Family Law FAQ
If I have an equal timesharing schedule split 50/50, does that eliminate child support?
Child support is a statutory calculation that is calculated by inputting the incomes of the parties, the child’s health insurance, the child care costs, and the amount of overnight timesharing. Most of the time, a 50/50 still calculates a child support amount, dependent on the other factors of income, health insurance, and child care costs. If all of these factors were equal, then in essence, child support would be zero.
We have decided to waive child support, is that possible?
Child support is for the child and the State of Florida has an interest in making sure the child is cared for. Most counties will not let the parties waive child support or deviate from the calculated amount without some showing of circumstances in which the waiver or deviation is appropriate and in the best interests of the child. In general, child support is not easily waived or changed.
Can I quit my job or lower my income so I don’t have to pay child support and/or alimony?
We use the current incomes of the parties to calculate child support and alimony amounts, however, if one party takes a voluntary pay cut, or one party is unemployed, we are able to impute income based on historical income, level of education, and other relevant factors. Thus, if you quit your job, opposing side will likely impute you to that same level of income since you have shown you are capable of making said income. Likewise, an unemployed person will most likely be imputed to at least minimum wage, if not higher based off of their education level and ability to work.
If I move out, am I abandoning the marital home and its value?
In Florida, assets and debts incurred during the marriage are considered marital property, regardless of how they are titled, with some few exceptions. If one party moves out of the home, the home is still considered a marital asset to which you are likely entitled to the equity, and alternatively the liability, of the home. Moving out alone does not waive your interest in the home. If one party solely continues to maintain the home, there may be an argument for the equity growth in the home to be that of the party who has been maintaining the home for that period of time. Still, there is not a total waiver of the value of the home.
How long does it take to finalize my divorce?
Divorce cases are unique. The general process for a divorce case is as follows:
- Petition for Dissolution of Marriage is filed
- Petition and other necessary pleadings are sent to a process server to be formally served on other party, usually takes a week or two
- The other party has 20 days from the date of service to file an Answer to the Petition for Dissolution of Marriage
- From that same date of service, both parties shall exchange financial disclosures (Financial Affidavits, bank statements, credit card statements, retirement information, pay stubs, tax information, etc.) within 45 days
- After the financial exchange, we may spend time trying to settle the matter if settlement seems feasible
- If we cannot settle, we are required to attend a formal Mediation to attempt to settle
- If we do not settle at Mediation, then your case may proceed to trial where a judge will decide on the outstanding issues
- Please note, cases may settle at any time during the divorce proceedings
Many cases that settle are completed in about six to nine months. Cases that go to trial generally take one to two years to complete. After the initial formal proceedings and deadlines, the amount of time needed to finalize a divorce case is completely dependent on the actions of the parties, including whether the parties are able to settle their matters.
Can I get full custody of my child?
Custody is not a term used in Florida anymore, however the traditional concepts of “custody” are now better described by two-prongs: timesharing and parental responsibility.
The first prong timesharing, is the amount of overnight time spent with each parent. Florida Statute 61.13 provides there is no presumption for or against the father or mother of the child or for or against any specific timesharing schedule. This means the judge will likely start at a 50/50 schedule. To obtain more time, a parent must prove that it is in the child’s best interest. Some important factors to consider when creating a timesharing schedule include the distance between the parents’ residences, the parents’ job schedules, each parent’s ability to care for the child, and other factors unique to each family unit. Timesharing schedules include school year scheduling as well as holiday and summer schedules.
The second prong of Florida “custody” is parental responsibility, which refers to the rights of the parents. Parental responsibility is almost always divided equally unless there are specific and extreme circumstances which make it appropriate for one parent to have sole parental responsibility. Shared parental responsibility means the parents shall confer prior to making major decisions for the child. Additionally, it gives each parent the right to be involved in such decisions like academic, medical, and other areas regarding the child’s welfare.
What are some typical timesharing schedules?
Some common 50/50 schedules:
- Week on, week off
- 2-2-5-5 (days in a row) as shown below:
- 2-2-3 (days in a row) as shown below:
A 60/40 schedule may look like:
- Parent A has every Sunday, Monday, and Tuesday overnight, Parent B has every Wednesday and Thursday overnight, and the parties alternate every other Friday and Saturday overnight
|Parent A||Parent A||Parent B||Parent B||Parent A||Parent A||Parent A|
|Parent A||Parent A||Parent B||Parent B||Parent B||Parent B||Parent A|
Parents are welcome and encouraged to agree to their own timesharing schedule that suits the needs of their specific family. We have clients who are firefighters, flight attendants, nurses, and others with unique schedules. There’s always a creative solution to meet your needs.
What is a divorce agreement?
A divorce agreement is the contract between the parties which resolves all of the issues between the parties. A divorce agreement is called a Marital Settlement Agreement and if you have children, there will be a second portion called a Parenting Plan. The Marital Settlement Agreement will discuss alimony, the separation of all assets and debts, the division of real property, child support, if applicable, and contain all of the language needed to separate the parties back to single individuals.
A parenting plan will outline the way the parents will govern themselves in relation to the child. A parenting plan will outline the timesharing schedule including holiday, summer, and school schedule, discuss medical insurance and how uncovered expenses will be covered, discuss parental responsibility, educational and extracurricular activities and expenses, transportation and travel, tax designations, communication with the child, among other detailed issues.
If the parties are able to settle, they will be able to create an agreement that is suitable and specific to their wants and needs for their family. If the parties cannot settle, a judge will make the final decision as to how the parties will govern themselves. An agreement between the parties is binding under contract law, meaning it can only be set aside in very rare circumstances. If you are presented with a divorce agreement, you should seek legal counsel before signing.
What do I need to know about alimony?
There is no statutory calculation for alimony. Alimony is based off the actual need of one party and the ability to pay by the other party. Without both elements, there will be no alimony. Need and ability to pay are not defined by certain numbers. According to Florida Statute 61.08, if the court finds that a party has a need for alimony and the other party has the ability to pay, then in determining the proper type of alimony, the court shall consider:
- The standard of living during the marriage
- The duration of the marriage
- The age and the physical and emotional condition of each spouse
- The financial resources of each spouse including the nonmarital and marital assets and liabilities distributed to each
- The earning capacities, educational levels, vocational levels, and employability of the parties
- The contribution of each party to the marriage, including but not limited to, services rendered in homemaking, childcare, education, and career building of the other
- The responsibilities each party will have with regard to any minor children they have in common
- The tax treatment and consequences to both parties of any alimony award
- All sources of income available to either party, including income available to either party through investments of any asset held by the party; and
- Any other factor necessary to do equity and justice between the parties
If alimony is awarded, the duration of alimony is decided in accordance with the length of the marriage. A short-term marriage is up to seven years, a moderate-term marriage is more than seven years but less than 17 years, and a long-term marriage is a marriage 17 years or more. The length of marriage is measured from the marriage date until the date of filing an action for dissolution of marriage. The duration of alimony can vary from a fraction of the total amount of years of the marriage to permanent alimony.
Does it matter if one party caused the need for the divorce (i.e. criminal activity, cheating, addiction)?
No, Florida is a no-fault state.
My spouse does not want a divorce, am I stuck in the marriage?
No, in Florida, the standard for divorce is the marriage must be irretrievably broken, and only one party has to plead that standard and file for divorce.
Does it matter who files for divorce?
No, the petitioner (the person who files for divorce) does not get any advantage in the divorce proceedings.
Does Florida recognize separation of the parties?
No, in Florida you are either married or divorced. Florida views assets and debts incurred during the marriage as marital property. Once a party has filed for divorce or the parties are living in separate physical residences, there is case law to support that financial debts incurred at that point maybe that of each individual party. This helps protect a party from a spiteful spouse purposefully taking on more “marital” debt to the detriment of the other party during divorce proceedings.
What is the Florida relocation statute?
Once a paternity or divorce proceeding with children is filed, both parties may not move more than 50 miles from their current residences without consent or order of the court. The 50 miles is measured as the crow flies (a straight line from point A to point B).
What is a guardian ad litem?
A guardian ad litem (GAL) is a court-appointed third-party neutral who represents the best interests of the child. A GAL will conduct home visits, have interviews with the parties and their proposed witnesses, meet and speak with the child, speak with medical and academic professionals, as applicable, review documents, text messages, social media, etc. After considering all facts he/she will submit a Report and Recommendation to the parties which will most likely be used as evidence at trial.
Attorney Budnik works as a GAL and also uses GALs from time-to-time on specific cases. GALs are often used in contested cases wherein one party fears the child is being harmed by the other parent but perhaps in a less obvious way.
For example, it may be easy to prove a parent is unfit to have timesharing if there is a Department of Children and Families (DCF) case open, there is a clear addiction, or perhaps there is criminal activity. In the alternative, in cases of parent alienation, suspicions of drug use or unsafe conditions for the child, or any other circumstance where evidence would not be easily obtained and obvious, a GAL can be extremely helpful in flushing out the facts and acquiring evidence.
Most importantly, a GAL writes a Report and Recommendation for a Parenting Plan which outlines the child’s best interests. It is very common for a judge to follow this recommendation.