Facing a custody battle or divorce can be a daunting, confusing and emotionally demanding experience. We know this firsthand! On this page, the team at Koberlein Law Offices endeavors to answer many relevant questions you may have surrounding custody, child support, and divorce in the state of Florida.
- How long does it take to make a divorce final in Florida?
- How do I start a divorce in Florida?
- How much will a divorce cost in Florida?
- Can my husband/wife fight the divorce in Florida?
- How does a mutual divorce work in Florida?
- What is a legal separation?
- What happens to my retirement funds in a divorce?
- How are assets divided in a divorce in Florida?
- Will divorce hurt my credit?
- What assets are not included in a divorce?
- Can assets be hidden in a divorce in Florida?
- How much alimony will I receive?
- How much alimony will I have to pay?
- How long do I have to live in Florida to get a divorce in Florida?
- What is mediation in a divorce or custody case?
- Will I get custody of my child(ren)?
- What makes a parent unfit in Florida?
- Can a non-parent win custody of a child in Florida?
- Can one parent move out of state and still have joint-custody?
- Can I supervise visitations?
- How do I enforce my visitation rights in Florida?
- Do grandparents have visitation rights in Florida?
- What factors does the Judge use to decide who gets custody?
- Can parents make a parenting plan without a judge?
- Can I move to another state with my child(ren)?
- How far away can I move without going back to court?
- Do I have to go back to the original county to modify my visitation plan (parenting plan)?
- How can child support be modified in Florida?
- How is child support determined in Florida?
- When will child support stop?
- What if the father/mother refuses to pay child support?
- May I cut off visitation (refuse to honor time-sharing) when the other parent misses child support payments?
- May I stop paying child support because my visitation has been cut off?
- How do I become the legal guardian of an adult in Florida?
How long does it take to make a divorce final in Florida?
Between 2 months and 2 years. Many factors account for this wide variation. If a divorce is uncontested by both parties and all runs smoothly, they can expect the divorce to be finalized roughly 2-3 months after the first petition of divorce is filed. A contested divorce, with disputes to resolve, assets to divide, custody to plan, etc will take one year, on average. The length of time involved in a Florida divorce fully depends on whether or not both parties agree on the terms. These are flexible estimations, the accuracy of which depend greatly on the ability of the couple to coordinate and cooperate with each other and their attorneys. Statistics show that on average, a Florida divorce takes 15 months, with a reported range of 7 to 20 months. This is 4 months longer than the national average which sits at 11 months.
Certain mandatory waiting periods may apply, depending on your circumstances. For example, if you and your spouse have not yet lived in Florida for 6 months, you must wait until these 6 months have passed in order to file. If at least one of you has already lived in the state for at least 6 months, you are already meet the residence duration requirement and will not need to wait. Section 61.021, Florida Statutes
The Quickest Way to Get Divorced In Florida
Certain couples qualify for what is known as a simplified divorce. This avenue is not available to everyone because the couple must meet specific requirements to qualify. In order to file a petition for simplified divorce, the couple must:
- have no minor or dependent children, and the wife must not be pregnant
- mutually agree that the marriage cannot be saved
- mutually agree about asset division and who is to pay the mutually held debt
- neither spouse seeking alimony
- both parties waiving the right to a trial and appeal
- both parties willing to sign off on the divorce
- both parties willing to go to a final hearing
Rule 12.105 Florida Family Law Rules of Procedure and Florida Family Law Rules of Procedure Form 12.901(a) (Petition for Simplified Dissolution of Marriage)
The only waiting periods associated with a simplified divorce are: if applicable, the six-month residency of at least one spouse and the mandatory 20 day waiting period before the hearing for the dissolution of marriage.
All of this criteria must be met, without exception, in order to qualify for a simplified divorce. If the couple does not meet these criteria, they must file a regular petition for divorce in lieu of a simplified one. If you do not meet the criteria for a fast simplified divorce, this does not necessarily mean your divorce will be drawn out and difficult. A divorce may still finish relatively quickly even if it does not meet these criteria. Such divorces are characterized as either "contested divorces" or "uncontested divorces." There is a useful framework to understand these characterizations: contested divorces are complicated, uncontested divorces are simpler, and a simplified divorce is the simplest.
Waiting Periods Associated with Uncontested Divorces in Florida
In an uncontested divorce, both parties are largely in accordance on the terms. The most 'time-consuming' aspect of uncontested divorces is simply arriving at these agreements, ironing out the details, devising a parenting plan and custodial time-sharing schedule, dividing assets and debts, and signing off on said agreements. This discourse - when there are no disputes - usually takes a matter of weeks. There is also a 20 day mandatory waiting period in between filing and the hearing. Section 61.19, Florida Statutes
Waiting Periods Associated with Contested Divorces in Florida
Aside from the mandatory 20-day waiting period, it is very difficult to gauge how long a contested divorce will take. When the couple cannot agree on one or more topics of divorce, there is no telling how long it will take for the contesting parties to relent and find terms they can agree to. This could take a great deal of legal maneuvering and negotiating on a number of topics, possibly including alimony, child support, custody, asset division, shared debt responsibility and more. Contested divorces could take up to two years. In extreme cases, they could take longer. In some cases, even though many topics are contested, both parties are able to come up with agreeable terms within just a few months. It is a very subjective process, depending heavily on each couple's circumstances and dispositions toward the divorce.
Default Divorces in Florida
Although rare, it is worth mentioning that there is one other avenue to achieve a divorce relatively quickly. In the event that the other spouse is entirely unresponsive to the divorce, essentially ignoring the petition, the petitioning spouse could be granted a default divorce. If the other spouse is served with the petition and does not respond for over 20 days, a default may be entered. The judge may enter a final judgment or schedule a hearing on the default. Rule 12.500 Florida Family Law Rules of Procedure
Other Factors to Consider
Although the divorce waiting time does greatly depend on the parties' circumstances, disputes, and personal disposition, one must also bear in mind that the courts may also be extremely busy and this could delay proceedings.
Prior to filing a petition for divorce, which may be contested, each spouse ideally should have already retained a lawyer. The attorney may be familiar with the delays in the local court dockets.
How do I start a divorce in Florida?
There are some basic requirements that must be met in order to file. The marriage must be irretrievably broken or one must be mentally incapacitated. (The mental incapacity grounds is very limited and very facts specific.)
If the couple does not agree that their marriage is irretrievably broken, the judge will have to make that determination after hearing the evidence. If one of the spouses believes in good faith that the marriage can be saved, the judge may order counseling for the couple. Section 61.052(2), Florida Statutes
The recommended first step to commence a divorce in Florida is to retain an experienced Florida divorce attorney. It will hugely simplify the process for you when you obtain a lawyer; they can demystify the legal process, advise the best course of action in your case and walk you through the divorce step by step, so as to eliminate any potential confusion. Once you have your Florida divorce lawyer at your side, you will then spend time consulting with them and beginning to gather relevant information and evidence to be used in the divorce proceedings. This is not a formalized process within the courts but is considered to be a 'best practice' when going about a divorce. You will want your attorney to pry into every relevant detail so they can better devise a strategy for your case, especially in cases of contested divorce.
The divorce officially begins when a Petition for Dissolution of Marriage is filed. The petition will need to be notarized and you will keep a signed copy. There is $408 filing, plus a $10 summons fee, per defendant. This form allows you to make claims pertaining to alimony, assets, child custody/support and debts. The form must be filed in the correct circuit and county in which you currently reside. A process server will then deliver the papers to the other spouse. If you have children, the state of Florida requires you and your spouse to attend a seminar on children and divorce. You may attend separately.
You are required under Florida law to provide your spouse with a completed and signed financial affidavit within 45 days of filing your petition for dissolution of marriage. You must disclose:
- bank statements
- tax returns
- credit card statements
- personal financial statements
- any other pertinent financial documentation
Rule 12.285 Florida Family Law Rules of Procedure
How much will a divorce cost in Florida?
You should not pin your divorce expense expectations on any specific dollar amount because it is incredibly subjective. Every divorce case is different, with some cases being resolved in a matter of weeks and some taking several years. Attorneys generally bill on an hourly basis, so longer divorces will naturally accrue more attorney fees while objective costs like the $408 filing fee are uniform between divorces. There is a wide fluctuation in attorney fees, depending on their experience and skill. You will want to meticulously review the attorney you ultimately hire and remember that ultimately, they are working for you.
There are a number of costs and fees associated with divorce in the state of Florida. There may be certain costs specific to the county and jurisdiction in which you file. Other than filing and attorney fees, there may be additional costs for consultants, appraisers, mediators, financial analysts and child custody evaluators. Miscellaneous expenses may build, such as the cost of processing documents, notarizing a document, making copies of large documents, making copies of public records and more.
Child custody disputes tend to be the most costly aspect of Florida divorce cases, costing much more than divorces without child custody disputes. When a divorce goes to trial it becomes more expensive because the attorney must prepare pre-trial motions, trial briefs, discovery, testimony and more, in addition to time spent physically in court.Property division and alimony issues are also often expensive issues.
The costs of divorce proceedings must be differentiated from the expenses each party could incur after divorce. There may be alimony payments and child support, which arguably contribute to the total cost of divorce. Although Florida is a no-fault divorce state, fault with regard to abuse and infidelity may be considered when determining alimony, parental responsibility, and asset division, which could also affect the total cost of divorce.
Can my husband/wife fight the divorce in Florida?
Your husband or wife has the right to refuse or contest a divorce. This does mean that a divorce becomes impossible, merely that the easier option of uncontested divorce is off the table. An uncontested divorce is filed and agreed upon by both spouses., but if this method is not available, you have the option of filing a contested divorce on your own. The papers will be delivered to the contesting spouse and they will have 20 days to answer your petition. The judge may require marital counseling if your spouse believes in good faith that the marriage can be saved. If the spouse has answered the petition and any applicable counseling has failed, a contested divorce will move forward.
Ultimately, if your marriage is irretrievably broken, no one can deny you from getting a divorce. (You may fail because you did not follow the proper legal procedure in some way, in which case you would have to start over.) If your spouse does not want a divorce, the most they can do is complicate and prolong the process.
How does a mutual divorce work in Florida?
When both parties agree to the divorce, including terms of child custody, alimony, and asset division, this is called a mutual divorce. Mutual divorces are far simpler and far less expensive than contested divorces. It may occur in one of two ways: simplified divorce or uncontested divorce. The spouses may qualify for a 'simplified divorce' if they have no children, are not seeking alimony, and agree on all aspects of asset and debt division. It is for all intents and purposes, a simple in and out procedure. If there are children and/or alimony is sought, then the spouses will file for an uncontested divorce.
In an uncontested divorce, all issues are settled and agreed upon, with little to nothing in dispute between the two parties. Both parties are willing to sign in an uncontested divorce. The process of uncontested divorce in Florida is fairly simple and easy by comparison with a contested divorce. It goes as follows:
Pre Divorce Discussions
Before a petition for dissolution of marriage is ever drafted, the couple will need to come to an agreement about the requirements of uncontested divorce. During this discourse, both spouses would mutually agree to seek a divorce, agree on the division of their assets (cars, homes, land, bank accounts) and make a tentative agreement about the division of parental responsibility. This may be done with or without the aid of legal counsel. If there are any disputes, however simple or good-natured, the couple does not yet meet the requirements of an uncontested divorce. All factors must be resolved with absolutely nothing hanging in the air in order for a divorce to be filed as an uncontested divorce.
Preparing Necessary Paperwork
With the aid of their respective attorneys, the spouses will need to file the necessary paperwork. This includes a perfectly drafted petition for dissolution of marriage. One spouse will be the petitioner and the other will be the respondent. The respondent will file their answer with the court, agreeing that the marriage cannot be salvaged and separation is sought by both parties. A hearing will then be scheduled. The divorcing couple can prepare a marital settlement agreement for the judge with the advice of their attorneys. This is a contract between the spouses outlining all the terms of their divorce. This agreement should be fair to both spouses and reviewed by their respective attorneys prior to signing. It is not a required document but is fairly standard, and helpful in completing required divorce paperwork. If there are children, the parents will also need to submit a carefully drafted parenting plan explaining how they will divide parental responsibility and time with each minor child, including child support agreements. A common problem that arises for a couple during an uncontested divorce is when the agreed upon child support amount falls below state guidelines.
The Divorce Hearing
The number of hearings involved in your divorce will depend on the specifics of your case. In the initial hearing, for example, a judge may require you and your spouse to seek counseling (this is mandatory in some Florida counties, and more likely if you have children.) Contested divorces are more likely to have additional hearings than uncontested divorces. When all is settled, sorted and agreed upon between you, your spouse and the judge, a final hearing will be scheduled where the judge will make a final judgment about the dissolution of your marriage.
What is a legal separation?
Legal separation is court-sanctioned process recognized in many states that allows a couple to legally formalize their separation while still being married. In some cases, it is a precursor to divorce, although couples do sometimes reconcile after a legal separation, without having to get remarried. Legal separation does not exist in Florida law. Florida is one of six states that do not recognize legal separation. A couple may enter into a separation on their own terms at any time without notifying the court or filing any paperwork, but Florida courts would not formally recognize it or resolve disputes related to it. There are, however, a handful of state laws that can benefit separated couples in Florida. The separated spouses may be granted some of the features of a divorce during their physical separation, absent an actual divorce. A separated couple will be able to create a legally binding marital separation agreement, and certain statutes permit litigation for spousal or child support.
In cases with children, a separated couple will still be able to pursue child support, parental time-sharing agreements (custody), a division of property and assets and alimony, if applicable. In the event that one spouse moves out without filing for divorce, the other spouse can petition for child support and/or alimony. This is called a Petition for Support Disconnected with Dissolution of Marriage because it is unrelated to the Petition for Dissolution of Marriage filed in divorce cases. It is, therefore, possible to get child support without a divorce in Florida. Section 61.09, Florida Statutes
Benefits of Legal Separation
For some couples, a legal separation is preferable to an out and out divorce for variant reasons. Spouses who are the same health insurance plan may be reluctant to divorce and leave one of the two without coverage. In the case of military spouses, there are a number of benefits which married couples receive and they may be similarly reluctant to forfeit these benefits by way of a divorce. In addition, legally separated couples can still file taxes together, while divorced couples who did not remarry will have to file as single. If the couple is still unsure as to whether or not divorce is necessary, a legal separation may give them the time necessary to decide. Some couples also may factor their religion in when weighing the concept of divorce.
It should be noted that any decision made in a separation will not be legally binding if either party should ultimately choose to file for divorce. If a couple mutually agrees to file for divorce, the court will reevaluate the terms and circumstances of the case, without regard to any agreement reached in separation hearings.
What happens to my retirement funds in a divorce?
Any portion of the retirement funds that were accrued during the marriage will be redistributed between you and your soon-to-be former spouse. The law states that all "benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution." Section 61.076, Florida Statutes
If one of the spouses was a member in the armed services for during at least ten years of their marriage, then the retired or retainer pay will be distributed between both spouses. The court will specify the exact amount to be distributed to each party. The frequency of payments is not to exceed a monthly basis.
How are assets divided in a divorce in Florida?
As an "equitable distribution" state, Florida divides property acquired during the marriage in a fair and evenhanded manner. This may not necessarily be a 50/50 split, seeing assets are not always divisible 'down the middle.' However, the court intends to have each spouse leave the marriage with a similar share of assets. Some property or other assets acquired by a spouse prior to marriage are theirs to keep; they may be untouched by divorce proceedings. The court may find "justification for an unequal distribution based on all relevant factors. These include
(a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities of either party.
(e) The contribution of one spouse to the personal career or educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.
(h) The desirability of retaining the marital home as a residence for any dependent child of the marriage
(i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.
(j) Any other factors necessary to do equity and justice between the parties.
For the purposes of equitable distribution, the court may award one spouse with a cash payment to be paid by the other spouse. This obligation would not terminate upon potential remarriage or death of either spouse. It would remain a debt owed by one spouse's estate to the other spouse's estate.
If disputes about asset division arise, then all distribution of marital assets must be supported by factual findings and substantial evidence pertaining to the following:
(a) Clear identification of nonmarital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or the reviewing court of the trial court's rationale for the distribution of marital assets and allocation of liabilities.
Bear in mind, if an asset was acquired by one spouse individually but during the course of the marriage, it is still fair game for asset division. Additionally, if an asset was acquired before the marriage, but enhanced in value due to the efforts of the other spouse in some way, the value of the enhancement becomes an attributable asset. Gifts given by one spouse to another during the marriage are still considered joint marital property. As mentioned, all "benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans" acquired during the marriage are divisible assets.
When determining the value of assets and liabilities, the time of appraisal is significant. Therefore, the cut off date for evaluating all assets and liabilities is generally the day the couple enters into a valid separation agreement.
The equitable distribution of marital assets will be provided for without regard for alimony payments. Alimony is to be determined after asset division. Section 61.075(9), Florida Statutes
In some cases, the court may not pursue equitable distribution in the form of asset division, but could potentially "order a monetary payment in a lump sum or in installments paid over a fixed period of time." This could also be done to supplement equitable distribution if the assets division does not provide for an entirely equitable distribution by default. Section 61.075(10), Florida Statutes
Will divorce hurt my credit?
While filing for divorce will have no direct effect on your credit score (creditworthiness and marital status are in not directly related), there are certain consequences of divorce which could ultimately take a toll on your score. For example, if you and your ex-spouse jointly acquired a debt during the marriage (credit lines, mortgage, etc), the judge will evenly divide this liability between the two of you in the same manner that assets are divided. If your spouse fails to make their payments, your credit score will take a hit. The nonpayment can be reported to the court.
Another indirect way that divorce can take a toll on credit is the financial burden of obtaining a divorce. Divorces can easily cost thousands of dollars. This financial strain may render you unable to handle your bills.
In addition, the loss of your spouse's income may result in financial hardship, as you were used to functioning on two incomes and will now function on only your own. For this reason, you may not be able to pay all credit card bills in a timely manner.
Your divorce could also hurt your credit if your spouse is an authorized user on your accounts and vindictively chooses to spend a great deal on one or more of your cards. As an authorized user, they can harm your credit score.
The best course of action you can take to protect your credit before, during and after a divorce is to remove your spouse as an authorized user on all of your accounts, have open and honest discussion about the need to pay jointly held debts, and try as best you can to budget for the loss of your spouse's income.
What assets are not included in a divorce?
Non-marital assets and liabilities include:
1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities;
2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets;
3. All income derived from nonmarital assets during the marriage unless the income was treated, used, or relied upon by the parties as a marital asset;
4. Assets and liabilities excluded from marital assets and liabilities by valid written agreement of the parties, and assets acquired and liabilities incurred in exchange for such assets and liabilities; and
5. Any liability incurred by forgery or unauthorized signature of one spouse signing the name of the other spouse. Any such liability shall be a nonmarital liability only of the party having committed the forgery or having affixed the unauthorized signature.
Can assets be hidden in a divorce in Florida?
In any state, including Florida, hiding assets is illegal, reckless and frowned upon. If the court finds that assets have been hidden, they may not honor the principle of equitable distribution and reward more to the spouse from whom assets were hidden. This can happen in the form of hiding cash, jewels, bank account information, documentation of property and more, and is more common among high net worth clients. The practice of hiding assets is in direct violation of the required disclosure of assets and finances. The spouse who is not hiding assets is tasked with exposing the spouse who is hiding assets. Ultimately it is that spouse's attorney who will have to implement various discovery tactics when assets have dishonestly been hidden. These include demand for production of financial documents, deposition, subpoenas, and interrogatories. The spouse who hid assets would be responsible for these investigative legal fees; they would also see any pre or postnuptial agreements voided. They may also face fines, jail time and perjury charges.
How much alimony will I receive?
Alimony is court-ordered financial support paid by one spouse to the other, to help ease the financial consequences of a divorce in all areas. The amount and duration of alimony will depend on the length of the marriage. The court also takes into account the age, health, and standards of living of each spouse. The employment prospects of the financially weaker spouse, income disparity, domestic violence history, the standard of living, inheritance and child support payments are also all taken into account when calculating alimony. It is paid by the primary breadwinner and awarded to the other spouse.
There are generally four types of alimony: Bridge-the-gap, rehabilitative, durational and permanent. Bridge-the-gap alimony is given when the divorce is not yet complete and ends when the divorce is finalized - it is not to exceed 2 years. Rehabilitative alimony requires the recipient, unemployed spouse to create an outline of their living and educational expenses. If the unemployed spouse is not actively seeking employment in good faith, alimony will stop. Durational alimony is a relatively new legal development which allows a recipient spouse who did not qualify for stable alimony to receive it for at least a specified, short duration. Permanent alimony is paid until the recipient spouse dies or gets remarried. Section 61.08, Florida Statutes. Most of the "legal" factors are set forth in Section 61.08, Florida Statutes.
Alimony may be modified if the supporting spouse becomes ill, the recipient spouse retires or there is a significant change in the income of the supporting spouse.
How much alimony will I have to pay?
When calculating the amount of alimony you will be paying, you will factor in the net income of your ex-spouse, your net income, the duration of the marriage and the age of your supported spouse. There is no uniform answer to the question of "how much alimony will I pay in Florida" because it depends entirely on these subjective factors. It is calculated based on need and ability to pay. Most of the "legal" factors are set forth in Section 61.08, Florida Statutes.
How long do I have to live in Florida to get a divorce in Florida?
Either you or your spouse must have resided in the state of Florida for at least six months in order to file for divorce in the state, however, this requirement is flexible. You can establish residency with the court by showing that you were physically in the state of Florida for the required duration or that you intended to make Florida your primary residence during that time. To establish a 6-month physical presence, you do not need to have entirely refrained from travel during that six-month time frame. Showing evidence of permanent employment, a lease or deed, Florida address, Florida driver's license and taxes filed in the state of Florida can help establish a six-month residency. Sections 61.021, and 61.052(2) Florida Statutes
What is mediation in a divorce or custody case?
Mediation is an alternative to formal litigation, which allows both parties to come to an agreement about divorce or custody disputes. It is not an alternative for obtaining a divorce, seeing as the court is still needed to finalize marriage dissolution. Rather, it is used exclusively to resolve disputes. Mediation is arguably preferable to formal litigation simply because it is a more relaxed, less formal process with far less paperwork and requirements. It is also less egregiously expensive than formal litigation.
The aim of mediation is to create solutions and resolve disputes quickly and in an informal fashion, with a simple discussion, compromise and agreement. The discussions that take place during mediation are private and confidential, not to be recorded as they are in a formal courtroom setting. In some cases, mediation is court ordered. If disputes have arisen over how time will be shared with a child or how assets will be divided, for example, then these issues can be proactively discussed and presented during mediation.
Will I get custody of my child(ren)?
Any parent fighting for custody of a child in Florida MUST know this: it is almost impossible to get "sole custody" of a child in the state of Florida. Florida courts will hardly ever completely deny one parent the right to see or make decisions regarding their child, therefore they will not grant one parent the exclusive right to spend time with and make decisions about the child (i.e. sole custody).
In fact, the terms "sole custody" and "visitation" have been done away within the state, replaced with the terms "parental responsibility" and "time-sharing." Parental responsibility refers to a parent's right to make major and minor decisions about their child's life and upbringing, such as school choice, doctor's appointments or medical procedures. Shared parental responsibility requires each parent to inform the other of major decisions regarding the child, as they happen. Time-sharing is simply the time spent with the child; this is shared between the two parents.
The closest solution for a parent seeking 'sole custody' of a child in Florida is to be granted sole parental responsibility (evidence may be needed to show that the other parent is not making decisions in the child's best interest) and limited time-sharing with the other parent. The parent with sole parental responsibility would be allowed to make all decisions regarding their child without the advice, consultation or permission of the other parent. However, the other parent would still be allowed to see and have a relationship with the child, including the possibility of overnight visits. The court deploys common sense in making this call, and under extenuating circumstances could suspend the time-sharing right until the other parent meets certain conditions, such as passing a mental health evaluation or completing rehabilitation of some sort.
Every judge has their own specific inclinations toward time-sharing and parental responsibility. In establishing parental responsibility and creating a time-sharing schedule, the best interest of the child is the chief consideration. Therefore the court will evaluate a number of factors when determining the allocation of parental responsibility and time with the child. These factors include but are not limited to:
- the ability and willingness of each parent to develop a close and continuing parent-child relationship
- the ability and willingness of each parent to act upon the child's needs in lieu of their own personal needs
- the amount of time a child has lived in a stable, satisfactory environment and desirability of maintaining stability for the child
- the geographic viability of splitting the child's time between each parent, with special attention paid to the child's schooling and travel time
- the moral, mental and physical health of each parent
- the preference of the child
- the ability of each parent to keep the other parent informed as to the decisions and circumstances of the child
- the ability of each parent to provide a consistent routine for the child, and stay informed as to aspects of the child's life including friends, teachers, favorite things and daily activities
- evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, as well as evidence of either parent attempting to falsify information with regard to these issues
- the division of parenting tasks and responsibilities prior to litigation, including responsibilities designated to third parties
- the needs of the child in accordance with their developmental stage
- the ability of each parent to shield the child from ongoing litigation by not sharing documents with the child or making disparaging comments about the other parent
- the ability of the parent to maintain a substance-abuse-free environment for the child
What makes a parent unfit in Florida?
To make the determination that a parent is unfit in Florida, the court must find that the parent has neglected, abandoned or abused the child.
Abandonment is legally defined as the failure of an able parent to ensure their child is supported and looked after, or the failure to "maintain a substantial and positive relationship" with the child. A substantial and positive relationship is defined as frequent and regular contact, communication and the exercising of parental rights and responsibilities. “Token” visits with the child and generally minimal efforts usually do not constitute a substantial and positive relationship.” A parent's incarceration may support a finding of abandonment. Section 39.01, Florida Statutes
Abuse is any action or threatened action that would result in physical, mental, or sexual injury or harm to the child that could impair the child physical or emotional health. Florida has a very broad definition of harm. Abuse includes many incidents including (among others) willful acts that produce the following specific injuries: Section 39.01, Florida Statutes
- Sprains, dislocations, or cartilage damage
- Bone or skull fractures
- Brain or spinal cord damage
- Intracranial hemorrhage or injury to other internal organs
- Asphyxiation, suffocation, or drowning
- Injury resulting from the use of a deadly weapon
- Burns or scalding
- Cuts, lacerations, punctures, or bites
- Permanent or temporary disfigurement
- Permanent or temporary loss or impairment of a body part or function
Spanking, (Corporal discipline) does not constitute abuse unless it results in harm or injury to the child.
Exposing a child to substance or alcohol abuse may also fall under the umbrella of abuse. Such exposure could be established by a test of the child's blood or urine at the time of birth to detect any amount of a controlled substance. Alternatively, this could be established by a finding of extensive, abusive and chronic use of a substance with a demonstrated negative effect on the child's well-being.
Neglect occurs when a financially able parent fails to provide adequate food, clothing, shelter or healthcare or allows the child to live in a harmful environment.
If parents do not wish to seek out certain medical treatments due to recognized religious beliefs, that, alone, will not result in a finding of neglect, however, their refusal may still be reported to and investigated by the Department of Children and Family Services. Section 39.01, Florida Statutes
Can a non-parent win custody of a child in Florida?
First and foremost, in matters of custody, Florida law favors the biological parent - promoting the ideal that a child's care ought to be the responsibility of their biological mother and/or father. Unless circumstances do not permit, the court will persist in this goal. However, under extenuating circumstances, parents may be forced to relinquish custody of the child and surrender it to a non-parent. This would occur on a case by case basis. There are a few viable paths to this outcome.
Generally, granting custody to a third party non-parent only becomes a possibility when:
- one parent is deceased and the living parent is unfit
- both parents are alive but both are unfit
- both parents have voluntarily relinquished custody of the children with a termination of parental rights
- the child has been living with the non-parent third party for a considerable amount of time
The method with the least opportunity for dispute involves the biological parents voluntarily agree, in which case a non-parent could be granted parental rights and custody of the child. Section 39.806(1)(a), Florida Statutes
If the state has reason to believe a parent is unfit, for the reasons specified in the above section, the Florida Department of Children and Families may launch an investigation of the allegations. If the investigators pursue legal action, the law requires efforts to reunify the child. In the meantime, the Court will usually assign temporal parental rights to the other parent, if appropriate. If both are found to have abused, neglected or abandoned the child, the child may be removed from their biological parents' care and placed in relative or state custody pending the rehabilitation. The specifics are in Chapter 39, Florida Statutes. Generally, an attorney will be appointed for a parent or parents who can not afford attorneys.
Alternatively, if a family member believes the child is in harm's way while in the custody of his or her biological parents, they may file a third-party petition for concurrent or temporary custody. The parents may consent or fight the petition for concurrent or temporary custody, If the parents contest the petition, the family member must prove to the court that the child is not being adequately cared for, and the biological parents are unfit to hold custody. See Section 751.03, Florida Statutes
Can one parent move out of state and still have joint-custody?
Work, family, and number of other factors may require a parent to move out of Florida. If the move happens before an initial time sharing agreement or court order, the parents' locations will be considered in scheduling the time sharing, travel, costs, etc.
In Florida, after the initial time sharing is set, any move of more than 50 miles in distance and 60 days in duration constitutes a "relocation," whether it is out of state or in the state. When one parent wishes to relocate and maintain child access and time-sharing, both parents must sign an agreement to specify the terms of the new time-sharing schedule and transportation arrangements or a court must decide those issues. If both parents agree to those terms, the signed agreement will be filed with the court and ideally will be ratified without having a hearing. Section 61.13001, Florida Statutes
If the parents cannot reach an agreement, the relocating parent must serve a Petition to Relocate on the other parent, specifying:
- address and contact information for the proposed new residence
- date of relocation
- reasons for the relocation, including a copy of a job offer letter, if applicable
- proposed time-sharing schedule after relocation
- proposed transportation arrangements
The non-relocating parent has 20 days to respond to the petition, otherwise, the court may grant the request to relocate and approve the proposed time sharing and other issues. If the non-relocating parent objects to the proposed plan, they must respond to the petition, citing reasons why the move should not occur, and other factors.
The relocating parent must provide satisfactory proof to the court that the proposed move is in the child's best interest. The court will weigh many factors when deciding whether to approve the planned relocation, these factors include: Section 61.13001(7), Florida Statutes
- the child's age
- relationship with relocating and non-relocating parent
- the child's preference, if any
- the feasibility of maintaining a relationship with the non-relocating parent
- the financial necessity of the relocation
- cost and logistics of time-sharing between the two parents
- the impact, if any, the move may have on the child's development
- any history of domestic violence or substance abuse on the part of either parent
A parent who relocates without the consent of the other parent or legal approval may be held in contempt of the court. An unapproved relocation with a child who is in joint custody may be held against the relocating parent, as the judge may order the parent to return the child, pay the other parent's legal fees, impose penalties or modify the time-sharing plan in favor of the other parent.
Can I supervise visitations?
Because Florida courts will rarely terminate visitation/time-sharing entirely, sometimes supervised time sharing may be the best course of action available. Unless the parents voluntarily agree to supervision by the other parent or another agreed-upon party in a time-sharing agreement, time sharing may be supervised in a formal, court-ordered setting by a third party,
Generally speaking, supervised visitation has limited appropriate uses. Unless the child's well-being is threatened by being alone with the parent unsupervised, the court will not find a reason to mandate supervised visitation.
Although Florida law shies away from the term 'visitation,' there are a number of supervised visitation programs available in the state of Florida which allow a third party to oversee visits between parent and child. Florida currently has 43 visitation programs with 47 sites. The majority of families enrolled in supervised visitation programs were ordered by the court to do so. In order to create a tension-free environment for the child, the court leans towards impartial supervisors (rather than the other parent or highly partisan relatives) who have the best interest of the child in mind, above all.
Generally, the supervised parent and the impartial supervisor must adhere to certain ground rules. These ground rules depend on the circumstances of the case and the reasons that made supervision necessary. They will be set forth in the supervised time-sharing agreements or orders.
How do I enforce my visitation rights in Florida?
Generally, parents are free to set up a time-sharing (visitation) schedule that best suits the dynamic of their family. Their schedule should be submitted to the court for review and approval. A finalized divorce decree (based upon the parents' agreement or upon a contested hearing) will detail the time-sharing rights each parent is entitled to. If one parent is not abiding by the agreement and interfering with visitation rights, the other parent may file an emergency motion to enforce or motion for contempt with the court.
A motion to enforce is the less combative option; it simply asks the court to enforce the parenting plan.
A motion of contempt asks the court to penalize the parent who is not complying with the schedule.
NOTE: the failure to pay child support is not grounds for denying another parent's visitation rights, nor can a support paying parent withhold child support to penalize the other parent for denying them visitation.
Do grandparents have visitation rights in Florida?
Unless the surviving parents agree, grandparents do not have visitation rights in Florida, unless very unusual fact exist. Generally, grandparental rights are limited to cases in which the child(ren) has been determined to be dependent or in adoption proceedings. At best, grandparent visitation rights are extremely difficult to obtain - even more so when one or both parents object to the grandparent visiting the child. This does not mean that it is impossible for a grandparent to see their grandchild in the event of their parents' divorce, however, they do not benefit from any enforceable legal right to see their grandchild. If the parents and grandparents come to a mutual agreement as to grandparent visitation, then the grandparent may see and spend time with their grandchild without issue.
So long as at least one parent is alive, functioning as a fit parent, a grandparent has no visitation rights to exercise. A grandparent who believes that a parent is unfit and the child's safety is jeopardized in that parent's care may petition the court for visitation rights. They have the burden of proving the parent in question is unfit, and if they do not meet their burden they may have to compensate the parent's legal fees. If the parent is proven unfit, a guardian may be appointed to protect the child's best interest. The grandparent may, in turn, be granted visitation rights if:
- An unfit parent poses harm to the child's well-being
- Grandparent visitation is in the minor child's best interest AND
- The parent's relationship with their child will not be harmed or threatened by grandparent visitation
Any legal action on the part of grandparent seeking visitation may only be filed once every 2 years at maximum. If the extenuating circumstances permit grandparent visitation, it could be terminated at any time if the court finds that the situation has changed and grandparent visitation is no longer in the child's best interest.
This stringent legal disposition toward grandparent rights in Florida is relatively newfound. Prior to 2015, a grandparent could file for visitation rights if the parent's marriage had been dissolved, the child had been born out of wedlock to parents who never intended to marry or the parent had abandoned or deserted the child. In fact, before the year 2000, grandparents could seek legal recourse if married parents used their parental authority to prohibit contact between a grandparent and minor child. The current legal disposition toward grandparent rights is worlds away from that which Florida held in the past.
What factors does the Judge use to decide who gets custody?
It is extremely important to remember that in a parent separation case, Florida Courts no longer award custody. They establish parenting plans which include time-sharing schedules. Only in very few extraordinary cases will Florida Courts grant 'custody.' For purposes of establishing or modifying a parenting plan, including a time-sharing schedule, the best interest of the child shall be the primary consideration. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular minor child and the circumstances of that family, including, but not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child's friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
Can parents make a parenting plan without a judge?
Parenting plans, formerly known as custody agreements, are required by the state of Florida and must be approved by the court. If the parents are able to agree on a parenting plan themselves without much dispute, the court will review the plan and evaluate the factors discussed in the above section. If the parenting plan is not approved by the court or the parents fail to mutually agree upon a plan, the court will step in and create a parenting plan themselves, removing a great deal of the parents' agency in the case. The benefit of state intervention in parenting plan agreements is the fact that they become legally enforceable, so a parent who believes their parental rights are being denied to them may petition the court for relief, with the aid of a skilled Florida family law attorney.
To facilitate the process of creating a parenting plan, the Florida Supreme Court drafted three generic plan types.
- A basic parenting plan for two parents who live in close proximity
- A parenting plan for when one parent is relocating or lives far from the other parent
- A parenting plan for when one parent's time-sharing with the child must be supervised by a third party
Regarding parenting plans, the law requires:
A parenting plan approved by the court must, at a minimum:
1. Describe in adequate detail how the parents will share and be responsible for the daily tasks associated with the upbringing of the child
2. Include the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent
3. Designate who will be responsible for
a. Any and all forms of health care. If the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child.
b. School-related matters, including the address to be used for school-boundary determination and registration.
c. Other activities
4. Describe in adequate detail the methods and technologies that the parents will use to communicate with the child.
Furthermore, the law firmly holds that "the court shall determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act." Because a judge is necessary for approving a parenting plan, it is crucial that each parent is equipped with an attorney experienced in family law.
Can I move to another state with my child(ren)?
Yes, if all parties legally entitled to time with the child sign a written agreement that reflects their consent to the child's relocation. This agreement must define how the other parent/party will be able to access and spend time with the child, including, if necessary, transportation agreements. This agreement can be ratified without a court hearing if no hearing is requested. If no such agreement can be reached, the parent who wishes to move with the child must file a petition to relocate with the court and serve it on the other parent. This parent has 20 days to retain legal representation and respond to the petition. Failure to respond will result in the court permitting the parent and child's relocation unless it is plainly not in the best interest of the child.
If the parent responds to the petition by opposing the relocation, they must provide a factual basis as to why they object the relocation, including a statement of the extent of that parent's involvement in the child's life. At this point the court could grant a temporary order, restraining the parent from relocating with the child or ordering the return of the child if the relocation has already taken place. Evidence will then be presented at a preliminary hearing and the court will weigh a number of factors in order to determine whether the move is in the child's best interest, given the strain it may impose on their relationship with the non-relocating parent.
Please note, if the relocation is approved, the law states:
(a) The court may, in its discretion, order contact with the non-relocating parent or other person, including access, time-sharing, telephone, Internet, webcam, and other arrangements sufficient to ensure that the child has frequent, continuing, and meaningful contact with the non-relocating parent or other person, if contact is financially affordable and in the best interest of the child.
(b) If applicable, the court shall specify how the transportation costs are to be allocated between the parents and other persons entitled to contact, access, and time-sharing and may adjust the child support award, as appropriate, considering the costs of transportation and the respective net incomes of the parents in accordance with the state child support guidelines schedule.
If a parent is temporarily relocating for a short duration from their principal residence, for the sake of vacation, education or health care for their child, then a petition to relocate is not necessary.
How far away can I move without going back to court?
50 miles. Any move greater than 50 miles constitutes a formal relocation, which requires the consent of the other parent who holds time-sharing rights and the approval of the court. Bear in mind, if you move to a different county and wish to make any changes to the parenting plan, you will need to change the venue to a different court of record. If you move within 50 miles of your original residence, the parenting plan will remain unchanged. The newfound distance, however, may make it more difficult or strenuous to maintain the terms of the time-sharing agreement with regards to transportation and other various costs.
Do I have to go back to the original county to modify my visitation plan (parenting plan)?
No, not necessarily. Modifications to the original parenting plan may be made in the same county circuit court where the parenting plan was drafted. However, the law allows:
For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.
In the event that a child has been removed the state with the sole intention of removing the child from the original court's jurisdiction, the court may still move forward in approving or modifying a parenting plan, even in the child's absence from the state.
How can child support be modified in Florida?
"The court [may] modify the amount and terms and conditions of the child support payments if the modification is found by the court to be in the best interests of the child; when the child reaches majority; if there is a substantial change in the circumstances of the parties; if s. 743.07(2) applies; or when a child is emancipated, marries, joins the armed services, or dies." Section 61.13(1)(a)2, Florida Statutes
This response is limited to a change based on "a substantial change in circumstances." In order for child support to be modified, the substantial, unforeseen and involuntary change of circumstances since the Final Judgment of Dissolution of Marriage or the most recent entry addressing child support was entered. The reason the court qualifies that the change in circumstances must be involuntary is to deter parents from voluntarily actions such as quitting their job for the sole purpose of obtaining a greater child support sum. This does not definitively mean that recipient parents who quit their job cannot receive increased child support from the other parent, nor does it entirely preclude a paying parent to have payments decreased if they quit their job - both scenarios are simply very unlikely, though not impossible; the court would handle this example on a case by case basis.
The guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. Whether you are a parent recipient of child support who is petitioning for an increase, or a parent paying child support petitioning a decrease, it is possible to modify child support in the state of Florida - provided the amount will be changed by at least $50 or 15% of the current child support amount. Section 61.30(1)(b), Florida Statutes
Child support in Florida can never be designated as un-modifiable. Establishing it or modifying it is not an easy process, but is much easier with an experienced attorney to guide you through.
Substantial changes which the court may consider in decreasing child support in Florida:
- Loss of job by the paying parent
- Loss of income by the paying parent
- Increase in income of the receiving parent
- Decrease in childcare expenses
- Removing a child from the support order (i.e. child turns 18)
- Removing medical support from an order
Substantial changes which the court may consider in increasing child support in Florida:
- Loss of job by the receiving parent
- Loss of income by the receiving parent
- Increase in income of the paying parent
- Increase in childcare expenses
- Health insurance becomes available and insurance expenses ensue
- Adding a child to the support order
- Adding medical support to the order
A change of income is the most common reason for which the court is requested to modify child support. Naturally, the financial ability of a parent to pay child support or the relative financial necessity of the recipient parent for childcare expenses are the chief factors taken into account. Modifications are ultimately made if they are in the best interest of the child.
The court does not define exactly how much income must increase or decrease in order for child support to be modified, but the resultant change in child support must be a modification of at least $50 or 15% of the total amount. However, if the amount of child support differs by at least 10% from the amount calculated in Florida's child support guidelines (which only allow for deviations of 5%), the child support may be modified so that it aligns with the amount calculated in Florida's guidelines. A modification under these circumstances would not require proof of a substantial change, as it is considered correction of an oversight.
Changes in income are not the only circumstance under which the court modifies child support. A relatively new law allows the courts to consider parenting time as a factor for which child support may be modified. A parenting plan (formerly, custody agreement) will allocate time between the two parents. The court reviews this plan when child support is calculated. However, if the parents end up significantly deviating from the plan, this may be grounds for modification of child support. For example, if the parenting plan gives the recipient parent 280 overnights annually and the paying parent 85 overnights annually, but the actual split is closer to 220 overnights and 145 overnights, the court may reduce child support, because the recipient parent is not spending as much time with the children as previously agreed upon.
It is important to note that the court which entered the original child support order has jurisdiction over any proposed modifications. However, if the parents have moved a significant distance from the location of the original court, it is possible to change the court venue for the convenience of the parties involved.
Limitations for Modifying Child Support in Florida
The Florida Department of Revenue stipulates that:
1. Child support cannot be changed if the child support order will end within six months of receiving the request.
2. Child support cannot be changed if the support order has been reviewed or changed in the last 3 years, UNLESS the parents can show the aforementioned substantial change in the circumstances of either parent or child which would be grounds for modifying child support
How to Petition For A Change in Child Support in Florida
If you seek to modify child support in Florida, you must file a Supplemental Petition to Modify Child support. If you believe the other parent will contest your motion to modify child support, you are advised to speak with an attorney, especially if you believe the other parent has retained one already. Generally speaking, the process may be smoother if the two parents discuss the potential modification prior to filing a petition. If the parents agree prior to advancing with the court, there is far less room for dispute. This is not always possible, and sometimes attorneys are required even when the parents are in agreement. Generally, it is strongly recommended that you retain the services of an attorney if you wish to modify child support or contest a modification of child support.
If you choose not to retain an attorney, the court's Self Help staff will not:
- give you legal advice or explain your rights
- represent you in court
- tell you what forms to file
- tell you how to present your case
- notify you that your case is ready to file
The process of modifying child support runs smoother with the advice and aid of an attorney. Florida courts give parents access to pre-approved forms which include instructions on how to fill them out properly. However, a parent must still compile supplemental information to support their claim that there has been a substantial change in circumstances. There must be documentation to support this claim. Furthermore, the parent must write a compelling argument as to why a modification of child support is necessary, appropriate and in the best interest of the child. This is where a Florida family law attorney can be of great use, as they are familiar with the law and can help you draft a compelling argument to justify the modification you seek. Once completed, the supplemental petition must be signed before a notary public or deputy clerk. You will need to make copies, one for you and one for the other parent, seeing as the clerk will keep the originals.
There is a $50 filing fee to reopen the child support order, a $10 summons fee, $1 per page copy made by the clerk, and $3.50 per notary signature.
The forms needed when petitioning for a change are as follows:
- The Petition
- Notice of Limitation of Services Provided/Disclaimer
- Cover Sheet for Family Cases
- Supplemental Petition for Modification of Child Support
- Financial Affidavit
- Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Affidavit
- Notice of Filing the Child Support Guidelines Worksheet and the Guidelines Worksheet (this should be filed no later than 45 days after filing the initial petition)
- Certificate of Compliance with Mandatory Disclosure
- Notice of Related Cases
- Proof of attendance of an approved “Parenting Stabilization Course” (unless already filed)
The respondent parent will file:
- An Answer and Waiver
- Financial Affidavit
In Florida, there are two different financial affidavit forms - one for incomes under $50,000 and one for incomes above $50,000.
If the other parent files a counter-petition, you will have 20 days to answer their counter petition.
Bear in mind, depending on the jurisdiction, most courts mandate mediation outside of court. Mediation allows both parties to have open discourse about the matter before going to court, with the hope of coming to an agreement in mediation without ultimately requiring the court's intervention. If the parents cannot come to an agreement because of contested issues, a notice for trial must be filed. In turn, evidence and documents must be gathered for court and both parties will appear at a final hearing.
Given the relative complexity, a petitioning parent will want to leave as little room for error as possible. For this reason, it is critical that they retain a Florida family law attorney to help them navigate this process.
How is child support determined in Florida?
Some parents are left confused by the way child support is calculated in Florida. Under Florida law, the parent of four children may pay less child support than a parent of one child for example, depending on the circumstances of the case. The method is not always straightforward or easy to comprehend. For parents currently going through a divorce and undergoing child support proceedings, the best thing they can do is arm themselves with knowledge of the Florida child support calculation method. Generally, a parent will continue to receive child support until the child has reached 18 years of age.
The guidelines dictating child support calculation in Florida are found under Florida Statute 61.30. The amount that the court ultimately orders can deviate from the amount dictated by the guidelines, but only by a small margin of 5% above or 5% below. If the court chooses to deviate from the guidelines by an amount greater than 5%, they must produce a written finding explaining their rationale for why the guidelines are unjust or inappropriate in this case. See Section 61.30(1)(a), Florida Statutes
The court may deviate from the amount set in the guidelines for any of the following reasons:
- Extraordinary medical, psychological, educational, or dental expenses.
- Independent income of the child
- The payment of support for a parent which has been regularly paid and for which there is a demonstrated need.
- Seasonal variations in one or both parents' incomes or expenses.
- The age of the child, taking into account the greater needs of older children.
- Special needs, such as costs that may be associated with the disability of a child
- Total available assets of the paying parent, recipient parent and the child, if any.
- The financial impact of the Internal Revenue Service Child & Dependent Care Tax Credit, Earned Income Tax Credit, dependency exemption and waiver of that exemption.
- A case in which child support guidelines require a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order.
- A child spending less than 20% of overnights with one parent
- Any other adjustment that is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt that the parties jointly incurred during the marriage.
According to the Florida Department of Revenue, child support guidelines consider:
- The income of both parents
- The child's health care and childcare costs
- The standard needs for the child
- Number of days spent with the child by each parent
- Basic child support amount in Florida
- Child's age
- Child's station in life
- Child's standard of living
Child support payments cover:
- Medical expenses not covered by insurance
- Various childcare expenses necessary to wellbeing of child
- Medical premiums
Child support payments can be made:
- Twice per month
- Every two weeks
- Every week
The percentage of financial responsibility of each parent is determined by dividing the collective income of both parents by the individual income of each parent. Each parent's basic monthly obligation is determined by multiplying the number of children by each parent's percentage of financial responsibility.
What does the court consider when determining the income of each parent?
The court does not exclusively consider the annual salary of each parent. Other factors used to determine gross income include, but are not limited to:
- Salary or wages.
- Bonuses, commissions, allowances, overtime, tips, and other similar payments.
- Business income from sources such as self-employment, partnership, close corporations, and independent contracts.
- Disability benefits.
- All workers' compensation benefits and settlements.
- Reemployment assistance or unemployment compensation.
- Pension, retirement, or annuity payments.
- Social security benefits.
- Spousal support received from a previous marriage or court ordered in the marriage before the court.
- Interest and dividends.
- Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income.
- Income from royalties, trusts, or estates.
- Reimbursed expenses or in-kind payments to the extent that they reduce living expenses.
- Gains derived from dealings in property, unless the gain is nonrecurring.
Those factors are used to calculate gross income. The parents may then subtract some deductions in order to arrive at net income. These deductions include:
- Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities.
- Federal insurance contributions or self-employment tax.
- Mandatory union dues.
- Mandatory retirement payments.
- Health insurance payments, excluding payments for coverage of the minor child.
- Court-ordered support for other children which is actually paid.
- Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court.
The figures of each parent's net income are then added together and the total monthly net income of the parents is determined. Each parent's percent responsibility is determined by dividing their individual net income by their collective net income. Whatever percentage this yields, each parent is then responsible for paying that percentage of the total child support amount arrived at in Florida's child support guidelines.
The following table shows the amount of child support ordered, depending on the monthly net income of both parents and the number of children they have. This is a sample of the full table, which begins at combined incomes of $800 minimum and $10,000 maximum:
|Number of Children|
|Combined Monthly Net Income||1||2||3||4||5|
If the total net income of the parents totals less than $800, the court's minimum net income figure, then the child support amount shall be determined by the court on a case by case basis. If the total net income of the parents totals more than the $10,000 maximum in the court's table, then the amount of child support will be determined as follows:
For combined monthly net income greater than the amount in the guidelines schedule, the obligation is the minimum amount of support provided by the guidelines schedule plus the following percentages multiplied by the amount of income over $10,000:
|Child or Children|
Additional expenses such as health care premiums or school tuition would be above and beyond the obligation of child support and split between the two parents according to their percentage of parental responsibility.
If a parent incurs additional childcare costs because of employment, a job search, advancing education for the purpose of a job (i.e. babysitter expenses while a parent is taking courses in order to get a specific job), these expenses will be added on top of the basic child support obligation.
If the court finds that a parent has become voluntarily unemployed, with the aim of reducing their child support payments, the court will continue treating the parent as though they were employed full time and earning a full-time wage.
When will child support stop?
Generally, child support will end when the child attains 18 years of age. However, there are a few exceptions. If the child is over 18 but has not yet graduated high school, a child support order may continue until the child completes high school, so long as the child is performing in good faith and reasonably expected to graduate by the time he or she is 19.
The court may require a parent to pay child support even when the child is greater than 18 years of age, if that child has a mental or physical incapacity which began before they turned 18.
If there is more than one child in the support order, then the child support amount will decrease as each child individually reaches their 18th birthday, by only the proportional amount that that child was costing in child support.
The Income Withholding Order must specify the end date of child support. In the case of multiple children, the IWO will specify the reduced amount as each child attains majority (turns 18.)
Child support orders signed in Florida prior to October 2010 may not contain end dates. Furthermore, not all child support orders signed after October 2010 contain the legally mandated end dates in the support orders and corresponding IWOs. By citing specific termination dates, the court meant to facilitate the process of ending child support or reducing it because a child had aged out. These dates eliminated the need to return to court to terminate child support.
How Child Support Is Terminated in Florida
Stopping Direct Pay
If child support has been made in direct payments by the paying parent to the recipient parent, the simplest means of terminating child support is simply stop sending checks or ceasing any alternative form of payment after the child's 18th birthday - provided there are no circumstances which require the parent to continue paying child support after the child turns 18. The child support case would not need to be reopened and no documents need be filed with the court. The paying parent is simply done with court-ordered child support payments.
Termination by Judge
In many cases, child support is paid directly to the state by the paying parent, or by the employer to the state on the parent's behalf. The Florida State Disbursement Unit is responsible for disbursing the child support payment to the recipient parent. This makes the child support payment method an affair of the state and creates much more red tape for the parent to navigate. Even though a termination date may be set in the support order or listed on the IWO, the paying parent must retain a family law attorney and get an order from the judge terminating their child support obligation. If the paying parent fails to do this, even when their child has turned 18, they may be accused by the FSDU of failing to pay child support. There are a number of state agencies that need to be made aware that the child support order has ended.
When Child Support Can Never Be Terminated in Florida
If you have a special needs child, it is possible that child support will be continued beyond the age of 19 and possibly for the rest of the child's life. If the recipient parent does not specify a child's special needs status in the final support order, they cannot reopen the order to have child support continue after the child turns 18. Therefore, if a child is special needs, this status must be listed in the court order, otherwise, child support will irreversibly terminate when the child turns 18.
When Child Support Can Be Terminated Before the Child Turns 18
It is also possible for child support to be terminated before the child acquires 18 years of age. In the event the child marries before the age of 18, is emancipated, voluntarily moves out or joins the military, the state presumes the child is now supporting themselves and the recipient parent is no longer in need of child support payments.However, the paying parent should obtain a court order to protect for a charge of non-payment.
What if the father/mother refuses to pay child support?
There are various serious consequences if a parent fails or refuses to pay child support in the state of Florida. If a financially able parent refuses to pay, they may:
- be held in contempt of the court
- receive up to 180 days of jail time
- see their credit score adversely affected
- have liens placed on their property
A parent who is not receiving child support because the other parent is refusing to pay can begin by retaining a Florida child support enforcement attorney and contacting their local child support office. Once the state has been made aware of the parent's failure to pay, the Florida Department of Revenue can compel the parent in question to pay child support or file for a hearing. Such a hearing would be presided over by a hearing officer in lieu of a formal judge. The Florida Department of Revenue would file a Motion for Contempt, and the hearing officer would be presented with evidence of the parent's refusal to pay child support.
Enforcement may occur in the form of a simple letter, alerting the parent that payment is late and legal repercussions will follow if they do not pay. Alternatively, collection efforts may be formally instituted by a Florida state collection agency. Another option is to deduct child support payments from income tax returns, worker's compensation relief or unemployment paychecks. It is possible for a nonpaying parent to incarcerated until all payments are made, depending on the circumstances of the case. It is the legal responsibility of the parent alleging nonpayment to prove that the nonpaying parent is financially able to pay and refusing to do so. For this reason and many others, a parent seeking to act against a nonpaying parent is advised to retain a family law attorney, experienced with Florida child support law.
In addition to the above courses of action, penalties may apply for a parent who has failed to pay child support. These penalties include:
- Driver's license suspension
- Supplemental fine payment
- Bank accounts seized
- Seizing occupational licenses
A parent will not be exempted from paying child support if they move out of state. All 50 states have adopted the Uniform Interstate Family Support Act which holds that no other state can alter the child support order entered by another state as long one of the parents is still residing in that original state. Therefore, if a father moves out of Florida and stops paying child support, a court in his new state of residence will not be able to alter or alleviate his child support duty if the mother still resides in Florida with the child.
Per the Federal Child Support Recovery Act, if an out-of-state parent accrues at least $5000 in unpaid child support and does not pay for over a year, this constitutes a misdemeanor which is punishable by up to 6 months in prison. This applies to first-time offenders. Subsequent offenders may be punished by up to 2 years in prison. If a parent takes more than two years to pay an accrued child support balance of $5000 or accrues and fails to pay $10,000, they may be sentenced to 2 years in prison.
In addition, the state of Florida has a Child Support Enforcement Bureau which operates in 12 of Florida's 67 counties offers the following services:
- Establishment of Paternity
- Establishment of Support
- Establishment of Paternity & Support
- Enforcement of Child Support Obligations
- Modification of Child Support Obligations
It is important to note that child support debt can neither expire nor be eliminated in bankruptcy.
May I cut off visitation (refuse to honor time-sharing) when the other parent misses child support payments?
No. Florida law strongly believes a parent cannot and should not be denied access to time with their child because a relationship with both parents is presumed to be in the best interest of the child. Child support and visitation/time-sharing are two entirely separate legal issues and do not infringe upon one another unless a refusal to pay an amount in excess of $5,000 results in a parent being jailed or imprisoned.
A parent cannot withhold visitation from the other parent because they are not paying child support. Although it is entirely possible to modify visitation for different reasons, it is very unlikely the court will ever completely sever visitation between parent and child, unless the parent is dangerous or visitation contradicts the child's best interests.
Otherwise, to deny visitation, even to a parent failing to pay child support, violates their parental rights. In addition, if a parent withholds visitation from a non-paying parent, this could harm their good standing with the court for which there may be repercussions.
By withholding visitation on this principle, parents are wrongfully operating in the notion that time spent with a child is 'bought' with payment of child support. This is not the case at all. A relationship with one's child is not 'earned' because they paid a court-ordered amount. For this reason, they cannot be denied that relationship even if they fail or refuse to pay child support. It is a separate legal issue and the child should not take the brunt of the parents' financial quarrels by being denied time with one parent. Visitation is not only the right of both parents but the right of the child as well.
May I stop paying child support because my visitation has been cut off?
No. Voluntarily failing to pay child support is illegal and would only hurt your child because the parent may in turn not be able to adequately provide for them.
Even if the financial situation is not quite so cut and dry, a parent may not cease paying child support for any reason, lest they are held in contempt of the court with the potential for a number of penalties, discussed above. By denying visitation, the other parent is already in violation of the custody order and possibly contempt of the court. As the denied parent, you do not want to join him or her. If you are being denied visitation rights, continue paying child support and seek assistance from the court. If you seek out an attorney, they will likely be able to file a Motion to Enforce the Custody Order.
How do I become the legal guardian of an adult in Florida?
In order to become the legal guardian of an adult in the state of Florida, three things must first be established.
1. The ward's mental capacity or lack thereof
2. The ward's proposed guardian must be appointed to carry out the ward's financial or personal affairs
3. The guardian must provide accounting for the court of the ward's affairs
A person is qualified to be a guardian if he or she is at least 18 years and a Florida resident. However, the law states:
A nonresident of the state may serve as guardian of a resident ward if he or she is:
(a) Related by lineal consanguinity to the ward
(b) A legally adopted child or adoptive parent of the ward
(c) A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone related by lineal consanguinity to any such person
(d) The spouse of a person otherwise qualified under this section.
A person is disqualified from being a guardian if he or she has been convicted of a felony, committed abuse, abandonment or neglect toward a child, or "from any incapacity or illness, is incapable of discharging the duties of a guardian."
Adult guardianship is defined as "the process by which the court finds an individual's ability to make decisions is impaired, therefore the court gives the right to make decisions to another person or entity. Guardianship is only warranted when no less restrictive alternatives, such as a durable power of attorney, a trust, a health care surrogate or proxy, or another form of pre-need directive, are found by the court to be appropriate and available. Legislative intent establishes that the least restrictive form of guardianship is desirable if it is in the best interest of the ward.
A person who wishes to act as guardian of an adult ward would retain an attorney and file a Petition for Adult Guardianship with the court. Their lawyer would help them navigate the process with the court.
In a Florida divorce or custody battle, the caliber of legal representation you choose has a powerful effect on the final outcome of your case. Former Judge Fred Koberlein has been practicing law in the state of Florida for almost 40 years and is committed to defending your rights in a divorce or child custody battle. Do not hesitate to contact Koberlein Law Offices online or by telephone at 386-269-9802 for their Lake City offices, and 352-519-4357 for their Gainesville offices.