There are many issues that can arise in a dissolution of marriage case, but the typical matters usually include:
- Equitable or unequitable distribution of assets or liabilities
- Spousal support (alimony)
- Child support
- Timesharing
- Attorney fees
There are several types of dissolution of marriage.
Contested Dissolution of Marriage: this takes place when the parties cannot agree on the issues. One spouse files for divorce and serves the other spouse with process. That spouse has only 20 days to file a responsive pleading. It is at this point this it is critical that you talk to an experienced attorney because if you file the wrong pleading, you may waive rights that you would have had if you had filed the right pleading). Once the pleadings are closed, the parties have 45 days to engage in mandatory disclosure, then the parties are permitted to engage in discovery and depositions and subpoena practice. Mediation is required before trial can take place. Contested divorces can costs tens of thousands of dollars and can last years.
Military Dissolution of Marriage: A military divorce is complicated as it is governed by both, Florida law and Federal law. Generally, if one spouse files for divorce and the other spouse is in the military – the filing spouse can file where he/she resides, where the military member is stations or where the military member claims legal residency. Florida law would govern, if the filing spouse resides here. However, under the Servicemembers Civil Relief Act – you cannot serve active-duty service members. Of course, this is at the court’s discretion. Thus, we always recommend that the active-duty service member file a motion to stay the proceedings to avoid having a default being issued against them. In addition to the garden variety of issues that arise in any divorce proceeding (child support, timesharing, division of assets and liabilities, alimony and attorney fees – military pension is always a hot ticket item in military divorces. Military divorce adds an extra layer of complexity on top of an already complicated area oof the law. So if you are in need of competent legal counsel – call the Horton Law Group, P.A. today.
Same Sex Dissolution of Marriage: Same-sex marriage has been legally recognized in the state of Florida since January 6, 2015, as a result of the landmark case of Brenner v. Scott. As such, the rules of divorce are the same as the contested and uncontested litigation laws as stated above.
No matter which category you fall in, we got you covered. Going through a divorce is never easy, especially when children are involved. It can be extremely emotionally and financially draining. It is not something you should go through alone. The Florida laws governing dissolution of marriage are complex and the rules of court are confusing and vary depending on what jurisdiction you are in.
Florida statues and the rules of the court must be strictly complied with – otherwise you may be sanctioned or penalized.
Uncontested Dissolution of Marriage: this takes place, usually, when the parties submit to pre-suit mediation and resolve all of the issues outside of court. When this happens, the parties can file joint uncontested dissolution papers and skip litigation and go right to the final hearing and get divorced. The attorneys at the Horton Law Group, P.A. always try to resolve the case by proposing a marital settlement agreement and parenting plan, prior to filing suit, to see if we can settle early on as this saves our clients time, money and the hassle of litigation.
Why Hire the Horton Law Group, P.A?
The principal partner at the Horton Law Group, P.A., Attorney Sommer C. Horton, is an experienced and aggressive litigator. She is highly regarded for her creativeness, strategic judgment, and her uncanny ability to deliver persuasive legal
arguments in the courtroom. She has a tremendous skill for being an aggressive advocate for her clients, while being one who understands and appreciates how trying litigation can be, thus, she is extremely sensitive to her clients’ needs. Ms. Horton is passionate about the law and believes in seeking justice for her clients in an ethical and economic manner. Ms. Horton fights for each one of her clients, every step of the way. If the case cannot be settled out of court, Ms. Horton will be litigating your case at trial. The Horton Law Group, P.A. is a boutique civil litigation law firm that only takes on a limited number of cases so that personal attention can be given to every client. Make the right call – schedule a free 30-minute consultation with Ms. Horton. You can make an appointment by calling 561-299-0018 or emailing [email protected].
Equitable or Inequitable distribution of assets or liabilities
Marital Assets: If you do NOT have a prenuptial or postnuptial agreement – everything acquired after the date of marriage (with limited exceptions) is considered a marital asset. The court usually values the marital assets on the date the petition for dissolution is filed. However, if exceptional circumstances exist (like one party hiding marital assets) – the court can move this date so that both parties benefit from an equitable distribution of the marital assets. (Florida Statute 61.075).
Separate Property Assets: Anything in possession PRIOR to the date of marriage is considered a non-marital asset or separate property asset. Unless there are issues of commingling, this asset remains separate.
Inheritance: No matter when you receive it, is a separate property asset. It is not considered a marital asset unless you commingle it with a marital asset. If this is the case, you may be in trouble.
What assets can be divided:
- Bank Accounts
- Real Property
- Personal Property
- Retirement Accounts
- Brokerage Accounts
- Pensions
- Businesses
What assets cannot be divided:
- Separate property assets
- Pets – courts will not entertain timesharing plans for pets.
Liabilities. Martial Debts will be equitably divided. Separate property debts usually remain with the spouse that incurred them. There are exceptions to both of these rules. For example, if you are separated for an extended period of time or if you rack up thousands of dollars of unnecessary expense just because you think the other spouse will have to pay 50% of the bill or you rack up debt due to alcohol or drug addition, or use the money for inappropriate items, such as gambling or pornography – you will be paying that bill, solo.
Inequitable Distribution of Assets: If a spouse uses marital funds to fund an addition (gambling, alcohol, drugs, pornography) or of one spouse is caught with his or her pants down (pun intended) using marital funds to have an extra marital affair, the other spouse may be entitled to re-coup some of those monies back at the time of the final judgment in what is known as an inequitable distribution of assets. Moreover, if one spouse is hiding or misappropriating marital assets and gets caught, not only is it fraud, but it is sanctionable, bad faith is will be submit to inequitable distribution of assets.
Why Hire the Horton Law Group, P.A?
The principal partner at the Horton Law Group, P.A., Attorney Sommer C. Horton, is an experienced and aggressive litigator. She is highly regarded for her creativeness, strategic judgment, and her uncanny ability to deliver persuasive legal arguments in the courtroom. She has a tremendous skill for being an aggressive advocate for her clients, while being one who understands and appreciates how trying litigation can be, thus, she is extremely sensitive to her clients’ needs. Ms. Horton is passionate about the law and believes in seeking justice for her clients in an ethical and economic manner. Ms. Horton fights for each one of her clients, every step of the way. If the case cannot be settled out of court, Ms. Horton will be litigating your case at trial. The Horton Law Group, P.A. is a boutique civil litigation law firm that only takes on a limited number of cases so that personal attention can be given to every client. Make the right call – schedule a free 30-minute consultation with Ms. Horton. You can make an appointment by calling 561-299-0018 or emailing [email protected].
If the case cannot be settled out of court, Ms. Horton will be litigating your case at trial with you, she does pass the buck onto younger associates. She will be with you every step of the way!
Spousal Support (Alimony)
Alimony (also referred to spousal support) is defined as the financial support provided to a spouse to help him/her maintain the standard of living that occurred during the marriage. If you are seeking alimony or trying to prevent paying alimony – we strongly encourage you to seek qualified legal counsel. At the Horton Law Group, P.A., we can help. Alimony is awarded on a case-by-case basis. If you don’t plead for it, you will not receive it. You must prove, based upon substantial and competent evidence, that you are entitled to spousal support. If a court cannot make specific findings of fact as to spousal support, a ruling on spousal support may be reversed on appeal.
Every year, new legislation is proposed to reform Florida Alimony Statutes. The policy behind alimony is to alleviate the financial disparity of income or assets between the two parties. When determining if alimony, the court will look at many factors, including:
- one spouse’s ability to pay alimony vs. the other spouse’s need for alimony
- the spouse’s standard of living
- the length of the marriage (short term, moderate term or long-term marriage). If you are in a long-term marriage (17 years or more) – permanent alimony becomes an issue.
There are 5 types of alimony:
- Temporary
- Bridge-the-gap
- Durational
- Rehabilitative
- Permanent
If you are not sure what type of alimony you are eligible for, you should contact the Horton Law Group, P.A. for a free consultation. Spousal Support can be a very contentious and litigious aspect of a divorce. No one wants to pay it even though many spouses deserve it. One thing we have learned from experience is that if you do not have an experienced lawyer to represent you, any alimony award you receive will be substantially less than what you would have been awarded with qualified counsel by your side. On the flip side, there are key terms that are necessary in a marital settlement or final judgment that can help the spouse paying alimony – get out of paying it in the future. Alimony can be modified or terminated, so we highly recommend you retain a qualified Florida divorce lawyer to help you.
The principal partner at the Horton Law Group, P.A., Attorney Sommer C. Horton, is an experienced and aggressive litigator. She is highly regarded for her creativeness, strategic judgment, and her uncanny ability to deliver persuasive legal arguments in the courtroom. She has a tremendous skill for being an aggressive advocate for her clients, while being one who understands and appreciates how trying litigation can be, thus, she is extremely sensitive to her clients’ needs. Ms. Horton is passionate about the law and believes in seeking justice for her clients in an ethical and economic manner. Ms. Horton fights for each one of her clients, every step of the way. If the case cannot be settled out of court, Ms. Horton will be litigating your case at trial. The Horton Law Group, P.A. is a boutique civil litigation law firm that only takes on a limited number of cases so that personal attention can be given to every client. Make the right call – schedule a free 30-minute consultation with Ms. Horton. You can make an appointment by calling 561-299-0018 or emailing [email protected].
Child Support in Florida
In Florida, child support is the financial obligation of every parent, whether married, single or divorced. Child support is the court ordered obligation of the financial support for the care, maintenance, training, health and education of a child. FL Statute 39.01. Child support is the right of the child. Thus, it cannot be waived by either parent. Parents of a minor children have a legal and moral and ethical duty to support their child. Parents can stipulate to an amount of child support. However, the amount of support must be in the best interests of the child and not merely in the best financial interest of the parents. All Agreements on child support are subject to Court approval. The agreements will only be approved by the Court if they for the proper care and financial support of the child. If child support is ordered by the Court and a child support guideline worksheet is not attached to the Child Support Order or Final Judgment, it is reversible error, and the child support award can be overturned on appeal. Provisions in parenting plans, child support guidelines, prenuptial or postnuptial agreements or marital settlement agreements that attempt to waive child support are unenforceable as they are contrary to Florida law and against public policy and also are subject to reversal on appeal.
How is Child Support Calculated?
Child support is calculated by implementing child support guidelines under Fla. Stat. 61.30. Child support is calculated using a formula promulgated under Florida law – in Laymans terms, it is calculated based in part on the number of overnights each parent has with the child or children and the annual incomes of the parents. Other factors are taking into consideration: including, but not limited to health insurance and dental insurance cost, daycare costs, extraordinary child related expenses, any special needs of the child, if a parent is already paying child support pursuant to a court order, tax filing status, etc. Child support will vary on a case-by-case basis. Child support can be increased if a child has special needs or for a handful of other reasons.
Can I deviate from my child support obligation?
Child support guidelines are strictly enforced. However, there is an option to deviate from child support guidelines. Courts choose to do this rarely. will rarely deviate from the child support guidelines set forth in Fla. Stat. 61.30. The fact that you earn minimum wage is not enough to deviate from your child support obligation. McGhee v. Childress, 724 So.2d 196 (Fla.1st DCA 1999). If you are unemployed – the court will impute minimum wage to you, at a minimum, in order to calculate your child support obligation. If you were employed and intentionally lose your job or choose to be voluntarily unemployed – the court will impute income to you based upon what you were previously earning. The court can look back at your income earned over the last 5 years. In addition, you may be ordered to paying sanctions and/or attorney fees as a result of the voluntary and/or intentional unemployment.
Trial Courts will consider several factors when deciding whether to deviate from the support guidelines. Such factors include: the needs of the child, the standard of living of the parents, the parent’s ages, and the financial status of each parent. If the Court deviates from the Child Support Guidelines by more than 5%, findings of fact and conclusions of law will be required in any order regarding child support. Failure to have findings of fact and conclusions of law will render the child support order and judgment subject to reversal on appeal.
When does child support terminate?
Child support terminates when:
- a child attains the age of majority
- graduates high school
- gets married or
- becomes emancipated
Child support may be extended past the child’s age of majority, if the child has special needs or if other extraordinary circumstances occur. It is important to make sure you have knowledgeable counsel when calculating child support. You should contact the Horton Law Group, P.A. to schedule your free consultation with a qualified member of our team.
If you are ordered to pay child support, you better pay it. If you do not pay your court ordered child support:
- your driver’s license may be suspended
- you may be arrested and incarcerated
- your income can be garnished
- your business license may be suspended
- your assets may be seized
- you may be held in contempt
- you may have to pay the other parent’s attorney fees for filing an enforcement or contempt action against you
How do I seek back owed child support?
There are two main areas involving child support that should have been paid in the past but was not.
- Child support arrears: if a court issued an order and the obligor failed to pay, then you can seek to enforce the order and obtain a myriad of remedies as seen directly above. It is important to know that there is no statute of limitations to enforce a child support order. However, the affirmative defenses of “latches” may apply.
- Retroactive child support: this applies when there is no past. When you file an action after the other parent to obtain child support, there are certain circumstances wherein you can ask for retro support, or support for 24 months PRIOR to filing the action.
If you are not hot to calculate child support, you should contact the Horton Law Group, P.A. for a free consultation. One thing we have learned from experience is that if you do not have an experienced lawyer to represent you, any child support payment you receive for your children will be substantially less than what you would have been awarded with qualified counsel by your side.
The principal partner at the Horton Law Group, P.A., Attorney Sommer C. Horton, is an experienced and aggressive litigator. She is highly regarded for her creativeness, strategic judgment, and her uncanny ability to deliver persuasive legal arguments in the courtroom. She has a tremendous skill for being an aggressive advocate for her clients, while being one who understands and appreciates how trying litigation can be, thus, she is extremely sensitive to her clients’ needs. Ms. Horton is passionate about the law and believes in seeking justice for her clients in an ethical and economic manner. Ms. Horton fights for each one of her clients, every step of the way. If the case cannot be settled out of court, Ms. Horton will be litigating your case at trial. The Horton Law Group, P.A. is a boutique civil litigation law firm that only takes on a limited number of cases so that personal attention can be given to every client. Make the right call – schedule a free 30-minute consultation with Ms. Horton. You can make an appointment by calling 561-299-0018 or emailing [email protected].
Timesharing
What is timesharing? When most people think of timesharing, they think of vacation properties in the Caribbean. We are not talking about that type of timeshare here. Rather, timesharing the Florida family law arena means creating a parenting plan that determines how my time each parent will spend with their children. So, what is a parenting plan?
In Florida, parents can agree to a timesharing arrangement, without court intervention. Parents can agree to an oral timeshare arrangement, but that is not encouraged as they are hard to enforce. Parenting plans should be in writing and signed by both parents. If you cannot agree to a parenting plan informally, a court will implement a plan that it thinks it best for your child or children. There is no wrong way to negotiate a Florida parenting plan. Parents can agree to a schedule that works best for their families. Such as:
- Every other day rotation
- Every two days rotation
- Week on/week off rotations
- Utilization of a 2/2/3 rotation or
- Whatever works for you and the specific needs of your family
There are many different types of parenting plans:
(1) A basic parenting plan (Florida in state)
(2) A long-distance parenting plan (used when one parent resides out of state)
(3) A highly structured parenting plan or
(4) A Safety focused Plan
The Florida In-State Parenting Plan is utilized when both parents reside within 50 miles of each other in the state of Florida. You can agree on a timeshare rotation that works best for your situation. if you cannot – a court will implement one for your family, of which, it must be complied with. Unless there is some compelling reason not to provide equal timesharing to each parent, courts will try to provide equal timesharing to each parent, rotating holidays, breaks and summer vacations. Issues of domestic violence, child abuse, non-traditional work hours and other extraordinary circumstances may affect timesharing.
A long-distance parenting plan is used when one parent resides in a different county (50 miles away) or if one parent lives of the State of Florida. When a long-distance parenting plan is implemented, the out of state parent is usually entitled to one long weekend each month, rotating holidays and half of the summer break.
A highly-structured parenting plan is used when parenting styles conflict and the parents cannot communicate with each other. A highly-structured plan is created to implement strict rules that the parents are required to follow because the parents cannot work together to resolve conflicts with scheduling and issues as they arise with the children.
A safety-focused plan is used where one parent believes the child will be in danger while in the care and custody of the other parent as a result of allegations of abuse, neglect or abandonment. If the other parent has a history of domestic violence, child abuse, substance abuse or criminal history – you may want to consider having limited timesharing and/or supervised timesharing with the other parent. Such parenting plans can include only day visitation with one parent or supervised timesharing.
When parents cannot agree on timesharing or the care of the minor child or children, a lawsuit will most likely follow. There are several opportunities to agree to a parenting plan during family law case proceedings. Parents can even agree to a temporary parenting plan or partial parenting plan during litigation. All parenting plans should incorporate the best interests of the minor children. The best interest of the child factors pursuant to Fla. Stat. 61.13(2), include but are not limited to:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.
It is the public policy of Florida that minor children have frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. Provide a link to Florida Statutes, section 61.13(2)(c)
A parenting plan is a document created by the parents of a minor child or implemented by or approved by the court. The parenting plan dictates the relationship between the parents and between the parents and the children. At the Horton Law Group, our experienced family litigation attorneys draft parenting plans that include provisions regarding the minor child’s education, health care, mental health, time-sharing schedules, parental responsibility, travel, expenses, extracurricular activities and child support. If the parents cannot amicably communicate with each other, we incorporate provisions in the parenting plan where the parents only communicate through third party sites such as our family wizard or talking parents.
Every parenting plan must take into account the Uniform Child Custody Jurisdiction and Enforcement Act, the International Child Abduction Remedies Act, the Parental Kidnapping Prevention Act, and the Hague Convention on the Civil Aspects of International Child Abduction when addressing jurisdictional issues. The parenting plan should contain provisions about enforcement of the plan, or cancellation of timesharing and/or attorney fees when one parent fails to comply with the plan. It should also contain provisions regarding relocation in the event that one parent wants to move more than 50 miles away – with or without the children.
Child Custody Disputes are one of the most litigious areas of family court. It is expensive, time consuming and emotionally draining to not only the parents, but the children too. If you find a parenting plan on-line and/or if you hire an attorney who is not well versed with Florida family law, you may find yourself in court year after year (possibly until the children attain the age of majority) litigating contempt, enforcement or modification motions pertaining to the parenting plan. Thus, it is critical to have a knowledgeable family law attorney represent you. Contact the Horton Law Group, P.A. to schedule a free consultation with a qualified member of our team.
Timesharing Complications
Generally speaking, children are not permitted to testify in court as to timesharing issues. Thus, a Guardian ad litem or a social investigator can be utilized to render opinions as to timesharing matters and other issues. Guardian ad litems serve as the voice of the child in highly contested custody litigation.
- If there are allegations of sexual abuse, child abuse, physical abuse or verbal abuse, a social investigator of a guardian ad litem may be appointed by the court.
- If there are allegations of alcohol or drug abuse, a social investigator of a guardian ad litem may be appointed by the court.
- If there are allegations of alienation or allegations of a parent being “unfit”, a social investigator of a guardian ad litem may be appointed by the court.
What is a guardian ad litem and when would one be appointed by the court?
A guardian ad litem (GAL) is a person who is appointed by the court “to act as next friend of the child, investigator or evaluator, not as attorney or advocate.” FL Stat. §61.401. The court will appoint a GAL if it finds it is in the best interest of the child or if there are verified, well-founded allegations of child abuse, abandonment, or neglect as defined in Chapter 39. Id.
A guardian ad litem is expense and the court will generally order the parties to split the cost 50/50. In certain circumstances, the court may order one party to pay a majority of the fees, or all of the fees, depending on the allegations in the case or the finances of the parties.
What is a social investigator and when would one be appointed by the court?
Florida Rule 61.20 provides the grounds for when a social investigator can be appointed and what they are entitled to do. Generally, if the parents cannot agree on a parenting plan, a court can order a social investigation concerning all pertinent details relating to the child(ren) and parents to determine who should make child related decisions, who the children should reside with and any other matters at issue in your case.
A social investigator is usually a mental health professional, clinical social worker or a Florida licensed psychologist. They conduct an investigation and render a report to the court. The social investigator makes recommendations as to how the court should rule on child related issues.
A huge area of concern in a case involving child custody or parental responsibility, is whether the social investigator appointed can be “bought and/or is “neutral.” If a social investigator is appointed in your case and you feel that he/she is batting for the other side – you need to move quickly to get the social investigator removed before it is too late. This area of the law is highly complex and experienced legal counsel should be sought after immediately. The Attorneys at the Horton Law Group, P.A. can help. It is easier to get a social investigator dismissed than to “undo” a report of the social investigator that is already provided to the court – so time is of the essence.
Social investigations are invasive and expensive. A social investigator has the authority to talk to you, the other parent, the children, your employers/employees, your doctors, the children’s teachers, friends, family and whomever else they choose to investigate. They have the authority to review medical records, employment records, police records and school records.
The Court relies heavily on the Investigator’s assessments and ultimate recommendation, due to their neutral, third party status – so if a social investigator is appointed in your case – make sure you have competent and aggressive counsel by your side before it is too late.
Guardian Ad Litems and social investigators are expense. It is imperative that you retain counsel who can help you maneuver through these types of hostile and highly litigious and expense cases. Child Custody litigation is tedious and if you don’t have an experienced attorney on your side – you may be in court for years and you may spend hundreds of thousands of dollars fighting the other parent in court for time-sharing. It is important to retain counsel who is extremely experienced with Florida Family Law. The attorneys at the Horton Law Group, P.A. have over 20 years of combined experience with family law litigation. We take pride in our work. The attorneys at the Horton Law Group, P.A. are knowledgeable in the law, aggressive in court, well-respected in the community and will fight for both, you and your children. If you have questions about child support and/or if you are looking for a family litigation attorney, please call the Horton Law Group, P.A. at 561-299-0018 to schedule a free 30-minute consultation with the principal partner of the Horton Law Group, P.A., Sommer C. Horton, Esq. Or you can email us at [email protected] to schedule a free 30-minute consultation.
Frequently asked questions about time-sharing aka “Child Custody”
- What is a parenting plan?
A parenting plan is “a document created to govern the relationship between the parents relating to decisions that must be made regarding the minor child and must contain a time-sharing schedule for the parents and child.” Fla. Stat. §61.046(14). “The issues concerning the minor child may include, but are not limited to, the child’s education, health care, and physical, social, and emotional well-being.” Fla. Stat. §61.046(14). “In creating the plan, all circumstances between the parents, including their historic relationship, domestic violence, and other factors must be taken into consideration.” Fla. Stat. §61.046(14). Basically, it sets the parental responsibility and time-sharing of the children between the parents.
- What is time-sharing?
Time-sharing refers to how much time the child spends with each parent, and the schedule the parents will abide by. Fla. Stat. §61.046(23). The parenting plan will specify how many overnights are with each parent, how and when the child is exchanged, and who covers the cost of transportation. Even if the plan provides for 50/50 time-sharing, the plan must designate one of the parents to be the primary custodian for purposes of federal or other states’ laws which require such a designation. The time-sharing schedule has to be developed and agreed upon by the parents of the child and approved by the court or established by the court if the parents cannot agree or if their agreed-upon schedule is not approved by the court. Fla. Stat. §61.046(23).
- If I live outside the State of Florida am I entitled to time-sharing?
Yes. One of the factors that a court must consider when creating a parenting plan is “[t]he geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan.” Fla. Stat. §61.13(3)(e). “This factor does not create a presumption for or against relocation of either parent with a child.” Id. Parents can agree to, or the court can implement what is called a long-distance parenting plan. Unfortunately, practically speaking, time-sharing cannot be 50/50 when one parent lives or is going to move out of state as it would be disruptive to the child’s education and stability. Typically, the in-state parent would have the child during the school year, and the out-of-state parent would have the child during the summer and other holidays.
- If I don’t pay my child support obligation, can the other parent terminate my time-sharing?
No. A parent cannot deny timesharing on the grounds that the other parent failed ot pay his/her court ordered child support. Fla. Stat. §61.13(4)(a). However, many parents use their children as swords in the family law area and threaten to withhold timesharing if they do not receive support. This is not encouraged as only the children suffer. Time Sharing and Child Support are apples and oranges. Judges frown upon this type of behavior. This can also be considered alienation. If you prevent the other parent from seeing their children, a court might find you liable for alienation and may order the other parent majority timesharing or sole custody of the children. If these are issues that you are facing with, you need to contact the Horton Law Group, P.A. immediately as you need an experienced attorney to help navigate you through these treacherous waters.
- If the other parent refuses to honor my time-sharing, do I still have to pay child support?
Yes. A parent cannot deny timesharing on the grounds that the other parent failed to pay his/her court ordered child support. Fla. Stat. §61.13(4)(b). Timesharing and Child Support are like apples and oranges. Just because the other party is not complying with a parenting plan or court order, does not excuse you from complying. Courts frown on this type of behavior.
- Are both parents automatically entitled to equal time-sharing?
No. Parents can agree to any arrangement and the court can impose a time-sharing schedule after considering a number of statutory factors relating to the best interests of the child. These factors include, but are not limited to, the demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship; the anticipated division of parental responsibilities after the litigation; the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity; the moral fitness of the parents; the mental and physical health of the parents; and many more.
- If the other parent abuses drugs or alcohol or is violent, can his/her time-sharing be limited, supervised, or terminated?
Yes, if the court finds that it is in the best interests of the child to limit timeshare with one parent, it will limit the timesharing for the best interest of the children. The court takes such matters as substance abuse and a tendency towards violent behavior into consideration when establishing or modifying a parenting plan. Fla. Stat. §61.13(3)(m) and (q).
Modification of a parenting plan and time-sharing schedule requires a showing of a substantial, material, and unanticipated change of circumstances. Fla. Stat. §61.13(2)(c).
- Relapse into alcohol abuse is considered a substantial change in circumstances which would warrant a change in custody and to grant only supervised visitation for the affected parent. Allen v. Allen, 787 So. 2d 215 (Fla. 5th DCA 2001).
- Addiction or overuse of prescription medications, unstable lifestyle, and poor relationship choices can also be considered a substantial change in circumstances warranting modification of custody. Sullivan v. Sullivan, 736 So. 2d 103 (Fla. 4th DCA 1999).
- Supervised visitation is appropriate where domestic violence is involved and a child is in danger of being harm, verbally, sexually, emotionally or physically. Zarudny v. Zarudny, 241 So. 3d 258 (Fla. 3d DCA 2018).
If the other parent does not comply with the parenting plan, what can I do?
Call the Horton Law Group, P.A. immediately. We can file an enforcement and contempt proceeding under Chapter 61 of the Florida Statutes. If a parent is wrongfully denied time-sharing, the court can award that parent a sufficient amount of make-time-sharing to compensate for the time-sharing missed. Fla. Stat. §61.13(4)(c). The court may change custody, order attorney fees, sanctions, order the non-complying parent to attend parenting classes, or do community service or the court may ever order that the non-complying parent be incarcerated for being in contempt of court. Fla. Stat. §61.13(4)(d). These actions come with serious consequences, whether you are the one filing the motion for contempt and enforcement or if you are on the receiving side of said motion – you should retain competent legal counsel to assist you.
What is the Uniform Child Custody Jurisdiction and Enforcement Act and the International Child Abduction Remedies Act (UCCJEA)?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a cross state legislation created for the purpose of creating consistency and uniformity among the states in matters of child custody. It helps to avoid jurisdictional conflicts between states, deter parental abductions, avoid re-litigation of custody decisions of states in other states, and facilitate enforcement of custody decrees across state lines. Fla. Stat. §61.502. The UCCJEA requires that in any child custody proceeding, each party in its first pleading or in an attached affidavit, shall give information under oath as to where the child has lived for the last five years, whether they have participated in any other custody proceeding involving that child, whether they know of any other proceeding that could affect the custody proceeding, and whether they know of any other person not a party to the litigation that has physical custody or claims rights to the child. Fla. Stat. §61.522.
The Convention on the Civil Aspects of International Child Abduction, often referred to as the Hague Convention, is an international treaty that the United States is a signatory to. The Hague Convention is implemented in the United States by federal law at 22 U.S.C. §§ 9001 through 9009, also called the International Child Abduction Remedies Act (ICARA).
“The Convention is intended to ‘ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States’ by providing a return to the status quo and ‘to deter parents from crossing borders in search of a more sympathetic court.’” De Carvalho v. Carvalho Pereira, 45 Fla. L. Weekly D2556 (Fla. 1st DCA Nov. 16, 2020) (citations omitted).
“‘The Convention’s central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must “order the return of the child forthwith,” unless certain exceptions apply.’” Abbott v. Abbott, 560 U.S. 1, 9, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) (quoting Hague Convention, art. 12).
What do I do if the other parent does not return the children pursuant to the parenting plan or court order?
The Horton Law Group, P.A. can help you file an emergency motion for child pick-up order. If the motion is granted, the police will remove the child(ren) from the other parent and return them to you immediately. You can also ask for attorney fees and sanctions. You can also file a police report for kidnapping and get an amber alert issued if you feel your children have been kidnapped by the other parent or third party. Lastly, you can file a modification petition in an effort to limit the other parties timesharing and/or require supervised visitation.
These motions should be filed as an emergency. If they are filed as an emergency, they should be ruled on within 24 hours of filing. These motions usually contain serious allegations and can result in serious consequences. These filings must be verified by the parent filing them, under the penalty of perjury. You should retain knowledgeable counsel to advise you as to these matters, the law on these topics and your rights before filing said motions.
If a parent violates the parenting plan and I have to file suit, can I recover attorney fees?
Yes. Awarding Attorney Fees is within the court’s discretion. Fla. Stat. §61.13(4)(c). Courts can award fees based upon the need v. ability standard or as a sanction under Rosen v. Rosen or Fl St. 57.105.
Did you know that interference with child timesharing/custody is a Felony?
Florida Statute 787.03 provides in pertinent part: Whoever, without lawful authority, knowingly or recklessly takes or entices, or aids, abets, hires, or otherwise procures another to take or entice, any minor from the custody of the minor’s parent or guardian or any other lawful custodian commits the offense of interference with custody and commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
In the absence of a court order determining rights to custody or visitation with any minor or with any incompetent person, any parent of the minor or incompetent person, whether natural or adoptive, stepparent, legal guardian, or relative of the minor or incompetent person who has custody thereof and who takes, detains, conceals, or entices away that minor or incompetent person within or without the state with malicious intent to deprive another person of his or her right to custody of the minor or incompetent person commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
This means…. if a parent willfully and maliciously withholds a child from timesharing with the other parent, they can be criminally charged with interference with child custody. If that parent is convicted, they may lose their driver license, be put on probation, have to pay a fine, be incarcerated and pay attorney, among other remedies. Defenses to said criminal charges can include but are not limited to timeshare was withheld because the child was in danger with the other parent, domestic violence was involved.
Child Custody litigation is tedious and if you don’t have an experienced attorney on your side – you may be in court for years and you may spend hundreds of thousands of dollars fighting the other parent in court for time-sharing. It is important to retain counsel who is extremely experienced with Florida Family Law. The attorneys at the Horton Law Group, P.A. have over 20 years of combined experience with family law litigation. We take pride in our work. The attorneys at the Horton Law Group, P.A. are knowledgeable in the law, aggressive in court, well-respected in the community and will fight for both, you and your children. If you have questions about child support and/or if you are looking for a family litigation attorney, please call the Horton Law Group, P.A. at 561-299-0018 to schedule a free 30-minute consultation with the principal partner of the Horton Law Group, P.A., Sommer C. Horton, Esq. Or you can email us at [email protected] to schedule a free 30-minute consultation
Attorney Fees in Family Law cases
Attorney fee awards in family law cases can be awarded on many grounds. The starting point always includes the need of attorney fees by one parent v. the ability of the other parent to pay the fees. Fees can be awarded on a temporary basis or final basis. Fees can also be awarded to one party if the other party engages in bad faith or vexatious litigation. Another way to obtain attorney fees is if there is a substantial disparity in income between the parties.
Litigation is complex and expensive.
Why Hire the Horton Law Group, P.A?
The outcome of your divorce ultimately depends on who you chose to represent you. The principal partner at the Horton Law Group, P.A., Attorney Sommer C. Horton, is an experienced and aggressive litigator. She is highly regarded for her creativeness, strategic judgment and her uncanny ability to deliver persuasive legal arguments in the courtroom. She has a tremendous skill for being an aggressive advocate for her clients, while being one who understands and appreciates how trying litigation can be, thus, she is extremely sensitive to her clients’ needs. Ms. Horton is passionate about the law and believes in seeking justice for her clients in an ethical and economic manner. Ms. Horton fights for each and every one of her clients – every step of the way. If the case cannot be settled out of court, Ms. Horton will be litigating your case at trial.
The Horton Law Group, P.A. is a boutique civil litigation law firm that only takes on a limited number of cases so that personal attention can be given to every client. Make the right call – schedule a free 30-minute consultation with Ms. Horton. You can make an appointment by calling 561-299-0018 or emailing [email protected].
