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.

Unwed fathers may believe that it is unlikely or impossible to gain custody of their child when they were never married to the child’s mother.  Fathers with this attitude should think again, as the courts and society have realized that fathers can be every bit as responsible as mothers in rearing a child.  The court system may still have a few vestiges of what was known as “The tender years doctrine”.  Such is the idea that a young child should primarily be cared for by their mother.  However, most judges today that I have encountered no longer display any indication that this philosophy still exists.  The reality is that a caring father can be every bit as nurturing and responsible as a caring mother.

In Florida, paternity is established by filing an action in the Circuit Court.  The action is known as a paternity action.  The petition should be titled a Petition for Paternity and Related Relief or a similar name.  There is no legal presumption for or against a father obtaining what used to be called primary custody.  The court’s have changed from using the term custody to using the term timesharing.  It is supposed to promote the idea of the children being shared between parents.  I personally do not believe that much has changed because of the change in terminology.  That said, the law has changed regarding child support in that the non primary residential parent (the parent that has minority timesharing) can now receive a reduction in child support if he or she has the child for at least 20 percent of the overnights.  The prior rule required the non majority parent to exercise at least 40 percent of the overnights to get a reduction in child support.

In a paternity suit, a father attempting to obtain timesharing must request either shared parental responsibility or sole parental responsibility.  Sole parental responsibility is exactly what it sounds like and so is shared parental responsibility.  Even people with serious criminal histories frequently are awarded shared parental responsibility.  Florida has enumerated the factors that it considers important and that a judge must take into account in deciding custody issues between parents.  They can be found in Chapter 61 of the Florida Statutes.  In short, they equate to the best interests of the child.

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).

Can Child Custody be modified because of COVID-19?

What temporary and permanent changes are inevitable?

With the outbreak of the Coronavirus, life has changed.  Some changes are temporary, and some may be permanent.  Almost every American’s travel plans have been affected by limitations placed on travel, shopping, and many other aspects of our lives.  In addition to all of life’s other complications, many of us share custody of children.  I have been practicing in the area of family law in North Florida for over 17 years.  A thorough parenting plan will account for numerous contingencies.  To date, I have yet to see a parenting plan that addresses custodial complications parents are likely to experience during the current pandemic.  I find that the two most litigated issues in family law are:

SHOULD CHILDREN BE PERMITTED TO TESTIFY IN A CUSTODY CASE?

One of the most common questions we get is if children can or should be allowed to testify in a divorce or child custody case. Self-represented litigants in Florida occasionally come to court with a child in anticipation that the child will testify for them.  However, there are specific prerequisites that must be followed under the Florida Family Law Rules of Procedure before a party is permitted to bring a child to court to testify. Often clients ask “At what age can my child testify in a Florida divorce case?’ Why maturity can be an issue, age itself is not the main factor use to determine if a child can testify in a divorce case.  It is not prudent for a party to bring a child to court unless authorized previously by court order.  Florida Family Law Rule of Procedure 12.407 applies to the testimony of children in Family Law Cases.  It reads as follows:

(a) Prohibition. Unless otherwise provided by law or another rule of procedure, children who are witnesses, potential witnesses, or related to a family law case, are prohibited from being deposed or brought to a deposition, from being Family Law Rules of Procedure August 28, 2019 99 subpoenaed to appear at any family law proceeding, or from attending any family law proceedings without prior order of the court based on good cause shown.

(b) Related Proceedings. In a family law proceeding held concurrently with a proceeding governed by the Florida Rules of Juvenile Procedure, the Florida Rules of Juvenile Procedure govern as to the child’s appearance in court.

(c) Uncontested Adoption. This rule does not apply to uncontested adoption proceedings.  Florida Family Rules of Procedure 12.407.

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In Florida, can a divorced or single parent move with or without their child?

If you have made arrangements to move with your child without being sure you are acting legally, think again.   The ramifications of relocating with your child without approval from the other parent or the court are potentially hazardous.  A Court could hold you in contempt of Court or make you move back to your old location with the children, or worse, give up custody to the other parent.

“Relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.

Family law clients always ask me, “What is a QDRO?”  (pronounced informally “Quad-Row”) QDRO is an acronym for Qualified Domestic Relations Order, which is a court order that grants a party a right to a portion of the retirement benefits his or her former spouse has earned through participation in an employer-sponsored retirement plan. Federal law states that a retirement benefit can only be divided between former spouses if there is a QDRO.  Retirement plans can be a huge asset in a marriage that may be forgotten in a divorce, so its key for clients to educate themselves on division of this marital asset.

QDRO divorceIn a divorce, a family law attorney needs to determine what retirement plan each party owns through mandatory disclosure by the formal, legal plan name.  It is important to know the value of each plan, the valuation date used to value the plan, what ancillary benefits are associated with the plan (for example, market fluctuations, survivor benefits, subsidies/supplements, and interest credits), the correct method of division for the plan, and will the retirement plan accept a QDRO.  Disclosure is important in obtaining this information and the plan’s summary description. It is also important to obtain the plan’s divorce transfer and QDRO guidelines, if available.  Obtaining a statement for the plan as of your desired valuation date will assist you in a smooth QDRO process.  For federal government employees, retirement plans are divided by a COAP, which stands for Court Order Acceptable for Processing.

Your divorce decree will not be enough to divide a retirement benefit in most cases.  A QDRO is a separate document from the divorce decree. It is always better to file a QDRO with the retirement plan as soon as possible.  If the former spouse retires after the divorce is final, and the QDRO has not been filed with the plan, the plan will begin paying out the benefit to the former spouse and only future payments will be affected.

That dreaded word in a divorce:  Alimony. Alimony is determined by the court after looking at one party’s actual need versus one party’s ability to pay. After equitable distribution is determined, the court reviews what money is left over, if anything, and considers the parties’ circumstances to come up with a fair award.  Some questions to answer:

  • Length of the marriage
  • Standard of living the parties are accustomed to

Divorces in Florida typically split the parties’ assets and liabilities down the middle as much as possible.  Determining what is a marital asset or liability or a non-marital asset or liability can be key to whether an asset or liability will be considered in the calculations.  Before filing for divorce, you should consider the following items when thinking about equitable distribution:

  • Previous Inheritance
  • Marital Home

In Florida, divorces with children involved primarily focus on the parenting plan first.  The parenting plan determines numerous factors in raising your children and will be the document most referred to after the divorce is finalized.  It is important that the plan is tailored to you and your children and accounts for the best interest of the children.  Before filing for divorce, you should consider whether you would like to request one of the following:

  • Shared Parental Responsibility: Both parents confer and jointly make all major decisions affecting the welfare of the children, such as education, healthcare, etc.
  • Shared Parental Responsibility with Decision Making Authority: Both parents attempt to agree on major decisions, but one parent will have the ultimate decision-making authority.
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