FAQ

• Q Is there a presumption that the mother will be given custody of the kids most of the time? A Not in Florida. By law, the court must give the father and the mother equal consideration in determining the time-sharing schedule and parenting plan, which are the terms Florida Law now uses to describe what the rest of the world calls Child Custody and Visitation. This is the law regardless of the age or sex of the child. The court will consider many factors to determining the time-sharing schedule and the parenting plan. These include: which parent is likely to encourage affection and allow frequent contact between the child and the other parent; the existing emotional ties the child has with both parents; the length of time the child has lived in a stable environment and the desirability of changing that environment; the moral, mental and physical health of the parents; and the reasonable wishes of the child if the child is mature enough to make such a choice. These are only a few of several factors the court is allowed to consider; none of them are controlling and the court also can consider any other relevant facts.
• Q Can time-sharing or custody arrangements be modified by the court if I can show that circumstances have changed since the original time-sharing or custody determination? A In order to change the time-sharing schedule and parenting plan, particularly in courts in the Miami-Dade, Broward and Palm Beach area, it is necessary to show that there has been a substantial change in the circumstances that existed at the time of the original custody determination and that it is in the best interest of the child to change the time-sharing schedule and/or parenting plan. The law discourages attempts to alter custodial arrangements once they are set by agreement or court order. Therefore, the law requires the party seeking to change custody to meet an "extraordinary" burden of proof. The courts will not consider facts that existed prior to the original custody determination unless there was some concealment of those facts. Changes in custody are possible and should be considered when there has been a material change in circumstance and it clearly can be shown that the child's well being is, or will be, adversely affected. However, changes such as remarriage, changes in lifestyle, and loss of a job, standing alone, generally will not justify a change.
• Q Will alimony always be awarded when a long-term marriage is ended? A No. An award of alimony depends on several factors, including the age, earning ability, health, and education of the person seeking alimony; the other assets available to the parties; the length of the marriage; the standard of living during the marriage; and the ability of the other party to pay. All of the factors and others are weighed by the court. If the court decides to award alimony, the court has flexibility to award different types of alimony. This includes an award of lump sums as well as or instead of the regular payment of money. Rehabilitative alimony also may be awarded in situations where the party seeking it can show that the marriage affected his or her ability to obtain the same type of employment they had before the marriage, he or she has a legitimate ability to improve their earning power if the alimony is awarded, and he or she has a realistic plan for rehabilitation.
• Q Can the parties make their own agreements for time-sharing schedules, parenting plans, child support, property division, and other rights? A The courts strongly encourage parties to reach their own agreement on all of these matters, with the exception of child support. If the parties come up with their own agreement, the court will require them to demonstrate that they understand the agreement, that they have entered into their agreements after an appropriate exchange of information, and that they have entered the agreement voluntarily and without duress. Child support is determined according to guidelines that are set by Statute. These guidelines require each parent to contribute a pre-determined amount to the support of their child. The court cannot deviate more than slightly from these guidelines unless the court makes findings that there is a good reason to do so. One reason to adjust upward could be that the child has extraordinary health needs. One reason to adjust downward could be that the child has his or her own source of income, such as a trust fund.
• Q Does each party have to pay their own attorney's fees in a family law or paternity proceeding? A The court can order one party to pay all or some of the other party's attorney's fees. The decision will be based on the need of one party for assistance in paying fees and the ability of the other party to contribute toward the fees. The court also has the ability to award or adjust attorney's fees when it finds that a party has needlessly increased the cost of litigation by stalling, avoiding discovery, or making groundless claims. Generally, if both parties have the same financial ability going into the proceeding, the court will not award attorney's fees. The court also may deny attorney's fees if, as a result of the distribution of assets in a divorce, the party seeking fees has received sufficient assets to pay the fees without upsetting the fair distribution of assets.
• Q If I owned property before the marriage, will I have to split or share that property with my spouse as part of a divorce? A Generally, assets - and debts - owned prior to the marriage and kept completely separate during the marriage belong to the individual and not to the marriage. However, if the title of property is changed to the name of the married parties, the property may become marital property. If marital assets or labor are used to increase the value of the property, the parties may have to share in the increase in the value of the property during the marriage.
• Q I signed the birth certificate when my child was born, but now I’m not sure I’m the Father. Can I get a DNA test? A Yes. While signing the birth certificate establishes a presumption that you are the child’s father, you may request a DNA test to confirm paternity. If DNA tests confirm that you are not the child’s biological father, you will be absolved of further financial responsibility for the child.
• Q My wife made a mistake and had an affair with another man, and she’s pregnant. We still love one another and have reconciled, and would like to raise this child as our own. The biological father wants to be part of the child’s life. Does he have rights? A No he doesn’t have any rights that you don’t give him. When the birth mother is married at the time of conception and birth, that child is conclusively presumed to be the child of the married parents. In order for the biological father to obtain rights, you would have to be joined as a party and consent to his involvement in the child’s life.
• Q I was divorced several years ago and was named the primary residential parent, and now I want to move to Atlanta because I have a great job offer there. Can I go? A No, you can’t just leave. You have to file a Notice of Intent to Relocate and your former spouse has 30 days to object. If he doesn’t object, you can go. If he does, you’ll have to file a Petition for Modification and ask the Court’s permission to relocate. The Court considers many factors in determining whether to allow relocation of a parent with the minor children. These factors include the nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life; the age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child; the feasibility of preserving the relationship between the nonrelocating parent and the child through substitute arrangements that take into consideration the logistics of contact, access, visitation and time-sharing, as well as the financial circumstances of the parties; the child’s preference, taking into consideration the age and maturity of the child; whether the relocation will enhance the general quality of life for both the parent seeking relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities; the reasons of each parent for seeking or opposing the relocation; the current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child; whether the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and marital property and marital debt obligations; the career and other opportunities available to the objecting parent if the relocation occurs; a history of substance abuse or domestic violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation; and last but most certainly not least, ANY OTHER FACTOR AFFECTING THE BEST INTEREST OF THE CHILD.
• Q I was divorced several years ago and was named the primary residential parent, and now I want to move to Atlanta because I have a great job offer there. Can I go? A No, you can’t just leave. You have to file a Notice of Intent to Relocate and your former spouse has 30 days to object. If he doesn’t object, you can go. If he does, you’ll have to file a Petition for Modification and ask the Court’s permission to relocate. The Court considers many factors in determining whether to allow relocation of a parent with the minor children. These factors include the nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child’s life; the age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child; the feasibility of preserving the relationship between the nonrelocating parent and the child through substitute arrangements that take into consideration the logistics of contact, access, visitation and time-sharing, as well as the financial circumstances of the parties; the child’s preference, taking into consideration the age and maturity of the child; whether the relocation will enhance the general quality of life for both the parent seeking relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities; the reasons of each parent for seeking or opposing the relocation; the current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child; whether the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and marital property and marital debt obligations; the career and other opportunities available to the objecting parent if the relocation occurs; a history of substance abuse or domestic violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation; and last but most certainly not least, ANY OTHER FACTOR AFFECTING THE BEST INTEREST OF THE CHILD.
• Q My wife made a mistake and had an affair with another man, and she’s pregnant. We still love one another very much and have reconciled, and would like to raise this child as our own. The biological father wants to be part of the child’s life, and we’re op A No he doesn’t have any rights that you don’t give him. When the birth mother is married at the time of conception and birth, that child is conclusively presumed to be the child of the married parents. In order for the biological father to obtain rights, you would have to be joined as a party and consent to his involvement in the child’s life.
• Q I signed the birth certificate when my child was born, but now I’m not sure I’m the Father. Can I get a DNA test? A Yes. While signing the birth certificate establishes a presumption that you are the child’s father, you may request a DNA test to confirm paternity. If DNA tests confirm that you are not the child’s biological father, you will be absolved of further financial responsibility for the child.
• Q If I owned property before the marriage, will I have to split or share that property with my spouse as part of a divorce? A Generally, assets - and debts - owned prior to the marriage and kept completely separate during the marriage belong to the individual and not to the marriage. However, if the title of property is changed to the name of the married parties, the property may become marital property. If marital assets or labor are used to increase the value of the property, the parties may have to share in the increase in the value of the property during the marriage.
• Q Does each party have to pay their own attorney's fees in a family law or paternity proceeding? A The court can order one party to pay all or some of the other party's attorney's fees. The decision will be based on the need of one party for assistance in paying fees and the ability of the other party to contribute toward the fees. The court also has the ability to award or adjust attorney's fees when it finds that a party has needlessly increased the cost of litigation by stalling, avoiding discovery, or making groundless claims. Generally, if both parties have the same financial ability going into the proceeding, the court will not award attorney's fees. The court also may deny attorney's fees if, as a result of the distribution of assets in a divorce, the party seeking fees has received sufficient assets to pay the fees without upsetting the fair distribution of assets.
• Q Can the parties make their own agreements for time-sharing schedules, parenting plans, child support, property division, and other rights? A The courts strongly encourage parties to reach their own agreement on all of these matters, with the exception of child support. If the parties come up with their own agreement, the court will require them to demonstrate that they understand the agreement, that they have entered into their agreements after an appropriate exchange of information, and that they have entered the agreement voluntarily and without duress. Child support is determined according to guidelines that are set by Statute. These guidelines require each parent to contribute a pre-determined amount to the support of their child. The court cannot deviate more than slightly from these guidelines unless the court makes findings that there is a good reason to do so. One reason to adjust upward could be that the child has extraordinary health needs. One reason to adjust downward could be that the child has his or her own source of income, such as a trust fund.
• Q Will alimony always be awarded when a long-term marriage is ended? A No. An award of alimony depends on several factors, including the age, earning ability, health, and education of the person seeking alimony; the other assets available to the parties; the length of the marriage; the standard of living during the marriage; and the ability of the other party to pay. All of the factors and others are weighed by the court. If the court decides to award alimony, the court has flexibility to award different types of alimony. This includes an award of lump sums as well as or instead of the regular payment of money. Rehabilitative alimony also may be awarded in situations where the party seeking it can show that the marriage affected his or her ability to obtain the same type of employment they had before the marriage, he or she has a legitimate ability to improve their earning power if the alimony is awarded, and he or she has a realistic plan for rehabilitation.
• Q Can time-sharing or custody arrangements be modified by the court if I can show that circumstances have changed since the original time-sharing or custody determination? A In order to change the time-sharing schedule and parenting plan, particularly in courts in the Miami-Dade, Broward and Palm Beach area, it is necessary to show that there has been a substantial change in the circumstances that existed at the time of the original custody determination and that it is in the best interest of the child to change the time-sharing schedule and/or parenting plan. The law discourages attempts to alter custodial arrangements once they are set by agreement or court order. Therefore, the law requires the party seeking to change custody to meet an "extraordinary" burden of proof. The courts will not consider facts that existed prior to the original custody determination unless there was some concealment of those facts. Changes in custody are possible and should be considered when there has been a material change in circumstance and it clearly can be shown that the child's well being is, or will be, adversely affected. However, changes such as remarriage, changes in lifestyle, and loss of a job, standing alone, generally will not justify a change.
• Q Is there a presumption that the mother will be given custody of the kids most of the time? A Not in Florida. By law, the court must give the father and the mother equal consideration in determining the time-sharing schedule and parenting plan, which are the terms Florida Law now uses to describe what the rest of the world calls Child Custody and Visitation. This is the law regardless of the age or sex of the child. The court will consider many factors to determining the time-sharing schedule and the parenting plan. These include: which parent is likely to encourage affection and allow frequent contact between the child and the other parent; the existing emotional ties the child has with both parents; the length of time the child has lived in a stable environment and the desirability of changing that environment; the moral, mental and physical health of the parents; and the reasonable wishes of the child if the child is mature enough to make such a choice. These are only a few of several factors the court is allowed to consider; none of them are controlling and the court also can consider any other relevant facts.