Frequently Asked Questions
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.
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, effective October 1, 2008.
Under the current Chapter 61, there are only two parental responsibility arrangements. The first is shared parental responsibility and the second is sole parental responsibility. There is no longer any primary or secondary parenting. Rather there is an allocation of parenting time to each parent and a parenting plan which is presented to the Court.
Although there were revisions to the statute using the terms parenting plan and allocation of parenting time, the Court is still required to determine where the child resides and how often the child sees each parent. The parents will not have the traditional terms of primary and secondary parenting. Nevertheless, 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 the submission of evidence 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 must take into consideration the factors listed in Section 61.13, Florida Statutes, (2014) which detail what findings the court must reach in awarding time to the parents.
Florida Courts are moving toward a presumption of equal parenting time. Equal parenting time is more frequently awarded and can make sense when both parents must work. Sadly, many parents will seek equal time simply to reduce child support. Only if the parents agree, or if the Court finds after a trial, that an equal parenting arrangement is in the minor child's best interest will such a schedule be awarded.
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 (2014) 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.
Just as the 2008 legislature reworked the parenting provisions of Section 61.13, Florida Statutes (2012), the 2010 legislature revised the child support provisions of Section 61.30. Previously, if a parenting exercised at least forty percent (40%) of parenting time, he or she qualified for substantial parenting and a reduction of support. The revised statute lowers the substantial parenting level to 20% of parenting time.
Simply put, if the parent exercises overnights of 78 per year or more, he or she will begin to see the reduction in support.
The reduction is a formula and the more time a parent spends with the child, the greater the reduction. Child support consists of base support (computed on incomes and in accordance with Section 61.30, Florida Statutes (2014)), daycare and health insurance. The court is further permitted to make such decisions as the tax dependency exemption, in which each parent will receive the same.
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 (2014) 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.
Alimony is difficult to calculate and there is no set formula, as there is in child support. Again the 2010 legislature substantially revised the alimony statute with respect to the kind of alimony may be and how the Court will impose the same. Each year the issue of eliminating certain types of alimony arises before the Legislature. It will be important to watch legislative developments carefully.
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 (2014), which include the length of marriage, the spouses respective incomes and the individual facts set forth within the statute. 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 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.
Please contact us today to see if the Law Offices of John C. Kenny are the right firm to handle for your family law matter.