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.

Image of a man signifying default divorce

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. Further, a divorce can be granted in as little as 20 calendar days, if no response to the case is filed.

If you have received notice of a divorce or child custody case, it is crucial to respond quickly and correctly. When a party does not respond to a petition, a default divorce can be entered. Typically, when served with a Florida divorce petition, there are only 20 days to file a response. If a response is not filed on time, the petitioner (person filing the case) can request a default divorce be entered against the other party. Default divorce judgments can be helpful but are not right for every case. If you need legal advice, you should contact a divorce attorney in Tampa for a consultation.

Default Divorce in Florida

If a response is not filed within 20 calendar days of being served the petition, a default may be entered. If a default is entered, the case can continue without participation by the defaulted party. Moreover, the Court can enter the default without even conducting a hearing on the matter. If the Court enters a default, the defendant/ respondent will not have an opportunity to contest the merits case or raise defenses. See Residential v. Rector. Moreover, if you have been defaulted, you may not even be entitled to notice of future court hearings or other activity. See Florida Family Law Rules of Procedure.

Clerk Default Divorce vs. Judicial Default Divorce

Under Florida law, there are two types of default: clerk and judicial. Clerk default occurs when a party fails to respond in any form to the petition. The second category of default, judicial default, occurs when a party fails to plead or defend against the claims. A party can plead or defend claims against them at any time before a default is entered against them. Conversely, once the default is entered, the defaulted party is deemed to have waived their defenses. The defaulted party is now treated as having admitted all the allegations. See State Farm v. Horkheimer.

A clerk’s default can be entered without even a hearing or notice to the other party. On the other hand, a judicial default generally requires a hearing and notice of the hearing to be sent. At the hearing for a judicial default divorce, the party will have an opportunity to persuade the judge not to enter the default divorce.

How to Overturn a Default Divorce in Florida

After default has been entered, judicial, or clerk, it is possible to have the default set aside. See Federal Rule of Civil Procedure. However, the requirements to set aside a default can be very difficult to satisfy without the assistance of a Tampa divorce lawyer. Every case is different, and the likelihood of success will depend on the circumstances of each case. If you have questions about a specific case you should contact a divorce law firm for assistance.

Generally, Florida divorce law requires three elements to be shown to set aside default judgment; excusable neglect, a meritorious defense, and due diligence. Failure by the defendant to prove all of these elements will result in the default being upheld. See Schwartz v. Business Cards Tomorrow, Inc. If the default is not vacated, the defendant will be treated as admitting all of the plaintiff’s allegations and be barred from raising defenses to the lawsuit.

Excusable Neglect

To successfully have a default set aside, a defendant must first show there was excusable neglect. Excusable neglect means there was a legitimate reason for the failure to answer the summons within 20 days. Lack of knowledge of the law or rules is not excusable neglect. Common examples of excusable neglect include a major life emergency, hospital stay, or illness that interfered with answering the summons on time. See Elliot v. Aurora Loan Services.

Meritorious Defense

The second requirement to overturn a default divorce in Florida is to allege a meritorious defense properly. For the defense to meet the requirement, it must be made in a pleading or affidavit. See Yelvington Transport, Inc. v. Hersman. For assistance with drafting a formal pleading or affidavit for your meritorious defense, contact a divorce attorney in Tampa for legal counsel.

Due Diligence

Lastly, to set aside a default divorce in Florida, the defendant must show they acted with due diligence in responding quickly after learning the default had been entered. Again, because there is no bright-line rule for determining if default may be set aside, the facts of each case play an important role. For this reason, it is essential to consult an experienced attorney. There is no one size fits all approach for analyzing due diligence in default cases.

Limitations for a Default Divorce in Florida

A default divorce in Florida can be helpful, but it may not resolve all the issues in your case. There are limitations on the type of relief you can receive in a default divorce in Florida. For more information about Florida divorce laws concerning a default, contact a Tampa divorce lawyer for assistance.

Tampa Divorce Law Firm

Going through a divorce or custody battle can be a highly stressful and emotional experience. It is vital to have a divorce attorney at your side who is knowledgeable of the law and can aggressively defend your rights. 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 legal needs. Whether a couple mutually agrees to the terms of a divorce or are engaged in a fierce battle for their property and child custody rights, Florida Law Advisers, P.A. can help. Call us today at 800 990 7763 or fill out the “free case review” form on our website for more information.