Florida Divorce FAQ and Checklist

First, you need to establish paternity through scientific testing which can be ordered by the Court. Then child support and visitation issues will be decided pretty much the same as in a divorce case.

There is a formula in the statute which is known as the Child Support Guidelines. Basically the parties' combined net income is considered along with the number of children. The statute then gives a figure for the total support needed for the children. From this it can be determined how much support a parent will pay. The living expenses of the paying parent are not in general considered except in extreme circumstances.

In general the Courts have the discretion to deviate upward or downward 5% and if they want to deviate more than that there needs to be legally sufficient reasons put forth by the Court. It's relatively rare that the Courts deviate more than 5% from the guidelines, although it can be done in exceptional circumstances. One example of this may be where a child has special needs such as the need for costly medication.

Other examples of when a deviation can occur are when a 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 (i.e. children living with a parent who were born or adopted after the support obligation arose) is justification to deviate from the child support guidelines.

Yes. The statute describes how these items are to be factored into the child support equation.

Courts can "impute" income to a spouse. What that means is that if it is shown that they are capable of making more than they earn, the Court will calculate the child support or alimony as if they made the higher amount. Also, if the spouse is making money under the table or otherwise not reporting all income, it will be your burden to show that this is occurring. (so that they will have to pay the proper amount of child support or alimony.) You may be able to prove your spouse's true income by showing what their lifestyle is and what they are spending.

The Court has the authority to refrain from imputing income to a parent who needs to stay home with young children but it is still in the Court's discretion as to whether to do this. A spouse can argue for example that there is quality daycare available at a reasonable cost and that the children will do fine with this type of arrangement.

You can go to Court immediately to get the Judge to order visitation. A party can of course be held in contempt of Court for failure to honor a Court's visitation order. And if one does not honor visitation orders, that can be considered when the Court determines the parties timesharing rights regarding children.

Florida law also contemplates parenting coordination. The purpose is to provide a dispute resolution process whereby a parenting coordinator assists the parents in creating a parenting plan by facilitating the resolution of disputes between the parents by providing education, making recommendations, and with prior approval of the parents and the court, making limited decisions within the scope of the court's order of referral. In any action in which a judgment or order has been sought or entered adopting, establishing or modifying a parenting plan, (except for certain domestic violence proceedings) and upon agreement of the parties, or the court's own motion or motion of a party, the court may appoint a parenting coordinator and refer the parties to parenting coordination to assist in the resolution of disputes concerning their parenting plan. Note that the court will determine the allocation of fees and costs for parenting coordination between the parties. The court may not order the parties to parenting coordination without their consent unless it determines that the parties have the financial ability to pay the parenting coordination fees and costs. The rules provide that a parenting coordinator may be involved in assisting the parties with regard to timesharing. They may have temporary decision making authority regarding nonsubstantive disputes (until a court order modifies the decision). They cannot make a substantive recommendation regarding timesharing or parental responsibility unless there is an emergency. They also can make recommendations to the Court about issues concerning the children.

Note that parenting plans are mandatory. They are a document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child and must contain a time sharing schedule for the parents and child. The issues concerning the minor child may include but not be limited to the child's education, health care, and physical, social and emotional well being. The parenting plan must be developed and agreed to by the parents and approved by the court, or established by the court if the parents cannot agree to a plan. (or the parents agreed to a plan that is not approved by the court)

A parenting plan recommendation means a non binding recommendation concerning one or more elements of a parenting plan made by a court appointed mental health practitioner or other professional designated under law. In any action where the parenting plan is at issue because the parents are unable to agree, the court may order a social investigation and study, The agency, staff or person conducting the investigation must furnish the court and all parties a written study containing recommendations

Yes, Florida law provides for "shared parental responsibility" where both parties have a say with regard to important child related issues such as health, education, religion, etc.

Yes. If the Court finds that it would be detrimental to the child for a parent to participate in decisions concerning the child, then the other spouse can be given sole parental responsibility. Note that even where the Court orders shared parental responsibility over health care decisions, either parent may consent to mental health treatment for children.

Courts often feel that it is not in the best interest of the children to shift them back and forth between homes but you may be able to convince the judge otherwise.

Yes, but it is your burden to show that there is an actual danger to the child and not that you just happen to dislike the other parent. Also, Courts in general are not going to find that the child is in danger just because your spouse is bringing your child into the presence of their new romantic interest.

There are some very specific rules that apply in this situation. Relocation basically means a move of more than fifty miles for a period of sixty consecutive days or more. Parents may agree to a relocation. Unless there has been such an agreement to the relocation, a parent wishing to relocate must file a petition to relocate in the form and with the information required by the statute. There is then a deadline for filing a response to the proposed relocation. (any objection to relocation must be according to the statute) Relocation with the child or children without following the statutory requirements may subject the party to contempt, an order for return of the child, and other consequences.

The court may also, prior to the final hearing in the case, temporarily restrain a parent from relocating, or temporarily allow the relocation. In assessing a request for either a temporary or permanent relocation, there are numerous factors in the statute which the court must consider in deciding whether the move is in the best interest of the children. If the relocation is granted, the court can of course order contact with the non relocating parent, including access, visitation, telephone, internet, webcam and other arrangements sufficient to ensure frequent and meaningful contact with the non relocating parent. The court will also specify how transportation costs will be allocated between the parents.

In general the answer to this is no.

The Court can order the support to be taken directly out of the person's paycheck and of course people can be held in contempt for failure to pay court ordered support. As well, a driver's license or other licenses can be suspended for failure to pay child support. 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.

In general there is no statute of limitations on child support collection. But there is a concept known as "laches" that may preclude collection in cases where there's an extreme delay in efforts to collect and the other party is prejudiced by the delay.

Children do not have the right to decide at any age. But a Court may well consider the wishes of a mature 11 year old, but not the wishes of an immature 15 year old. The Court is concerned with what is in the best interest of the child and not simply what the child wants. Sometimes however Courts feel, especially with much older children, that there is little that they can do to force them to live with someone.

In general you pay child support until 18 although if the child is in school and will graduate high school by their 19th birthday, then child support may continue until then.

Yes, under certain circumstances.

Major battles are fought over "custody" and there is no easy answer except to say that the Court is going to determine what is in the best interest of the child. (it must be remembered that the Florida legislature has provided that "custody" is no longer an operative term or concept. The issue is about the quantity of timesharing with the minor children that each parent will have) Often, people bring in witnesses to testify to their child rearing skills and to show the Court that they are the more nurturing and capable parent. Other times unfortunately, people need to bring in witnesses to testify that their spouse is not a fit and proper person to have "custody" of the children and that the children are better off with them. Psychologists and sometimes psychiatrists get involved to interview the children and the parties to determine what is truly best, and that expert will testify in Court.

As to child support one must show a "substantial change in circumstances". What this often means is that your spouse's income has increased markedly, or that your income or financial situation has changed substantially. Durational alimony can be modified upon a substantial change of circumstances pursuant to Florida Statute 61.14, although the length of the award cannot be modified, except under exceptional circumstances, and cannot exceed the length of marriage. Bridge the gap alimony is not modifiable as to amount or duration. Rehabilitative Alimony can be modified upon a substantial change of circumstances pursuant to Florida Statute 61.14, or upon non compliance with the rehabilitative plan, or completion of the plan. It should be noted however that where alimony is terminable upon remarriage, 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. (Durational alimony terminates upon death of either party, the re-marriage of obligee, or substantial change of circumstances pursuant to Florida Statute 61.14 Bridge the gap alimony terminates upon death of either party or re-marriage of the obligee Rehabilitative alimony terminates upon substantial change of circumstances pursuant to Florida Statute 61.14, or upon non compliance with rehabilitative plan, or completion of the plan) A modification of timesharing with the minor children will probably require showing a substantial change in circumstances.

You can testify as to what your spouse has told you about income or have other people come in to testify about what your spouse's income is. Sometimes you can prove that you live a lifestyle which costs a certain amount and that it is fully paid for with your Husband's earnings. Hopefully the judge will conclude that he is making the amount of money necessary to support that lifestyle.

Prior to the statutory change wherein "custody" ceased to be a viable concept and timesharing with the minor children became the predominant issue, Florida law presumed that the spouse who had custody of the children could stay in the marital home until the youngest reached 18. This is not to say that the other spouse would pay every bit of expense for the home during this period. Also, if the Court found that it was rather unaffordable for the custodial parent to stay in the house, the house could be ordered sold (i.e. if for example prior to the parties separation it was an extreme struggle to pay the mortgage, the Court may well have ordered the house sold upon the request of the non-custodial parent.

Children born during the parties' marriage are presumed to be the children of the parties unless that presumption is rebutted by proof that someone else is the parent. That proof can be in the form of a blood test/DNA result or other testimony or proof, but in general scientific testing is the best evidence.

If it can be agreed by the husband and wife (or if it can be proven for example by the husband) that the Husband is not the biological father of a child born during the marriage, then there needs to be an action for termination of parental rights. A termination means that the Husband will not be the legal father of the child and he will have no rights or responsibilities regarding the child. (such as timesharing rights or child support responsibilities.) Note that it would be extremely difficult to come back after the divorce and allege that a child was not the child of the parties.

Courts cannot order a party to pay for a child's college, but if the parties come to an agreement that one party is to provide such support, then the Court can enforce the agreement.

The Court is usually required to order each party to pay an equal portion of the debts. The Court can order an unequal distribution of debt, but disparity in income alone is not grounds for an unequal distribution. If one party ran up some totally unnecessary bills, then they may be responsible for more than they otherwise would. But usually the Court will not sit there and determine who spent more money during the marriage. Be aware however that the credit card companies or other creditors can still come after you for your share of any debt that you are legally responsible for, despite the fact that the divorce judge ordered that your spouse should pay the particular bill.

You will not be abandoning any rights to the property by leaving. As to whether you will have to help with the mortgage or other home related expenses, you may be responsible for alimony or child support which practically speaking will be used for the mortgage. But aside from alimony and child support, you do have an obligation as a co-owner to contribute towards the expenses of this joint marital asset.

In the case of a house, it is presumed that you intended to make a gift to your spouse and it will therefore be joint property to be divided upon divorce. You can try to rebut this presumption with proof that you put it into joint names for some other reason besides a gift. As far as money, if you take some that you had before the marriage and put it into a joint account, in general the Court is going to find that it is marital property subject to division between the parties upon divorce.

Yes, if you were originally on the mortgage, in general your deeding the property to your spouse does not relieve you of the responsibility for the mortgage. Therefore, if your spouse fails to pay the mortgage the bank can come after you. You may want to talk to the bank about being removed from the mortgage but in general banks do not do this. Unfortunately this may mean that you will have a very hard time getting another mortgage if you want to but another home. The alternative is to ask the Court to order your spouse to refinance the property, but this may not be financially feasible.

Yes, in general pension rights (whether vested or unvested) and other retirement assets are divided on a 50/50 basis, although it can be a complicated process to divide them without incurring any liabilities for early withdrawal of the funds. And don't forget that $10,000 in a bank account is not the same as $10,000 in a pension or 401k type program. If you try and take money out of the latter, you may well incur penalties for early withdrawal and have to pay income tax on the money you take out.

Property acquired during the course of the marriage by one or both parties is basically subject to a 50/50 split unless there are extraordinary circumstances which require different percentages. There is usually going to be a 50/50 split even though for example one spouse worked ten hours a week while the other spouse worked forty. The acquired property will still be considered a marital asset. In general the Court is not going to start looking into how hard each party worked during the marriage to contribute, although in extreme cases the Court can consider the level of contribution.

Yes.

As long as the inherited property is not put into joint names it will most often remain the separate property of the inheriting spouse even though the inheritance took place during the marriage. (and thus won't be divided 50-50) The same holds true for gifts solely to one spouse from a third party during the marriage, it will remain that partie's separate property not subject to 50/50 split.

This can get rather complicated, but the easiest and most historically accurate answer is that if the property grows in value because of natural market forces or inflation, then no portion of the increased value will go to the other spouse. On the other hand, if for example the property involves a business, and the value of the business increases during the marriage because of the efforts of one or both parties, (or because of the contribution of marital assets) then that increased value may well be divided 50/50. The same example can be given for stocks or other assets. Although the stock or other asset may be the separate property of one spouse because it was attained prior to the marriage, or during the marriage through inheritance for example, if it can be shown that the efforts of either or both parties during the marriage led to an increase in value of the asset, then that increase in value may be divided 50/50.

Note however that the Florida Supreme Court has ruled that the passive appreciation of a marital home during the marriage is a marital asset subject to division between the parties if the home was owned by one spouse before the marriage but the other spouse contributed to the property during the marriage. (Florida statute states that to the extent that a mortgage on a non-marital property is paid down during the marriage with marital funds, the non owning spouse gets a portion of the paydown and a portion of the passive appreciation on the property) Thus an argument can be made that the passive appreciation occurring during the marriage of any asset owned by one party before the marriage might be subject to a division between the parties.

You may be able to get an injunction stopping your spouse from touching assets and records can be subpoenaed to uncover what assets there are. Also, if you can show that your spouse wasted marital assets, you may be entitled to a credit for your portion of what was wasted when the marital assets are divided at the end of the case. Each party needs to fill out and sign a sworn financial affidavit.(except in simplified dissolutions) If your spouse does not lie about the assets, you will get a complete picture of finances through this and other means.

In general, the relevance of adultery is where you can show that they have spent marital funds (which you in general are entitled to half of) on the third party.

In a long term marriage where there is a great difference between the earning abilities or financial positions of the parties and one party needs assistance to maintain their lifestyle and the other party has the ability to give that assistance, permanent alimony can be awarded. (However, an award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are exceptional circumstances.)

Permanent alimony is for long-duration marriages if the statutory criteria are met, or for moderate duration marriages if appropriate based on clear and convincing evidence after consideration of statutory factors, It is also for short duration marriage upon written findings of exceptional circumstances. In the award of permanent alimony the court must make findings that no other form of alimony is fair and reasonable.

Durational alimony is for a set period of time. (it cannot exceed the length of the marriage) It is for short or moderate duration marriages, or long- duration marriages if there is no ongoing need for support on a permanent basis.

There is also rehabilitative alimony. This is a temporary type of alimony designed to allow a spouse for example to receive support while they are finishing up with their education or otherwise acquiring skills to be able to go out and make more money than they are currently making.

Lastly there is bridge the gap alimony which assists a party with legitimate, identifiable short term needs. It is to assist a party in transitioning from being married to being single. (it may not exceed two years)

Courts can also order temporary alimony almost immediately upon a divorce case being filed, and that amount must be paid until a final hearing in the case can be held. (or until there's a reason for modification) At final hearing the Court may order less alimony than the temporary amount or more, or no alimony.

There is also lump sum alimony which the Court can use to equalize the distribution of marital assets, or can use to satisfy a spouses' immediate need for financial assistance.

Alimony is awarded when there is a need by one party for financial assistance and financial ability on the part of the other party to assist. In general, the longer the term of the marriage and the bigger the difference in earning capabilities of the parties, the more chance for an award of permanent alimony. Permanent alimony is for long-duration marriages if the statutory criteria are met, or for moderate duration marriages if appropriate based on clear and convincing evidence after consideration of statutory factors, It is also for short duration marriage upon written findings of exceptional circumstances. In the award of permanent alimony the court must make findings that no other form of alimony is fair and reasonable.

Also, as a general proposition, the longer the term of the marriage, the more successfully a party can argue that they are entitled to maintain the lifestyle that they are accustomed to and that they therefore need alimony. (However, an award of alimony may not leave the payor with significantly less net income than the net income of the recipient unless there are exceptional circumstances.) If it can be shown that the party asking for alimony is capable of making more money then they are earning however, that will be considered in determining the amount of alimony if any.

The Court can order the support to be taken directly out of the person's paycheck and of course people can be held in contempt for failure to pay court ordered support. As well, a driver's license or other licenses can be suspended for failure to pay child support. 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.

As to child support one must show a "substantial change in circumstances". What this often means is that your spouse's income has increased markedly, or that your income or financial situation has changed substantially. Durational alimony can be modified upon a substantial change of circumstances pursuant to Florida Statute 61.14, although the length of the award cannot be modified, except under exceptional circumstances, and cannot exceed the length of marriage. Bridge the gap alimony is not modifiable as to amount or duration. Rehabilitative Alimony can be modified upon a substantial change of circumstances pursuant to Florida Statute 61.14, or upon non compliance with the rehabilitative plan, or completion of the plan. It should be noted however that where alimony is terminable upon remarriage, 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. (Durational alimony terminates upon death of either party, the re-marriage of obligee, or substantial change of circumstances pursuant to Florida Statute 61.14 Bridge the gap alimony terminates upon death of either party or re-marriage of the obligee Rehabilitative alimony terminates upon substantial change of circumstances pursuant to Florida Statute 61.14, or upon non compliance with rehabilitative plan, or completion of the plan) A modification of timesharing with the minor children will probably require showing a substantial change in circumstances.

Durational alimony terminates upon death of either party, the re-marriage of obligee, or substantial change of circumstances pursuant to Florida Statute 61.14 Bridge the gap alimony terminates upon death of either party or re-marriage of the obligee. Rehabilitative alimony terminates upon substantial change of circumstances pursuant to Florida Statute 61.14, or upon non compliance with rehabilitative plan, or completion of the plan.

It should be noted that where alimony is terminable upon re-marriage, 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.

You can testify as to what your spouse has told you about income or have other people come in to testify about what your spouse's income is. You can subpoena bank or other records. And you can subpoena people for deposition to see what your spouse has, what they are doing, how they are living and what they are spending. (friends may know) You may be able to prove your spouse takes trips or makes investments. You can also retain an accountant to assist in finding assets. It is also worth seeing how much money your spouse has been paying on credit cards. And of course business records can tell alot.

Sometimes you can prove that you live a lifestyle which costs a certain amount and that it is fully paid for with your spouse's earnings. Hopefully the judge will conclude that your spouse is making the amount of money necessary to support that lifestyle.

Courts can "impute" income to a spouse. What that means is that if it is shown that they are capable of making more than they earn, the Court will calculate the child support or alimony as if they made the higher amount. Also, if the spouse is making money under the table or otherwise not reporting all income, it will be your burden to show that this is occurring. (so that they will have to pay the proper amount of child support or alimony.)

In general, the relevance of adultery is where you can show that they have spent marital funds (which you in general are entitled to half of) on the third party.