts will want to see that the children's best interests are served. Generally, the court will weigh the children's ability to spend time with both parents against the needs of the parents to live where they can earn a living or get assistance from relatives.
Even if you are staying in Florida, if you want to move with your child or children more than 50 miles away from your primary residence, you must get a written agreement from the other parent. You also have should obtain a court order allowing the relocation.
Q? If both parents share custody, who pays child support?
A. If both parents enjoy equal time-sharing, then child support is still calculated using the Child Support Guidelines Worksheet, which is dependent on income, percentage time-sharing (only overnights are used for purposes of establishing the percentages), health insurance, and costs of day care and uncovered medical expenses.
Q? What types of paternity tests are used in Florida court cases?
A. In Florida, the legal paternity of a child may be established through a paternity action initiated by the mother, putative father or the child; by the father's marriage to the mother; by a foreign judgment of paternity; or by the father's acknowledgment of paternity. A man's name on a birth certificate does not necessarily determine his legal rights as a parent.
Florida paternity cases can also use a blood test or DNA test to determine paternity. In Florida, any party to a paternity proceeding may request that a blood test be given, or the court may order a test on its own motion.
Q? Do I need to use a guardian ad litem or parenting plan evaluator?
A. When necessary, a guardian ad litem may be ordered to advocate on behalf of children in court. Or, the court may order a social investigation and parenting plan recommendation by a mental health professional.
Q? Do Florida courts favor mothers over fathers?
A. While courts have historically favored mothers, Florida statutes do not favor one parent over the other based on gender.
Q? Can the court order supervised time-sharing?
A. When necessary, a judge can order supervised time-sharing or even no time-sharing at all. Severe and untreated mental health disorders, drug addition, alcohol addiction, domestic violence or neglect can serve as cause for supervised or elimination of visitation. A judge may call on Child Protective Services for intervention.
Q? What if parents cannot agree on a parenting plan?
A. If the parents cannot agree on a time-sharing schedule, then the court will order a schedule based on the best interests of the children.
Q? When can I modify the parenting plan?
A. A modification can be requested any time there has been a substantial change in circumstances. It is up to the court to determine if the modification is in the best interests of the children.
Q? Can a parent refuse to allow visitation in Florida if child support is not paid?
A. No. Time-sharing and child support are treated separately from each other in Florida courts except as it relates to calculating child support.
Q? How much child support will I have to pay?
A. Florida uses a child support calculator based a number of factors, including monthly income, expenses and the number of children. That number is then adjusted depending on the circumstances, amount of time you spend with the child and other factors.
Q? Can I change my child's last name?
A. A parent who wants to change a child's last name must file a petition with the court and serve the other parent with the petition by service of process. If the other parent objects, then there will be a court hearing. The court will order a name change upon a showing that it is in the best interests of the child.
Q? Will my child be asked to testify in court?
A. In the vast majority of cases, children do not appear or testify in court. A child's appearance requires special permission by the court, and those cases are rare.
Q? Do grandparents have custody and visitation rights in Florida?
A. The Florida Supreme Court has consistently held all statutes that have attempted to compel visitation or custody with grandparents based solely on the best interests of the child standard to be unconstitutional.
In cases of military deployment or assignment in excess of 90 days, Florida allows a parent with visitation rights to designate a family member, a stepparent or a relative of the child by marriage to take on the time-sharing schedule on the parent's behalf.