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.

Confused child with paper parents wondering about relocation

We cannot always plan for everything life throws at us. Sometimes events will cause us to move unexpectedly without much notice. Moving becomes even more complicated if you have a parenting plan as a result of a divorce or paternity action.  Depending on the specifics of your relocation, Court approval may be needed. If court approval is required, you may need to petition for relocation in Florida. A child custody attorney in Tampa can help with filing the petition, if necessary.

Florida child custody law can require a parent to obtain approval from their ex or a judge before moving more than 50 miles away. See Florida Child Custody Statute 61.13001. Failure to obtain abide by the law can result in contempt of court. Additionally, the court can compel the return of the child and take the parent’s actions into account when determining custody.

Do I Need To File a Custody Case To Move With My Child?

If there has previously been a child custody or paternity case filed, you will likely need to file a petition for relocation. After a parenting plan has been issued in Florida, steps must be taken before relocating with the child. Under Florida child custody law, relocation is any move more than 50 miles away from the current residence. If the parents are not in agreement, the court will need to intervene to decide the relocation. In cases such as these, it is crucial to have a child custody attorney at your side.

If a parenting plan or paternity order was never issued, you might not be required to file for relocation. However, in many cases, it is still recommended to file for relocation, even if it is technically not required. Otherwise, you run the risk of the other parent filing a custody case in Florida soon after the move. Judges may not view the relocation favorably and can require the child to be returned to the other parent. This is especially a concern when a parent moves without first obtaining the other parent’s approval.

Relocation Without Court Approval

In relocation cases, it is essential not to resort to self-help. Self-help refers to taking the law into your own hands, regardless of court approval. Moving outside of the fifty-mile radius without first obtaining court approval can be a violation of the parenting plan. A violation such as this can result in changes to your rights and responsibilities as a parent.  Family law is inter-connected:  a parenting plan affects time-sharing, time-sharing affects child support payments, and so on.

It is also very likely a move of this nature would affect your ex’s visitation rights. If so, this could put you in further violation of the parenting plan. If you are found to be in contempt, the judge can impose sanctions. These sanctions can include but are not limited to:

  • Being ordered to pay the other parent’s legal fees
  • Attend court-ordered counseling
  • Loss of timesharing with the child and custody rights
  • Denial of the relocation request
  • Permanent changes to the parenting plan

Similarly, if your ex relocates without telling you or obtaining court approval, you should contact a child custody attorney. Family law judges do not want a parent to attempt to remedy the situation on their own without seeking court intervention. Resorting to self-help can significantly impact your ability to win a child relocation case in Florida.

Relocation With Consent From The Other Parent

To be an effective relocation agreement, both parents must agree to the terms. Additionally, all other parties entitled time-sharing with the child must also agree to the relocation. The agreement must be reduced to writing and include a parenting plan. The parenting plan must detail the time-sharing schedule for custody after the relocation occurs. Parents should also account for and describe the transportation arrangement related to time-sharing in the parenting plan. Moreover, to be legally valid, the agreement must be submitted to a court with competent jurisdiction. Lastly, the agreement must be ratified by a family law judge.

Relocating When The Other Parent Objects

If the other parent does not agree to the relocation, the relocating parent must file a petition to relocate. The other parent and all other parties entitled to time-sharing be served with a copy of the petition. If no objection to the petition is timely filed, the court may grant the petition to relocate without an evidentiary hearing. See Florida Rules of Civil Procedure.  If no objection is filed it will be presumed that the relocation is in the child’s best interests. See Florida Child Custody Case Porras v. Porras.

If the nonrelocating parent objects to the relocation, there must be a hearing or trial before the relocation can occur. An objection to relocation must be verified and include the factual basis for why the relocation should be denied. Moreover, the objection must include a statement outlining the involvement that the nonrelocating parent has had with the child. The Florida child relocation objection process can be confusing without legal training. If you need assistance fighting a relocation case, contact a child custody attorney in Tampa for counsel.

Petition For Relocation In Florida & Long Distance Parenting Plan

If you move more than 50 miles away from the principal residence, you may need a long-distance parenting plan.  The principal place of residence would have been established in the initial parenting plan. Most likely, it is the address of the parent with the majority of time-sharing responsibilities according to the original parenting plan.  If you have not yet finalized your initial parenting plan, you can add the relocation to the case.

If you already have an established parenting plan, you should file the petition for relocation right away. A child custody attorney can assist with filing the documents on your behalf and navigating the case through court. You are not required to hire a child custody attorney, but it is highly recommended to do so.

What To Include In a Petition For Relocation In Florida

If there is no agreement, you should file the petition for relocation in Florida without delay. The petition for relocation in Florida should include details about the relocation. The petition should include the date of the move, new address, and reasons for the move. Additionally, it should consist of a proposed parenting plan. The parenting plan should specify how you plan to exercise timesharing, considering the distance. Moreover, formal notice of the petition would be required. See Hobe Sound v. First Union

After the other parent has had a chance to respond to your petition for relocation in Florida formally, a court hearing will be conducted.  The judge will make its decision based on the best interests of the child. See Florida child custody case Mize v. Mize. The judge’s primary concern will be the needs of the child, not the parent’s desires.

How To Win a Child Relocation Case in Florida When A Parent Objects

If a valid objection is filed, there must be a hearing or trial before the relocation can occur. The relocating parent will have the burden of proving the relocation will be in the child’s best interests. Therefore, you need to prove to the judge the child will have a better life at the new location. An experienced attorney should be able to help identify the key issues the judge will be focusing on. Some of the factors the judge can consider in a child custody relocation case are below.

  • The child’s preference
  • Whether or not the relocation will enhance the quality of life for both the relocating parent and child
  • The impact the relocation will have on the child’s physical, educational, and emotional development
  • Each parents reasons for the relocation or objection
  • The nature and extent of involvement both parents have had with the child
  • The current employment and economic circumstances of each parent and whether the relocation is necessary to improve the economic conditions.

The above list is non-exhaustive; a court will consider many other factors in relocation cases. For more information, see Florida child custody statute 61.13. If you need assistance with a specific relocation case, contact a child custody law firm for advice.

In child custody cases, it is vital to understand how judges think and process these sorts of cases. The judge will have a lot of discretion on who wins a Florida relocation case. An experienced lawyer should be able to present the facts in a way that is most favorable to their client. If you need information on how to win a child relocation case in Florida, contact Florida Law Advisers.

Consult a 5-Star Child Custody Relocation Lawyer In Tampa

If you are defending a relocation or need to relocate, contact us today to speak with a Tampa family lawyer. At Florida Law Advisers, we take these matters very seriously and will stand firm for what is fair. We have years of experience in both advocating for and against relocation.

Regardless if both parents mutually agree or are engaged in a fierce battle for their custody rights, we can help. Our team of experienced child custody lawyers is committed to providing top-notch legal representation at a reasonable cost. If you need legal counsel, call us today. We are available to answer your call 24/7.