We are divorce and family lawyers who care about our clients and work hard to obtain favorable outcomes for them. Our divorce and family lawyers have assisted clients with contested and uncontested divorce, custody and visitation (parenting plans), equitable distribution, alimony, high asset divorce, prenuptial agreements, marital agreements, child support, domestic violence, relocation, enforcement, issues related to members of the military and armed services, contempt, and modification issues. We regularly represent clients with divorce and family cases in Miami-Dade and Broward counties. When needed we have helped clients elsewhere throughout the state. Our law office is located just a block away from the Miami Family Law Courthouse, the Lawson E. Thomas Justice building.
Divorce and family law cases can be highly emotional and traumatic. You need a divorce and family lawyer who understands and can help. Marriage partners often do not know what the law provides for or requires of them. Court clerks and judges are not meant to give legal advice, only a lawyer should do so. Statutes and court rules must be strictly followed or you can loose your rights. You should consult with a divorce and family attorney to get answers to your questions as to your rights in a divorce, your children’s rights, your property rights and your rights and responsibilities resulting from the marriage. We can understand and analyze your unique situation to help you to make decisions in your best interest and the best interests of your family, and help you to try to achieve your goals.
Call our divorce and family lawyers for a consultation, get the advice you need, and if you have to go to Court go prepared with us. Call us to schedule a consultation on (786) 539-4935.
Common Issues In A Divorce Case
In Florida a divorce case is known as a “dissolution of marriage” action. Either spouse can initiative a dissolution of marriage action through the filing of a petition for dissolution of marriage claiming the marriage is “irretrievably broken”. Florida is often referred to as a no fault divorce state. While fault is not considered for the purposes of granting a divorce it may be considered under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and establishing parenting plans.
To obtain a dissolution of marriage it needs to be established that there is a valid marriage in existence, the husband or wife has been a Florida resident for six month before the filing of the petition, and that the marriage has become irretrievably broken. A court can also grant a dissolution of marriage where a spouse has been mentally incapacitated for at least three years preceding the filing of the petition for dissolution of marriage.
Each divorce and family law case is different and results vary. The distribution of debts and assets, spousal support, and issues concerning children like time-sharing and child support may become hotly contested matters. If there is no contest on the issues an uncontested divorce based upon an agreement may be the best course.
Below is some basic general information relating to Nuptial Agreements, Dissolution of Marriage/Divorce, Property Division, Alimony, Taxes, Parenting Plans, Child Support, Paternity Actions, Domestic Violence, Relocation and Appeals.
No two cases are identical so if you want specific information call us to schedule a consultation on (786) 539-4935.
NUPTIAL AGREEMENTS
There are two main types of nuptial agreements: prenuptial agreements “prenups” and postnuptial agreements. Prenuptial/Pre-nuptial/premarital/pre-marital/antenuptial/ante-nuptial agreements are agreements entered into by the parties contemplating marriage prior to marriage that set forth the rights and obligations of each party in the event of death, divorce, and during the marriage. Postnuptial/post-nuptial/postmarital/post-marital agreements are agreements entered into after marriage that set forth the rights and obligations of each party in the event of death, divorce, and during the marriage. Postnuptial agreements can be used when no divorce is contemplated or when divorce is not imminent. When divorce is imminent, postnuptial agreements are referred to as separation/settlement agreements.
Nuptial agreements can provide for the protection of assets in the event of divorce of the parties, the distribution of the parties’ assets in the event of the death of a party or the obligations of each party during the marriage. If you are considering such an agreement it is important you consult with a divorce lawyer who practices in the area of prenuptial and postnuptial agreements to make sure your rights are properly protected. Call us to schedule a consultation on (786) 539-4935.
TO READ MORE ABOUT PRENUPTIAL AND PREMARITAL AGREEMENTS CLICK HERE
DISSOLUTION OF MARRIAGE/DIVORCE
There are two tracks to obtain a divorce in Florida. The regular dissolution process and a simplified dissolution process. The simplified dissolution of marriage is designed to make things simpler when the parties do not have children, are not seeking alimony, and can agree to the distribution of marital property, assets, and liabilities between themselves. The regular divorce route applies where the parties have children, may be seeking alimony, or have not reached an agreement on the division of marital assets and liabilities. Even when the regular divorce process applies the parties can still come to an agreement.
The divorce process begins a petition for dissolution of marriage. Either the husband, wife or partner in a same sex marriage may file for dissolution of marriage. The petition states what the petitioner is asking the court to do. Once filed the petition needs to be served on the spouse. The spouse then needs to file a response to the petition no later than 20 days after having been served with it. The responding spouse can also file a counter petition if they want to ask the court for something beyond the resolution of the issues raised in the petition itself.
If financial relief is sought in the petition for dissolution of marriage a party is meant to provide a financial affidavit and certain financial documents. Failure to provide this information can result in sanctions. A financial affidavit must be provided in all dissolution actions. Child support guidelines are also mandatory in all dissolution actions involving minor children and child support. The requirement to provide financial documents, called mandatory disclosure, can be waived.
Sometimes the parties to a dissolution of marriage action are able to agree on the issues in their case. If they do, their agreement can be written up and filed with the court as a full agreement. The court then sets the matter for an uncontested divorce hearing. At the hearing the court confirms the agreement of the parties, that the grounds necessary for the dissolution of marriage to be granted exist, and that the agreement and final judgment adopting it comply with the requirements of the law.
The parties can also agree to resolve some issues and have the court determine the ones that they do not agree on. In such circumstances a partial agreement can be filed with the court and a hearing sought as to the remaining issues the court needs to decide.
If there is no agreement between the parties the court will likely send the parties to mediation to attempt to encourage a settlement before setting the case for trial.
Mediation is where a mediator attempts to assist the parties negotiate a resolution to their case. With very limited exceptions what is said during the course of a mediation is confidential. Usually a mediator goes between the parties to relay their positions, concerns, offers, and counter offers. Each side has a chance to hear where the other side is coming from, consider the strengths and weaknesses of their case, and attempt to reach a resolution of the contested issues in their case.
Where no agreement can be reached the issues will be determined by the court at trial based upon the testimony and evidence presented.
We can analyze your unique situation, guide you through the process and help you to make decisions in the best interest of you and your family. If you want a divorce lawyer to try to assist you reach an agreement or litigate your case we can help. Call us to schedule a consultation on (786) 539-4935.
PROPERTY DIVISION
As part of a divorce the court will divide any marital debts and assets thorough a process that is called equitable distribution. Assets and debts are identified and it is determined if they are marital or non-marital and how they should be fairly divided between the parties. Assets commonly include things like real property, personal property, vehicles, pensions, 401k plans, equities, stocks, bonds, cash, and money held in bank accounts. Debts commonly include things like mortgages, equity lines, credit card accounts, and other such liabilities. Usually assets and debts that are incurred during the marriage are considered marital while those that were not are considered non-marital. How an asset or debt is titled is not necessarily dispositive. Issues often arise as to whether some portion or all of what may otherwise be considered a non-marital asset became marital as a result of a gift, the commingling of marital assets, or the use of marital efforts and labor.
Marital assets and debts are meant to be divided by the court equitably and fairly between the parties. There is a list of statutory factors for the court to consider in relation to what makes a distribution equitable and fair to the parties. Such factors include contributions to the marriage, the length of the marriage, and the economic positions of the parties.
If you have questions concerning equitable distribution call us to schedule a consultation on (786) 539-4935.
TO READ MORE ON PROPERTY DIVISION CLICK HERE
FOR INFORMATION ABOUT MILITARY AND SERVICE MEMBERS DIVORCES
FLORIDA STATUTE SECTION 61.075 (2015) EQUITABLE DISTRIBUTION OF MARITAL ASSETS AND LIABILITIES
ALIMONY
Only after considering equitable distribution can a court consider if alimony is appropriate in a case. The courts have considerable discretion on alimony providing the right evidence is presented to it.
Primary considerations include the length of the marriage, need, and ability to pay. In awarding alimony, the court considers: (1) need and ability to pay, the burden being on the moving party to establish their need and the other side’s ability to pay. If that is established the court will then consider: (2) the parties standard of living during the intact marriage and anticipated needs of both parties after a divorce is granted; (3) the length of the parties’ marriage; (4) the parties’ ages and physical and mental conditions; (5) the income and resources of each party and any income earned from marital and non marital assets; (6) the earning capacity, educational level and employability of the parties; (7) the ability of each party to obtain skills or education to enable themselves to contribute to their own support or become self-supporting; (8) the contributions that each party made to the marriage including education, career building, homemaking, and child care, the responsibility that each party will have in raising children that the parties have in common; and (9) any other factor the courts of equity and justice should consider in making an alimony award including whether a supportive relationship exists or that one of the parties may reasonably retire.
For purposes of determining alimony, a short-term marriage is a marriage of less than 10 years, a moderate-term marriage is a marriage of greater than 10 years but less than 20 years, and a long-term marriage is a marriage of 20 years or greater. The length of a marriage is the time from the date of marriage until the date of filing of the divorce case.
There are several different types of alimony in Florida. The types of alimony available in Florida are now temporary, bridge-the-gap, rehabilitative, and durational alimony. Courts may order alimony to be paid in a lump sum or as periodic payments.
Bridge-the-gap alimony may be awarded to assist a party in making the transition from married to single life. It is intended to assist a party with identifiable, short-term needs. The length of an award of bridge-the-gap alimony may not exceed 2 years.
Rehabilitative alimony is intended to provide education and training that will enable a party to become self-supporting or contribute to their own support. An award of rehabilitative alimony may not exceed 5 years.
Durational alimony lasts for a set period of time. It may not exceed 50% of the length of a short-term marriage, 60% of the length of a moderate-term marriage, and 75% of the length of a long-term marriage.
An award of durational alimony may be extended under exceptional circumstances based upon a consideration of the following 4 factors and the 9 factors listed above. (1) First, the extent to which the payee’s age and employability wholly or partially limit the payee’s ability to be self-supporting; (2) Second, the extent to which the payor’s available financial resources wholly or partially limit the payor’s ability to be self-supporting; (3), the extent to which a payee’s mental or physical disability wholly or partially limits the payee’s ability to be self-supporting; and (4), the extent to which a payee is the caregiver to the parties’ mentally or physically disabled child. The amount of durational alimony will be the amount that is required to meet the payee’s reasonable needs, or an amount that does not exceed 35% of the difference between the husband and wife’s net incomes, whichever amount is less.
An alimony award may not leave the obligor with significantly less net income than the net income of the obligee, unless there are exceptional circumstances
Courts will be permitted to consider the adultery of either spouse and its resulting economic impact in determining the amount of alimony to award.
In actions for modification, the court will be authorized to terminate or reduce an award of alimony when the payor has reached the normal retirement age. The normal retirement age will be considered to be the normal retirement age specified by the Social Security Administration, or the customary retirement age for the payor’s profession. The payor must actually retire or make demonstrable efforts to retire. Retirement must reduce the payor’s ability to pay. The court will look at the following ten factors in determining whether to reduce or terminate alimony. First, the age and health of the payor. Second, the type of work performed by the payor. Third, the customary age of retirement in the payor’s profession. Fourth, the likelihood that the payor will return to work, and the payor’s motivation for retiring. Fifth, the needs of the party receiving alimony and that recipient’s ability to contribute to his or her own needs. Sixth, the impact that the termination or reduction of alimony would have on the payee. Seventh, the parties’ assets before, during and after the dissolution of marriage, and whether either of the parties wastefully dissipated assets received at the time of the divorce. Eighth, the income earned by the parties during and after the marriage. Ninth, the retirement, pension and Social Security Benefits received by the parties after the marriage. Tenth, the payor’s compliance with his or her alimony obligation. A payor may file a Supplemental Petition for Modification six months prior to the date of retirement.
If you have questions about alimony in your case call us to schedule a consultation on (786) 539-4935.
TAXES
Taxes can be an important consideration in a divorce. Issues can arise as to how the tax dependency for any children, child support, alimony, or property distribution will affect the parties taxes. It is wise for you to consult with an accountant during the divorce process so you know the tax consequences of your decisions or the decisions of the court.
If you have questions about a family law case call us to schedule a consultation on (786) 539-4935.
PARENTING PLANS (CUSTODY/VISITATION)
Public policy in Florida favors that each minor child has contact with both parents after the parents have separated or divorce and that parents share responsibility for all major decisions concerning their child.
In determining time sharing (custody/visitation) and parental responsibility each parent is meant to be given equal consideration.
Usually the court awards shared parental responsibility and both parents share parental rights and responsibilities with respect to their child. Shared parental responsibility requires that parents to discuss major decisions affecting their child and attempt to reach an agreement. The parents are expected to agree or have the court decide issues that they do not agree on.
Where warranted by specific facts a court can order ultimate decision making authority or sole parental responsibility be given to one party. To award sole parental responsibility the court must make a determination that shared parental responsibility would cause harm to the child.
A parenting plan establishes whether the parties have shared parental responsibility or one part has ultimate decision making or sole parental responsibility for major decisions affecting a child. It also sets forth the time-sharing schedule that the parties will have with a child. It can also specify how and when each party is meant to be able to communicate with the child during the other parent’s time-sharing.
A court is meant to apply the “Best Interests of the Child” standard when considering a parenting plan/time-sharing/custody/visitation, and parental responsibility.
Once a judgment has been entered there needs to be a substantial change in circumstances for the modification of a parenting plan, time-sharing, custody, or parental responsibility.
Call us to schedule a consultation with one of our custody lawyers concerning the issues in your case on (786) 539-4935.
CHILD SUPPORT
Parents have a legal responsibility to support their child(ren). Usually this legal obligation continues until a child reaches age 18, marries, is emancipated, joins the armed forces, or dies. The responsibility is based upon the needs of the child, the income of the parents, and the time-sharing arrangements. Statutory guidelines are used to calculate the amount of support a child needs based on the income of the parents. The definition of income for the calculation of child support is broader than that used for tax purposes and includes things like in kind benefits and regular and continuing gifts that might not be considered taxable income for tax purposes. Insurance and day care expenses are then accounted for in the calculation before each parent’s child proportion of the total child support obligation is determined based upon their income and time-sharing.
In a divorce or paternity case the court can can impute income to a parent if it determines that a parent is voluntarily unemployed or underemployed. First the court should decide if the unemployment that resulted in the termination of income is or was voluntary. Then the court should decide if continuing unemployment or underemployment is the result of the lack of that parties use of best efforts to secure new employment.
The court can impute income based upon a parent’s potential and probable earnings evidenced by recent work history, occupational qualifications, and prevailing earnings in the community. In support of the imputation of income, evidence can be presented as to wages based upon the parent’s qualifications, available positions the parent is qualified for, or even the parent’s living expenses, and present lifestyle. A party seeking to impute income must present competent and substantial evidence that the other parent can earn the amount sought to be imputed. The court must then make specific findings based upon the evidence of the source and amount of that available income.
Once a judgment has been entered there needs to be a substantial change in circumstances for the modification of child support if the change was not specified in the judgment. Such a change could be based upon a change in the income of the parties or a court ordered change in time-sharing.
It is not permissible to withhold time sharing because a parent does not pay child support on time.
If you need enforcement or modification of child support you should contact us so we can seek relief from the court on the issue for you. Call us to schedule a consultation with one of our attorneys on (786) 539-4935.
DOMESTIC VIOLENCE
We can petition for an injunction to protect you or your children against domestic violence (assault or battery by your spouse whether you are separated or not, or your former spouse), repeat violence, or sexual violence. Whether attempting to obtain an injunction or defending against one, we can give you appropriate counsel and advice and help you gather and present the evidence and testimony to the court. Call us to schedule a consultation on (786) 539-4935 to talk to on of our domestic violence lawyers.
RELOCATION
When a parent wishes to relocate more than 50 miles from their principal place of residence at the time of the last judgment or order establishing or modifying time-sharing they need to follow Florida Statute 61.13001 by either obtaining a written agreement that complies with the requirements of the statute or obtaining an order of the court allowing for the relocation through a Petition for relocation. Failure to comply with the strict requirements of the statute when relocating can lead to adverse orders and the denial of the relocation. Failure to timely object to a petition for relocation or comply with the statute by a parent who does not wish for the relocation to take place can also result in adverse orders and an order allowing for the relocation.
Following the relocation statutes requirements and presenting the right evidence to the court in support or opposition to a relocation is a complicated process and should be done with the assistance of an attorney who has handled relocation cases in the past. Call us to schedule a consultation with one of our lawyers concerning relocation on (786) 539-4935.
APPEALS
Where a judge rules against you in a divorce case it may be possible for you to appeal to a higher court. While a judge in a dissolution of marriage case has broad discretion it is required that the judge’s rulings and judgment comply with the law and are supported by admissible testimony and evidence presented to the court. Where a judge’s ruling does not comply with the law or is not supported by admissible testimony and evidence presented to the court an appellate court may reverse it. You need to determine whether to appeal quickly because an appeal must be filed within 30 days of the final judgment. Call us to schedule a consultation with one of our lawyers regarding an appeal on (786) 539-4935.