Alimony and Child Custody in Florida | Diaz Law
Family Law | Vanessa Diaz
Child Custody in Florida:
While no one gets married with the intention of divorcing, oftentimes legal separation and divorce is a reality for many couples with minor children. Once children are involved, soon to be ex-spouses must put their differences aside and think about the best interest of the child.
In fact, the state of Florida mandates that family separation facilitate the best interest of the child, and trial judges in family court have discretion to split marital property, provide for alimony and child support, and structure child custody agreements equitably.
While there are a plethora of topics regarding divorce to address, let’s focus on the big three: division of marital property; alimony; and child custody.
Dividing Marital Property
First, circuit courts look to divide marital property equitably, giving preference to the marital home for a spouse with whom minor children will live. But what is marital property? Marital property are assets and liabilities that were acquired by either spouse during the period they were married.
For example, if Michael and Mary married on January 16, 2017 and divorced on April 16, 2018, any property acquired by either spouse between that period is considered marital property, while any property either spouse had prior to January 16, 2017 would not be considered marital property.
What about gifts received by either spouse?
While gifts, bequests, devises, or inheritances received by one spouse during marriage are not considered marital property, these assets have the ability to transform into marital property.
Some ways that non marital property can transform into marital property is if the recipient spouse deposits the assets into a joint account with their spouse, which may make it an inter spousal gift, or if the other spouse expends their resources or marital resources to make the asset their spouse received grow or appreciate in value.
In this case, the income generated on the asset from the resources of the other spouse will become marital property, while the underlying asset still remains non marital property. Spouses can also form pre-nuptial agreements or post-nuptial agreements that except certain assets from being marital property.
How do courts divide marital property?
It is important to remember that courts will divide marital property equitably, not equally. Thus, no spouse is entitled to exactly 50% of a particular marital asset, unless a specific valuation of the property has determined that.
Factors that courts consider with respect to equitable distribution of marital property include: the length of the marriage; contributions by each spouse to the marriage; any sacrifices either spouse may have made such as giving up a career or educational goals for the sake of the marriage; desirability of maintaining a business free from the interference of the other spouse; and any misconduct during the marriage that may have affected marital assets.
Now, that division of marital property has been addressed, spouses going through divorce may want to think about their support needs. There are five types of alimony that either spouse may request: temporary alimony, also known as pendent lite alimony; bridge-the-gap alimony; rehabilitative alimony; durational alimony; and permanent alimony.
To award alimony, the court must make factual findings that the spouse requesting alimony needs it, and that the other spouse has the ability to pay alimony without financial detriment to themselves. The court also considers the duration of the marriage when awarding alimony. This type of alimony is usually given during the pendency of divorce proceedings, which is why it is usually temporary alimony and lasts only as long as the divorce lasts. Spouses who usually need such temporary financial support may also find themselves requesting support for the payment of attorney’s fees. In awarding attorney’s fees, the court takes into consideration the same circumstances such as need and ability to pay.
Bridge-the-Gap alimony is given to help an ex-spouse transition from being married to being single. This type of alimony is limited to two years and helps with limited, short-term needs. Because this is supposed to help a spouse in their transition into single life, if that spouse were to marry again while receiving such alimony, it will be terminated.
Rehabilitative alimony is given to help an ex-spouse become self-sufficient now that the marriage is over. For example, such alimony can help an ex-spouse get the education or training they need to get a job or new career. Because such alimony is given for a specific rehabilitative purpose and follows a plan, such alimony is terminated once that plan is completed, if the ex-spouse abandons that plan, or if there is a substantial change in circumstances. This type of alimony is usually given when permanent alimony is inappropriate. Such alimony is usually given for marriages of moderate to long duration, and the duration of such financial support is limited by the duration of the marriage. The duration of this alimony may only be changed for exceptional circumstances. This type of alimony is usually terminated at the end of the term for which it was awarded.
Permanent alimony is only appropriate for marriages of long duration and for an ex-spouse who is incapable of becoming financially self-sufficient after the divorce. A court may award permanent alimony for marriages of moderate duration, but that is usually after considering certain factors. Permanent alimony will be terminated when the ex-spouse dies or remarries; or if there is a substantial change in circumstances, it may be modified.
Child Custody and Time sharing
The most rancorous part of divorce and separation is what happens to minor or dependent children. Under Florida law, the court “shall determine all matters relating to parenting and timesharing of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act.” 2018 Fla. Stat. § 61.13.
This means that the court will facilitate a parenting plan with both parents that aligns with Florida’s public policy of encouraging the child to have frequent contact with both parents and encouraging both parents to share child-rearing rights and responsibilities. Contrary to popular perception, mothers do not have a presumption of child custody in their favor. In Florida, there is no presumption in favor or against the father or mother of the child when it comes to custody.
However, the court will consider whether any parent has certain criminal convictions, including for domestic violence or child abuse, which may drastically effect child custody arrangements. Parenting plans with respect to time sharing will provide for the following: education, healthcare, holidays, religious activities, travel, and which parent may make certain decisions regarding the child in emergencies.
When it comes to paying child support, both parents have responsibility to support their minor child. Child support is regulated by statutory guidelines, the child’s monetary needs, and each parent’s ability to pay. Courts do have the discretion to adjust child support, but any adjustments in excess of 5% must be supported by written findings.
While these are only a few of the issues regarding divorce, alimony, and child custody, it is always important to seek legal counsel that can help guide you through this difficult time.
Read more about Child Custody Laws & Statutes in Florida here: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0061/Sections/0061.13.html
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