Articles Posted in Mediation

What is Domestic Violence?

Under the Florida Statutes, Domestic Violence is defines as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offenses resulting in physical injury or death of one family or household member by another family or household member.” F.S. 741.28.

Is Domestic Violence Criminal?

For some, child support is an ongoing obligation that holds no light at the end of a long tunnel that can extend over 18 years.  Every situation is different and the answer as to when child support will end depends on your individual situation.  An experienced North Florida Family Law Attorney can review your circumstances and help you obtain the best result for you under the law.  

The answer to when child support ends is far from a black and white question in Florida.  Conceptually, child support is the right of each child.  Therefore, courts are reluctant to enter an order that does not provide for child support.  As a practicing Family Law Attorney, I have encountered many individuals that believe that parents can simply agree that child support will not be provided for in a final judgment of dissolution or paternity.  In Florida, a statutory guideline exists to determine what is presumptively reasonable for a parent to pay for child support.  The court can depart from the statutory amount by up to 5%, but there must be specific findings of fact enumerated in the order to justify any departure beyond the 5%, up or down.  

Under current law, when two or more children are provided for in a support order, that order must include provisions detailing when the support obligation terminates for each child.  There should be a modification of the income deduction order to reflect the changes.  There are circumstances that allow child support to continue past the age of 18.  If a child is still in high school at age 18 with a reasonable chance of graduating before age 19, child support may continue through graduation.  Where a child graduates high school prior to his or her 19th birthday, support ends at age 18.  If a child becoming an adult has a disability that would result in the child continuing to be a dependent, child support could continue indefinitely.  There are other less conventional reasons that child support might end, the death of a child, the emancipation of a child, or a situation where a child is earning enough money that no support is required (this would be a rare occasion, but there are numerous child stars that have earned more than their parents).  Under Florida Law, the only circumstance where one would be obligated to support a healthy adult child beyond the age of 19, would be where an Obligor agrees to such a duty in a contract (i.e. marital settlement agreement). 

There are cases where a non-custodial parent is unemployed and has little or no income.  Even a person with little or no income can still have an obligation to pay child support.  This is because a parent’s child support obligation can be calculated based upon his or her imputed income, as opposed to actual income.  Imputed income is income that the court determines an individual should be making with a reasonable effort.

When child support is calculated a number of factors are used to determine each party’s obligation.  The parents’ income, the number of children, and insurance expenses are the major elements in determining one’s obligation.   It is not infrequent that a parent will manipulate the system in an attempt to lower his or her income which is aimed at reducing that parent’s child support obligation.  This is accomplished in a number of ways.  People that own their own business have found numerous ways to receive what would otherwise be income through creative accounting.  One way that the court system counter’s this is through the use of imputed income.  Sometimes this involves imputing minimum wage.  Other times, it is much more complicated and a vocational evaluator may be used.  

Although unemployment can no doubt affect one’s income adversely, it may not necessarily affect his or her child support obligation.  The courts do not always use imputed income to determine one’s child support obligation.  Most situations where it is used involve a parent that is unemployed or underemployed voluntarily.  In my practice, I have primarily seen imputed income used where a parent is unemployed and the court will impute minimum wage.  There are situations in which much higher income has been attempted to be imputed.  In one divorce case with no children that I handled, a Wife of an attorney, requested a vocational evaluation to determine the attorney’s true earning capabilities.  A court will usually inquire as to why a parent is unemployed or underemployed and whether or not there is justification for it.  A case in which unemployment is caused by an accidental injury would be a likely example of one that may be justifiable.  A layoff or company downsizing could also account for why an Obligor is unemployed.  Trying to prove that someone is underemployed can be difficult and expensive.  One has to prove that there is work available and that the Obligor turned it down.  Most of the cases I have handled involving the Dept. of Revenue are examples of situations where it is impractical or not economically feasible for the Dept. of Revenue to pay to have a vocational evaluation.  One example of a recent case I came across where there is little doubt that a father has a legitimate excuse (arguably) for not working is where a father must stay home to care for a young child with Cerebral Palsy. 

Florida requires parents who are divorcing or are subject to a paternity action to have a parenting plan in place.  A parenting plan can be agreed to or simply entered by the court.  However, once the plan is entered into the court as an order, it is enforceable through the court system.  Violations of parenting plans can be insignificant, or they can lead to great interference with the rights of a parent and a child.

In Florida, timesharing is taken into account in calculating child support for a parent that exercises at least twenty percent of the overnights with a child.  Florida’s child support guidelines specifically account for such.  However, not every parent takes advantage of all of the overnights that they are awarded.  Normally, you cannot retroactively adjust child support.  However, failure for a parent to exercise substantial timesharing can have a serious economic impact on that parent, as the Florida Statutes authorize retroactive adjustments.

A parent’s failure to regularly exercise the time-sharing schedule set forth in the parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph is retroactive to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule. F.S. 61.30(11)(C). 

Mediation in divorce and family law cases is a way for the people involved to directly take part in the outcome.  Otherwise, strangers who know very little about the true nature of the dispute will make decisions for those involved in the case.  Mediation is a process where you have a neutral third person acting as a referee of sorts to help the parties involved see if an agreement can been reached.  Any issue can be resolved in mediation, from child support and alimony to the division of marital assets.  The mediator is not on anyone’s side, but uses logic, experience, and his or her knowledge of family law to help each side understand the other person’s viewpoint and what could possibly happen if the case were to go to trial.

Mediation in Florida

Balance through mediation

Mediators can differ a lot in style, but in general, he or she will start with one side and explain the rules and the process to the person.  The same will be done for the person on the other side.  In a typical divorce case, the parties involved will be the husband and his lawyer on one side and the wife and her lawyer on the other side.  Although with same sex marriages being more prevalent, variations of this scenario are possible.  Some mediators will do the initial process disclosure with both parties present in the same room in order to save time.  Afterwards, the parties are split, and each side will explain its position and may make an offer to the other party, or they may send an invitation to receive an offer from the other side.

A client walked into Apple six months ago, trying to get his alimony modified. He was not sure about hiring an attorney because he felt his previous attorney was a tiger in his office but a wallflower in Court. We finally asked us him to let us try to solve his family law problem and made a commitment to treat him like our most important client. His reluctance gave way to confidence in our firm and he hired us.

The case was a garden-variety modification of alimony, one of the most heavily litigated types of family law cases. The standard for a modification of alimony is completely at the discretion of the court. The court does not have an obligation to modify; it just has the option…that is if your attorney proves the three elements. To receive a modification of alimony the petitioner, the person asking for the modification in layman’s terms must demonstrate that three things have happened since the original divorce:

• The party asking for a modification must demonstrate a material change in circumstances. That means things have drastically changed for one party for the better or the worse. Sickness or long-term loss of employment can be examples of such material changes.

divorce mediation.jpgOne of the questions that many people ask when they come into my office is “do I need to have a lawyer at mediation?” While each St. Augustine divorce case is different, the short answer is “Yes.” Even if you have begun your St. Augustine Divorce case on your own, having a lawyer at any stage of your divorce, a really good idea to have at your mediation.

Many judges will order divorce proceedings to go to mediation before a judge will make a final determination and mediations can present several unique circumstances that you may not anticipate or know exactly how to deal with. There are several things to keep in mind if you plan on not hiring a St. Augustine Divorce Attorney to represent you at mediation:

1) The mediator cannot and will not give you legal advice like a St. Augustine Divorce Attorney can. A St. Augustine Divorce Attorney will ensure that you have the information necessary to make an informed decision.

fork in road.jpgWhen divorcing in Jacksonville, Florida, couples have one big decision to make regarding how their divorce process will play out. Divorcing couples can choose to go down the often less stressful and short road of an uncontested divorce by deciding they will be the decision maker in the divorce process or they can decide to go down the long and often tumultuous road of a contested divorce giving full decision making power to the Family Law Judge.

If divorcing couples are smart they will save time and money by choosing to attend mediation (which is almost always court ordered in Jacksonville, Florida) and come to an amicable agreement in regards to the splitting of assets and debts and time with any minor children. If parties choose to take this route their divorce can be completed within a matter of a few months.

However, taking the uncontested/mediating avenue is not always an option. Sometimes parties can just not agree. After all, roughly 10% of divorces end in a trial. When this occurs a Judge decides the parties fate. It has been my experience, as a Jacksonville Divorce Lawyer, that neither party is truly happy with the Judge’s decision. Not only may the parties’ be unhappy with the Judge’s ruling, they likely spent a substantial amount of money in attorney’s fees and the process could have lasted many many months.

argue.jpgHave you been wronged in your marriage and want to file for divorce? Do you want to make the divorce process as miserable and prolonged as possible for the spouse who wronged you? As a Jacksonville Divorce Lawyer I recommend thinking past your anger and looking at the bigger picture. Divorce is obviously an unpleasant procedure, but divorcing couples should consider doing what divorce lawyers do in their own divorces.

Divorce lawyers going through a personal divorce do their damnedest to stay out of the courtroom. They know all to well that no one wins when divorcing couples go all the way to trial. They know going to court, “wastes energy, time, and money and is a last resort; it is something they will consider only when there is no other choice.”

Divorce lawyers have vicariously experienced their client’s frustrations during the divorce process. One such frustration is the client’s desire to inform the Family Law Judge of all the injustices, dishonesty, betrayal, adultery, etc… However, in reality, if the client is given the opportunity to testify in front of the Judge they are merely allowed to speak when answering a question posed to them. There is no, “Judge he did this to me and didn’t do this, that or the other.” Oh, and of course, the rules of evidence will only allow that certain testimony be presented.

divorce mediation.jpegIn the vast majority of divorce cases (and all family law cases for that matter) in Duval County, Family Law Judges order parties to attend Mediation prior to trial. As a Jacksonville Divorce Lawyer, I know that the majority of these cases can be settled at Mediation.

What exactly happens at Mediation? Well, in Mediation, a neutral third party (the mediator) helps negotiate a marital settlement agreement between the divorcing couple. However, it is important to know, the mediator cannot force either party to agree to anything. The decision-making is truly left up to both parties, which is of course completely opposite then if the parties were to go before a Judge. The mediator can meet with the parties together and/or separately to see if a compromise can be reached, which tends to be far more relaxed and informal then trial.

If an agreement is reached during the mediation, it is immediately reduced to writing. Which then, basically becomes the final divorce decree, and is legally binding. After an agreement is made and reduced to writing at mediation all that is left to do is have the Judge sign the agreement and thus make the divorce final.

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