Florida Probate
Attorney Edward J. Chandler, Esq.
Edward J. Chandler, Esq.
708 East Atlantic Blvd.,
Pompano Beach, Fl 33060
Phone: (954)788-1355
Fax: (954)788-1357
1. WHAT IS FLORIDA PROBATE?
Florida Probate is a court-supervised process for identifying and gathering the decedent's assets, paying taxes, claims and expenses and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes.
Florida probate statatutes provide for two types of probate administration:
A. Formal Administration and
B. Summary Administration
Formal Administration is the primary method used to probate estates in Florida. If the Florida decedent has died within the past two years and the decedents property remaining in their sole name has a value in excess of $75,000 or a will directs formal administration then a formal administration will typically be required. A personal representative is appointed based on who is named in the decedents valid will admitted to probate and whether that individual(s) qualifies to serve as personal representative or based on order of priority based on Florida intestate laws.
An individual personal representative must be a Florida resident or a close relative of the decedent as defined by Florida probate statutes to serve as personal representative of an estate. They also must be at least 18 years of age, not have been convicted of a felony and be of sound mind to act. Assuming these do not present a problem and there was a will the probate of which is not being contested or challenged the named personal representative will be appointed by the judge.
If there is no will the Florida intestate laws for the appointment of the personal representative provide that if there is a spouse they will have priority to serve as the personal representative. If there is no spouse then the nearest in degree such as a child or children will have the priority. Although multiple personal representatives may serve if one child is local and and another is in another state it may be make sense for the local personal representative to serve. Having a local personal representative serving may also prevent the estate from being required to have to obtain a personal representatives bond.
A Notice to Creditors must be published with a publication circulating in the county of the decedent one a week for two consecutive weeks. This provides notice to all unknown or unacertainable creditors and provides them with 3 months to submit statement of claims to the probate court or forever be barred while any creditors who are known or reasonably ascertainable creditors have the longer of 30 days from service to 3 months from the date of initial publication. If a statement of claim is submitted that the personal representative objects to they can investigate and inquire regarding the validity of the claimed debt and then either pay it, settle it for less then is being asked for or object to the statement of claim. They can object by filing a formal objection and serving the creditor. If this is done the creditor must follow up with an independent action enforcing the claim or the debt will likely not be valid any longer if not pursued in a timely manner. All such claims against the estate must be resolved through either payment, settlement or objection (and if the indepedent action is lost the estate must pay the claim according to the terms the court finds it to be owed).
The Personal Representative gathers and collects all the assets assets of the decedents estate. They must preserve and protect the assets of the estate.
Taxes will need to be paid for the decedents final income tax return, a 1040 tax return, as well as possibly an estate or trust income tax return a 1041 tax return, and if the decedent had assets worth $1,500,000 as of 2004 regardless of whether they were in their probate estate then an estate tax return which is a 706 tax return would need to be filed. The personal representative will pay these taxes and likely write the check from the decedents estate checking account but unless they are an accountant or knowledgeable in this area they should seek professional assistance in filing and preparing the tax returns.
Florida law also establishes a nonadministration proceeding called "Disposition of Personal Property Without Administration."
2. IS AN ATTORNEY REQUIRED FOR ALL PROBATE ADMINISTRATION IN FLORIDA?
Yes Florida law almost always requires an attorney be involved. Florida law requires an attorney represent the Personal Representative/Estate for all probate matters except the disposition of personal property without administration.
The reason is that the Florida statutes many legal issues arise, even in the most basic estate administration and therefore the state by statute requires that an attorney be involved.
The attorney for the personal representative advises the personal representative on rights and duties under the law, and represents the personal representative in estate proceedings. The attorney for the personal representative represents the estate and is not the attorney for the beneficiaries.
3. What are the assets of the estate that are subject to probate? What are examples of assets which are not probate assets?
The probate assets are those assets in the decedent's sole name at death. Assets that are owned so they will pass by operation of law such as joint tenants with right of survivorship or transfer on death accounts, or by contract such as insurance proceeds that pass a named beneficiary other then the estate are not probate assets.
4. WHY IS PROBATE REQUIRED?
Probate is needed to finish up the affairs of the decedent and properly retitle the assets to whom they should pass. Probate laws have been in force in Florida since 1845. Florida statutes have default provisions also known as the intestate rules which apply if the decedent dies without leaving a valid will and has property in their sole name. The decedent has the authority to make decisions regarding their property that is in their sole name by leaving a valid will.
5. WHAT ARE SOME WAYS TO AVOID PROBATE?
There are a number of ways to avoid Florida probate among the most common ways to avoid Florida probate are by having property funded in a revocable trust which passes the property to named beneficiaries, through transfer on death accounts which automatically pass upon the death of the account holder to their named beneficiaries or by contract such as an annuity, 401k plan or insurance policy.
6. How should a life insurance policy be titled? Are there any ways to use life insurance to help save estate tax?
An insurance policy should always name a beneficiary other then the estate in order to avoid probate. Insurance proceeds are not taxable from an income tax perspective when the beneficiaries receive them although they are generally included in the decedents estate to determine if the decedent owed any estate tax. Currently there is an estate tax exemption of $1.5 million per decedent (although if passing to a spouse it may only be a deduction and deferral if proper tax planning is not done) if a decedent has property exceeding this amount it will likely be taxed at rates starting above 40%. If an irrevocable life insurance trust were to be setup so the decedent no longer had incidents of ownership of the property they could have the trust provide who the property would go to and still exempt the full amount of the insurance trust from any estate taxes. A half million dollar policy that would all otherwise be subjected to tax in an irrevocable life insurance trust can save a couple hundred thousand that would otherwise have to be paid in taxes thereby increasing the amount of property to be passed on to friends and loved ones.
6. WHAT IS A WILL?
A will is a writing, signed by the decedent who is 18 years of age or older who has the mental capacity regarding what they are doing and that is signed by two witnesses and a notary. A will usually designates a personal representative and names beneficiaries to receive probate assets. A will can also do other things, including establishing a trust and designating a trustee and naming a guardian for minor children. To the extent a will properly devises probate assets and designates a personal representative, the will controls over the default provisions provided in Florida intestacy law. Without a valid will, or if the will fails to properly dispose of all of the assets, then Florida statutes provide who shall receive such property. In the absence of a direction regarding the naming of a personal representative the default provisions of Florida law controls. A will does not help avoid Florida probate. A will only becomes effective upon the death of the testator - person disposing of their property at which time the property in their sole name requires probate for to the assets to reach the designated beneficiaries or the title to be changed to their name.
7. ARE DETAILS OF PROBATE PROCEEDINGS KEPT PRIVATE?
No, the details of a probate administration are a matter of public record and have few privacy protections. This is one of the benefits of having a revocable trust. The distribution of and property properly funded in the trust is a private matter unlike probate proceedings.
8. WHO RECEIVES THE PROPERTY THAT WAS LEFT IN DECEDENTS NAME IF THERE IS NO WILL?
Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse receives everything.
Surviving spouse and lineal descendants.
If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half.
If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.
No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.
No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.
Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.
9. WHO IS INVOLVED IN THE PROBATE PROCESS?
While there may be others, the following is a list of persons or entities often involved in the probate process:
Attorney for the Personal Representative or co Personal Representatives
Personal Representative
Clerk of the Circuit Court
Circuit Court (acting through a Circuit Court Judge).
Claimants (People owed money or claiming to be owed money)
Surviving Spouse, Children and/or other beneficiaries
Florida Department of Revenue
Internal Revenue Service (IRS)
10. WHERE ARE PROBATE PAPERS FILED?
Probate papers are filed with the Clerk of the Circuit Court, for the county where the decedent lived or owned property. In Broward County the court is located at 201 S.E. 6th Street, Fort Lauderdale, FL 33301. In Miami-Dade the Probate Court is located at 73 W. Flagler Street Miami, FL 33130. A filing fee must be paid to the clerk to start the probate administration. The clerk assigns a file number (such as 05-0000) and maintains a docket sheet which lists all papers filed with the clerk for that probate administration. In the Broward County Probate Court and the Miami Dade County Probate Court the filing fee to start the probate administration is $256 for a formal administration and $206 for a summary administration. The probate courts charge $2.50 per 1 page certified copy.
11. WHO SUPERVISES THE PROBATE ADMINISTRATION?
A Circuit Court Judge presides over probate proceedings for the county in which the decedent was domciled. For example a Circuit Court Judge for the probate division of Broward County Probate Court supervises all probate matters for people who died domiciled in Broward while a Circuit Court judge in Miami-Dade County supervises the Miami Dade Probate process for Miami Dade decedent estates.
The probate court judge appoints the personal representative and issues Letters of Administration. Letters of Administration show the authority of the personal representative to act. When necessary such as a probate contest, will challenge, dispute regarding property listed on the probate inventory or an uncontested matter heard ex parte with just the attorney representing the personal representative present the Judge holds hearings to resolve all questions raised during the hearings and the administration of the Florida probate estate and enters orders which are written directions regarding what may be done during the estate administration and whether certain legal standards have been met or whether documents are authentic.
12 WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
The personal representative is generally a person, but may also be a bank or trust company. The personal representative is appointed by the court to be in charge of the administration of the estate.
The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:
Identify, gather, value and safeguard Florida probate assets.
Publish a notice to creditors in a local newspaper authorized to publish legal notices in that county. (Broward Daily Business review, Miami Daily Business Review and Palm Beach Daily Business review frequently serve this publication requirement in South Florida)
Conduct reasonable search to locate known or reasonably ascertainable creditors and serve them with notice as potential creditors and give them notice of the time in which they must file their statement of claim with the probate court.
They must also give notice of the administration of the estate or obtaining waivers from doing so from the surviving spouse if any and other beneficiaries or heirs and giving notice of requirements to file any objections relating to the estate.
Review any statement of claims that are filed and either pay legally enforceable claims, settle claims which may be in question or object to claims if not valid and require the claimant to bring suit to enforce. The PR will defend the estate from such suits and if determined to owe pay any such valid debts.
Hire appropriate professionals to assist with the estate administration. Each estate will vary regarding what will be needed but other then the attorney some advisors which may be needed to assist include appraisers, accountants and investment advisors.The personal representative is responsible for having the tax returns filed and paying any taxes which the estate owes or the decedent owed. Tax returns which frequently must be filed are the decedents final income tax return, the estate income tax return and in the case when all of a decedents property exceeds $1,500,000 or more as of 2004 or 2005 an estate tax return also known as 706 estate tax return.
If a spouse elects against a will or estate and files for an elective share this 30% amount must be paid to them. Also a court may allow an estate to pay up to $18,000 for a family allowance to a spouse and or minor children of the decedent.
Once the property has been gathered, the creditors have been resolved and the creditor period has expired and taxes have been paid or money has been withheld to pay the taxes of the estate then the personal representative should distribute the assets to the estate beneficiaries and petition to close the estate.
13. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
If the decedent prepared a valid will the named personal representative nominated in the will has preference to serve as long as they are legally qualified to serve as the personal representative.
If the decedent did not leave a valid will, the surviving spouse if any has preference, with the person selected by a majority in interest of the heirs having a secondary preference.
14. WHO CAN BE A PERSONAL REPRESENTATIVE?
The personal representative could be an individual, bank, or trust company, subject to certain restrictions.
An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative if they are at least 18 years of age, have not been convicted of a felony and have not been declared lacking mental capacity.
A Trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.
15. IS A PROVISION IN A WILL NAMING A PARTICULAR ATTORNEY BINDING ON THE PERSONAL REPRESENTATIVE?
No a statement in the will is just an expression of preference. The named personal representative may select whoever they want to help the estate in the probate administration. Florida law explicitly does not require the attorney if any named in the will be chosen. The named personal representative should select someone they have confidence in being able to assist the estate and them in their capacity as personal representative and being in charge of settling the estate and someone they would like to work with during the probate process. The probate process will last a few months at a minimum and it is important that the personal representative feel comfortable with the attorney who assists them. Finding a probate attorney that is knowledgeable, accessible, experienced and helpful will make their role as the personal representive a lot easier to complete the estate administration.
16 ARE THERE ANY RESTRICTIONS ON THE FREEDOM OF THE TESTATOR TO PASS ON THEIR PROPERTY HOWEVER THEY CHOOSE TO DO SO?
Yes. As a matter of public policy Florida law has restrictions on the decedents absolute right to transfer their property. Unless there is a pre or post nuptial agreement a surviving spouse has both homestead rights and a right to an elective share. If the decedent is the decedent is survived by a spouse the spouse regardless of how they attempted to transfer their primary residence which was homestead reality a life estate would pass to the spouse with the remainder going to the children. If there are minor children but no spouse the decedent is also not able to pass on the property but it will go to the minor children.
If a husband and wife own their Florida homestead as tenants by the entireties that is not homestead property. It would pass with right of survivorship to the spouse.
If the surviving spouse is was given less then 30% of the decedents elective estate (essentially being the full value of property the decedent owned whether or not it was subject to probate) they may choose to exercise elective share rights and take 30% of the value of the decedents property. The elective share was significantly revised in October of 2001. The old law provided that the property which was computed in determining the elective share was merely the probate estate so through putting property in trust or owning property with right of survivorship the elective share could be eliminated. The legislature felt that defeated the intent of the elective share law and therefore expanded the scope so it could not be easily avoided like probate can.
The spouse and minor or dependent children may also be entitled to receive up to a total of $18,000 for a family allowance to sustain them during the administration of the estate.
Also if a testator prepares a will then gets married subsequently and fails to revise their will or prepare a codicil and remains married to the spouse at their passing the surviving spouse would be what is called a pre termitted spouse. This means that they are entitled to a full share as a spouse as if the property passed by intestacy. This would allow the spouse to receive at least 50% of the property if their was a child of the decedent who was not also her child or 50% plus $60,000 if there were children who were all her children as well. If there were a spouse but no children in this circumstance the spouse would receive 100% of the property as a pretermitted spouse. If children are born after the preparation of a will and no codicil is prepared likewise the children are entitled to their share they would have received according to intestacy laws. They receive that property because of the application of the pre termitted children rule.
17 ARE NO CONTEST CLAUSES IN WILLS ENFORCEABLE?
No Florida law provides that a testator may not provide that a beneficiary loses their share of the property that was provided for them if they contest the will. The will contest will have no bearing on their right to what had been left for them. A no contest clause is merely a statement of intent and may be nice for the beneficiaries to respect but Florida statutes provide that no contest clauses are not enforceable for Florida estates. Since this law presumes it would not be good policy to punish people for pursuing their rights Florida will contests are allowed with no penalties for seeking to obtain what one should receive. A will contest attorney can therefore be retained and pursue probate litigation on an heir or beneficiaries behalf without them being concerned that they will lose what they currently are entitled to as a result of challenging the validity of the will in probate court.
18 CAN A WILL BE CONTESTED AND WHAT ARE COMMON REASONS FOR CONTESTING A FLORIDA WILL?
Yes a Florida will can be contested through Florida Probate Litigation. Some common reasons to contest would be if a beneficiary or heir felt that the testator lacked testamentary capacity at the time the will was executed. If someone is unable to recall the names of their spouse or children, does not know whether they are worth $1 or $1 billion or what state they are in would all pose significant questions of lack of testamentary capacity. Someone may have capacity at one moment but not at others if someone is ill and on a lot of medication this may impair their capacity. The execution of the document is the time that is assessed. Testamentary capacity is a low standard that is usually met although there are some circumstances which could lead to successful challenges due to the lack of testamentary capacity from a Florida testator.
Undue influence is also reason for challenging a Florida will and retaining a probate litigation attorney. People sometimes exert undue influence to obtain gifts from Florida testators who are elderly, sick, or weak. To be considered undue influence, a person's mind must be so controlled or affected by persuasion or pressure, artful or fraudulent contrivances, or by the influences of persons in close confidential relations with him or her, that he or she is not left to act intelligently, understandingly, and voluntarily, but subject to the will or purpose of another. Undue influence is one of the more common reasons to contest a Florida will. Through proving the elements of undue influence mentioned above along with a beneficial result a Florida will contest attorney or Florida Will Contest lawyer can prove to the probate court during the will contest and probate litigation and have the probate court set aside the portion of the will that was impacted by the undue influence. A will contest can re establish the heir or beneficiaries inheritance rights.
A will is void if the execution is procured by fraud, duress, mistake, or undue influence. Any part of the will is void if so procured, but the remainder of the will not so procured shall be valid if it is not invalid for other reasons. No action to contest the validity of a will may be taken prior to the death of the decedent as the will has no force or effect until the death of the testator.
Unfortunately it is necessary at times to dispute a will and contest the wills provisions based on one of the reasons mentioned above or some other legal rational. An experience probate litigation attorney who understands the basis for undue influence, diminished capacity and the other reasons for challenging a will and can provide aggressive representation to ensure that your rights are maintained can be very useful to give piece of mind that a person gets what they are entitled to. Losing a friend or loved one is a sad enough time and should not be compounded by the thought that one is losing property rights they were legally entitled to.
18 WHAT IF A TESTATOR DOMICILED IN FLORIDA OWNS REAL ESTATE IN OTHER STATES IS THAT CONTROLLED BY A FLORIDA PROBATE COURT?
No if a Florida tesator owns a home, condo, or land in another jurisdiction in their sole name that other state would need to have an ancillary administration. Therefore if for example a Florida decedent also had a home in Southern California, a piece of vacant land in Chicago Illinois, a condo in Philadelphia Pennsylvania, and a commercial building in Manhattan, New York. Then an ancillary probate administration would be needed in the Los Angeles Superior Probate Court, or whatever South California county the home was located in, an ancillary administration for the estate administration of the Cook County piece of land in Chicago would be needed, as well as an ancillary administration required for the Philadelphia Pennsylvania condo and an additional ancillary administration for the probate in New York would required. Each Ancillary proceeding would need an attorney licensed in that state and would have a different probate judge overseeing the matter. This would be a situation where a trust should be used. If the title to each of the pieces of real estate were titled in the name of the trust which was a Florida trust there would be no need for any of the ancillary administration proceedings.
19 CAN A PERSONAL REPRESENTATIVE RECEIVE A FEE FOR SERVING? CAN TAXES IMPACT THE DECISION OF WHETHER TO DO SO?
Yes a personal representative in a Florida estate may receive a fee. There is a presumed reasonable fee of 3% of the probate estate for serving as a personal representative. If the personal representative were the only beneficiary and would otherwise be receiving the property through inheritance it would not be a good idea though for them to take a few unless it was a taxable estate for estate tax purposes. This is because the amount received as a personal representative's fee is taxable income for services rendered and is included in their income at their ordinary income rate. If they receive it as an inheritance it will likely not be taxable. Only the increase in value subsequent to the date of death of decedent would be subject to income tax. The income tax rate will always be lower then the estate tax rate though and the amount paid to the personal representative is a deduction on the estate tax return so if the estate is taxable on an estate tax return (form 706) because the decedent owns $1,500,000 or more in property as of 2005 then it would make sense from a tax perspective to take a fee.
20 DOES DIVORCE IMPACT PROVISIONS IN A FLORIDA WILL?
Yes any provisions made for the benefit of an ex spouse in most cases will not longer be enforceable. Florida Wills statute 732.507 provides any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage. After the dissolution, divorce, or annulment, the will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.
Florida Divorce Attorney Edward J. Chandler, Esq.
Edward J. Chandler, Esq.
708 East Atlantic Blvd.,
Pompano Beach, Fl 33060
Phone: (954)788-1355
Fax: (954)788-1357
Our Philosophy
Client satisfaction is our first priority. Edward J. Chandler, Esq. is a trial lawyer ready and able to litigate to conclusion when settlement is impossible. However, the objective is to avoid litigation by employing alternative mechanisms for dispute resolution whenever possible. He regularly participates in mediation with a high degree of success.
He believes in individualized representation because he understand that each situation is unique. Each case is a commitment which is taken seriously. His clients' goals becomes his priority.
Edward J. Chandler, Esq. strives to be available on a daily basis, to be responsive to his clients, and sensitive to their needs. All inquiries are answered and all important decisions are made together with his clients.
Our Legal Philosophy...
Every attorney and every law firm has its own legal philosophy. It is important that you choose attorneys to represent you who have a philosophy with which you are comfortable.
A High Quality Result....
I view myself as a problem solver, whose main goal is to help you resolve your legal issues as quickly and efficiently as possible. I seek to obtain a legal result that is suited to your needs, while thoroughly addressing the issues in your case.
I attempt to achieve that result at the lowest cost possible. I realize that litigation is expensive and that people need to save their money to invest in their future and the future of their children. However, I also believe it is important to achieve a sound legal result that will not create more litigation down the road. I aim to resolve all the legal issues that can reasonably be decided at the time of representation so you can turn your attention and financial resources to other matters.
It is important to invest an adequate amount of money at the outset. Sometimes people try to avoid the expense of litigation and end up with a legal result that is not only less than satisfactory, but may be more expensive to fix in the long run. It is expensive to re-litigate issues that were not properly resolved the first time. There are some legal decisions that cannot be "undone" once they are made. Therefore, it is crucial that you be willing to make the investment necessary to achieve a high-quality result.
It's About People..... You & Your Family
Money, of course, is not the only issue involved in litigation. A significant part of our "problem solving" philosophy is about people. I realize that divorce and custody fights are emotionally difficult for everyone. People, especially children, are often deeply scarred for years by the ugliness of legal battles. One of my primary goals is to achieve the best result with as little nastiness as possible. Sometimes litigation is the only effective way to achieve the result that is in the best interests of you and your family. However, it is not my goal to litigate when a high-quality settlement can be reached in other ways.
Attorneys are expensive....
I take very seriously both our obligation to utilize your resources wisely and my intention is not to make you and your children "victims on the battlefield." I believe that it is in my interest to practice according to this philosophy. A law firm’s reputation is important. In the end, if you’re satisfied with the legal services you’ve received, you’ll be more likely to recommend us to your family and friends.
DISSOLUTION OF MARRIAGE REQUIREMENTS
RESIDENCY: One of the spouses must be a resident of the State of Florida for the past six months.
DISCLOSURE: A proper financial affidavit must be filed before a dissolution of marriage can be granted. The parties are required to exchange mandatory financial disclosure within 45 days after the opposing party is served with the petition, unless the parties agree in writing to waive that requirement.
GROUNDS: The marriage is irretrievably broken or one of the parties has been adjudged to be mentally incapacitated according to the provisions of Florida Statute Section 744.331 for at least the last three years. There is no requirement that the other spouse must consent to a dissolution of marriage.
COURSE: All parties to a dissolution of marriage proceeding with minor children or a paternity action which involves issues of parental responsibility shall be required to complete the Parent Education and Family Stabilization Course prior to the entry by the court of a final judgment. The court may excuse a party from attending the parenting course for good cause.
Family Law
* Under what circumstances will the court award alimony or spousal support?
* How is the amount of child support calculated?
* Once a court issues a child support order, can the amount of support that is paid be changed?
* How is child support collected if the person responsible for paying it moves to another state?
* What are parents' obligations to their children?
* How does a court decide which parent will get custody of a child?
* What is the legal divorce process like?
* What kinds of assets are divided in a divorce?
* What terms should be included in a separation agreement?
* Learn More: Family Law
Under what circumstances will the court award alimony or spousal support?
The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.
Although historically spousal maintenance was typically awarded to homemaker wives, to be paid by breadwinning husbands, that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.
Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for the period of time that will enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the spouse receiving it to further his or her education, reestablish himself or herself in a former career, or complete childrearing responsibilities, after which time he or she can be self-sufficient. If one spouse is unable to get a good-paying job, however, due perhaps to health or advanced age, the support award may be permanent.
The amount and duration of alimony depends on several factors, including:
o The length of the marriage;
o The age of each spouse;
o The health of each spouse;
o The ability of each spouse to be self-supporting, including a consideration of responsibilities to the parties' minor children, if any;
o The income of the primary breadwinner; and
o Standard of living the parties enjoyed during the marriage.
How is the amount of child support calculated?
Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary significantly from state to state, but they are all generally based on the parent's incomes and expenses and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. It is important to remember, however, that the guidelines are just that-guidelines-and they are not fixed amounts that must be applied under any and all circumstances. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.
Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including
o The child's standard of living before the parents' separation or divorce;
o The paying parent's ability to pay;
o The custodial parent's needs and income; and
o The needs of the child or children, including educational costs, daycare expenses, and medical expenses, such as for health insurance or special health care needs.
Judges will often review a financial statement completed by each parent that lists all sources and amounts of income and expense before issuing an order. If any of the listed items changes significantly, either parent may go back to court and ask for an increase or decrease in the amount of child support ordered.
Once a court issues a child support order, can the amount of support that is paid be changed?
The amount of child support is modifiable under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.
Example: If the payer parent loses his job and asks the custodial parent if he can go a few months without paying support until he has a new job, the custodial parent may voluntarily agree to this modification. If, however, she later decides that she wants to collect the amount of support that went unpaid during that temporary period, the court might support her if it never formally approved the change.
When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been some fairly significant change in circumstances that justifies the change, such as a significant increase in either parent's income through a remarriage or job change or a substantial change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Also, an increase in the cost of living can warrant an upward modification of child support, but generally these periodic increases are provided for in the original order so that the parties do not need to make repeated court appearances each time there is a significant change in the cost of living.
Other anticipated changes that can be provided for in the original child support order include a reduction upon the emancipation of each child, an increase when a child enters college, or any other change based on an event that the parties anticipate and that will have an impact on need or ability to pay.
How is child support collected if the person responsible for paying it moves to another state?
Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.
Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court in that county can provide information on the proper registration procedure. That court will then move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified downward, and if he or she is successful, the child's home-state court is stuck with the reduced amount. A newer interstate support act called the Uniform Interstate Family Support Act, which has been adopted in some states, does not allow the court in the new home state to modify the original court's support order.
Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will then notify the payer's new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state's court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer's credit report.
What are parents' obligations to their children?
Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing, and shelter. This duty usually terminates when the child is emancipated, which generally occurs at the age of eighteen, when the child graduates from high school, when the child enters the military, or when the child marries, but the support obligation can extend beyond that point if the child is unable to support himself or herself and would become a public obligation without familial support. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are strict rules about the amount of financial support provided by the non-custodial parent.
In most instances, parents also have the responsibility to provide necessary medical care for their children. If parents refuse life-saving medical treatment for their children, the state may intervene against the parents' wishes, even if they made their decision on religious grounds.
Parents must also make sure that their children meet school attendance requirements. They do, however, have the right to decide whether the child's education will be in a public school, a private school, or through home schooling.
Stepparents have no legal obligation toward their stepchildren. When they assume the role of the sole provider of the child's support, however, they may be held accountable for providing that support even if the marriage to the child's biological parent ends. Of course, if a stepparent adopts a stepchild, the obligations are the same as they are in any other parent-child relationship.
How does a court decide which parent will get custody of a child?
When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child's best interests. To make that determination, the court considers:
o The child's age;
o The child's gender;
o The child's physical and mental health;
o The parents' physical and mental health;
o The parents' lifestyles;
o Any history of abuse;
o The emotional bonds between the parent and the child;
o The parent's ability to give the child guidance;
o The parent's ability to provide the basic necessities, such as food, shelter, clothing, and medical care;
o The child's routines, including home, school, community, and religious;
o The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and
o If the child is above a certain age, the child's preference.
In many cases, a consideration of these factors results in awarding custody to the parent who has been the child's primary caretaker. Although this is often the child's mother, any preference for the mother strictly on a gender basis is outmoded.
What is the legal divorce process like?
Although some divorces are very simple and can be handled with a minimum amount of red tape and delay, such as when there is no significant property involved and the couple has no children, most divorces are far more difficult and can take many different courses. The following, however, is a basic outline of the divorce process.
o One spouse contacts a lawyer, who assists in the preparation of a petition (or complaint), the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought.
o The petition is filed with the court and served on the other spouse, together with a summons that requires that spouse's response.
o The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must set forth the relief that the answering spouse requests.
o The parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
o The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.
o If a settlement is reached, the agreement encompassing the terms of the settlement is submitted to the court at an informal hearing. The judge will ask both parties a few basic factual questions and whether they understand and freely entered into the agreement.
o If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
o At trial, the attorneys present the evidence and arguments for both sides, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division, and grants the divorce.
o Either or both parties can appeal the judge's decision to a higher court.
The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.
What kinds of assets are divided in a divorce?
The parties in a divorce can agree to the division of, or the judge will divide, all marital or community property owned by the parties. Generally speaking, this includes most of the property the couple acquired during the marriage, including the marital home; a second or vacation home; home furnishings and appliances; artwork; vehicles, including cars, boats, airplanes, snowmobiles, and motorcycles; money; stocks, bonds, and other investments; pensions; and privately owned businesses.
The value of other, more intangible property is also often divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse, and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly, such as by supporting the spouse to whom the asset is more directly attributable.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where the parties' lawyers can help. Through the legal process known as discovery, the parties' attorneys exchange documents that reveal each party's income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records usually give a clear indication of each party's financial situation. In addition, each spouse is usually deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income.
If necessary, additional parties may be deposed, such as employers, bankers, or business partners. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.
What happens to the property that each spouse owned before the marriage?
In most states, whether they follow a community-property or equitable-distribution scheme, the property that each spouse owned before the marriage, as well as property given to or inherited by one spouse during the marriage, usually remains that spouse's separate property. It may, however, be considered as part of the total circumstances in determining a fair allocation of the marital property.
In addition, if non-marital property is not kept separate from marital property, it may lose its separate characterization and become subject to division.
Example: If one spouse had a bank account containing $5,000 before the marriage, but during the marriage the spouses both made deposits and withdrawals from the same account, the amount in the account at the time of divorce or separation will probably be deemed marital property, to be divided between the husband and wife. If, on the other hand, the spouse with the $5,000 account deposits only other non-marital money, such as inheritances to him or her alone, in the account throughout the marriage, all the money in the account will probably remain with that spouse upon divorce.
A house owned by one spouse prior to marriage presents unique issues, because often both spouses contribute to the home's maintenance and mortgage payments during their marriage. In some states, this commingling of marital and non-marital assets converts the home to marital property. Perhaps the fairer resolution, however, applied in other states, is that the amount of equity in the home at the time of marriage remains the original owner-spouse's property, but the increase in equity value during the marriage is marital property that belongs to both spouses. The same principles apply in cases involving increases in the value of a family business owned by one spouse before marriage.
What terms should be included in a separation agreement?
Although a legal agreement is not required when a couple decides to separate, working out certain details can preserve harmony, protect rights, and promote predictability. A separation agreement may be most advisable when the parties have very different financial situations, such as when one spouse is the wage-earner and the other is raising the couple's children. A formal separation agreement can help ensure that all family members' needs will be met.
An attorney can make sure that a separation agreement covers all necessary details and complies with applicable law. Although it may seem like a good idea to save money by having one lawyer draft or review the agreement, it is really in each party's best interests to be separately represented, so that each lawyer can draft or review the separation agreement with his or her client's needs in mind. The terms of such agreements will vary, depending on the needs of the particular parties involved, but the following items should be addressed:
o The spouses' right to live separately;
o Custody of the children;
o A visitation schedule, or a provision for reasonable visitation;
o Child support;
o Alimony or spousal support;
o The children's expenses, including medical, dental, educational, and recreational;
o Property and debt division;
o Insurance, including medical, dental, and life; and
o Income taxes.
A separation agreement does not need to be filed with the court, but can be presented to the court if a dispute arises. As with pre-and post-marital agreements, a separation agreement may be unenforceable if either party failed to make a full disclosure or coerced the other to enter into it. If and when the parties officially file for divorce, the separation agreement's terms may be incorporated into a settlement agreement, but the parties will have an opportunity to change the terms if necessary.
Learn More: Family Law
The laws relating to families have changed dramatically since the 1970s as judges and legislators have reexamined and redefined the legal issues involved in divorces, child custody disputes, child support, domestic violence, and other family law matters. Family law has become entangled in national debates over family structure, gender bias, and morality. Few legal areas are as emotionally charged as family law, primarily for the litigants, but also for the lawyers and judges involved in the cases and even the public at large. Despite the changes already made by courts and legislatures, family law remains a contentious and ever-changing area of law, which will continue to evolve as families and society evolve.
Divorce, or dissolution of marriage as some states call it, is no longer fault-based and has become easier to obtain. Whereas not too long ago one spouse had to accuse the other of some grave misdeed, such as adultery, cruelty, alcoholism, or drug addiction, divorce is now available on the basis of incompatibility, irreconcilable differences, or an irretrievable breakdown of the marriage relationship. The division of marital property has also changed in recent years, so that now each spouse is given a more equitable share of the property upon divorce. One change that demonstrates this phenomenon is the recognition of the homemaker spouse's contributions to the accumulation of marital property. For example, whereas once the husband who developed and grew his own business while his "nonworking" wife stayed home would walk away from the marriage with all of the business assets, courts now award a significant portion of the business assets to the wife, who enabled that business growth by taking care of the home and children, and by entertaining business clients and associates. On the other hand, homemaker spouses are not considered as dependent as they once were, and as a result alimony, if awarded at all, is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-sufficient.
Issues like child custody, too, have evolved in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but now fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult, and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting, too, presents heart-wrenching custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children's rights, and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.
Another major change in family law in recent years is the recognition that many family disputes can be resolved more expediently and in a less acrimonious manner than through the traditional litigation process. In divorce and child custody cases in particular, the adversarial process has increased tensions between the parties that do not abate even when the process is complete. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation, which can save time and money and preserve relationships to the extent possible.
Edward J. Chandler can provide valuable counsel and objective representation in what can be emotionally charged situations. His experience includes several family law issues.
Alimony and spousal support are legal terms for income provided by one spouse or former spouse to the other during a separation or after divorce. Although once traditionally awarded primarily to wives for an indefinite period, alimony awards are now awarded to either spouse if he or she needs financial assistance and the other is able to provide it, and they tend to be temporary, for a period of rehabilitation that enables the recipient spouse to become self-supporting.
Child support is generally ordered by the court in situations in which a child lives with one but not both parents. The non-custodial parent, or the parent with whom the child does not live, is responsible for contributing a certain portion of his or her income, based on state child support guidelines, to help support the child, even if the custodial parent has income of his or her own.
Children's rights cover a broad spectrum, which includes not only the rights afforded to all U.S. citizens, but also those rights that are theirs due to their status as children, such as the right to food, clothing, shelter, medical care, and education. Children are not, however, guaranteed all of the constitutional protections that are provided to adults.
Custody and visitation issues can arise when parents are divorced or separated, when the parents have never been married, or when some type of reproductive technology, such as surrogate motherhood or sperm and egg donation cases, complicates the issues even further. Courts generally apply a "best interests of the child" standard when determining to whom custody should be awarded.
Divorce is the legal process by which a marriage is terminated. In a divorce proceeding, the parties' marriage is legally ended and the related issues, such as spousal and child support, child custody and visitation, and property and debt division, are resolved, either by the parties' voluntary agreement, through the assistance of a mediator, or after a court trial.
Domestic violence and neglect include physical, mental, and sexual abuse of children, mates, elderly persons, or other vulnerable adults in the perpetrator's household. Abuse and neglect have long-term consequences, but there are legal mechanisms through which victims or interested third parties can seek protection.
Juvenile law relates not only to juvenile delinquency proceedings, in which the juvenile is charged with an offense that would be a crime if committed by an adult, but also to juveniles charged with status offenses, abused and neglected children, and children in need of social services.
Paternity refers to a legal action to establish that a man is the father of a child. A paternity action may be brought in order to impose a child support obligation, establish a right to inheritance, secure consent for the child's adoption, or gain or prohibit custody or visitation rights.
Prenuptial agreements are contracts entered into by a couple in contemplation of marriage. They usually address property issues that may arise in the event of divorce or death, and are often used as vehicles to provide for greater awards of property to children from previous marriages, or when one spouse brings substantially greater assets to the marriage. They are only enforceable under certain circumstances.
Disclaimer
This publication and the information included in it are not intended to serve as a substitute for consultation with an attorney. Specific legal issues, concerns and conditions always require the advice of appropriate legal professionals.
The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask the attorney to send you free written information about their qualifications and experience.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
GENERAL
The official term for divorce in Florida is "dissolution of marriage." Florida is one of the many states that has abolished fault as a ground for divorce. This law lessens the potential harm to the husband and wife and their children caused by the process of divorce. All that is required is that the marriage be "irretrievably broken." Either spouse can file for the dissolution of marriage. All that has to be proved is that a marriage exists, one party has been a Florida resident for six months, and the marriage is broken. (There is another, little-used ground: incompetency of one's spouse). Fault, however, may be considered under certain circumstances in the award of alimony and determination of custody issues.
Each divorce case is unique and therefore settlements vary. Even though fault is not an issue, the division of property and possessions and responsibility for support may become contested matters. The divorce process is highly emotional and traumatic for everyone it touches. Marriage partners often do not know their legal rights and obligations. Court clerks and judges can answer some of your basic questions but are prohibited from giving legal advice. Only your lawyer is allowed to do that. Court procedures must be strictly followed or you may lose certain rights forever. It is recommended that you obtain the services of an attorney concerning legal questions, your rights in a divorce, your children's rights, your property rights, your responsibilities resulting from the marriage or tax consequences. A knowledgeable lawyer can analyze your unique situation, and can help you to make decisions in the best interest of you and your family.
To obtain a dissolution of marriage in Florida, at least one spouse must have been a Florida resident for six months or more before the case is filed. There are two ways of getting a divorce, or dissolution, in Florida. The usual way is called a "Regular Dissolution of Marriage." The second method is the "Simplified Dissolution of Marriage."
REGULAR DISSOLUTION OF MARRIAGE
The regular dissolution process begins with a petition for dissolution of marriage, filed with the circuit court by the husband or wife, which states that the marriage is irretrievably broken and sets out what the person wants from the court. The other partner must file an Answer within 20 days maximum, addressing the matters within the initial petition and raising issues the answering party desires. Court rules governing divorces require that each party provide certain financial documents and a completed financial affidavit to the other party within 45 days of the service of the petition or before any temporary relief hearing. The extent of the information to be provided depends on the annual income and expenses of each party. Failure to provide this information can result in the court dismissing the case or not considering that party's requests. The parties or the court can modify these requirements except for the filing of a financial affidavit, which is mandatory in all cases.
Some couples agree on property settlements, child custody, and other post-divorce arrangements before or soon after the original petition is filed. They then enter into a written agreement signed by both parties that is presented to the court. In such an uncontested case, a divorce can become final in a matter of a few weeks.
Other couples disagree on some issues, work out their differences, and appear for a final hearing with a suggested settlement which is accepted by the judge.
Mediation is a procedure to assist you and your spouse in working out an arrangement for reaching agreement without a protracted process or a trial. Its purpose is not to save a marriage, but to help divorcing couples reach a solution to their problems and arrive at agreeable terms for handling their dissolution. Many counties have mediation services available; some are mandatory.
Finally, some couples cannot agree on much of anything and a trial-with each side presenting its case-is required. The judge makes the final decision on contested issues.
The equitable dissolution process is designed to make the divorce as fair as possible to both husband and wife, which usually means negotiation-and compromise-by both partners.
Attorneys have learned it is unrealistic to expect both partners to be "happy" with their divorce. The experience can be emotionally devastating. The financial upheaval of supporting two households instead of one causes hardship for the entire family. The parties, however, can take steps to make the process easier for themselves and their children.
SIMPLIFIED DISSOLUTION OF MARRIAGE
Certain Florida couples are eligible to dissolve their marriage by way of a simplified procedure. These dissolutions are "do-it-yourself" and were designed so the services of an attorney may not be necessary. Couples are responsible, however, for filing all necessary documents correctly, and the couple is required to appear before a judge together when the final dissolution is granted. If you desire the services of an attorney for this dissolution process, usually it can be completed relatively inexpensively.
The simplified dissolution of marriage process is designed for couples who do not have dependent children and have agreed on a division of their property and debts. Therefore, not everyone can qualify. A husband and wife can use the simplified dissolution of marriage only if: (a) they both agree to the use of this form of dissolution proceeding; (b) they have no minor (under 18) or dependent children; (c) have no adopted children under the age of 18; (d) the wife is not pregnant; (e) at least one of the parties has lived in Florida for the past six months; (f) the parties have agreed on the division of all of their property (assets) and obligations (debts); and (g) both parties agree that the marriage is irretrievably broken and want to end their marriage because of serious permanent differences. Couples wanting to use the simplified process must meet all these conditions. If not, they must use the regular dissolution of marriage process.
There are substantial differences between a simplified and a regular dissolution of marriage. In a regular dissolution, each spouse has the right to examine and cross-examine the other as a witness, and to obtain documents concerning the other's income, expenses, assets and liabilities before having a trial or settlement of the case. With a simplified dissolution, financial information may be requested but it is not required to be given. In a simplified dissolution there is no trial and no appeal. Also, with a simplified dissolution neither the husband nor the wife can receive support (alimony) from the other. If the husband and wife agree on a dissolution, and prefer to use the simplified form of dissolution, then they should both contact the clerk of the circuit court in their area and obtain a copy of the booklet titled "Simplified Dissolution Information" for more detailed information and forms.
DOMESTIC VIOLENCE
You may go to court yourself for an injunction to protect yourself against assault, battery or sexual battery by your spouse (whether you are separated or not) or your former spouse. If you feel you are the victim of such domestic violence, you should contact the office of the clerk of the circuit court in your county for information and assistance.
PROPERTY DIVISION
One of the most difficult and complex areas of divorce is the division of marital property. Marital property may include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bank accounts, personal property and other things of value.
Florida statutes and case law provides for an "equitable distribution" of marital property. In essence, the marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the title is held. The division is based upon all facts of the case and the contribution of both spouses to the marriage.
The division of marital property (any asset acquired during the marriage by the efforts of one or both parties) is considered in conjunction with all other awards of alimony and interests in property. There is no fixed way to determine how you or the court should divide the property. Liabilities (debts) as well as assets must be considered. Other factors include the nature and extent of the property and whether it is marital property or non-marital property; the duration of the marriage; and the economic circumstances of each spouse. If you and your spouse can agree, and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property after a trial.
ALIMONY
The court may grant alimony to either the husband or the wife. Rehabilitative alimony may be for a limited period of time to assist in redeveloping skills and financial independence. Permanent alimony continues until the receiving spouse's remarriage or the death of either party. The court may grant some combination of the two. Also the court may order lump-sum alimony where one party pays to the other party a lump-sum payment of money or property. Although adultery does not bar an award of alimony, the court may consider the circumstances of that adultery in determining the amount of alimony to be awarded. In awarding alimony, the court considers all relevant economic factors, such as: the parties' prior standard of living; length of the marriage; age and physical and emotional condition of both spouses; each spouse's financial resources and income-producing capacity of the assets they receive; the time necessary to acquire sufficient education or training to find appropriate employment; and the services rendered in homemaking, child rearing, and education and career building of the other spouse. The court may consider any other factor necessary to do equity and justice between the husband and wife.
You have the right to find out about all your spouse's income and assets through the use of discovery procedures which your attorney will explain to you.
SHARED PARENTAL RESPONSIBILITY FOR CHILDREN
Custody and Visitation
It is the public policy of Florida to ensure each minor child has frequent and continuing contact with both parents after the parents have separated or divorced, and to encourage parents to share the rights and responsibilities of child rearing. The father is given the same consideration as the mother in determining custody regardless of their child's age, sex, or other factors.
In most cases, parental responsibility for a minor child will be shared by both parents so that each retains full parental rights and responsibilities with respect to their child. This requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly.
You and your spouse may agree, or the court may order, that one parent have the ultimate responsibility over specific aspects of the child's welfare, such as education, religion, removal from the area, and medical and dental needs. If the parents have a substantial conflict over any of these areas the court will decide for them. The court can order varying types of shared parenting arrangements depending on the evidence presented. The court may designate one parent's home as the primary residence and afford the other parent frequent and continuing contact, or, the court may order rotating custody where the time spent with each parent is equal.
In rare cases, the court can order total parental responsibility and custody to one parent. To do so, the court must determine that shared parental responsibility would be detrimental to the child. The court may award to the child's grandparents certain visitation rights if it is deemed by the court to be in the child's best interest. Thereafter, the grandparents have the right to seek judicial enforcement of the visitation rights. The court may award grandparents visitation rights after the parents divorce, when it is in the best interest of the grandchild or when one or both parents of the child are deceased; or, when a parent of the child has deserted the child.
In considering issues between parents and their children, the best interest of the child is the primary consideration by the courts.
The Florida Bar has developed a consumer pamphlet entitled "Shared Parenting After Divorce," which discusses the subject. For instructions on ordering, see the back cover of this pamphlet.
SUPPORT
You and your spouse each have a responsibility to support your children in accordance with their needs and your financial abilities. Support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches 18, marries, or becomes financially independent.
Some of the issues concerning child support which must be considered include: (a) the amount of support; (b) the method of payment; (c) ways to assure payments are made; (d) when child support may be increased or decreased; and (e) who claims the dependency deduction for tax purposes. Other questions may need to be answered, depending on the circumstances of your case. Guidelines for support which apply to all cases generally are based on the income of the parents and the number of children with adjustments for substantial overnight contact. Florida law requires both parties to attend a parenting course prior to entering a final divorce. Consult your county clerk's office for information on courses offered.
If you have a problem getting support payments from your spouse or former spouse, or visitation and access to your child is denied, you should bring this matter to the attention of the court. It is not proper to withhold visitation or child support payments because of any alleged wrongdoing by your spouse or former spouse.
Edward J. Chandler, Esq.
708 East Atlantic Blvd.,
Pompano Beach, Fl 33060
Phone: (954)788-1355
Fax: (954)788-1357
