Articles Posted in Parental Rights

There may be some negative stereotypes that are associated with Prenuptial Agreements.  Typically, neither party wants to detract from the blissful atmosphere typical prior to a wedding.  However, a Prenuptial Agreement can also help preserve a marriage.  This is because there is certainty as to how things will terminate should the marriage not last.

The thought alone of creating a prenuptial agreement can cast a negative light upon a wedding.  To some, the contemplation of a prenuptial places a negative light upon wedding preparations and the future of the relationship.  Having to plan for divorce is an admission that a relationship is not permanent.  That said, it is far better to deal with the details of how a relationship is going to end (should it end) while a couple is reasonable and loving compared with being negatively affected by the hostilities and uncertainties of divorce.

In Florida, there are several types of alimony that courts may consider.  There are factors that affect the amount of alimony that can be provided for such as, length of a marriage, the equality of earning ability between the spouses, and the assets that a court must divide.  Florida law creates a rebuttable presumption against permanent alimony when a marriage is 7 years or less, which under the Florida Statutes is defined as a short term marriage.  However, there is a rebuttable presumption for permanent alimony awards in marriages that are long term (greater than 17 years).  Moderate term marriages are defined as between 7 and 17 years and no presumption exists.

It is important to know your rights following a divorce.  The final judgment of dissolution and the parenting plan determine the legal playing field for the future.  However, most issues are dynamic.  Children get older and their schools change and sometimes their relationship with parents change.  Incomes change, which can directly impact child support and people sometimes desire to relocate where child custody can be an issue.  There are a myriad of circumstances that should be re-evaluated following divorce. 

In Florida, the standard used to file an action to modify a final judgment is that a substantial change in circumstances occurred that was not anticipated at the time of entry of the final judgment.  It does not always make practical sense to file an action to modify a final judgment just because a party can do so.  The relationship that a party has with a former spouse is important, especially where children are involved.  Every time a party considers filing a supplemental petition (this is the instrument filed requesting modification of a final judgment), one should consider how such will impact their relationship with their former spouse and other legal consequences.  I frequently have parties coming to me that wish to file for a modification.  I typically find that they have only evaluated a part of the effect of seeking a modification.  For this reason, it is imperative that one review the ramifications of an action for modification with an experienced family law attorney.

Although a divorce is designed to deal with all of the legal issues concerning dissolution, the reality is that there are sometimes issues that are left unresolved.  On occasion there are assets that neither party put on their financial affidavits that require addressing post dissolution.  One example of such an issue involved a divorce of a long time married couple in which neither party included the child’s prepaid college fund account on their financial affidavit.  The fund was cashed out by the Father/Former Husband after the divorce without permission from the court or the Mother/Former Wife.  Since the asset was not listed on either party’s financial affidavit, the judge considered the asset marital property and ordered the Former Husband to pay back one half of the funds post dissolution.

An uncontested divorce is a proceeding to return two married persons to the status of being single in which all of the details of the divorce are reached with an out of court agreement.  As a practicing family law attorney for more than 15 years, it is my opinion that overly optimistic litigants frequently find that an uncontested divorce may be more difficult to achieve than first thought.  Sometimes both spouses agree that a divorce is the correct thing to do in their circumstances.  If a couple contemplating a divorce can agree on all of the important issues then an uncontested divorce will typically benefit the family.  The critical issues that people spend the most effort fighting about are child custody, child support, spousal support, and property distribution.

Litigants sometimes find that dealing with the mechanics of settlement are challenging when they attempt to memorialize their intentions in writing.  The process of getting to a consented to outcome involves some negotiation in most cases.  A self-represented individual will benefit substantially by consulting with a qualified family law attorney prior to signing a marital settlement agreement or a consented to final judgment.  This author believes that people are much more likely to honor orders created by negotiation, as opposed to orders emanating from a contested final hearing before a judge.  A litigant that is being guided by qualified counsel is more likely to negotiate a favorable outcome over a Pro Se Litigant, since an understanding of the legal issues is necessary to negotiate knowledgeably.

Many of the issues that one has to deal with during a divorce are complex when dealing with custody and financial issues.  Parties that are able to amicably settle their divorce in writing typically have fewer post judgment problems.  Prior to negotiating a marital settlement agreement, it is important to consult with an experienced family law attorney to help draft the legal documents required to accurately reflect the agreement.

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). 

Child support is essentially a payment from the higher income parent to the lower income parent.  Child support and timesharing have an interesting relationship.  The law values the child and parent relationship.  A parent’s right to timesharing is not dependent upon being current in child support.  It is a frequent mistake among individuals to assume that timesharing can be denied if an Obligor parent fails to keep up with his or her child support.  Such has no such relationship to Florida law.

Another misconception is that child support must go to the child specifically.  However, it is a general purpose reimbursement which covers the cost of living in a household with children.  The amount of child support paid by each parent is dependent upon the amount the Florida child support guidelines determine.  The number of overnights the child or children spend with each parent is one of the factors used to decide a parent’s child support under Florida’s guidelines.  There is a chart that is published within the Florida Statutes that shows the amount of child support a child is entitled to.

Florida law requires that generally, where there are minor children then child support should be paid.  The principle behind this general rule is that entitlement to support belongs to the children and parents cannot decide not to pay support.  There are situations in which a parent does not have a child support obligation.  In Florida, this must either be because the amount of support owed is very minimal, as determined by the guidelines, or the specific reasons must be enumerated in the child support order.  The law allows up to a 5% deviation from the guidelines without further enumeration.  Florida has a form known as a Child Support Guideline Worksheet which is required to be filed in every divorce and paternity case where child support is determined.  The guidelines account for some of the specific costs of supporting a child, such as health insurance and uncovered medical expenses.  As long as a parent is awarded at least 20 percent of the overnights, overnights are a specific factor used to determine a parent’s support.  Items like rent, electricity, water, and food are essential items that are not specifically accounted for in the guidelines.  Other items that are specifically accounted for under the guidelines are taxes, daycare, and medical costs.

Adultery can certainly be a factor in a divorce.  However, adultery is only relevant for limited purposes.  Florida is sometimes referred to as a no-fault divorce state.  This only means that proving fault is not required to obtain a divorce.  There are only two reasons that are acceptable in Florida to obtain a divorce.  The most common reason is that the parties have irreconcilable differences.  The other is that a spouse is mentally incompetent.

A Court can consider adultery from either spouse, as well as the circumstances involved in making a determination concerning alimony.  A considerable amount of discretion is placed in a judge’s hands in determining if alimony should be paid and if so, how much should be paid.  F.S. 61.13(3)(f).

Although technically, adultery is not a factor that the court considers in making custody (now know as timesharing) decisions, adultery can be a factor regarding custody issues.  The Florida Statutes do allow the court to consider the moral fitness of a party in making a custody determination.  F.S. 61.13(3)(f).  If a parent can show the court that a parent’s adultery will affect the child, the trier of the fact can consider whether a party’s adultery impacts the best interest of the child or children.  In the case Jacoby v. Jacoby, the court determined that the mere possibility of adultery having a negative impact regarding timesharing is not sufficient to make the adultery a consideration.  Packard v. Packard, 697 So.2d 1292 (1st DCA 1997).  The important dynamic is whether a party’s adultery will have a direct effect on the welfare of a child.  Dinkel v. Dinkel, 322 So.2d (Fla. 1975).

In Simmonds v. Perkins, No. SC17-1963 (Fla. 2018), the Florida Supreme Court decided to take up the question of whether a biological father is entitled to rebut the common law presumption that the mother’s husband is the legal father of a child born to an intact marriage, where the mother or her husband object to allowing such rebuttal.  The Court held that the biological father may rebut the presumption of legitimacy when he has “manifested a substantial and continuing concern” for the welfare of the child.  The presumption of legitimacy may be overcome by a “clear and compelling reason based primarily on the child’s best interests.”

fatherThis case involved the child’s mother, Treneka Simmonds, and biological father, Connor Perkins, and their daughter.  When Perkins and Simmonds were together, Perkins was never told Simmonds was married to a man named Shaquan Ferguson.  When Perkins did find out Simmonds was married, she told him she was married for “immigration purposes” and was going to get a divorce.  Perkins was there when the child was born, taken the child to the doctor, enrolled the child in daycare, and even had sole physical custody for awhile.  The child called him “daddy.”  Perkins’ mother is also known as her grandmother.

Perkins decided to file a petition to determine paternity, timesharing, and child support.  Simmonds moved to dismiss the action based on it being barred by the common law presumption of legitimacy because Simmonds was married to Ferguson.  Perkins then added Ferguson as an additional party, amended his petition to seek disestablishment of Ferguson’s paternity, and alleged it would be in the child’s best interests for him to be recognized as her legal father.  Ferguson also moved to dismiss under common law.  The trial court dismissed Perkins’ petition because of previous Fourth District precedent stating that the putative father cannot seek paternity when the child was born in an intact marriage and the married woman and her husband object.

In 2016, Angelina Jolie filed for divorce from Brad Pitt after he got into an altercation with his son Maddox on a plane that resulted in an FBI investigation.  You may have heard about the custody battle with their six children that has ensued.  Recently, a judge apparently ordered “new restrictions” regarding Angelina’s participation in how Brad interacts with the children.

Child custodyThe Judge wrote, “[The children] not having a relationship with their father is harmful to them.  It is critical that each of them have a healthy and strong relationship with their father and mother.”  The Judge also state, “If the minor children remain closed down to their father and depending on the circumstances surrounding this condition, it may result in a reduction of the time they spend with [Jolie] and may result in the Court ordering primary physical custody to [Pitt].”  The Judge created a visitation schedule for Brad to see his children over the summer with the children continuing to receive therapy.

It seems the Judge is trying to prevent parental alienation.  Parental alienation is the psychological manipulation of a child into showing unwarranted fear, disrespect or hostility towards a parent and/or other family members.  Check out 9 warning signs that parental alienation might be present here.

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