What are the grounds for Divorce in Florida? Before 1971 there were all sorts of grounds for divorce in Florida: Adultery, Cruelty, Violence, Desertion, etc. Then the “no-fault” statute was passed that we live with today. Most states have a similar concept of “no fault divorce” which just means you don’t need some event like an affair or a physical fight in order to trigger your right to divorce. Today, the only grounds for divorce in Florida are (1) the marriage is irretrievably broken or 2) one of the parties has been mentally incapacitated for at least three years. Fla. Stat. Sec 61.052. In addition to one of these two grounds, the petition for a dissolution of marriage must also allege that one of the spouses has a Florida residency for more than six months prior to the filing of that petition. Additionally, to file in Collier County, Florida, one of the spouses must live in Naples, Florida or one of the other communities within the county. What does “irretrievably broken” mean? In practice, it means what you want it to mean. As a younger attorney, I did several criminal trials and the concept of “reasonable doubt” was an equally amorphous concept. The jury or judge determined what “reasonable doubt” meant. In the case of divorce, a divorcing party determines what “irretrievably broken” means. Most of the time, that means the party simply says, “My marriage is irretrievably broken.” In front of a judge while proving up the divorce on the final court date, I always clarify in the final questions “Your marriage is Irretrievably broken and that means that you tried to work it out but you couldn’t work it out, correct?” Because the grounds of the marriage being irretrievably broken is so easy to establish, almost no one invokes the other grounds that one of the parties has been mentally incapacitated for at least three years. In fact, proving Florida residency is the more difficult factor. While testimony is usually sufficient, a driver’s license, an identification card, or voter registration can adequately prove residency sometimes a notarized affidavit is necessary. This is Florida, where we have a lot of part-time residents. So, extra scrutiny is given to this particular element. These elements sound like the courts are trying to keep marriages together but it is your right to get a divorce in Florida. “If, at any time, the court finds that the marriage is irretrievably broken, the court shall enter a judgment of dissolution of the marriage.” Fla. Stat. Sec. 61.052.(2) All of this is not to say that adultery, cruelty, violence, desertion or any other factors have no effect on a divorce but rather to say that they are not necessary. The myriad of other issues that present themselves after the filing of a divorce are often colored by the causes of the divorce even though they are not officially legally relevant. The judge deciding these matters is still, and will always be, a human being subject to the same emotions, sympathies and prejudices the rest of us are. Many of the old grounds for divorce are separate causes of action in themselves. Cruelty and violence are now domestic battery. Desertion is a cause for contribution to the marital estate. More importantly, you and your lawyer should be crafting a brief and compelling narrative of what happened in your case because that will inevitably determine what will happen to your case. Contact my family law office in Naples, Florida to learn more about the divorce process and what your next steps should be. Via https://divorceattorneynaplesfl.com/what-are-the-grounds-for-divorce-in-florida/
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What Is Required In A Petition For Modification Of Custody/Parenting Time In Naples Florida?9/8/2022 In Naples, Florida, to modify an existing order that lays out the parenting time and/or custody of a child, it depends on what the circumstances are. There are three possible circumstances and I go into each below.
If the child may be subject to physical harm or may be suffer from some type of harm which cannot be resolved through the months long process of filing and hearing a regular motion (such as a removal to another state where the child would be enrolled in a new school), an emergency motion may be filed. An emergency motion does not require that you notify the other side (you still should, if able). The first test of an emergency motion is whether the matter is, in fact, an emergency. This test will vary based on the facts at hand and the judge who is hearing the motion. After it is determined that the matter is an emergency the judge will make a decision based on, possibly, solely the information you present and make an “emergency order.” A status date on the situation will then be set in the very near future. At this status date, the other side will have the opportunity to review your petition, answer your petition and file a petition of their own, if need be. While there are not rules in place in Florida to explicitly punish those who file emergency petitions that turn out to not be emergencies, a petition for sanctions may be available should the emergency petition be ruled a non-emergency. 2. Temporary Modification. A request for a temporary modification in custody pending a hearing on permanent modification is an odd request. Both the petition for temporary modification and permanent modification require the same two elements: 1) A substantial change in circumstances and 2) that the change be in the best interests of the child. Because of these almost identical legal natures, the courts are split as to whether a temporary modification can be granted when having satisfied a temporary modification’s requirements, you’ve also satisfied the permanent modifications requirements. One could imagine a court “splitting the baby” by allowing a temporary modification of custody when faced with a temporary substantial change in circumstances. For example, a temporary military deployment or job transfer of one parent. It’s not clear how this would be different than a permanent order that just included a trigger of when it could be modified next. Family law is a very emotional area of the law and sometimes calling something a name that is softer than another name even though it has the same effect is a good policy for all parties involved. 3. Modifying A Final Order When the case is already in existence and you want to request something from the court, you file a motion. In the case of modifying a final custody order in Florida, you do not file a motion, you file a supplemental petition for modification of a final custody judgment. I know that’s a mouthful but it means you’re sort of starting from scratch with a special process server and everything. This is because you have to serve the other party all over again because their attorney (or themselves) is no longer the official attorney of record after the final order was entered. This prevents people from doing things to custody without verified notice to the other parent. A petition for modification of a final custody judgment must include the following:
A modification may be necessary to reflect the new status quo of visitation and custody that has been achieved organically but no longer is reflected by the current parenting plan. Otherwise, the other parent will always have the opportunity to turn around and try to enforce the existing parenting plan. After a modification of custody or parenting time is made, a subsequent motion to modify child support based on the new parenting times can be made. Modifying custody is treated extremely seriously by the court and is no casual request. Contact my family law office in Naples, Florida to discuss your options in establishing or modifying custody. Via https://divorceattorneynaplesfl.com/what-is-required-in-a-petition-for-modification-of-custody-in-naples-fl/ Raising kids is expensive. Daycare can often cost more than a mortgage but it’s nothing compared to the expense of putting a child through college. Usually families sit around the kitchen table and figure out how they’re going to pay for college where mom, dad and the child are all pitching in to make it happen. But what happens after a divorce? Who pays for college expenses after a Florida divorce? Other states have explicit statutes dictating how college is to be paid. Do not think this is the case or will be the case in Florida. The Florida statutes do not mention college and university expenses in their dissolution of marriage, support and time-sharing section. So, there’s no affirmative obligation for a parent to pay for the college expenses of their children. The Florida courts have clarified exactly what is required regarding a divorced couple’s child’s college expenses: not much. Any duty a parent has to pay an adult child’s college expenses is moral rather than legal. Grapin v. Grapin, 450 So.2d 853, 854 (Fla.1984). “[T]he court cannot require a parent to pay those expenses unless the parties have contracted for them in a marital settlement agreement.” Wagner v. Wagner 885 So. 2d 488 (Fla. Dist. Ct. App. 2004) So, if you want to split college expenses with your ex you have to arrange for it when you prepare the final documents. How To Split College Expenses In a Florida Divorce. Every divorce has a final document entered in the courts called a “Marital Settlement Agreement” commonly referred to by its acronym MSA. The MSA includes all financial arrangements and agreements between the two parties. The division of assets, debts and whatever child support and alimony is ordered or agreed to. A good MSA will include any future financial relationships the parties might have. An example is if the parties choose to co-own a house or business. But, if the parties have children the parties should also include some kind of language about how they will make arrangements to pay for the children’s college or university expenses. The question is how do you allocate these expenses between the two parties when you don’t know how much college will cost, what your incomes and assets will be or if your child will even go to college at all. There’s probably no good answer to this. So, let’s discuss strategies. You can cap the expenses of college using some kind of reasonable metric like Florida in-state tuition. This will virtually insure that your child will attend a Florida state University. You can allocate the expenses proportionally to income but you’ll have no idea as to what your income or your spouse’s income will be. You and your spouse are likely to re-marry. If you remarry and support your new spouse and new children you’ll have more income than your ex-spouse if he or she marries and is supported by their new spouse. Even if require your ex-spouse to contribute future income to your children’s college, your spouse will not be held in contempt of court if they simply cannot pay that amount. To be held in contempt means that their behavior was “willful and contumacious” and a real inability to pay is neither. If the person cannot be held in contempt, there will never be any real enforcement of the order. Probably the only fair way to manage these expenses is to require both parties to contribute to 529 plans at a regular set pace. If the children get scholarships or don’t go to college, this 529 money doesn’t disappear. You can use it for another child’s education, for your own education or even a grandchild’s education. Or you can cash it out and pay the taxes you deferred and a 10% penalty. A mix of these options is probably advisable. A 529 contribution. A proportional income contribution which considers any other children’s expenses and even possible new spouse’s income. A requirement that the child investigate scholarships, grants and loans can also be included. Or you could just include very broad language saying that the issue of paying for children’s college expenses will be handled equitably and let a court determine the payment. But then the parent that doesn’t want to pay will just turn to the previously mentioned court decisions and say “we didn’t contract for anything in particular therefore we don’t have to pay.” A life insurance policy can also be agreed to for the payment of college expenses if one of the parties’ passes away prematurely. To learn more about how you should consider your children’s college education during and after your divorce, please contact family law attorney Russell Knight to schedule a free consultation. Via https://divorceattorneynaplesfl.com/who-pays-for-college-expenses-in-a-florida-divorce/ In Florida, you used to be able to sue a seducer or seductress who your husband or wife ran away with. Before 1945, there were all sorts of ways you could sue the new person in your spouse’s life. You could file a suit for “alienation of affection” claiming that your spouse would still be in love with you if not for the actions of a third party. If you go back far enough it was even a crime to sleep with a married man or woman. Back then they never referred to sex directly so the crime was called “criminal conversation.” People even sued the seductor/seductress saying that their amorous actions had caused a breach of promise (of fidelity) on the husband or wife’s part. As you can imagine, this tortious action and this criminal statute created more drama then it prevented and in 1945 the Florida legislature enacted the following law: “The rights of action heretofore existing to recover sums of money as damage for the alienation of affections, criminal conversation, seduction or breach of contract to marry are hereby abolished.” Fla. Stat. Sec 771.01 Now, the only tort you could use to sue the person who stole your husband or wife is “intentional infliction of emotional distress.” Intentional infliction of emotional distress requires that “(1) the wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous and is to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe.” Dominguez v. Equitable Life Assur. Soc. of U.S., 438 So. 2d 58, 59 (Fla. 3d DCA 1983) The problem with an intentional infliction of emotional distress case against your spouse’s lover is the second prong of the test “the conduct was outrageous and is to be regarded as odious and utterly intolerable in a civilized community.” Having an affair with a married man or woman is an unpleasant notion at best but in the current year it would be hard to characterize that behavior as “utterly intolerable.” Our society no longer shuns adulterers (it if ever did). Adultery can still be a large factor in an underlying divorce case, however. Monies spent by a husband or wife on their lover can constitute a dissipation of assets. That is if your husband spent $ 10,000 on his mistress during the marriage, it will be assumed that $ 10,000 of the marital state is now dissipated and that whatever is left of the marital estate should be divided as though the $ 10,000 was still there and the husband’s share had already been awarded. So, in this scenario, if there was $ 100,000 left in the marital estate at the time of divorce, the wife would receive $ 55,000 and the husband would $ 45,000. If, on the other hand, the new boyfriend or girlfriend was spending money on the spouse, those expenditures can be used to possibly prove another source of income for the spouse and thereby reduce any alimony award. In my years of practicing divorce law, the worst aspect of adultery is when the new boyfriend/girlfriend gets introduced to the children. It is incumbent on the aggrieved spouse to be the bigger person and allow the introduction so as to eliminate any accusation of alienating the children from their parent. That being said, a parenting plan can include requirements for meeting any new romantic partners. Requirements often include that a relationship be at last X months long or that the new partner be engaged to the party. If you’re considering divorce, please contact my Naples, Florida family law firm to talk with an experienced attorney about your case. Via https://divorceattorneynaplesfl.com/in-florida-can-i-sue-the-person-who-stole-my-husband-or-wife-from-me/ Bigamy is the act of going through a marriage ceremony while already married to another person. In Florida, bigamy is both a crime and a factor that can impact a divorce. The Crime of Bigamy in Florida The Florida statutes are very clear that bigamy is a crime. “826.01 Bigamy; punishment.—Whoever, having a husband or wife living, marries another person shall, except in the cases mentioned in s. 826.02, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” So, if you’re already married and you marry someone else in addition to your first spouse, in Florida, you have committed a third degree felony which is punishable by a $5,000 fine and up to five years in prison. Most “bigamists” are not actively marrying multiple people on purpose. They usually fall within the exceptions to the crime and are, therefore, not felons. “826.02 Exceptions.—The provisions of s. 826.01 shall not extend to any person:(1) Who reasonably believes that the prior spouse is dead.(2) Whose prior spouse has voluntarily deserted him or her and remained absent for the space of 3 years continuously, the party marrying again not knowing the other to be living within that time.(3) Whose bonds of matrimony have been dissolved.(4) Who violates its provisions because a domestic or foreign court has entered an invalid judgment purporting to terminate or annul the prior marriage and the defendant does not know that judgment to be invalid.(5) Who reasonably believes that he or she is legally eligible to remarry.” It is extremely common for people to have married someone years ago and presume that the spouse they haven’t heard of is either dead or has divorced them. This is especially true for people who were originally married in a foreign country. The key is that the belief in the death or divorce of your former spouse must be “reasonable.” The person who marries the bigamist is not free from criminal charges…if they know their spouse is already married. “826.03 Knowingly marrying husband or wife of another.—Whoever knowingly marries the husband or wife of another person, knowing him or her to be the spouse of another person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” The same exceptions apply to the person who marries the bigamist so a reasonable belief that the previous marriage is now invalid will be sufficient to avoid criminal culpability. Does Bigamy Get Prosecuted in Florida? Yes, bigamy does get prosecuted in Florida. When a crime gets reported in Florida, the police will investigate and the state’s attorney will file charges. In the case of bigamy, an upset husband or wife is very likely to report the crime of bigamy. As recently as 2017, a Florida man with two wives was charged with bigamy. Neither wife knew about the other and once they found out, they both pressed charges against their mutual husband. The case was eventually dropped (probably because the wives backed out) Bigamy cases often get dropped in Florida because the States’ attorneys decide they don’t have jurisdiction if the bigamous marriage occurred outside of Florida. This is not a defense to bigamy, this appears to be purely a prosecutorial decision. The Future of Bigamy In Florida Numerous foreign countries and cultures allow for multiple spouses. There was even a show about bigamists on TLC called “Sister Wives.” The stars of the show were all prosecuted but a judge declared the law against bigamy to be unconstitutional. Marriage is a fundamental right per the U.S. Supreme Court, so we can expect that right to eventually be extended to legitimate relationships that may include bigamy. How Does Bigamy Affect A Divorce in Florida? If you marry a bigamist in Florida…you’re not really married. Therefore, you can declare your marriage void. This means you have no rights or responsibilities under the Florida divorce laws because you never were married in the first place. This might be great if you don’t want the responsibilities of a divorce but what if you unknowingly married a bigamist and now you want to divide marital property and ask for alimony? The Florida Supreme Court will allow an unknowing spouse to collect alimony and divide marital property even when the marriage is void, “When a wife is an innocent victim of the husband’s wrong, then the court may allow permanent alimony and attorneys’ fees on equitable principles as well as under Section 65.08, Florida Statutes.” Burger v. Burger, 166 So.2d 433, 436 (Fla. 1964) If you believe you are in a bigamous relationship and would like to know your rights, contact my Naples, Florida family law firm to schedule a free consultation with an experienced divorce lawyer. Via https://divorceattorneynaplesfl.com/bigamy-and-divorce-in-florida/ Divorce is handled by state law. If you are under the jurisdiction of a state by that own state’s rules you CAN get divorced in that state. That doesn’t mean you MUST get divorced in that state. Theoretically, it’s possible to get divorced in one of many states depending on you and your spouse’s residency and ties to those respective states. But for this article, let’s just consider Florida vs. Illinois divorce laws. I, personally, am licensed to practice law in Illinois and Florida and have focused my two practices (one in both Illinois and Florida) on the family law in particular. If you’ve read either of my blogs, you’ll see that I’m kind of obsessed with family law. Family law is often broad but not deep. As a family lawyer, you learn how to divide a business and the next day you’re determining if a custody valuation is correct. Divorce law doesn’t have the minute nitty-gritty like the lawyers who regulate nuclear power plants, for example, have to deal with…until you come to jurisdictional issues. Jurisdiction of Divorce in Florida. Florida has great weather, low taxes and tough jurisdiction laws. To get divorced in Florida, either you or your spouse must be a resident of Florida. To be a resident of Florida, you must reside in Florida for at least six months of the year. If either spouse has spent 183 days of the current year or the past year in Florida, they are a Florida resident for the purposes of divorce. If anyone contests those 183 days, you must prove via calendar that you were in Florida during that time. Honestly, your phone probably can prove exactly where you were if you’re inclined to ask it. If you or your spouse were not in Florida for exactly 183 days then the courts look to the intent of the parties. Do you have a Florida driver’s license? Did you file your taxes in Florida? Do you own a home and car in Florida? These can all be proven via testimony and filing exhibits with the court. If you have a tax filing, home and/or car in another state that will weigh against your residency in Florida for the purposes of divorce. Jurisdiction of Divorce in Illinois Illinois has a bad reputation for not accommodating businesses…but they sure accommodate divorce. You only have to be in Illinois for 90 days to get a divorce in Illinois. That’s not 90 days before filing, that’s 90 days before the actual divorce. There used to a lawyer in Chicago who would only advertise in the Philippines (where it is illegal to get a divorce). Filipinos would take a long vacation in Chicago and 90 days later they would be divorced. The Philippines would then have to recognize that Illinois divorce due to treaties between the Philippines and the United States. (For more colorful Chicago divorce stories, please ask me as I have a million) I’ve been practicing family law in Illinois for 13 years. Illinois never turns down a case unless it’s contested by another jurisdiction. What Happens When Jurisdiction Is Contested between Illinois and Florida? When jurisdiction is contested between Illinois and Florida the two respective Illinois and Florida judges schedule a “judicial conference” which most people know better as a “phone call.” The two judges then discuss the practicality of proceeding with the divorce in their respective jurisdictions. If the kids have lived in a state for more than 6 months then the divorce will be happening in that state. There’s a whole interstate treaty and body of law dedicated to this subject called the UCCJEA. If all or most of the assets of a divorce case are in one state, then that state may handle the divorce for the sake of efficiency. If the kids are in one state and the assets are in another, it is theoretically possible to conduct each part of the divorce in that respective state. I have never seen this happen, however. (But I would love to do it) So Which Is Better For Divorce? Illinois or Florida? It really depends on the facts of your divorce and what your interests are. Let’s go through each of the main factors in divorce. Division Of Assets In Florida vs. Illinois Florida law requires marital assets to be divided 50/50. If those assets are not divided equally, the court MUST explain why in written findings. Explaining why you didn’t follow the default law in written findings is essentially asking to be appealed and overturned. Illinois law says that assets must be distributed “equitably.” What does “equitably” mean? In Illinois, equitably means whatever the judge wants it to mean. An Illinois judge can say, “I award the wife 60% of the estate” and the judge doesn’t really have to explain him or herself. If there’s no court reporter recording the evidence entered, then it’s essentially impossible to appeal an equitable decision. Alimony or Spousal Maintenance in Illinois vs. Florida. In Illinois, there is no alimony. Instead, people receive a large sum of money every month that is, instead, called spousal maintenance. As Shakespeare said, “a rose by any other name would smell as sweet.” Illinois has guidelines spousal maintenance. That is, the large earner pays the small earner 33% of his or her income minus 25% of the small earner’s income. This is all pre-tax money! There is a cap, though. You cannot receive maintenance (including your income) beyond 40% of the total income of the couple, together. So, for the mathletes out there, if you make more than 150% of the income of your spouse, you will pay your soon-to-be ex-spouse some kind of spousal maintenance. If an Illinois judge deviates from these guidelines, the Illinois judge has to issue written findings (and possibly be appealed because of them). Illinois maintenance lasts a specified amount of time according a long, byzantine schedule that the Illinois legislature keeps amending. The longer the marriage, the longer the spousal maintenance until 20 years where maintenance becomes permanent. In Florida, alimony is whatever a judge wants it to be. There are two tests involved in Florida alimony. 1) What are the needs of the lower earning spouse. 2) What is the capacity of the higher earning spouse to pay for those needs. Florida alimony’s duration is based on a loose system of how the alimony is categorized as rehabilitative, bridge-the-gap or permanent alimony. Child Custody in Florida vs. Illinois In both states, child custody is determined through the standard “the best interests of the child.” How the courts arrive at the best interests of the child in both states is usually done with the help of an outsider. In Florida a child custody evaluator is appointed to meet with both parents, the children and anyone else associated with the case. The child custody evaluator is usually a therapist, child psychologist or some other professional whose professional expertise can be relied on by the court. In Illinois, the child is appointed their own attorney called a Guardian Ad Litem or a Child Representative. The child’s attorney then coordinates professionals such as therapists to make recommendations to the court regarding parenting time. Obviously, attorneys are more expensive than therapists so Illinois has a more expensive process. Child Support in Florida vs. Illinois Child Support in Florida is determined based on the parties’ incomes and the time that each party spends with the child. If a parent spends more than 20% of the time with the child, that parent will get a reduction in any child support owed based on the percentage of nights the child is with the parent. In Florida. Each parent who pays for health insurance or child care then gets a credit against or for the child support owed. Florida’s child support calculator can be found here. Child support in Illinois is also determined based on the parties’ income. A parent in Illinois must have the child at least 146 nights (that’s almost 5 months of a 12 month year) before the child support will be reduced from the basic guidelines amount. Illinois’ child support calculator can be found here. Expenses like insurance and extracurricular activities in Illinois can be split proportional to income but are usually split 50/50. So Where Should I File My Divorce? Illinois or Florida? The law really isn’t dramatically different between the two states except for Alimony or Spousal Maintenance. Illinois has a set formula to determine the amount and length of spousal maintenance. Florida has no alimony formula for amount or time. This means that in Florida, you are really relying on the quality of your attorney to set your alimony. For most people, if you’re paying alimony, you want to file for divorce in Florida. If you expect to receive spousal maintenance, you’ll want to file for divorce in Illinois. The division of assets in Illinois is more flexible than it is in Florida. So, if you think you have a good argument to get more than 50% of the marital estate, you’ll want to file for divorce in Illinois. If you want to lock in a 50/50 split, you’ll want to file for divorce in Florida. As far as child related issues go, you don’t really have a choice. You’ll be locked into whatever jurisdiction that your children have lived in for the last 6 months. If you’d like to speak with an experienced family law attorney who is licensed in Florida and Illinois, do not hesitate to contact me. Via https://divorceattorneynaplesfl.com/florida-vs-illinois-divorce-laws/ In Florida, Before there’s been a filing in the courts, there is no official piece of paper you can point to that establishes who makes decisions for the child and who the child should be spending time with. The automatic determination of the custody of a child hinges on whether the parents were married or not at the time of the child’s birth. If they parents were married at the time of the child’s birth, they are both considered to be the natural parents of the child with equal rights to the child. In fact, there are no laws governing this situation without a court order. This is why when a parent removes a child to another state or even another country, it is not considered kidnapping. The parent is just exercising their equal rights over the child. When unmarried people have a child, the child’s biological father does not have an automatic right to equal custody as he would if he was married to the child’s mother. The unmarried mother has all the custody, responsibilities and parenting time of a parent with sole custody. “The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless the court enters an order stating otherwise.” Fla. Stat. Sec. 744.301(1) The unmarried father has no rights to the child until something is filed. The only right the unmarried father has is the right to seek a court order to be considered the legal father and thereby acquire equal parenting rights as though he were a married father. What this typically means is that until there is a filing and an order the unmarried father has parenting time with the child whenever the mother allows it. The unmarried father eventually realizes this is an untenable situation and then the unmarried father files something to register himself as the legal father and thereby have a judge, not just the mother, determine his parenting time and responsibility. Whether married or unmarried, whatever agreement the two parents had reached before going to court and getting an order is referred to as the “status quo.” When the parties do go to court, the judge and/or guardian ad litem will be strongly biased towards maintaining that status quo. This is especially true if the children are thriving emotionally and academically under the status quo. If the child lives in Naples, Florida, the correct court to file the parentage action in is the Collier County court. The first order that gets entered regarding custody, parenting time and parenting responsibilities seems like a momentous occasion that could set the tone for the entire case but the situation isn’t that stark. The first order that is entered regarding custody and/or parenting time is almost always entered as a temporary order. A temporary order can always be revisited with the courts not treating the first order as any kind of prevailing law that should be followed. Hall v. Mall, 32 So. 3d 682 (Fla. 1st DCA 2010). So, don’t be afraid to get something on file and get a temporary order even if you don’t believe you’d get the time and responsibilities that you’d deserve. It is only when a final order is entered that the order is treated with deference in any future modification attempts. If there’s no order, chances are you need an order. Call my Naples, Florida family law office now to learn how to get that order and the stability you and your loved ones need. Via https://divorceattorneynaplesfl.com/when-theres-no-court-order-who-has-custody-of-the-child-in-naples-florida/ In Florida, property that was earned during the marriage is, by default, marital property and will be split, most of the time, 50/50 between the two parties. Many settlements, however, aren’t to reflect money earned in the marriage but rather are to make up for lost earnings in the future. Florida divorce law says that earnings in the future or after the divorce is filed are not marital because they are post-divorce. Take, for example, a person is gravely injured and doesn’t even receive a settlement, all he receives is a disability pension. That disability pension represents a substitute for all his future earnings, therefore, is not a marital asset. Mallard v. Mallard, 771 So. 2d 1138 (Fla. 2000). Florida recognizes that most injury settlements are not purely for lost future wages. An injury settlement usually contains money to for things that would be considered marital such as to recoup medical expenses or past lost earnings. Therefore, the courts divide any settlement up into marital or non-marital earnings. A Florida Supreme Court Case, Weisfeld v. Weisfeld, 545 So. 2d 1341 (Fla. 1989), outlined how to divide up the settlement into marital and non-marital portions: “(a) the separate property of the injured spouse includes the noneconomic compensatory damages for pain, suffering, disability, and loss of ability to lead a normal life and the economic damages which occur subsequent to the termination of the marriage of the parties, including the amount of the award for loss of future wages and future medical expenses; (b) the separate property of the noninjured spouse includes loss of consortium; and (c) the marital property subject to distribution includes the amount of the award for lost wages or lost earning capacity during the marriage of the parties and medical expenses paid out of marital funds during the marriage. The marital property should also include those funds for which no allocation can be made.” But, there is a big twist to this analysis. In almost any and every personal injury claim, the husband or wife can also sue the liable party for “loss of consortium”. This claim is essentially saying, “I used to enjoy my spouse’s company a lot more before he or she got hurt and I should be compensated for that loss.” So, as a spouse you have two interests: 1) your spouse’s injury case and 2) your loss of consortium case. But, there’s a risk if you file and settle your loss of consortium case. When there’s a personal injury and the injured person is getting divorced there are two people with cases against the liable party but the couple can’t sue the liable party together because they are already suing each other (in divorce court). In this fact pattern, the 2nd district of Florida (Tallahassee area) says that if the spouse’s consortium claim is separately settled, that spouse waives any interest in the injured spouse’s settlement. Valentine v. Van Sickle, 42 So. 3d 267 (Fla. 2d DCA 2010). Here in the 20th judicial district (Charlotte, Collier, Hendry and Lee Counties) we don’t have this rule…yet. Injury cases take years to resolve and the rule of thumb is “the bigger the case, the longer it takes to settle.” You may not want to wait the 5 years it takes to settle a big injury case. You do not have to resolve the division of the injury case’s proceeds at the divorce. The injury case’s proceeds are a complete unknown until the injury case has settled or has gone to trial. The matter of the injury case’s proceeds can simply be reserved until the final award is determined. If you or your spouse are getting divorced and have a pending personal injury case contact my Naples, Florida divorce law office to understand all your options and ensure you don’t make any terrible errors as I have outlined above. For a great Naples personal injury lawyer contact Marc Shapiro. Direction from my office to his office are below: Via https://divorceattorneynaplesfl.com/injury-settlement-naples-florida-divorce/ In Florida, whether you have a parenting agreement or not, you cannot move with the child without signing some kind of written document. It may be a written agreement or it may be a court order. The type of document necessary depends on whether the parents are agreed or not as to the relocation. If the parents are agreed as to the relocations they must enter into a written agreement that “1. Reflects consent to the relocation; If the parents are agreed as to the relocation and a court order or parenting agreement exists “the parties shall seek ratification of the agreement by court order” Fla. Stat. Sec. 61.13.001(2)(b). After that ratification is entered, the parties have only 10 days within which they can change their mind and ask the court to undo the ratification. If the court order exists, you have to go to the county it was entered in to modify it. If the court order does not exist, you must go to the Collier County courthouse if the child lives in Naples, Florida. If the parents are not agreed to the relocation the Florida statute lays out very strict requirements as to what is necessary when you file a petition for relocation with the Florida courts: “(a) The petition to relocate must be signed under oath or affirmation under penalty of perjury and include: 1. A description of the location of the intended new residence, including the state, city, and specific physical address, if known. 2. The mailing address of the intended new residence, if not the same as the physical address, if known. 3. The home telephone number of the intended new residence, if known. 4. The date of the intended move or proposed relocation. 5. A detailed statement of the specific reasons for the proposed relocation. If one of the reasons is based upon a job offer that has been reduced to writing, the written job offer must be attached to the petition. 6. A proposal for the revised postrelocation schedule for access and time-sharing together with a proposal for the postrelocation transportation arrangements necessary to effectuate time-sharing with the child. Absent the existence of a current, valid order abating, terminating, or restricting access or time-sharing or other good cause predating the petition, failure to comply with this provision renders the petition to relocate legally insufficient. 7. Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition: A RESPONSE TO THE PETITION OBJECTING TO RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.” Fla. Stat. Sec. 61.13.001(3)(a) This petition must be formally served upon the other parent. Fla. Stat. Sec. 61.13.001(3)(b) After the other parent has been served, they have 20 days to file an objection to the relocation. If they fail to file an objection, the court will assume that the relocation is in the best interests of the child. If the other party shows it had good cause for filing the objection late, the 20 day rule may be waived. Vaelizadeh v. Hossaini, 174 So. 3d 579, 580 (Fla. 4th DCA 2015) The objection has to be very specific as well, “An answer objecting to a proposed relocation must be verified and include the specific factual basis supporting the reasons for seeking a prohibition of the relocation, including a statement of the amount of participation or involvement the objecting party currently has or has had in the life of the child.” Fla. Stat. Sec. 61.13.001(5) If the person filing the petition for relocation does not follow the statute’s stringent requirements regarding filing the petition can give the court permission to deny the relocation of the child on that basis alone (even if the relocation is in the best interests of the child). Fla. Stat. Sec. 61.13.001(3)(e) The court can then issue a temporary order preventing the relocation until the court is able to examine all the factors in a full and formal evidentiary hearing. Fla. Stat. Sec. 61.13.001(6) If the parents require the Florida court to decide on relocation, the court will consider the following: “(a) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life. The burden of proving all of these factors will be on the parent requesting relocation. Fla. Stat. Sec. 61.13.001(8) This final hearing must occur within 90 days of the petition having been filed. The court can consider the matter on a temporary basis even sooner, 30 days, if a motion for temporary relocation is also filed. If the court does order relocation, the court can reschedule the parenting time based on the relocation. Fla. Stat. Sec. 61.13.001(9)(a) This would include telephone time, Skype, or any other kind of additional parenting time that is feasible for the non-relocating parent. The court also has the power to allocate transportation costs between the parents after a relocation. Fla. Stat. Sec. 61.13.001(9)(b). What this often means is the relocating parent has to pay the non-relocating parent’s transportation costs because the relocating parent got the benefit of relocating. Bottom line, if you want to move you should hire an attorney. Contact my office and learn what all your options are with a free consultation. Via https://divorceattorneynaplesfl.com/my-child-and-i-live-in-naples-florida-but-i-want-to-move-how-can-i-move-with-my-child/ Whether you are in the midst of divorce or were never married, Florida state law controls how child support works in Naples, Florida. Florida Statute Section 61.13(1) allows the court to enter child support orders and provides some guidelines of what child support orders must include. The statue immediately instructs that the courts have the power to award child support in an amount pursuant to guidelines in Florida Statute Section 61.30. “The guidelines” are essentially the chart in this form. Take a moment to figure out your monthly gross income and the gross income of your spouse/parent of your children and see what the maximum child support would be. This is not the support number, yet. This is what the state of Florida thinks it costs to raise one to six children at your combined incomes. “Each parent’s percentage share of the child support need shall be determined by dividing each parent’s net monthly income by the combined net monthly income.” Fla. Stat. Sec. 61.30(9) Then, if one parent has less than 20% of the overnights that percentage will be the amount of child support the non-custodial parent will have to pay in child support. Keep in mind that 20% of all nights in a year is 73 nights. Every other weekend is just 52 overnights a year. Every other weekend and two weeks in the summer time is just 66 nights. Every other weekend, two weeks in the summer time, and half of Christmas break is finally 73 nights. So now we’ve established the maximum child support possibly owed. Whether you’re paying or receiving child support you need to be familiar with how this proposed maximum child support may be reduced. Here’s how the support may be reduced: Determine net income The chart actually uses net income as the input for income. “(3) Net income is obtained by subtracting allowable deductions from gross income. Allowable deductions shall include: (a) Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities. (b) Federal insurance contributions or self-employment tax. (c) Mandatory union dues. (d) Mandatory retirement payments. (e) Health insurance payments, excluding payments for coverage of the minor child. (f) Court-ordered support for other children which is actually paid. (g) Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court.” Fla. Stat. Sec. 61.30(3) Deductions for child care and health care. Then support may be reduced by child care and/or children’s health care expenses borne by either party. “(7) Child care costs incurred due to employment, job search, or education calculated to result in employment or to enhance income of current employment of either parent shall be added to the basic obligation. After the child care costs are added, any moneys prepaid by a parent for child care costs for the child or children of this action shall be deducted from that parent’s child support obligation for that child or those children. Child care costs may not exceed the level required to provide quality care from a licensed source. (8) Health insurance costs resulting from coverage ordered pursuant to s. 61.13(1)(b), and any noncovered medical, dental, and prescription medication expenses of the child, shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis. After the health insurance costs are added to the basic obligation, any moneys prepaid by a parent for health-related costs for the child or children of this action shall be deducted from that parent’s child support obligation for that child or those children.” Fla. Stat. Sec. 61.30(7) and Fla. Stat. Sec. 61.30(8) So, child care and day care get added into the total obligation and then whoever is paying those, it’s assumed that their contribution to child support is satisfied up to that amount. Is this complicated enough for you? You bet it is! You can see how these complicating factors encourage settlement between the parties instead of doing the full formula down to the last penny. Deductions because of increased parenting time Parenting time can reduce child support with its own complicated formula. Step 1: Take the total child support obligation from form 902e. Multiply your share by 1.5. Step 2: Calculate the percentage of nights the child stays with each parent. Step 3: Multiply each percentage by the total child support obligation. Step 4: Take the bigger number and subtract the smaller number from Step 3. That’s the child support obligation of the parent who has the child for less nights. The court may deviate from any of these above calculations so long as it can articulate the reason for doing so. The child support is not written in stone and can be changed if any of the above factors (almost always income) subsequently change. In addition to child support there are expenses that can effect/offset child support. Finally, no child support order will be entered without also acknowledging the exact day child support ends (the child turns 18), the current parenting schedule and what health insurance the child will be under. Fla. Stat. Sec. 61.13(1)(a)(1) If you have to pay or are owed child support and would like to learn more about this obligation contact my Naples, Florida family law office for a free consultation. Via https://divorceattorneynaplesfl.com/how-does-child-support-work-in-naples-florida/ |
About UsDivorce and other family law matters can be stressful. If you are considering a divorce in Florida, it is best to work with an experienced, dedicated divorce attorney. It is very important to get an attorney who can help you understand the legal implications of all your decisions and offer a supportive environment. When picking a divorce attorney, it is always best to work with someone who will help you determine your options, the next steps to take, and where you want to be at the end. Divorce Lawyer Russell Knight and his team of lawyers at The Law Offices of Russell D. Knight in Naples, Florida can help families during their most difficult time. Call us today at (239) 202-0455 to schedule a consultation. ArchivesNo Archives Categories |