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Family Law

Family Law

Divorce NOW

We understand that dealing with divorce is difficult — we’re here to help you get through it. Our attorneys have over 60 years of combined experience representing clients in all manner of divorce proceedings and marital law.  We offer a free initial consultation so you may meet with an attorney and discuss your problem.
The following is a very brief outline of some of the issues you may have to consider:

No Fault Divorce

Florida law provides for a “no-fault” divorce.  Basically, you may obtain a divorce by asking. You do have to show though that one of the parties has resided in Florida for at least the six month period immediately prior to the filing of papers. Also, the marriage must be “irretrievably broken”.

Contested & Uncontested Divorces: There are two types of divorces, contested and uncontested. Uncontested means that everything is agreed to by the parties, including but not limited to child support, custody, visitation, who’s going to pay for health insurance and uncovered medical expenses, life insurance so that there will be money for children if a parent dies, division of property, division of debts, alimony, (or waiver of alimony) and all other issues that pertain to a particular matter. A contested divorce is where one or more issues cannot be resolved between the parties and the Court has to decide these issues in a trial without a jury.

It is much less expensive to have an uncontested divorce.  The attorney can usually estimate how much time they will have to devote to preparing the paperwork to conclude the matter.  In an uncontested matter the lawyer needs to draft a settlement agreement pursuant to the parties’ wishes, as well as a Petition for Dissolution of Marriage, Financial Affidavits and other paperwork. Everything will be presented to the Court at a hearing which usually only lasts about five minutes.

Contested divorces, where lawyers generally charge by the hour, are much more expensive. At the beginning of the case the lawyer generally cannot do any more than roughly estimate what the total fees will be. The reason for this is because the lawyer does not know, and in fact the parties do not know when they start, whether they will end up settling the matter is short order, or the case will drag on for months if not longer before it is either settled or tried before the Court.

Mediation, although it does not usually take place until a lot of work is done on the case, does help in resolving many difficult situations that would otherwise go to trial. The bottom line is that in a contested situation the lawyer keeps track of their time as the matter proceeds, and bills accordingly on an hourly basis.

Sometimes the only language that one of the litigants understands is a Court Order. And sometimes when a party sees that the other has gone to the bother of hiring a lawyer and serving papers, they are more inclined to make a fair settlement offer. Quite often though, an agreement fashioned by the parties is better than anything that a Court could come up with, and is sometimes easier to live with because it is not imposed by a third party. However, one should not settle for alot less than they are entitled to just to get the matter over with quickly. Lots of people lose valuable rights either because they can’t hang in there when the divorce is unpleasant, or because they don’t know their rights as they haven’t spoken with a lawyer.

Children

When children are involved there must continue to be interaction among the parties.   Significant amounts of money are spent on lawyers simply because the parties cannot get along even during the few moments it takes to pick up or drop off a child for visitation. Judges will sometimes have to lay out in great detail how exchanges regarding children shall take place.

Child custody contests can be as inexpensive or costly as the parties cause them to be. There is no presumption in favor of women in Florida with regard to custody. In determining who is the more appropriate parent for the child to live with, Court’s apply a “best interest” test. Occasionally, depending on age, the child may spend an equal portion of each week/month/year with each parent, although Courts do not particularly favor this arrangement. When custody battles really heat up, psychologists, psychiatrists, and other experts may be brought in to examine all concerned and to help the Court in determining what is in the best interest of the child.

In general, Florida law utilizes a concept called Shared Parental Responsibility. Thus, even though the child may live with one parent, the other parent has equal say in how the child is brought up. Each party has input for example on issues relating to education, health, religion, discipline, etc, and as always, if the parties can’t agree, the Judge will decide for them. Visitation issues can also arise. Many non-custodial parents will want to spend as much time as they can with the child. Courts generally try to strike a balance between the work schedule of the parents and the needs of the child.  Attendance at a children and divorce seminar is required for parties with children.

Another important issue arises when the custodial parent wishes to relocate to another geographic area with the parties’ minor child or children.  There are some very specific rules that apply in this situation. Parents may agree to a relocation. Unless there has been such an agreement to the relocation, the custodial parent wishing to relocate must notify the other parent of the proposed relocation in the form and with the information required by the statute. There is then a deadline for filing an objection to the relocation in the form required by the statute. Once an objection is filed, the party wishing to relocate must institute an action in court to get permission to relocate. Relocation with the child or children without following the notice and other requirements may subject the party to contempt, an order for return of the child, and other consequences.

Child Support

Another major area of dispute is child support. This area is governed by Florida Statutes. Courts can award temporary child support immediately after a Court case is filed.  That amount will have to be paid until circumstances change or until the final divorce hearing when permanent support will be ordered. Failure to pay support can lead among other things to loss of drivers’ license or other licenses. Further, if a party is unemployed or underemployed and fails to pay court ordered support, the judge can order the party to seek employment and enter a job training or work program. Support can be withheld from the paying party’s paycheck or the party can be ordered to pay the money to Support Enforcement who will distribute it to the other party. If the party fails to pay Support Enforcement, one of their staff can testify that the payment was not made; instead of the party having to come to Court with an attorney.

In Florida we have child support guidelines and generally speaking the parents combined net income is used in the statutory formula to determine the amount of child support, after considering the number of children involved. The paying party’s part is calculated in proportion to the other parent’s income.  Also, a portion of child care (day care) expenses are added onto the basic guideline amount: as is health insurance and health care costs unless they have been ordered separately paid on a percentage basis.

The child support guidelines have gone a long way towards eliminating Court battles over child support but disputes still arise. One spouse may claim that the other has more income than is being reported, or a spouse may claim that the other is capable of earning more than they do. Courts do under certain circumstances have the authority to alter the guideline amount. This can only be done if certain statutory criteria are met. Examples of when a deviation can occur are when the non custodial parent spends a “significant” or “substantial” period of time with the children, or conversely, when that parent does not spend much time with the children. There is also the question of whether the existence of “subsequent” children (ie children living with a parent who were born or adopted after the support obligation arose) is justification to deviate from the child support guidelines.

Alimony

When a party believes that they have a need for financial assistance from the other party, alimony can be requested. As with child support, the Court can award temporary alimony until the final divorce hearing is held, at which time a “permanent” alimony amount may be ordered. Alimony can be withheld from the paying parties’ paycheck or the party can be ordered to pay the money to Support Enforcement who will distribute it to the other party. If the party fails to pay Support Enforcement, one of their staff can testify that the payment was not made; instead of the party having to come to Court with an attorney. Also, failure to pay can result in the suspension of driving privileges. (although the court can grant a “work” permit) Lastly, if a party is unemployed or underemployed and fails to pay court ordered support, the judge can order the party to seek employment and enter a job training or work program.

It should be noted however that where alimony is terminable upon re-marriage, (which “permanent” alimony usually is) that a court may reduce or terminate the alimony when the recipient is residing with someone in a “supportive” relationship. There are numerous factors that the court will consider in deciding whether a “supportive” relationship exists, such as whether the couple hold themselves out as husband and wife, and the nature of their financial dealings. In order to obtain alimony, there has got to be a need for assistance on the part of the requesting party and an ability to pay alimony on the part of the other party. Thus, one party may claim that they cannot pay their basic monthly bills without the help of the other.  A court may award permanent alimony in some circumstances if the party cannot accomplish their rehabilitative goals through no fault of their own.

Awarding Attorneys’ Fees

In many cases a party to a divorce may allege that they are not in a financial condition to pay for a lawyer but that the other party has the financial ability to pay both lawyers’ fees. Courts do not want to see situations where one party can drive the other into submission by outspending them on lawyer fees. An attorney can go into Court prior to the final divorce hearing (usually when seeking temporary alimony or child support) and indicate to the Judge how much time they expect to put into the case and what type of costs may be incurred by their client. (For depositions, expert witnesses, investigations, etc). The Judge may then award reasonable attorney fees and costs if he finds need on the part of the requesting party, and the ability to pay on the part of the other.

Mediation

Mediation is the process by which the parties and their lawyers meet with a neutral party to discuss ways of resolving the issues at hand. Ideally, the mediator should be a lawyer well versed in divorce issues. The mediator cannot force anyone to agree to anything, although the Judge can order you to go to mediation and cooperate. The mediator will meet with the parties together and separately to see if a compromise can be reached, or even try and straighten out a party who may be unrealistic in their demands or expectations. Retired Judges make excellent mediators as they may be able to project how the Judge on the case will rule on the different issues.

Sometimes it’s just the idea of a neutral third party disagreeing with someone’s position that makes them re-think it. If you can’t sell your idea to a mediator, why would you think the Judge will buy it? If an agreement can be reached, it is reduced to writing. It basically becomes a MARITAL SETTLEMENT AGREEMENT which is legally binding and can only be set aside in rare circumstances, such as where the other party misrepresented something important. The Agreement is then adopted by the Judge into the Final Judgment of Dissolution of Marriage if he finds it acceptable.

Please feel free to call our office and speak to one of our attorneys concerning your marital law questions.  We are here to help you and we will do our best to answer your questions.  Please call the Firm at 561 748-8000 or email us at info@jupiterlegaladvocates.com.

 

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George E. Gelb
Super Lawyer