The family lawyers at the law firm of Hardesty, Tyde, Green & Ashton, P.A.stand ready to assist you with family law issues such as:
- Divorce, contested and uncontested
- Equitable distribution of assets and liabilities
- Alimony issues
- Retirement matters
- Attorney’s fees
- Child parenting issues (custody, child support, visitation and paternity rights) under Florida’s new Parenting Plan Statute
- Questions to Ask Your Divorce Lawyer
DIVORCE – GENERAL INFORMATION
Marriage and divorce is not considered to be the private undertaking of individuals. Florida abolished common law marriage in 1967. Marriage is a legal relationship recognized by both society and the State. The State of Florida requires individuals to obtain a marriage license from the Clerk of Court to marry. It is only when a valid marriage license is issued that the State will recognize the marriage and all the rights flowing from it.
Since the State of Florida officially recognizes marriage as a legal relationship, the State must terminate the legal relationship. “Divorce” itself is a common word for the legal term “dissolution of marriage,” and the terms are often used interchangeably. The dissolution of a marriage (divorce) is a statutory cause of action, and a marriage cannot be terminated without the entry of a Court Order ending the marriage.
The Florida State Legislature has determined the terms upon which dissolution of marriage (divorce) will be allowed. In 1971, the Florida Legislature enacted the dissolution of marriage law, which provides that fault need not be proved to entitle a spouse to dissolution of marriage. Under Florida Law, one party need only allege that the marriage is “irretrievably broken.” The Florida “no fault” concept of dissolution of marriage seeks to enable the parties to end their marriage without becoming adversaries or scheming with each other to mislead the Court. The idea is to eliminate disparaging one another and to keep certain private matters from being publicly disclosed.
A contested divorce is a divorce in which the parties do not have an agreement on all the issues such as property matters or issues regarding the children. In an uncontested divorce the parties agree on all issues.
Starting a Divorce Case
A divorce case is started by either the husband or wife filing a “Petition for Dissolution of Marriage.” The Petition states what the filing party seeks in the divorce (property, money, house, children, etc). After the Petition is filed it has to be “served” on the other party. The party who is served with the divorce Petition must file an “Answer” within 20 days or risk allowing the serving party to get everything that they requested in the Petition by “default.” If you are served with a Petition for Dissolution it is important that you seek legal assistance immediately to avoid default.
The Next Step-Discovery
The discovery process helps the parties “discover” matters that may pertain to their case.
Once the initial pleadings have been filed the parties have to prepare and file financial affidavits which fully disclose all income, expenses, assets and liabilities. These affidavits must disclose all banking and investment accounts to include retirement plans.
Often the parties also seek documents from one another through “Requests to Produce” and seek written answers to relevant questions through “Interrogatories.” One party may also ask another to admit or deny certain things that may help their case through “Requests for Admissions.”
All of these discovery documents and the responses to them carry significant legal consequences and should not be handled without the assistance of an attorney. Each party involved in a dissolution of marriage will work closely with their lawyer to provide documents pertaining to assets, liabilities, children, retirement, daycare expenses, health insurance, tax obligations, tax return filings, and, sometimes pending Personal Injury, Workers’ Compensation, or bankruptcy actions which may relate to the dissolution proceeding.
Dividing Assets and Liabilities; Real and Personal Property; Equitable Distribution; Alimony
During a marriage most couples acquire assets such as homes, cars, savings, and investments. Many couples also incur debts and liabilities as well. Some examples of liabilities are notes owed on homes, money owed for cars, student loans and credit card debt.
These assets and liabilities must be divided during the dissolution process. Often the parties are able to divide the assets and liabilities as they see fit. When the parties cannot agree the case must go to trial and a judge will have to divide the parties’ property and debt. In Florida, this division is called “equitable distribution.” The Court does not necessarily divide things 50/50 in equal amounts but divide things as the Court deems equitable or fair.
Long-term marriages will also have the added component of permanent periodic alimony. However, there are other forms of alimony which may be applicable to short or moderate duration marriages.
The lawyers at Hardesty, Tyde, Green & Ashton, P.A., are trained to consider the income of the parties, the assets and liabilities of the parties, and the special issues that arise in every divorce case. Each and every client faced with the hardship of dissolution of marriage gets customized, personalized counsel and advice regarding their case.
Resolving Issues before Trial and Mediation
Sometimes the parties, through their attorneys, are able to resolve some or all of the issues in a case prior to trial. The parties can then put the agreement in writing and usually the Court will grant the divorce pursuant to the agreement.
Sometimes the parties need help to reach an agreement before trial. Before trial mediation is ordered by the Court. Mediation is a meeting of the parties, their attorneys and a mediator. A mediator is a neutral third party who has no interest in the case. The mediator is usually an attorney who has specialized in family law. The mediator can help the parties reach an agreement by acting as a “go-between” to help negotiate the parties´ differences. Mediation is an excellent opportunity for parties to conclude their case prior to trial.
Sometimes the parties cannot agree on all the issues in their case. This requires that a circuit court judge decide what the outcome of those issues will be. A judge conducts a trial to decide those issues. At the trial, each side submits evidence to try to convince the judge to rule in favor of their position. After the evidence has been submitted the judge “rules,” and enters an order announcing the Court´s decision.
CHILDREN – FLORIDA´S NEW PARENTING PLAN LAW
Parties who seek to dissolve their marriage with children not only have to deal with the economic strain of separation as a married couple, but also have to deal with the emotional strain of doing what is in the best interests of their children as they move on with their separate lives.
A new Florida parenting plan statute took effect on October 1, 2008 which changed the way courts make decisions about parental roles and responsibilities after a divorce.
Changes to the Language of the Law
The Florida parenting plan statute did away with some terms traditionally used to define the rights of parents after a divorce. For example, the law eliminates the words:
- Custodial parent
- Non-custodial parent
- Primary residential parent
- Secondary residential parent
Additionally, some terms are newly defined:
- Parenting plan—a document outlining parental responsibilities for decisions concerning their child; it must include a time-sharing schedule
- Time-sharing schedule—details the time that a child will spend with each parent
- Parenting plan recommendation—a non-binding recommendation made by a licensed mental health professional or any other individual designated by a court concerning the parenting plan
Changes to the Substance of the Law:
The idea of a parenting plan is not new. However, under this new Florida statute, a parenting plan is now required and it must include specific information. If parents can’t come up with a parenting plan, a judge will prepare one. The parenting plan must be approved by a court.
Crafting a Parenting Plan
The parenting plan must indicate who makes decisions concerning the child´s:
- Health care
- Physical well-being
- Social well-being
- Emotional well-being
Best Interests of the Child
The new Florida parenting plan statute still uses the best interests of the child as a guiding principle. However, the new law specifically identifies a number of factors that should be considered when determining how the child’s time with each parent is divided. For example, a court will weigh whether a parent:
- Facilitates and encourages a close and continuing parent-child relationship
- Honors the timesharing schedule
- Is reasonable when changes are required
- Places the child’s needs above his or her own needs or desires
The preference of the child is also taken into consideration.
Though it´s recognized that the amount of time spent traveling can be hard on a child, the new statute indicates that there´s no presumption for or against relocation.
The new law also indicates that there’s no presumption that a mother or father is the better parent or that the mother should have more parental responsibility if the child is “of tender years” (13-years-old and under). Shared responsibility is considered better for the child at any age unless there’s evidence indicating otherwise. Such evidence can include a history of domestic violence or danger to the child. However, this presumption of equal footing doesn’t really represent a substantial change to the law.
A Change in Philosophy?
So do the new word changes in the statute really make a difference? What’s the practical application of getting rid of words like “custody” and “visitation,” “primary residential parent” and “secondary residential parent”?
The new Florida Parenting Plan Statute seems to reflect a change in philosophy. By requiring a detailed parenting plan, the courts may be able to exercise more control over the involvement of both parents in a child’s life, ensuring that both parents have the opportunity to play a more equal role. The parent the child spends less time with (i.e., formerly called the “secondary residential parent”) now may have more of an equal footing in the eyes of the law.
If you have questions about this new law or any family law matter, please contact the Jacksonville family law attorneys of Hardesty, Tyde, Green & Ashton, P.A.
Child Support Guidelines, established by the State, dictate the amount of money a parent will be required to pay for child support. However, these Guidelines may not control if the judge determines there are reasons for an upward or downward departure.
The parties must consider health insurance and daycare expenses as part of the overall child support calculation. The parties must also contemplate out-of-pocket expenses that are not otherwise covered by insurance and expenses related to extracurricular activities of the parties´ children as they grow. The parties may need to address special needs for medical issues pertaining to their children and/or each other.
The lawyers of Hardesty, Tyde, Green & Ashton, P.A., are trained to deal with these considerations to help you resolve your issues.
SUPPORT, BACK ALIMONY AND PATERNITY
The family lawyers of Hardesty, Tyde, Green & Ashton, P.A., are experienced at handling post-dissolution of marriage proceedings, such as: enforcement of child support and alimony, visitation, child custody, and enforcement of other rights under a Final Judgment of Dissolution of Marriage.
Unwed mothers often need our help to establish child support from their baby´s father.
Unwed fathers may seek to establish paternity and visitation with their child.
If you need assistance in a Family Law matter, then call the Jacksonville, Florida law firm of Hardesty, Tyde, Green & Ashton, P.A. today.