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.

Don't Invite Identity Theft in Your Florida Divorce Court File

Every Florida divorce requires financial information be exchanged by the parties. At a minimum, the court file will have a Financial Affidavit from both of you. One of the most common mistakes DIYers make is to provide too much information in their Financial Affidavits and Mandatory Disclosure. Remember, court records are open to the public in Florida. Don't invite identity theft by filing papers with your confidential information on them.

With the exception of the required Notice of Social Security Number if you have kids, never file any paper that has your confidential information on it with the Clerk. The law says the SSN notices are not open to the public, so anyone looking at your court file will not be able to see that notice. The rest of your file can be seen by anyone who asks to see it.

Florida's Sunshine law allows anyone to look at court records, take notes, even ask for copies from your file. Even if your complete information is not on one page, by looking through a DIYer divorce court file it's possible to piece together enough information about you to steal your identity.

Here's what you can do to avoid identity theft in your Florida divorce:

On your Financial Affidavit, list your accounts with only the last four digits of your account number. Do not provide pay stubs or other papers with your Social Security number still visible. I personally use a Sharpie black permanent marker to black out SSNs and account numbers. Even though it bleeds through the page, it does the best job of blocking the information. Even better is to use the black marker and then copy the document. This eliminates the possibility of reading through the back of the document.

For Mandatory Disclosure, Rule 12.285 only requires that the Certificate of Compliance is filed with the Clerk. The form Certificate allows you to check off the items you provide to the other side. This is another example where adding information to the "official" form is good. List the documents you provide and include the month and year of each document on the Certificate of Compliance. For example, on the certificate you would type "Sun Trust checking #3456 12/07, 1/08, 2/08" for your checking account.

You have to give copies of your financial account statements to your spouse and you are entitled to copies of theirs, but only the Certificate of Compliance is filed in the court file. For any non-joint accounts, you'll want to follow the black marker method when giving copies of your Mandatory Disclosure.

If you realize that this information is already in your court file, request that it be removed by the Clerk. At minimum, the clerk will need a list of the specific information you want removed and the case number. Some Clerks have a form for this request. Contact your local Clerk for more information on local procedures.

Using the Florida Divorce Forms

The Florida Divorce forms offered on the Florida Supreme Court website can be used by do-it-yourselfers, but the forms are only a starting point. You will have to add information to some of the basic forms so they clearly give the facts of your case. If your case is contested, this becomes even more important. If you don’t ask for it, the court can’t give it to you.

So if you want to

• stay in the house to raise the kids, you have to ask for exclusive use and possession of the marital home;
• restore your maiden name, you have to ask for it and state your former name in the petition;
• sell the marital home, you have to ask for partition of the property and provide specific information about the legal description, the owners, the mortgage, etc.

The sample forms cover only the most basic requirements to dissolve your marriage. If you make mistakes or leave out facts in the petition, the final judgment may be affected and you could wind up spending thousands of dollars for attorney’s fees to fix your pro se divorce.

Florida Divorce Law: Non-Marital Assets: What's Mine is Mine

Non-marital assets and liabilities belong only to one of you and aren’t divided in the Equitable Distribution process. An asset is real or personal property. A liability is a loan or promissory note. Most everything you bought or borrowed during your marriage will be considered a marital asset liability, but there are five categories of assets/liabilities that are non-marital under Florida law.

Those non-marital categories are:

1. Assets or liabilities acquired before the marriage
2. Inheritances and other gifts during the marriage
3. Any income received from non-marital gifts unless you relied on or treated that income as a marital asset.
4. Assets defined as non-marital in a written agreement (pre or post nuptial agreement)
5. A liability obtained by forgery of one spouse’s name by the other spouse. The forging spouse gets that liability, if the other has specific proof.

In considering Equitable Distribution, a court will only consider “marital” assets and liabilities. Non-marital assets come into play primarily with alimony determinations.

When you have non-marital assets/liabilities but mix them with marital assets, by depositing your inheritance check into a joint marital account for example, you may have “co-mingled” these assets so that they aren’t considered non-marital anymore. This area can be a minefield and you will most likely want some professional advice if the two of you can’t decide on a fair way to divide co-mingled property.

Florida Divorce: Equitable Distribution/Property Division

“Equitable Distribution,” Florida’s property division process, starts with a 50/50 split but in some situations, an equal split may not be fair or equitable. For example, one of you may decide to take more of the assets along with the loans on those assets because you can afford to do so. Unequal splits are unusual when cases go to trial. Florida courts have ordered unequal splits when

• One spouse is disabled and the other is employed
• One spouse is needed to care for a disabled child
• One spouse spoke little English, had no formal education and never worked
• One spouse hasn’t worked for years, the other is nearing retirement

As you can see, the situations for unequal distribution are not the typical situation. Florida law starts with a 50/50 split of assets and debts. For most couples, that even split will apply.

If your case goes to trial, Florida Statute 61.075 directs the judge to consider these factors in deciding what is “equitable” or fair when making the division for you:

• Contribution to marriage by each spouse, including homemaking
• Economic circumstances of parties
• Duration of marriage
• Interruption in career or education of either spouse
• Contribution to career or education of one spouse by the other spouse
• Keeping an income-producing asset intact & free from interference, like a family business run primarily by one spouse
• Each spouse’s contribution to acquisition, enhancement, production of income, assets, and/or liabilities
• Whether it is in minor child’s best interest to keep the marital home until child turns 18 & if financially feasible
• Intentional dissipation, waste, depletion, or destruction of marital assets after or within a 2 year period before filing Petition
• Any other factor necessary to do equity and justice between the parties

The Marital Settlement Agreement

If you are dividing only personal property, a simple statement that you have already divided the personal property is enough in either the Petition or the Marital Settlement Agreement.

If you own real property, have credit card debt or other recorded loans, have any joint property, you need to list all your property and all your debts with some identifying information for them in the MSA. With concerns over identity theft, show only the last 4 digits of your loan and account numbers in the Agreement. For the real property, give the address and the complete legal description from your deed on a sheet labeled with your name and case number, if you have one already, attached to the Marital Settlement Agreement.

Uncontested Divorce Procedures

You can file an "uncontested" divorce if you and your spouse agree:

• Your marriage is broken and you want a divorce
• How your property and debts will be divided
• Whether alimony will be paid, and if yes, how long and how much

and if you have children, you agree on:

• Who the children will primarily live with
• What the visitation plan is
• How much child support will be paid (after consulting the child support guidelines)

You can write all the terms of your agreement into a Marital Settlement Agreement, you both sign it and file it with a Petition for Dissolution of Marriage and other required initial documents. Your spouse then files a Waiver of Service and Answer. After that, your case can be set for final hearing.

In the Petition, you must claim that the marriage is “irretrievably broken,” that one of you has lived in Florida for at least six months before filing the Petition; and, that you both signed a Marital Settlement Agreement.

• If you have children, you will use Form 901(b)(1).
  
• If you have property but no kids, use Form 901(b)(2).
  
• If you can't use the Simplified procedure and have no property or kids, use Form 901(b)(3).
  

Next time I'll talk more about marital property.

DIYDivorce Makes the Watch List!

DIYDivorce blog has made the Watch List on the Florida Lawyers Blog Watch website. The guys over there keep track of law blogs in Florida. The blogs cover all areas of Florida law, so if you are interested in other areas of law, check out some of the blogs they're watching.

Enforcing Delayed Income Deduction Orders

The law requires an Income Deduction Order when payment of child support is ordered. An IDO requires the paying parent's employer to deduct child support from earnings and forward it to the state, which in turn forwards to the receiving parent.

Sometimes the IDO has a delayed effective date. Most commonly, the IDO says it will be effective if the paying parent falls behind in support payments for a certain number of days.

Unless the Florida Department of Revenue is assisting in child support enforcement, it is up to the receiving parent to enforce the delayed IDO. Although from reading a delayed IDO, it seems that all you must do send the IDO to the paying parent's employer, you must FIRST file a Notice of Delinquency before the delayed IDO can be enforced.

So, if the paying parent falls behind, the receiving parent files a notice indicating when the money was due and the amount of delinquency. Send a copy of the notice to the paying parent. The paying parent can then dispute the delinquency within 15 days by filing an objection.

A hearing will be set if the delinquency is disputed. If there is no dispute filed by the paying parent, the receiving parent sends the IDO by certified mail to the paying parent's employer who must then deduct the support payments according to the IDO.

Remember, you need to file a notice of delinquency before you can file a motion for enforcement.

Remaining Calm

Over on the Zen Habits blog, there is an article on Remaining Calm in a Crazy World. Although written more with a workplace focus, the tips are helpful for divorcing couples too. After all, divorce is a crazy time - even when you both agree. So click here for today's recommended reading.

Are You Eligible for a Simplified Proceeding?

To help people representing themselves in divorces, Florida created the Simplified Dissolution of Marriage proceeding. You can use this type of case if:

You do not have children and the wife is not currently pregnant AND

You have a written agreement to divide your property AND

Both of you sign the petition and appear at court.

If you meet these 3 requirements, you should use the Simplified Petition (Form 901(a)).

The biggest benefit to a simplified proceeding is that you may not have to file Financial Affidavits!

A recent decision from West Palm Beach allowed the parties to waive the Financial Affidavit requirement in a written agreement signed by both parties. In their waiver agreement, the parties said they already divided their property, both believed the division was fair and equitable and that they waived the Financial Affidavit filing requirement. Despite the rule requiring Financial Affidavits be filed, they were able to divorce without them because they agreed to the waiver in writing and filed it with the court.

To read the decision, go to the Opinions link at www.4dca.org and search for case number 4D07-380.

Custody & Divorce

Florida has a strong public policy about children and divorce.

It is the public policy of this state to assure that each minor child has 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.

If you cannot reach agreement about your children, the judge will consider the factors in Florida Statute 61.13(2) [scroll half way down, look below (2)(a)] when deciding which one of you the children will live with after the divorce.

Note that when you look at the factors there are two factors that relate to fostering a relationship between the child and the other parent. THIS IS THE MOST IMPORTANT FACTOR FOR MOST JUDGES WHEN DECIDING CUSTODY CASES. You should talk about how the two of you will encourage the children to go with the other parent when they don't want to. Check the Interesting Perspectives section below for some articles with ideas.

7 Financial Documents You Will Need

Here are seven categories of financial documents that you will need. Start gathering copies of these documents now. You should gather the past 3 years worth unless otherwise noted.

1. Tax Returns Federal and state income tax returns. Use IRS forms W-2, 1099 and/or K-1 for the past year if the income tax return for that year has not been prepared.

2. Pay Stubs Pay stubs or other evidence of income for the past three months.

3. Deeds & Titles The deeds for all real property and titles for vehicles.

4. Bank Accounts Statements from the last 3 months for all checking accounts and from the last 12 months for all other accounts (for example, savings accounts, money market funds, certificates of deposit, etc.).

5. Stock Accounts All brokerage account statements for past 12 months.

6. Retirement Accounts The most recent statement for any profit sharing, retirement, deferred compensation, or pension plan (for example, IRA, 401(k), 403(b), SEP, KEOGH, or other similar account).

7. Insurance Policies The declarations page and the last periodic statement for all life insurance policies and all current health and dental insurance cards covering the couple or their children.

Gathering these documents will not only help you with the required Financial Affidavit, but will serve as a starting point for dividing your property and debt.

Made the Decision? 7 Action Steps

Once you have made the decision to dissolve your marriage (divorce), there are some action steps you should take.

If you and the soon-to-be-ex are taking the DIY route to divorce you should:

• Cancel all joint credit cards - open new individual accounts


• Cancel Direct Deposit if you have it and unlink bank accounts if linked online


• Split the money in joint accounts and each open separate, individual accounts


• Change all passwords - email, ATM, websites - and don't use the same old ones!


• Monitor your credit report to be sure the accounts are closed


• Start a folder to collect monthly bills in one place - this makes the Financial Affidavit easier


• Decide how the household bills will be paid during the divorce process

You can use this online estimator for child support. Although not precise, it will give you an idea of what the child support payment will be so you can make a budget.

Florida Court Websites

Each of the 20 circuit courts in Florida has a website where you can learn
more about the procedures and local rules. Click on the title to this post
for a complete list.

8 Documents You Need to File for Divorce in Florida

Almost 100,000 people represented themselves in Florida divorce courts in 2007. I've seen those who represent themselves turned away from the Clerk of Court because they didn't have all the necessary documents to file the case.

To file the case, you need at least six documents. If you have children, you will need eight documents.

These are the documents you need to have to file your case on your own:

1. Civil cover sheet [Note: You may need to change the circuit # at the top]
2. Notice of Related Case
3. Petition for Dissolution of Marriage
4. Financial affidavit
5. Affidavit of Corroborating Witness
6. Summons

With minor children, you also will need:

7. Child Support Guidelines Worksheet
8. Notice of Social Security number

Don't be turned away. Avoid needless delay and have all the documents for the Clerk of Court.