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Florida lawyer serving Alachua, Baker, Bradford, Levy, Union, Gilchrist, Dixie and Putnam Counties
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Randi E. Dincher P.A.
Focus on Adoptions and Family Law
4635 NW 53rd Street
Suite 201
Gainesville, FL 32653
(352)376-2224
R. Dincher Law Articles

Florida Child Support Orders

Every minor child needs the financial assistance of both parents. When parents separate, each parent has a legal duty of providing support to cover their minor child’s reasonable living expenses.  The parent with whom the child lives the majority of time pays directly for the support of the child by providing food, shelter clothing, entertainment, and the like.  The other parent pays child support by means of an order.  The amount of the support obligation is dependent upon each party’s earnings, earnings history and standard of living.

The amount of a parent’s child support obligation is determined by application of the Florida child support guidelines. In general, the court will enter a support order based on the formula in the guideline calculations.  A child support order is enforceable anywhere in the country (and outside the country, if a parent is in the military stationed overseas).  A child support order may, at the discretion of the judge, be adjusted upward or downward if there is a significant change in either party’s financial circumstances.

Where a party who owes child support is not able to pay the obligation, the consequences for nonpayment can be severe.  The State of Florida may suspend the party’s driver’s license or a professional license (medical license, law license, realtors license); the court can enter an order to take someone’s property; the court may also enter an order of incarceration.  If you are experiencing a long-term reduction in your income, you may want to consider filing for a modification of your support obligation before you become behind in your support obligation.

Problems exercising visitation are not an excuse to stop paying child support.  Furthermore, the nonpayment of support is not a reason for the residential parent to interfere in the visitation schedule.

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Relocation

Parents in Florida are often surprised to learn that relocating may require court approval.  In 2006 the Florida Legislature enacted a statute to address parental relocation. Florida law prevents a residential parent from moving their residence more than 50 miles unless the parties enter into a written agreement in advance of the relocation, or the court approves the move after a hearing.  This rule only applies when a court has previously entered an order establishing parental rights (custody) of a minor child. The relocation rule does not apply to temporary situations such as vacations and visiting relatives.

If the non-residential parent agrees to the relocation, it must be done in writing. In order for the written consent between the parents to be valid, specific issues must be addressed in the document including a visitation schedule and transportation arrangements. The written agreement must be submitted to the court for approval.

Should the non-residential parent refuse to provide written consent to the relocation, notice must be filed with the court. The residential parent must then serve the other party and give them 30 days to submit a written response to the court. Should an objection be filed, there will be a hearing for the court to consider whether or not the relocation is in the best interest of the minor child.

Unfortunately, for most parents seeking to relocate time is of the essence. Commonly, the residential parent has an employment opportunity with a start date in the near future. However, it could take 60 days or more to get a hearing.

It is important to have an attorney who will promptly address your needs and attempt to get the matter scheduled as soon as possible. We at Randi E. Dincher, P.A. are familiar with the family courts and do our best to get the case scheduled as quickly as possible.

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Prenuptial Agreements

Pre-nuptual agreements, also known as ante-nuptial agreements, are contracts drafted for the purpose of defining the respective rights of future married couples should their marriage fail and end in dissolution.  Before 1970 prenuptial agreements were invalid in the state of Florida.  However, beginning in 1970 the laws of Florida began to change and provide for enforcement of these agreements.  The change in this area of the law was a reaction to the change in society towards marriage.  In 1970 the Florida Supreme Court recognized that “with divorce such a commonplace fact of life, it is fair to assume many prospective marriage partners… might want to consider, …discuss… and agree upon… the disposition of their property and alimony rights… in the event their marriage… fails.” Posner v. Posner, 233 So. 2nd 381, 384 (FL 1970).

Unfortunately, divorce is a common occurrence in our society.  Approximately 50% of all marriages end in divorce.  While these relationships began with strong commitments, when they end they can be complicated resulting in expensive legal battles that are emotionally and financially costly.  At times couples who are considering marriage do not want to discuss or enter into a prenuptial agreement because of concerns their significant other will find them to be disloyal and not trusting in their relationship.  However, what folks lose sight of is that marriage is in fact a contract.  When a marriage dissolves, parties will divide their finances and determine issues of support.  Even short term marriages can become quite litigious and expensive.  A prenuptial agreement which is properly drafted and entered into before marriage can define the rights of both parties and minimize the legal battle over financial matters should their marriage dissolve.

Most times prenuptial agreements are considered by those who have significant assets.  However, these agreements can be beneficial for many other folks. For example, individuals who have children from other relationships, who may be receiving an inheritance, who are new professionals hoping to accumulate future income and wealth, who are starting a new business, or who had an earlier failed marriage could also benefit from having a properly drafted prenuptial agreement.

It is suggested that both parties have an attorney. Prior to entering into a prenuptial agreement, both parties should be informed of their legal rights. An attorney should also thoroughly review and, if need be, revise language of an agreement drafted by another attorney. The intent is to provide a final agreement that protects the interests of the client. If an agreement is not properly drafted it can be later modified or rejected by the court.

While a prenuptial agreement will never make a divorce action free from pain, a well prepared agreement certainly can help to minimize the stress and difficulty of going through a divorce.

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An Overview of the Divorce Process

Divorce in Florida is referred to as dissolution of marriage.

The goal of the legal process of divorce is to end the marriage and decide such issues as child custody, visitation, child support, alimony (sometimes called spousal support), property and debt division and attorney’s fees and costs.

A judgment which divorces a married couple can be entered based upon an agreement between the parties or ordered by a judge after a trial. While it can still be emotionally stressful, parties who enter into an agreement are generally more accepting of the outcome, and the process is less expensive than a trial. Even where a couple is unlikely to settle their case, most often the court requires the parties to attend mediation.

Most divorce cases are resolved without a trial.

Divorce Proceedings.

The basic steps in the divorce process are:

1.         The Petition.

A dissolution of marriage (divorce) action begins with the petition. This document notifies the court and your spouse, that you want the court to end your marriage. It also sets forth what you are asking for, such as child custody, child visitation, child support, spousal support, property division, possession of the marital residence, attorney’s fees and costs. Service of the petition on your spouse is most often by the sheriff’s office..

2.         The Response.

After a Petition is served, the other spouse must file their response. In Florida, if you are served with a Petition, you must file your opposing papers within 20 days of service or you may lose your right to present your side of the case to the court, and the court might give your spouse everything asked for in the Petition.

3.         Temporary Orders.

Temporary orders set the rules while the case is pending. Either party can ask the court to make temporary orders stating, for example, who stays in the house, who is responsible for the children, who pays which bills and restraining inappropriate conduct. It is in both spouses’ best interest to agree upon reasonable arrangements while the case is pending rather than incur additional legal fees and add to bad feelings by having to go to court for temporary orders. In some counties in Florida, temporary orders automatically go into effect when a divorce proceeding is filed. Generally these automatic orders are entered to prevent parties from depleting the marital estate.

4.         Discovery.

Each spouse is entitled to receive information from the other party about the case. The legal procedure for obtaining that information is called “discovery.” Discovery may be a simple, speedy process or one consuming a great deal of time, energy and money. In Florida, parties are required to complete and file financial affidavits. In addition, there are several other discovery procedures, sometimes referred to as discovery devices. A list of questions known as interrogatories, requiring a formal written answer to each question, may be sent. By a “request for production” one spouse may obtain documents from the other. In a “deposition,” or interview before trial, the spouses and other persons, including experts, may be required to answer questions under oath in a lawyer’s office while a court reporter takes down what is said and then prepares a transcript. If your deposition is to be taken, there will be advanced notice and your lawyer will discuss the procedure with you.

Discovery may be conducted informally. It is often more efficient and less expensive for lawyers informally to exchange documents and information than to send and respond to interrogatories and requests for production and to take depositions.

5.         Negotiated Settlement and Mediation.

Most lawyers and judges agree that it is better to resolve a case by agreement than to have a trial in which a judge decides the outcome. Also, people who have been through a divorce often value the privacy and control that a negotiated agreement gives them. People are more likely to obey a judgment which is based on their agreement than one which has been imposed on them by a judge. Voluntary compliance is important because enforcement procedures available from the court are usually expensive and sometimes inadequate. For these reasons, following discovery-and at any time, even during trial-the spouses and their lawyers should try to negotiate a settlement.

Because of the limited number of judges available to hear trials, most courts require the parties and their lawyers to attend mediation before scheduling the case for trial. Mediation is where a neutral person, who is certified to conduct mediation, tries to bring about a settlement. If mediation is not successful, the parties attend a status conference before a judge to schedule the case for trial.

Although your lawyer may recommend that you accept or reject a particular settlement proposal, the decision to settle or not to settle is yours. Your lawyer cannot, and should not, make that decision for you.

If a case is settled by agreement, in most courts the parties must attend an uncontested hearing. There are legal procedures that have to be followed to turn your agreement into a judgment and end your marriage. Your lawyer will see to completing this part of the process.

6.         Trial.

If you and your spouse cannot settle your case, the case will proceed to trial. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witnesses, and documents called exhibits.

Trial is likely to be expensive and unpleasant. However, it can be the only alternative to never-ending unreasonable settlement demands. Still, trials are risky. No lawyer can predict the outcome of a trial because every case is different.  A judge, a stranger-possibly with a viewpoint, temperament and values very different from yours-tells you and your spouse how to reorder your lives, divides your incomes and assets, and dictates when each of you may see your children.

Sometimes, a trial does not end the case. Each party may, within a limited period of time, appeal to a higher court. An appeal adds more time and expense to the divorce process and is hard to win.

7.         Alternative Dispute Resolution.

There are other methods of resolving your case. These methods are called alternative dispute resolution and include mediation and collaborative family law.

Mediation

In Florida mediation is generally required if parties have not reached an agreement in the early stages of the case. Here the parties meet with an impartial certified mediator who has special training and qualifications. The purpose of mediation is to help the parties reach an agreement. It is important to have attorney representation during the mediation process because the mediator does not give legal advice. The parties should consult with their own lawyers about mediation and the legal ramifications of any proposed agreement.

Collaborative Family Law

Prior to filing the petition for divorce the parties may agree to submit their case to collaborative resolution, in an effort to resolve the case before the action is filed. The collaborative team is made up of both parties, with each having a collaborative law attorney, and other trained professionals where relevant.  Generally the trained professionals are a financial specialist, a divorce coach and a child specialist.  The goal of the collaborative process is to solve problems jointly and prevent a court battle by employing an honest exchange of information to accomplish a workable marital settlement agreement.  Attorney Dincher is certified in this process and is an active member of the Gainesville Collaborative Divorce Team.

8.         Your Conduct

Here are some good rules to follow while your divorce is pending:

  • Do talk to your lawyer before agreeing to a settlement.
  • Don’t physically or verbally abuse your spouse or children.
  • Don’t say anything to others that you wouldn’t want your spouse or the judge to hear.
  • Don’t go on a spending spree. Excessive spending on yourself or others may harm your case.
  • Don’t throw away financial records or other possible evidence.
  • Don’t try to hide evidence or assets.
  • Do keep your perspective and try to be rational.

Divorce is stressful, but not the end of the world. How you or your spouse feel during your divorce can change dramatically as the case progresses. It’s normal to go through stages of denial, anger, guilt, depression and acceptance on the way to a resolution.

If you live in Gainesville or the North Central Florida area and need advice about a divorce proceeding, please call our office at (352)376-2224 or contact us via email.

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Collaborative Family Law

An alternative to the traditional litigation process is collaborative family law.  Collaborative family law involves a process wherein the parties agree to submit their case to collaborative resolution, in an effort to resolve the case before the petition for divorce is filed.

The collaborative team is comprised of both parties, with each having a collaborative law attorney, and other trained professionals where relevant.  Generally the trained professionals are a financial specialist, a divorce coach and a child specialist.  The goal of the collaborative process is to solve problems jointly and prevent a court battle by employing an honest exchange of information to accomplish a workable marital settlement agreement.

Attorney Dincher is certified in this process and is an active member of the Gainesville Collaborative Divorce Team.

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What “NOT” To Expect from Your Divorce Attorney

Going through a divorce often leaves folks angry, in grief and filled with mixed emotions. It is a time of intense stress. Clients look to their attorney for answers, to fix the problems or punish the other party for hurtful conduct.

  1. An attorney cannot give clients a guarantee of the outcome.
    Given my many years of experience as an attorney focusing on divorces and family law matters, I do have a wealth of information. Often my answers are complicated. Often times, “yes/ no” answers are not possible because the judge ultimately decides when parties cannot reach an agreement.At times when clients ask about the anticipated outcome of their case, I have incomplete information. The client may fail to provide me with relevant information, which is revealed as the case progresses. Incomplete information makes it difficult to project the ultimate outcome.
  2. The divorce process is not intended to be used to punish the wrong-doing spouse.
    It is important to understand that Florida enacted a no-fault divorce statute.  Thus, the court is not supposed to punish a party who had an affair or committed another form of marital wrongdoing. For example, marital property and debts are generally divided equally, regardless of marital misconduct. Issues of custody are determined based upon the best interest of the children, and not to punish a spouse.
  3. The attorney does not set the scheduling.
    In processing a petition for dissolution, other entities are involved which may cause delays in scheduling hearings, mediation and other matters. For example, the court calendar dictates the scheduling of hearings and conferences. The judge’s schedule and that of other attorneys dictate when matters can be heard. Because multiple individuals are involved, problems with scheduling are common.
  4. The attorney does not serve the divorce petition.
    Another matter which the attorney does not control is sheriff service. After a petition for dissolution is filed, it must be served by the sheriff’s office. In general, the sheriff’s office fulfills this role promptly and responsibly. Unfortunately, the sheriff’s office does not work for the attorney.  The sheriff’s office serves when it accommodates their office. Sometimes service is early in the morning or late at night. Furthermore, there are times that an opposing party avoids service. If the sheriff’s office is unable to accomplish service, the attorney may need to obtain from the court an order permitting special process service.
  5. Most lawyers who concentrate their practice on divorce and family law are not tax attorneys.
    I am not a tax attorney. While I have some insight to the general affects of the tax code, I refer clients to an accountant or an attorney who does tax work when complex tax and financial questions arise.
  6. Most lawyers who concentrate their practice on divorce and family law are not social workers or family therapist.
    I am an attorney at law and find I best fill that capacity by maintaining a degree of objectivity. At times clients become oppositional to the things I say. At times parties are bound to orders that have provisions which do not seem to make sense. However, I must always instruct clients to follow the orders, whether they like it or not.During this difficult time there are things people can do that may assist them in managing their stress. I find clients with a supportive network of family and friends best handle divorce. Seeing a counselor during this period may also help. Exercise may help. I do advise client’s to avoid creating more problems for themselves by drinking to excess or saying inappropriate things in the presence of their children or other people. Folks may say or do something which may used against them later in the court proceeding which could be embarrassing or used to discredit the party.

A suggestion for someone involved in a divorce is to be kind to yourself during this difficult time.

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