Frequently Asked Questions

Family Law

WHO IS RESPONSIBLE FOR ATTORNEY’S FEES IN A FAMILY LAW CASE?

Attorney’s fees can be awarded in divorce, paternity, support, modification, and post-judgment matters.

A party can petition the Court to have attorney’s fees paid by the other party. Among the factors the Court will consider is the financial resources of both parties. In general, the greater the financial disparity amongst the parties, the more likely it is the Court will award to the less financially fortunate party attorney’s fees.

IF I GET DIVORCED, WILL I HAVE TO MOVE OUT OF MY HOME?

There are three options when parties divorce and a marital home is involved. (1) You can buy your spouse’s half of the home (2) Your spouse may buy your half of the home or (3)

The home can be sold and the proceeds split.

IN MY DIVORCE CASE, WHAT HAPPENS IF NOTHING IS FILED BEFORE THE END OF THE DEADLINE?

If nothing is filed within the 20 day timeframe then the Clerk may enter a Default Judgment. If a default judgment has already been entered against you in your dissolution of marriage proceeding you may file a motion asking the Judge to set aside the default judgment and make a decision based on the merits of your case.

IN A DIVORCE CASE, IS THERE A DEADLINE TO FILE A RESPONSE?

Yes, after being served with a Petition for Dissolution of Marriage, there is a 20 day time frame in which you must file an Answer.

DURING AND AFTER MY DIVORCE CASE, WILL MY CHILDREN BE ABLE TO LIVE WITH ME?

Whenever minor children are involved in a Dissolution of Marriage proceeding the parents must enter into a parenting plan and time-sharing schedule. Parents are expected to co-parent their children. The time sharing schedule determines the schedule of contact between the children and each parent. In determining the specific parenting plan and time sharing schedule the Court is required to determine the best interests of the child. Florida Statutes contains a list of factors the Court is to use to make that determination, and these are referred to as the “best interest factors.” Florida Statutes 61.13

HOW LONG WILL THE DIVORCE PROCESS TAKE TO COMPLETE?

It is hard to determine how long the divorce process will take. It depends on the individual parties and their unique circumstances such as children being involved and what assets and liabilities need to be divided. Also, how much the parties can agree on without needing to go to trial as well as the availability on the Judge’s calendar for motions, pretrial, and trial.

DOES IT MATTER IF ONE PARTY IS AT FAULT FOR CAUSING THE DIVORCE?

By statute, Florida is a “no-fault” divorce state. This means that either spouse may request a divorce by proving to the court that the marriage is “irretrievably broken.” As a result, in seeking a divorce you do not have to prove that your spouse has committed adultery, domestic violence, spousal abuse, or otherwise acted in a way justifying dissolution of the marriage.

HOW IS CHILD SUPPORT CALCULATED?

In Florida the specific amount of child support that must be paid by a parent is governed by law. Child support is based on a mathematical formula. The information which is plugged into the formula includes the gross incomes of each party, the amount paid by each party for health care for themselves and the children, the day care expenses paid by each party, the amount of child support ordered and actually paid by either party for other children, and whether the parties are utilizing a time sharing schedule where both parties have substantial time with the children, or whether the children spend the majority of their time with one parent or the other. Substantial time sharing is where a parent has 40% or more of the overnights with a child.

HOW DOES ALIMONY WORK? TEMPORARY ALIMONY?

Alimony or spousal support is based upon need and ability to pay. That is, the need of the spouse requesting alimony and the ability to pay of the spouse from whom alimony is sought. Need is determined by taking the net income the requesting spouse earns (or the amount the Court determines that spouse should be earning), and subtracting from that net income the cost of paying for the reasonable and necessary living expenses in the lifestyle to which the parties have become accustomed during the marriage. If the result is a negative number, that is the requesting spouses need. The ability to pay of the spouse from whom alimony is sought is similarly determined by taking the net income that spouse earns (or the amount the Court determines that spouse should be earning), and subtracting from that net income the cost of that spouses reasonable and necessary living expenses in the lifestyle to which the parties have become accustomed during the marriage. If the result is a positive number the court may determine there is the ability to pay.

Alimony may also be awarded on a temporary basis along with temporary child support, time-sharing, exclusive use and possession of the marital home, and attorney’s fees.

MAY I MOVE OUT OF STATE WITH MY MINOR CHILD?

Florida creates specific instructions for parties attempting to relocate, including a procedure for obtaining the permission of the Court. This process must be followed even if your Final Judgment is silent on the issue. You will need to provide a detailed written notification to the other party, who will then have the right to object. If the other party objects, then an evidentiary hearing will take place on this issue. The burden of proof will be on the parent seeking to re-locate as to, among other things, why this move would be in the children’s best interests.

WILL MY CHILD HAVE TO TESTIFY IN COURT?

As a general rule, children never appear in or testify in court. In fact, you must seek permission of the court allowing a child to testify. However, pursuant to Florida Statute 61.13, one of the many factors the court can consider when ordering a parenting plan is the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

CAN A PARENT REFUSE VISITATION IF CHILD SUPPORT IS NOT PAID?

No. Time-sharing and child support are treated separate and apart from each other by the court except as it relates to calculating child support.

CAN A PARENT CHANGE THE LAST NAME OF A CHILD WITHOUT THE OTHER PARENT’S PERMISSION?

A parent who wants to change a child’s last name must file a petition with the court and serve the other parent with the petition by service of process. The other parent is given the opportunity to object. If the other parent objects there will be a court hearing. A court will grant a name change upon a showing that it is the best interest of the child.

WHAT IS MEDIATION? DO I HAVE TO ATTEND?

Mediation is a process in which a neutral third party assists the parties in reaching an agreement on issues in dispute. All parties are required to mediate before the case can be scheduled for hearing.

AM I REQUIRED TO COMPLETE A PARENTING CLASS?

In all cases involving minor or dependent children, both parties are required to attend a parenting class before the case can be scheduled for hearing.

WHAT IS MANDATORY DISCLOSURE? WHAT DOCUMENTS DO I NEED TO GIVE TO THE OTHER PARTY IN A DIVORCE?

Mandatory Disclosure Checklist:

  • Financial Affidavit
  • All personal (1040) federal and state income tax returns, gift tax returns, and intangible personal property tax returns for the preceding 3 years; IRS forms W-2, 1099, and K-1 for the past year because the income tax return for the past year has not been prepared.
  • Pay stubs or other evidence of earned income for the 3 months before the service of the financial affidavit.
  • A statement identifying the source and amount of all income for the 3 months before the service of the financial affidavit, if not reflected on the pay stubs produced.
  • All loan applications and financial statements prepared for any purpose or used for any purpose within the 12 months preceding the service of the financial affidavit.
  • All deeds to real estate in which you presently own or owned an interest within the past 3 years. All promissory notes in which you presently own or owned an interest within the last 12 months. All present leases in which you own an interest.
  • All periodic statements for the last 3 months for all checking accounts and for the last year for all savings accounts, money market funds, certificates of deposit, etc.
  • All brokerage account statements for the last 12 months.
  • Most recent statement for any pension, profit sharing, deferred compensation, or retirement plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, etc.) and summary plan description for any such plan in which you are a participant or alternate payee.
  • The declaration page, the last periodic statement, and the certificate for any group insurance for all life insurance policies insuring your life or the life of your spouse.
  • All health and dental insurance cards covering either you or your spouse and/or your dependent child (ren).
  • Corporate, partnership, and trust tax returns for the last 3 tax years, in which you have an ownership or interest greater than or equal to 30%.
  • All credit card and charge account statements and other records showing your indebtedness as of the date of the filing of this action and for the prior 3 months. All promissory notes on which you presently owe or owned within the past year. All lease agreements you presently owe.
  • All premarital and marital agreements between the parties to this case.
  • If a modification proceeding, all written agreements entered into between the parties at any time since the order to be modified was entered.
  • All documents and tangible evidence relating to claims for an unequal distribution of marital property, enhancement or appreciation in non-marital property, or non-marital status of an asset or debt.
  • Any court order directing that you pay or receive spousal support (alimony) or child support.