Family Law and how it affects you

Family Law encompasses many areas of your life.  Here at Figueroa Law Group, our experienced, compassionate and results-oriented staff are committed to helping you navigate and resolve the oft-times complex issues of family law. We handle all aspects of Florida family law including:

• Divorce/Military Divorce
• Marital Settlement Agreements, Prenuptial and Postnuptial Agreements
• Equitable Distribution of Assets and Liabilities
• Alimony
• Time Sharing (Child Custody) and Child Support
• Modifications and Parental Relocation
• Domestic Violence Injunctions
• Paternity
• Collaborative Divorce and Mediation
• All Aspects of Adoptions 

One of the most common areas of concern is divorce and the related issues of alimony and child support.  The Florida Bar Association offers some guidelines on these subjects, which we will present in a series of posts on this blog.  Let's first take a look at what constitutes a marriage:

"Getting married is more than just pledging to live together until death (or divorce). It is more than agreeing to live away from your parents with another person. It is more than legal permission to have consensual sexual relations with your partner. Getting married is entering into a serious legal relationship that has many diverse consequences on your ownership of your money and possessions; the way you will raise your children; and the way you will relate to your partner. Because this is a serious legal action, the Florida Legislature requires that all persons getting married receive information about what getting married means. When people talk about what it means to be married and how they will handle their finances, children's issues, religious issues, work decisions and the like BEFORE they get married, they have a far greater ability to remain happily married throughout their lives.

Persons who are considering marriage may enter into a written agreement that will determine the economic issues between them should the marriage not survive or should one of them die. Generally, such "prenuptial agreements" may create a special contract between the parties that, if properly entered into after full disclosure of financial information by both parties and without undue pressure being applied by one party against the other, can structure the financial aspects of the parties’ divorce. Although a party cannot agree not to receive child support, and cannot contract away temporary financial support during the pendency of an action, you and your spouse can agree, before you get married, to specific distribution plans for assets and liabilities and for specific spousal support (alimony) if the marriage does not work out. A lawyer who handles family law matters can discuss this with you and help you reach these types of agreements. Even after a divorce, if things change, most types of alimony, child support, and parental responsibility issues may be modified by later court proceedings."   

Reprinted from the Family Law Handbook by the FL Bar Assoc.

Next, we'll look at the Economic Issues of marriage.

The Economic Issues of Marriage

As in any partnership, business or personal, there are both assets and liabilities -- what you own and what you owe.  First, we'll look at Assets -- What You Own.

"In most cases, unless there is a written agreement to the contrary, money earned by either you or your spouse during the marriage, assets purchased by either of you, and debts incurred by either of you are considered to be "marital assets and liabilities ." These "marital assets and liabilities" will be true even if an asset is bought in one name alone with the money earned by that person. Title to property alone does not determine distribution.

Any asset owned by a person before he or she gets married that he or she keeps separately titled (e.g., a home) will generally be distributed to that person upon divorce. Such an asset is called non-marital property. However, if that asset has increased in value due to the expenditure of marital funds, or funds of non-owner spouse during the marriage, or if that asset has increased in value due to the work efforts of either partner (even if it is only the work of the one that owned it before), then the increased value may be considered a marital asset that can be distributed to both husband and wife upon divorce.

If either spouse changes into joint names the title to an asset that he or she owned before marriage; or, if the person mixes the asset with marital assets (for example, if the spouse puts his or her house into both names or puts the money that he or she earns into a stock account he or she had before the marriage) then the whole asset may be considered to be a marital asset and may be distributed to both husband and wife upon divorce.

Gifts given by one spouse to the other are marital assets and can and will generally be divided should you divorce. Gifts given by outside persons to one party or the other individually, and not thereafter mixed with marital assets, are not marital property and will generally be awarded to the recipient of the gift upon divorce.

Reprinted from the Family Law Handbook by the FL Bar Assoc.

Now let's look at the Liabilities of Marriage -- What You Owe.

The Division of Assets and Liabilities

In our last post, we examined Assets.  Now, let's look and Liabilities and how the Court will divide up what you own and what you owe.

"LIABILITIES (THE MONEY YOU OWE)
If a person owes a debt prior to the marriage and that debt still exists at the time of the parties’ divorce, the person who owed the debt still will be solely responsible for it unless the other party
has legally agreed to pay the debt during the marriage. Debt incurred by either party during the marriage is generally "marital debt" and can be assigned for payment to either party upon divorce.

HOW THE COURT DIVIDES ASSETS AND LIABILITIES UPON DIVORCE
Unless the husband and wife enter into an agreement that sets out who gets which assets and who gets which liabilities, the circuit court will have a trial after which it will decide who gets what and who will pay what.

The current statutes require a court to begin the process of dividing assets and liabilities by setting aside those assets that are defined as "nonmarital," typically those assets which either were owned prior to the marriage or inherited during the marriage and not mixed with marital assets, or those properties specified in a written agreement between the parties as nonmarital.

Next, the court will divide marital assets and marital liabilities, starting with the presumption that such assets and liabilities will be distributed equally. The court may distribute unequally marital assets and marital liabilities based upon a series of factors including: the contributions of each party to the marriage, the contribution of one party to the career or educational opportunities of the other, the intentional depletion or destruction of marital assets by one party, and other equitable factors. The court may award a cash payment from one party to the other to balance out assets and liabilities. It is not necessary for a court to divide each and every asset between the parties. Instead, the court may award some assets to one party, some to the other, and balance the difference through a cash payment.

If proper pleadings are filed, a trial judge may order particular items of real or personal property sold and the proceeds awarded to one or both spouses."

Reprinted from the Family Law Handbook by the FL Bar Assoc.

Spousal Support -- Alimony

"Upon separation or divorce, in some cases a judge may order one party to pay spousal support (alimony or separate maintenance) to his or her spouse. If awarded, the type, duration, and amount of alimony will be determined primarily by the length of the marriage, the need of one party for support, the ability of the other party to pay the support, and the standard of living the parties have enjoyed together.

A trial judge may order temporary support from the time of the filing of a dissolution of marriage action (divorce case) or the time of the filing of a petition for support unconnected with dissolution of marriage. At the time of the final judgment, the trial judge may order permanent alimony (to continue until the death of either spouse or the remarriage of the receiving spouse), rehabilitative alimony (support for a specific purpose that is meant to fund a plan to allow the receiving spouse to become educated or otherwise qualified to work at a particular job), and/or lump sum alimony (a specific sum designated for support purposes). Typically, permanent alimony and rehabilitative alimony are paid on a monthly basis and may have substantial tax consequences.

The factors considered by a court when determining issues of alimony include: the age of the parties, the duration of the marriage, the health, education, and skills of each party, and other factors. Generally, marital misconduct, such as adultery, is only considered when it has an economic consequence. 

An Income Deduction Order may be entered that will require the employer of the person paying alimony to deduct the support from the paying spouse's paycheck and send it directly to the other spouse or to a central depository, which will keep track of the payments and forward the funds to the receiving spouse. Failure to pay spousal support when it has been ordered is enforceable by contempt, and willful failure to pay may result in a person being jailed. A party may be ordered to maintain life insurance or provide other security to ensure the continued payment of alimony."

Reprinted from the Family Law Handbook by the FL Bar Assoc.

Child Support Payments

"Both parents have a duty to support their children. On divorce, that duty ordinarily is enforced through an award of child support from one parent to the other. To calculate child support, the court will usually follow a process in the child support guidelines statute. That process requires the court to consider the gross earnings of each party, subject to certain specified deductions, and to apply those earnings to a chart. Child care expenses and child health insurance premiums ordinarily are added to that charted figure. Alimony paid is considered income to the receiving spouse and is a deduction from the income of the person who pays. Each parent's percentage of support is then calculated and a support figure is generated. The judge is then permitted to vary the support amount based upon a series of factors directed to circumstances existing within that particular family. Where it is reasonably available, payment of health insurance premiums will be required and the cost of uncovered medical, dental and prescription needs will be allocated.

Except in special circumstances, an Income Deduction Order will be entered that will require the employer of the parent paying child support to deduct the support from the paying parent's paycheck and send it directly to a central depository, which will keep track of the payments and forward the funds to the receiving parent. Failure to pay child support when it has been ordered is enforceable by contempt, and willful failure to pay may result in a person being jailed. A party may be ordered to maintain life insurance or provide other security to ensure the continued payment of child support."

Reprinted from the Family Law Handbook by the FL Bar Assoc.

Making Decisions For The Children After Divorce

"In most circumstances, a judge will order "shared parental responsibility" for minor children when the parents separate or divorce. This means that both parents have a right to have full information about the children and to share in making major decisions for the children. Just because a child lives primarily with one parent does not give that parent greater say in the child's upbringing.

A judge may determine that one parent or the other should have the ultimate responsibility to make decisions in a particular area of a child's life, if the judge finds that it would be in the best interest of the child to do so.

If the parents, after good faith efforts, are unable to agree about a major decision affecting the child, (e.g., the parents cannot agree which private school the children should attend) the court, upon motion, may decide the issue, or designate the parent who will make that decision.

Sole parental responsibility may be awarded to one parent when shared parental responsibility would be detrimental to the child. Evidence of child or spousal abuse is a consideration and, depending upon the degree of abuse, may be a presumptive factor in determining whether shared or sole parental responsibility will be awarded. A court will also consider evidence that a person has provided false information in a domestic violence proceeding.

WHERE THE CHILDREN WILL LIVE AFTER DIVORCE
When parents separate or divorce it is important that both parents maintain contact with the children. Ordinarily, one parent will be designated the "primary residential parent" and the other parent will be designated the "secondary residential parent."  Alternate arrangements, including situations where one parent has sole custody or where neither parent is designated a primary residential parent (rotating custody), can be agreed to or ordered in specific circumstances.

Both parents are entitled to equal consideration as primary residential parents, notwithstanding the age or sex of the children.

After divorce, if a primary residential parent wants to move and the move would materially interfere with the other parent's contact with and access to the children, there are a series of statutory factors that a court will be required to consider before issuing an order that permits a parent to move with the children. It is possible that a parent will be denied permission to move with the children. This may occur if the other parent has been an involved parent, the move is not in the best interest of the children, and a substituted schedule of contact with the children may not be sufficient to maintain the secondary residential parent’s relationship with the children."

Reprinted from the Family Law Handbook by the FL Bar Assoc.

Contact With Your Children After Divorce

"Unless contact would be detrimental to the children, both parents are entitled to spend time with the children. In most circumstances, a schedule will be established that will designate which days and nights will be spent with each parent. This schedule usually will include specific holiday planning, vacation planning, and a method for modifying the schedule when the need arises. Overnight visitation may not be denied based upon the age or sex of
a child .

Ordinarily, each parent should have telephone contact with the children when they are with the other parent. Furthermore, many agreements provide that if a parent is going to be away from the children overnight the other parent will be given the opportunity to have the first right to take the child or children for that night before any other person is provided that opportunity.

If a primary residential parent wrongfully deprives the other parent of his or her time with the children, the court may enforce that other parent's right to time with the children and has a large variety of sanctions that can be imposed – ranging from make-up time to a full change of primary residential custody.

WHAT IF ONE SPOUSE ALREADY HAS A CHILD?
Unless a person has adopted the child of his or her spouse, the stepparent does not obtain either parental rights or responsibilities. Therefore, if the couple divorces, a stepparent will not have a right to contact with his or her stepchildren nor will a stepparent have an obligation to support stepchildren, even if he or she voluntarily has done so during the marriage. If a person has adopted a stepchild during the marriage, then that stepparent is the child's parent in all respects and will be given the same consideration for parental rights and responsibilities, as would any natural parent."

Reprinted from the Family Law Handbook by the FL Bar Assoc.