Jacksonville Divorce Lawyer Blog

March 2, 2012

How Can Alimony Be Paid In Florida?

Alimony in Florida is based on a number of factors, including need for alimony and the other party’s ability to pay it. Even if these factors can be proven, there is always the questions of, “How much will I get or pay?”; “How will it get paid?”; and, “Will it get paid?” Answering these questions is not always the easiest thing for Florida divorce lawyers, including those in the Jacksonville and North Florida region because each judge has their own way of answering these questions. Without a State mandatory calculation for alimony, ultimately the decision rests with the judge if the parties cannot otherwise agree.

First, the question of qualifying for alimony. There are multiple forms of alimony in Florida, including bridge-the-gap [between married and single life]; rehabilitative; durational; permanent periodic; and lump sum. All of which have their own qualifying definitions under Florida Statute 61.08. Each are based on numerous factors, including length of the marriage, contribution to the marriage, lifestyle during the marriage, etc.

In addition, factors such as need and ability to pay are qualifying determinants.

February 29, 2012

What Can I Do in Florida If the Other Parent is Saying Bad Things About Me to Our Child?

By Wood, Atter & Wolf, P.A.

Florida family law cases involving children, custody, time-sharing, parental responsibility, and a parenting plan can be challenging not just in the initial case, but as time goes by. When these things are fought over, the parents often loose sight of the fact that they don’t just have to raise a child while the court proceeding is going on, but until the child actually turns 18 and moves out of the house. Jacksonville and other North Florida courts try to keep the level of parental animosity to a low, but ultimately the court only has so much control over the individuals. However, one continuous arm the court and the parents have is when the parenting plan gives specific directions about speaking negatively about the other parent to the child, interfering with the child’s relationship with the other parent, or simply alienating the child from the other parent.

In most parenting plans, there is specific language regarding the relationship of the parent with the child, especially when it comes to matters of the other parent. For example, in many cases, there may be language like, “Neither parent shall disparage the other to the child, speak negatively in front of the child about the other, or hinder the other parent’s relationship with the child in anyway.” The reason this language or similar language may be in an order is because the impact on the other parent’s relationship with child may be severe damage. The parenting plan helps the parents understand what they can and cannot do, or should and should not do as parents raising a child in a divided home. When the parenting plan is placed into a final order and signed by the court, it becomes enforceable, meaning that there can be court recourse if a parent does not abide by the order.

When raising children, it is important to maintain the standard of, “the best interest of the child,” and not, “the best standard for me.” If a parent violates the parenting plan and begins to alienate the child, then action can be taken with a contempt action. In a Motion for Contempt, the court looks at the order for clarification of what should be done by both parties. Then, the court hears testimony and evidence regarding how the order has been violated by one of the parties. If there is evidence presented that shows that the child has, in fact, been exposed to negative, derogatory, or alienating words or actions by one parent against the other, then that parent may be held in contempt. If the same actions continue, then the parent being alienate may go back to court on more than one occasion to have the other parent held in contempt. Contempt is a voluntary and willful action of one party that is against the court order.

February 27, 2012

Time-Sharing, Visitation and Custody in Florida

By Wood, Atter & Wolf, P.A.

In Jacksonville, Florida and other portions of North Florida, the courts are not typically keen on a 50/50 visitation schedule in a divorce or paternity matter. Visitation and custody battles in Florida have taken a legal overhaul in the last few years by the legislature so as to help parents not fight from the very beginning. The changes have impacted how we refer to these issues of visitation and custody by referring to these topics as time-sharing and parenting plans. In a Florida divorce or paternity case, the goal is for the court, the parties, and their respective attorneys, to reach a conclusion that is in the best interest of the children. However, many parents have interpreted time-sharing language to mean that they start and end with equal visitation with the kids. However, the impact the schedule may have on the children is not necessarily in their best interest because parents have different ways of parenting, doing homework, establishing chores, and the like. So, the courts have tried to look at many factors in determining time-sharing plans, including the above listed things, the proximity of the parent to the kids’ schools, the communication between the parents, the relationship of the parents with the kids, etc.

In Florida, determining a time-sharing plan that works for the parents and the children can be a challenge. Often, parents feel that they want 50/50 time-sharing for multiple reasons, sadly, including the fact that it will reduce their child support obligation. Parents have to understand that whether the children are living in your house 50% of the time or spending 90 overnights (i.e. standard guideline time-sharing in North Florida) you are still paying for them, just the payments are different. Child support is determined by a state regulated child support calculations that factors in things like the income of both parties, which parent is paying for health insurance and daycare for the kids, etc. By looking at the incomes of the parties, the calculation actually determines what the household income for the child would be had the parents lived together. Then, based on the overall household income, the money is based on each parent’s contribution thereto. For example, if the household income would be $100,000 and each parent makes $50,000, then each parent’s pro rata share is 50% of the household income. Then, credits are given for the party making health insurance and daycare payments.

February 24, 2012

Failing to Take a DNA Test in a Florida Paternity Case May Determine Outcome

By Wood, Atter & Wolf, P.A.

Unlike mothers, fathers are not as easily determined to the parent of a child born out of wedlock and in Florida, the mother and/or the Department of Revenue may bring an action to establish paternity and child support. In a Florida, if the Department of Revenue is involved in a case it is typically due to the mother requesting some government aid for the child, such as Medicaid or Florida Kid Care. When the Department of Revenue is involved, the mother is asked to provide all information regarding the potential father of the child and the Department charges the mother a nominal fee to establish paternity and child support through the court. Since the father is not determined by simply signing the birth certificate, the petitioner, mother and/or Department of Revenue, may request a paternity test in order to scientifically establish the paternity of the child. In Jacksonville and most jurisdictions in Florida, the court will often require a DNA test even if was not requested in the initial petition simply to guarantee proper paternity is established.

DNA testing requires the putative or presumed father to comply with the DNA testing, the facility is often provided by the court, but the parties are typically responsible for paying for the test. The mother is also required to comply by taking the child to the DNA facility for the test to be complete. The DNA samples are then compared and an analysis or report is provided to the court. Cooperation by both parties is stand mandated by Florida Statutes.

If either party does not comply with the court order to have the DNA testing completed, then the judge can enter an order against the offending party. What this means, is that if the mother/guardian does not take the child for DNA testing, then the court may find that the presumed father is not the child’s father and is not obligate to pay child support. Department of Revenue o/b/o M.J.W. v. G.A.T.,Jr., 37 FLW D28 (Fla. 2nd DCA December 28, 2011). The impact of noncompliance would basically, according to the court, meet the standards established under Florida Statute 742.18(7)(b), which determines the disestablishment of paternity for noncompliance with DNA testing.

February 22, 2012

Florida Child Support Can Be Reduced or Increased Due to Visitation

By Wood, Atter & Wolf, P.A.

Child support in Florida cases is based on the income of the parties and the total income of a shared household. The pro rata share of each party’s income is a determining factor in the overall calculation of child support. As a Jacksonville lawyer handling child support cases, I try to educate my clients on what child support is meant to provide, including a roof over the child’s head, electricity and water for the child, gas in the car to transport the child, etc. A factor in the determination of child support is time-sharing or visitation exercised by the parties. In Florida, there is an automatic calculation of time-sharing at 20% of the time and anything over that amount may be a factor in reducing the amount of child support. In addition, the Florida child support guidelines provide credits for multiple items, including but not limited, daycare expenses and health insurance. In determining the income of the parties, the Florida Statute allows for the income of the parties to be determined based on taxable and nontaxable income, so if a party is in the military that party’s BAH and BAS pay will be considered income.

Florida family law cases are often required to go to mediation to determine child support, time-sharing (e.g. visitation or custody pre 2008), and the like. A mediated agreement is an agreement between the parties regarding all aspects of the case and it is reduced to writing and entered as an order with the court. However, if the parties do not have a time-sharing plan that is ultimately formalized into writing and entered by the court, then child support may be impacted. For example, if the case ONLY involves child support, such as cases brought by the Florida State Department of Revenue, then child support will be calculated without a time-sharing plan.

Sometimes, parents decide that they do no need to go to court to establish a time-sharing plan because they already have a verbal agreement and there are no visitation issues associated with their case. As such, the parties may allow the court to determine child support without actually entering a true time-sharing plan with the court. However, in 2011 the 1st District Court of Appeals in Florida made it clear that child support calculations may only defer from the usual 20% time-sharing credit IF the time-sharing plan is reduced to writing and entered as a time-sharing plan with the court. In the case before the appellate court, the parties had agreed to a verbal time-sharing plan where the nonresidential parent had the child 40% of the time. The appeals court found that unless the time-sharing plan was reduced to writing and approved by the court, then the 40% time-sharing that had been established by the parties could not reduce child support. Therefore, the paying party was required to pay more than would have been necessary had the time-sharing plan been entered with the court. DOR o/b/o Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011).

February 21, 2012

Florida Divorce and Custody Disputes that Lead to Parental Abduction: What To Do To Recover Your Child

By Wood, Atter & Wolf, P.A.

In a Florida family law case involving children, such as divorce, paternity, or change of custody, emotions can run rather high. Unfortunately, stress often surrounds these experiences and the consequences of the stress, if not handled properly, can lead to horrible actions by one parent. A parent who feels their world is caving in may turn to extreme acts, like abducting their child. Florida law has accepted, like most states, the the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which rules that initial child custody determinations should be made by the child’s home state. A child’s home state is the state in which a child has lived with a parent or guardian for at least six (6) months. It also determines that if a parent, in fact takes a child, the child should be returned to the home state unless an emergency lead to the fleeing (e.g. physical abuse of the parent and/or child by the other parent).

The UCCJEA allows for protection of the parents and the child by providing for legal action to be taken if a parent were to abduct the child. In the United States, there are numbers cases of parent abduction each year and having a protection like the UCCJEA is vital to recovering the children. What it allows is for the nonoffending party to file a petition with the court for an emergency child pick-up. The petition must state the actions of the other parent and give a place where the parent and child are most likely located. Once an order is entered in the home state of the child, like Florida, then the order must be adopted by the state where the child is physically located. Once the order is adopted, it is enforceable against the parent with the child and the parent is required to return the child to the home state. If the offending parent refuses or fails to do so, then the parent may be charged with kidnapping, not to mention the impact that parent’s actions will have on any custody dispute pending in the court.

In Florida, there are many individuals that moved from other countries and as a family law attorney, I often have clients concerned that the other parent will return to his/her country with the child. If a child is taken, without consent of both parents, to a different country, then the Hague Convention on International Kidnapping and Child Custody will have to be employed. The countries that have adopted this action often work diligently at having the child returned to the United States. However, not all countries have adopted the Hague Convention, which can lead to additional jurisdictional issues. A passport for a child requires both parents to consent by signing the application; if this is a concern of yours then you should deny the child getting a passport.

February 17, 2012

Can Florida Parents Charged with Domestic Violence be Awarded Custody or Visitation Rights?

By Wood, Atter & Wolf, P.A.

In the state of Florida, if a parent has been convicted of misdemeanor, first degree or felony domestic abuse charges, the judge may rule that it is not in the child’s best interest to award custody or time-sharing rights to that parent. The same is true if the parent is in prison for a crime that would warrant terminating parental rights. If a parent is denied parental responsibility by the courts, he or she has the right to ask a judge to consider evidence that might prove that it would not harm the child to allow the parent custody or visitation rights. The court’s job is to look at the fitness of the parents and what is in the best interest of the child. As a Jacksonville divorce and family law attorney I often have parents ask whether they will be granted time-sharing (visitation) or if they have a chance of getting majority time-sharing (custody). When evaluating this question, it is important to look at the historical nature of the family unit, the likelihood of the parent facilitating a good relationship with the child and the other parent, and multiple other factors. When there are reports, accusations or evidence of abuse in the family, then the question of custody is harder to answer because those factors will be considered by the court due to the interest in not putting the children in harm’s way.

If the parent has not been convicted of a domestic violence or child abuse offense, the judge will generally consider evidence of abuse, even if the accusing party has never filed an injunction for protection from domestic violence against them. The judge will use the evidence to determine what type of parental rights the alleged abuser is entitled to. The accused or convicted, may present evidence and testimony to dispute such accusations or to show the judge how things have changed since the incident occurred. If certain activities have been completed, including counseling, then the court may take that into consideration in determining whether there is still a propensity to commit violent acts.

If an abusive parent is awarded visitation rights, the other party may request that the visits be limited or supervised. It will be up to the judge to decide whether or not the abuser represents a risk to the child or the other parent that warrants supervised or restricted visitation. A neutral third party, like the Family Nurturing Center in Jacksonville, Florida, typically does supervised visitation. The center actually observes the visitations and records them for additional protection of the children. If supervised visitation or time-sharing is ordered and over time there are no issues, then the parent observing such time-sharing may ask the court to modify the time-sharing plan to stop the supervision, but the court will again evaluate the case based on the best interest of the child.

February 15, 2012

Florida Custody Battle Changes and How to Pursue Time-Sharing

By Wood, Atter & Wolf, P.A.

Florida divorce and paternity cases often have a child component, which many refer to as a custody battle. Custody obviously refers to which parent will have the children after the divorce or paternity action is over and ultimately determines which parent will be responsible for paying child support. The term, “custody battle,” initiates any child action with a sense of war between two parents. In 2008, the Florida legislature changed child custody to “primary time-sharing parent,” in an effort to alleviate the idea of going to war over children and ultimately, simply phrasing the legal action so that parents understand that they are, in fact, sharing the children’s time. While the law changed in 2008, most Floridians, at least in Jacksonville where I practice divorce and family law, do not know the new term. The reason is two-fold, one reason is that like anything new, it takes time to get used to and a four year time-frame really isn’t that long after a generation grew up with the movie Kramer vs. Kramer, all revolving around a custody battle.

The change in the law is one that is designed to help parents focus on the overall outcome, the sharing of their child and not focus on who has the child more. However, even with name changes, the overall picture is still the same. When involved in a custody or time-sharing dispute in Florida, the law has not really changed as far as determining the correct parent to have majority time-sharing. The court is responsible for looking at a number of factors, including which parent is more likely to facilitate an ongoing healthy relationship with the child and the other parent, the stability of the parent, the parent’s ability to take care of the child, etc. When two parents fight over the custody or time-sharing issue, the court can actually order the parents to participate in a Custody Evaluation or Social Investigation. The social investigator actually meets with the parents and the children individually and sometimes in a parent/child session to see how the parent and child interact with one another. In addition, the social investigator may conduct a home study where she/he goes to the home of each parent to see the environment the children would live in.

Once the investigator has interviewed the parents and children, she/he may find it necessary to speak with other family members, school officials, friends, etc. to get a better understanding of the family dynamics. If there are issues of mental health or physical health issues of either parent, then the investigator may require medical records be provided so that a full evaluation can be completed. The social investigator takes all components of the investigation to reach a conclusion as to what is in the best interest of the children. While the social investigator’s opinions are helpful to a court, the court is not bound by investigator’s overall conclusion and the court must still look at all factors before determining which parent is most likely going to provide the safest, healthiest, most stable environment for the children.

February 13, 2012

Should Obesity Be Considered in Determining Custody, Time-Sharing, or Other Factors in a Florida Divorce or Paternity Case?

By Wood, Atter & Wolf, P.A.

Florida divorce and custody battles (e.g. time-sharing battles) often center on the parenting styles of each party, the relationship of the children with each party, and the ability to care for the children in a safe, stable environment. When these things are questioned it can lead to legal arguments that center on the children and their academics, health, social environment and the like. As a divorce and family lawyer in Jacksonville, it has come to my attention over the years that sometimes the health of the children is more than simply getting check-ups, but also receiving the proper attention to their diet, school activities, etc. When these battles ensue, often fingers are pointed for things such as neglect, abuse (emotional or physical), lack of participation in homework and the like. However, in a 2009 Time Health article, the question of obesity in children has risen as a concern in custody or time-sharing disputes given the rise in the epidemic over the years.

The question, according to the article, is “Should morbidly obese children be taken from their parents?” While I do not see the Florida Department of Children and Families coming into everyone’s home with this issue, I can see how it may impact a legal case between two parents, especially if one parent is seeking a modification from a prior custody or time-sharing order. In order to file for a modification of time-sharing in Florida you must show a substantial change in circumstance. The question then would become, “Is the child’s excessive weight gain a substantial change in circumstance?” I believe, based on the health of the child, that the question may prompt legal action in the future.

According to the Time Health article, experts seem to be debating whether parenting styles can impact a child’s risk of obesity, thus making it healthier for the child to be out of the home of said parent. The concern is that if the child is gaining weight in the current environment, then there may be cause to remove the child to allow the child a chance at a healthier lifestyle in a different environment. The concern is a real one given that, “Childhood obesity can lead to a host of health problems, including Type 2 diabetes, which until recently was primarily a problem seen in adults. Overweight children can also develop insulin resistance, hypertension, high cholesterol, sleep apnea and orthopedic problems and go into early puberty,” according Time Health.

February 10, 2012

Is There a Course Required in a Florida Divorce or Paternity Action

By Wood, Atter & Wolf, P.A.

In Florida divorces involving children and paternity cases involving time-sharing and parenting plans (custody/visitation), the parties must attend a course known as the Parent Education and Family Stabilization Course. Each jurisdiction may refer to the course by a different name, such as in Jacksonville, it’s Children First in Divorce, but the concept is all the same. As a Jacksonville divorce and family law attorney, I try to educate my clients on the importance of the course. These programs are mandated by Florida statute 61.21 and are developed and approved by the Department of Children and Families. The concept of the course is to teach parents the best way to communicate with each other and the children during the pendency of the divorce or paternity case.

The course program is required to be completed by both parties at the initiation of the case. The person that files the original petition has 45 days from the date the petition was filed to show completion. The person served with the petition is required to complete the course within 45 days after receiving the petition. The idea is that the course helps the parties through the divorce and paternity case better understand the emotions of the other party, but especially the children. If the class is not taken early on, then it may lead to more misunderstandings and poor parenting through the court process.

The course is required to have at least the following components taught, in accordance with Florida Statute 61.21(2)(a):