FREQUENTLY ASKED QUESTIONS
What are my rights during a divorce?
Each divorce is unique depending on the length of your marriage, your assets and debts and whether you have children. It is important to understand Florida is a no fault state. A married person can seek a dissolution because he or she believes the marriage is irretrievable broken. It is not important or necessary to show one side is at fault or caused the divorce. It is important to understand to what you may or may not be entitled to in the divorce. These rights are briefly explained in the following sections.
In the legislative session of 2008, the Florida Legislature completely rewrote Chapter 61. Previously, there were three types of parental responsibility arrangements which the Court could order. There was sole parental responsibility, rotating residential responsibility and the presumptive shared parental responsibility. However, these parental responsibility arrangements often led to individuals thinking they had “custody” and fighting for control. As a result, the legislature dramatically reshaped Chapter 61 and this law became effective October 1, 2008.
Under the new Chapter 61, there is no parental responsibility arrangement. There is no primary or secondary parent. Rather there is an allocation of parenting time to each parent and a parenting plan which is presented to the Court. For further information, please review the entire statute: Florida Divorce Law
Although the new statute uses the term parenting plan and allocation of parenting time, the Court is still going to have to make the determination of where the child resides and how often the child sees each parent. They will not have the traditional terms of primary and secondary parenting. Make no mistake about it, the allocation of parenting time for each parent will need to be codified into a parenting plan which is in the best interest of the minor child. If the parties are unable to reach a written agreement, the Court will make the determination of the parenting plan after evidence is submitted as to what is in the best interests of the minor child. This is an actual trial, which will include testimony of the parties, could include teachers, therapists, friends and family and even experts such as a child psychologist. The Court has to take into consideration the factors listed in Section 61.13, Florida Statutes, which outlines all of the factors to consider in determining the allocation of parenting time to each parent.
A parent’s desire to relocate is not unusual in today’s mobile society. However, the desire by one parent, if the other parent opposes, is not enough. Section 61.13001, Florida Statutes, outlines the proper procedure a parent must follow prior to seeking relocation. Moreover, the grounds upon which the Court may grant or deny the relocation are set forth in the statute. Although there is no presumption against or in favor of relocation, there is an unquestionable consequence for failure to follow proper procedures within the statute. Please read this section carefully.
Once the Court allocates the respective parenting time, child support must be determined based upon the parties respective incomes. In addition, when the Court determines the allocation of parenting time if the person who receives less time but yet still has “substantial parenting time” or over 40% of the overnights per year, the Court must impose the substantial parenting reduction. The Court must make this determination before calculating child support pursuant to Section 61.30, Florida Statutes. Child support consists of base support (computed on income and in accordance with Section 61.30, daycare and health insurance). Finally, the court may consider the allocation of the tax dependency exemption, but is often sharing the deduction between the parties. If there are two children, each parent will get one and they do so as long as the parent with the allocation of less time is current on the child support.
Debts and Assets:
The presumption in Florida is that all debts and assets created in the marriage are divided equally. Under Section 61.075, Florida Statutes, this presumption may be overcome by an agreement to divide the assets unequally or the Court may divide the assets or debts unequally depending on the evidence presented. It is important to remember any asset or debt incurred during the marriage, regardless of what name the asset or debt is in, may be subject to equitable distribution. Of course, there may also be claims of special equity, dissipation of assets or premarital assets which could effect this calculation of the Court.
Alimony is difficult to calculate and there is no formula as there is in child support. Nevertheless, the Court may order alimony if one spouse has the need, and the other spouse has the ability to pay. In addition, the Court must consider the factors in Section 61.08, Florida Statutes, which include the length of marriage and the spouses’ respective incomes. Of course, alimony is taxable to the receiving spouse and deductible to the payor spouse.
Can the Court change the agreement later?
Whether by Court order or agreement, all issues relating to children, parenting time, child support, and alimony are modifiable. There is no set time to wait, rather one must prove a substantial change in circumstances has occurred since the last judgment. However, property issues, once they are resolved, are resolved forever and there is no modifying these provisions. Make sure you consult with your attorney before you enter into any agreement.
How long does it take to obtain a divorce?
Each dissolution of marriage is different and depends on each person’s individual case. Does the couple have children and, if so, is the parenting arrangement the most contentious issue? Is it a long or short term marriage? Is there real property or even retirement plans involved? Although these factors will affect the length of divorce, most divorces average between 3-8 months to a year.
If I have a child out of wedlock can I still obtain child support?
Every child is entitled to receive support from both parents regardless of the parents’ marital status. The first step, however, when a child is born out of wedlock, is to establish who is the father with a DNA test. Thereafter, of course with the DNA results, the Court will declare the biological father to be the legal father. From this finding the obligations of parenting are granted (the obligation of support) and the rights of the Father are provided as well (the rights to participate in raising and parenting the child).
How do I choose the right family law attorney?
Choosing the right family law attorney is critical to successful representation. Family Law is one area of the law which affects people of all backgrounds and in all situations, and litigation can often occur over the most difficult of issues, children. Thus, it is important to select an attorney who not only can accommodate your financial situation, but importantly, has the same ideology with respect to parenting or strategy for your particular dissolution. Such a selection will allow the attorney and client more effective communication and a better understanding of the entire process. Please contact us for more information at 904/322-7702.