How do I decide which divorce attorney to use?
There are several things to consider when choosing a divorce attorney in Tampa, Pinellas, Pasco or any of the surrounding counties. First, you must be comfortable with your attorney. You should trust that your attorney has your best interests in mind. Your attorney should be diligent in moving your case forward. You attorney must be knowledgeable about the issues you will face in your divorce. You should be sure that the divorce attorney you choose can give you recommendations based upon the law as applied to the facts of your case. You want an attorney that will make those recommendations, but one that will not force you to settle your case. You want an attorney who is not afraid to take your case to trial and let the judge rule on the issues. Communication is another key factor in choosing your attorney. Your attorney should return your phone calls and emails promptly. You want an attorney that will be responsive to you, that will keep you informed of what is happening in your case. Your attorney should explain the issues to you, ask for your input on the issues and give you advice. You want an attorney that will be transparent in their billing. Giving you frequent detailed itemized billing statements so you know exactly what is being done and how your money is being spent.
How is child custody determined in the State of Florida?
The guiding principle for the Judge when deciding custody issues in Tampa, Pinellas, Pasco and the surrounding counties is the “best interests” of the child. If parents are unable to reach an agreement on custody, the court will determine what custody is in the best interests of the child by applying the statutory factors found in section 61.13, Florida Statutes. Each party will present evidence, through their own testimony or the testimony of witnesses, such as family, friends, teachers, etc… The evidence will attempt to demonstrate why a particular statutory factor favors that parent over the other parent. The Court will then assess all the evidence as applied to the statutory factors and make a determination of custody in the best interests of the child. Parties can elect to secure the services of an expert to help them establish why their proposal for custody is in the child’s best interests. This expert will interview witnesses, the parents, the child, if old enough, observe the child’s interactions with each parent and then issue a report to the judge. The report will contain what the expert believes the facts to be as applied to each factor and make a recommendation to the Court regarding custody. The court can consider the report, but is not bound to follow the recommendations of the expert. Another tool to assist the court in making a custody determination is the use of a guardian ad litem (GAL). This is an individual who acts as the representative of the child. The GAL will conduct a similar factual review and recommend to the court what the GAL believes the custody should be. Contact LaFrance Law for a consultation to discuss your child custody questions. Shannon LaFrance is a Tampa Bay area family law attorney and is also a GAL.
How is child custody determined in uncontested divorces?
In an uncontested divorce, the parents reach an agreement on custody. This agreement is then memorialized or written down in a document called a parenting plan. The parenting plan will set forth the time sharing for each parent during the school year, the holidays and the summer. It will address how the parents will decide upon extracurricular activities and how those expenses will be paid. The parenting plan will address time in the summer for vacations and travel both out of the State of Florida and out of the Country.
When is primary custody granted in divorce cases?
Florida no longer recognizes the concept of primary and secondary residential parent. Parents are simply referred to as Mom and Dad. If the parties do not agree to equal time sharing or the court does not find equal time sharing to be in the best interests of the child, then one parent will have majority time sharing, greater than 50%. The court will determine custody by applying the statutory factors set forth in section 61.13, Florida Statutes. In certain instances, time-sharing can be restricted to supervised time sharing or no overnights with the child. These scenarios depend on the facts of each case with the concern being what is in the child’s best interests.
Besides time with your child, another concept within custody is decision-making. Who makes the decisions on behalf of the child. If the parents have shared parental responsibility, each has an equal say in the major decisions that impact the child, such as a health or education issue. A parent with sole parental responsibility, may have to consult with the other parent on a major decision, but if there is a disagreement, the parent with sole parental responsibility makes the final decision. To obtain sole parental responsibility, the parent seeking this authority must prove to the court that it would be detrimental to the child to have the other parent involved in making a major decision on behalf of the child.
How is alimony and child support calculated?
Alimony is calculated based upon the statutory factors set forth in Section 61.08, Florida Statutes. There is no formula used to calculate alimony. The calculation is unique to each case and is based upon the discretion of the Court in applying the unique facts of each case to the statutory factors. While the statutory factors cannot be overlooked, a good starting point for the calculation is to consider the need of the spouse seeking alimony, the ability of the other spouse to pay alimony and the duration of the marriage. Need is assessed by comparing the requesting spouse’s net income to that spouse’s reasonable living expenses. A shortfall may indicate a need for alimony. The ability of the other spouse to pay is also determine by comparing that spouse’s net income to that spouse’s reasonable living expenses. A monthly surplus of income may indicate an ability to pay some alimony to the spouse in need of financial assistance. Once that determination is made, looking to the length of the marriage will help determine how long alimony may be payable. Section 61.08, Florida statutes notes that marriages of less than 7 years are considered short term, leading to a presumption against permanent alimony, while marriage of 17 years or longer are considered long term, and entitle to a presumption in favor of permanent alimony. LaFrance Law can help assess your entitlement or exposure to alimony based upon your situation. Contact LaFrance Law today for a consultation.
The calculation of child support is set forth in Section 61.30, Florida Statutes. The child support calculation begins with a determination of the combined net income of both parents. The combined net income determines the total child support due as reflected in the child support guidelines chart contained in the statute. The number of children will dictate the amount of child support relative to the combined net income. So for instance combined net income of x, results in a total support obligation of $xx for one child, $xx for two children and $xx for three children. Each parent’s share of the total support obligation is based upon how much of their respective income accounts for the combined net income. So, if for instance, the Father is earning 65% of the combined net income and the total support obligation is $1,000, the Father’s basic support obligation is 650 and the Mother’s is $350. Each parent also has an obligation to contribute to the health insurance cost to cover the children and to contribute to any daycare care expense and unreimbursed medical expenses. Generally these expenses are split according the parent’s respective pro-rata share of the combined net income. Once the basic obligation of each parent is determined, consideration must be given to the impact of time-sharing. If a parent has at least 20% of the overnight time-sharing with the children during the year, then that time-sharing percentage must be factored into the calculation of the support. Often this will reduce each parent’s child support obligation further.
Do I have to pay child support if I have joint custody?
If you have joint custody or equal time-sharing as it is known in Florida, whether you owe child support will depend on each parent’s respective net incomes. If both parents have the same or substantially the same net income, neither parent may have to pay the other child support. If there is a disparity between net incomes, so that one parent is earning more each year than the other, the higher earning parent, may have to pay some child support to the other parent. However, it is important that all offsets are factored in including payment of health insurance and daycare. In addition, filing status and tax dependency exemptions must be accounted for. To ensure your child support is calculated correctly contact LaFrance Law for a consultation.
What’s the best way to make sure I pay as little alimony as possible?
Assessing the requesting party’s income and expenses is critical to minimizing exposure to alimony. Ensuring that full financial disclosure is completed is essential, especially in cases involving self-employed spouses. Documents, such as bank records, credit card statements, and business records should all be reviewed. If necessary vocational experts can be utilized to determine if a party is underemployed so that in reality they could be earning a higher income, thereby reducing or eliminating their need for alimony. Expenses must be scrutinized for embellishment so that an argument for an inflated need can be defeated. If appropriate a forensic accountant could be utilized to complete a lifestyle assessment and refute the inflated monthly living expense claims of the spouse seeking alimony.
How are assets divided in a divorce?
Assets which are marital are divided based upon a theory known as equitable distribution. The statutory factors for determining an equitable distribution of both the marital assets and the marital debts are set forth in Section 61.13, Florida Statutes.
A marital asset, subject to certain exceptions, includes assets acquired from the date of marriage to the date of filing the Petition to Dissolve the Marriage.
The Court will start with the presumption that the assets should be evenly divided, however, the statutory criteria can be used to justify an unequal distribution.
Do I have to sell my house if I’m getting divorced?
You do not necessarily have to sell your house if you are getting divorced. One of the spouses can keep the house, but will usually need to give the other spouse, that spouse’s share of the equity they would have received had the house been sold. There may also be issues of refinancing that may impact keeping the home. It is possible in certain circumstances for a spouse seeking alimony to be awarded the house as part of the alimony claim.
How is debt distributed in a divorce?
Marital Debt, like marital assets is subject to equitable distribution pursuant to section 61.13, Florida Statutes. Debt that was incurred during the course of the marriage is generally considered marital and subject to equitable distribution.
What are the top 10 things I should know if I’m getting divorced?
1. Gather your financial documents, such as tax returns, bank account records, retirement statements, and investment account records. Inventory your assets, including taking photographs of the property in your home. If you do not know all of the finances of your marriage, this information will be obtained in the divorce process. Pension and Retirement asset information should not be overlooked.
2. Every case is different. Trust your attorney. Your friend who went through a divorce is well intentioned, but their facts and circumstances are not the same as yours. Your attorney went to law school and practices divorce law for a living.
3. The divorce process can be long and confusing. You may want to get to court immediately. Your attorney must follow court rules and procedures that may not allow an immediate Court hearing. Trust that your divorce attorney is working diligently to move your case forward and provide you the best representation possible.
4. Don’t settle your case for the sake of moving on and putting the divorce behind you. Make sure you make an informed decision and your decision is made a time when your emotions are not controlling your thinking. You want to avoid buyer’s remorse. Settling your case and then 6 months later saying why did I do that.
5. Until you file a Petition for Dissolution of Marriage, your spouse may continue to acquire an interest in any assets you obtain, even if you are separated. On the other hand if your spouse incurs debt, you may continue to be exposed to a determination you are responsible for a share of that debt.
6. To file for divorce in Florida, you or your spouse must be a resident of the state for at least 6 months prior to filing or a member of the armed forces stationed in Florida. Fault is not a basis for divorce in Florida. The most common basis to dissolve a marriage is establishing that the marriage is “irretrievably broken”.
7. If you are contemplating divorce, consult with an attorney before you move out of your home. Moving out of the marital residence can have consequences on your time with your children as well as financial implications.
8. Consult with an attorney before you sign anything. Entering into a binding agreement to resolving issues such as time-sharing, division of assets and debts, child support and alimony without the benefit of knowing the law on those issues can have disastrous consequences.
9. You will have an opportunity to engage in settlement discussions with your spouse in a process known as mediation. Neither party can be compelled to settle the case at mediation. In the event you cannot settle your case, you are entitled to have the issues determined by a Judge.
10. Do not argue with your spouse about the issues that will be resolved in the divorce process. Avoid any conflict that could lead to a domestic violence situation.