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Both parents have a duty to support their children. On divorce, that duty ordinarily is enforced through an award of child support from one parent to the other. To calculate child support, the court will usually follow a process in the child support guidelines statute. That process requires the court to consider the gross earnings of each party, subject to certain specified deductions, and to apply those earnings to a chart. Child care expenses and child health insurance premiums ordinarily are added to that charted figure. Alimony paid is considered income to the receiving spouse and is a deduction from the income of the person who pays. Each parent's percentage of support is then calculated and a support figure is generated. The judge is then permitted to vary the support amount based upon a series of factors directed to circumstances existing within that particular family. Where it is reasonably available, payment of health insurance premiums will be required and the cost of uncovered medical, dental and prescription needs will be allocated.
Except in special circumstances, an Income Deduction Order will be entered that will require the employer of the parent paying child support to deduct the support from the paying parent's paycheck and send it directly to a central depository, which will keep track of the payments and forward the funds to the receiving parent. Failure to pay child support when it has been ordered is enforceable by contempt, and willful failure to pay may result in a person being jailed. A party may be ordered to maintain life insurance or provide other security to ensure the continued payment of child support.
It is not acceptable or appropriate to fail to permit a parent to spend time with children because that parent has not paid child support. It is equally unacceptable to fail to pay support because the other parent has not made the children available. Two wrongs don’t make a right. Under either set of circumstances, the statutes provide methods for enforcement of the court orders.
Assistance in obtaining a child support order may be available. The precise location of that assistance varies from county to county. For information related to the agency assisting in support enforcement and establishment in your county, contact your local Department of Revenue, Child Support Enforcement Program.
MAKING DECISIONS FOR THE CHILDREN AFTER DIVORCE
In most circumstances, a judge will order "shared parental responsibility" for minor children when the parents separate or divorce. This means that both parents have a right to have full information about the children and to share in making major decisions for the children.
Just because a child lives primarily with one parent does not give that parent greater say in the child's upbringing.
A judge may determine that one parent or the other should have the ultimate responsibility to make decisions in a particular area of a child's life, if the judge finds that it would be in the best interest of the child to do so.
If the parents, after good faith efforts, are unable to agree about a major decision affecting the child, (e.g., the parents cannot agree which private school the children should attend) the court, upon motion, may decide the issue, or designate the parent who will make that decision.
Sole parental responsibility may be awarded to one parent when shared parental responsibility would be detrimental to the child. Evidence of child or spousal abuse is a consideration and, depending upon the degree of abuse, may be a presumptive factor in determining whether shared or sole parental responsibility will be awarded. A court will also consider evidence that a person has provided false information in a domestic violence proceeding.
WHERE THE CHILDREN WILL LIVE AFTER DIVORCE
When parents separate or divorce it is important that both parents maintain contact with the children. Ordinarily, one parent will be designated the "primary residential parent" and the other parent will be designated the "secondary residential parent." Alternate arrangements, including situations where one parent has sole custody or where neither parent is designated a primary residential parent (rotating custody), can be agreed to or ordered in specific circumstances.
Both parents are entitled to equal consideration as primary residential parents, notwithstanding the age or sex of the children.
After divorce, if a primary residential parent wants to move and the move would materially interfere with the other parent's contact with and access to the children, there are a series of statutory factors that a court will be required to consider before issuing an order that permits a parent to move with the children. It is possible that a parent will be denied permission to move with the children. This may occur if the other parent has been an involved parent, the move is not in the best interest of the children, and a substituted schedule of contact with the children may not be sufficient to maintain the secondary residential parent’s relationship with the children.
CONTACT WITH CHILDREN
Unless contact would be detrimental to the children, both parents are entitled to spend time with the children. In most circumstances, a schedule will be established that will designate which days and nights will be spent with each parent. This schedule usually will include specific holiday planning, vacation planning, and a method for modifying the schedule when the need arises. Overnight visitation may not be denied based upon the age or sex of a child.
Ordinarily, each parent should have telephone contact with the children when they are with the other parent. Furthermore, many agreements provide that if a parent is going to be away from the children overnight the other parent will be given the opportunity to have the first right to take the child or children for that night before any other person is provided that opportunity.
If a primary residential parent wrongfully deprives the other parent of his or her time with the children, the court may enforce that other parent's right to time with the children and has a large variety of sanctions that can be imposed – ranging from make-up time to a full change of primary residential custody.
WHAT IF ONE SPOUSE ALREADY HAS A CHILD?
Unless a person has adopted the child of his or her spouse, the stepparent does not obtain either parental rights or responsibilities. Therefore, if the couple divorces, a stepparent will not have a right to contact with his or her stepchildren nor will a stepparent have an obligation to support stepchildren, even if he or she voluntarily has done so during the marriage. If a person has adopted a stepchild during the marriage, then that stepparent is the child's parent in all respects and will be given the same consideration for parental rights and responsibilities, as would any natural parent.
Florida Statutes provide an expedited process for obtaining an "injunction for protection against domestic violence." Forms have been established for seeking immediate injunctions when a person reasonably believes that he or she is in imminent danger of harm from a domestic partner. Available relief includes immediate exclusive use of the home, immediate temporary custody of the children (with or without temporary visitation) and where appropriate, financial relief. The petition must be submitted under oath and must factually lay out a basis for a reasonable fear that without this special order the person applying for the order will be hurt. Generally, an evidentiary hearing will take place within 15 days to allow the other party a chance to dispute the charges and to allow a judge to determine how the case will then progress. A person against whom a domestic violence injunction is issued, may not own or possess a firearm or ammunition. Domestic violence injunctions are enforceable nationwide.
Florida law provides that evidence of domestic abuse, or a false allegation of domestic abuse, may be considered as a factor in determining a child's primary residence and parental responsibility. Similarly, false statements under oath in domestic violence cases may result in criminal prosecution for perjury.
THE PROCESS FOR ENDING A MARRIAGE (DIVORCE)In order to end a marriage, a person must obtain a final judgment from a circuit court dissolving the marriage. In that judgment, all property, support and child-related issues ordinarily will be determined. To obtain that judgment a person must file a petition to start a lawsuit, legally serve (notice) his or her spouse, provide and obtain financial information to and from his or her spouse, if children are involved, take a class, and either have an agreement prepared and brought to the court at an appropriately noticed final hearing or have a trial before a judicial officer at which evidence will be taken to allow the judicial officer to make decisions. A person is not required to have a lawyer to obtain a divorce. However, because this is a legal process with rules and procedures to be followed, it is advisable to obtain legal counsel.
To obtain a divorce, there must be a legally acceptable reason. There are two legally acceptable reasons in Florida. One is that one party has been declared legally incompetent for a period in excess of three years. The other is the more common basis – that the marriage is "irretrievably broken." That means that there is nothing that the court can do (such as sending the couple to counseling) to induce the couple to reconcile. If there are children, and a person answers a petition for dissolution of marriage by denying that the marriage is irretrievably broken, then the court may order the parties to counseling and may delay the proceedings for up to three months to encourage and/or permit the parties an opportunity to reconcile.
Once a petition for dissolution of marriage is filed, it must be legally served upon the other party. That party must then file a written answer with the court. Forms for dissolution of marriage proceedings are available, and many courts have self-help units to assist people without lawyers in finding those forms. There are specialized rules of procedure dealing with family courts, which are available at public libraries and law schools. Those rules require each party to provide the other with financial information within a certain number of days of the beginning of a case. Except in cases involving domestic violence, most courts will also require all couples to attend mediation sessions – which are settlement conferences with the assistance of a trained person who tries to help couples achieve a settlement between themselves. If children are involved, all parties will be required to attend parenting classes, details of which are provided when the divorce action is filed. Some courts require the children to attend special classes as well.
Divorce proceedings are public proceedings, and the files are available at the courthouse for public review. Under certain limited circumstances, portions of the file may be sealed by order of the court.
While a divorce action is pending, a trial judge may enter orders dealing with support, possession or maintenance of any individual asset, where the child or children will live, the time the child or children will spend with each parent, and attorney's fees and costs.
COMMUNITY RESOURCES - WHERE TO GO
FOR MORE INFORMATION OR HELPThe laws dealing with marriage, dissolution of marriage, partition (forced sale) of property, enforcement of support, and injunctions for protection against domestic violence are primarily found in chapters 61, 64, and 741 of the Florida Statutes. Those statutes are available for review at all public libraries. Recent legislative changes can be accessed online at http:\\www.leg.state.fl.us.
Many courthouses have opened self-help clinics that provide access to forms required for dissolution of marriage proceedings. The forms may also be retrieved online as the "family law forms" contained within the rules maintained at http:\\www.flcourts.org.
Couples undergoing marital strain are encouraged to seek the assistance of a mental health professional specializing in family counseling. The yellow pages in your local phone book contain a variety of such mental health professionals. Clergy are also available for assistance and/or referrals.
The statewide toll-free hotline to report child abuse is 1-800-96-ABUSE.
The statewide toll-free hotline to obtain assistance with protecting yourself or your children from domestic violence is 1-800-500-1119.
Couples who wish to attempt to settle their cases with the assistance of a professional mediator can contact their local family court services division, court administrator, or clerk of court for a list of certified family mediators in their area. Many mediators also advertise in the yellow pages. The Florida Supreme Court’s Dispute Resolution Center can also provide the names of certified mediators in Florida. The number is 1-850-921-2910.
In most counties, The United Way maintains information on local agencies that provide a variety of services for children and families to prevent and reduce the incidents and effects of child abuse and neglect, and spousal abuse.
Referrals to attorneys who can assist in family law matters can be obtained from local bar associations, local legal aid organizations, and from The Florida Bar's Lawyer Referral Service at 1-800-342-8011.
Attorneys handling family law cases can also be found in the yellow pages of your local phone book. The hiring of an attorney is a serious matter, and attention should be given to the attorney's qualifications and background prior to engagement.
This handbook has been prepared as a public service by the Family Law Section of the Florida Bar and has been reviewed for accuracy by the Family Court Steering Committee established by the Florida Supreme Court.
Reprinted with the permission of the Family Law Section of the Florida Bar.