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.