Articles Posted in Family law

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Florida’s tradition of family law acknowledges that there is more than one way to be a father.  The child’s biological father is not necessarily the child’s legal father. In fact, when establishing paternity, the courts do not always order DNA paternity tests. Sometimes a Voluntary Acknowledgement of Paternity is all you need. Things get more complicated when it comes to matters of child support, however. Is the biological father always the one who should pay child support for the child? The answer, according to Florida case law, is that it depends, and not always in the ways you would expect. The decision in the Parker v. Parker case will surprise many people, but the reasons behind the decision reveal a lot about what it means to be a father in Florida.

The Facts of the Parker v. Parker Case

Parker v. Parker made news as the case in which a Florida court ordered a man to continue to pay child support for his ex-wife’s son even after a DNA test proved that he was not the child’s biological father.  When Richard Parker and his wife Margaret initiated their divorce, their son was more than a year old. The court ordered Richard to pay $1,200 per month in child support.  Richard fell behind on the child support payments, and the court tried to enforce payment of them. Richard responded by expressing doubt that he was the child’s biological father, as Margaret had been unfaithful to him during the marriage.  Even after the family underwent DNA testing, and the results showed the Richard was not the biological father, the court required him to continue paying child support. Why would a court order a man to pay child support for a child of whom he was not the biological father and whom he did not adopt? Continue reading

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In recent decades, Florida courts have shown more appreciation for the important role of fathers in their children’s lives. For example, the idea of a mother having “primary custody” of the children while the father only has “visitation” is mostly a thing of the past. Today, parenting plans contain a lot more detail and nuance about the role of each parent. All of this is simple enough when it comes to fathers who have gone through a divorce from the children’s mother.  But what about when the child’s parents were never married to each other? Then is it easy for the mother to keep the children away from the father?  In order for unmarried fathers to be able to defend their legal rights to a meaningful relationship with their children, they must first legally establish paternity.

What Rights do Fathers Have?

You might think that going through the process to establish paternity is unnecessary red tape, especially if you communicate well enough with your child’s mother that there have never been any major disagreements about the child. You might have an unwritten agreement where you take care of the child at certain times and provide some financial support to the child. Without legally establishing paternity, though, anything can change. What if a new partner enters the picture? What if one of you decides to move out of state? Continue reading

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Child support is calculated initially by adding together each of the parties respective gross incomes.  What can you do if one of the parties is out of work and unemployed?  Do you have the right to impute income to the unemployed parent?

Florida law authorizes a court to impute monthly income to a voluntarily unemployed parent.  Florida Statute 61.30(2)(b) authorizes the imputation of income.

A trial court must engage in a two-step process when they are asked to impute income to an unemployed parent. First, the court must conclude that the termination of income was voluntary.  An example of voluntary employment occurs when you are terminated from your employment based on your own actions or misconduct.  See the case of Heard v. Perales ( Florida 4th DCA 2015) for a further discussion on this topic.

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Alimony is an area of the law that requires a fact intensive investigation by the court.  When a court decides to either award an alimony claim or deny an alimony claim, the court is required to consider all of the statutory factors set forth in Florida Statute 61.08(2).

If a final judgment fails to consider all of the factors set forth in Florida Statute 61.08, the judgment is fatal, and the award or denial of alimony will be reversed and remanded to the trial court for further consideration.

This problem arose in a recent case from Broward County, Florida. In the case of Badgley  v. Sanchez, 165 So3d 742 (2015), the trial court failed to consider all of the statutory factors in making an award of alimony.  The appellate court took note of the fact that some of the statutory factors were considered, but not all of them.  The appellate court stated that a failure to consider all of the mandated factors is reversible error.

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A parenting plan is a written contract between the parents of minor children.  Parenting plans are subject to court approval.

At a minimum, a parenting plan must include the following: (1) A description as to how the parents will share and be responsible for the daily tasks associated with the upbringing of the child; (2) the time sharing schedule arrangements that specify the time that the minor child will spend with each parent; (3) which parent will be responsible for health care; (4) school related matters, including the address to be used for school boundary determination and registration; (5) other activities that the minor child may be involved with and who shall bear the expense of those activities; (6) the various methods in which the parents shall communicate with the child.

A parenting plan can be as detailed as the parents require, and can provide for any specific situation concerning the family.

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It is understandable that some spouses who are divorcing are not necessarily in the mindset to cooperate with one another. After all, fighting and disagreements have likely played a role in the decision to end their marriage. However, refusal to come to an agreement regarding one or more issues in a divorce can cause serious delays and can increase the cost of a divorce.

Before a court will grant your divorce, you and your spouse must settle numerous issues including:

  • Property and debt division;
  • Child support;
  • Time-sharing and visitation;
  • Parenting plans;
  • Alimony.

If any one of those issues cannot be settled out of court, the divorce can be delayed as the court will have to decide for you. You and your spouse will have to present evidence to support your arguments for how you want to resolve the issue at trial and the judge will rule on the matter.

A recent divorce case demonstrates just how much a divorce case can be affected by adversarial disputes instead of cooperation. After 25 years of marriage, the wife of the founder of Cancer Treatment Centers for America filed for divorce. The filing occurred in 2009 and the case is still dragging on due to several disagreements regarding a prenuptial agreement, custody, and division of their millions of dollars in assets. The case has involved numerous hearings, appellate hearings, changes of lawyers, contempt orders, and other complications, and is now finally going to trial over asset and property division. In the meantime, both spouses have likely spent an enormous amount of money, stress, and time dealing with the divorce proceedings and have been unable to remarry since their marriage is not yet dissolved after more than six years. Continue reading

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When two people get married, it often makes sense to combine finances. Spouses open joint bank accounts and combine their incomes to help each other pay off debts–both pre-existing debts and new ones acquired during the marriage. In many situations, spouses may depend on one another to be able to cover their monthly bills. This can all lead to a messy situation if the spouses decide to get divorced.

During a divorce, Florida law requires the fair and equitable division of all jointly-owned property and this law applies to debts, as well. However, dividing up debts can be complex, especially if some debts are owned individually and others jointly. The name on the debt does not always mean that person will be solely responsible for the payments, however, and it is important to discuss debt division with an experienced divorce attorney who understands the relevant law. The following is some brief information regarding the division of certain debts in divorce:

Student Loans

Student loans are often individual debts unless the spouses cosigned on the loans or the loans were acquired during the marriage. In such cases, the loans would be considered marital debt and you may be held responsible for sharing the payment unless you and your spouse can agree otherwise. However, even if you agree that your spouse will be responsible for the loans, your name will likely remain on the loans and any failure to repay could affect your credit. Continue reading

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A major issue between parents who split up is who will get custody of their child. In many cases, if you do not particularly like the other parent or believe he or she may be irresponsible in some way, you may want to obtain sole custody rights. However, getting sole custody in Florida is extremely difficult.

In order to understand why this is the case, you should have a basic understanding of custody laws in Florida. First, there are two different aspects to child custody:

  • Physical custody: the time you spend with your child visiting you or living with you; and
  • Legal custody: the right to be a part of major decisions in the child’s life, including schooling, activities, religion, and medical care.

In Florida, physical custody is called “parenting time” and legal custody is often referred to as “parental responsibility.” How these rights are divided between parents is set out in a parenting plan that must be approved by the courts. Continue reading

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If you are no longer married or in a relationship with the other parent of your child, you will need to make many legal decisions regarding time-sharing and visitation. These are the terms that have largely replaced the term “child custody” in Florida, since Florida law sets out that maintaining continuing and frequent contact with both parents is in the best interests of the child unless there is evidence to the contrary. No longer do the courts presume that the mother should automatically have full custody and the courts make this type of determination hoping to uphold both parents’ rights to share in raising their child.

Determining how to share time and legal custody of children is not a simple matter and many parents may consistently argue over specifics of the arrangement. To avoid this, parents who have joint physical and/or legal custody over children must have a parenting plan approved by the courts. It is always preferable for parents to agree to the specifics of a parenting plan and then have the court approve it, as they know their child’s schedule and specific needs firsthand. Unfortunately, in some cases, parents cannot agree on all of the specifics of a parenting plan and the court must intervene and decide for them. No matter who decides the specifics, however, a parenting plan must include certain provisions.

Necessary Provisions in a Parenting Plan

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Mental incapacity plays an important role in many different family law matters. Cases alleging mental incapacity of one of the spouses can become complicated and adversarial. Because you cannot actually get into someone’s head and know what they were thinking at a particular point in time, gathering and presenting evidence of mental incapacitation can be complicated. The following are some examples of when mental capacity may be at issue in a Florida family law case.

Marriage

In order for a marriage to be valid, both individuals must be of sound mind, must understand the nature and effects of getting married, and must be mentally capable of agreeing to the marriage. Simply because one person has a mental condition does not automatically render them incapacitated for marriage purposes, but if a court decides one spouse did not have the capacity to agree to a marriage, that marriage will be deemed invalid.