What are my rights?

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 irretrievably broken. It is not necessary to show one side is at fault or caused the divorce. Understanding what you may or may not be entitled to in the divorce is important and these rights are briefly explained in the following sections.

Children:

There are two types of parental responsibility arrangements which the Court could order. There is sole parental responsibility, which is awarded in rare occasions. There is also shared parental responsibility, which is the presumptive arrangement. This means all major decisions which impact your child or children’s lives (health, education, general welfare) are decided upon by both parents after notice and consultation between both parents.

Revisions to the Chapter 61 over the last decade have changed the previous description of parenting arrangement including the elimination of “custody” as well as primary residence and secondary residence. These have been replaced with a parenting plan which allocates parenting time between the parties that is agreed upon or absent an agreement the Court makes the determination of what parenting plan is in the best interests of the children.

Although terminology may have changed, the parents still need to agree upon which parenting schedule (a parenting plan) works best for them and the children. If as described above the Court needs to make a decision, this is a trial where each side will need to put on evidence to support the respective proposed plans. This can include the testimony of parents, teachers, therapists or experts such as child psychologist. The Court must consider and evaluate the evidence against 22 factors as set forth in Section 61.13, Florida (2018) when making the decision of a final parenting plan.

Many parents believe the law in Florida is for equal or rotating parenting time. This not currently the law, although in North Florida most Courts begin with the presumption an equal parenting is what is most equitable to the children. Equal parenting could be week on week off or dividing up the week equally with two days to one parent, the next two days to the other parent and alternating weekends between the parties of Friday through Monday morning.

Relocation:

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 (2018) outlines the proper procedure a parent must follow prior to seeking relocation. Moreover, the grounds upon which the Court 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.

Child Support:

Child support is determined by a formula adopted by the Supreme Court and used by all 67 counties in the State of Florida. The child support guidelines, as set forth in Chapter 61.20, Florida Statutes (2018) provide for support to be paid from one parent to other after a determination of the following critical evidence. Each parent’s respective gross income, the number of children, the cost of day care/aftercare, health insurance, if previous child support obligations exist and then the amount of time each parent spends with the children.

The substantial parenting reduction begins in the formula if a parent spends more than 78 nights per year with a child. The more parenting time spent, the greater the reduction of support paid from one parent to the other. The premise is for support to be spent on the child not to the other parent. An important misnomer among parents is if there is equal parenting there is no support. This is not correct, there may be no support (if each party makes the same amount and spends equal time and has similar health insurance) but is not necessarily the case. This is why it is critical to consult with the Law Offices Of John C. Kenny to have a better understanding of what your may receive or what your obligation may likely be.

Debts and Assets:

The presumption in Florida is all debts and assets created during the marriage are divided equally. Under Section 61.075, Florida Statutes (2018) 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, 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 affect this calculation.

Spousal Support:

Alimony, as many have heard, underwent massive change with the passage of the Tax Reform Act of 2017 by the Federal Government. This Act removed the ability of the paying spouse to “deduct” the payment on his or her taxes and further eliminated the “claiming as income” to the recipient spouse. In other words, no different than child support payment, alimony is now a post-tax payment to be considered just like a payment to a Visa or Mastercard.

What has not changed is the Court analysis of awarding the benefit to one spouse. The spouse seeking support must demonstrate a need, the spouse who might be ordered to pay needs to have the “ability” to pay said support. In addition, the Court considers a host of factors under Section 61.08, Florida Statutes (2018) in evaluating the claims of spousal support. Length of marriage, respective incomes, lifestyle and allocation of debts and assets all pay an important part in the determination of alimony. It is important to seek the advice of an attorney at the Law Offices of John C. Kenny to fully understand your potential liability or possible receipt of spousal support.

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 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 are completed in four (4) to eight (8) months.

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. 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).

Paternity cases can be very challenging until a Court can establish a temporary parenting order and support. Until that occurs, if the parents dispute who should have the child, each parent, as well as law enforcement, is powerless to do anything. Hiring an attorney and moving for temporary parenting and support is critical.

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 can impact people directly if it is not handled by an experienced firm.

Family law litigation is often over some of the most personal and difficult issues possible… your own children and your own financial future.

As a result, it is critical to select an attorney who not only fits your financial situation, but more importantly has the same ideology with respect to parenting strategy for your particular dissolution. Such a selection will facilitate more effective communication and a better understanding of the entire process.

Frequently Asked Questions