Family Law
Statistics say that half of all marriages will end up in a divorce. For many married couples, divorce is a real option. If a couple comes to that point, there is some important information that each person must know. First, there is no such thing as legal separation in Florida. There is no specific law defining legal separation in the Florida statutes, and Florida does not recognize legal separations. However, a couple seeking legal recognition of their physical separation without divorcing takes advantage of several different state laws. These include laws that permit child support during marital separation, grant the couple the ability to draft a marital separation agreement, and award alimony in certain cases of marital separation absent divorce. Even though the Florida courts don’t have specific rules for separation, the courts can take an active role in the process, and the parties are not prohibited from maintaining any other proceedings for other or additional relief during their separation.
The first thing one must consider in a divorce is what happens to the children involved in the marriage. In determining which parent a child will spend more time with, a court is always going to attempt to determine what will serve the best interests of the children, and base all decisions on that factor. While both parents may desire to have primary custody, the ultimate decision maker is the judge if the parents cannot come to terms. In determining the best interest of the child, the judge will also determine if a parent is unfit. In determining if the parent is unfit, the judge will look at whether there has been criminal activity, drug use, or anything that would show the person is not fit to care for a child. If both parents are fit, the Court will have time sharing for both parents. However, the time sharing will be based on what is best for the child.
Once the custody issue is resolved, the next aspect of a divorce is the child support. Child support is money paid from one parent to the other for the benefit of their children. Child support is given from one parent to the parent that has the majority of the overnights. Additionally, child support is obtained through a Judicial Court Order or an Administrative Order. More importantly, child support in Florida is determined using a formula developed by the state and found in Florida Statutes Section 61.30. Important factors include the net incomes of the parties, the percentage of overnights that the child spends with each parent, child’s health insurance costs, and daycare expenses.
After the custody and child support have been resolved, the next issue is what to do with marital assets and liability. In other words, the things, property and money that have been accumulated during the marriages versus the loans and any other liabilities that have been accumulated while married. Florida calls for the assets and debts to be separated through equitable distribution. Equitable distribution refers to the way that spouses in Florida divide their property and debts in a divorce. While some states have community property rules requiring an exactly equal division of marital property and debts, most states require only an “equitable” or fair division. Florida law requires an equitable division but also states that in most cases equitable means equal. At the end of the process, all debts and assets are to be separated equally. Both people are to share in the benefits or debts that were accumulated together.
Lastly, if applicable, alimony may be necessary. Alimony can be requested when a party believes that they have a need for financial assistance from the other party. As with child support, the Court can award temporary alimony until the final divorce hearing is held, at which time a “permanent” alimony amount may be ordered. Alimony can be withheld from the paying party’s paycheck or the party can be ordered to pay the money to Support Enforcement who will distribute it to the other party. If the party fails to pay Support Enforcement, one of their staff can testify that the payment was not made; instead of the party having to come to Court with an attorney. Also, failure to pay can result in the suspension of driving privileges (although the court can grant a “work” permit). Lastly, if a party is unemployed or underemployed and fails to pay court ordered support, the judge can order the party to seek employment and enter a job training or work program.
In order to obtain alimony, there has to be a need for assistance on the part of the requesting party and an ability to pay alimony on the part of the other party. Thus, one party may claim that they cannot pay their basic monthly bills without the help of the other.
Durational alimony may be awarded when permanent alimony is inappropriate. It is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration. It may not exceed the length of the marriage. Also, there is bridge the gap alimony which assists a party with legitimate, identifiable short term needs. It is to assist a party in transitioning from being married to being single (it may not exceed two years).
It should be noted however that where alimony is terminable upon re-marriage (which “permanent” alimony usually is), that a court may reduce or terminate the alimony when the recipient is residing with someone in a “supportive” relationship. There are numerous factors that the court will consider in deciding whether a “supportive” relationship exists, such as whether the couple holds themselves out as husband and wife, and the nature of their financial dealings.
In closing, it is important to know that you have rights when it comes to divorcing. There are numerous laws that govern divorce and it is important that you understand the laws that govern family law in your state. To protect your rights, let the law office of Byrnes Guillaume, Attorney at Law, PLLC sit down with you to discuss your rights and options. Let us walk you through all of the complexities of the divorce and allow us to fight for your rights and protect your children.