An image of a dollar bill roled up inside a wedding ring to signify alimony in Florida

Alimony is financial support provided to an ex-spouse to help maintain the standard of living maintained during the marriage. There are many different types of alimony in Florida, which vary in amount, form, and duration. The amount and duration of alimony in Florida are determined on a case-by-case basis. If you are seeking alimony in Florida or trying to prevent paying alimony, contact a divorce law firm in Tampa for help. A skilled Tampa divorce lawyer can make a big difference in if and how much alimony is awarded. Nobody likes paying for an attorney, but in some cases, it can save a lot of money in the long run.

The policy behind alimony is to alleviate the financial disparity between the two parties. When determining alimony that should be awarded, Florida family law courts look at one spouse’s ability to pay vs. the other spouse’s need for alimony. If permanent alimony is awarded, the alimony payment should be sufficient to support the spouse’s standard of living.

There are many factors that a judge may consider when determining alimony in Florida is appropriate. If alimony is appropriate, the court will have to determine the durational alimony amount to bridge the gap. Regardless, alimony may not leave the person paying alimony with significantly less net income than the recipient’s net income.

Florida’s permanent alimony can be a contentious and litigious aspect of a divorce, as the outcome may have a long-lasting impact on each party’s finances. Contact a divorce law firm to schedule a free consultation if you need assistance with a divorce or claim for permanent alimony. A divorce attorney in Tampa should be able to provide advice specific to your case during a consultation.

Types of Alimony in Florida

Under Florida divorce law, there are five types of award alimony. A judge may award any combination of these types of alimony payments, which may be made periodically or in one lump sum. The types of awarding alimony are determined by how long the payments will last.

  1. Temporary alimony is awarded during the divorce proceeding and ends when the final judgment is entered. See Florida divorce case Littlejohn v. Littlejohn to learn more about temporary alimony.
  2. Bridge the gap alimony looks at what each spouse would need to transition to single life. Bridge the gap alimony is transitional; it considers bills and foreseeable expenses of starting life without a spouse.
  3. Rehabilitative alimony has goals similar to bridge the gap. Rehabilitative alimony considers the time one spouse may need to further their education short or moderate and/or obtain appropriate employment.
  4. Durational alimony in Florida can be awarded in short-term or moderate-term marriages. It is alimony for a pre-determined amount of time and cannot exceed the length of the marriage. For instance, if married for two years, one spouse cannot receive durational alimony for more than two years.
  5. Permanent alimony is usually only granted in moderate or long-term marriages. Permanent alimony usually continues until either death or remarriage.

Alimony Without Filing Divorce

Under Florida Statute 61.09, a paying spouse may be required to pay alimony without getting divorced. Florida does not recognize legal separation; therefore, alimony may still be necessary if a couple is separated. Unlike alimony in divorce cases, alimony under this statute acknowledges the continuation of the marriage, the continued right of a paying spouse to participate in the other spouse’s estate, and the possibility of a reconciliation. See Wood v. Wood.

Spouses have a legal duty to provide financial support to each other. Spousal support (alimony) can be required even if the couple is separated and not yet divorced. Spouses are obligated to provide financial support approximate to that which has been established during the marriage. See Astor v. Astor.

To be eligible for a divorce in Florida, at least one spouse must be a resident of Florida for the six months preceding the filing of the divorce petition. However, there is no residency requirement for seeking durational alimony award under Florida Statute 61.09. See Wachsmuth v. Wachsmuth.

Further, there is no requirement that the couple lives apart before the court can order alimony. Moreover, there is no requirement that the party paying alimony be at fault for the separation. However, if both parties have not lived in Florida as a married couple, there may be issues regarding personal jurisdiction. If the court lacks personal jurisdiction, it will not compel a party to pay rehabilitative alimony.

Do I Have To Pay Alimony in Florida?

When determining an alimony award, there is no specific mathematical formula under Florida divorce law. Instead, the judge will apply a two-part test based on the details of each case. The first part of the test determines whether or not the party requesting alimony needs financial support. If a need is proven, the next step is to determine if the other party can pay alimony. Both the need and ability to pay must be shown with evidence. Satisfying only one part of the test will not be sufficient to receive alimony. If alimony is awarded, the alimony payment should be enough to support the spouse’s standard of living.

Typically, the most important factors are the length of the marriage and the income earning capacity of each spouse. Reeves v. Reeves. The standard of living experienced during the marriage and the health and economic positions of each spouse will also be factors. The judge may also consider the contributions each spouse made during the marriage. See Florida Statute 61.08.

Does Adultery Affect Alimony?

Florida is commonly referred to as a no-fault divorce state. Under Florida divorce law, you don’t need to prove adultery or other reasons for a divorce. See Florida divorce law 61.052. All Florida law requires is there be irreconcilable differences to obtain a divorce. Therefore, adultery will usually not be relevant to a judge’s determination for permanent alimony in Florida. However, if marital assets were used to further the adulterous relationship, it can be considered during the divorce. The funds used on the relationship may be viewed as a waste and be a credit awarded to the innocent spouse.

Does The Length of Marriage Affect Alimony?

Permanent alimony or long durational alimony awards are usually reserved for long-term or moderate-term marriages. Generally, short-term marriages are only eligible for short-term forms of alimony. Under Florida law, a short-term marriage is a marriage lasting less than seven years. A moderate-term marriage is classified as a marriage lasting between 7 and 17 years. A marriage lasting longer than 17 years is considered a long-term marriage. See Fichtel v. Fichtel.

Can Florida Alimony Be Modified?

Under Florida divorce law, you can modify alimony in Florida if there has been a substantial, material, and unexpected change in circumstances that was not contemplated when the amount of alimony was initially set. The modification can either increase, decrease, or terminate the amount of alimony. Usually, a petition to modify permanent alimony, durational alimony, or rehabilitative alimony will have to be filed in the same court where the divorce was filed.

Modify Alimony Based on a Change of Income

Alimony obligation may be modified or terminated upon the death, remarriage, or when the other spouse enters into a supportive relationship. However, the most common reason for modifying alimony is an involuntary loss of income. When determining if modification is justified, the court will consider the parties’ relative financial circumstances at the time of the final judgment, compared with the parties’ relative financial circumstances when the petition for modification was filed. See Mastromonico v. Mastromonico. Voluntary income reductions by incurring debt are usually not a valid basis for modification. See Cowie v. Cowie. Additionally, voluntary reductions in income will also not serve as a basis to reduce the amount of alimony. See Cowie v. Cowie.

Modify Alimony Because of Remarriage

The fundamental policy behind an award of alimony is the disparity in the financial resources of the two parties. Florida law considers one party’s ability to pay alimony vs. the other party’s need for alimony. See Eckert v. Eckert. Therefore, if an ex-spouse remarries or has become involved in a supportive relationship, it may change financial resources and create a need to modify alimony.

However, Florida courts have ruled that voluntary contributions of a live-in companion cannot be substituted for the legal obligation of a former spouse. See Mott v. Mott. Moreover, the court should consider the financial resources the only resources the parties have available, and that are in their control. See Azzarelli v. Pupello.

Determining whether the supportive relationship is grounds for an alimony modification will depend on the circumstances of each case in the Florida courts. The court will consider many factors, such as:

  • The extent to which the party receiving alimony and the paying spouse they are in a relationship have acted as a married couple. For instance, are they using the same last name, long-term marriage, living together, and acting as husband and wife?
  • The extent to which the parties have pooled or comingled their assets and net income.
  • Living established between recipient spouse and other spouse.
  • Child care and sufficient education if minor children are involved within the marriage duration.
  • The extent of financial support provided to the ex-spouse by the person they are now in a relationship with.

The financial information of a former spouse’s new partner may be confidential and barred from a petition to modify alimony in Florida. The financial information of private persons is entitled to protection by Florida’s constitutional right of privacy. See Mogul v. Mogul. However, suppose the Tampa divorce lawyer seeking modification can prove the financial information is relevant, or there is a compelling reason to compel disclosure. In that case, it will be admissible in a modification case.

How To Collect Alimony Owed

Unfortunately, the paying spouse will refuse or make it difficult to collect the alimony they are ordered to pay. However, Florida alimony law provides a variety of ways to enforce judgments, including garnishment. In garnishment cases, the funds go directly to the ex-spouse rather than their original recipient. The most common type of garnishment is wage garnishment. With wage garnishments, the alimony is deducted from the employee’s salary and forwarded to the ex-spouse by the employer in a lump sum payment.

Garnishments are not reserved for just wages. Other forms of income may be garnished as well. For example, in City of Miami v. Spurrier, the court ruled that pensions could also be garnished for alimony payments. Further, spendthrift trusts are specifically designed to protect the trustee’s assets from creditors can be garnished to pay alimony. See Florida alimony garnishment case,  Gilbert v. Gilbert.

Many people who are not experienced divorce lawyers may think that there is a “loophole”, which allows anyone to get out of a garnishment order to bridge the gap. There is indeed a “Head of Household” defense to garnishment under Florida Statute §222.11. However, the exception was revised to provide alimony award, regardless of head-of-household status many years ago. Therefore, the head of household exemption will not prevent alimony from garnishing wages.

Consult a 5-Star Divorce and Alimony Law Firm

Navigating the rocky road of divorce is rarely easy or pleasant. However, the accomplished attorneys with Florida Law Advisers will work tirelessly to help you receive a fair divorce settlement. Attorney client relationship will serve as your advocate throughout your divorce proceedings and strive to ensure that you receive your fair share of marital assets, the property, and other key assets linked to your marriage.

We invite you to contact us at Florida Law Advisers today for a free consultation with one of our experienced divorce lawyers. In addition to helping you understand how alimony and spousal support may affect you, we will provide the support for calculating alimony, child custody, income differential, rehabilitative plan, tax treatment, and any other extraordinary circumstances that may arise during these exceptional circumstances as divorce proceedings unfold. We look forward to serving as your trusted legal representative during this difficult time.

A photo of a Florida child support agreement

Child support is a court-ordered obligation of the financial responsibilities for a child’s care, maintenance, training, and education. See Florida child support law 39.01. It is the responsibility of every parent, regardless of whether the two parents are married, divorced, or single. Under the state’s child support law, parents cannot waive child support payment obligations. See Finn v. Finn. Parents of a minor child have a legal and moral duty to aid and maintain their child.

The amount of child support will be based on Florida’s Child Support Guidelines. The Guidelines outline the amount of assistance to be paid for each specific case. The payment amount is based primarily on the parents’ income, custody rights, and the number of children involved. The court will strictly enforce the Florida Child Support Guidelines in most instances. However, in some circumstances, the judge can deviate from the Guidelines. A family law attorney in Tampa can help provide examples of when a judge may alter from the Guidelines.

What Does Child Support Cover?

The child support process intends to ensure the child continues to be provided with an acceptable standard of living. All child support payments are meant for the benefit of the child. However, some benefits may incidentally accrue to the non-paying parent. For example, child support payments may include the following items.

  • Food and Clothing. In addition to weekly groceries, account for eating out and school meals and; regularly shopping for clothes.
  • Educational Expenses. – Tuition, uniforms, books, supplies, and activities (after-school sports, music lessons, etc.) may be covered.
  • Medical Costs. Out-of-pocket medical expenses (deductibles, uncovered services, etc.) required to maintain a child in good health may be included.
  • Hobbies, Activities, and Entertainment. There is more to life than good food, education, and health. Remember to include expenses for summer camps, swimming lessons, and movies.

How To Determine The Amount Of Child Support In Florida

The amount of payments will be based on the Florida Child Support Guidelines. The Guidelines outline the financial responsibilities required based on the parent’s net income and the number of children involved. The amount and duration of child support payments will vary based on the individual circumstances of each case. For information about your specific case, seek the advice of a child custody lawyer in Tampa.

The main factors determining the amount of support payments are the combined monthly incomes of both parents and the number of children they share. The number of overnight stays each parent has with the children will also impact the amount of support payment required. Additional factors such as the child’s medical, dental, psychological, and educational needs will also be a note for consideration.

Child support will likely be paid even if the children spend equal time with each parent. It is a rare case when neither parent is responsible for support payments. For instance, if there is equal timesharing, but the mother earns more money, she may be required to pay child support. Generally, support will be provided unless both parents earn the same income and have equal custody.

Child Support With Shared Custody

In cases involving joint custody, the court will typically apply a four-step analysis to determine the amount of child support. The first step is to calculate the total amount of child support payments required by reviewing the Guidelines. Next, the court will determine each parent’s share under the Guidelines. Each parent’s share is determined by dividing their monthly income by the combined monthly of both parents. Next, the court will determine the amount of time each parent has custody of the child as a percentage. For instance, if the parents have 50/50 custody, their responsibility will be 50%.

The fourth step is to review the Child Support Guidelines to determine each parent’s share of the support. The court will proportion the complete support responsibilities on the percentage of time each parent has custody of the child. See Jaworski v. Jaworski. If the combined monthly net income exceeds the $10,000 listed in the Guidelines, additional calculations will be needed. The amount over $10,000 will be based on the number of children and income above $10,000. See Florida child support law 61.30.

How To Deviate from The Florida Child Support Guidelines

The judge will often follow the state’s Child Support Guidelines when deciding the amount of support. However, the court does have the discretion to deviate from the Guidelines if the facts warrant it. Regardless, child support must be reasonable and not require the other parent to pay more than they can afford. See Marsh v. Marsh. When deciding whether to deviate from the Guidelines, the court will consider all relevant factors. These factors include but are not limited to: the child’s needs, the standard of living, each parent’s age, and the financial status of each parent. See Finley v. Scott. A written explanation will be required if the Court deviates from the Child Support Guidelines by more than 5%.

Parents of a minor child have a legal and moral duty to support and maintain their child. See Martland v. Arabia. Under Florida’s child support law, parents cannot waive child support obligations. Parents are allowed to stipulate and agree to the amount of payments; however, the amount of aid must be in the child’s best interests. Support agreements are subject to approval by the state’s family law court. The agreements will only be approved if the benefits provide for the proper care and maintenance of the child. See Wendel v. Wendel.

Back Owed Child Support In Florida

Under Florida child support law, a parent has the right to seek retroactively (back owed) child support. Generally, retroactive child support will date back to when the parents stopped residing together in the same home. Regardless, the period for retroactive child support in Florida cannot exceed 24 months.

The Florida statute on retroactive child support was enacted in 1998. Before the retroactive child support law was passed, back-owed support for paternity cases was not limited to 24 months and could go as far back as the child’s birth. Therefore, if a child was born before 1998, the amount of back owed payments will not be limited to just 24 months. In these cases, the mother may seek child support dating back to the date the child was born. Additionally, a parent may be able to sue for retroactive child support even after the child turns 18. See Campagna v. Cope.

The Amount Of Retroactive Child Support

The amount of child support will be paid based primarily on the Florida Child Support Guidelines. This can be very difficult in retroactive child support cases because the parent’s income may have fluctuated during the period child support should have been paid. For instance, if the parent’s income varied weekly, the court may have to make individual determinations for each week during the 24 months.

Usually, retroactive support will be added to the monthly payment of future child support. All payments made by the father to benefit the child throughout the retroactive period can be considered. Additionally, the court must consider allowing a payment plan for the total amount of retroactive child support in a timely manner.

Later Born Children

If a parent is ordered to pay child support, it can affect the amount of support required for subsequent children. The amount paid can be deducted from the parent’s gross income used for Florida child support payment calculations. See Child Support Law 61.30(3)(f). Keep in mind; this only applies to a child support order. Thus, if a parent voluntarily provides support without a court order, the deduction will not apply under this Florida statute.

Under Florida statutes regarding child support law, adjustments to the Guidelines may be premised on a parent’s reasonable and necessary expenses. Providing support for other children can potentially be classified as a reasonable and necessary expense under the law. See Flanagan v. Flanagan. These cases can be complicated and require thorough Florida child support law knowledge. Therefore, if you need help, contact a Tampa child custody attorney.

Child Support When Parents Live In Different States

When parents live in different states, it can create jurisdictional issues with the court. If the case is not filed correctly, the court may not have jurisdiction (authority) to enforce the support. Therefore, it is essential to reference the Uniform Interstate Family Support Act (UIFSA) for such cases. Under federal law, each state must have the UIFSA in effect to enforce child support orders. The UIFSA provides uniformity amongst the states for child support processes and procedures. Additionally, it provides for enforcement of support orders from foreign states. Thus, under the UIFSA, a Tampa child support attorney can take legal action to enforce a child support order on a resident of another state.

The Uniform Interstate Family Support Act

The UIFSA can also be utilized in Florida to secure child support when parents live in different states. Thus, a Florida court can establish a child support case, regardless of the parent seeking payments is residing outside of Florida. Conversely, Florida can also assist with enforcing a support order from another state. See Florida Child Support Law 88.4011.

Under the UIFSA, all states must recognize and enforce support obligations from other states. Therefore, a Florida attorney can help with child support when parents live in different states. For instance, if a Florida family law court issues a child support order and the father subsequently moves to Georgia, the UIFSA will assist in enforcing the order in Georgia. Without the UIFSA, Florida may not have jurisdiction to enforce child support when parents live in different states.

The Florida Department of Revenue can also assist in collecting child support. The Florida Department of Revenue can garnish wages, suspend a driver’s license, and withhold federal income tax refunds. If the party obligated to pay is not a Florida resident, the Department can also assist in working with states with jurisdiction. Additionally, the enforcement action will not be barred simply because the adolescent is over the age of 18. See Florida v. Vorac. The Florida Department of Revenue can be a great resource, but they are no substitute for a custody attorney. If you need legal advice, consider contacting a child custody law firm in your area.

Hiding Income For Child Support

Unfortunately, many individuals will underreport their income to avoid or lower the child support payment. In cases such as these, the imputation of income may be a valuable tool to secure. If the other party is hiding income, the court can impute a salary on that parent. The court can also impute income if the other party is unemployed or underemployed. If proven, the parent will be obligated to pay support based on the imputed salary,

Under Florida law, when a parent is voluntarily unemployed or underemployed, the court shall impute income. The income should be based on the parent’s employment potential and probable earning capacity. In imputation cases, the court will consider the parent’s work history, qualifications, and prevailing income level in the community. See Florida child support case Guard v. Guard.

The family law judge must make specific factual findings based on evidence relating to the current job market, the parent’s employment history, and the prevailing salary in the local community to impute income. If there is sufficient evidence to support the court’s imputation of income, it will not be reversed on appeal request without a finding that the court abused its discretion. See Rojas v. Rojas.

How To Impute Income

The court will usually apply a two-part test for alleged imputation of income cases. First, it must be determined that the lack of employment or reduction in income was voluntary. Second, the court must have determined that the loss of income resulting from the parent’s pursuit of their own interest is due to a less than diligent and bona fide effort to obtain employment at an income level equal to what the parent could earn. See Schram v. Schram.

Typically, Florida courts won’t focus on if the parent left their previous employment voluntarily or involuntarily. Instead, the focus is on what the parent has done since the prior employment. For instance, has the parent remained unemployed voluntarily or made a bona fide good faith effort to find employment. The child support lawyer seeking to impute income will have the burden of proof. Based on the two-part test above, the lawyer must show that income should be imputed to the other parent.

Modifying Child Support In Florida

If there has been a substantial change in circumstances, support may be modified. The judge will only be concerned with changes that occurred after the prior case. Issues that arose before the initial case will usually not be considered for modifications. This is true even if there are facts that were not discussed in the prior case. Typically, judges will only be interested in changes since the last order was issued.

For instance, if a parent has encountered an increase or decrease in income, support may be modified. Generally, there will need to be at least a 10% change in income to qualify as a substantial change. Even if you had a decrease in income, that does not automatically mean support payments will decrease. For instance, the opposing party may have also had a reduction in income, and that decrease may be more significant. Thus, it is recommended to discuss all the case facts with an attorney before filing for a modification. A thorough review will likely be necessary to develop a successful plan to lower child support payments.

Generally, the more time a parent spends with the child, the lower their support payments. Therefore, if the amount of overnight stays with the children is modified, support may need to be adjusted accordingly. Support may also need to be modified if the timesharing arrangement has changed. See Bloom v. Panchysyn.

Enforcement Of Child Support Payments

Florida has stringent child support laws to ensure that a parent is paying their required amount of support. A parent may seek assistance from Florida’s Department of Revenue or a private child support law firm. A parent also has many different types of sanctions when enforcing a child support program.

Under Florida child support law, a court is authorized to garnish wages to enforce child support payment. A wage garnishment automatically deducts the funds from the payor’s paycheck. The garnishment can occur periodically and continue for as long as the court deems necessary. Further, orders for child support payments are not susceptible to the head of household defense to garnishments. See Waddell v. Schwarz.

Tax refunds may be garnished to satisfy the Florida child support program. Further, the court can order the exemption to be allocated to the payee on a permanent or rotating basis. The dependent tax exemption can be a substantial amount of money. Therefore, this can be a significant penalty for failure to comply with a support order in some cases.

Failure to pay support can result in a driver’s license suspension. See Florida family law 61.13016. Further, under Florida Statute 61.13015, the payor’s professional license can be suspended as well. However, the suspension can be stopped if it would result in irreparable harm to the payor and not help collect payment. Additionally, the court may refuse to suspend a license if there is a good faith effort to make payments.

Contempt For Failure To Pay Child Support

Either civil or criminal contempt can enforce failure to comply with a court order of support. However, civil contempt is used much more frequently than criminal contempt. To convict a person of criminal contempt, the evidence must prove the defendant can pay, and the failure to pay is willful and intentional. Further, since it is a criminal prosecution, it must comply with Rule 3.840 of the Florida Rules of Criminal Procedure. See Bowen v. Bowen.

If convicted of criminal contempt for failure to pay, the incarceration must not exceed 180 days. The incarceration is designed to encourage payment of the due funds rather than as punishment. Therefore, often a court will purge the contempt if the defendant pays a specified amount.

On the other hand, the burden of civil contempt is much easier to satisfy. Civil contempt only requires there to be an existing order of support that has not been paid timely. Even though the burden is lower, there may still be defenses to contempt. For instance, showing that due to circumstances beyond their control, they no longer have the ability to tender the payments may avoid contempt. For this defense to apply, the defendant must prove the failure to pay is unintentional. Further, the payor must also prove that the inability to pay is due to an intervening circumstance not contemplated at the time of the original order.

Consult a 5-Star Family Law Firm in Tampa

The attorneys at Florida Law Advisers, P.A. have years of experience advocating for and against child support. We understand how important these matters are and fight hard for our clients. If you need help with a child support program, call us at 844 698 3765 to request a free consultation with a Tampa family attorney over the phone for your convenience.

A married couple learning about the Florida divorce process

Florida is commonly referred to as a no-fault divorce state. Therefore, you don’t need to prove adultery or reasons for a divorce. See Florida divorce law 61.052. All Florida law requires is there be irreconcilable differences that leave a marriage irretrievably broken to obtain a divorce. See Ryan v. Ryan Generally, the requirements to file for divorce in Florida are minimal, but navigating the legal process can be difficult. A divorce case can have a long-lasting effect on your finances and the relationship you have with your children. It is recommended that you don’t go through the divorce process alone and hire a skilled Tampa divorce lawyer to assist.

For many, filing for divorce in Florida can sometimes be a long and tedious process. Florida’s divorce law has a complex web of statutes that must be successfully navigated. However, a divorce case in Florida can be summed up in many ways using the PEACE acronym. The PEACE acronym represents all significant parts of a typical divorce in Florida and can help guide you through the process. Each part of the PEACE acronym is important, so contact a divorce law firm in Tampa for assistance if you need assistance.

P:  Parenting Plan

Ideally, the parents will reach an agreement amongst themselves on how to address child custody. If an agreement is reached, the judge will typically ratify the terms of the agreement. If parents cannot agree, the judge will decide the outcome based on the children’s best interests. Florida’s law does not give any preference to mothers or fathers when determining parental responsibility in child custody matters. Instead, the final judgment for the custody arrangement will depend on the specific facts and circumstances of each case. See Williams v. Williams.

E:  Equitable Distribution

In a Florida divorce case, marital assets and liabilities are subject to equitable distribution. Generally, the court will start with the premise of dividing marital debts and assets 50/50. The law requires that a court equally distribute a marital asset unless a “legally sufficient justification for an unequal distribution is given based on the relevant statutory factors.” See Hitchcock v. Hitchcock. For advice on how to unequally divide marital assets, contact a Tampa divorce attorney to schedule a consultation. Obtaining an unequal distribution of a marital asset in Florida can be difficult without legal counsel.

A:  Alimony

Alimony, also frequently referred to as spousal support, is payment from one ex-spouse to the other. The fundamental principle guiding an award of alimony is the disparity of a spouse’s financial resources compared to the other spouse in the party. Under Florida divorce laws, a judge can order five types of alimony as part of a divorce. The forms of alimony are; temporary, bridge the gap alimony, rehabilitative alimony, durational, and permanent alimony. See Florida divorce law 61.08. A judge may award any combination of these types of alimony. Further, alimony payments can be made periodically or as a lump sum.

C:  Child Support

Florida courts will defer to the Florida Child Support Guidelines in determining parental responsibility for child support payments. The Guidelines outline how much child support will be required by each parent based on their net income, the number of dependent children involved, and the custody arrangement. The judge will strictly follow the Florida Child Support Guidelines in a Florida divorce case. However, the court does have some discretion to deviate from the guidelines when it is appropriate to do so.

Check out our deep dive on Child Support in Florida for more information.

E: Everything Else

Do you want your name changed? Do you need to file bankruptcy in addition to divorce? There may be parts of your family law case that you didn’t know existed. Contact an experienced divorce lawyer for a comprehensive strategy on how to handle your case best. If you need assistance with a divorce proceeding in Florida, contact Florida Law Advisers P.A. to schedule your free consultation with a divorce lawyer in Tampa.

Legal Separation in Florida

No one enters into a marriage with the expectation that it will end. However, people and circumstances change over time, and a once-thriving marriage may find itself in turmoil. When this occurs, couples often decide to pursue separation before filing for divorce. Legal separation in Florida occurs when a married couple ends cohabitation and lives separately for a period of time. Under Florida divorce laws, separation alone may not affect either spouse’s marital status or property rights. See Hollister v. Hollister.

A couple’s assets acquired after separation can still be considered marital property. Therefore, the property would be subject to equitable distribution in divorce unless there is a written agreement to the contrary. The written separation agreement can act as a cut-off date for determining whether assets and liabilities are marital or separate. Without a written agreement, assets and liabilities incurred after separation will be presumed to be marital prior to divorce.

With a valid agreement, property acquired by either spouse during separation may not have to be divided in a divorce. Therefore, if a couple is separated, they should consider entering into a post-nuptial agreement. The agreement can help provide clarity for the parties and avoid costly litigation in court.

Common-Law Marriage in Florida

Common-law marriage in Florida is a union that has never been formally registered with the State. Therefore, there was no official ceremony or marriage certificate issued. Instead, the parties simply consent, coupled with some outwardly visible action, such as living together. Essentially, the couple would represent themselves out to be married and act as if they are married. Living together is not a requirement of common law marriage in Florida. However, habitation status can be a significant piece of evidence.

The laws treat a valid common law marriage in Florida as any other legal marriage. The parties are entitled to all the benefits and responsibilities of marriage. Additionally, the dissolution process would generally be the same as any other dissolution of marriage in Florida. Further, even Alimony is available in a common-law divorce if the court’s final judgment sees it as appropriate under the circumstances.

Florida permitted common-law marriage until 1968 when it enacted Florida Statute 741.211. The statute abolishes a common law marriage in Florida entered into after January 1, 1968. However, Florida will still recognize a common law marriage that was legally created in another state. Marriages formed in other states are entitled to the full faith and credit under the United States Constitution.

Thus, under Article IV of the U.S. Constitution, all states must recognize a valid common law marriage entered into in another state. The validity of the marriage is to be determined by the laws of the jurisdiction where the marriage took place.

Divorce When Your Spouse Lives Outside Florida

Establishing residency is typically a straightforward process that is easily accomplished. Florida requires at least one spouse to be a resident for at least six months immediately preceding the divorce filing. The resident requesting spouse can prove residency with a valid Florida driver’s license, Florida ID, or Florida voter registration card. An affidavit or testimony from a corroborating witness may be used if neither of these is available.

Subject Matter Jurisdiction for Divorce in Florida

Residing in Florida for six months gives the state jurisdiction (authority) over the subject matter of the case. See Florida Divorce Law 61.021. However, it does not necessarily give Florida jurisdiction over the people involved in the case. Satisfying the residency requirement only gives Florida authority to grant the divorce. It does not give Florida authority over all parties involved.

For instance, if the wife living in Georgia relocates to Florida seeking a divorce, Florida may not have jurisdiction over the husband even if the wife lived in Florida for the six months preceding the filing of the divorce petition. Regardless of the economic circumstances or his financial ability, without jurisdiction over the husband, Florida cannot require him to pay financial support (alimony) or distribute marital assets in the divorce.

Personal Jurisdiction for Divorce

For Florida to have jurisdiction over a spouse living in another state, one of the following must occur:

  • The couple maintained a home in Florida as husband and wife (See Florida Statute 48.193); or
  • The spouse living outside of Florida is personally served the divorce petition within Florida; or
  • The spouse living outside of Florida waives his/ her right to contest jurisdiction. For instance, if the spouse responds to the divorce petition without raising the issue of jurisdiction in the initial response, the spouse will subject himself/ herself to the jurisdiction of the court automatically and cannot challenge jurisdiction at a later time.

 

How To Divorce in Florida When You Can’t Find Your Spouse

Florida’s state law requires notice of any action that will affect a person’s legal rights, including a divorce case. Notice means you inform the opposing party of the actions that you are taking in court. Notice can be an issue if you need to file a divorce and don’t know where your spouse is. Generally, Florida divorce law will require you to locate and personally serve the opposing with the divorce petition. Thus, if you cannot find your spouse, you will need to take other steps to provide proper notice. Service/ notice can be a complex issue with many procedural requirements. Therefore, it is best to retain a divorce attorney to assist with these matters if you need assistance.

Constructive service can be used to get a divorce when you can’t find your spouse. Constructive service means “serving” in a non-traditional way. When constructive service is involved, a court can grant a dissolution of marriage (divorce) but cannot establish paternity, award child support, or alimony.

Additionally, the service may affect the court’s ability to settle marital assets and debt claims. Therefore, you should contact a divorce lawyer to inquire whether serving via constructive service is appropriate for your case. If constructive service is not feasible, a divorce lawyer should provide other solutions for the case.

The Diligent Search & Inquiry

Generally, the first step is to complete a diligent search and inquiry to attempt to find your spouse. A good divorce attorney can help you with an investigation to find your spouse. In many circumstances, an investigation by a divorce lawyer will result in a successful location of the opposing party.

Should the opposing party not be located, the court will allow for other ways to notice the opposing party. However, the diligent search and inquiry must have been properly done beforehand. See Hobe Sound v. First Union. The diligent search must be done in compliance with Florida Statutes 49.011.

Publication in a Newspaper

If you cannot locate the opposing party, publication in a newspaper may be a viable solution. The publication advising of the divorce case will need to run in a local newspaper for four consecutive weeks. Also, the newspaper will likely charge a fee for the publication. Each case is different, but newspaper publication fees are usually around $200. The opposing party will have thirty days from the publication to respond and challenge the case.

Shop Around For a Tampa Divorce Attorney

Going through a divorce can be a highly stressful and emotional experience. You need a trusted legal advocate to help you achieve a fair outcome. Choosing an experienced, trustworthy divorce attorney is the single best step you can take to help make your divorce as smooth as possible.

Unfortunately, not all divorce attorneys are created equal. Top divorce attorneys in Tampa are known for their superb communication skills, clearly outlined fees, and impressive track records of success. Separating the five-star attorneys from inexperienced or unresponsive ones is essential to securing a positive outcome in your case.

Knowing how to spot the signs of a poorly performing attorney is just as important as knowing the qualities of a good divorce attorney in Florida. If you notice one or more of the issues below, you may want to consider your options more carefully:

  • Unresponsive: Is consistently late arriving at your meetings or responding to your calls and emails
  • Evasive: Fails to provide you with a written estimate, list of policies, or a summary of what is covered in their fee structure
  • A Bad Reputation: Poor online reviews or a bad industry reputation are red flags that you should not ignore
  • Uneducated: Attorneys who lack the education or experience to handle a divorce case are a recipe for disaster
  • Dismissive: Lawyers who are unwilling to answer your questions, provide legal advice, or who do not listen to you are poor choices

Consult a 5-Star Trusted Divorce Law Firm in Tampa

We understand how stressful a divorce can be and are here to help. At Florida Law Advisers, we want to provide solutions, not add to your burden with overpriced legal fees. We invite you to call us today to schedule a free consultation with an attorney at our firm. During your consultation, you will discover why so many people in the Tampa Bay Area turn to us for help with their divorce.

Whether a couple mutually agrees to the terms of a divorce or is engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help. Call us today at 844 771 4322 or fill out the “free case review” form on our website for more information.

A man following his partner perhaps after a domestic violence episode

Domestic violence in Florida should not go unreported. If you are the victim of domestic violence, it is important first to get yourself safe. Immediately call 9-1-1, your local domestic violence hotline, or Florida Domestic Violence Hotline at 1-800-500-1119.  Once you are safe, it is important to consult an experienced domestic violence attorney as soon as possible to protect yourself and your family. Conversely, if you are falsely accused of domestic violence, contact a domestic violence attorney right away. A false domestic violence allegation can have devastating consequences if not properly defended.

Domestic Violence in Florida

According to the Florida Coalition Against Domestic Violence, over 100,000 domestic violence cases are reported each year in Florida. Unfortunately, many more incidents go unreported every year. Although Florida’s overall crime rate has been decreasing in recent years, domestic violence rates have remained the same. Under Florida law, domestic violence is any assault, battery, stalking, false imprisonment, or criminal offense that results in a member of the family or household’s physical injury or death. See Florida Law 784.046.

If you are a victim of domestic violence, get help, don’t wait. An attorney can help with the legal process and navigating the court process. However, in many instances, the police should be involved as well. If you are fearful for your safety, contact the police. Most often, they are in a better position to help than a family law attorney can. Further, a Florida domestic violence injunction is more likely to be granted when police officers corroborate violence claims.

Injunctions/ No Contact Order

There are many different charges and legal options to consider for protection against domestic violence. See Florida Statute 741.  For instance, injunctions and restraining orders may be your first step in a domestic violence case. Although there is a similar “no-contact order” in criminal court, these are requested through a family court. Seeking a restraining order or injunction can protect against assault, threats, harassment, stalking, and other unwanted domestic violence forms. A family law attorney in Tampa can assist with the injunction, but it is not required to hire an attorney.

How to File a Domestic Violence Injunction in Florida

Under Florida law, Domestic violence is any assault, battery, sexual assault, or sexual battery. Additionally, stalking, aggravated stalking, kidnapping, false imprisonment, or a criminal offense resulting in physical injury or death can be domestic violence. See Florida Law 741.28. Also, actual violence is not necessary for an injunction to be granted. An injunction may be granted if the victim has reasonable cause to believe they are in imminent domestic violence danger. See Florida Statute 741.30.

An injunction can protect against assault, threats, harassment, stalking, and other unwanted forms of domestic violence. Petitioning for an injunction can be difficult, and you should consider consulting with a family law attorney in Tampa for assistance. Generally, you should not plead  “naked allegations”; instead, include specific facts.  An experienced family law attorney can help walk you through filing a domestic violence injunction in Florida.

Marriage is Not Required for an Injunction

You do not need to be married to the defendant to receive a domestic violence injunction.  Family or household member includes spouses, former spouses, persons related by blood or marriage are eligible. Additionally, people who are presently residing together as a family or who have resided together as a family in the past are included. Also, if you share children, it may fall under domestic violence. See Branson v. Rodriguez. Except for a child’s parents, the parties must be currently residing together or have resided together in the past as a family.

Florida Domestic Violence Injunction with Minor Children

If the two parties have children together, a Florida domestic violence injunction with minor children may be appropriate. If granted, the aggressor can be prevented from communicating with the children. The injunction may be granted even granted though there are no allegations of violence against the children. This is significant because it can help protect children from domestic violence. On the other hand, innocent parents may be denied access to see and speak with their children. If you are the victim of domestic violence or falsely accused, you should contact an experienced family law attorney in Tampa for assistance.

In Florida domestic violence injunction cases involving children, the judge must put the child’s safety and abused parent first. If an injunction is issued, it will limit communication between parties and can require supervised visitation. Unreported domestic violence can also harm future child custody cases as well. See Florida Child Custody Law 61.13. Parents have a responsibility to protect their children. Florida judges do not look favorably on parents who fail to report situations in which children were exposed to abuse and harmful influences.

False Florida Domestic Violence Injunctions

If a false injunction has been filed against you, contact a family law attorney. Too often, people falsely accused of domestic violence ignore the injunction. Failure by the accused to provide sufficient evidence in defense will typically result in the injunction being granted. See Hickey v. Burlinson. The types of evidence and testimony used to defend against an injunction will vary based on each case’s specifics. If you need assistance, contact an experienced domestic violence lawyer for advice on submitting evidence in your case.

Consult a 5-Star Tampa Family Law Firm

Domestic violence is a serious matter and should not be taken lightly. Whether you are being falsely accused or need an attorney to help protect your safety, Florida Law Advisers can help. The domestic violence attorneys at our firm are passionate about these matters and have years of experience in these cases. To speak with a family law attorney at our firm, call us at 800 990 7763.

Child Custody Guide: Florida Family Law

In a Florida divorce or child custody case, the judge will consider the children’s best interests when deciding how time-sharing will be allocated amongst the parents. See Florida Statute 61.13. Florida custody law does not give any preference to mothers or fathers when deciding child custody matters. Instead, the custody arrangement will depend on the specific facts and circumstances of each case.

An attorney is not required in Florida child custody cases but can be very helpful. A Tampa family law attorney can help navigate your case through the court system and advocate on your behalf. If litigation is required, the judge will decide the case based on the children’s best interests. It would be best to have satisfied all the required procedures and present a compelling case to the judge.

What is a Florida Parenting Plan?

In Florida custody and divorces with minor children, the court will issue a parenting plan. The parenting plan outlines how the parents will share the responsibilities and decision-making authority for the children. At a minimum, the parenting plan must describe how the parents will share and be responsible for the child. Additionally, it should specify the time children will spend with each parent.  The plan must also designate who will be responsible for health care, school-related matters, and extra-curricular activities.

Examples of Florida Custody Time-Sharing Schedules

There is no one size fits all parenting plan for Florida custody cases. Instead, the terms will vary based on the specific facts of each case. The Court will try to determine a schedule that is in the best interests of the children. Some of the common timesharing schedules in Florida parenting plans are:

  • Weekly exchange – when work schedules are similar for both parents, there is little need to juggle times and days; for children, it gives them an easy calendar to follow
  • Two weeks at a time – this gives more time in each home and generally works better for older children, particularly teenagers. The schedule may allow busier parents opportunities to schedule their heavier work times during the children’s absence
  • A 3-4-4-3 schedule – this is a two-week arrangement where the first week, one parent (let’s say Mom) has the children for 4 days, while the other parent (Dad) has them for 3 days; the next week, it switches so the Dad gets 4 days, and Mom has 3 days
  • A 2-2-5-5 schedule – another two-week agreement that lets parents each get two-day blocks, followed by each getting 5-day blocks with the kids. For example, Mom starts with them for 2 days, then Dad gets 2 days, then back to Mom for 5 days, and then to Dad for 5 days, at which point the cycle repeats.
  • A 2-3-2 schedule – this is a weekly schedule that alternates between Mom and Dad each week. For instance, in week 1, Mom has them for 2 days, then Dad gets them for 3 days, and then back to Mom for 2 days, after which it reverses with Mom getting the 3 days between Dad’s two stints of 2 days each.

The “Big” Talk

Separation is not just stressful for the parents; children need comforting as well. It is an awkward but important conversation to have with your children. When deciding how to tell your kids about the divorce, it is important to prepare for it. In particular, factor in the following ideas:

  • Do It Together – unless absolutely impossible, this is a conversation in which both parents must participate and attend.
  • Write It Out – very few people thrive in impromptu performances; for this situation in particular. It is important to script out what you will say, recognizing that you will “wing it” when it comes to the real thing (but at least you both will be prepared).
  • Schedule the Talk – this is not an offhand “Oh, by the way…” conversation tossed out while dropping the kids off at school.
  • See With Their Eyes – try to gain their perspective on this revelation; remember, you two have had time to plan and prepare for this, but for the children, it’s a shock, maybe even a trauma – seeing it from their point of view can give you more empathy and understanding.
  • Keep Life the Same – this is a big change, so keeping the remainder of their lives (school, after school activities, hanging with friends, music lessons, etc.) familiar can help them integrate this change and give them “comfort” zones which haven’t changed.

Uncontested Custody Cases in Florida

An uncontested case is when both parents have reached an agreement before filing the case. If there is an agreement on the terms of custody, it will speed up the court process. If parents agree on the terms of the parenting plan, the judge will typically ratify their agreement. Usually, a judge will only interfere if the terms conflict with Florida law or policy.

Florida courts have a policy of allowing both parents to have frequent and continuing contact with their children. When shared custody is ordered, a court should refrain from awarding a parent ultimate responsibility concerning the children. See Florida child custody case, Markham v. Markham. However, control over specific aspects of the child’s welfare may be awarded to one parent. For instance, responsibility for the child’s education or health care may rest in the hands of just one parent when shared parental responsibility is impracticable. See Wilson v. Wilson.

How is Custody Determined in Florida?

If the parents cannot reach an agreement, the judge will decide the parenting plan’s terms. The judge’s primary focus will be to find what is in the children’s best interest and welfare. See Decker v. Lyle. The judge can consider all relevant circumstances when determining custody. For instance, the judge can consider the child’s relationship with both parents, any child’s special needs, a history of domestic violence, and the child’s preference. See Denker v. Denker.

Florida child custody law 61.13 also lists many factors for the judge to consider, including but not limited to:

  • Each parent’s willingness to act upon the needs of the child, as opposed to the needs of the parent
  • The preference of the child.
  • When considering a parent’s moral fitness, the court will focus on whether the parent’s conduct has had or is reasonably likely to impact the child directly adversely.  The mere possibility of an adverse impact is not enough. See child custody case McKinnon v. Staats.
  • The home, school, and community record of the child.
  • Each parent’s demonstrated capacity and disposition to participate and be involved in the child’s school and extracurricular activities.
  • Whether both parents have demonstrated an ability and willingness to facilitate and encourage a close and continuing parent-child relationship, to honor a time-sharing schedule, and to be reasonable when changes are required.
  • Whether both parents have demonstrated an ability and willingness to determine, consider, and act upon the child’s needs instead of their own needs or desires.

The Child’s Preference

In custody cases, the judge may consider the children’s preference when determining the parenting plan terms. See Jeffers v. McLeary. However, the child’s preference cannot be the sole factor the court relies on to determine a parenting plan.  See Florida child custody case, Garvey v. Garvey. It is important to note minor children may not attend a child custody hearing without prior court approval. See Florida Family Law Rule of Procedures 12.407. The parent requesting a child’s testimony must first schedule a court hearing on the request. At the hearing, the judge will consider all relevant factors when ruling on the request. If granted, the judge may allow the minor to testify about the child’s preference in custody.

If the court does allow the child to testify, it will typically be an in-camera examination. An in-camera examination will usually take place in the judge’s office without the parents and lawyers present. The public will not be allowed to attend as in-camera examinations are private. However, a court reporter will be permitted to attend the examination. The court reporter will transcribe the conversation and make the record available for a future court hearing. If the judge refuses to allow a court reporter to be present, it may be grounds for an appeal. See Hickey v. Burlinson.

Where Should the Custody Case be Filed?

In 2002, Florida adopted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The UCCJEA is used to determine which state has jurisdiction to enforce custody law. A substantially similar law has been enacted in all 50 states. The laws regarding jurisdiction are reciprocal and should not conflict with each other. The UCCJEA is designed to prevent a parent from changing states to avoid being subject to Florida law. The UCCJEA also prevents a new state from entering any orders until Florida affirmatively relinquishes jurisdiction.

Under the UCCJEA, the state with jurisdiction over child custody matters is referred to as the home state.  The home state is where the child lived for at least six consecutive months immediately before filing the case. If no state meets the criteria, the state with the most significant connection should be considered the home state.

Once a court with home state jurisdiction enters a child custody order, all other states are bound by that order and have no authority to modify it. Further, even if a child lives in a new state for over six months, the prior state will still have exclusive jurisdiction over custody disputes, as long as one parent continues to reside in the original home state. See Florida Statute 61.515. This is commonly referred to as continuing exclusive jurisdiction. Until jurisdiction is removed from Florida, only Florida courts can issue or modify court orders regarding custody.

What is a Guardian Ad Litem?

A guardian ad litem (GAL) can be a constructive person in child custody cases. In some cases, a GAL is automatically appointed by the Court. There must be a request to appoint a GAL and approval from a judge in other child custody cases. Guardian ad litems can be very helpful but are not appropriate for all child custody cases. Before asking a judge to appoint a GAL, you should speak with a Tampa child custody attorney for advice about your specific case.

The guardian ad litem’s mission is to advocate for the best interests of the child. The GAL is not appointed for the interests of either parent or a third party. A GAL is given the power to investigate and issue a report for the court. Under Florida law, a guardian ad litem shall have the powers, privileges, and responsibilities to the extent necessary to advance the child’s best interests. See Florida Statute 61.403

Recorded Conversations and Videos in Custody Cases

When a couple is going through a divorce or child custody dispute, there may be insults and threats made. Often, people will try recording conversations for evidence in a child custody case. However, Florida law has stringent laws for recordings that must be followed. If you feel you have recordings that would help your case, contact a child custody attorney in Tampa.

Under Florida Statute 934.06, any information gained from illegal monitoring/recording of electronic communications or oral communications will not be admitted as evidence. Further, each party in a proceeding has an expectation of privacy from interception by another party. See Shevin v. Sunbeam Television Corp. Interception in this context means gaining information by using electric, mechanical, or other devices. See Florida Statute 934.02.

In Florida, electronic communication is defined as any transfer of information shared partly or wholly by a wire, radio, or other electronic devices. Information includes signs, signals, writing, images, sounds, or data. See Florida Statute 934.03. Electronic storage of documents may also be protected communication. An example of illegally recording electronic communication would be installing software that allows a party to intercept the opposing party’s emails and instant messages. The information gained through this type of technology will not be admissible in trial. See O’Brien v. O’Brien.

Illegal recording of oral communication may also include conversations that occur in person. A common example in divorce cases is recording a conversation between spouses without the other party’s consent.  These types of recordings are typically not admissible in Florida divorce and child custody cases.

Modifying the Parenting Plan

Once the Court has issued the parenting plan, it will be binding on both parents. However, Florida child custody law 61.13 does allow parenting plans to be modified. To modify the parenting plan, there must be a substantial, unanticipated change in circumstances. Additionally, the proposed changes must be in the child’s best interest. The burden of proving that the change is unexpected and substantial can be difficult without competent legal counsel. Therefore, if you feel it will be in your child’s best interest to modify or prevent a parenting plan change, you should contact Tampa child custody lawyers for assistance.

Determining if there has been a substantial change is decided on a case-by-case basis. However, some situations will almost always automatically be deemed substantial. These include but are not limited to:

  • Death of a parent
  • Child abuse
  • Conviction of a crime resulting in long term imprisonment
  • Repeated arrests for DUI while the child was in the car

A Florida family law court is likely to deem a change substantial when there is a combination of factors. For instance, allegations of substance abuse are generally not enough to automatically be deemed substantial unless the child’s abuse poses a danger. See Farrow v. Farrow.  Further, changes in a parent’s health or financial condition are typically not enough by itself to be considered substantial. However, if the change is coupled with some other factor, it may be deemed a substantial change. See Perez v. Perez.

Florida Paternity Law and Father’s Rights

Under Florida law, there is a presumption the husband and wife are the parents of children born during the marriage. See Florida Statute §382.013. The presumption means that the law will assume the husband is the father without evidence to the contrary. See child custody case O’Bryan v. Doe. If the male wants to dispute paternity, a petition for the disestablishment of paternity should be filed in court. See Florida Statute 742.18.

If the child is born to an unmarried couple, the father may need to file a paternity case to establish parental rights. See Florida Statute 742.10.  Being listed as the father on the birth certificate alone may not be enough to establish paternity. The father may not have any custody rights until paternity is established. If the mother agrees both parties are the child’s parents, a DNA test may not need to be taken. If a parent disputes paternity, a scientific DNA test will likely be required.

Terminate Father’s Rights in Florida

Generally, there are two ways to disestablish paternity and terminate the father’s rights legally. The first is under the Florida Rules of Civil Procedure.  Rule 1.540 allows a father to obtain relief from a judgment, decree, or order within one year of its entry.  The grounds for relief under Rule 1.540 include mistake, fraud, misrepresentation, or newly discovered evidence that could not have been previously discovered by due diligence.

Florida Statute 742.18 can also provide a means to terminate the father’s rights and child support. Proceeding under this law can be difficult, and it is strongly recommended to retain a Tampa child custody attorney to assist.  To obtain relief under this statute, the father must include all of the following in the petition.

  1. An affidavit stating that newly discovered evidence relating to the child’s paternity has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.
  2. Scientific tests administered within 90 days of the petition showing the petitioner is not the child’s father. Alternatively, the petitioner can allege access to the test was not available.
  3. The petitioner is current or substantially complied with all child support obligations.

It is important to note that including the above three elements in the petition is not always enough to terminate the father’s rights in Florida. The three elements above are necessary to file a valid petition; it does not guarantee success.

Terminating Parental Rights in a Florida Stepparent Adoption Case

To complete a Florida stepparent adoption, the parental rights of the biological parent must be terminated. The biological mother automatically obtains parental rights upon the birth of the child. Therefore, in every adoption case where the mother is still living, there must be a judgment of termination of parental rights entered by a court of law before the adoption can occur. If the mother were married at the time of conception or birth, the mother’s husband would also acquire parental rights automatically upon the child’s birth. Fathers to children born out of wedlock will need to establish paternity legally. Until paternity is established, the father will not be legally recognized under the Florida child custody law. For assistance with establishing paternity, contact a Tampa child custody attorney.

Florida Stepparent Adoption

Adoption is creating a legal relationship between parent and child, where such a relationship did not exist. When adoption is complete, the biological parents’ parental rights are terminated, and the adopting parties assume all rights, privileges, and obligations as parents of the adopted child.

Generally, there are three types of adoption cases in Florida. See Florida Statutes Chapter 63. The most common type of adoption cases is when the parents voluntarily consent to the adoption. The second type of adoption cases originates in dependency cases. In dependency termination cases, the court determines it’s not in the child’s best interest to remain with the biological parent. Thirdly, are Florida stepparent adoption cases.

Florida Stepparent Adoption with Consent of the Biological Parents

Adoption by consent can only occur if all the persons required to consent under Florida adoption law consent to the adoption per Florida’s requirements. If the minor child to be adopted is over 12 years of age, the child must consent as well. See Carlson v. Keene. The minor child’s consent must either occur in front of the judge or be acknowledged before a notary public in the presence of two witnesses.

Generally, the written consent of the mother is required in consent adoption cases. The mother’s consent must occur at least 48 hours after the child’s birth to be legally binding. If the father has legally vested his parental rights, his consent will also be required. Additionally, the law will require the consent of any other person who has legal custody of the child. However, a court does have the authority to not require consent in the following circumstances:

  • The parent has deserted the child without means of identification. See Florida Adoption Law 63.064
  • A court of law has previously terminated the parent’s parental rights
  • The parent has been legally declared incompetent

Revoking Consent to a Florida Stepparent Adoption

Consent to adoption should not be taken lightly. The consent to a Florida stepparent adoption may not be withdrawn on a mere whim or because of a change of heart. Under Florida law, consent to a Florida stepparent adoption may only be revoked if the consent was obtained by fraud or duress. See Florida Adoption Statute 63.082.

Absent fraud, duress, or undue influence a consent to adoption that is given voluntarily and freely is irrevocable. Further, the party wishing to revoke the consent has the burden of proving fraud or duress was present with clear and convincing evidence. Revocation of consent will depend on the facts and circumstances of each case. Therefore, if you think you may be entitled to revoke a prior consent to adoption, you should contact a child custody lawyer in Tampa for advice about your specific case.

Enforcing a Parenting Plan in Florida

A Florida family law court can use many different types of sanctions to enforce a parenting plan. The penalty most often enforced is a sanction that requires the parents to offset the missed visitation. In fact, Florida family law requires the court to “award the parent denied time a sufficient amount of extra time-sharing to compensate for the time-sharing missed.”  The noncompliance does not need to be caused by a willful disregard for the parenting plan. Instead, a parent needs only to prove the other parent failed to comply with the parenting plan without proper cause. See Florida child custody case Cummings v. Cummings.

Ordering additional visitation to make up for noncompliance is just one possible sanction. For instance, a court may also order the non-compliant parent to:

  • Pay the compliant parent’s court costs and attorney’s fees
  • Attend a court-approved parenting course
  • Pay the costs incurred by the children having frequent and continued contact with the parent
  • Hold the non-compliant parent in contempt of court – contempt is typically reserved for cases where awarding additional visitation have proven ineffective
  • Modification of the parenting plan

Modification of parenting plans as a sanction to enforce a Florida parenting plan is normally a last resort. Usually, the court will exhaust some of the other sanctions before modifying the parenting plan for noncompliance. See Rahall v. Cheaib-Rahall. Further, any modification based on non-compliance must also be in the best interests of the child.

Enforce a Florida Parenting Plan Outside of Court

A parent should not retaliate or resort to self-help when the other parent fails to comply with the parenting plan. Instead, a case to enforce a Florida parenting plan should be filed in a court of law. A parent’s noncompliance does not permit the other parent to take matters into their own hands and disregard their own obligations under the parenting plan. For instance, withholding child support payments or alimony is not permitted as retaliation for failure to abide by a parenting plan. See Florida v. Lemaster.  This holds even if the noncompliance is willful and intentional. If a parent has failed to comply with the parenting plan’s terms, you should contact a child custody law firm in Tampa for assistance.

Enforce a Parenting Plan in Hillsborough or Pinellas County

In Hillsborough & Pinellas County, Florida, all child custody or divorce issues that arise after the final judgment are automatically sent to mediation. See Administrative Orders  S-2009-107 & 2011-006 PA/PI-CIR. For instance, if a parent does not comply with a parenting plan, the case must go to mediation before a judge rules on the mater. Likewise, if a former spouse does not comply with the divorce decree’s terms, mediation will be necessary before a judge will hear the case.

Unlike a Florida family law judge, the mediator does not have the authority to compel either party to enter into an agreement. Additionally, the mediator has no authority to decide the outcome of the case. Typically, the mediator will be a Florida family law lawyer who is familiar with Florida law. However, the mediator must be independent and not associated with either side in the case. There are mediation centers in the courthouse, as well as private mediation facilities. In most instances, mediation provided at the courthouse will be less expensive than private mediation.

The Administrative Orders require both sides to attend mediation in good faith. There is no requirement that an agreement is reached, only to negotiate in good faith. If the dispute is not resolved in mediation, it can then be sent to a judge to decide the outcome.

Consult a 5-Star Child Custody Law Firm in Tampa

If you need assistance with a child custody case, contact Florida Law Advisers to speak with a child custody attorney in Tampa. Every case is different, and our vast experience allows us to cater our services to each client’s individual situation. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for child custody rights, we can help. At Florida Law Advisers, you not only receive the highest quality legal support, but you also will work with empathetic professionals who can understand and support you through this difficult time.

We understand how important child custody matters are and work tirelessly to protect our client’s rights. When the issues cannot be resolved through negotiations, we are prepared to go to court and fight aggressively for our clients. We are available 24 hours a day, 7 days a week, and offer a free initial consultation. Call us today at 800 990 7763 to speak with a child custody attorney.