DIVORCE QUESTIONS

General Questions

How should I select a Divorce Attorney?

Divorce is the second most stressful event in a person’s life, second only to death of a loved one. You must choose a lawyer that is an expert in the field of family law. Florida Bar Board Certified attorneys have been certified by the Florida Bar as having that expertise. To become certified in the area of Marital and Family Law, a Florida divorce lawyer must have a substantial number of trials in the role of lead counsel in divorce matters. Additionally, the Bar conducts a background check regarding the lawyer’s ethics and competence and seeks feedback from judges and other lawyers who have been involved with the lawyer in trial. The attorney seeking to be certified must also pass a difficult, day-long exam on case law, statutes and rules of procedure involving family law.

Choosing a Board Certified attorney assures you that you are hiring an expert in the field of family law. However, in addition to choosing someone who is an expert in the area, you must retain an attorney that you can work with well. A divorce involves long and difficult process. You will spend many hours together with your attorney making joint decisions which will impact the rest of your life. Before retaining an attorney, have a consultation with that lawyer to make sure it is someone you like and can work with.

How long does a Divorce take?

Unless both parties are in agreement as to all issues, a divorce process can be lengthy. It is not uncommon for a divorce to take one year to complete. In high net worth cases the process can take even longer.


Child Support

About Child Support

In Florida, child support is awarded in accordance with The Florida Child Support Guidelines, Florida Statues 61.30. Both parents have an obligation to support their minor children. The court will determine how much child support one spouse must pay the other for the support of the children. The guidelines set forth the presumptive amount to be paid. However, the statute allows judges the discretion to adjust the child support upward or downward. Additionally, several expenses may be dealt with separately from the child support. Expenses for private school (if the children are attending private school during the intact marriage), summer camps, after school care, extra curricular activities, and uncovered medical expenses are usually addressed separately.

The amount of time that each parent spends with the children will impact the amount of support to be paid. The child support amount changes based on the number of overnights that the non custodial parent spends with the children. A parent who has the children 40% of overnights (or more) will be entitled to a significant adjustment in child support. In some cases where the time sharing is almost equal, there may be no child support payment due at all.

The Child Support Guidelines give judges the discretion to depart from the child support guidelines up or down 5 percent without written findings. A deviation exceeding that amount must be supported by written findings.

Child support is modifiable upon a showing of a substantial change in circumstances. Such a change must have impacted the payor’s income, and therefore his or her ability to pay.


Alimony

What is Alimony?

The purpose of the alimony statute is to allow one spouse to continue receiving support from his spouse after the dissolution of the marriage. Either husband or wife can be required to financially support the other, depending upon the facts of the case. In order for the court to award alimony, it must find that one spouse has the financial ability to pay alimony, and the other spouse has the need. Disparity of income is therefore required in order for the court to consider an award of alimony.

Florida has several type of alimony. These type of alimony are described below:

  • Permanent Period Alimony –Permanent alimony can be awarded in long term marriages (marriages of 17 years or longer). Permanent alimony requires a monthly payment from one spouse to another to maintain the standard of living enjoyed during the marriage. This type of alimony is awarded on a permanent basis as the name suggests. However, the alimony would terminate upon remarriage by the receiving spouse and may also terminate if the receiving spouse is residing with a significant other in a supportive relationship. If the alimony is awarded at trial, it is modifiable. This alimony is tax deductible by the paying spouse, and taxable to the receiving spouse.
  • Rehabilitative Alimony – This type of alimony is awarded when one spouse has the need to “rehabilitate” themselves, to acquire skills necessary to join the work force, or to improve his or her earning capacity. This type of alimony is granted for a period of time sufficient to allow the receiving spouse to carry out their rehabilitation plan, provided it is reasonable.
  • Durational alimony –Durational alimony may be awarded when permanent alimony is inappropriate. It is to provide a party with support for a specific period of time. Unlike rehabilitative alimony, durational alimony does not require a rehabilitative plan. The period of time when the spouse will receive durational alimony may not exceed the length of the marriage.
  • Lump Sum Alimony –this type of alimony requires a lum sum payment to the other spouse. It is sometimes used as a way to equitably distribute assets.
  • Temporary Alimony – This type of alimony is awarded to one spouse during the pendency of the divorce to maintain the status quo until a divorce is final.

What Effect Does Adultery Have in my Divorce?

Florida law is a no fault state. The reason why you want a divorce is irrelevant. Adultery alone is not a significant factor in the alimony determination, unless the affair resulted in dissipation of assets.


Parental Responsibility & Time Sharing

How do I get primary custody of my children?

Florida no longer requires parental designations of custody. In prior years one parent was awarded primary custody and the other parent has secondary custody. Florida no longer has these designations. Florida now requires that all cases involving minor children have a parenting plan. A parenting plan must include details of how the parents will share and be responsible for the care of their children. The Parenting Plan must include a time-sharing schedule outlining when the children will spend time with each parent, issues of schooling, extracurricular activities, and the manner that the parents will use to communicate with the children. If the parents are unable to agree as to what will be included in a Parenting Plan, The court will make that determination.

The best interests of the children are paramount in developing Parenting Plans. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the minor children as outlined in Florida Statutes, Chapter 61.13 (3). These factors include the following:

(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.

(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought.

(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.

(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.

(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.

(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

Parents usually want to know what is a “standard” time sharing schedule. There is no standard time sharing schedule. Each case is decided on a case by case basis. One parent does not have greater rights than the other. Although every case is different, in recent years the courts have been much more willing to consider equal time sharing plans when those plans are in the best interests of the children.


Relocation

I want to move out of the state with my children, when can I do that?

A parent cannot simply move out of the state with a minor child, either before or after the divorce. Pursuant to Florida Statutes 61.13001, if a parent desires to relocate more than 50 miles from his or her principal place of residence with the child, he or she must first obtain a court order allowing the relocation, or obtain written agreement to the relocation by the other parent.

If the parent objects to the relocation, the statute prescribes a specific process that needs to be followed in order for a court to determine whether the relocation will be allowed.
If the parent objecting to the relocation is notified that the other parent seeks to relocate, the party objecting must follow the statutory requirements objecting to the relocation, or may waive his or her rights to object to the relocation.

A relocation will only be allowed if the court finds that it is in the best interest of the children. Relocation cases are some of the most difficult cases to litigate, and the most difficult cases to settle. The parent seeking to relocate must have extenuating reasons for seeking to move. Remarriage of the parent seeking to relocate, on its own, will be not considered a sufficient reason to allow the relocation of the children.


Distribution of Assets and Liabilities

How are assets and liabilities distributed pursuant to Florida Law?

In Florida, assets and liabilities are distributed pursuant to the Equitable Distribution statute. The statute does not require that assets be divided equally. Rather, “Equitable” distribution” requires a fair distribution of all marital assets and liabilities. All assets accrued during the marriage, including but not limited to real estate, bank accounts, retirement accounts and business interests must be divided equitably. Title of assets is irrelevant for purposes of equitable distribution. All debts incurred during the marriage are also considered marital and must be apportioned between the parties.


Mediation

What is mediation and why am I required to attend?

Mediation is a process in which the parties attempt to reach an agreement before going to court. Mediation is mandatory, and the court will usually not grant you a trial until you have attended mediation. In mediation both you and your spouse will be present with your attorneys and a neutral party called a mediator. Mediators have been trained in negotiation, and can be very effective in getting parties to reach an agreement. In mediation you will usually not be required to be in the same room as your spouse. Usually the spouses are in different rooms, and the mediator goes back and forth in between the two rooms.

Mediation is the best tool available to litigants to resolve their case. In some circumstances, parties choose to attend mediation before filing suit.

Mediation is the best alternative to litigation. When you reach an agreement in mediation, you agree to something you can live with. It is the only part of the process in which you have control. Everything that occurs in mediation is confidential. The Court will either be advised that you reached a settlement or not. Mediators are usually experienced family law attorneys who are either still practicing family law, or who focus exclusively on mediation.

Most mediations take one entire day. In high net worth cases it is not uncommon for a mediation to take place over several days.


Attorney’s Fees

How much will a divorce cost me?

To read more about our fee structure, visit our fees page.

Will my spouse have to pay my attorney’s fees or will I have to pay my spouses fees?

Florida Law allows the court to determine whether one spouse should pay some, or all, of the other spouses attorney’s fees. The award is made based on the ability of one spouse to pay those fees, and the need for fees by the other spouse. The purpose of the law is to make sure both parties have similar and adequate representation. It is common for a spouse with greater income to be required to pay the attorney’s fees of his or her spouse. However, the client is primarily responsible for the payment of attorney’s fees and will in almost all cases have to come up with the initial retainer for his or her attorney.