Family Law FAQs

Q: How Does The Court Decide Who Gets The Kids - Mom Or Dad?

First, there is no "who gets the kid" anymore. We don't even use the term custody per se. The court does what's called a parenting plan. In the majority of the cases, they have a concept called shared parental responsibility, where both parents share in making all the major decisions in terms of education, medical, and things of that nature.

What we used to think of as custody is now called time sharing. A time sharing schedule goes into effect, and that schedule determines what days the kid or kids spend with their mom and what days they spend with their dad. What that schedule looks like depends on what is in the best interest of the child. It can be structured in any number of ways. One parent might have the child more days than the other parent. In that case, we would say that parent has the majority time sharing. The time can also be divided up equally. There's no presumption one way or another as to where the child should go or what the schedule should look like.

There are a number of different factors the courts take into consideration in determining what's in the best interest of the child and those are outlined in, and part of, Statute 6113. There are several different factors, lettered A through T on this. I won't read you all the factors because there are so many. But I can give you an example of what the important ones are and that the court considers.

One is demonstrating capacity and disposition by each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time sharing schedule, and to be reasonable when changes are required. That is the first one listed, and is an important one the court looks at with respect to which parent is going to be more respectful of the other parent's rights. If one parent can demonstrate they're cooperativeness, it will work in their favor when they request more time share than the other parent.

Another factor is the length of time a child has lived in a stable satisfactory environment and the desirability of maintaining that continuity. That basically means the courts don't like to disrupt the child's schedule. If the child is doing well in a certain environment, they're more likely to keep that child in that environment, all other things being equal.

The court will also look at the moral fitness of the parents; mental and physical health of the parents; each parent's capability and disposition to provide a consistent routine for the child, such as discipline, daily schedules for homework, meals, and bedtime. In other words, the court will look to see if one parent is working all kinds of strange hours and is unable to keep a child on task, be there to help the child with homework, etc. The bottom line is always what's in the best interest of the child.

Factor T under the statute is any other factor that is relevant to the determination of a specific parenting plan, including time sharing schedules. Basically the court is saying, "We've listed all the things we can think about right now, but if you come up with any other factor that affect the well-being of the child, the courts can consider that."


Q: How Much Child Support Will You Have to Pay?

There are guidelines in the state of Florida set forth in Statute 6130. A number of different factors come into play in determining the child support obligation. We look at the income of the parties. From income, there are some legitimate deductions, like taxes. Health insurance, union dues, mandatory retirement contributions are also calculated. We start with gross income and then take the deductions to come up with a net income for each party.

We also look at the number of children. We also look at the number of overnights each parent has with the child. Basically, before we get to child support, we have to deal with the time sharing and figure out the days the child is with each parent, and add those days up. Then we come up with the number or percentage of overnights. That's a big factor in determining child support.

We look at cost for the child, such as daycare costs, health insurance, etc. If one parent is paying for one of those things that will be included in calculating the formula and that parent will get credit for paying it.

If we have a person who has been ordered to pay child support in another unrelated case, that information will be figured into the schedule and used to determine that person's ability to pay. All these variables go in to a formula. Most attorneys have computer programs that have the formula. We plug all those things into the program and come up with what the child support should be.

There are some exceptional circumstances that the court can take into consideration. If there are exceptional circumstances, a person can file motions to deviate from the guidelines. For example, if you have a person who has extraordinary medical expenses, or if the child has other needs that aren't addressed by the normal child support calculation. We also look to see if there is any money that comes in for the child and that will be figured into the equation. But typically, we go by the formula and just put in the income, the expenses, and the number of overnights to come up with a child support figure.


Q: Is It True That The Wife Always Gets Custody?

No, that's not true. We don't use the term custody anymore. A parenting plan is set up, where there is normally shared parental responsibility for the child. The parties are given a time sharing schedule, which says that a child is with mom on certain days and with dad on certain days. There is no statutory presumption either way as to who the child is going to live with. Both parties start out pretty much on an even playing field. The court takes into consideration all of the factors under chapter 61, and determines what the time sharing schedule is going to be.

Sometimes we have custody or parenting issues where parties are not married. In those cases, without a court making a finding, there's a statutory presumption that the mother of the child born out of wedlock is the natural guardian of that child. Once a case is filed and they're in court, the unmarried people, like the people that were married, are pretty much on equal footing in terms of the court making a determination about what's in the best interest of the child.


Q: What Are 5 Smart Divorce Moves and What Are 3 Stupid Ones?

One smart move is to hire an attorney experienced in family law. Another smart move is to attempt to resolve as many matters as possible, if not the entire case, through pre-suit mediation before a case is filed. Third is to become educated on all of the finances relating to the marriage. I'll give you an example of that.

I have a lot of cases where people come to me where one party has basically handled all of the finances during the marriage. They paid all the bills and moved all the money around, and then invested it. They have all the knowledge in terms of the finances of the parties. It's difficult when they enter into divorce situation, because the other party does not have enough knowledge about what the finances are in order to make intelligent decisions on how things should be resolved. My advice is to educate yourself as much as possible about finances before filing.

Fourth is to keep the children out of the drama of the divorce. You want to talk to the children about the fact that you're getting divorced, and that you're going to be living separately, but a child should not know any details of the divorce. A child should not even know about child support or alimony. The child should not know any details of the arrangements other than they're going to live with dad on these days and mom on these days.

Children should not be used as a go between to convey messages between the parents. It is a big no-no when the parties are bad mouth the other parent, either directly to the child or in the presence of the child.

Fifth, with respect to the children, is to always promote a healthy relationship between the child and the other parent during the process. Encourage the child to see the other parent and continue their relationship with the other parent even though the divorce is going on.

Another no-no is to try to represent yourself in any aspect of the divorce proceedings. That especially includes mediation. A lot of times people have the attitude that they're going to go to mediation or to court and see how they do, then come back and hire an attorney if they don't get what they want. They're missing the whole point of the mediation process. A case is more likely to settle if a person has mediation. If you go in without an attorney and blow it, you may not have an opportunity to go back in again. My best advice is to never undertake any part of a divorce without having an attorney.

It's always best for parties to communicate as much as possible with each other and not go through third parties. Do not use the children to communicate with each other. That's bad and involves the children in the drama.

We get parties that can't communicate with each other. They want to communicate through the attorneys. When they do that, it gets very expensive; that clock is ticking away at 300 bucks an hour. They need to establish or re-establish some sort of a relationship between themselves, where they can communicate simple ideas without having it fall into war, because they're going to have to do that for several years into the future, especially if there are young children involved.


Q: What Are 4 Rules for Surviving Divorce, Seeing the Kids, and Keeping Your Sanity?

One of the keys is communication during the divorce process. Do everything you can to maintain and keep some type of a healthy relationship going between the parties. That often means that you're going to make concessions in a divorce. I see people that whose number one priority is getting every cent they can out of that other person. When you do that, you do that at a price, because that's often going to have an adverse impact on the relationship that you have with the person. This is especially true when children are involved, which is what we're focusing on here. It's more important to maintain an ongoing civil relationship than to extract every last dime from the other party.

That's an important tip to think more about the relationship. There's not really a situation where you try to win things in a divorce. There are no real winners in the divorce process. A lot of people tend to look at it in a very competitive aspect. Try to drop that mindset. It is much better to resolve things amicably than to have to go to court and have a judge tell you what to do. They have found that agreements are reached in mediation or mutually by the parties are more likely to be followed than when a judge tells the parties what to do.

Most of the time, cases are resolved without going to court, but there are a lot of cases where people have to go to court. Even though a person may get what they want in court, they do so at a price; an impaired relationship with the other party. And, it is a very expensive process to go to court. It costs much more to go to court than it does to resolve a case through mediation. I have seen people bankrupt themselves in attorneys' fees. They end up losing, even if they win in court.

There is a time and place for going to court if things can't be resolved any other way. But it's much better to think collaboratively and try to avoid a war if at all possible. That's probably the best way to survive - try to make the process as smooth as possible.


Q: How To Establish Or Estimate What's Left After Alimony & Child Support?

Alimony is going to be the thing that is addressed first. The amount alimony you get affects the income that we use in determining the child support obligation. And for the child support obligation, we have a formula. We plug numbers into the program and come up with a number statutorily that's going to be ordered in terms of child support. That is a straight forward process unless there are extenuating circumstances. Most of the time child support is going to be child support.

There are different kinds of alimony:

Bridge gap alimony is limited in duration. This is basically alimony that is used to get somebody on their feet and get them established in a new residence, a new job and other transitional things that happen in divorce.

Rehabilitative alimony applies, for example, when one of the parties might need to finish a degree. Once they get that degree, they'll be able to enter the workforce and make as much as the other party. Rehabilitative alimony is meant to facilitate that.

Durational alimony is alimony that is for a limited period of time.

Then there is what most people think of as alimony. This is where a X amount of dollars are paid to someone for the rest of their lives. Typically, permanent periodic alimony is not an issue in cases where the parties are young and have children. Although, we do see situations where there is both. Normally, if there are children involved, we're talking about some sort of a durational or rehabilitative plan. Normally that have children are younger and have the ability to retrain and reenter the workforce.

Short-term is going to be less than 7 years. Moderate-term is between 7 and 17 years and anything over 17 years is called long-term. The length of the marriage affects the likelihood that there'll be an obligation. The other issue the court looks at is the disparity of income between the parties. It doesn't have to be, but in most cases, the marriage should be more than 17 years to be a long-term marriage.

There are situations where in a short-term marriage we look at the disparity between the incomes of the parties. The main issue is the standard of living that the parties had during the marriage, and the needs that one party has, and the ability of the other party to pay.

Unlike child support, there is not a formula in the statutes that says "This is the amount" and we can plug in information and come up with an amount. Alimony is based on more subjective things. There are cases that address it. Judges typically look at that disparity that exists between the incomes and take a percentage of that disparity, usually about 30%. Suppose, for example, one person makes 10,000 more a month than the other person. The court will look at that and say, "Okay, you pay $3,000 a month in alimony."

We calculate alimony first because, for example, if one person makes $2,000 a month, and the other that makes $12,000 a month, the person making $12,000 a month is going to pay the other person $3,000 a month. That shift in income is used to calculate child support. When we sit down and do the formula for child support, the person that was making $2,000 now is making $5,000 with the addition of alimony. The person that is making $12,000 is now down to $9,000 for the purposes of child support calculation. The child support number is going to be lowered as a result.

The other thing that people need to consider in that is there are tax consequences when we're talking about alimony. Typically, it is tax deductible to the person that's paying it and taxable to the person who receives it. The person paying alimony is usually in a much higher tax bracket and gets a tax advantage by paying. The person receiving alimony is penalized for receiving that extra income because they are pushed into a higher bracket.


Q: Is Hiring A Divorce Lawyer Really Worth It?

You must have a divorce lawyer unless you're in a situation where there's nothing at stake. For example, if you've been married for 2 months, don't have any kids, and don't have any assets - you're 19, you made a mistake and you're moving on. That would be the only situation where I would say somebody does not need to hire a divorce lawyer. Otherwise, hiring a divorce lawyer is a necessity. It's not something that you should even consider not doing.

If you hire a divorce lawyer, you need to make sure that he or she is a good one. Hiring the wrong person can sometimes be just as bad as not hiring anybody at all. You want to look at how long the person has been practicing, how long they've been a member of the bar and how much of their practice is devoted to family law. You don't want a personal injury attorney that's just tried a couple divorce cases here and there to bring in extra money. You want somebody that spends at least half of their time devoted to family law.

After that it comes down to the same criteria you would use in determining whether you hire anybody. You want to talk to that person and see if they feel right to you. You're going to have a relationship with that person so you have to be able to get along and have rapport. You also want to feel comfortable with the office staff. If you know other people that have used that attorney, talk to them and find out their experience and whether they were happy. You can't rely on advertising; it's important to make the right match.

So, make sure the person you're considering has some years of experience and is competent and that they devote most or all of their practice to family law. Most attorneys who fit that criteria will do a good job. Once you've established those things, you want to make sure that you feel comfortable with him or her and can establish a good relationship with them. It's about having a good fit.