A divorce is comprised of several different aspects, depending on your marriage and life situation. The fundamental shared aspect in all divorces is the termination of your legal attachment to your spouse, which can also detach you from your spouse’s future debts and decisions. To achieve this separation, Florida law requires the judge to find that your marriage is irretrievably broken and that further marriage counseling will not cure it. Usually this element of divorce is not difficult to prove and often both parties will agree that their marriage has reached its end.
The more practical matters of your divorce is where conflict usually occurs. It is important to ensure that your interests and needs are respected while these aspects are worked out. Some common issues are:
- Parenting plans and timesharing agreements for minor children
- Equitable division of assets and liabilities that have accumulated during the marriage
- Financial agreements, including alimony and child support payments.
Brady Family Law can offer you a complete tailored approach to your individual needs and goals during your divorce. With our help, your divorce can be a fresh start.
Parenting Plans and Timesharing
In the State of Florida, the terms “custody” and “visitation” have evolved into the concepts of “parenting plans” and “timesharing”. These plans are meant to be a collaborative effort on the part of both parents to foster a good relationship with the children. Controlled by Florida Statute Sec. 61.13, a Parenting Plan is a broad concept that encompasses all of the issues that may arise regarding a minor child, including:
- Responsibility for the daily tasks associated with raising a child
- Timesharing schedule that specify the time that the minor child will spend with each parent, including holidays and special occasions
- Which parent will be responsible for healthcare
- School-related matters, such as extracurricular activities and sports
- Methods and technologies that the parents will use to communicate with each other and their child.
The primary consideration of the court when creating a parenting plan is the best interests of the minor child or children. It is generally the policy of the courts that both parents should be encouraged to participate in their child’s life by having frequent contact with their child on a regular basis. Therefore, both parents are typically awarded shared parental responsibility unless the judge finds that there are serious overriding concerns that would be detrimental to the child. Both parents would be afforded an opportunity to present evidence on this issue.
Brady Family Law can help you with creating a thorough and well-thought out parenting plan that will cover these important child-sharing matters. We can ensure that the timesharing schedule is fair to you, your ex-spouse and your child. Please call to find out more about how we can help.
Parenting Plan Modification
The grounds for modifying a parenting plan or time-sharing schedule are: 1) there has been an unanticipated, substantial or material change in circumstances since the judgment was entered and 2) the child’s best interests will be advanced by the requested modification. The substantial change in circumstances must not have been reasonably contemplated at the time of the original judgment. Thus, a petitioner must present new evidence as to the parties’ factual circumstances that was not presented – or anticipated – at the original hearing.
In deciding what would be in the best interest of the child, the court will consider several factors that are outlined in Florida Statutes Sec. 61.13(3). Some of those factors are:
The demonstrated capacity and disposition of 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.
The extent to which parental responsibilities will be delegated to third parties.
The mental and physical health of the parents.
The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline and daily activities for homework, meals and bedtime.
The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
Modifying a parenting plan to reflect your life as it is currently, is an important matter that deserves a thorough and thoughtful approach. Please contact Brady Family Law to help you with these changes.
A party who seeks modification of alimony must demonstrate that there has been a substantial change in the circumstances or financial ability of one or both parties since the award was made. The party seeking to modify alimony must prove by clear and convincing evidence that there has been 1) a substantial change in circumstances, 2) that the change was not contemplated at the time of the final judgment, and 3) that the change is substantial, material, permanent and involuntary.
One possible change in circumstances is the existence of a supportive relationship of the party receiving alimony. The factors that the court must consider to decide if a “supportive relationship” exists are found in Florida Statutes Sec. 61.14(b)(2). Some of those factors are:
- The extent to which the obligee and the other person have conducted themselves in a manner that evidences a permanent supportive relationship.
- The period of time that the obligee has resided with the other person in a permanent place of abode.
- The extent to which the obligee and the other person have pooled their resources or income or otherwise exhibited financial interdependence.
- The extent to which the obligee or the other person has performed valuable services for the other or the other’s company or employer.
- Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.
- Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.
Another substantial change of circumstances could be the ability of the obligor to pay. A court could find this circumstance appropriate if the obligor has suffered a reduction in income without deliberately seeking to avoid paying alimony and has acted in good faith. The loss of a job does not automatically quantify as permanent loss of ability where the obligor has the means and capability to secure alternative employment. Instead, a temporary or permanent adjustment might be granted. Call Brady Family Law to discuss how we can help you today.
Prenuptials & Postnuptials
Though a couple may be in love and work hard at a relationship, financial matters and decisions can cause unwanted stress and discord. Getting a prenuptial or postnuptial agreement can help the relationship, as it removes any financial uncertainty from the equation. Should you later decide to get a divorce, these agreements can help you in many ways, including making the process of divorce easier and quicker.
A prenuptial agreement is simply a legally binding contract between the bride and groom, signed prior to walking down the aisle. A prenuptial agreement will determine how assets are divided should the couple choose to divorce in the future. Prenuptial agreements provide a framework for divorcing couples to leave the marriage with the same assets they came into the union with, on terms they agree are fair before any anger or resentment from a divorce color their perspective. Prenuptial agreements also serve to protect children from a previous marriage in case of the death of their remarried parent.
Similar to a prenup, a postnuptial agreement helps to lay out which assets belong to which spouse and how these assets should be divided in case of a divorce. The main difference between these two types of agreements is simply when the contract is signed. A postnuptial agreement may occur after the wedding, but it is no less valid than a prenuptial agreement.
By drafting and/or reviewing a prenup or postnup agreement with an experienced lawyer before signing, you can secure favorable provisions in the agreement and render ineffective any attacks to its validity. Please call Brady Family Law to schedule a consultation.
Equitable Distribution in Florida presumes that for the most part, assets and liabilities are equally divided between the parties. However, there are exceptions to this concept that may require the help of a qualified family law attorney to discern. Courts may consider factors such as the existence of an asset or liability prior to the marriage, marital effort to enhance an asset, and the intentional dissipation or wasting of an asset or creation of a liability. Courts may also consider and distribute pensions, retirement plans, annuities, business interests, stock options and deferred compensation.
Florida Statute Sec. 61.075 lists the factors that the court will normally consider when determining the division of assets and liabilities between parties. Some of those factors are:
- The contribution to the marriage by each spouse, including the care and education of the children and homemaker services.
- The economic circumstances of the parties.
- The duration of the marriage.
- The contribution of one spouse to the personal career and education of the other spouse.
- The desirability of retaining the marital home as a residence for any dependent child.
As you can see, distributing assets and liabilities of a marriage can be a complicated and difficult task. If needed, we can hire the services of a forensic accountant, appraiser or other qualified professional in order to help you develop strategies and valuation methods to ensure an equitable and fair result. Please call Brady Family Law to schedule a consultation.
Florida, home to millions of grandparents, is ironically one of the toughest states in which to win grandparent visitation. The law allows suits for visitation only in an extremely narrow set of circumstances. Florida Statute Sec. 39.509 states that a grandparent or stepgrandparent is entitled to reasonable visitation with a grandchild if that child has been adjudicated a dependent child and taken from the physical custody of the parent. Florida Statute Sec. 752.011 will allow a petition for grandparent visitation if one parent is deceased, missing or in a persistent vegetative state and the other parent has been convicted of a felony or an offense of violence evincing behavior that poses a substantial threat of harm to the child’s health or welfare. Obviously, these provisions apply to only a small percentage of potential cases.
The reason it is so difficult for grandparents to gain court-ordered custody, is that Florida is very protective of the privacy of its citizens. The courts have repeatedly interpreted requests for visitation from grandparents as assaults on parental privacy. If you have a question about grandparent visitation rights to a minor child, please call Brady Family Law to see if we can help.
Modification of Child Support
Both parents have the duty to contribute equally to the support of their child. Each parent’s duty of support continues during the marriage and after its dissolution. An agreement between parents that provides for child support, whether or not it has been incorporated into a final judgment of dissolution, is distinguishable from a “property settlement” and is subject to modification based upon need, ability to pay and other relevant factors.
The party who seeks a modification of child support has the burden of proving, by a preponderance of the evidence, that there has been an unforeseen, involuntary, permanent and substantial change of circumstances justifying modification. Modification of child support is within the sound discretion of the circuit court and a modification order will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion.
If you have experienced a substantial change of circumstances that requires modification of child support payments, please call Brady Family Law to discuss your options.
Domestic Violence and Protective Orders
Florida law provides four different types of injunctions and restraining orders as follows: Domestic Violence Injunctions, Dating Violence Injunctions, Repeat Violence Injunctions and Sexual Violence Injunctions. The court should issue an injunction if the petitioning party can demonstrate that there is “an immediate and present danger of violence” against you. The first step is to file a petition with the court. A judge will then review the petition to determine whether to issue a temporary injunction. At this point, the judge only considers what is alleged in the actual petition and nothing else. If the judge issues a temporary injunction, a final injunction hearing will be scheduled within 15 days. At this final hearing, each party is given the opportunity to present any witnesses, photographs or other evidence to support or defend against the claim. If the judge issues a final judgment for protection against violence, the injunction will remain in effect until it is modified or dissolved by the court. Injunctions issued in Florida are enforceable nationwide.
If you are in need of an injunction or are defending yourself against one, contact Brady Family Law today.