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Florida Family Law Attorney - Frequently Asked Questions

Frequently Asked Questions on Family Law and Divorce Issues - State of Florida

(Hold your mouse over a question or click on the question for the answer)

  • My spouse and I recently had a serious argument. Today I was served with a restraining order. What do I do?

    A restraining order is a serious legal directive. You will have a hearing within a few weeks and your spouse (the Petitioner) will then present his/her case to the Judge. Testimony will be taken at that hearing and you will have the opportunity to bring witnesses to testify on your behalf. Generally, this is not the type of hearing you want to attend without consulting an attorney for an understanding of what to expect. If children are involved it could become more complex. Pending the outcome, the temporary restraining order can either be dismissed or extended.

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  • I need to get a divorce and want to divide our property which includes our home. Currently, the mortgage balance is greater than the equity. Neither of us can afford to move out. How do we handle this financially and our future living arrangements?

    Unfortunately, with today's real estate market being so depressed, this upside down equity situation is a common occurrence. The financial burden put on families during these times only makes a bad situation worse. In many cases it can be the culprit that helps lead to divorce. There are no simple answers to this complex problem. Numerous issues need to be analyzed. You need to be advised by a family attorney as to the potential options. An experienced family attorney deals with these types of matters on a daily basis.

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  • My spouse and I were recently married in Las Vegas. We live in Massachusetts and came to Florida on a vacation a few weeks ago. Unfortunately, our marriage is not working out. I like Florida and want to get divorced here. Can I?

    No, under these circumstances you cannot get a divorce in Florida. You must be a legal resident of the State of Florida to obtain a divorce here. That means you and your spouse must reside together, as husband and wife, for six (6) months preceding the filing for divorce. In this specific scenario, you would have to obtain a divorce in your home State of Massachusetts.

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  • My spouse and I have lived in Florida for ten (10) years. I want to get a divorce (or I am already divorced) and move out of the state (relocate) and take my children with me. Can I?

    You can certainly get a divorce, as Florida would have jurisdiction under these circumstances. However, moving out of the state with your children without court approval is another issue.

    Relocation requests can be made and presented to the court. Without consent of the other party, the court will follow statutory and case law and evaluate many factors as to whether or not you may relocate. The burden is on the requesting party to show that it is in the best interest of the child(ren) to relocate. The court cannot stop you from relocating, but it may stop the child(ren) from relocating. The reason for this is obvious; the other parent will not be able to attend school events, extra-curricular activities and the like - in other words, their relationship with the child(ren) will be much different. If you relocate without permission, the court can force you to return the children to Florida, even if you have purchased property in another State.

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  • My spouse has been cheating on me. I want a divorce and want custody. Additionally, I do not want my children to spend time with my spouse. Is this possible?

    The State of Florida no longer utilizes the term "custody". The court will always consider the best interests of the children. Your spouse, absent of any danger to the children, will have rights and obligations as to the children as you do. A parenting plan as to time sharing will be ultimately entered by the court.

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  • I have never lived with or married the father of my child. I would prefer he leave us both alone and simply remove himself from our lives . However, he wants to have our child 50% of the time. I do not want child support. How do I accomplish this?

    Under the laws of the State of Florida, your child is entitled to an adjudication of paternity as to the father. Your child is also entitled to child support and the father has an obligation to pay it. Children are entitled to the benefits of two (2) parents being involved in their lives, unless there is some showing of evidence that doing so is contrary to the best interests of the child.

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  • I have heard about the collaborative divorce process. What are some of the advantages of this process?

    The stress level is significantly less in the collaborative process. There is no court involvement (except for the final hearing) or "battleground" scenarios, found in traditional divorce. Everyone focuses on solving problems rather than attacking each other.

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  • My spouse and I have reached an agreement regarding our divorce without the need of attorneys. Can you act as our mediator?

    Yes. However, while acting as a mediator, I am unable to provide any legal advice to either of you. Alternatively, I can represent one party, draft your agreement, and then provide it to the other spouse with recommendations that he/she show it to an attorney for independent legal advice, prior to signing.

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  • I currently have an attorney and am dissatisfied. My divorce was filed seven (7) months ago and I am still not divorced! Can you speed up the process?

    Regretfully, seven (7) months is not a long time in a divorce action. We live in a society where instant results are expected, however, it is not realistic with the court system. Chances are this delay has nothing to do with your attorneys efforts or capabilities and has everything to do with the over-burdened and congested court system. It is important to be patient, as long as you and your attorney are at least communicating.

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  • I want to file for divorce, but I am fearful of how my spouse will react when they get served with papers. Do we have to "serve" him/her?

    Yes, your spouse must be served (possibly through their attorney if they have one). However, we will advise you as to all the steps you can and must take in the event you feel threatened in any way. Your protection and the protection of your child(ren) is of utmost importance to this firm. We understand the problems that arise and are here to assist you as you move forward.

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  • I need an aggressive attorney who will stand up for my rights and take charge. I read on your website that you are caring, etc.. Can you be aggressive?

    Many people request an aggressive attorney. While we can be and certainly are (when necessary) aggressive, we will always represent your legal interests diligently, always aware of the costs and emotional levels involved. An opposing attorney can set various motions and hearings on a regular basis, many of which could be unnecessary, all while acting within the law. This will ultimately cause much more acrimony and chaos during the divorce process and add to the legal expenses. Each time an attorney prepares or responds to a document, attends a hearing, etc., they are billing hourly. HOWEVER, having said that, when the opposition is behaving badly or improperly, this firm will do everything within its power to cause that behavior to immediately stop, including but not limited to seeking the appropriate remedies through the courts, including extra attorney's fees to be paid by the opposing party.

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  • I have moved out of the state of Florida. My ex-spouse is bringing me back to court in Florida. Do I need a Florida attorney, or an attorney where I currently reside?

    Many more details are needed before this question can be answered properly. Jurisdictional questions are very complex and depend on many factors. If necessary, this firm provides out of state and out of country consultations over the phone, after an initial screening has occurred and after you have properly identified yourself to the firm. This caution avoids any attorney/client privilege issues.

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  • I had property before my marriage. That property has increased in value during my marriage. I do not have a prenuptial agreement. Is my spouse entitled to any funds relating to the value of that property?

    Generally, and during the marriage only, if the property has increased in value due to time, labor, contributions, and/or improvements, the spouse may have an interest in the increased value only.

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  • My spouse and I purchased a house during the marrige. My spouse had bad or no credit, and as a result, the house is in my name only. I have always paid all of the mortgage payments, taxes, and insurance on the house. Do I have to share the property value with my spouse?

    Yes. If the property was purchased during the marriage, it does not matter how it is titled or who paid the mortgage, it is considered a marital asset. There are a few exceptions such as a prenuptial agreement or if it was purchased with inherited money. Even in those exceptional circumstances, the spouse may be entitled to "increased value" that occurred during the marriage. Note: This answer does not apply to couples who are not married. In that case, property is divided as it is titled.

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  • If my spouse "buys me out" of my share of the marital assets, when will I receive my money?

    It depends on the assets. As for real property, if your name is on the mortgage, a refinance may be appropriate. Then, you get paid at that time. After the funds clear, title will change solely to the other party. As for other funds, certain accounts can be "rolled" into other accounts. We look to see what tax and/or penalties, if any, will apply, prior to dividing up these assets. In many situations, we must engage the services of a financial planner, forensic accountant and/or tax expert, to calculate what will be most beneficial.

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  • My spouse and I have considerable debt. My spouse incurred most of it. Am I responsible to pay that part of the debt?

    Generally speaking, if the debt was incurred during the marriage and is not considered a "dissipation of marital assets" (ie: funds spent on an extra-marital affair, etc.), it is a marital debt which will be equally divided.

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  • My spouse worked (and earned a good income) prior to the marriage and immediately quit their job after we got married. I earn a good salary and have always paid all the bills during the marriage. We have been married for ten years. Will I have to pay alimony and if so, how much?

    • A ten year marriage is generally considered a "gray area" marriage, as to length of time. According to Florida law, it is not considered a short marriage, nor a long marriage. There is no definitive answer to your question, as the court must consider and evaluate many factors in determining an award of alimony. Note - In Florida there are no guidelines for alimony as there are for child support. The courts look to the length of the marriage, the ability of one party to pay and the needs of the receiving party, the amount of funds each party receives after the assets are divided, along with the lifestyle the parties led during the marriage, factoring in whether or not the parties were living within their means. We may engage the services of a vocational expert to determine how much income should be imputed to your spouse (if they were working within their capabilities in today's market) which would lower the amount that you might have to pay. Also, there are many forms of alimony; permanent, lump sum, rehabilitative, bridge the gap and temporary, all of which can be either modifiable or non-modifiable. Alimony can be very complicated due to the many factors involved. We will be able to discuss all the options with you, depending on your individual circumstances.

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  • I have been paying "permanent" alimony for many years. My divorce papers say that it stops upon my death or my spouse's remarriage. My ex-spouse has been living with someone for about a year and I am tired of supporting them. What can I do?

    You can file a Petition for Modification of Alimony. To do so, you must show a substantial change of circumstances. Certainly your ex-spouse residing with someone else is a change of circumstances, but the court looks further - such as whether or not the cohabitation constitutes an economically supportive relationship. This obviously could extend to same sex live-in relationships as well.
  • I need more child support. My ex spouse is now making a considerable amount of money, but is putting everything in someone else's name and/or is getting paid "under the table". What can I do to get increased child support?

    To modifiy child support, you must show a substantial change of circumstances since the entry of the last court order, regarding child support. If your ex spouse was behaving in the same manner then, as now, it is not likely that anything will change, unless you have new evidence now that you did not have before. However, if you can present to the court that your ex spouse's lifestyle has dramatically increased, etc., (even though nothing is in his/her name), the court can infer that they are making substantially more money, can impute income to them, and you can receive an increase in child support.

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  • Can child support arrearages be modified?

    Unless there is some showing of mistake, clerical error, or something to that effect, the total amount of arrearages cannot be modified. The amount of monthly payment, depending on any substantial change of circumstances, may be modified by either party seeking a change.

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  • My ex spouse and I have shared parental responsibility. We cannot agree on anything involving our children. It is extremely difficult for them to join and participate in any activities or get certain medical care. Can I change my final judgment so that I can make all the decisions involving their needs?

    Depending on the circumstances, this could be considered a substantial change of circumstances which may allow for either a change in custody or a change to sole parental decision making. The courts decide each case, on a case-by-case basis, after considering all relevant factors. Unfortunately, bad behavior by ex spouses is quite common and the courts will consider the extent and depth of that behavior prior to making any changes.

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  • FOR MEN: I am being sued for paternity and I do not want to pay. I am not married to the person, hardly know the person, do not like the person, and was not involved in the decision on whether or not the baby should be born. I do not want to pay for a baby that I did not want. Is there anything that can be done?

    If the DNA test (which you will ultimately have to take) proves that you are the father, you are going to have to pay child support, pursuant to Florida Child Support Guidelines. You will also have rights to your child regarding time sharing, shared parental responsibility and the like.

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  • FOR WOMEN: I am pregnant but not married. I want to have the baby and raise him or her as a single mother. I do not want anything to do with the father of the baby. Against my requests, he will not leave me alone, insists on seeing the baby and being involved in our lives. I do not want child support. What can I do?

    The state of Florida believes that every child has the right to enjoy the benefits of two parents - also that neither parent can "waive" child support, which is the right of the child, not of the parent. The father has rights and will be entitled to have time sharing with his child (unless, of course, he is somehow a danger to the child or it is somehow not in the child's best interest). He will also be required to pay child support, even if it is put in a trust for your child's future.

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  • I want a divorce and do not believe I need an attorney. Why shouldn't I just download the forms from the internet and handle this issue myself?

    If you have only been married for a couple of months or years and have no children, no property, and no money or assets, you probably can do just that. If, however, you have children and/or property, money or assets, and if you have read the above listed questions (which is just a short list of the many problems that can occur) you should seek legal assistance and not be penny wise and pound foolish. The legal process is very complicated, even with the "correct downloaded forms". The majority of knowledgeable family attonreys do not use "downloaded, boilerplate" forms. They draft their own motions and pleadings to the custom needs of the individual case, following the parameters of the forms. In representing yourself, any errors made could be considerably more costly to correct than hiring the professional to start with. Remember these infamous words, "only a fool has himself for a client".

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  • I realize I should retain an attorney because my spouse is mean-spirited and I know he/she is set on emotionally and financially destroying me. He/She has possession of, earns, and controls all the marital income and keeps any documentation of same hidden from me. As a result, I do not have any money. What am I supposed to do?

    Most successful family attorneys expect an up-front retainer which can be paid by credit card (which can be paid back to them on installments) or borrowed from wherever necessary. In the State of Florida, the courts look to the ability of one party to pay fees and the needs of the other party to receive assistance for their legal fees. The court will also look to the following, among other factors, before ordering fees paid by one party to the other: 1) whether or not one of the parties is frivolously litigating and 2) whether or not they are harassing the other party through their litigation style.

    Your attorney will get to court as quickly as possible to request proper and warranted reimbursement of attorney's fees, to be paid by the other party (presuming they have the ability to pay for same). Unfortunately, and until such time warrants, the cost of an attorney and legal fees can be expensive, but so can the cost of a vacation! Since divorce is not as much fun or as memorable as a vacation, people in many instances cannot justify paying the fees to a lawyer, but think nothing of paying the cost of thier vacation. It is a matter of priorities. Keep this in mind - the vacation is over in two weeks, the emotional effects of a divorce can go on for years or forever. This is your life, your peace of mind, your future, and that of your children.

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  • My spouse wants custody of our children or at least 50% time sharing. I want my husband (or wife) to only have the children every other weekend, like many of my friends. How does the court decide?

    The court will review the history of the relationship between each parent and the children, such as who has been the primary caregiver, how active either parent has been regarding activities, etc. The court will consider drug and/or alcohol issues that either parent may have. The court will also use evidence and factor in any and all information regarding what is in the best interest of the children before deciding on time sharing, including whether or not one parent may be seeking substantial time sharing solely to lower any child support obligation.

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  • I believe my child's step parent is abusing him/her. What steps can I take?

    First, you must contact the authorities, such as the police and/or the Department of Children and Families. Depending on the circumstances, you should also obtain a restraining order on behalf of your child, against the parent or step-parent who is or may be abusing the child. Again, depending on the circumstances, you should receive an expedited hearing so the court can determine what is in the best interest of the child.

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  • I have a legal question regarding a divorce. Can I consult with you over the phone?

    Due to attorney/client privilege, it is not advisable to communicate over the phone as there is too much anonymity. However, if an action has been filed against you and Florida does have jurisdiction, our office can put certain safeguards in place and arrange a personalized phone conference. You would have to provide identification and enter into an attorney/client privilege relationship, prior to the phone call taking place. We take every possible precaution to assure our existing clients' privacy and confidentiality.

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  • How much are my legal fees going to be?

    Retainers and fees are set on a case by case basis. A case with no children and no property will probably require less legal fees than a case with children and assets. This is justified considering the two most often litigated issues involve both children and/or money/assets. The fee is also dependent on the behavior of both parties and their willingness (or lack of willingness) to be reasonable for a quick and fair settlement. Florida statutes consider the ability of one party to pay for fees and the need of the other party to receive assistance from the other.

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  • Do you work on a payment or installment plan?

    Other than the consideration of receiving two payments (within a short time frame of each other and when warranted), this firm does not work on installment plans. However, one can consider putting required payments on an accepted credit card and paying the issuing credit card company on monthly installments.

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  • Do you accept legal insurance?

    Certain clients have indicated that they have "legal insurance" through their employers. This firm will certainly cooperate in filling out any necessary forms to allow you to be reimbursed by any insurance, however, we do not wait for the insurance to pay - you must make the required payments to our firm and then get reimbursed from the insurance company.

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The questions selected are some which generally arise during the initial client/attorney interview in a family related legal matter.  The information provided herein is not to be interpreted or assumed as legal advise and is simply offered as very general guidelines with the State of Florida. Individual circumstances must be factored into all answers.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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