FAMILY LAW FAQ

Yes, it can. Depending on if the person who is paying the alimony, if they no longer have the same stream of income as to when they agree to pay that certain alimony amount, they can petition the court to have alimony reduced. Or, if the party that who is receiving alimony, if one gets knowledge that they are suddenly making a lot more money than they were before, and there’s no longer a need for the alimony, the alimony can be modified at that time. Typically, in cases where one of the parties dies, either the receiving spouse or the spouse who is making the alimony payments, alimony typical ends at that time. Or, if the receiving spouse remarries, it’s typically in a marital settlement agreement that upon remarriage, the alimony will end at that time.

Well, as sad as this may be for some folks to hear, unfortunately you cannot oppose a divorce in Florida. Because Florida is a no-fault divorce state, it is nearly enough for one party to allege that the marriage is irretrievably broken. You can certainly try to do your best to argue that it isn’t. At the end of the day, however, if the other party is motivated enough and it gets through the process of mediation and eventually a trial, (even if you do not want a divorce) a judge would still find at that point that the marriage is irretrievably broken and grant it.

Adultery or infidelity in Florida, because Florida is a no-fault divorce state, adultery or infidelity only really matter in a very small or limited context. Typically in cases where if the spouse that’s committing the adultery is wasting marital assets in furtherance of the adultery like for example if someone is paying for their boyfriend or girlfriend’s car insurance or car loan or rent at an apartment. That can be charged against that spouse when it comes time to divide the marital estate.

What the case law in Florida generally reflects is that the only type of alimony that a party can not waive out of or contract out of in a pre-nuptial agreement is temporary attorney’s fees. All other types of attorney’s fees or alimony you could always limit by that pre-nuptial agreement.

Absolutely. Because Florida law does not create a presumption with regard to gender whether male or female, very much like it does with regard to custody not showing a presumption for the mother over the father. Similarly in alimony calculations, it’s just simply based on need and ability to pay. If the wife makes considerably more money than the husband, and the husband has a need for alimony and the wife has the ability to pay, that would certainly be up to the court to award in that case.

Absolutely not. Both parents have a right to visit and see their children. And in many jurisdictions in Florida, the issue, which is called a a temporary standing order, outlines the parameters of how the parties are to behave during the pendency of the litigation. One of the parameters is that the residential parent, or the parent with the majority of time sharing, has an affirmative obligation and a duty to provide time-sharing to the parent that does not have the majority time-sharing. It is a very poor choice or bad decision for one parent to alienate children from the other spouse, as that can also be a factor in determining custody at the time it goes to trial, if it does so.

There are a lot of factors to consider when choosing a divorce attorney in Florida. One of them is, of course, looking at the experience of the lawyer that you are looking to hire. If you have certain issues in your divorce csae, that this attorney has experience in handling, I think that is very crucial. In some cases, divorce can get very complex. It’s not a simple matter of dividing a house, getting some time-sharing with the children, and a 401k. Sometimes it can things like valuing a business or what sort of future income is going to be and making some sort of projection with regard to alimony or something of that nature. Thus, it is very important to look at an attorney’s prior experience in handling those kinds of matters when considering a divorce attorney.

I think it’s also about personality as well. I know that oftentimes there is a premium put on whether or not the attorney is “aggressive.” My personal opinion about that is that aggression is not always a good thing. Sometimes if you’re too aggressive you’ll push the other party in the other direction, rather than seeking a favorable resolution that would be good for both parties. So, that’s certainly something to consider when choosing a good attorney.

Well, there is a couple of ways you can handle a divorce when your house is underwater. For one, you guys can agree to sell the home in a short-sale. Another thing that can be done is if one of the parties agrees to take the house as part of the marital settlement agreement, (if they are able to continue making the mortgage payments on the home, despite the fact the home is underwater) they can do that as well. Those are typically the ways in which a home that’s underwater is taken care of in a divorce. Any other option is to go through the procedures of foreclosure, that would be another way.

Florida law requires that assets in a divorce are divided equitably. A lot of time, people mistake equitable for equal. but the technical meaning of the word is what’s most fair, not necessarily what is equal. What a court typically does in those sorts of cases is they look at how to most fairly distribute the assets between the husband and wife. And, a lot of times, things like the earning power of the two parties, future incomes, things of that nature may matter.

Divorce is initiating first in Florida by first filing a divorce petition. In that petition you have to put in the residential requirements that you’ve been a resident in Florida six months or longer prior to filing of the petition.You have to also show whether or not the person you are divorcing is in the military, whether or not you have minor children, you have to allege that the marriage is irretrievably broken, and you have to do a “prayer for relief.” After the divorce is started in Florida, at that point, it is sent out for service and the other party has 20 days to answer it, otherwise, he or she faces a default.

Usually there is a criteria that the court looks towards and that is need vs ability to pay. So in other words, if one party has a need and the other party has the ability to pay, that’s generally when the other spouse is going to be forced to pay the other side’s attorney fees. Again too, it’s really on a case by case basis and depends on the circumstances.

Calculating alimony is a complicated mixture of various considerations. Unlike child support, which has a rigid formula, there is more flexibility with calculating alimony. With that being said, there are still three main issues that a judge will look at:

1. One party’s need vs the other party’s ability to pay
2. Standard of Living
3. Length of the marriage.

Of these factors, the length of the marriage may be the most important one. For example, a marriage that lasts at least 17 years is considered a “long-term marriage.” When a divorce involves a long-term marriage, then the judge could order the higher earning party to pay “permanent alimony” to the other party. However, if a marriage lasts under 11 years, it is considered a “short-term marriage.” Short-term marriages are much less likely to get any form of alimony, especially, “permanent alimony.”

It absolutely could because a lot of times the loss of a job is not foreseen at the time when a court orders something or parties agree to something. At that point that would be what is considered a substantial material and unanticipated change in circumstance. At that point what that party would have to do is petition the court to ask for a reduction in child support or alimony if they were paying alimony.

Child support is calculated usually by several factors. It’s calculated by what the mom’s income is, what the dad’s income is, how much time-sharing (that is the number of overnights each party gets during the year) whether or not there is a health insurance obligation and whether or not there is a daycare obligation, as well. Essentially, what happens is all those things are mashed together and then an obligation amount is generated, that is essentially set by statute. Whatever that statutory requirement is, the party that has the obligation pays it to the other.

Absolutely, because usually in cases where a father is just paying child support those are generally going to be cases under the department of revenue. They only handle child support. The way the law works in Florida, unwed mothers have 100% rights to parental responsibility, time sharing, decision making until that unmarried father files a petition for paternity in civil court. There has to be either an agreement with the other party of get a time sharing arrangement parenting plan from the judge. Otherwise, they do not have any rights with respect to any of those decisions involving their children. So it is very important that they do that.

I think it is absolutely crucial when you are faced with a divorce that you hire an attorney. First of all, to navigate through the legal system is very complex and complicated, and it is very easy to miss something or to lose a right. If there is something that you are entitled to, be it money from a retirement fund or something of that nature, it is imperative that you have an attorney for that short of thing. Nothing is worse than (and I have gotten these types of phone calls before) where somebody has called me up and said “hey, I just signed a settlement agreement, but I do not like something about it. What can you do?” And, I have to tell them that, “unfortunately, at this point, it is too late to do anything.” And, they likely gave up a lot of rights to something they could have had, had they spent the money on hiring an attorney. So, do not think of it as money poorly spent, because in actuality, you could be saving yourself thousands of dollars in the long run.

Well, if your ex-spouse is no longer paying child support, one of the mechanism that you can use is that you can file a motion for contempt and reopen the court case. He or she will be brought before a judge to see why he or she is no paying the child support obligation. If a judge finds that their lack of paying child support was willful, the judge can hold the party in contempt at that time. If they are making a good faith effort to pay at least some of their child support obligation, that will certainly be taken into consideration.

Well, it depends. One of the things is that if it’s a situation where you and your ex are on relatively agreeable terms, and you don’t think it’s going to be a problem. Also, that you are able to manage your money in such a way that you are able to pay them directly, then you can certainly do it that way. There are some fees associated with doing it the other way, so it might be a good option.

However, I wouldn’t recommend it in cases where the relationship ended in something contentious. Without that record backing you up, they may try to make arguments like “this wasn’t child support, this was a gift” or some other way to make it seem like you were not paying your child support. So, you have to weight all these factors when deciding whether or not you should pay your spouse directly.

It depends. Usually, because if there is a substantial change, in circumstances to where the spouse is in a supportive relationship, that’s actually in the Florida statute. Sometimes though if you have an agreement that says the alimony is modifiable or is not modifiable, even with those changing conditions. So it’s really a good idea if somebody is paying alimony that when it comes time for a marital settlement agreement that there is language in there that says “In the event of one of these changes in a supportive relationship of anything as defined under Florida statutes.” At that point that person can get the alimony modified.

Lifetime or permanent alimony, actually can happen regardless of the length of the marriage, however it is most likely to be awarded in a cases where a marriage is of 17 years or longer duration under the statutes. There are some exceptions however, a lot of the times if one spouse is disabled this can change things. There was one case where the couple was only married 5 years, but during the marriage, one spouse incurred a lifetime debilitating illness, and in that case, the court felt the exception in that case was carved out to award permanent alimony. In a typical case, the increasing likelihood of permanent alimony goes up the longer the marriage has been.

There actually are no grounds for divorce in Florida. Florida has adopted what is called a no-fault statutory default scheme, and I believe right now something like 38 of 50 states have, as well. In a no-fault divorce, you simply have to allege that the marriage is irretrievably broken. The idea of fault-based divorce is largely an antiquated one and is not employed in Florida.