Frequently Asked Question Videos
What are the Requirements to get a divorce in Florida
Question: What are the requirements to get a divorce in Florida?
Answer: First, your marriage needs to be irretrievably broken. Since Florida is a no- fault state, issues such as abuse, abandonment and alcoholism are not something that you need to prove in court. These situations might still be important for the issues of equitable distribution, alimony or the establishment of a parenting plan.
If counseling can help you fix your marriage, then your marriage is not irretrievably broken.
An exception to the irretrievably broken requirement is the mental incapacity of one of the spouses. If a spouse is mentally incapacitated, that spouse must have been found to be mentally incapacitated under a specific Florida statute by a judge for the 3 year period prior to the start of the divorce case.
The second requirement is one of the parties – not necessarily both – needs to have been a resident of the state of Florida for the 6 months immediately prior to the filing of your Petition for Dissolution of Marriage. You don’t need to be a Florida resident on the date of you Final Hearing – just for the 6 months before you file your case with the Clerk of Court.
The last requirement is that there must be a valid marriage. You can’t get divorced if your marriage is not valid. If you think your marriage is invalid, you should speak with an attorney about the differences between divorce and annulment.
What are the residency requirements to file for divorce in Florida?
Question: What are the residency requirements to file for divorce in Florida?
To file for a divorce in Florida, you must have been a Florida resident for the six months immediately before the date for file your Petition for Dissolution of Marriage. You do not need to be a Florida resident on the date of your Final Hearing.
To be considered a Florida resident, you must be in the state with the present intention to reside permanently in Florida. Evidence that you are a Florida resident includes a lease or mortgage for a residence in Florida, voter ID card, driver’s license, car registration, bank account statement, or a utility bill.
This requirement is not something that you can waive or agree to. It must be proven in each divorce case. The most common form of proof shown to judges is a valid Florida driver’s license which shows an issued on date more than six months before the date of filing.
In which county in Florida should I file my divorce case?
Question: In which Florida county should I file for divorce?
As long as both parties agree, a divorce case can be filed in any county in Florida.
However, this is not usually the way it works out. There is usually not an agreement between the parties on where to file their divorce case. In this situation, the general rule is that you file your divorce case in the county where the Husband and Wife last lived together as Husband and Wife.
For example, if a Husband and Wife lived together in Jacksonville, split up and later want to divorced, no matter who files the case, they should file in Duval County as long as at least one of them still lives in Duval County.
If both parties have left the county where they last lived together as Husband and Wife, then the spouse who files the case should file in the county where the other spouse now lives.
The last scenario is if one person remains in Florida and the other spouse has left Florida, the spouse remaining in Florida can file where they live even though that might not be where the parties last lived together as Husband and Wife.
For example, if the parties last lived together as Husband and Wife is Duval County, and the Wife moves to Georgia, and then the Husband moves to Orlando, then he can file the divorce case in Orange County.
It is important to remember that if you think your spouse has filed your case in the wrong county, you need to bring that issue to the court’s attention in your initial response to the Petition for Dissolution of Marriage. If you don’t raise it at that time, the court will assume that you have agreed to use that county.
What if my spouse cannot be found for service of the divorce papers?
Question: In Florida, what if my spouse cannot be found for service of the divorce papers?
As a general legal principal, you need to give the other side notice that a lawsuit has been filed against them. Usually, this is done by personally serving a copy of your Petition or Complaint on them by a process server.
There is an alternative to this personal service if you do not know the location of your spouse. In this situation, you would need to file a document called an Affidavit of Diligent Search with the Clerk of Court. This document tells the Clerk the court how you have unsuccessfully tried to locate your spouse.
Once the Clerk receives this document, they will be able to issue another document called a Notice of Action. This document needs to be published in a newspaper near the lost spouse’s last known address. The ad needs to run once a week for four consecutive weeks.
If the lost spouse does not respond by the date listed in the Notice of Action, this will have the same legal effect as the spouse being personally served and failing to respond. At this point, the Clerk can enter a default against the lost spouse and your case can proceed to a default final hearing.
What happens if a Wife has a child that is not the biological child of her Husband?
Question: What happens if a Wife has a child that is not the biological child of her Husband?
First, I will assume that both the Husband and the Wife know that the child is not biologically his and that the husband and wife did not adopt the child.
This is a complicated situation since Florida law states that children born during a marriage are the legal children of the Husband. As a result, if the parties divorce the court must determine a time sharing schedule and establish a child support amount.
In most of the cases that I’ve handled where this situation arrises, neither the husband nor the wife expects or wants the husband to pay child support. The problem is the judge has very few options.
In order for the husband to avoid a child support obligation, he must have his legal rights to the child terminated. This can only be done if the court finds that the termination of parental rights is in the child’s best interests.
To show that the termination of parental rights is in the child’s best interest, the biological father needs to file an Affidavit of Paternity in the Wife’s divorce case. This affidavit needs to state the he is the biological father and that he intends to assume the role of father in the child’s life. Similarly, the Husband needs to file an Affidavit of non-Paternity where he states that he is not he biological father of the child.
Lastly, the divorce order needs to state that the parental rights of the husband are terminated. This termination of rights does not establish the legal rights of the biological father.
This whole situation in greatly complicated if the biological father can’t or won’t sign the affidavit. Essentially, the court will not allow the child to be legally fatherless, so the husband may be forced to pay child support. The situation is also greatly complicated if the husband does not want to give up his rights to the child.
What is an Uncontested Divorce?
Question: What is an uncontested divorce in Florida?
An uncontested divorce is a divorce where the parties have come to an agreement on all the issues in their case prior to the start of the case.
It does not matter how simple or complex their case is. What matters is that they agree on all the issues. These issues typically include the division of all your various assets and debts, amount and duration of alimony – if any, and, if you have children, child support and time sharing with the children.
The main benefits of an uncontested divorce are that your case can be resolved much quicker and at a far lower cost.
How long does it take to get an Uncontested Divorce?
Question: How long does it take to get an uncontested divorce in Florida?
An uncontested divorce typically takes between 4 and 6 weeks after the case has been filed with the Clerk of Court.
Florida law requires that you wait at least 20 days. The difference between the 20th day and the actual date of your final hearing is due to availability on the judge’s calendar.
Military service members that appear at a final hearing by phone with a notary may have a slightly longer delay between filing and the final hearing.
What is the process for an Uncontested Divorce with my office?
Question: What is the process for an uncontested divorce with my office?
In order to get an uncontested divorce, you and your spouse need to agree on all the issues that are raised in your case. The issues that commonly need to be addressed include: the division of property, the divisions of debts, alimony if any, the time both parents spend with their children and child support. Those last two – of course – only need to be addressed if you have children.
If you can agree on all of these issues, you can get an uncontested divorce. In my practice, I can normally meet with a potential client a few days after they contact me. You would need to submit the Client Questionnaire that can be found on my homepage.
At our initial meeting, we will discuss your answers in the Client Questionnaire. A few days later, you will receive all the documents you need for an uncontested divorce. After you review the documents, I will make any changes that are needed. All of those documents need to be signed and notarized and then returned to my office so I can electronically file them with the Clerk of Court.
Following the filing, you can expect ot have your Final Hearing in about 4 to 6 weeks following the date of the filing. On rare occasions you can have the hearing in as little as 3 weeks – but like I said, that is rare.
I will go with you to the courthouse to the hearing and see the judge. I will ask you some simple questions in front of the judge. The judge will sign your order and you will walk out of the hearing room that day with a copy of the divorce order and your case will be finalized and closed.
What questions need to be answered for an uncontested divorce in Florida?
Question: What questions need to be answered to get an uncontested divorce in Florida?
The first question that needs to be answered in “what will happen with your marital assets?” Simply, marital assets are those assets that you and your spouse have acquired during your marriage – a house, cars, personal property, bank accounts, and so on.
Often, there are at least a few ways to fairly divide the marital assets. You need to agree on one of them if you want an uncontested divorce.
The second question that you need to answer for an uncontested divorce is “what happens with your marital debts?”
Similar to how assets are treated, in an uncontested divorce, you and your spouse will need to agree on how the marital debts are divided. Marital debts are simply those debts that were incurred during the marriage no matter who actually owes the bank or creditor – and typically includes mortgages, credit card debt, car payments, personal loans, and any other payments to creditors.
The third question that you need to answer addresses if there will be any alimony, and if so, how much and for how long.
Lastly, if you and your spouse have children, then you are going to need to address the fourth and fifth questions that commonly come up in an uncontested divorce – time sharing and child support.
The judge will almost always approve of your proposed time sharing schedule as long as you are not proposing something very odd or difficult to accomplish. Also, the child support amount will be approved as long as it was calculated according to the Florida Child Support Guidelines.
Do I have to attend the Final Hearing in a Florida uncontested divorce case?
Question: Do I have to attend the final hearing in a Florida uncontested divorce case?
When I file an uncontested divorce on behalf of a client, my client generally has to appear at the final hearing so that I can ask the client a few questions in front of the judge.
If you cannot attend the final hearing – for some reason – your spouse must attend the final hearing with me. It is up to the judge to determine whether certain exceptions are applicable and can be made.
Often, judges will allow military service members to appear by phone as long as that service member can be sworn in by a notary that appears on the telephone call with them.
A second exception may occur if a client is disabled and cannot physically attend the final hearing. In that situation, the client would still need to have a notary with them when they called into the final hearing.
While my client needs to attend the final hearing, the other party usually does not. Of course, the other party can attend the final hearing if they want.
What happens at the Final Hearing for an uncontested divorce in Florida?
Question: What happens at the final hearing for an uncontested divorce in Florida?
Once you arrive at the courthouse, you should wait outside the judge’s hearing room. When I arrive, we will go into the judge’s hearing room, sit down, and wait our turn to talk to the judge. When we talk to the judge, I will ask you these simple questions.
1. What is your name?
2. What is your spouse’s name (I know, these questions are simple)?
3. Is your marriage irretrievably broken? You should agree that your marriage is irretrievably broken since that is one of the legal requirements in Florida to get a divorce.
4. I’m going to ask you to tell the judge why you feel your marriage is irretrievably broken. You do not need to tell the judge your whole story. Simply tell the judge a few sentences that describe why your marriage is broken and cannot be fixed.
5. I will ask you if any amount of counseling would help you fix your marriage. You should answer “no.” If any amount of counseling could help you fix your marriage, then your marriage is not irretrievably broken.
6. I’ll ask if any children were born during the marriage. So simply answer that question.
7. I’ll ask you if your wife (or yourself) are currently pregnant. Usually the answer to that question is “no.”
8. Next, I will ask you how long you have been a current and continuous resident of the State of Florida. You need to have been a resident for the 6 months immediately preceding the filing of your Petition for Dissolution of Marriage. This is typically proven by showing the judge your valid Florida driver’s license that has an “issued on” date 6 months before the date of filing.
9. Lastly, I will ask you if you recognize the Consent Final Judgment – that’s the settlement agreement – and ask you if you signed that document. After you say “yes,” the judge will sign the settlement agreement and you will get a copy of the Order to take with you.
Do a Husband and Wife each need a lawyer for an uncontested divorce in Florida?
Question: Do a husband and Wife each need a lawyer for an uncontested divorce in Florida?
It might be a good idea for both sides to have a lawyer – even in an uncontested divorce. However, it is not required. In fact, neither side is required to have a lawyer represent them.
In my experience, most of the time, the other side in an uncontested divorce does not hire a lawyer. This is usually because of financial reasons or because the unrepresented spouse thinks that they understand the settlement agreement and do not need a lawyer to explain it to them.
If you are participating in an uncontested divorce, whether or not your spouse has a lawyer, it is important for you to have a lawyer.
Even if you think your case is fairly simple, you should – at least – consult with a lawyer so that he or she can review your proposed settlement agreement. Common problems that are identified are repayment of debts and the calculation of child support – just no name a few.
A review of a proposed settlement agreement is not expensive and could certainly save you a lot of money in the long run.
Another benefit of hiring a lawyer in an uncontested divorce case is that your case will be finalized much quicker than if neither side has a lawyer. Simply, lawyers have faster access to the judges, so we can schedule your final hearing much sooner.
What if my Spouse does not want an Uncontested Divorce?
Question: What if my spouse does not want an uncontested divorce?
Most couples would prefer an uncontested divorce because it is less expensive and far less time consuming. However, in this situation, the answer is fairly simple. You can’t get an uncontested divorce both sides agree to get an uncontested divorce.
In my practice, this comes up in two ways.
The first way is that one spouse believes that the couple has no assets or debts to divide and proposes that they each keep what they have and pay their own debts. Even if you assume that this type of division is exactly what the judge would do after a trial, you can’t have an uncontested divorce unless the other spouse agrees with your proposed division of the assets and debts.
The reasonableness and fairness of your settlement offer does not require the other side to accept it.
The other way this comes up is that the other side won’t negotiate at all. This could be that they don’t want a divorce so they will not cooperate or it could be that they don’t want to agree to anything because they don’t trust that you are being fair and they don’t trust their ability to know what is unfair.
In this situation, you can’t get an uncontested divorce because at this stage you can’t force the other side to negotiate. Eventually you can force them to negotiate by attending a court ordered mediation that is part of a contested case.
If you are in the situation where you want an uncontested divorce and your spouse does not, you have three choices.
The first choice is to simply wait. Perhaps the other side will change their mind if given enough time.
The second choice is to explain to the other side that their refusal to even negotiate will cause a contested case that will cost them more money and time.
The third choice is to ask the other party to consult with a lawyer. Sometimes people have unrealistic demands that they will drop once they find that they are unrealistic and would be expensive to pursue. Even if their demands are realistic, they will discover what the cost of the litigation would be.
Can one lawyer represent both sides in a divorce case in Florida?
Question: Can one lawyer represent both sides in a divorce case in Florida?
No. A lawyer cannot represent both sides in a divorce case – not even in an uncontested divorce case where both sides agree on the terms of a settlement agreement.
It would be a conflict of interest for a lawyer to represent both sides. For example, suppose that a couple was married for a year and wanted to get a divorce. Before talking to a lawyer they agreed that the Husband would pay alimony to the Wife for the rest of her life.
Now suppose that they were able to hire the same lawyer so that they could get their divorce done quickly and inexpensively. A lawyer representing the Husband would almost certainly tell him that there are only a very few limited circumstances in which a judge would award permanent alimony after a one year marriage.
This legal advice would be great for the Husband. However, the lawyer in this scenario also represents the Wife. The lawyer’s opinion about the alimony would be awful for her because now the Husband would likely refuse to pay alimony for the rest of her life. In this scenario, the lawyer did a disservice to the Wife in offering the Husband valuable legal advice.
This is a clear conflict of interest and shows why one lawyer cannot represent both sides in a divorce case.
In Florida, what determines how much child support I have to pay?
Question: In Florida, what determines how much child support I have to pay?
In Florida, child support is calculated according to the Florida Child Support Guidelines.
The guidelines use only a few factors to determine child support. The major factors are gross income, allowable deductions from income, day care cost, and the cost of the child’s medical insurance.
The most common allowable deductions are taxes, what you pay for your own health insurance, alimony you pay, and other child support that is court ordered and paid.
It is also important to note that rent, mortgage, car payments, car insurance, gas credit cars and other debts, food, and clothing are not considered when determining a child support obligation.
Is there a minimum child support amount in Florida?
Question: Is there a minimum child support amount in Florida?
Not really. The Florida Statutes do not contain a provision that calls for a minimum child support amount.
However, this does not allow someone to avoid paying child support by not working or working at a job that pays far less than they could be earning. The court will impute an amount of income to someone who is not working if the judge thinks that a parent is voluntarily limiting their income.
Often, in this situation, minimum wage is imputed, but a different amount can be imputed if there is evidence that the parent could earn more based on their education, experience, and earning history.
Does overtime pay count as income for calculating child support in Florida?
Question: Does overtime pay count as income for calculating child support in Florida?
Overtime can be – and usually is – included as income when determining someone’s income in order to make a child support calculation.
When including overtime pay in a child support calculation, you need to pay special attention to the amount of overtime pay that is added to your base pay.
For example, in the most basic situation, if you consistently work 20 hours of overtime per month, then 20 hours of overtime pay should be added to your normal monthly pay.
If however, the 20 hours of overtime only exists around the holidays – say November and December, then that 40 hours of overtime pay needs to be spread out over the year. This way in January through October, your child support will be a little higher than it should be based on your actual pay, but you make up the difference in November and December when your child support is lower than it should be if based on your actual earnings in those months.
What factors does the Judge consider when calculating child support in Florida?
Question: What factors does the judge use when calculating child support in Florida?
The first factors is simple: How many children are involved in the case where the child support calculation is being made.
The second factor is both parent’s gross incomes – in other words, your income before you pay your taxes. This includes income from any source – wages, salary, commissions, overtime, bonuses, workers comp, disability benefits, social security, investment income, rental income, etc.
About the only way that I see clients receive money that is not included in their income when calculating child support is when they receive child support for a child that is not involved in the current case.
It is very important to understand that just because you may be unemployed, the court is not required to use zero as your income. The court may impute an amount of income to you if it thinks that your unemployment or underemployment is voluntary. The amount imputed is based on your experience and education.
The third factor to consider are the allowable deductions from income. These deductions lower your income that is used to calculate child support. The main allowable deductions include state and federal income taxes, child support that you are paying for another child that is court ordered, the cost of your own medical insurance ** not including the amount paid for the children involved in the current case **, mandatory union dues, mandatory retirement contributions, and alimony paid by you in this case or another case.
The fourth factor is the number of nights that each parent will spend with the child over the course of a year. The Florida Statutes provide for a reduction in child support if a parent spends more than 73 nights per year with the child. Every night in addition to 73 will result in an increased reduction.
The fifth factor is how much is paid for child care and the child’s medical insurance. For example, let’s assume that a Husband makes 60% of the money between him and his Wife and the Wife makes 40% and pays $500 per month for the child’s day care.
In this scenario, the Husband would be responsible for 60% – his percentage of income – of the cost of the day care. So he is responsible for $300. Since the Wife pays all $500, the Husband would pay his share to the Wife as an additional $300 of child support. When a child no longer has a day care expense, the parent paying child support very often has sufficient grounds to have the child support amount reduced.
So, these are the factors that the court will use to calculate child support. It’s also important to note that the judge will not consider your rent, mortgage, car payment, car insurance, gas, food, and other expenses that I did not previously mention.
How can I legally avoid paying child support in Florida?
Question: In Florida, how can I legally avoid paying child support?
First, all child support in Florida must be calculated according the child support guidelines. So to legally avoid paying child support, you need to manipulate the factors used in the calculation in order to produce a child support amount that is as close as possible to zero.
In my experience, judges will allow you to pay zero if the guidelines show a low amount of monthly child support – such as $25. This can be done in some – but certainly not all cases.
Second, you need to understand the factors used in the child support calculation. In Florida, child support is based on income, deductions from income such as taxes and child support paid in other cases, as well as day care expense, the child medical insurance cost, and the number of nights spent with each parent over the course of a year.
The most common way for child support to be close to zero, is when the parents spend equal time with the child and earn about the same income.
If the parents incomes are not roughly the same, the way to eliminate child support – other than lying about income and the other factors // which you should never do – is to vary the number of nights that each parent spends with the child until you get to a very low child support amount.
The potential problem with this process is that it may result in a number of nights with the child that one or both parents are not comfortable with.
What are the allowable deductions from income in a Florida child support calculation?
Question: What are the allowable deductions from income in a Florida child support calculation?
Child support is based on your net income. The difference between your net and gross incomes are the allowable deductions. This is not necessarily your take home pay.
The main allowable deduction from your gross income is taxes. If you work in Florida, that means your Federal taxes. However, if you live or work in another state you are allowed to deduct your state and local taxes.
Judges use a program that estimates your taxes in order to eliminate the possibility that your withholding is too high or too low. For example, let’s assume that you make $50,000 per year and have $12,000 in taxes withheld from your pay. In that situation, your net income would be $38,000. However, if you received a $4,000 tax refund, then your actual net income would be $42,000 rather than $38,000. So, a judge would use $42,000 as your net income for the child support calculation.
Another potential deduction is for child support that you pay as the result of another case. The key to being eligible for this deduction is that what you pay for the other child is actually court ordered. Voluntary payments to the other child’s parent do not count. Similarly, you can’t deduct payments that you are not making even though you have been ordered to do so.
Another court ordered payment that you are allowed to deduct is alimony – whether it is from your current case or an older case – as long as you actually make the payment.
You are also allowed to deduct what you pay for your own health insurance. Very often only one amount is deducted from your paycheck for health insurance that covers you, your children and potentially your spouse. In that situation, I advise clients to ask their HR department for a breakdown of the cost. What you pay for your own health insurance is deductible, while what you pay for the children is treated differently in the child support calculator.
Lastly, and far less common, are the deductions allowed for mandatory union dues and mandatory retirement plan contributions. The important word here is “mandatory.” In my experience, many union dues and most retirement plan contributions are not mandatory.
In Florida, what if I need child support now and can’t wait until a Final Hearing?
Question: In Florida, what if I need child support and can’t wait until a Final Hearing?
Sometimes one parent will leave a household and they will stop their financial support of their child. In these situations, there is a problem with waiting for a final hearing in a divorce or paternity case because that could take many months, if not a year.
The Florida statutes do allow you to file a Motion for Temporary Needs in order to get some amount of child support for the time period shortly after the start of the case until the final hearing. These temporary needs hearing can usually be scheduled before a magistrate within a few weeks of the start of your case.
At the hearing the magistrate will apply the Florida child support guidelines in order to calculate a child support amount.
Explanation of a Florida Child Support Guidelines Worksheet
Transcript of Video:
I’m going to walk through what all these numbers mean in a Child Support Guidelines Worksheet. Hopefully so you can better understand what is going on here. There are a lot of numbers. Only a very few are actually input into the system.
This is a sample worksheet, not an actual client’s worksheet. But this is more in line with what you will see at a court hearing, rather than the Child Support Guidelines Worksheet that the Supreme Court of Florida puts on their website.
The first thing to notice is the number of children. The combines number of children. Here we have two (2) children. And they are living primarily with the Wife. Zero of the children living with the Husband. The next data that is input in the first section up here is in the income section. It shows a Wife with $3109 of monthly income, and a Husband with $5400 of monthly income. It totals these numbers up to $8509. These other lines here are for other ways you can make money. Basically they are all treated the same except for non-taxable income – which generally only comes up in a military context (but there are others). So the difference between the $8509 and the $7285 are the various deductions and this is what the rest of this side of the worksheet is talking about. It lists the various deductions – alimony payments, taxes, and other main ones union – dues, mandatory retirement plans, parent’s health insurance cost (but not the children’s, that is treated somewhere else). But the parent’s health insurance cost as well as child support that is ordered and paid in other cases – not this case, but is ordered and paid in other cases.
Each parent’s net income is calculated and then it’s added up to the $7285 – and that’s the number that is reflected on the next screen with the minimum child support need of $1921.
OK, so to review, the only numbers input on the left side of the screen were the number of children, the income of the Wife, the income of the Husband – nothing was input as any alimony payment made by either party. The taxes are calculated automatically, and there are no other deductions used. The numbers here at the bottom are all automatically calculated. And that gets us to the other side where we initially see the minimum child support need of $1921.
So starting on this side, the numbers that are input are simply …. the number of overnights that the children are going to have with the Husband. Based on the minimum child support need of $1921, the two (2) next numbers get divided up based on the percentages of income. So, in this situation, the Husband would typically pay $1108 a month in child support. That’s not going to be the case here because of the number of nights [with the children]. The law requires a reduction in his child support if he spends more than 20% of the nights with the children. Here is shows you his percentage – 27.4%. So that will provide, due to some interesting math provided by the statute, a pre-adjustment transfer – so that’s his base child support amount based on his number of nights and his income – of $873.
Next we go down to a couple of expenses that are counted in a child support calculation. First, this hypothetical couple pays $450 a month in day care costs and $350 a month in medical. And here you can see that the Wife pays the child care and the Husband pays the medical . Each is responsible for only a portion of those numbers even though they pay the entire amount of each one. The Wife is responsible for 42.3% of both costs. And the Husband is responsible for 57.7% of both costs. So instead of the having the Wife pay some money to the Husband and the Husband paying some money to the Wife, there’s only one transfer and that’s the $111.68 that the Husband pay in additional child support due to these expenses. We add that to the pre-adjustment transfer and you have him final child support amount of $985.06.
In Florida, how does the amount of time sharing affect child support?
Question: In Florida, how does the amount of time sharing affect child support?
The Florida Statutes allow for a reduction in child support if the paying parent has the child for more than 20% of the nights in a year. 20% is equivalent to 73 nights over the course of a year.
Each night above 73 will provide a slightly greater reduction of the parent’s child support obligation. So everything else being equal, a parent who sees their child for 80 nights per year will pay higher child support than the parent who sees the child for 90 nights per year. The reason for this is that the legislature felt that parents who spent a sizable amount of time with their children had greater costs when compared to parents who rarely saw their children.
A common misconception is that having 20% of the nights will result in a 20% reduction in the child support obligation. This is not necessarily the case. The Florida Statutes provide for a fairly convoluted formula to calculate the reduction.
The key to properly applying the reduction is to correctly determine the number of nights. The first thing to consider is that a potential reduction only applies to nights. Not days. For example, if a parent sees their child for 5 days per week after school, but the child only sleeps at the parent’s house for 2 nights per week. Then that parent can only apply 2 nights toward the annual total to determine the child support reduction.
Next, you should make sure that you add up all the night that the paying parent will have the child over the course of a year. Other than including normal weekday and weekend visits, be sure to include nights that occur during Spring Break and Christmas Break as well as on birthdays, Mothers or Fathers Day, and other holidays such as the 4th of July, Memorial Day, Labor Day, and Veterans Day. And don’t forget to include the summer. Some parents do use a different schedule during the summer.
Can child support increase if a parent does not see the child as provided in the Parenting Plan?
Question: Can child support increase if a parent does not see a child as provided in the Parenting Plan?
Often one side in a time sharing dispute will exaggerate the amount of time they intend to spend with the child in order to secure a lower child support obligation. If a parent does not exercise the time sharing provided in a court order, and that amount of time sharing resulted in a reduced child support obligation, then the parent receiving the child support can use this situation to go back to court and have the child support obligation increased based on the time the other parent actually sees the child.
Do I still have to pay child support if I have 50/50 time sharing or joint custody with my child?
Question: Do I still have to pay child support if I have 50/50 time sharing or joint custody with my child?
The determination of a child support amount is made according to the Florida Child Support Guidelines. It is possible that the guidelines will show that some child support should be paid even when the parents have equal time with the child.
Typically, zero child support only happens when the parents make about the same monthly income. The guidelines will not show zero, but the judge is not going to require one parent to pay the other parent $15 or $20 per month.
Also, the child support guidelines require that day care expense and the child’s medical insurance factor into the calculation. If a parent pays these costs and earns more than the other parent, they might get a child support amount close to $0 when there is 50/50 time sharing.
In Florida, at what age does child support end or terminate?
Question: In Florida, at what age does child support end or terminate?
In Florida, child support does not necessarily end at age 18.
The Florida Statutes require that child support be paid after a child turns 18 if that child is still in high school and is working toward graduation prior to turning 19.
A few examples to illustrate the rule.
If your child drops out of high school, the child support obligation ends when they turn 18.
If a child’s 18th birthday is in February and they graduate a few months later in June, then child support would end in June when they graduate.
Based on the wording of the statute, child support should end on the child’s 18th birthday even if the child is in school, but will turn 19 prior to graduating. However, the Supreme Court in Florida has not strictly followed this statute. There is case law that requires child support to continue after age 18 and until graduation when the child turn 19 close to – but after – the date of graduation.
Unfortunately, the Supreme Court of Florida did not give any guidance on the precise definition of “close.”
My child is 18, still in high school and living at home. Can I still get child support in Florida?
Question: My child is 18, still in high school and living at home. Can I still get child support in Florida?
Yes. The Florida Statutes require that child support continue past the age of 18, but not past 19 so long as the child is in high school and will graduate before 19.
This situation typically arises when a child turns 18 while a senior in high school. In that situation, the child support continues until they graduate from high school. However, in order for the child support to continue, they must be in school and on track to graduate before they turn 19.
Although the statute is pretty clear that the child must graduate before age 19, there have been cases in Florida where the court has required child support to continue after age 19 because the child’s 19th birthday were close together. Unfortunately, the courts have not decided how close the birthday needs to be to the date of graduation in order for the child support to continue.
My ex has remarried and has another family to support. How does this affect child support in Florida?
Question: My ex has remarried and has another family to support. How does this affect child support in Florida?
The facts that your ex has a new family with younger children will not allow your ex to lower the child support. Any reduction in child support would have to be based on a reduction in income or some of the other factors that are used in a child support calculation such as medical insurance or day care expense.
However, your ex’s new family might limit your ability to have the child support increased in the future. Under currently existing Florida case law, the ex’s obligation to support the new, younger children might limit your ability to have the prior child support obligation increased. The child support might still be increased, just not as much as suggested by the Florida Child support Guidelines.
If your ex is trying to limit the amount of an increase in child support, the income of your ex’s new spouse can come into play. For example, if the new spouse is making a lot of money, your ex can probably afford the increase you are seeking. In a situation like this, the judge has a good deal of discretion to do what they think is fair under the circumstances.
Can I Sign Away My Rights to My Child so I Won’t Have to Pay Child Support in Florida?
Question: Can I sign away my rights to my child so I won’t have to pay child support in Florida?
Typically, you are not allowed to waive your rights to your child and avoid paying child support.
Judges decide most issues regarding children by considering what is in their best interest. It is not in a child’s best interest to have a parent that does not have an ongoing obligation to support them. A child has a right to be supported by its parents, so a court will not allow you to defeat that right by signing a piece of paper.
Of course, there is an exception to this rule. The courts will allow you to waive your rights to your child – and escape further child support – as part of an adoption case. This usually comes up where a mother wants her husband to adopt the child and asks the biological father to sign away his rights.
In Florida, who pays for my child’s day care?
Question: In Florida, who pays for my child’s day care?
Normally, day care expense is a component of the child support calculation.
Stereotypically, the mothers pay the day care, and the father’s child support goes up as a result.
For example, suppose that a mother pays $600 per month for a child’s day care expense. Also suppose that she makes 60% fo the combined income of her and the father.
Under the child support guidelines, she is only responsible for 60% of the cost of the day care. Her percentage of the day care is the same as her percentage of income. She she pays 100% of the day care, the father owes her 40% of the cost of the day care.
The father pays his 40% of day care as an increase to his child support. If the father were paying for the day care, his child support would go down by 60% of the cost of the day care.
It is important to remember that in most cases, when the day care expense ends, the child support amount should be modified to reflect that change.
In Florida, what happens when a child turns 18 and there is still a child support arrearage?
Question: What happens in Florida when a child turns 18 and there is still a child support arrearage?
You should continue paying the same child support amount after your child turns 18 if you owe child support arrears.
After a child turns 18 and child support would normally end, all the money you pay as child support goes to pay off the arrears since no new monthly amount is owed.
For example, say you are paying $500 for child support and an additional $50 per month for child support arrears. Your total payment is $550 per month. If you pay this amount in the month of the child’s 18tn birthday, only $50 goes to pay down the arrearage. The following month, you should still pay $550, but that entire amount goes to pay down the arrearage. Of course, this will reduce the arrears much quicker.
It is important to know the total amount of your arrears in order to avoid over payment.
When the entire payment foes toward the arrearage, it is possible in some cases, to ask the court to lower the payment.
My ex is not paying child support. In Florida, can I withhold time sharing / visitation?
Question: My ex is not paying child support. In Florida, can I withhold time sharing / visitation?
The short and easy answer is “No.” You should not withhold time sharing because the other parent is not paying child support.
It doesn’t matter if the child support is court ordered or not.
Withholding time sharing because the other parent is not paying child support is specifically prohibited by the Florida Statutes and is looked on unfavorably by judges.
The judges are usually of the opinion that the child benefits from a good relationship with both parents.
If the other parent is not paying child support, you should look into filing a Motion for Contempt.
Can child support be modified up or down in Florida?
Question: Can child support be modified in Florida?
The short answer is yes it can be modified, but there are a few rules. In order for the child support to be modified either up or down, you have to be able to show that the child support would be modified by $50 or 15% – whichever of those amounts is greater.
So, a few examples. Suppose the child support amount is $200. Based on those rules, the child support amount cannot be increased at all unless it increases to $250 or higher or it cannot be decreased at all unless it goes down to $150 or lower. That is the $50 rule.
An example of the 15% rule would be if you have a $1000 child support, it’s not going to go up at all unless you are at $1150 and it’s not going to go down at all unless you are at $850 or lower.
All child support calculations, from the first time a child support amount is established to the last time it is modified, are done according to the Florida Child Support Guidelines.
Can I pay child support directly to the other parent?
Question: Can I pay child support directly to the other parent?
Yes, in some circumstances, you are allowed to pay child support directly to the other parent. However, you should read the order that establishes or modifies your child support to see how the judge ordered you to pay.
In Department of Revenue child support cases, the child support is ordered to be paid through the State Disbursement Unit in Tallahassee. In some divorce and paternity cases, you may also be required to make child support payments through the State Disbursement Unit rather than make direct payments to the other parent.
If you were ordered to pay thought the State Disbursement Unit and you pay the child support directly to the other parent, then the State Disbursement Unit will assume that you did not pay and you will start accruing an arrearage in their system. This can be corrected, but it can take a while and cost you unnecessary attorney fees.
Child support should always be paid as directed in your court order.
Assets and Debts
What happens to an IRA or 401(k) in a divorce in Florida?
Question: What happens to an IRA or (401(k) in a divorce in Florida?
An IRA or 401(k) are retirement accounts that offer the benefit of deferring income tax to the future. Typically, these accounts are marital assets to the extent they were created or contributed to during the marriage.
Generally, three situations arise involving these types of retirement accounts. The first situation is when the account is created and contributed to during the marriage. In this situation, the entire account is marital property and can be divided between the parties by the judge.
The second situation is when a spouse has the retirement account prior to the marriage and does not add to it during the marriage. In this situation, the account is not marital property and it will not be divided between the parties by the judge.
The third situation is when a spouse has the retirement account prior to the marriage and contributes to the account during the marriage. In this situation, only the portion of the account that was created during the marriage is considered marital property subject to division by the court.
For example, suppose that just prior to your marriage, you have an IRA with $50,000 in it. While married, you continue contributing to the account. When you get divorced, there is now $75,000 in the account, In this situation, only $25,000 is marital property since it was added to the account during the marriage.
Often each account is not divided, even if they are all marital accounts. The spouses may still be left with roughly equivalent values in their retirement accounts, but this can sometimes be accomplished by making a single transfer instead of multiple transfers.
What happens to joint debts when we divorce in Florida?
Question: What happens with joint debts when we divorce in Florida?
A joint debt is a debt that you and your spouse are both responsible for. Joint debts commonly, but not always, include mortgages, car loans, and credit card debts.
A divorce will not effect your obligation to a bank, creditor or other lender.
Typically a Final Judgment does one of two things to a joint debt. First, the Final Judgment could require that one spouse be fully responsible for the entire joint debt. Problems occur when the spouse that is required to pay a joint debt by the Final Judgment fails to so so. The creditor will seek payment from either or both parties.
The other alternative is where the Final Judgment requires the spouses to each pay a share of the joint debt. In this situation, problems arise when one of the spouses fail to pay their share of the debt.
It is likely that your credit will be impacted when a joint debt goes unpaid. So far as the credit bureaus are concerned, it does not matter that the judge has ordered your ex to pay all or a portion of a joint debt.
To minimize the impact of this potential problem it is helpful to have an indemnification or hold harmless clause in your Final Judgment. This would allow you to recover an over payment from your ex by suing them.
In Florida, can we decide ourselves how to divide our property?
Question: Can we decide ourselves how to divide out property?
Absolutely. In fact, the court system encourages divorcing couples to decide themselves how property gets divided.
Since both parties in a marriage are adults, they are free to agree to any type of division of their assets and debts. You are free to agree to what the judge might think is a great deal or a terrible deal. The judge will not second guess your agreement so long as the agreement was made in the absence of fraud, duress or coercion.
What is the difference between marital and non-marital property in Florida?
Question: What is the difference between marital and non-marital property in Florida?
If you are married, everything both spouses own is either marital property or non-marital property.
In general, property you acquire before you get married is considered non-marital property. Property you acquire while married is marital property.
The importance of the difference is that non-marital property is not included in the roughly 50/50 split of assets that you can usually expect in a divorce case. You get to take out of the marriage the property that you brought into the marriage.
Of course, there are exceptions to this general rule. There are ways that once non-marital property can become marital property and vice versa. You should absolutely consult with a lawyer if you and your spouse disagree about what is marital property and what is not.
In Florida, can my alimony payments be reduced or terminated if my ex is living with someone?
Question: Can my alimony payments be reduced or terminated if my ex is living with someone
The short answer is maybe. The key is whether a supportive relationship exists between your ex and the person they are living with. If you are trying to reduce or terminate alimony, the burden of proving this situation is on you – the person paying the alimony.
The judge may consider all circumstances surrounding the alleged supportive relationship, but the statute lays out a list of factors to be considered:
1. Whether the couple is holding themselves out as married by using the same last name, mailing address, referring to each other as husband or wife, or any other conduct that suggests a permanent supportive relationship.
2. The length of time they have lived together,
3. The extent to which they have pooled their assets or income,
4. The extent to which one has supported the other,
5. The extent to which one has performed valuable services for the other,
6. The extent to which they have worked together to create or enhance anything of value,
7. Whether they have jointly contributed to the purchase of real property, and
8. Whether either of them has provided support to the children of the other regardless of a legal obligation to do so.
It is important to note that the supportive relationship does not need to involve sexual activity. Also, a supportive relationship cannot exist between family members.
My ex is earning more than when we divorced. Can I have my alimony increased?
Question: My ex is earning more than when we divorced. Can I have my alimony increased?
The short answer is maybe. In general, in order to justify an increase in alimony, the receiving former spouse must show:
1. a substantial change in circumstances,
2. that the change was not contemplated at the time of the Final Judgment,
3. that the change is sufficient, material, permanent and involuntary.
Additionally, the substantial change must bear on either the recipient’s need for alimony or the paying spouse’s ability to pay.
So, essentially, in order for your alimony to increase, there must be an analysis of your need for additional alimony and your ex husband’s ability to pay additional alimony.
You do not get additional alimony just because he is making more money. You must show an increased need for the additional alimony AND he must have the ability to pay more.
If a former spouse retires, can alimony be modified?
Question: If a former spouse retires, can alimony be modified in Florida?
The short answer is maybe. In general, in order to justify a reduction of alimony, the paying former spouse must show:
1. a substantial change in circumstances,
2. that the change was not contemplated at the time of the Final Judgment, and
3. that the change is sufficient, material, permanent, and involuntary.
Additionally, the substantial change is circumstances must bear on either the recipient’s need for alimony or the paying spouse’s ability to pay.
A good number of retirements are voluntary.
In determining whether a voluntary retirement is reasonable, the court must consider the payor’s age, health, motivation for retirement, the type of work performed, and the age at which others engaged in the same line of work normally retire.
The reasonableness of the retirement is only one factor for the court to consider when deciding whether to lower or terminate an alimony obligation.
The courts in Florida have repeatedly held that a paying spouse should not be allowed to unilaterally choose voluntary retirement if that choice places the receiving spouse in peril of poverty.
In this situation, the courts will consider the needs of the receiving spouse and the impact a termination or reduction of alimony will have on the receiving spouse. in determining these needs, the court will consider any assets which the receiving spouse has accumulated or received since the Final Judgment along with any income generated by those assets.
In Florida, if a spouse commits adultery, could that result in higher alimony?
Question: In Florida, if a spouse commits adultery, could that result in higher alimony?
No. The courts have been fairly clear that the existence of or the amount alimony should not be set as a punishment for the bad acting spouse.
Alimony is based on the receiving spouses need fro the alimony and the paying spouses ability to pay
This means that if you had a pretty good alimony case, you should not expect a higher alimony amount just because your spouse committed adultery.
Similarly, if you had a weak alimony case, the adultery would not make your case any stronger.
How does alimony affect a Florida child support calculation?
Question: How does alimony affect a Florida child support calculation?
In general, alimony will lower the child support you pay because it reduces your income. If you are receiving alimony and child support, the child support you receive will be lower because the alimony you also receive will increase your income which tends to lower you child support.
For example, suppose you make $80,000 per year at your job and have $20,000 per year withheld from your pay as federal income tax. Also suppose that you pay $12,000 per year in alimony.
Without the alimony payment, your gross income for child support purposes would be $60,000 per year. With the alimony payment, your gross income would be about $48,000 per year. I say “about” because, you will get a refund for the tax you had withheld on the $12,000 in alimony that you paid. Essentially, your employer will withhold taxes based on what they pay you – $80,000 per year, when in reality, you really make $68,000 (what they pay you less what you pay in alimony) – so you have too much tax withheld. The amount that you are refunded by the IRS increases your gross income.
Are alimony payments tax deductible?
Question: Are alimony payments tax deductible?
Usually, yes, alimony that you pay is tax deductible and alimony that you receive is taxable to you as income.
In order for the IRS to consider alimony to be tax deductible, a few conditions need to be met:
1. The person paying the alimony must do so in cash or its equivalent – such as a check or money order. Also, the payment must be received by or on behalf of your spouse or former spouse.
2. The persons paying and receiving alimony cannot live together and must file separate tax returns.
3. The right to receive the alimony must terminate upon the death of the person receiving the alimony.
4. The court order establishing the alimony cannot state that the alimony is non-deductible to the person paying the alimony and non-taxable to the person receiving the alimony.
5. The alimony payments must be made pursuant to a court order. An agreement between the parties – without a judge’s signature – is not enough.
6 and lastly, the tax return of the person paying the alimony must include the social security number of the person receiving the alimony. This is so that the IRS can verify that the recipient of the alimony is being taxed on what the person paying is deducting.
Who is the custodial parent when the parents were never married?
Question: Who is the custodial parent when the parents were never married?
The Florida Statutes state that a mother is the sole legal custodian of her child when the child is born to an unwed mother. Fathers have no such rights until granted by a judge.
Basically, there are two ways for men to get rights to their children. The first way is when they are married to the child’s mother.
The second way is by court order. This happens in paternity and adoption cases.
As a result of these rules, it is important for these fathers to know that if they want rights to their children, they have to start a paternity case where their legal rights can be established along with a time sharing schedule and a child support amount.
I was served with Child Support papers. I am not the Father. What should I do?
Question: I was served with child support papers. I am not the father. What should I do?
If you’ve been served with child support papers, you have 20 days to respond to the petition. Do not ignore the paperwork that was served on you.
In your answer, you should admit or deny each allegation contained in the Petition. Then you need to sign the document and send the original to the Clerk of Court and a copy to the attorney on the other side. Make sure you keep a copy of the document for your own records.
The petition will either allege that you are the father of the child or allege that you might be the father of the child. A DNA test is required if both or either party is unsure that the potential father is the actual biological father of the child. No test is required if both parties agree that the potential father is the actual biological father of the child.
If you fail to respond to the petition within the 20 day period, the other side will eventually have a default entered in the case. This has the effect of requiring the judge to treat all the allegations contained in the Petition as true. This means that the judge will determine that you are the father of the child even if there has been no DNA test.
The Father of my Child refuses to pay Child Support. What can I do?
Transcript of video:
To answer this question, I’m going to assume that there is no child support order already in place.
If the father of your child refuses to pay child support, you need to file a paternity case. Other than time sharing with the child, the only other issue that comes up in a paternity case is the amount of child support.
As part of a paternity case, the court will order a DNA test if the mother and potential father do not agree that he is the child’s father. There does not need to be a test if there is an agreement that the potential father is the actual biological father.
After paternity is established, the court will determine the amount of child support based on the Florida Child Support Guidelines. The guidelines use the following factors to determine child support:
1. both parent’s incomes,
2. who pays day care and how much,
3. who pays for the child’s medical insurance and how much,
4. how many nights each parent spends with the child over the course of a year.
If a child support order is in place and the father is refusing to pay, the mother should look into filing a motion for contempt.
Can I force my child’s father to take a DNA test?
Transcript of video:
Yes, you can compel someone you think is the father of your child to submit to a DNA test as part of a paternity case. Similarly, if you are the father you can compel the mother to,submit herself and the child to a DNA test.
If the alleged parent refuses to submit to the test voluntarily, you will need to get a court order that requires the alleged parent to submit to the test. Your request for a court order requiring the testing must include facts establishing a reasonable probability of the required sexual contact. The court could deny your request if the other side can prove that the sexual contact was not possible.
In my experience, most requests for DNA testing are granted. An example of a denial would be if a mother alleged that the sexual contact occurred in June, but the alleged father proved that he was at sea in the Navy during June or when the child was conceived.
What is Mediation in Florida?
Transcript of Video:
Mediation is simply a meeting where both side of a dispute come together and – with the help of a neutral third party, the mediator – try to resolve their dispute.
Any family law dispute will eventually end with a trial in front of a judge. However, Florida law requires that the parties attend a mediation prior to the trial. This requirement is applicable to divorce, paternity and modification cases.
The great majority of cases settle at or before the mediation. This is because both parties can usually get enough of what they want to make the uncertainty and expense of a trial unnecessary. After a successful mediation the case usually proceeds to a short uncontested final hearing within a few weeks, but sometimes in a few days.
What happens at a Mediation?
Transcript of Video:
A typical mediation starts with both parties and their lawyers – if they have them – sitting together at a table, although a mediation can begin with the parties in separate rooms. The mediator then explains the rules.
The first rule is that the mediation is confidential. Which means that you are not supposed to talk about what happens at the mediation with anyone else. It also means that the judge doesn’t want to know what happens at the mediation other than that both parties attended the mediation and whether an agreement was reached or not.
The second rule is that the mediator is neutral and he/she does not make decisions in your case. The parties make the decisions. The mediator is not a judge and will only offer suggestions based on their experience. While the mediator is typically a family law lawyer, he or she will not offer you legal advice. That’s why you should have your own lawyer at the mediation.
The third rule is that the cost of the mediation is equally divided among the parties. This can become part of the negotiation and one party can ask that the other party pay for the full cost of the mediation.
After the rules are explained, the mediator will take settlement offers back and forth between the parties in the hope of coming to an agreement on all the issues raised in the case. If you reach an agreement, the mediator will type up your agreement so that both parties can leave the mediation with a signed copy of the agreement.
Is Mediation Required in Florida Family Law cases
Transcript of Video:
The short answer is, “yes it is.” Generally, in family law cases, those are divorce and paternity cases and modification of divorce and paternity cases, a mediation is required before you go to a trial.
You do not need to have a mediation if you and the other side can come to an agreement without one. Buy, if you want the judge to decide your case, you are going to have to have to have a mediation.
There are a few reasons for this mediation requirement. The first is, since most cases settle at mediation, doing away with the mediation requirement would greatly increase the number of trials which would delay all of those trials.
The second result of mediation is since most cases settle, that keeps the cost of litigation much lower than it would be. In general, th cost of a mediation is a few hundred dollars, whereas the cost of a trial is many thousands of dollars.
What is the role of the Mediator in a Florida Family Law case?
For more information, visit the website http://www.jimmullaney.com
The mediator’s first job is to tell you about the rules of mediation. the rules involve confidentiality and what role the mediator plays in your case.
The mediator’s second job is to listen to how each side would like the case resolved. This can be done with the parties in separate rooms, but is often done together.
The third job of the mediator is to take settlement offers back and firth between the parties. In order to reach an agreement, the mediator may ask you to lessen or drop one of your requirements in order to get a similar concession from the other side.
After a few rounds of this back and forth, cases are usually settled. If that is the case, the mediator’s fourth job is to draft a settlement agreement for both side to sign. If you are unable to reach an agreement, the mediator only needs to tell the judge that both sides attended the mediation and that no agreement was reached.
Lastly, it is important to note what the mediator is not. The mediator is not a judge. The mediator will not make decisions in your case. The mediator will not tell you that you are right and the other side is wrong. And the mediator will not give you legal advice.
Why Should a Couple Getting a Divorce Consider Mediation?
Transcript of video:
First off, you don’t need to mediate your case if you already have an agreement. In that case, you should hire an attorney to make sure the papers are prepared correctly and to quickly guide your case through the court system.
If you don’t already have an agreement, you can benefit from mediation in three ways.
The first benefit is lower cost. A successful mediation costs far less than litigation. While the cost of both mediation and litigation are based on hourly rates, a mediation takes far less time than a litigated case.
The second benefit is time. A successful mediation will end your case almost immediately. A litigated case can take will over a year and involve many hearings, the production of documents, and perhaps a deposition.
The third benefit of mediation is the agreement itself. At a mediation you can use much more creative solutions to create your Final Judgment. You will be able to spend the time that a judge can’t spend and come up with an agreement that has advantages for both sides.
Orders of Protection
What is Domestic Violence in Florida
Domestic violence is one or more specific actions committed by someone in a specific group of people.
Domestic violence is defined to include any criminal offense that results in physical injury or death to one family or household member by another family or household member. The criminal offenses include, but are not limited to, assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, and false imprisonment.
Each of those offenses has its own definition under Florida law.
Also, the Florida statutes define the term “family or household member” to mean spouses, former spouses, persons related by blood or marriage, persons who are presently living together as if a family or persons who have lived together in the past as if a family and persons who are parents of a child together regardless of whether they have been married or live together. With the exception of persons who have a child in common, the family or household members must be currently residing together or have in the past resided together in the same single dwelling unit.
So domestic violence occurs when a family or household member commits one or more of the actions I previously mentioned.
For example, if you were to come over to my house and slap me, that would not be domestic violence since we are not family or household members. If we were cousins or siblings, there would still be no domestic violence unless we were living together or had lived together in the past.
Also, violence among roommates (who are not living together as a family) is not domestic violence, but it may qualify as repeat violence – which involves another type of order of protection.
Who can get a Domestic Violence Injunction?
If you are in at least one of the following three categories of people, you can get an Order to Protection Against Domestic Violence.
1. Those who have been the victim of domestic violence,
2. Those that are in imminent danger of becoming the victim of domestic violence, and
3. Those that are the parent or legal guardian of any minor child that you live with and are seeking the order on their behalf.
Category 2 is really the most important because it allows you to get an Order of Protection even if you have not yet been the victim of domestic violence. In essence, the abuser does not get to abuse you once before you can get the order.
If you are in one or more of these categories, whether or not you can get the Order depends on the facts of your case.
After you file your petition, it will be read by a judge, usually within a day. At this point, the judge will assume that everything you wrote is true. Based on what you write in the petition, the judge will enter a temporary order if it appears that an immediate and present danger of domestic violence exists.
If your temporary order is entered, a hearing will be scheduled within 15 days. The hearing date can be delayed and the temporary order extended if the other person has not been notified of the hearing.
At the final hearing, you will have to prove the allegations in your petition by a preponderance of the evidence. If it appears to the judge that you are the victim of domestic violence or if you have reasonable cause to believe that you are in imminent danger of becoming a victim of domestic violence, the court will enter a permanent order of protection.
In the order of protection, the judge can address the following issues:
1. Child support,
2. Time sharing,
3. That the other side have no contact with you,
4. That the other side undergo a substance abuse and/or mental health evaluation,
5. That the other side attend a batterers intervention program,
6. That the other side stay away from your school, place of employment, and other places that you or your family members are known to frequent,
7. Surrender any firearms and ammunition.
What is Repeat Violence in Florida?
Repeat Violence, in the context of obtaining an Order of Protection Against Repeat Violence, is defined as two incidents of violence or stalking committed by another person, which are directed against you or your immediate family.
One of these two incidents of violence or stalking must have occurred within 6 months before the filing of the petition for an order of protection.
In this context, violence is defined as any criminal offense resulting in physical injury or death and includes, but is not limited to, assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, and false imprisonment.
Each of these criminal offenses has a separate definition under Florida law.
Who can get a Repeat Violence Injunction?
If you are in at least one of the following two categories of people, you can get an Order to Protection Against Repeat Violence.
The fist category is those who have been the victim of repeat violence.
This requirement is different than for a domestic violence injunction. For domestic violence, you can get that injunction if you are only in fear of becoming the victim of domestic violence. For a repeat violence injunction, you already have to be a victim of the violence.
The second category are those people that are the parent or legal guardian of any minor child that they live with and are seeking the order on their behalf.
In order for a parent or legal guardian to file on behalf of a minor child against someone who IS NOT the minor child’s parent, stepparent, or legal guardian, the minor child must be living with the person filing for the injunction and the person filing for the injunction must have reasonable cause to believe that the child is the victim of repeat violence.
In order for a parent or legal guardian to file on behalf of a minor child against the minor child’s parent, stepparent, or legal guardian, the minor child must be living with the person filing for the injunction and the person filing for the injunction must have been an eyewitness to, or have direct physical evidence or affidavits from eyewitnesses of, the specific facts and circumstances of the violence.
What goes into a Repeat Violence injunction?
If a judge grants a temporary order of protection against repeat violence, there must be a hearing within 15 days. This period can be extended for good cause, such as the failure to serve the alleged abuser.
In a temporary order, the judge can order the following:
1. That the respondent commit no acts of violence,
2. That the respondent have no contact with the petitioner,
3. That the respondent not go within 100 feet of the petitioner car,
4. That the respondent no go within 500 feet of the petitioners current residence, any future residence, current or future employer, current or future school, and any place frequented by the petitioner or the petitioners children.
5. That the respondent not possess fire arms or ammunition and surrender any they do have to the sheriff’s office.
The judge also has the authority to order other measures deemed necessary to protect the petitioner.
If the judge finds that an immediate and present danger exists, the court can enter a final injunction that has a limited duration or will be in place until further order of the court.
What is Stalking Violence in Florida and Can You Get an Order of Protection?
What is Dating Violence in Florida and Can You Get an Order of Protection?
I’m going to discuss the definition of Dating Violence and who can get an Order of Protection Against Dating Violence.
Dating Violence is defined as violence between individuals who have or have had a continuous and significant relationship of a romantic or intimate nature. The dating relationship must have existed within the last six months and be characterized by the expectation of affection or sexual involvement. This does not include violence in a casual acquaintanceship or violence between individuals who have only engaged in ordinary fraternization in a business or social context.
You can request an Order of Protection Against Dating Violence if you are in one of three groups.
Number One: You are the victim of dating violence and you have reasonable cause to believe that you are in imminent danger of becoming the victim of another act of dating violence.
The second group is any person who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence.
And the third group is the parents or legal guardians of any minor child who is living at home and seeks the injunction for the protection of that minor child.
After you file your Petition, it will be read by a judge – usually within a day. Based on what you write in your Petition, the judge will enter a temporary order if it appear that an immediate and present danger of violence exists.
If your temporary order is entered a hearing will be scheduled within 15 days. The hearing can be delayed and the temporary order extended if the respondent has not been notified of the hearing.
At the hearing, you will have to prove the allegations that you have alleged in your Petition. If the judge grants your request for an order – whether on a temporary or permanent basis – they can order the respondent to do the following:
Number 1: Not commit any act of violence against you.
Number 2: Not contact you.
Number 3: Not knowingly come within 100 feet of your vehicle or 500 feet of you, your workplace or your school.
Number 4:: Not possess any ammunition or firearms.
If you have any other questions, please review the other frequently asked questions on my website or give me a call at the office.
In Florida, what is an Annulment?
Transcript of Video:
An annulment is a court order stating that your marriage never took place. It’s as if you were never married.
Since a marriage is essentially a contract, an annulment is the court saying that there are reasons that the contract is invalid. This is difference than a divorce where a judge breaks the contract.
The difficulty, complexity and confusion surrounding annulments comes from the fact that there is no statutory basis for annulments in Florida – like there are for divorces. There are no statutes or rules that lay out a procedure on how to get an annulment. The annulment process is based on precedent and prior annulment cases.
Can I get an Annulment?
Transcript of video:
In terms of whether or not you can get an annulment, there are two types of marriages: void marriages and voidable marriages.
A void marriage is a marriage that is invalid from the very beginning. For example, if you married your brother or sister, that marriage is void because it is illegal to marry a sibling in the State of Florida.
The next type of marriage is a voidable marriage. This is an otherwise valid marriage that can contain a defect that can be cured – potentially.
For example, suppose that it is very important to you that your spouse is of a specific religion. You would never marry that person unless they were a member of your religion. When you meet your spouse, he or she tells you that they are of that faith. Eventually, you get married to that person. Later, you discover that your spouse lied to you and that they are not a member of that religion.
In that case, you don’t have a void marriage – because there is no prohibition about marrying someone with different priorities. However, your marriage is voidable. If you can prove to a judge that your spouse lied to you and that you would not have otherwise married that person, the judge would likely grant your annulment.
However, if you learn the truth about your spouse’s religion and do nothing, then – potentially – your spouse in a later hearing could argue that you agreed to that problem and hence cured that defect.
Similar to an uncontested divorce, if you and your spouse can agree to the reasons and terms of an annulment, you can very likely get your annulment at a very reduced cost and time frame as compared to a litigated annulment.
How Long After I get Married can I still get an Annulment?
Transcript of video:
In Florida, there is no time period after your marriage in which you can get an annulment if your marriage is not working out. If your marriage is not working out and you want to end it, you have to get a dissolution of marriage – a divorce.
An annulment typically involves some type of fraud. Most often this involves dishonesty about actually being in love, religion, desire or ability to have children, or criminal history. These situations are called voidable marriages. In one of these cases an annulment might be possible,, but that possibility might go away if the other party knows about the fraud and does nothing about it.
The other type of annulment is based on a void marriage. These cases involve a marriage that is illegal. Examples of these marriages include bigamous marriages or marriages between people who are not allowed to marry – like brother and sister.
When a Divorce case is pending, can one Parent move with a child from Florida?
Transcript of video:
In Duval County, an order is entered in every family law case called the Standing Family Law Order. Among other things, this order prohibits permanently relocating a child outside the State of Florida without the written permission of the other parent or a court order. Other counties may have similar standing orders.
One of the key words in the order is PERMANENT. Unless there is another court order prohibiting you, there is nothing wrong with taking a child outside of Florida for a vacation. You just can’t move the child outside the state.
During a divorce or paternity case, this situation is also covered by Florida’s relocation statute which prohibits the relocation of a parent more than 50 miles from their residence when the case was filed without the written permission of the other parent or a court order.
It is important to note that this applies to both parents, not just the parent that lives with the child.
Can I Move Away or Relocate with my Child?
If you want to move more than 50 miles from your residence when your Parenting Plan was established or last modified, the Florida Statutes require that you have the written permission of the other parent or a court order. Also, the proposed move must be for more than 60 days and does not include a temporary absence for vacations, school or health care reasons.
If the parents agree on the relocation, they must submit their agreement to the court for approval. The agreement must include a new time sharing schedule and it must describe any transportation arrangements related to the revised Parenting Plan. A hearing is not required in order to get the court’s approval.
What happens if the other parent objects to my Relocation with our child?
Transcript of Video:
If there is no agreement about a relocation, the parent that wants to relocate must file a Petition to Relocate and have it served on the other parent.
The relocation statute has a list of items that you must put in the Petition to Relocate. The main requirements are the location of the new residence, when the proposed relocation is to occur, the reason for the relocation, and a proposed Parenting Plan.
Once the other parent has been served, they have 20 days to respond. If they do not respond, the court must presume that the relocation is in the best interest of the child and allow the relocation by entering an order which permits the relocation and adopts the proposed Parenting Plan.
If the other parent objects to the relocation, in their response, that parent must include a specific factual basis supporting the reason for seeking the denial of the relocation. The response must also contain a statement about the amount of participation or involvement that that parent has or has had with the child.
After the other parent objects, there must be a hearing to decide whether to allow to deny the relocation.
What is Time Sharing?
Transcript of video:
Florida no longer uses the term visitation when referring to the time that a parent would spend with their child. Florida also no longer uses the term custody. The concepts are similar, but the names have changed.
Now parents share time with their children.
A time sharing schedule s required in each paternity case and divorce case with children. the schedule will discuss what happens on weekends and weekdays during the school year and what happens over Christmas, summer and spring breaks. The various holidays that the family celebrates are also mentioned.
This time sharing schedule is usually contained in another document called a Parenting Plan.
In Florida, what is a Parenting Plan?
Transcript of Video:
A Parenting Plan is essentially a very detailed time sharing schedule. Parenting plans are required in paternity cases and divorce cases involving children.
The Parenting Plans that I prepare are usually between 12 and 15 pages.
They typically address the issues of who makes the decisions about the child, when does each parent see the child, how do the parents communicate, how do the parents and the child communicate when they are not together, how and where the child will be picked up and dropped off, and notification and scheduling of vacations.
Most parents do find their parenting plan to be quite detailed, but helpful in the long run.
Do parents need to follow their Parenting Plan at all times?
Transcript of video:
No, there can be times when you do not have to follow the terms of your Parenting Plan. In fact, most parenting plans include – or should include – language that states that the parties may temporarily alter their Parenting Plan as long as they both agree on the change,
For example, suppose that under the terms of a Parenting Plan a father is supposed to have his child for the entire month of July every summer. After a few years, the parents agree that for the next year the father will get 2 weeks in June and 2 weeks in July instead of the whole month of July. They are allowed to agree to this change. There is no requirement to go back to court and get the judge’s approval.
However, if you do not get judicial approval, then the agreement only lasts as long as both parents agree to the change. If either parent later wants to stop the new schedule, they have to go back to the father getting the whole month of July.
Lastly, I always encourage clients to verify – at least with an exchange of emails – all changes to their Parenting Plan.
What is the Difference between Joint and Sole Legal Custody
Transcript of video:
First, custody is not a word that is used by the Florida Statutes anymore. Now the term is parental responsibility.
Parental responsibility means who makes the decisions regarding a child. It does not have anything to do with how much time each parent spends with the child.
in almost every case, the parents get shared parental responsibility. In my experience, sole parental responsibility is reserved for those cases where one parent is seriously deficient in their ability to be a good parent.
This is very often the result of ongoing drug use or criminal activity.
What is a Marital Settlement Agreement?
Transcript of video:
A marital settlement agreement is a contract where a husband and wife have agreed to the terms of their divorce. Typically, a marital settlement agreement addresses the issues of personal property, real,property, bank accounts, retirement accounts, vehicles, debts, child support, time sharing with children, and alimony.
The agreement on each of these issues can be very complex or very simple . What matters is that there is an agreement.
The purpose of having a marital settlement agreement is to take the decision making power away from the judge. Having a marital settlement agreement will typically allow you to get divorced in less time and with lower legal fees.
Is it Illegal to get Remarried before my Divorce is Final?
Transcript of video:
Yes. You cannot be married to two people at the same time. Doing so may be a crime.
If you already filed a divorce case, you are married until the judge signs your Final Judgment of Dissolution of Marriage.
Generally, I see this situation arise when a couple tries to do their divorce case by themselves without lawyers. When they do this, they will eventually see a magistrate for a final hearing. At this hearing, the magistrate will either approve their settlement agreement or make decisions about their case.
At the end of these hearings some people assume that their case is over and that they are single again. This is not the case. The magistrate cannot dissolve your marriage. They can only recommend to the judge that your marriage be dissolved.
After one of these hearings, the magistrate will recommend that the judge approve of the magistrate’s rulings. This almost always happens. The problem is that it takes a week or two. During this delay, you are still married and cannot get married to someone else.
If you want to get remarried, you should wait until you have a Final Judgment signed by the judge.
Does Florida recognize common law marriages?
Transcript of video:
Generally, a common law marriage is where the parties hold themselves out as married and may, under certain circumstances, be considered married even though they do not have a marriage license.
Florida law has prohibited common law marriages since January 1, 1968. The statute did not invalidate any common law marriages that existed at that time, it rather prohibited the creation of new common law marriages.
However, there are still a few states that allow the creation of common law marriages. If you are common law married under the laws of another state, the courts in Florida will recognize your common law marriage and allow you to get a divorce if you otherwise meet the requirements to get a divorce in Florida.
Currently, and this is subject to change, in the US, only Alabama, Colorado, Washington DC, Iowa, Kansas, Montana, Oklahoma, Rhode Island, South Carolina, Texas, and Utah allow the creation of common law marriages.
Also, it is important to note that the process for creating a common law marriage is different in each of these states.
Does Florida recognize my common law marriage from another State?
Transcript of video:
Yes. If you lived in another state and created a common law marriage in that state, then that marriage is recognized in Florida. In general, Florida will recognize any kind of marriage from any jurisdiction as long as the marriage was entered into under the laws of that jurisdiction.
Parties alleging that they are common law married and wanting a divorce does not come up very often anymore since Florida has prohibited the creation of common law marriages since 1968. When it does come up it is usually the result of a common law marriage created in another state followed by the couples relocation to Florida.
In that situation, as long as the other states common law marriage statute or rules were followed for the creation of the marriage, Florida courts will recognize the marriage and allow a divorce under Florida law, assuming the other divorce requirements are met.