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Select a Frequently Asked Question:
What is involved in starting the process
for a divorce or dissolution? How are Custody
and Visitation issues decided? How can a parent
remedy the interference of visitation rights? How
can I become the primary residential parent and change the current
custody arrangement? What is Child Support used
for? My Ex has threatened to file bankruptcy.
What effect does bankruptcy have on child support? How can I protect myself prior to marriage? What happens if a court renders a decision I think is wrong?
What happens when my loved one becomes incapable of
making basic life decisions? How can I adopt a
child? Conclusion Disclaimer
What is involved in starting the process for a
divorce or dissolution?
The first step would be the filing of a properly executed
petition with the appropriate court. The court must have what is
called subject-matter jurisdiction which would entail satisfying the
requirements of residency within the state and county dictated by the
statute. Florida’s
residency requirement for divorce is six months.
Divorce
A divorce is a method of terminating a marriage contract between
two individuals. From a legal standpoint, divorce gives each person
the legal right to marry someone else. It also legally divides the
couple's assets and debts, and determines the care and custody of
their children.
In Florida,
you do not need to prove fault, commonly referred to as
"grounds," to be able to obtain a divorce. In Florida either
party may obtain a divorce, even if the other party does not consent
to the divorce. However, a spouse’s conduct during marriage may have
consequences in deciding child custody, distribution of assets, or
alimony.
The primary issues to be decided during a divorce are alimony or
spousal support, property division, and, if there are children, child
custody, visitation, and child support. When spouses agree, they can
usually obtain a divorce quickly. More typically, divorcing spouses
have disputes regarding their assets, debts and the care and custody
of their children.
Florida
uses an equitable distribution system to divide marital property and
debt. Equitable Distribution divides property after consideration of
a number of elements in a manner the courts deem to be fair given the
particular situation. Any award of alimony, or ongoing financial
support from one spouse to the other is made in conjunction with the
distribution of property. Property division and alimony are often
hotly contested and the early advice of a qualified family law
attorney can greatly impact the ultimate result.
Top How are
Custody and Visitation issues decided?
Child Custody & Visitation
The care and upbringing of children following divorce is often
an ongoing source of conflict for divorcing parents. Custody must
address both physical residence, defined as the parent who the child
primarily lives with and parental responsibility defined as the legal
rights and responsibilities associated with the child's upbringing.
Divorcing couples often tackle custody and visitation issues as soon
as they separate. Courts generally honor any custody agreements
divorcing parents reach regarding their children. However, all
agreements must be in writing and filed with the court to protect
your parental rights of visitation and support.
When divorcing couples cannot agree on custody or visitation,
the court determines one for them. The courts attempt to place the
children’s primary residence where it is most practical and where
they will flourish best. In Florida,
the court determines custody and visitation after considering what
arrangement will serve the best interests of the child. Courts often
use custody evaluations performed by an outside expert to help them
reach such a determination. Generally a court will grant reasonable
visitation rights to a parent unless it is shown that the visitation
will be detrimental to the best interests of the child.
In cases of contested dissolutions, a qualified attorney may
request the court order psychological evaluations in child custody
cases to assist the court in deciding child custody and visitation.
The court may order a psychological evaluation by a qualified forensic
psychologist. A so-called "Forensic Evaluation" is
different from ordinary therapy. A forensic psychologist is one with
specialized training or expertise at evaluating the psychological
make-up of the parties, and informing the court. Therapists, who
provide counseling and treatment, are seldom used in this role.
Psychological testing is composed of interviews and testing, to
determine the personalities and interpersonal history leading to the
break-up. The court is not bound by a psychologist's recommendations.
Nevertheless, some courts accept the psychologist's recommendations
without question—unless you take the time, and make the effort to
question the psychologist's findings.
Forensic Evaluators are not finders of fact, but consultants
appointed to help the court understand the issues to be decided. The
ultimate decision is the court's responsibility, which cannot be
delegated. The Schwartz Law Group, P.A., routinely uses psychological
evaluations in contested cases in an effort to protect our client and
determine the best parent to maintain primary residence of the child.
How can a parent remedy the interference of visitation rights?
Top
How can a parent remedy the interference of visitation rights?
A variety of remedies are available to provide relief to the
non-custodial parent who has had their visitation rights interfered
with. The non-custodial parent can commence an action to show cause
concerning contempt for violating the court’s order regarding
visitation.
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How can I become the primary residential parent and change the
current custody arrangement? Modification of Child Custody?
Child custody may be modified by showing a "substantial
change of circumstance" in the current custody arrangement.
While every case is unique, common "substantial changes of
circumstances" warranting a modification of child custody are
physical and/or emotional abuse, drug or alcohol abuse, or mental
illness on the part of either parent. It is important to remember
that any change in custody will effect a change in child support.
Child Support
Biological parents must financially support their children. That
obligation usually lasts until the child reaches "the age of
majority" (in Florida
the latter of 18 or graduation of high school by 19, or becomes
self-supporting.) The responsibility to provide support in the form
of regular payments generally arises when one parent has primary
residential responsibility of the child. An order for child support
may be entered during or after a divorce. Either parent may be
ordered to pay support depending upon how residential responsibility
is arranged. An unmarried mother may also file a petition for child
support in family court and an order for support will be entered once
paternity has been established.
In Florida, the amount of
support is set after the needs of the child and the parent's income
are assessed through the use of Florida’s guidelines. The paying
parent must regularly make the ordered payments. Failure to remain
current with child support obligations exposes the paying parent to
significant penalties. The family court has the power to suspend
professional or business licenses, take away driver's and
recreational licenses, require payment of future owed sums in advance
or place non-paying parents in jail when child support obligations
are overdue.
Once support has been ordered, both parents have the right to
request changes. Paying parents face a difficult time when making a
request support be reduced. Even if a paying parent's current income
is insufficient to meet their support obligations, a court may impute
a higher earning capacity to them and order support based on that
higher earning power. Because of the specific requirements involved
in child support, parents can benefit from the advice and involvement
of an experienced family law attorney when child support issues
arise.
Top What is
Child Support used for?
Child support covers everything a child needs, and even more,
during the growth and formative years. A parent’s first and principal
obligation is to support his or her minor children according to the
parent’s circumstances and station in life. Children should share in
the standard of living of both parents. Thus, the amount of a child
support award is more than a question of bare necessities.
If the child has a wealthy parent, that child is entitled to,
and therefore needs something more than the bare necessities of life.
Where the supporting parent enjoys a lifestyle that far exceeds the
custodial parent’s living standard, child support must to some degree
reflect that more opulent lifestyle. This is so even though, as a
practical matter, the child support payments will incidentally
benefit others in the custodial household whom the payor parent has no obligation to support (e.g.,
custodial parent owed no spousal support, adult children, or children
from custodial parent’s other relationships).
Children should share in the standard of living of both parents.
Child support may therefore appropriately improve the standard of
living of the custodial household to improve the lives of the
children. Children are entitled to share in non-custodial parent’s
elevated standard of living despite custodial parent’s substantially
lower income.
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My Ex Has Threatened To File Bankruptcy. What Effect Does
Bankruptcy Have On Child Support?
Filing for bankruptcy protection does not allow your ex to
discharge past due child support obligations. Any back payments owed
for child support cannot be discharged in a bankruptcy proceeding.
Mediation
In Florida, most courts will require parties to a dissolution to
participate in mandatory mediation. Mediation is an alternative
dispute resolution process where divorcing couples work with a
specially trained neutral third party to try and resolve some or all
of their disagreements. If mediation is unsuccessful, the case will
proceed to trial and the court will determine all outstanding issues.
Top How can I
protect myself prior to marriage?
Marriage Planning
Marriage planning is the newest, most innovative and exciting
area of family law today. Each year, more engaged couples seek out
experts who can help them structure their lives for marriage. Engaged
couples want to know how to own and hold property, how to manage
joint incomes, how to maximize pension and retirement benefits, how
to handle inheritances, and what causes separate property to become
community property after marriage. Many explore the pros and cons of
premarital agreements. Beyond education, the goal is to allay fears,
open communications, allow engaged couples to explore possible
alternative futures, and, ultimately, help them bring their lives in
line with their dreams.
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What happens if a court renders a decision I think is
wrong?
Family Law Appeals
We are available to present or defend any reasonable challenge
to trial court rulings. Appeals are seldom won on the basis of an
inaccurate finding of fact. Instead, appellate courts usually apply
the facts in a light most suited to support the ruling made by the
trial court. To win on appeal, one must ordinarily find an error in
the trial court's application of law or procedure.
We frequently consult with individuals who disagree with a
ruling made by the court. If the trial court appears to have erred,
then we will help focus your thinking to identify whether a
reversible error has occurred.
Time is of the essence—there are very strict timelines that must
be followed to have your matter reviewed by a court of appeals.
Although it is unusual for unrepresented parties to succeed at
appeals, it can happen if a prejudicial error is found in the trial
court's record. We are pleased to help individuals analyze whether your
family law ruling could be challenged.
We can also help if you have received a notice of appeal, or
other proceedings brought in opposition to an order made by the trial
court.
Top What
happens when my loved one becomes incapable of making basic life
decisions?
Guardianship
A guardianship is a legal arrangement in which an adult has the
court ordered authority and responsibility to care for a child
(someone under 18) or an incapacitated adult. Guardianship is sought
to protect the physical and financial aspects of an individual’s
life. A guardianship may be necessary if an individual is unable to
make basic decisions regarding everyday activities. Such activities
include managing finances, managing medical care, decisions on living
arrangements, voting, deciding to marry, driving, owning firearms,
and a variety of everyday decisions necessary to function in society.
The process is started by filing guardianship papers in court. A
court investigator will then interview you for fitness, and the
individual to determine incapacity. The evaluators will make
recommendations regarding the case to the judge. The judge will then
review the case and decide whether to appoint you as the guardian,
after a hearing. The court must find the appointment is in the best
interests of the individual. In certain instances, the court may
appoint the petitioner or another person as guardian of the
individual during the investigation period if it is in the
individual’s best interest.
Typically, a guardian takes care of the individual’s personal
needs, including shelter, financial management, and medical care.
Once a permanent guardianship has been established, the court will
review the guardianship annually to determine if the guardianship
remains necessary.
Even if a guardianship remains in force, a guardian may step
down from his or her role with permission from the court. In that
case, a judge will appoint a replacement guardian.
Due to the extensive amount of documents that must be prepared
and served on all parties, in addition to the strict filing
procedures to complete a guardianship, attorney representation is
highly recommended.
Top How can I
adopt a child?
Adoption
Adoption is the legal procedure that allows a family to make a
child who is not biologically their own part of their family. Every
adoption, whether foreign or domestic, requires the action and
approval of a court to become final.
Florida
has its own policies and procedures controlling child adoption. Florida has
measures in place to assess the fitness of the adopting parents. Upon
adoption, adopted children generally receive all the benefits
afforded to natural children and parents owe adopted children all the
legal duties of care and support owed to a natural or birth child of
the marriage.
Adoption relieves birth parents of the financial
responsibilities they owe their children. In the past, adoption also
meant birth parents relinquished the child forever without the
privilege of seeing the child or being otherwise involved in the
child's life. However, particularly in domestic adoptions, policies
have changed and birth parents sometimes now are allowed open
adoptions where they maintain contact with their children after
adoption becomes final.
Our law firm offers adoption-related services and can help both
adoptive and birth parents throughout all phases of the adoption
process.
Top Conclusion
Family relations create a host of legal consequences. Whether
you are contemplating marriage or divorce, or are considering
adoption, an experienced family law attorney can explain the laws
that apply to your particular situation and help you understand their
effect so you may make the best choices for you and your family.
At The Schwartz Law Group, P.A., we consider ourselves to be
true partners with our clients and their families, looking out for
their legal needs in every way. We value the trust and confidence our
clients place in us, trusting us to represent their families’ best
interests. At our firm, we are committed to providing personal
service to each client. When you call on us, you speak directly with
your lawyer, not to a paralegal or other staff member. We can handle
all of your family’s needs by focusing on the issues in your particular
case.
Divorce, custody battles, property division and other legal
matters related to marriage dissolution can have serious legal and
emotional implications. When you are dealing with a family
separation, it is important to work with a lawyer who understands
both the legal and the emotional needs of the client.
Top Disclaimer
Our website is no substitute for legal advice. Our writings may
or may not apply to your situation. Legal advice means advising you
how to conduct your affairs to accomplish a particular purpose. An
attorney/client relationship is only established if you contact us,
enter into a written agreement for representation, and pay a retainer
fee. We cannot accept responsibility for actions taken in reliance
upon information described in this website.
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