Articles Posted in Parental Rights

What Is a Parenting Plan?

A parenting plan is an all-inclusive plan that determines where a child lives, goes to school, and the child’s interaction with his or her parents.  Florida divorces and paternity cases require a parenting plan.  The parenting plan helps determine which parent will be responsible for the child, and when and how they will timeshare with the child. 

What is a Parenting Plan Based Upon?

Many clients in Jacksonville, Forida are confused about child support and 50/50 custody, now known in Florida as timesharing.  Many parents in Jacksonville believe that by having equal timesharing or 50/50 custody that they will not have to pay child support. This is not necessarily true. The amount of child support each parent is required to pay, is pre-determined by Florida law and in most cases, one parent pays child support to the other parent. A Jacksonville Child Support Lawyer can help review your case and ensure you are paying or receiving the correct amount of child support for your case.

How Does a Jacksonville Attorney Calculate Child Support?

Both parents are legally required to contribute to the support of the child. The amount is predetermined by the Florida Child Support Guidelines. Florida utilizes what is known as in “income shares model” to determine the amount of support.  Child support is calculated by adding the monthly net incomes of both parties together.  Based on the combined amount of both incomes, an amount of child support is already determined by law.  Each parent’s income may be offset by childcare fees, health insurance costs paid for the child, and timesharing (the number of overnights each parent has with the child).  So long as the child spends at least 73 nights with a parent, they will receive a child support credit for timesharing. In some situations, where a parent is paying extraordinary medical expenses or private school tuition, the court may also consider offsetting these expenses as well.

What is Incapacity?

Incapacity is when a person is either under the age of 18 or is unable to provide food, clothing, shelter, or unable to manage their business and financial affairs.  Guardianships are frequently created when difficulties present themselves in an individual’s life and his or her ability to deal with life’s affairs is hampered or non-existent.  A family member, or in some cases, a qualified individual can petition the court system to appoint someone to manage the incapacitated individual’s matters.

What is a Durable Power of Attorney?

The question as to whether or not an individual needs an attorney to divorce in Florida is simple if we review the question literally.  You can get a divorce in Florida without an attorney.  However, it may be unwise to attempt to be divorced without an attorney.

Why Should I Use an Attorney?

The author believes that an attorney is essential if you are attempting to obtain a divorce.  This may sound like a self serving statement, but the author thinks there are numerous reasons that one should use an attorney to guide them through the process.  The author feels that having an attorney keeps otherwise Pro Se (self represented) clients forging ahead and not getting side tracked by discovery issues and other procedural problems regularly encountered and routinely dealt with by attorneys.

The marital home is frequently the largest asset between the parties to be divided in a divorce. When and how the marital home was acquired will be a major factor in determining who gets the marital home temporarily and permanently.

What is Exclusive Use and Possession?

Exclusive use and possession refers to one party receiving permission to use the home for their own purposes. Conditions are frequently provided for, as well. A frequent condition to receiving exclusive use and possession of a home is typically connected with paying the mortgage or other household bills.  This sometimes occurs initially after holding a temporary needs hearing or a domestic violence injunction hearing.  The most expedient, but not necessarily recommended way that a spouse can obtain exclusive use and possession of a home is through a domestic violence case. Using a domestic violence case to obtain exclusive use and possession should only be pursued when it involves a Petitioner that has been the victim of domestic violence. In other words, a petition for injunction should only be filed when actually necessary to stop or prevent violence. Where domestic violence is not an issue, a temporary needs hearing would be the best vehicle to obtain a temporary order to decide who stays in the home temporarily. The author has seen a number of occasions where both parties shared the home while they waited for a final hearing because neither party had a good option to leave.  This is not recommended, as it is natural for hostility to build between two partis going through a divorce.

What is a Statute of Limitations?

The term “Statute of Limitations” refers to a law that limits the period for which one may file a lawsuit.  This time period will typically vary by state and the type of suit that is being filed. For instance, the period of time for filing suit for a wrongful death claim may be different from the period of time one has to file for a trespass suit.  Federal law normally controls Statute of Limitations Periods for cases decided based upon federal law.

How Far Back Can One Be Assessed in Determining Child Support?

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Mediation is an alternative dispute resolution that is mandatory in a Florida divorce, paternity, or modification case, but many people do not see the process as the benefit it is.  During mediation, the two parties will meet with a mediator who is an unbiased and uninterested person in the case.  The mediator will try and help the parties resolve all disputes related to the family law case.  If an agreement is reached, it is drafted and submitted to the Court for approval so the case can be closed.  While the process is straightforward, there are still many myths related to the process.  Your Jacksonville family attorney can assist you in understanding the mediation process.  Below are the biggest myths about family law mediation in Florida, and the truth behind them.

The Mediator Will Make All the Decisions

This is simply untrue.  Mediators do not make any of the decisions when they meet with parties going through a divorce, paternity, or modification case.  They cannot force either party to do, or not do, anything.  Instead, they are only there to help you and facilitate you and your spouse, ex-spouse, or co-parent to reach an agreement.  If you cannot reach an agreement and your case requires litigation, it is the Judge that will make all the decisions.  Your Jacksonville family attorney is here to assist you in mediation and to represent you in any litigation should you not reach agreement.

Your domicile is the place upon which an individual has voluntarily decided to reside permanently.  In the ordinary sense, a persons domicile is the place where he lives and where he has his or her home.  However, the legal definition is more specific.  The plan in which a person has his or her permanent home and principal establishment upon which he intends to return whenever he is absent would fit the legal definition of domicile.

Why is it Important to Determine Domicile?

The domicile that one chooses has legal consequences. One’s domicile determines which state can probate a will.  It also determines which state can collect estate taxes when someone dies.  One’s domicile establishes where an individual may exercise certain legal rights and privileges.  Where one has the privilege to vote is determined by domicile.

Do You Know Your Rights in Child Support Court?

In a child support case, one cannot be incarcerated if they do not have the present ability to pay.  Bowen v. Bowen, 471 So.2d 1274 (Fla. 1985).  Although this case is binding on Florida courts, the author believes that self represented individuals do not get the benefit of legal protections against incarceration or cancellation of a driver’s license or professional license.  The author believes that one reason for this is because laymen tend to believe that an administrative agency must take a neutral position (similar to a judge).  This is not the case when it comes to collection of child support by the Florida Department of Revenue.  The author, in the next paragraph is going to summarize the case of Bowen v. Bowen to give readers a clearer understanding of child support issues when the Florida Department of Revenue is involved.

The Case of Bowen v. Bowen.

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This is a question that is often asked by custodial parents.  If you live in Florida the answer is yes.  Florida has a relocation statute, and it is found at §61.13001 in the Florida Statutes.  If you have a minor child and you are divorced or no longer in a relationship with the other parent, you cannot move more than 50 miles from the current residence without obtaining permission from the other parent or consent from the Court.  This condition applies to both the custodial parent and the non-custodial parent.  Your Jacksonville family attorney can assist you in determining how you can comply with the relocation statute to enable you to move.

The statute requires that unless there is an agreement between the parties, a parent or other person with time-sharing rights seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child.  The pleadings must meet the following requirements:

a)  The petition to relocate must be signed under oath or affirmation under penalty of perjury and include:

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