Basic Family Law in Florida: Divorce, Custody, Child Support, and Alimony
After handling hundreds of family law cases, trends emerge and most clients seem to ask the same or similar questions on a regular basis. This general FAQ guide is certainly not all inclusive but it does provide a good general overview of the most commonly asked questions in divorces, custody, child support, alimony, and modification cases.
How long must I be a Florida resident before I can file for divorce? You must be a Florida resident for at least six months prior to filing for a divorce. At the final hearing before the Judge you will be required to prove that you have been a resident of Florida for the required period of time.
Does it matter who files for divorce first? NO. The law does not consider who wanted the divorce or who filed first. You receive equal consideration and equal footing in your case whether you are the Petitioner, Counter-Petitioner, or simply a Respondent.
Do I have to prove mistreatment, abuse, or other wrongdoing on the part of my spouse to get a divorce? NO. Florida is a no-fault divorce state and the legal requirement is that the marriage is irretrievably broken. “Irretrievably" broken is a relative term and typically requires no proof of the same aside from testifying that it is broken before the Court.
What about custody of our children? Do the Florida courts have a preference of which parent will be the children’s primary caretaker? In Florida, the Courts are usually gender blind and should not have a bias or a preference regarding the children residing with the Mother over the Father, or vice versa. The facts of each case (and family) are different. The Courts will look at what is in the “best interests" of the children. There are many instances where both parents are equally suited parents and the parents enjoy a 50% / 50% timesharing (visitation) schedule with the children. There are also many instances where the Father is determined to be the primary caretaker of the minor children and the children reside in the Father’s home.
How much child support will I get or have to pay? This, once again, depends upon the particular facts of each case. Florida has suggested child support guidelines for determining the child support. These child support guidelines have a basic obligation component set forth in a chart based upon the parties’ total (both mom and dad) net income, and then other additional costs are added in the equation for daycare or child care costs, the children’s health insurance costs, the children’s non-covered or uncovered medical, dental, and prescription medication costs. After factoring in all of these costs, the monthly child support figure is determined. There are also certain adjustments upward or downward (deviation) that may be ordered by the Judge based upon the special needs of the children and / or extraordinary expenses. There are also adjustments which may be ordered by the Judge based upon a substantial timesharing with a particular parent or each parent. For instance, if each parent exercises timesharing at least 20 percent of the overnights in the year, the Judge may make a “gross up method" adjustment to the basic child support payments. A good example of a gross up on substantial timesharing is when each parent earns close to the same net monthly income and the children spend 50% of their time with each parent. Under this example, there may not be any child support ordered if the gross up calculations show that each parent has an equal responsibility for child support.
How long will a parent be required to pay child support? Child support is usually payable until the age of 18 (sometimes 19 if the child is still in high school). There are some special circumstances that may warrant child support being extended past the age of 19 but those circumstances usually include a special needs child.
Can child support be modified or changed? YES. The amount of child support can be modified under certain circumstances if there has been a substantial change in circumstances. For instance, one party has a substantial reduction in income and files a Motion for Modification of Child Support with the Court. If that parent can prove that there has been a substantial change in circumstances (i.e., loss of job, lesser income, et cetera) the Judge may grant a reduction in child support. Conversely, if one party has a substantial increase in income and the other parent files a Motion for Modification of Child Support with the court, the Judge may also grant an increase in child support.
Will I be able to get some form of alimony? It depends on the specific facts in your case. Recently, the Florida Legislature has provided more guidance regarding alimony. Alimony is based upon one spouse’s need for support and the other spouse’s ability to pay for such support. If the Court finds that a party has a need for alimony and that the other party has the ability to pay alimony, then the Court shall consider all relevant factors such as the length of the marriage, the age and physical / emotion condition of each party, the financial resources of each party, the earning capacities of each spouse, educational legal, employability of the parties, the contribution of each party to the marriage including homemaking, child care, education, and career building of the other party, the responsibilities each party will have regarding the care of the children, the tax treatment and consequences to both parties of any alimony award, all sources of income available to either party, and any other facts that the Court considers to provide justice between the parties. There are several different forms of alimony: bridge the gap alimony, rehabilitative alimony, durational alimony, and permanent alimony. The specific form of alimony, if any, is contingent upon numerous factors and may vary greatly in each case.
Can alimony be modified? YES. Similar to child support, the amount of alimony may be modified under certain circumstances if there has been a substantial change in circumstances. For instance, one party has a substantial reduction in income and files a Motion for Modification of Alimony with the Court. If that spouse can prove that there has been a substantial change in circumstances (i.e., loss of job, lesser income, et cetera) the Judge may grant a reduction in alimony. Conversely, if one party has a substantial increase in income and the other spouse files a Motion for Modification of Alimony with the court, the Judge may also grant an increase in alimony. The modification of alimony depends upon numerous factors and may vary greatly in each case.
Can I get financial assistance while my divorce or paternity case is pending? YES. Your attorney can schedule a hearing and ask for temporary child support, visitation, alimony, exclusive use of the house, and attorney's fees. This is a temporary relief hearing.