Family Law Q&A
The questions and answers below are intended to provide some general information about common issues arising in Florida family law. These are not legal opinions to be relied on. Please check with a well-qualified Florida family lawyer if you have any concerns about your family law situation.
If you file first you have the ability to calmly interview prospective counsel and amass your team before the case is filed. If you do not file first, in Florida you have to file a responsive pleading 20 days after you are served with process (the initial paper work). If you do not file first, you may feel as if you are scrambling to look for legal counsel and experts.
If two different counties or states can properly exercise jurisdiction over your case, the party that files first controls the choice of venue (the county in which the case proceeds). By filing first, you make the choice on jurisdiction.
If you are filing first, you control the timeframe within which the case progresses. The date of filing determines the date by which discovery is due and often the date of valuation of assets.
If you file first, you may prevent your spouse from hiding or moving marital assets before the valuation date is set. You may actually be protecting assets.
If you believe that your spouse procrastinates or will not be responsive to your attempts to participate in the process, by filing and serving process, you force your spouse to “play ball” within the timeframe prescribed by the rules of court.
If your case progresses to trial, the Petitioner will present the evidence to the Judge first, which some may argue is a slight advantage. However, if the presentation of the case is long, and spans several days, sometimes the Judge may remember more of what was presented last.
The cost of filing the case to the Petitioner is slightly higher than for the Respondent.
Some parties do not want to file first because they do not want to be the one to “ask” for the divorce for spiritual or other reasons.
However, if you are not the first to file, do not fret. Generally, when you respond to the Petition for Dissolution of Marriage filed against you, you will file a Counter-Petition for Dissolution of Marriage. Essentially this is a case within a case. This prevents your spouse from dismissing the petition and ending the proceedings without your consent.
Authored by: Jacquie Valdespino
Given the recent changes in laws regarding same sex-couples, this is generally speaking across the board. Same-sex marriages from other states and countries are also recognized in Florida. As with everything, there can be some exceptions. If you are married in another country, you need to ensure you have followed that countries law for a valid marriage for the marriage to be recognized in Florida.
For example, Columbia recognizes two different types of relationships, a marital relationship like we would normally define marriage and a union marital de hecho. The latter is more like what we would call a domestic partnership. In this case, the court ultimately decided the parties were not married because it was the latter, domestic partnership, and therefore, the parties were not married under Florida law.
However, that is definitely the exception and an unusual situation. Because of comity and full faith and credit, the basic principal is that if your marriage is valid where you were married, it will be a valid marriage in Florida and should not affect your divorce rights. However, if you have any concerns about the location or circumstances of your marriage, be sure to notify your attorney for further consideration.
Authored by: Elisha Roy
Authored by: Reuben A. Doupe
Authored by: James P. Knox
Examples of marital assets subject to equal division regardless of how titled include bank, brokerage or retirement accounts created during the marriage from funds earned during the marriage regardless of which spouse earned them; assets purchased with income earned by your spouse during the marriage; and businesses created by your spouse during the marriage.
Alternatively, if the asset is in your spouses’ sole name, but is deemed “nonmarital” under Florida law, then you would not be entitled to one-half. Some examples of nonmarital assets that are not subject to equal division, such that you would not be entitled to one-half of its value, include accounts containing a gift from a third party (not one spouse to the other) or inheritance; a bank, brokerage or retirement account or other asset that was owned by your spouse prior to the marriage.
As with many issues in family law, there is a middle ground and there are some non-marital assets, which may have a marital component due to enhancement of nonmarital assets due to marital efforts or funds. The marital component of any nonmarital asset would then be subject to equal division by the parties’ regardless of the fact that it is titled in your spouses’ name. Additionally, some financial accounts which started out as nonmarital may lose their nonmarital status if they have been commingled with marital funds during the marriage.
A properly qualified family lawyer can assist you in determining whether a particular asset is marital or nonmarital. To conclude, the manner in which a particular asset is titled may not be relevant in a determination of the characterization of the asset.
Authored by: Dori Foster-Morales
The primary factor for the court to consider is the financial resources available to each party. In some counties, it is not necessary that one party be completely unable to pay attorney’s fees in order for the trial court to require the other party to pay such fees. Thus, where one party’s income is substantially higher than the other, an award of attorney’s fees and costs may be appropriate. However, in other counties, if a party has the resources to pay their own attorney’s fees, even if the other party has a greater ability, there may be no fee award.
The Florida Supreme Court has also stated that, in deciding whether to award a party attorney’s fees and costs in a family law case, the trial court may consider a party’s conduct throughout the litigation. Such conduct includes the scope and history of the litigation; the merits of the respective positions; any bad faith, obstructive tactics; or whether the litigation is brought or maintained primarily to harass, frustrate, or stall.
The court can award attorney’s fees and costs during the pendency of the proceedings or at the conclusion of the case.
Authored by: Mark Sessums
There are different types of alimony which may be available depending on the facts of each case. Alimony is a gender neutral form of relief and may be awarded to both men and women. Before awarding alimony, a court must determine that a party has an actual need for financial support and that the other party has the financial ability to pay support. If the court finds that an award of alimony is necessary, the court must then evaluate an extensive list of ten factors and consider the length of marriage before establishing the type and amount of the alimony award.
Alimony is often awarded in a manner which makes the payments taxable income to the recipient and tax deductible to the payor. Absent an agreement between the parties, alimony awards are typically modifiable in the event that there is a substantial change in the circumstances of the parties, such as retirement. Further, alimony is usually subject to termination upon the death of either party, the remarriage of the recipient former spouse, or the entry of a recipient former spouse into supportive (marriage like) relationship.
Authored by: Tom Sasser
A common application for rehabilitative alimony is to requalify a person with the education experience but who is lacking current credentials, such as a nurse, or teacher, or medical technician. Many jobs require updated continuing education courses to maintain licensure. If a spouse has been out of the work force for a period of time, money can be spent to bring their license current with the requisite training or education.
Another common use is for someone who once had a work skill, but the skills are no longer current. An executive secretary trained in shorthand would be lost in the current office environment without training on computers and the current software applications.
This form of alimony can also be used for new education or training, such as to receive a college degree, or training in a specialized area such as culinary skills, or computer skills.
The goal is to give the recipient spouse sufficient training and education so he/she can be self-supporting, and not depend on the other spouse for on-going financial assistance. It is often used with other types of alimony, so that once the rehabilitation plan is complete, the need for alimony diminishes.
The Court must be presented with a specific and detailed plan. A general plea to go to college, by itself, will not meet the requirements without greater specificity.
There is a general correlation between the cost of the rehabilitation and the other factors that determine alimony. As an example, marriage ending after two years would not support a rehabilitation plan for the cost of law school.
Rehabilitative alimony can be modified or terminated if there is a substantial change of circumstances, or if the plan is not followed or completed.
Authored by: Melinda Gamot
By any chance did you put a lot of money into your partner’s real property? Equitable liens are used when a person makes improvements to the other’ property under fraud or undue influence.
Often in cohabitation situations one tells the other the property is theirs too, or will be theirs so that the other puts a lot of money into the property believing they have an interest in the property. Under those circumstances, you may have a claim against your former partner. The main elements necessary to make such a claim: you have to have a relationship of trust and confidence, there had to have been undue influence, fraud or an unjust enrichment. It is not support but it is a way, when you meet all the criteria, to recoup money.
Authored by: J.J. Dahl
Mediation in a divorce case is a settlement conference between the parties who are getting divorced and a Mediator. The Mediator is a trained and certified professional who is qualified to assist parties in reaching a settlement. Mediation may or may not involve lawyers.
Most cases settle at mediation. Mediation has many benefits to the parties going through a divorce. The parties can create a resolution of their disputed matters in creative ways that a Judge would be unable to do. Also, people are more likely to comply with an agreement reached at mediation than an order entered following a trial.
If you have a lawyer, they will recommend a good mediator for your case. If you do not have a lawyer, qualified mediators can be found through the Florida Bar or the AAML website.
Authored by: Natalie Lemos
The Florida Rules of Appellate Procedure provide the framework for identifying what types of cases can be appealed, when an appeal must be filed, and when the written arguments (briefs) are due from each side. The party who files the Notice of Appeal is the Appellant, and the responding party is the Appellee. An oral argument may follow the exchange of briefs. The oral argument is the opportunity for the parties to argue the positions set forth in their respective briefs, live and in person at the appellate court before a panel of appellate court judges.
The appellate court can only consider the evidence presented, the transcripts of the proceedings, and the pleadings, orders and other documents included in the lower court’s file, as of the date the Notice of Appeal was filed. That body of information is what makes up the appellate “record.” That is the only factual information that can be included in the briefs, and mentioned at oral argument.
An Appeal is a time-consuming process, and can be quite costly; however, it can be the best (and sometimes only) course of action to take in order to protect one’s rights. And, it is the opinions of the appellate courts that make the law.
Authored by: Laura Davis Smith
If you and your former spouse do not agree, you must petition the court for a modification of the existing support order by proving that a supportive relationship exists. A supportive relationship is defined under Florida law and there are 11 enumerated factors that the court must consider. These factors are not an exclusive list. The person seeking the change bears the burden of proving that a supportive relationship exists.
The idea behind the law is that there must be more than simply an intimate relationship in which they are living together. The court will look to see if the relationship is similar to a marriage in all but name. There must be some level of economic benefit that flows between your former spouse and their new relationship in order to entitle you to a modification of your obligation.
Because the factors or complicated and every situation is different you should consult with an experienced marital and family lawyer to see if your circumstances would warrant a modification or a termination of your alimony responsibility.
Authored by: Richard West
However, from a practical standpoint once someone leaves the home it is unlikely that they will be able to later move back in. For this reason, the decision should be carefully considered. You should consult your lawyer before you make this decision.
The first important consideration is the parties’ minor children, if there are any. Before either parent leaves the home, the parties should have an agreed temporary parenting schedule, preferably set forth in writing. Otherwise, the parent remaining in the home with the children may take advantage of the situation when forming a timesharing schedule. Another factor to consider is a big-picture consideration, which party is more likely to continue living in the home after the divorce is final. This factor requires taking a number of potential facts into consideration and is best made with the assistance of legal counsel. There are financial considerations involved as well. For example, the party moving out may be obligated to contribute to the expenses to maintain the marital home even after they move out. Finally, the level of aggression between the parties must also be considered, and many times may be the sole factor, as personal well-being may trump all of the considerations.
Authored by: Reuben Doupe
In the past, a spouse used to have to prove abandonment, neglect, misconduct of some sort, or some other tangible reason, in order to get a divorce. Proof of such behavior was required. Now, a spouse seeking a divorce simply needs to swear that the marriage is irretrievably broken. It only requires one spouse to make that statement, i.e., there does not need to be an agreement that the marriage is irretrievably broken in order to obtain a divorce in Florida. However, there may be certain circumstances where fault can be taken into account. A spouse’s bad behavior, such as adultery or dissipation of monies, may make a difference in the case depending on the issues.
Authored by: Caroline Black-Sikorskie
The primary situation in which such an award can be made involves a simple comparison of each spouse’s financial circumstances. Florida wants the parties to such an action to be equally able to afford representation. Therefore, if there is a significant difference in the parties’ financial circumstances, and the Court determines one party has need for help paying his or her attorney’s fees and the other has the ability to pay those fees, the Court can level the playing field by requiring the spouse who is better able to pay the fees to pay all or part of the other’s fees.
Attorney’s fees may also be awarded where a party does not comply with the rules of procedure or a Court order or where a party engages in harassing, unnecessary litigation. In those instances, the fee award is a sanction, but need and ability are still considered.
Another provision of Florida law makes an award of fees possible where one party raises or pursues a claim that is not supported by the facts or the law.
Authored by: Sheri Smallwood
When you take a piece of property that is just in your name and change the ownership to be in joint names with your spouse, it is considered a gift to the marriage. Your spouse is, therefore, going to be just as entitled to it as you are when you divide this property in a divorce.
While it is presumed that all of the marital property in a marriage will be divided 50/50 in a divorce, the court is able to deviate from that under certain circumstances. An argument can be made to the Judge to consider an unequal distribution of the assets which gives you more than the usual fifty percent because, by placing the house in joint names, you made an “extraordinary contribution to the marriage.”
Discuss these issues with your lawyer as the likelihood of success in your position is very fact specific.
Authored by: Stann Givens
A spouse may be entitled to a share of the service member’s retirement regardless of how long they were married during the service member’s creditable service. However, for a divorced spouse to receive payments directly from DFAS, (“Defense Finance and Accounting Service”), the parties must have been married for at least 10 years of creditable service. The right to receive direct payments can be complicated if the service member receives disability retirement payments in lieu of retirement pay. In the event the parties have been married for 20 years of the service member’s creditable service, the divorced spouse will be entitled to maintain Tricare and commissary or exchange privileges.
Authored by: Lawrence Datz
Just by way of example, if your residence is jointly titled, has a Fair Market Value of $500,000.00 and there is an outstanding mortgage in the amount of $300,000.00, then there is $200,000 “net equity” in the home. You would be entitled to receive $100,000.00 of this equity and your spouse would be entitled to receive $100,000.00 of this equity. Thus, if you are able to pay $100,000.00 to your spouse, for his/her share of the property, then you would be entitled to keep your house. Or, in the alternative, if your spouse retains $200,000.00 of value in other marital assets, then you can trade the house, for these other assets. Again, by way of example, if there is $200,000.00 of cash in a joint bank account, then you may agree to retain the house, in exchange for your spouse retaining the cash. This will be an equal trade, which is consistent with the directives of F.S. 61.075, the Equitable Distribution statute.
Please check with your lawyer as some of these transactions may trigger tax consequences that need to be considered before a decision is made.
Authored by: Karen Weintraub
The Trial Courts are given the responsibility to create a parenting plan for the children which includes parental responsibility (decision making) and a timesharing schedule (which parent has the children with them at which days and times). Florida law states all factors and considerations which must be evaluated by the Court when the parties are unable to reach an agreement amongst themselves.
Some of those factors include which parent is more likely to foster a close parent-child relationship with the other parent; the length of time the children have lived in a stable environment; the moral fitness and physical condition of the parents; the particular needs of school age children; the preference of the children; the ability of each parent to discipline and provide for the daily schedules for homework, meals, and bedtime; whether there is evidence of domestic violence, sexual violence, child abuse, child neglect or child abandonment; the extent each parent is involved in the child’s school and extracurricular activities and “any other factor that is relevant to the determination of a specific parenting plan, including the timesharing schedule”.
Most people are able to work out these agreements without a determination by a Judge. They are often able to do so with the help of other professionals like a parenting coordinator, therapist or at mediation.
Authored by: Robert Sidweber
You must do careful some careful investigation. You need to find out the lawyer’s credentials, his/her standing within the legal community and his/her experience. A family law specialist will be Board Certified in Marital and Family Law in Florida and a member of the Florida AAML represents the highest accomplishment a family law attorney can achieve in this State.
You may need/want to interview several lawyers until you find the right one. It makes no difference if you retain a man or woman. When interviewing a lawyer, the first question that should be asked is “How long have you wanted to be a lawyer?” If the answer is “I wanted to be a doctor, but I couldn’t stand the sight of blood.” or “I wanted to go into my father’s business, but he went bankrupt.”, those are bad answers. The best answer should be “I always wanted to be a lawyer.”
After interviewing several lawyers, you should evaluate what was told to you. Among highly credentialed lawyers, opinions should be relatively consistent. If it sounds too good to be true, it probably is too good to be true.
Once you have found the lawyers with the right credentials and with an understanding of your case, you need to consider if there was chemistry with the lawyer. Chemistry is the most crucial factor when deciding upon a lawyer. Did the lawyer seem to understand what you were communicating? Did they communicate with you in a way you like? Did they understand the tone you want to establish in your case? Did you and the lawyer agree on how best to proceed? If the chemistry is right, the relationship will thrive. If it is not right, it would be a very long and tortuous divorce.
Authored by: Andrew Leinoff
A reason to consider a postnuptial agreement is a second (or third) marriage with children from a previous marriage. A postnuptial agreement may ensure that some assets go to prior children. Another possible reason for a postnuptial agreement is if someone is unfaithful and one partner wants to persuade the other to work on the marriage. Signing a postnuptial agreement with favorable terms to your spouse can show that you are serious about wanting to stay married. Finally, you might want to get a postnuptial agreement if you step out of the workforce to spend a significant amount of time caring for your children and want to ensure you’ll be financially secure. A postnuptial agreement may also be used to change the terms of a prenuptial agreement.
It is recommended that each party hire independent counsel and that complete financial disclosure of all assets, liabilities, and income is provided.
Authored by: Kristin Adamson
If the parent receiving child support wants to increase your existing support obligation, the Court may disregard additional income you may be earning from a second job which you obtained to try and meet your support obligations.
Also, in determining the child support for a subsequent child, the Court may consider the child support being paid for the first child(ren) as a basis to deviate from the child support guidelines for the subsequent child(ren).
Calculating the correct amount of child support involving children from multiple families is tricky. You should consult with a qualified lawyer to assist you in analyzing your obligations.
Authored by: Miriam Mason
To the extent live-in partners agree to establish support rights and obligations during and/or after a relationship, the parties will be held to their agreements by Florida courts to the extent the agreement can be proven. Support agreements to this effect should be in writing, signed by both parties. Oral agreements may be enforced; however, proving an enforceable oral agreement exists will likely be a challenge unless the paying party will agree and testify that the agreement to pay support exists. Agreements between unmarried parties are subject to contract law and are enforced in civil court, not family court.
In the case of jointly owned/titled property, unmarried parties own such property as tenants in common. Both parties are equally responsible (50/50) for maintaining jointly titled property and each party is entitled to use the property. To the extent you and your former partner disagree on whether to sell or keep or otherwise use your home/real property, either party may file an action for partition, and the Court may order that the property be sold and the net proceeds distributed to the parties. Other possible remedies related to potential rights to property that is not in your name but in which you believe you may have a legal interest are constructive trusts and equitable liens.
Authored by: Caryn Green
A parent seeking child support for and on behalf of a dependent child should apply for and have this issue adjudicated by the Court prior to the child turning 18 years of age. If, at the time that the parties are going through dissolution of marriage proceedings, they are aware that their child has special needs and will be dependent beyond the age of 18, they should ask the Court to address this when issuing its child support order.
If there has not been any adjudication at the time that the child turns 18, then the parents no longer have the right to seek this support on behalf of the adult child. However, the adult dependent child, or a guardian, if one has been appointed, may seek such child support against both parents provided that such mental or physical incapacity began prior to such person reaching the age of majority. It is important that all Federal and State benefits be pursued prior to a child support determination, otherwise the right to receive such benefits may be jeopardized.
Authored by: Mitch Karpf
The fees for individual divorce cases can vary wildly. Dependent upon the education and experience of the lawyers involved and whether they have specialty certifications, the size of the marital estate (financial assets and debts), and the complexity of issues, the cost of a divorce billed hourly can range from a few thousand dollars into the hundreds of thousands of dollars.
Lawyers in Florida typically charge fees ranging from $200-$700 an hour depending on the level of experience and whether the attorney charging for the task at hand is an Associate or Partner. You may also pay fees for other administrative employees within a law firm, such as Paralegals, employees who perform limited work on your case under the supervision of a lawyer and who may or may not be certified by your State. Your state’s licensing/regulating agency for attorneys will require that they do not charge excessive fees and will generally outline some requirements applicable to your fee agreement with your lawyer. You should receive a written agreement that outlines all of the fees and costs you will be billed for, and you should receive detailed, monthly statements from your lawyer as the case progresses. That agreement should outline how to deal with any questions you may have about your fees, and it should provide you with a good understanding of what services are included within the parameters of that agreement.
More information about fees and costs should be available from the Florida Bar.
Authored by: Barry Franklin
There are many other factors upon which the Judge must make a determination. If the Judge decides that speaking with the child would be appropriate, he/she must speak to the child in his/her court chambers outside the presence of the parents but in the presence of a court reporter, who transcribes the event.
However, the courts are more inclined to use less intrusive legal tools to determine the preference of a child. These measures include, but are not limited to, the appointment of a guardian ad litem to meet with the child and testify as to the guardian’s opinion of the best interest of the child in court; or an attorney ad litem to represent the child’s preference in court. The court may also appoint an expert such as a licensed mental health expert to interview the child and then present testimony to the court on the issue of the child’s preference.
Authored by: Carmen R. Gillett
There are numerous grounds for annulment such as: bigamy; lack of capacity: incest; both of the parties were underage; one party was underage without the consent of a guardian; fraud, duress, and impotency, to name a few. Some grounds for annulment, such as bigamy and permanent lack of capacity, render a marriage void; and some, such as fraud and duress, render a marriage voidable. It is interesting to note that in Florida a marriage which is voidable by fraud can be ratified if after the alleged fraud is known to the aggrieved spouse, the spouses voluntarily consummate the marriage. An example of the difference between a void and a voidable marriage is that a void marriage can be annulled after the death of one of the Parties and a voidable marriage cannot. Generally, if a marriage is annulled there can be no award of alimony or equitable distribution based upon the divorce statutes regardless of how long the parties had been together.
Authored by: Kenneth Gordon
Many counties in Florida have an administrative order that governs family law cases. These orders generally prohibit changing or cancelling life insurance policies until the case is concluded. There may also be a prohibition against changing the named beneficiary or beneficiaries.
It is particularly important that you do not cancel life insurance policies. For some people, qualifying for and obtaining a new life insurance policy may be impossible for cost prohibitive.
There are many life insurance policies that, in addition to providing a death benefit, have a cash value. These life insurance policies may be marital assets that are subject to equitable distribution. Cancelling or cashing in such a policy can be addressed by the Court. Also, taking a loan out on a policy with a case value may be considered.
There are many types of life insurance policies. The reasons to continue keeping a life insurance policy in effect vary. Securing child support and alimony obligations are the most common reasons that life insurance coverage may be required. Some life insurance policies also have a cash value and may be marital assets.
Florida law allows a judge to order you to maintain or purchase a life insurance policy to secure child support and alimony obligations. Child support obligations arise in divorce cases or in cases involving unmarried parents.
Before making any changes to an existing life insurance policy, cancelling the policy or taking a loan out against the policy, you should get advice from a qualified family law attorney.
Authored by: Diane Holmes
Authored by: Peter L. Gladstone, Esq