DIY Divorce Blog Moves

DIY Divorce in Florida Blog Moved!

It's official. DIY Divorce blog has moved. All new posts will only be on the new blog. You can visit the new blog for constantly-updated free information to you help you represent yourself in a Florida divorce or other family law case.

If you want to have a successful do-it-yourself divorce, check out my free Special Report. Just sign up over in the right column and I'll send it to your inbox right away.

I also offer a complete Step-by-Step Guide to Florida DIY Divorce - The Florida Divorce Professor's Crash Course on Divorce Law & Procedure.

You don't have to struggle alone. Let the Florida Divorce Professor help you.

Florida Divorce Laws Change July 1

Florida divorce law no longer includes custody and primary residential parent. On October 1, 2008, Florida law dramatically changes with respect to children and divorce. There is no "primary residential parent" anymore. Every family must now write a parenting plan that contains all the child-related terms. If you do not write your own, the judge will do it for you. DIY has written about parenting plans in the past. Now parenting plans will be mandatory in Florida. DIY Divorce now offers a customizable Florida Parenting Plan that meets the requirements of the new October 1, 2008 law changes.

Other changes took effect on July 1st. It is now possible to have the court order a partial equitable distribution when the situation warrants it. There is no more "special equity" in Florida. And, like real property, there is now a gift presumption for personal property.

Probably one of the most important change is that court fees increased. The filing fee for the petition increased about $50. There is now a filing fee for counter-petitions and you must pay $10 to have a summons issued.

Florida Divorce: Practicing Law & Online Services

We the People is a franchise that provides forms and help in legal matters including wills, divorces, bankruptcy and other areas of law.

The Ohio State Bar found that We The People was practicing law without a license because they advised people about how to complete forms for filing a personal bankruptcy, probate applications, and gave advice about how to complete the forms and what answers to put down. They were ordered to stop the unauthorized practice of law and fined $10,00 per violation.

We have written before about online form services and paralegal practices. Do not fall victim to these services. DIY Divorce teaches you what the law is. Once you know the legal principles, you can apply them to your facts. Do it yourself and do it right. DIY Divorce teaches YOU Florida divorce law.

File An Answer in Your Florida Divorce!

When the divorce petition arrives do not ignore it. Sometimes people just do not want to deal with the situation and put the petition aside.

You have 20 days after you are served to file an Answer (and Counter-Petition, if you want). If you do not file an answer on time, the court can enter a "default judgment."

Once a default is entered, you may be prohibited from presenting your side of the case unless you file a motion to set aside the default. If that happens, the relief requested in the Petition is likely to be granted. Pay attention to the deadline and file an Answer in your Florida divorce.

Florida divorce: Petition, Answer, and then....

You filed you divorce petition and the other side filed an answer. Now what happens?

The middle phase of a divorce case is called "discovery." This is the time when you can "discover" information from the other side by asking questions (interrogatories), requesting documents or inspections or examinations, taking depositions or requesting the other side admit or deny certain facts. These discovery methods help you prove your case if there is disagreement between you and your soon-to-be-ex.

This middle phase helps you get ready for mediation, and then trial. It is your opportunity to get the information you need to prove your Florida divorce case.

Florida Divorce: Alimony

Divorce cases generate many questions about alimony. Today we talk about the types of alimony available in Florida. Alimony is based primarily on the receiving spouse’s need and the paying spouse’s ability to pay.

Temporary Alimony is payable while the divorce case pending. This type of alimony cannot be waived, even in a prenuptial agreement because it is based on the legal duty to support your spouse. It ends at final judgment.1

At final judgment, there are three possible types of alimony in the law.

Permanent Alimony is what we traditionally think of when we hear the word “alimony.” It is paid as long the receiving former spouse is alive and remains unmarried. If the receiving spouse moves into a “supportive relationship,” Florida law now permits permanent alimony to be modified or changed. If the paying spouse dies first, his or her estate has to continue to pay.

Rehabilitative Alimony is paid while the receiving spouse gets education or training that will allow him/her to be self-supporting. To be eligible for rehabilitative alimony, there must be a specific plan for the education.

Lump Sum Alimony is awarded, but not often. This is payment of a specific amount, in either one payment or payments over time. Once ordered, the whole amount becomes the property of the receiving spouse. This alimony cannot be modified.

In some areas of the state, judges have created a fourth type of alimony called “bridge the gap,” meant to ease the transition to single life when there is no rehabilitative plan. This is another type that cannot be changed once ordered.

DIY Courses Begin

The DIY Divorce Tele Classes begin Monday with the free Tele Test Drive Class on Basic Florida Divorce Law. The Tele Test Drive lets you check out how our virtual classroom works and the kind of information and material you can expect in the DIY Divorce courses.

If you are interested in the June class, sign up now. space is limited. You can learn more about the courses and virtual classroom on our website.

Florida Divorce: Frequently Asked Questions

Can I stop a no-fault divorce?

If one of the spouses believes that the marriage is “irretrievably broken,” the divorce will very likely be granted. The “no fault” law makes it extremely difficult to stop a divorce.

Can I date while separated?

Until the Final Judgment is signed by the judge, you are still married. Regardless of what this means to you, it is important not to introduce your dating partners to your children until you have established a relationship you believe is serious.

How long does it take to get a divorce?

Once all the required documents have been filed by both of you, your case is ready for final hearing. The scheduling of that hearing depends on your area. Expect the whole process to take a minimum of two months.

Can we use the same lawyer to save money?

The Rules Regulating the Florida Bar prohibit an attorney from representing more than one party in a case. Even if you both agree, the attorney can only represent one of you in a divorce case.

Florida Divorce - Meeting Your Responsibilities

Representing yourself in a divorce means that you need to study the law, rules of procedure and your local court's administrative orders. These resources are all available online in Florida.

The laws you will need to become familiar with include Chapters 44, 48 and 61 of the Florida Statutes. Chapter 44 covers mediation rules. Chapter 48 covers service of process and the court's jurisdiction. Chapter 61 is the actual divorce law and includes custody and child support.

You will also need to know the rules of procedure. The Florida Family Rules and Procedure (Fla. Fam. L.R.P.) outline the divorce procedure requirements. Some of the family rules refer back to the Florida Civil Rules of Procedure, so you will need access to the civil rules as well. Both the statutes and the procedural rules are contained in our link section.

Finally, you should review the local administrative rules. Each court seems to have some local procedural requirements outlined in the administrative rules. For example, in the 6th Circuit there are special local forms you need to file your case. Many times, the model visitation schedule for your area is contained in an administrative order. So be sure to search your court's website so that you can represent yourself in your Florida divorce.

Representing Yourself in Divorce - Your Responsibilities

Representing yourself in your divorce case is called “pro se.” Legal dictionaries define "pro se" as someone who represents them self in a legal procedure without an attorney.

You have the right to represent yourself in court, however, you must understand that choosing to represent yourself means the court will expect you to follow the same rules and procedures that an attorney must follow. You will need to study Florida law and procedures.

The judge in your case must remain impartial and cannot do anything to give any appearance of being partial to either side. This includes giving legal advice and having contact with either party without the other being present. When you go into court, the judge may give you information about what may be wrong with the papers you filed. Listen carefully.

Court staff can only assist you with procedures. Procedural information includes such matters as where to obtain forms for some procedures, how to file a petition, answer requirements, service requirements on common procedures, how to get a default, how to file a motion, how to get a hearing, etc.

Very often there is a fine line between procedural information and legal advice. Staff cannot give legal advice. Basically, questions are taken on an individual basis and a judgment is made about whether or not the question involves giving legal advice. If you are told that your question is legal advice, just accept that it is and don't continue to question court employees to help you when they cannot.

Filling out forms is definitely considered legal advice. You will need to seek an attorney’s assistance or learn some Florida law if you have any questions regarding "what to put in the blanks." The DIY Divorce courses are designed to help you learn Florida divorce law. Use the box on the left to sign up now for a free Tele-Test Drive.

Avoid These 4 Mistakes in Your Florida Divorce

Florida divorce procedures can be like navigating a maze at a time when you're already feeling confused. If you are representing yourself in a Florida divorce, avoid these four common mistakes.

• Asking your friends for legal advice. Unless you are friends with a Florida divorce attorney, avoid asking them for legal advice. You will get different advice and end up taking a poll. It will make you crazy. If you are representing yourself, get expert advice when you need it, but to do this right, you need to learn about Florida divorce law.

• Incomplete Financial Affidavit. This is the most important document of your case if you have any property, debt or children. Take the time to get accurate information. Use at the past 12 months of household bills. Call the companies if you don’t have the information. Get current values for all accounts at the date of filing the petition for dissolution of marriage.

• Not customizing the Florida divorce forms. Your case is unique. The official online forms do not always permit you to add sufficient information to get what you want. If you want to ask that property be sold over your spouse’s objection, you need to include all the requirements for a partition action. The form permits only 5 additional lines of information for “other relief.” This is not enough space to meet the requirements for the relief you want in your Florida divorce.

• Not Seeking Expert Help. There are times when it just makes sense to get some expert help with your case. If you have complicated or unique finances, you may need an accountant. If you have complicated property issues or non-marital assets, you may want to talk to an attorney about legal treatment of the property or to an accountant about valuation issues. There are just times when it makes sense to seek expert advice in your Florida divorce.

Florida Divorce: Answers & Counter-Petitions

Answering the divorce petition is an important step in your DIY divorce. The purpose of the Answer document is to admit or deny what has been said in the petition. For each paragraph, your answer needs to indicate whether you "admit" or "deny" what is contained in that paragraph.

If you want to file a counter-petition, you must do it at the same time you file the Answer. A counter-petition is the Respondent's request that the divorce be granted and that the court order certain relief.

Why file a counter-petition? If you want the court to order specific things not requested in your spouse's petition, you may want to file a counter-petition. In a previous post we talked about the situations in which you need to make specific allegations in a divorce petition. If any of those situations apply to your case, you may want to file a counter-petition. If you definitely want the divorce and are worried that the petitioning spouse may not complete the divorce, you should file a counter-petition so that you can complete your divorce petition.

Kids & the Importance of Calendars

When involved in a contested custody case, you should keep a calendar of all significant events. Take the time to make a note of things like how often the other parent has the kids, when support payments are made, when important discussions are had with your soon-to-be-ex.

Sometimes these calendar notes can help determine the proper amount of child support. Most of the model schedules in use in Florida provide for almost 40% of time with the non-custodial parent. Since the law allows an adjustment for significant timesharing, child support is often reduced. If the non-custodial parent does not actually exercise the time allotted in the schedule, child support may need to be adjusted. Before you can adjust child support, you will need to know the exact number of days actually used by the non-custodial parent. A calendar makes this calculation far easier than trying to reconstruct missed visits many months down the road.

Similarly, a calendar can help document late pick ups and drop offs, refusals to cooperate, chronic late payments and other inappropriate actions of the other parent. If you are having any dispute with your soon-to-be-ex, try using a calendar to keep track of events. You should also be aware that your calendar can be subpoenaed by the other side, so you may want to use a separate calendar for your divorce disputes.

Guardians Ad Litem

Guardians ad litem are sometimes appointed in contested custody cases. With all the news coverage of the Texas polygamists, guardians ad litem have been in the news alot of the past few weeks. Just what is a guardian ad litem?

GALs are appointed by the court to represent the best interest of the child. GALs are required in child abuse cases in Florida. Each judicial circuit has a GAL program that trains volunteers to serve in the program.

In divorces, a GAL is appointed when one of the parties requests it by filing a motion and the court enters an order of appointment. GALs in divorce cases are usually attorneys in Florida.

Judges typically give the GAL recommendations great weight. You need to think about whether a GAL appointment would be helpful in your case. You should also speak with the proposed GALs prior to appointment because you and your child will be working with the GAL throughout the case.

Florda Divorce: The Statistics

Florida divorce statistics continue to show about 90,000 divorce cases filed per year. For the first six months of 2007 (latest available numbers) there were just over 48,000 dissolution cases filed in Florida. This number is slightly lower than the same period in 2006.

The National Center for Health Statistics also follows marriage and divorce statistics. Their latest national numbers (2005) show that there were over 2.2 million marriages and a national divorce rate of 3.6 per 1,000 people - the lowest rate since 1970. Nevada had the highest divorce rate at 6.4.

The overall Florida divorce rate continues to fall from its high of 6.9 in 1990. Strangely, the highest divorce rates in Florida seem centered in Broward County. Pompano, Lauderhill, Hallandale, Hollywood, Davie, Ft. Lauderdale and Deerfield Beach all have divorce rates over 12%.

Florida Divorce Issues - What's First?

In a Florida divorce, judges consider the issues in a specific order. There are five possible major issues or areas in a divorce case. This is the order in which judges consider the issues:

Parenting Plan/Primary Residence, Parental Responsibility

Equitable Distribution/Property Division

Alimony/Spousal Support

Child Support

Everything Else/Name Change, Life Insurance, Court costs

If you are representing yourself in a Florida divorce, you should use the same PEACE order to analyze your case and later, to prepare the settlement agreement.

No Co-mingling Here

Non-marital assets and co-mingling can be a big headache when equitably distributing assets in divorce. Co-mingling is the term used when marital money or efforts are used on non-marital assets that belong only to one spouse.

Last week, the Fifth District Court of Appeal decided a case from Ocala that involved possible co-mingling. The wife had looked at 5 acres prior to the wedding, but the sale closed after the wedding.

During the divorce, the husband claimed that the land was marital because it was purchased during the marriage. The evidence showed that the down payment was made with money from the wife's mother. The payments were made with non-marital accounts of the wife and her mother and son. Later, the wife's mother sold her house and that money also went toward the 5 acres.

Even though the wife's pleadings failed to identify the land as non-marital, the judge found that the 5 acres were, in fact, non-marital. The lack of pleading did not matter to the court since the spouses argued the issue during the trial.

Take away two lessons from this case. First, if you have a non-marital asset be sure you do NOT use marital money to pay for it. Second, keep your pleadings accurate so you don't buy yourself an appeal in your Florida divorce case.

Basic Florida Divorce Law

You may have noticed that we've been posting here less in the past couple weeks. That's because we have been working on a new webpage for our tele-class launch.

The Basic Florida Divorce Law class will be available on a telephone bridge line. The class itself will be free, but you will have to pay for any toll charges (unless we find a fabulous provider that offers a toll free number at no cost on this end). With so many unlimited phone plans now, we don't think a toll call is a big price to pay for a 60 to 90 minute class.

So stay tuned right here at the DIY Divorce in Florida blog. We'll be announcing the date of the first class here in the next few weeks. Remember, we educate you so you can represent yourself in your Florida divorce.

Dismissal: What a Mess!

Notice of Dismissal is effective immediately. The First District Court of Appeal recently had to unravel the past several years of court actions and orders. Here's what happened:

The couple lived together, had a child and got married. The wife filed for divorce almost immediately. A year later, a Magistrate held a hearing and recommended a final judgment of divorce, custody, child support and equitable distribution. The wife filed a Notice of Voluntary Dismissal ten days after the Magistrate's recommendation. Apparently unaware of the dismissal, 20 days later the judge signed an order adopting the Magistrate's recommendations and both parties presumably got copies of a "final judgment."

Another year later, the husband filed to modify custody and visitation. There was a trial and the court denied the modification. The husband appealed. At that point, someone looked at the whole court file and realized that the judge did not have authority to enter any orders after the wife dismissed the case.

Granted, this case was unusual because the final hearing was held in front of a Magistrate. The case actually involves the issue of when a case is "submitted to the court for decision," as it relates to the ability to dismiss a case without a court order. Esoteric issue maybe, but I hope that none of you will allow a year to pass without a hearing in your Florida divorce case.

Florida Divorce: Serving the Petition

Florida has three different ways to serve your divorce petition on your spouse. The judge’s authority over your spouse depends on how the petition is served. The three ways to serve a Petition are:

• Personal service
• Substitute service
• Constructive service

Personal service means that a summons and copy of the Petition are handed to your spouse by law enforcement or a certified process server. This is the primary way to serve a person in Florida. A list of certified process servers is usually available from the Court Administrator’s office or court website.

Substitute service means that the papers were given to someone over age 15 who lives in the same place as your spouse regularly lives. You cannot accept service if you still live together. So if your spouse is living with her parents, the papers can be handed to her father by law enforcement or a certified process server. This type of service is just as good as personal service on your spouse.

If you don’t know where your spouse lives, you will have to use Constructive Service or Service by Publication. The first step is to “diligently search” for your spouse to try to serve them personally. You can only publish if personal service is not possible. This means using all the information you have about your spouse and asking certain agencies if they have more information, and then following up on that information. It is a specific process and you may want to hire someone knowledgeable to do it for you. Next you’ll file an affidavit with the court outlining your search. After that, you’ll have to publish a notice in the newspaper. Once the publishing is complete and proof of publishing is filed with the clerk, your spouse has notification of the petition and the case can go to final judgment.

Preparing Florida Court Documents: How Much Detail?

Preparing divorce documents for court filing is tricky business in Florida. We have already talked about financial information and identity theft. The necessity of adding more detail to the divorce forms has been the subject of previous posts. Today, we discuss the rules for determining how much is too much information in your court document.

In Petitions, you should add detail if you are requesting the court take action on any of the following issues:

• Non-marital assets or debts that you believe were commingled or converted into marital assets
• Sole parental responsibility
• Contested primary residential parent
• EUP
• Waste, depletion
• Name change
• Partition

In Answers, you are only responding to the statements in the petition. No details are necessary. This is also true for Responses to Motions. The Answer or Response contains only statements such as, “Respondent denies the allegations in paragraph 3,5,6,7 and 10.” If you include the details of why you dispute the petition, you may get a Motion to Strike your document.

If you are the Respondent and want to make allegations of your own, you should file a Counter-Petition with your Answer. You MUST file a Counter-Petition with your Answer or it will be too late. A Counter-Petition also will allow you to continue the case without any additional filing fees if the Petitioner decides to drop the case.

So the general rule on detail is YES for the Petition and Counter-Petition and NO for Answers and Responses.

Remember that Florida court files are public records. Anyone can look at your divorce court file, so you want to be careful about the allegations and responses you put in any Florida divorce court document.

Florida Parenting Plans: 5 More Areas to Consider

Some additional areas to consider in your parenting plan include:

• Insurance coverage – Which parent will provide it? What are the criteria for reevaluating coverage? How will co-pays and deductibles be divided? What happens if you disagree on a procedure? What about life insurance coverage to secure child support and/or alimony payments? For older children, will there be a cost split for the additional auto insurance premium that the custodial parent will face?

• Transportation – Where is the exchange point? What are the details of transportation between the two homes? Who is driving? What time? If you use the school as the exchange point, what happens when school is not in session?

• Relocation – Under what circumstances will the custodial parent be able to move away with the child? (If you don’t decide this now, you will have to follow the procedures of Fla. Statute 61.13001.)

• Education – Who will attend school conferences and how will parents receive notice? How will the non-custodial parent receive school information? How will extra school or tutoring fees be divided? How will private school tuition be paid and for how long? Although not required, do you both agree to cover college costs for your child? If so, what is included in “college costs?”

• Religious Affiliation and Training – Is there agreement to raise the children in a specific faith? How will the costs associated with religious affiliation and education be paid? What is the transportation plan? Are you both agreeing that the child will attend certain religious events or education, regardless of whose parenting time is used? Will these decisions be delegated to the parent who feels this area is more important? If so, will that affect the cost sharing in any way?

Your parenting plan should reflect your family's unique circumstances. There's no magic list of areas or visitation schedules to include in your parenting plan. Think about your family's situation, values and lifestyle to determine the areas to include in your Florida parenting plan.

6 Critical Areas for Your Florida Parenting Plan

When deciding how to divide the children’s time after the divorce, parents often write parenting plans. Parenting plans spell out the terms of the children’s timesharing with each parent and each parent’s responsibility for decision making and support after divorce. Temporary parenting plans can also be used before the final judgment. Parenting plans are the most important part of your documents in a divorce with children.

Parenting plans can be as detailed or as vague as the parents want. Florida courts have “model schedules” for visitation in each circuit (and sometimes in each county). You will want to read the model schedule for your area for two reasons. First, you will see what a partial parenting plan looks and sounds like. Second, you may decide that the model schedule in your area is appropriate for your family. If so, the bulk of your parenting plan work is done.

If the model schedule for your area is not appropriate for your family, you may decide that the model plan can be re-worked for your family. You may also want to do an online search and look at some other parenting plan language.

When writing a parenting plan, at a minimum, you should include the following 6 items in your parenting plan:

1. Information about the children – names and dates of birth
2. Standards of Parental Conduct – how parents act toward each other & children
3. Parental Responsibility - Decision making
4. Primary Residence – Timesharing
5. Child support – Guideline calculation/deviation, college
6. How the Plan Can be Changed – Written and signed by both, triggers

Developing the parenting plan can help you become clearer about what your expectations for your former spouse are. It can also help you focus on the long-range plan for your children. Parents with young children have to look far into the future and consider how those future decisions will be made and the future responsibilities allocated.

Through the years, I’ve noticed that parents who work hard to develop a detailed parenting plan tend to return to court less. I think the success for the plan is equal to the time you put into developing it. The parenting plan is a roadmap for your children’s future.

You will probably want to include many more items in your plan. The six items listed here are the bare minimum requirements for a parenting plan.

What is Shared Parental Responsibility Anyway?

Florida law requires that divorced parents share parental responsibility for their child after divorce, unless shared responsibility is detrimental to the child. The goal is to keep both parents involved in the child’s life. However, the child will most likely live primarily with one parent and that parent will make the day-to-day decisions. Then what does shared parental responsibility mean anyway?

Shared parental responsibility means that both parents discuss and decide major decisions affecting the child. These are the decisions that have long-term consequences in your child's life. Some examples involve the choice of:

• schools
• child care facility
• camps
• doctors
• religious affiliation and training
• psychotherapy
• surgery
• other long-term medical treatment
• sports and other out-of-school activities
• trips

For an older child it means making decisions about issues like part-time employment, driving, buying a car, dropping out of school, college education and trips. As your child gets older, consider having a joint discussion on these issues with your child. The area that is absolutely off-limits for discussion with your child is asking where he or she wants to live. Of course, the child should never be responsible for any final decision.

There are no set rules for shared decision making. Parents may want to divide up the areas, each taking responsibility for certain ones. Some parents prefer to meet and discuss these issues together and reach a joint decision. Others may allow one parent to make the decisions and inform the other parent. And, as noted above, older children will want to have input into decisions that affect them.

The post-divorce decision making process is often the same type of process the parents had during the marriage. When developing a parenting plan, consider how the decisions have been made in the past and what changes may be needed to that process now that the parents will live apart. Making joint decisions on issues that have long-term consequences for your child is what shared parental responsibility means in Florida.

Why Do I Have To Go To Parent Class?

Here's a sampling of questions asked last week about the parent education class:

Q: We started a divorce last year and took the class, but then we reconciled. Now we're going to get divorced. Do we have to take the class again?

A: It is up to the judge. You will need to file a motion to waive the class requirement and explain the situation. Aside from their own beliefs, judges will likely consider how long it has been since you graduated and whether you attended online or in person. Be sure to attach a copy of your class certificate to the motion.

Q: My wife is pregnant but it's not my baby. Do have to take the class? I won't be having any contact with the child after the divorce.

A: Florida law presumes that during a marriage, any pregnancy is the result of the married couple. To avoid that presumption, the biological father has to sign an Acknowledgment of Paternity or there must be a Judgment of Paternity that declares the other man the child's father. Neither of these can really be done before the child is born. Again, you will need to file a motion and request that the class requirement be waived based on your situation.

Q: My husband and I divorced 2 years ago but remarried shortly after the divorce. Now we are divorcing again. Do we have to take another class?
A: Once again, it will be up to judge. If you don't want to take the class again, you'll have to file a motion to waive the class requirement.

As you noticed, the answer is the same for all questions. Why? Because the law says the parents in every case shall take the class. If there are circumstances that make it unfair to impose the class requirement and both parties agree to the waiver, the judge has the authority to enter an order waiving the requirement, but you'll have to file a motion if you want to avoid Florida's parent education class.

Florida's Parent Education Class: Do I Have to Go?

Florida courts require divorcing couples with children take a class about children and divorce, so the answer is yes if you have children. The Family Division clerks in my area tell me they get many questions about the class, so we'll have a brief run-down on "the class."

First, if you have children, you must take the class. It's the law.

Second, there are many providers of the class. If the class is a DCF-approved 4 hour class, it meets the requirement. We provide the class online.

Third, although the class is available online, be aware that some judges require in-person attendance. Clay, Duvall, Hillsborough and Collier counties are notorious for banning online classes, but individual judges in other areas may also require in-person attendance.

You need to ask about the policy of your judge with respect to online classes. You can check the judge's page on the court website for instructions. Many post specific instructions and you should definitely be familiar with those instructions. If there is no information on the website, you should contact the judge's judicial assistant whose number is listed in the blue pages of the phone book.

Next time we will answer questions asked by pro se parties this week about the parent education class.

Kids: Which of us is Guardian?

Whether you are divorced or never married to the other parent, the question often arises: Who is the "guardian" of the kids? Florida law says this:

• The mother and father jointly are natural guardians of their own children and of their adopted children, until they become adults.
• If the marriage between the parents is dissolved, the natural guardianship belongs to the parent who has custody of the child by court order.
• If the parents have joint custody after the divorce, then both continue as natural guardians.
• If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither is entitled to act as natural guardian of the child.
• If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries.
• If the parents are not married, the mother is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court enters an order stating otherwise.

2 More Relocation Factors

When deciding a child relocation case in Florida, a judge must evaluate three different areas: child-related factors, the relationship between the child and each parent, and parental concerns. The last post covered the child-related factors. Now we’ll cover the factors in the other two areas the the judge must consider.

The Parent-Child Relationships

• The nature, quality, extent of involvement, and duration of the child's relationship with each parent, and with siblings, half-siblings, and other significant people in the child's life. How involved has each parent been in the child's life? For how long? What activities do they do together? What's the child's relationship with step brothers and sisters and brothers and sisters?
• The feasibility of preserving the relationship between the objecting parent and the child through substitute arrangements that consider “how” the contact, access, visitation, and time-sharing will actually operate. Do the parents have computer technology like webcams? Is the child old enough to travel alone? Is the schedule realistic for the child's age?
• The financial circumstances of the parents as they relate to the increased travel costs and other technology costs related to contact. Can the parents afford the new travel plans?
• Whether the new visitation plan is sufficient to encourage a continuing meaningful relationship between the child and the objecting parent. Is the plan feasible? Does it provide approximately the same number of days? Is it possible that for this family, longer periods of visits can maintain the same quality of parent-child relationship?
• The likelihood that the moving parent will comply with the new visitation arrangements once he or she is out of the court’s jurisdiction. Is there a history of contempt orders entered against the one who wants to move? What is the likelihood that the cost will continue to be affordable for these parents?

Parental Concerns

• The reasons for seeking or opposing the relocation. Does the objecting parent exercise the visitation in the order or even more? Does the parent asking to move have a legitimate reason for the request?
• The current job and financial situation of each parent.
• Whether the proposed move is necessary to improve the economic circumstances of the parent seeking to move the child. As the economy and affordable housing in Florida decline, this may become a stronger reason for moving.
• Whether the relocation is sought in good faith. Is there a legitimate reason for the move? Does the requesting parent have a history of trying to avoid visitation between the child and the other parent?
  
• The extent the objecting parent has fulfilled his or her financial obligations in the case, including child support, alimony, and marital property and marital debt obligations. Again, are there sour grapes between the parents?
• The career and other opportunities available to the objecting parent if the relocation occurs
• A history of substance abuse or domestic violence as defined in s. 741.28 or s. 39.806(1)(d) by either parent. For this factor, the judge will also look at the severity of that conduct and the failure or success of any attempts at rehabilitation.

With Florida's strong policy of involving both parents, the judge will look carefully at the past conduct of each parent. Is there a history of consistent visitation that involves special parent-child activities or was there a new-found interest in the child once the request to move was made? Does the parent who wants to move have a history of trying to avoid contact between the other parent and the child? Are there financial circumstances that make the move financially necessary? The most important factor will be the impact on the meaningfulness of the contact between the objecting parent and the child., especially when there has been consistent contact in the past.

For any custodial parent who wants to move more than 50 miles away from where s/he was at the time of the last custody order, there needs to be a written agreement, notice and no objection or a trial about whether the move is in the best interest of the child. A parent who moves a child without following the new procedures can face stiff penalties, so you'll want to follow the procedures if you want to move your child.

How Will the Move Affect Your Child?

If a parent objects to a child relocation in Florida, the law lists eleven specific factors for the judge to consider. Even if the judge allowed a temporary move while the case was pending, that will not affect the final decision. The judge has to evaluate all the factors again at the time of trial.


The eleven factors cover three different aspects:

1. Child-related factors
2. The relationship between the child and each parent,
3. Parental concerns.

In this post you will find the child-related factors. The parental concerns and parent-child relationships will follow in the next post.

Warning: These two posts will include more than 11 points because some of the factors cover several points. Each point will be listed separately so that you can better understand exactly what will be considered by the judge.

Child-Related Factors

• The child’s age and developmental stage. Younger children need more frequent contact.
• The needs of the child. Any special circumstances or needs of the child that should be considered.
• The likely impact of the relocation on the child's physical, educational, and emotional development, taking into consideration any special needs of the child. Will there be any detriment to the child in these areas as a result of the move?
• The child's preference, taking into consideration the age and maturity of the child. Keep in mind that while a preference may be expressed from around the age of 10 to 12, the judge will not allow the child to testify unless there is good cause and the child is at least 16 years old.
• Whether the relocation will enhance the general quality of life for both the parent seeking the relocation and the child, including financial or emotional benefits or educational opportunities. Considerations such as quality of schools and neighborhoods are child-related focus of this factor, while employment opportunities are the focus of the parent-related part of this factor.
• Any other factor affecting the best interest of the child or as set forth in s. 61.13.

These child-related factors are straightforward, except the catch-all “any other factor” point. You will have to review the general custody factors again to see if any might apply to your situation.

The next post will contain the parent-child relationship and parental concerns factors that the judge must consider in deciding whether to permit relocation under Florida's new law.

Objecting to a Move - 3 Important Points

Florida’s child relocation law has requirements for parents who want to move their child more than 50 miles away. If you have received a Notice of Intent to Relocate for your child, you need to take action if you object to the planned move.

If you don’t object within 30 days, the judge will ratify the plan contained in the Notice of Intent to Relocate, including the new visitation and transportation arrangements and child support. With a relocation, child support can be changed and can consider the increased transportation costs.

The three most important points about objections are:

1. It objection must be served on the custodial parent within 30 days after you receive the Notice of Intent to Relocate. Send the original. Although regular mail is acceptable, at a minimum you should request the delivery confirmation service. If you cannot prove your objection was delivered, the judge may sign an order ratifying the intended relocation and you will have to spend time and money trying to unravel the whole mess.
2. Your objection must have specific facts about your reasons for objecting, including a statement of the amount you participate currently, or have participated, in your child’s life. You want to describe all your visitation and activities fully. Since the law requires “meaningful” contact with both parents, you’ll want to describe how the proposal lessens the quality of your contact with the child.
3. The objection must be notarized or signed under penalty of perjury.

If you fail to object on time, it will be presumed the move is in the best interest of the child, and it will be allowed, unless there is “good cause.” The judge will sign an order, with a copy of the Notice of Intent to Relocate attached. The order will say it is entered as a result of the failure to object, and adopt the visitation schedule and transportation arrangements in the Notice.

If you object on time, the parent who want to move has to file a motion for permission to move before they can move.

10 Things to Include in Your Relocation Notice

The Florida child relocation law requires a primary residential parent who wants to move a child more than 50 miles notify the non-custodial parent of a proposed relocation by sending a Notice of Intent to Relocate.

Your Notice of Intent to Relocate must be sent to the other parent before you move.

The Notice has specific requirements. It must include:

1. A description of the intended new residence - include the state, city, and specific physical address, if you already know it.

If the residential parent is entitled to a public records exemption of his or her address (police, foster parents and certain other public employees), the court has to order modification of the disclosure requirements of this section, so that confidentiality is maintained. One suggested way of handling this is to put the exempt information on a separate sheet of paper. On the Notice, say that the information is provided on a separate sheet and is exempt by Florida law. Provide the Notice and the extra sheet to the other parent, but only file the Notice.

2. The mailing address of the new residence, if not the same as the physical address, if you already know it.

3. The home telephone number of the new residence, if you already know it.

4. The date you intend to move.

5. A detailed statement of the specific reasons for the move. If one of the reasons is based upon a written job offer, the offer must be attached to the Notice.

6. A proposal for the revised schedule of visitation and for the new transportation arrangements. If you don’t include this part, the court can dismiss your request. If there is a current, valid order abating, terminating, or restricting visitation, failure to comply with this provision will not cause dismissal. That’s also true if you have another “good cause” reason before you want to move. In either of these cases, the judge will still want to know your plan for future visitation if it is ordered.

You can also change the child support to consider the increased transportation costs. If you want to do this, you need to explain exactly how you arrived at the new child support amount. The court needs to be sure that the children are adequately supported. Reducing the child support more than 5% from the amount in the guidelines has to be clearly explained.

7. This statement in capital letters:

AN OBJECTION TO THE PROPOSED RELOCATION MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 30 DAYS AFTER SERVICE OF THIS NOTICE OF INTENT TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.

8. Your mailing address - where you will receive the objection, if one is filed.

9. A certificate of service showing how and when you gave the Notice to the non-custodial parent.

10. You must sign the Notice of Intent to Relocate under oath and under penalty of perjury and send a copy of it to the non-custodial parent in accordance with the certificate of service. If there is no pending case, you must send the Notice by certified mail, returned receipt and restricted delivery or have a process server or the Sheriff’s office personally serve the Notice on the other parent. The original is not filed with the clerk yet.

You have a duty to update the information you give in the Notice of Intent as it changes. So if you find an apartment in the new location, you need to provide that address as a Supplemental Notice. Remember you can send papers by mail after the first paper is served personally, so the Supplemental Notice can be sent by mail.

The non-custodial parent then has 30 days to object to the relocation. If no objection is filed, you have to file a motion and ask the court to ratify the relocation. The motion has to be personally served on the other parent. The court will ratify the plan according to what is in your Notice of Intent to Relocate, including the visitation and transportation schedules and child support. No hearing is required.

If you receive an objection to the Notice from the other parent, you have to file a motion for permission to relocate and attach the Notice of Intent, including the certificate of service. The court will schedule a priority hearing.

At that hearing, you will have to show that, more likely than not, the relocation is in the best interest of the child. The judge will look at it from the child’s perspective, not the best interest of the parent. If the judge initially finds that the move is in the child’s best interest, the non-relocating parent then has a chance to prove that the relocation is not truly in the child’s best interest.

After you provide the Notice and receive an objection, the court can enter a temporary order permitting the relocation if:

1. The required Notice of Intent to Relocate was provided on a time; and

2. The court finds preliminary evidence that there’s a likelihood the court will approve the relocation based on certain factors at the final hearing,

But, the court may not consider the temporary relocation as a factor in reaching its final decision. Before you ask for a temporary order, consider whether you want to move with the possibility than you may be ordered to return. Also consider whether you want to have two hearings before you ask for a Temporary Relocation Order.

5 Reasons to Follow the Child Relocation Procedure

Moving your child without following the Florida Statutes’ child relocation procedures can cause severe problems for the custodial parent who wants to move more than 50 miles from the non-custodial parent. Whether you are in the divorce/ paternity phase of your case or already have a court order about the kids, the court has authority over you. There are five good reasons to follow the new child relocation procedures.

First, you can be held in contempt of court if you don’t follow the rules. Contempt means you did not obey a court order. A contempt order is serious. Once you are found in contempt of court, the judge can order you to jail. If that happens, you will first have the opportunity to “purge” or comply with the original order. Most likely, that means returning the child to your original location. Part of the procedure is to make new timesharing arrangements. You have to prove to the judge that you will follow through on those arrangements. If you are in contempt for not following the court’s rules, the judge may be less likely to believe your testimony.

Second, if you fail to follow the procedure before moving your children, the judge can consider your violation when deciding whether or not you can move the kids. If you’ve been found in contempt because you didn’t follow the rules, the judge may not believe your promises of continued meaningful contact between your children and their non-custodial parent. Remember Florida’s strong policy for involving both parents.

Third, the judge will also consider your failure to follow the procedure if the non-custodial parent files a petition to modify custody because you want to move away. Consistency and continuity are important for children, so the non-custodial parent may claim it’s in your children’s best interest to stay in the same area, with you having timesharing on holidays and in the summers.

Fourth, if you did not follow the relocation procedures, you may have to pay the other side’s reasonable expenses and attorney's fees. You may also have to pay interim travel expenses for visitation or post security for the return of the child. You may also have to provide reasonable security to guarantee that you will not interfere or interrupt the other parent’s court-ordered contact with the child.

Fifth, the court may even enter a temporary order prohibiting you from moving the children or requiring you to return them if you already moved, if the court finds:

1. The required notice was not provided on time;
2. The children have already been relocated without notice or written agreement or court approval; or
3. The court finds preliminary evidence that there’s a likelihood it will not approve the relocation at the final hearing.

Next time we’ll focus on the Notice of Proposed Relocation.

Child Relocation Agreements

Revisions to the Florida divorce laws made relocating your children more complicated last year. Even if both parents agree to the relocation, there are new requirements for written agreements.

The agreement has to reflect the non-custodial parent’s agreement to the move and what the new timesharing arrangements will be. The law also allows internet and webcam contact between the child and the parent who is not moving. If that parent has alternate weekend time from after school on Friday until Monday morning and alternating holidays, alternate timesharing could include the whole summer and spring break every year. The number of days works out to be about the same. Remember, any agreement you make will be in effect until there is a substantial, unforeseen change of circumstances.

In addition to the new schedule, transportation arrangements need to be spelled out in the written agreement. Who is going to pay for the transportation? How will the child be transported? With out-of-state moves, remember that many airlines have rules about children traveling alone and the rules vary by airline. Most require an escort and charge a fee. Who will pay the escort fee? What if the child is too young to travel alone? Who will pay the extra adult airfares that are needed?

Some other things to consider include: Will child support be adjusted to offset the increased cost of visits? Will the offset vary child support more than 5% from the Child Support Guidelines? You’ll need more financial specifics in your agreement about why you’re adjusting child support if the new amount varies more than 5% from the Guidelines. If there is an Income Deduction Order in place, you will need to submit a new one if the child support amount changes.

Once you write the agreement and sign it, you will need to have the court ratify it. There will not be a “trial” type hearing unless it’s requested, in writing, by one of you within 10 days after the date the agreement is filed with the court. If a hearing isn’t requested, the court can ratify the agreement without a “trial” type hearing and then you can relocate with your child.

Next time, we’ll talk about the Notice of Intent to Relocate.

7 Things You Must Know About Relocating Your Child

One. Unless your custody order has language that spells out how future moves will be decided, Florida Statute 61.13001 now requires you to follow a specific procedure if you want to move your child more than 50 miles away from where you lived when the order was originally entered.

Two. Even if you are both in agreement with the move, there are new requirements.

Three. If you move without following the new procedure, you may be held in contempt of court and that’s only the beginning. If you don’t follow the new procedure, your violation can be used against you in court. It can be a reason to change custody. It can also be a reason for the judge to order you to pay the other parent’s attorney’s fees and costs. And the judge can order you to pay all the child’s travel expenses for visitation while the case is pending. The judge can even order you to return the child to the area permanently. These may seem like severe sanctions, but Florida has a strong policy that both parents encourage parents to “share the rights and responsibilities, and joys of childrearing.”

Four. The new statute spells out exactly what information you need to provide to the other parent, when you have to give it, and how you provide the information in a Notice of Intent to Relocate to the other parent.

Five. The other parent has 30 days to object to the move. Like the Notice, the objection has to contain specific information and be provided to the custodial parent in a certain way. If there is no objection in 30 days, the custodial parent can file the Notice with the court and the court will enter an order approving the relocation plan contained in the Notice.

Six. If there is an objection, the custodial parent has to ask the court for permission to move. The court will have a hearing to determine if it’s in the child’s best interest to move. The hearing gets priority on the judge’s schedule. At the hearing, the judge will consider ten factors about the relocation, along with any of the usual “best interest” child custody factors of Florida Statute 61.13.

Seven. The court will enter an order for time-sharing that can include telephone, Internet, and webcam contact, and any other arrangements so the child has frequent, continuing, and meaningful contact the other parent. The order can adjust child support and account for the increased transportation costs, but still has to consider the Child Support Guidelines.

Over the next week, we’ll look more closely at Florida law’s new requirements for relocating children. Maybe you can go back to Kansas, Dorothy.