Family Law In A Nutshell

In these United States, the dissolution of a family unit is governed by state statutory law. The family laws of Florida can be summarized into seven main categories: jurisdiction, child support, contact or time sharing, insurances (health & life), alimony, division of property (real & personal) and allocation of debts. The statutory law in Florida governing divorces or contact with children is Chapter 61, which can be viewed at http://www.leg.state.fl.us/statutes/.

Jurisdiction is concerned with what court will hear the case. Many years ago the individual states adopted a law titled the "Uniform Child Custody Jurisdiction Act". The heart of the UCCJA is the residency requirement. A residency requirement restricts parents from removing a child from one state to another for purposes of divorce or custody. The law provides that the court of proper jurisdiction is the court of the child's domicile. A child's domicile is presumed to be his last residence for a period of six consecutive months. Where no children are involved, the domicile of the parties at the time of physical separation normally is the county with jurisdiction.

The term custody is no longer used in Florida. The statutes now refer to contact or time sharing. Time sharing plans are a very emotional area of the law. The law favors neither party. The law is written in terms of both parents sharing parental responsibility. The primary concern of the courts is what is in "the best interest of the child." Some of the factors the court looks for when deciding to amount of time sharing are: interaction and interrelationship of child with parents and siblings; emotional and physical health of parents; age, maturity and motivation of all concerned; economic and physical environment; moral and spiritual training; whether a parent hinders or promotes child's contact with other parent; parents drinking habits, substance abuse and personal habits; stability of physical and familial surroundings; historically who provided the meals, clothing, health care, psychological support, supervision, discipline, care and guidance of the child; age, sex, preference, mental and physical health of child; parents employment and residency history; parents' emotional response towards child's needs; enhancements and motivation of child's talents; recommendations of guardian ad litem, family counselor, psychiatrist and psychologist reports; parents ability to promote child's relationship with others; length of time child lived with one parent; educational needs and opportunities; child's adjustment to school and community; reasons for dissolution; harassment or abuse in family; least disruption to child's established routine; motivation of parents seeking custody; parents communication with child and others; etc...

Child-Support, by law, is the responsibility of both parents and how much each parent pays is determined by mathematical formulation. The formula can be viewed by reading the child support guidelines of F.S. §61.30. To determine the amount of child support paid by each parent you divide the statutory amount by the parent’s “percentage of contribution”. A parent’s “percentage of contribution” is determined by dividing each parent’s monthly individual “net income” with the parties “combined net income”. The following example approximates the calculation to determine “percentage of contribution” to� child support when time sharing is less than 60% – 40% split.

Individual Net Income divided by Combined Net Income equals Percentage of Contribution
Husband $1950 ÷ $3510 = 55%
Wife $1560 ÷ $3510 = 45%

Using the above examples, the statutory amount for one child is approximately $740. See F.S. §61.30. If� residential care of one child is with the wife, the husband will pay $405.90 per month, representing 55% of the statutory amount. The wife would be responsible for $332.10 per month, representing 45% of the statutory amount. The amount of child support paid is in direct proportion to a person’s financial contribution to the family’s net monthly income and the amount of time the parents share with the children. In other words, the more you make the more you pay. The more time sharing with the children the less you pay. For those who net more than $25,000 per month, there are legal limits on amount of child support you will pay.

Childcare Expenses: The above statutory amount of support is the basic minimum support without childcare expenses incurred do to employment. Childcare expenses can substantially affect the amount of child support paid. By present law, the amount of monthly childcare costs incurred due to employment are reduced by 25% (percent) before being added to the basic support obligation. Each parent is generally responsible for childcare costs in accord with the ratios of their income percentages. If day care or after school care is $400 per month, then $300 will be added to the statutory amount and divided in accord with each parties percentage of contribution. In the above example, the Husband's basic support obligation will increase by $165 per month if the childcare costs are included. There are built in limits on childcare costs in that childcare costs shall not exceed the level required to provide quality care from a licensed caretaker. Child support may also be affected by the amount of time the each parent spends with the child. As with custody, it is also better for all concerned if child support could be resolved between parents without a fight?

Insurances of which the Courts are concerned are health insurance for the children and life insurance to protect the child support obligation. Health insurance must be reasonably available for the Court to order payments. Insurance is reasonably available if it is offered by your employer. If health insurance is not reasonably available, the costs of non-covered medical and dental expenses will be the responsibility of both parents. The Court may order health expenses to be paid on a percentage basis. If not prohibitive, life insurance may be required to protect the child support obligation in the event the payor dies before the child reaches majority or becomes emancipated.

Alimony is financial support from one spouse to the other. There are four (4) types of alimony: permanent, rehabilitative, bridge the gap and lump sum. In a proceeding for dissolution of marriage, the court may grant alimony to either party.

Permanent alimony is financial support, from the payor to the payee, until such time as the recipient remarries. Permanent alimony is reserved for long term marriages, terminates on recipient’s remarriage and is based on party’s need and the other party’s ability to pay.

Rehabilitative alimony is temporary support during the divorce transition period for a number of months or years to allow the payee sufficient time to rehabilitate his/her life to complete studies or acquire employment and is based on need and ability to pay. Rehabilitative alimony is modifiable unless stated otherwise.

Bridge the Gap alimony is short term financial assistance to help a spouse in need with moving costs, deposits and start up money. Bridge the Gap alimony is also based on need and ability to pay.

Lump sum alimony is a set amount of money paid in a lump sum or installments at the end of the case. Lump sum alimony is generally used to transfer assets between the parties to accomplish an equitable distribution. Lump sum alimony is not modifiable.

In determining an award of alimony, the court considers economic factors such as: the standard of living established during the marriage; the duration of the marriage; the age, physical and emotional condition of each party; the financial resources of each party; the non-marital assets, marital assets and liabilities distributed to each; the contribution of each party to the marriage, including, services rendered in homemaking, child care, education, and career building of the other party; all sources of income available to either party; and when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. Additionally, the court may consider any other factor necessary to do equity and justice between the parties including the adultery of either spouse.

Two fundamental elements in the determination of alimony is one, “whether the payor has the ability to pay an award of alimony without substantially endangering his/her own economic status” and second, “whether the payee is in need of support.” In answering these two questions the Courts look at the past earned income, present earned income and anticipated future earned income of each party. See the article on Legal Research for a better understanding.

Division of Property is concerned with the distribution of property acquired by the parties during the marriage (marital assets). Property is divided into two categories, real and personal. Real property is real estate, land and structures. Personal property is all other, including money, stocks, furniture, vehicles, appliances, bank accounts, retirement or pension plans, 401Ks, etc…

Assets are also classified as marital and non-marital. Marital assets are those assets (property) purchased or acquired during the marriage by either party. Non-marital assets are those assets acquired by a party outside of the marital relationship. Examples are inheritance and assets acquired prior the marriage. A non-marital asset will become a marital asset if placed in a joint account. The Courts generally divide the marital assets equally between the parties under a theory of equitable distribution.

Allocation of Debts is concerned with the division of the financial obligations of the parties incurred during the marriage. If the debt owed benefited the family, the debt will probably be divided between the parties, all other factors being comparable. If the debt incurred benefited an individual, then that individual may be responsible for the debt. Again, the earning capacity of each party may be considered by the Court when it comes to allocation of the debts.

It should be remembered that the joint debts and obligations owed to a creditor cannot be transferred to one party without the approval of the creditor. That means, even if the Court grants an asset, the house to the wife, the husband will not be able to remove his name off the house unless the mortgage company agrees by allowing the wife to refinance the mortgage in her name alone.

This concludes the summary on family law. As you can see family law may become complicated with many possible pit falls. There are several ways to resolve a separation, ranging from inexpensive consultation, to pre-litigation mediation, to costly litigation. If you have a family issue and wish guidance, please contact the office for assistance.

This outline gives a summary of family law in Florida. There are many factors that would affect the timing and approach to family law proceedings. There are alternative ways to resolve your family law issues, ranging from an inexpensive consultation, to mediation, to litigation. For specific information directed to your situation please contact this office at your convenience.