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  1. 1. Florida Family Law Issues Caruana & Jacobs, P.A. Prepared by B. Valerie Carullo
  2. 2. Getting Married <ul><li>Governed by Florida Statutes §§741.01 – 741.24 </li></ul><ul><li>License issued by Clerk of the Court upon application </li></ul><ul><li>Application fees: </li></ul><ul><ul><li>$93.50 </li></ul></ul><ul><ul><li>$61 for couples who complete premarital preparation course (Fla. Stat. 741.0305) </li></ul></ul>
  3. 3. Getting Married <ul><li>Once application is issued, the marriage must be solemnized by a ceremony. The marriage license is valid for 60 days from the date it was issued – the marriage must be solemnized within that time. </li></ul><ul><li>Marriage can be solemnized by “all regularly ordained ministers of the gospel or elders in communion with some church, or other ordained clergy, and all judicial officers, including retired judicial officers, clerks of the circuit courts, and notaries public.” </li></ul>
  4. 4. Getting Married <ul><li>No residency requirement to get married in Florida </li></ul><ul><li>For non-residents, the marriage license is valid upon issuance </li></ul><ul><li>For Florida residents: </li></ul><ul><ul><li>If a couple attends a premarital preparation course, the license is valid upon issuance; </li></ul></ul><ul><ul><li>If a couple does not attend a premarital preparation course, the license is valid 3 days after being issued </li></ul></ul>
  5. 5. Getting Married <ul><li>For more information: </li></ul><ul><ul><li>Florida Statutes Chapter 741 </li></ul></ul><ul><ul><li> </li></ul></ul><ul><ul><li>Miami-Dade County Clerk of Courts – Marriage License Bureau </li></ul></ul><ul><ul><li> </li></ul></ul>
  6. 6. Getting Divorced <ul><li>Governed by Florida Statutes Chapter 61. </li></ul><ul><li>Florida is a no fault jurisdiction. </li></ul><ul><li>Grounds for divorce: </li></ul><ul><ul><li>Marriage is irretrievably broken; OR </li></ul></ul><ul><ul><li>Mental incapacity of one of the parties. </li></ul></ul><ul><li>Residency requirement: </li></ul><ul><ul><li>At least one of the parties must have been a resident of Florida for at least 6 months prior to the filing of the petition for dissolution of marriage. </li></ul></ul>
  7. 7. Getting Divorced <ul><li>In order to grant a divorce, the Court must have </li></ul><ul><li>1. Subject Matter Jurisdiction </li></ul><ul><li>Domicile  Physical presence in the state (for at least 6 months) with the intent to remain </li></ul><ul><li>2. Personal Jurisdiction </li></ul><ul><li>Service  Proper Notice – Due process considerations </li></ul><ul><li>Personal Service or Constructive Service </li></ul>
  8. 8. Getting Divorced <ul><li>Economic Issues </li></ul><ul><ul><li>Equitable Distribution </li></ul></ul><ul><ul><li>Support – Spousal Support & Child Support </li></ul></ul><ul><ul><li>Attorneys’ Fees </li></ul></ul><ul><li>Children’s Issues </li></ul><ul><ul><li>Parental Responsibility </li></ul></ul><ul><ul><li>Primary Residence </li></ul></ul><ul><ul><li>Child Support </li></ul></ul>
  9. 9. Getting Divorced Economic Issues <ul><li>Equitable Distribution of Marital Assets & Liabilities </li></ul><ul><ul><li>Governed by Florida Statute §61.075 </li></ul></ul><ul><ul><li>Must have personal service to have jurisdiction to distribute assets & liabilities </li></ul></ul><ul><ul><li>Statute creates a presumption in favor of an equal distribution, but it lists a number of factors that can justify an unequal distribution. See Fla. Stat. §61.075(1)(a)-(j). </li></ul></ul>
  10. 10. Getting Divorced Economic Issues <ul><li>If the Court is being asked to decide financial issues, each party is entitled to receive full financial disclosure from the other pursuant to Fla. R. Civ. P. 12.285 </li></ul><ul><ul><li>Financial Affidavit </li></ul></ul><ul><ul><li>Certificate of Compliance with Mandatory Disclosure </li></ul></ul>
  11. 11. Getting Divorced Economic Issues <ul><li>Spousal Support / Alimony </li></ul><ul><ul><li>Temporary Alimony </li></ul></ul><ul><ul><li>Rehabilitative Alimony </li></ul></ul><ul><ul><li>Lump Sum Alimony </li></ul></ul><ul><ul><li>Bridge-the-Gap Alimony </li></ul></ul><ul><ul><li>Permanent Alimony </li></ul></ul><ul><li>Governed by Florida Statute §61.08 </li></ul><ul><li>Alimony award is based on the reasonable needs of the requesting spouse coupled with ability of the other spouse to pay. </li></ul>
  12. 12. Getting Divorced Economic Issues <ul><li>Statutory factors to be considered in awarding alimony </li></ul><ul><li>The standard of living established during the marriage </li></ul><ul><li>The duration of the marriage </li></ul><ul><li>The age and physical and emotional condition of each party </li></ul><ul><li>The financial resources of each party, the non-marital and marital assets and liabilities distributed to each; </li></ul><ul><li>When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment; </li></ul><ul><li>The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party; </li></ul><ul><li>All sources of income available to either party </li></ul>
  13. 13. Getting Divorced Economic Issues <ul><li>Attorneys’ Fees </li></ul><ul><ul><li>Client retains attorney by signing engagement letter which authorizes the representation and obligates the client to pay attorneys’ fees and costs. The engagement letter usually requests a retainer be paid against which the lawyer bills. </li></ul></ul><ul><ul><li>More financially needy spouse can ask the court to award attorneys’ fees, suit monies and costs from time to time, however when and if such an award is appropriate, it will come after initiation of the dissolution action. </li></ul></ul>
  14. 14. Getting Divorced Economic Issues <ul><li>Attorneys’ Fees (continued) </li></ul><ul><ul><li>Governed by Florida Statute §61.16 </li></ul></ul><ul><ul><li>The court may, after considering the financial resources of both parties, order the more pecunious spouse to pay the reasonable attorneys’ fees of the other spouse. </li></ul></ul><ul><ul><li>The idea is to “level the playing field.” </li></ul></ul>
  15. 15. Getting Divorced Children’s Issues <ul><li>Children’s issues in dissolution of marriage proceedings and in paternity proceedings are governed by Florida Statutes Ch. 61. </li></ul><ul><li>In circuits in which a family mediation program has been established and upon a court finding of a dispute, a court shall refer to mediation all or part of custody, visitation, or other parental responsibility issues as defined in s. 61.13. F. S. § 44.102(2)(c). </li></ul>
  16. 16. Getting Divorced Children’s Issues <ul><li>In order for Florida courts to have subject matter jurisdiction to deal with children’s issues, Florida must be the home state of the child pursuant to the Uniform Child Custody Jurisdiction & Enforcement Act, Fla. Stat. §§ 61.501– 61.542. </li></ul><ul><li>Even if Florida is not the home state, the UCCJEA allows a court to take temporary emergency jurisdiction if the child or a sibling or a parent of the child has fled another jurisdiction the state because of domestic violence. </li></ul><ul><li>If there is no previous custody determination, and Florida becomes the home state of the child, then a temporary custody order becomes a permanent order if the temporary order so provides. </li></ul>
  17. 17. Getting Divorced Children’s Issues <ul><li>Parental Responsibility </li></ul><ul><ul><li>Governed by Florida Statute § 61.13(2)(c)2 </li></ul></ul><ul><ul><li>Decision-making – parents should consult and confer on all issues involving children. </li></ul></ul><ul><ul><li>The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. </li></ul></ul><ul><ul><li>Evidence that a parent has been convicted of a felony of the third degree or higher involving domestic violence creates a rebuttable presumption of detriment to the child. </li></ul></ul>
  18. 18. Getting Divorced Children’s Issues <ul><li>Parental Responsibility (cont’d) </li></ul><ul><ul><li>In ordering shared parental responsibility, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those responsibilities between the parties based on the best interests of the child. </li></ul></ul><ul><ul><li>Areas of responsibility may include primary residence, education, medical and dental care, and any other responsibilities that the court finds unique to a particular family. </li></ul></ul>
  19. 19. Getting Divorced Children’s Issues <ul><li>Parental Responsibility </li></ul><ul><ul><li>Whether or not there is a conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child. </li></ul></ul><ul><ul><li>In a domestic violence situation, a court may revoke a parent’s access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records. </li></ul></ul>
  20. 20. Getting Divorced Children’s Issues <ul><li>Time-sharing </li></ul><ul><ul><li>Florida Statute § 61.13 requires a parenting plan which must describe the time-sharing arrangements that specify the time that the minor child will spend with each parent. </li></ul></ul><ul><ul><li>The parenting plan must also address how the parents will be responsible for the daily tasks associated with the upbringing of a child, a designation of who will be responsible for all forms of health care, school-related matters, other activities, and the methods and technologies that the parents will use to communicate with the child. </li></ul></ul>
  21. 21. Getting Divorced Children’s Issues <ul><li>The court shall determine all matters relating to parenting and time-sharing in accordance with the best interests of the child . </li></ul><ul><li>It is the public policy of Florida to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. </li></ul><ul><li>There is no presumption for or against the father or mother of the child when creating or modifying the parenting plan. </li></ul>
  22. 22. Getting Divorced Children’s Issues <ul><li>For purposes of establishing or modifying parental responsibility and creating, developing, approving or modifying a parenting plan, the best interest of the child shall be the primary consideration. </li></ul><ul><li>Florida Statute § 61.13(3) sets out 20 factors that the court must consider when determining what will be in the best interests of the child. </li></ul>
  23. 23. Getting Divorced Children’s Issues <ul><li>The 20 Factors </li></ul><ul><ul><li>The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required. </li></ul></ul><ul><ul><li>The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties. </li></ul></ul><ul><ul><li>The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent. </li></ul></ul>
  24. 24. Getting Divorced Children’s Issues <ul><li>The 20 Factors (cont’d) </li></ul><ul><ul><li>The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. </li></ul></ul><ul><ul><li>The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child. </li></ul></ul><ul><ul><li>The moral fitness of the parents. </li></ul></ul><ul><ul><li>The mental and physical health of the parents. </li></ul></ul>
  25. 25. Getting Divorced Children’s Issues <ul><li>The 20 Factors (cont’d) </li></ul><ul><ul><li>The home, school, and community record of the child. </li></ul></ul><ul><ul><li>The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference. </li></ul></ul><ul><ul><li>The demonstrated knowledge, capacity and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things. </li></ul></ul>
  26. 26. Getting Divorced Children’s Issues <ul><li>The 20 Factors (cont’d) </li></ul><ul><ul><li>The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals and bedtime. </li></ul></ul><ul><ul><li>The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child. </li></ul></ul><ul><ul><li>Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. </li></ul></ul>
  27. 27. Getting Divorced Children’s Issues <ul><li>The 20 Factors (cont’d) </li></ul><ul><ul><li>Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment or neglect. </li></ul></ul><ul><ul><li>The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties. </li></ul></ul>
  28. 28. Getting Divorced Children’s Issues <ul><li>The 20 Factors (cont’d) </li></ul><ul><ul><li>The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities. </li></ul></ul><ul><ul><li>The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free of substance abuse. </li></ul></ul><ul><ul><li>The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child. </li></ul></ul>
  29. 29. Getting Divorced Children’s Issues <ul><li>The 20 Factors (cont’d) </li></ul><ul><ul><li>The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs. </li></ul></ul><ul><ul><li>Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule. </li></ul></ul>
  30. 30. Getting Divorced Children’s Issues <ul><li>Modification of Parenting Plan </li></ul><ul><ul><li>There is a presumption against modification of an initial parenting plan. </li></ul></ul><ul><ul><li>Parent seeking modification must prove </li></ul></ul><ul><ul><li>substantial change in circumstances since the entry of the order adopting the parenting plan; and </li></ul></ul><ul><ul><li>that the continuing with the parenting plan in place would be detrimental to child (because of abuse, mistreatment, or neglect) or that that modification would be in the best interest of the child. </li></ul></ul>
  31. 31. Getting Divorced Children’s Issues <ul><li>Parental Relocation with Child </li></ul><ul><ul><li>Governed by Florida Statutes § 61.13001 </li></ul></ul><ul><ul><li>Provides factors to be used to determine contested relocation, provides for notification of certain persons of intent to relocate a child and provides procedures therefor. Additionally, it requires that certain information be provided on a Notice of Intent to Relocate. </li></ul></ul><ul><ul><li>Florida Statutes § 61.13001(1) provides definitions while Florida Statutes § 61.13001(2) establishes the criteria parents, who sign a written agreement to relocate a child’s principal residence, must satisfy in order to meet the requirements of the new law. </li></ul></ul>
  32. 32. Paternity Actions <ul><li>Governed by Florida Statutes Chapter 742 </li></ul><ul><li>Effective June 2006, the Florida Legislature created a cause of action that allows a man to disestablish paternity (and to terminate a child support obligation if he is not a child’s biological father). Florida Statute § 742.18 </li></ul><ul><li>Must have DNA test results (administered within 90 days of filing) unless he does not have access to the child, in which case he must file an Affidavit stating such information and file a “Motion to Produce Child for DNA Test” </li></ul><ul><li>This legislation does not create a cause of action to recover child support that was previously paid. </li></ul>
  33. 33. Parenting Class <ul><li>Florida Statute §61.21 requires all parties involved in a dissolution of marriage proceeding with minor children or a paternity action involving issues of parental responsibility to complete the Parent Education and Family Stabilization Course, a four-hour class designed to educate parents on legal procedures for resolving time-sharing and child support disputes, the emotional experiences and problems of divorcing adults, the family problems and the emotional concerns and needs of the children, and the availability of community services and resources. </li></ul><ul><li>This course must be complete by all parties prior to the entry by the court of the Final Judgment. </li></ul><ul><li>Parties may attend an in-person class or may complete the course over the Internet. </li></ul>
  34. 34. Temporary Custody of Minor Children By Extended Family <ul><li>Governed by Florida Statutes Chapter 751 </li></ul><ul><li>Petitioner must be relative within the third degree by blood or marriage to the parent of the minor child or can also be the stepparent if the stepparent is currently married to the minor child’s parent and is not a party in a pending dissolution, separate maintenance, domestic violence action </li></ul><ul><li>Must have the signed notarized consent of the parents OR resides with and cares full time for the child in the role of a substitute parent </li></ul>
  35. 35. Child Support <ul><li>Florida Statutes §§ 61.13 & 61.30 </li></ul><ul><li>Child support obligation calculated using each party’s net income. </li></ul><ul><li>Each parent's percentage share of the child support need shall be determined by dividing each parent's net income by the combined net income. </li></ul><ul><li>Each order for support shall contain a provision for health care coverage for the minor child when the coverage is reasonably available. </li></ul><ul><li>Court may award child support retroactive to the date that the parents stopped living together, but not more than 24 months prior to the filing of the petition for determination of paternity or dissolution of marriage. </li></ul>
  36. 36. Child Support <ul><li>Florida Statutes §61.30(2)(b) allows the court to impute income on a monthly basis when a parent is found to be voluntarily unemployed or underemployed, absent physical or mental incapacity or other circumstances over which the parent has no control. </li></ul><ul><li>When imputing income, employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for the parent to stay home with the child. </li></ul>
  37. 37. Child Support <ul><li>For combined monthly available income greater than $10,000, the obligation shall be the minimum amount of support provided by the guidelines plus the following percentages multiplied by the amount of income over $10,000: 1 child: 5.0%; 2 children: 7.5%; 3 children: 9.5%; 4 children: 11.0%; 5 children: 12.0%; 6 children: 12.5% </li></ul>
  38. 38. Child Support <ul><li>Statute provides for an adjustment in a non-custodial parent’s child support obligation when the non-custodial parent spends at least 40% of the overnights in 1 year (at least 146 nights) with the minor child. </li></ul><ul><li>When a parent who is ordered to pay child support and who is awarded time-sharing with the minor child fails to pay child support, the parent who should have received the child support may not refuse to honor the time-sharing schedule presently in effect between the parents. </li></ul><ul><li>When a parent refuses to honor the other parent's rights under the time-sharing schedule, the parent whose rights were violated shall not fail to pay any ordered child support. </li></ul><ul><li>A parent cannot contract around the child’s right to support. </li></ul>
  39. 39. Child Support <ul><li>Change in Circumstances Justifying Reduction of Child Support </li></ul><ul><ul><li>Court initially entering a child support order shall have continuing jurisdiction to modify the amount and terms and conditions of the child support payments when the modification </li></ul></ul><ul><ul><ul><li>Is found necessary by the court in the best interests of the child; </li></ul></ul></ul><ul><ul><ul><li>When the child reaches the age of majority; or </li></ul></ul></ul><ul><ul><ul><li>When there is a substantial change in the circumstances of the parties. </li></ul></ul></ul>
  40. 40. Child Support <ul><li>Substantial change in circumstances means that such a change in circumstances must be “significant, material, involuntary , and permanent in nature to warrant a reduction in payments.” </li></ul><ul><li>Voluntarily and unilaterally taking oneself out of the full-time work force to pursue one’s education is not sufficient justification to warrant a downward modification in child support based on substantial change in circumstances. </li></ul>
  41. 41. Child Support <ul><li>Change in Circumstances Justifying Increase in Child Support </li></ul><ul><ul><li>There must be: </li></ul></ul><ul><ul><ul><li>A substantial change in circumstances to justify the modification; </li></ul></ul></ul><ul><ul><ul><li>A showing of an increased need for support; </li></ul></ul></ul><ul><ul><ul><li>The ability of the party moved against to pay  all based on a preponderance of the evidence. </li></ul></ul></ul><ul><ul><li>Where the change in circumstances is no more than a substantial increase in the income of the parent, child support may nevertheless be increased. </li></ul></ul>
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