Family Law & Divorce FAQ

Each person’s situation is unique and requires a thorough investigation and a specific plan of action. For those who are looking for some initial insight into divorce and family law, Ms. Goetz has compiled a series of YouTube videos offering brief responses to some frequently asked questions. For in-depth information, please contact the office of Nicole L. Goetz, P.L.

 The information provided on law and legal topics is designed for general informational purposes only and does not constitute nor should it be considered legal advice. Nothing contained on this site or in the following videos is intended as a substitute nor should it be considered a substitute for legal advice from an attorney.

For answers to frequently asked questions, please review below.

Alimony

If you have a valid common law marriage, yes, you should be able to receive an award of alimony in Florida if you can establish your entitlement to alimony pursuant to the statutory considerations set forth in Section 61.08 of the Florida Statutes.

Pendente lite alimony is basically alimony that’s awarded on a temporary basis or alimony awarded during the pendency of your dissolution of marriage case.

Permanent spousal support is available typically as a result of a long-term marriage where one spouse, the recipient spouse, can demonstrate entitlement to support based on the statutory considerations set forth in Section 61.08 of the Florida Statutes. However, it can also be awarded in shorter marriages where a party seeking an award meets a higher burden of proof. In cases where a court awards permanent alimony, it must include a finding that no other form of alimony is fair and reasonable under the circumstances. A preliminary determination of whether any alimony, including permanent alimony, is available is a finding of one party’s need for support and the other party’s ability to pay support. Permanent spousal support is support that terminates on either party’s death or the recipient party’s remarriage, but it can be modified and sometimes terminated when there has been a substantial change in circumstances that results in one spouse’s increased need or the other spouse’s decreased ability to pay support or upon the existence of a supportive relationship. A substantial change in circumstances can be based on a party’s retirement, cohabitation in a supportive relationship, or other substantial change that was not considered by the Court or the parties at the time of the judgment.

The amount of temporary alimony in Florida is determined based on the financial circumstances of the parties. It is principally determined by taking a look at the recipient spouse’s need for temporary alimony and the payor spouse’s ability to pay that alimony.

One of the factors in determining whether or not alimony should be awarded is the spouse’s contribution to the education of the other spouse. It is simply a factor that the court considers in determining whether or not to make an award.

Marital fault, typically, has virtually no impact on an award of alimony in the State of Florida. Florida is a no-fault state, so proof of fault is generally not permitted. Fault rarely comes into play in an alimony award, and if it is considered, it generally relates to the limited circumstance where a spouse has depleted or dissipated assets during the marriage. In that instance, the court may consider fault in making an award.

The factors that the court is required to consider are set out by statute for the court. In Florida, the amount of alimony, the duration of alimony and the type of alimony will be heavily dependent on the length of the marriage, the age, physical and emotional condition of the parties, their contributions to the marriage, as well as the recipient party’s overarching need for alimony and the payor spouse’s ability to pay that alimony.

Unless otherwise agreed, permanent spousal support, otherwise known as alimony, generally is modifiable or terminable in Florida. Some modification events may include a payor spouse’s decreased ability to pay or increased ability to pay, or the recipient spouse’s decreased or increased need for spousal support. Spousal support can be subject to modification or in some instances, termination, when a recipient spouse cohabits in a supportive relationship with another or when the payor spouse retires. Spousal support is terminable when the recipient spouse remarries or either party dies.

Alimony works in Florida by determining whether or not a spouse has a need for alimony. That need generally is comprised of what is reasonable and necessary as a result of the standard of living established during the marriage, and it is also based on the other spouse—the payor spouse’s—ability to pay spousal support. There are a number of factors that the court also considers, including the length of the parties’ marriage, to determine whether or not an amount the spousal support should be awarded.

You may have to pay alimony in your divorce in Florida. Those types of decisions are very fact- specific but usually they are driven based on the needs of one spouse and your ability to pay alimony as well as the court’s consideration of the factors set forth by statute.

Generally, the spouse’s commission of adultery does not have any impact on whether or not they pay alimony or whether or not they receive alimony. Florida is a no-fault state and so the actual acts that lead to the breakdown of marriage largely become irrelevant for the trial court.

One of the best ways to limit your exposure to alimony is by having a prenuptial agreement. In most situations, the court will recognize an alimony waiver.

In Florida, the parties generally are entitled to agree to any terms that they would like to as it relates to spousal support. The parties certainly can agree to an anti-modification provision in their marital settlement agreement.

The time that alimony stops depends on the type of alimony that is awarded. Temporary alimony, by its terms, cannot extend beyond the pendency of the action. Bridge-the-gap alimony, which is intended for a short-term purpose, cannot generally extend beyond two years. Rehabilitative alimony is generally for a set period established by the rehabilitative plan. Durational alimony is generally for the set period of time as ordered by the court or agreed by the parties, but generally it cannot extend beyond the length of the marriage. And permanent alimony extends until either party’s death, generally, or until the recipient spouse’s remarriage or termination by the court.

Your ex-spouse may not have to pay alimony or continue to pay alimony if you’re living with someone in a supportive relationship or if your needs have permanently decreased. However, until the order for alimony is modified or terminated by the court, that obligation does continue.

Men certainly can seek alimony in Florida. The award of alimony is not dependent on the gender of the recipient spouse.

Child Support

Joint custody, or what we now term in Florida parental responsibility and the time-sharing arrangement, can impact child support in Florida. Child support is generally calculated not only based on the number of children, the income of the parties, and certain other factors, but it is also based on the number of overnights each party has with the children. The number of overnights has an impact on child support because of the belief that the parent with a higher number of overnights incurs additional expense for benefit of the children than the parent with a lesser number of overnights. So, in that respect the number of overnights that you have with the child can impact your child support.

In a temporary hearing, the judge has the ability to award different forms of relief on a temporary basis. So, for instance, if you’re in need of child support and can establish the necessary facts to receive an award of child support, you can get child support in a temporary relief hearing. Similarly, the court can award spousal support, a partial distribution of assets, attorneys’ fees and other forms of temporary relief.

If a court determines that you are entitled to spend more time with your children, it may be possible to seek or to receive a lower child support obligation. In Florida, child support is based not only on the number of children and the income of the parties as well as certain other factors that go into the calculation, it is also based to a certain extent on the number of overnights that a party spends with their child. The reason for that calculation is because it’s assumed that a parent who is spending more time with the child is assuming more of that child’s expenses, and the other parent who has less time with the child has less expense as a result.

If you are in default of your child support order that means you have not paid your child support as required under the court order. You can be subject to penalties for nonpayment, including a finding that you are in contempt or that you’re in willful violation of the court order. If the court makes that finding, a number of things can be done including placing you in jail until you actually make that payment.

Florida child support laws and guidelines are generally found at Section 61.30 of the Florida statutes. Within that statutory section, it lays out the calculation of child support that the court does when it is making a child support order.

Your ex-spouse may be able to make you pay for private school for your child in Florida if private school was something that was enjoyed by the child during the marriage, you currently have an ability to pay for private school, and continuing to attend private school is in your child’s best interests.

In Florida, you can increase your child support by filing a supplemental petition for modification of child support. You must be able to show a substantial change in circumstances, though, since entry of the child support award.

In Florida, we don’t necessarily use the term joint custody but in a situation where you have equal time-sharing with the other parent it may be possible that your child support obligation is close to the same as your spouse. Child support is determined based on a presumptive amount set forth under the Florida statutes and it’s largely dependent on the number of children, the income of the parties, and certain other factors that we’re required to look at in calculating child support.

Collaborative Law

The members of the collaborative divorce team can vary depending on the factual circumstances of the case, but at a minimum it’s the parties to the action as well as their attorneys, and it can include mental health professionals—either jointly or individually—as well as financial professionals hired either jointly or individually.

In Florida, there are several alternatives to going to court. First, there is mediation. Mediation is basically a process in which you attempt to sit down with your spouse and/or their attorney and you try and resolve the case with the help of a neutral third-party facilitator. Another option is arbitration. Arbitration is available for certain issues, though not all issues, in a case. It is similar to having a judge decide your case, but it may prove more cost-effective. There is also negotiation, where the parties reach a settlement without the assistance of anyone other than possibly their attorneys. And finally, there is collaborative law. Collaborative law is a contractual alternative to the litigation process.

Collaborative law is different from litigation in Florida. It’s a voluntary agreement by the parties and their attorneys to expressly avoid litigation. Collaborative law is basically an agreement where the parties agree to follow a certain procedure and process in an attempt to resolve the matter without the court’s assistance. And in fact, if they fail in doing that then they agree that the attorneys that they’ve hired to represent them in the collaborative process cannot proceed if the matter needs to be litigated.

Couples who wish to avoid the trauma of a litigated dissolution action should consider a collaborative divorce in Florida. Collaborative divorce in Florida, if successful, allows the parties to craft a settlement in a setting that is less likely to cause long-term effects on a family’s ability to cooperate and parent their children together. However, not every case is suited for this approach, and careful consideration of the parties, the issues and the costs should be considered before agreeing to this limited form of representation.

Collaborative divorce in Florida is an agreement by contract between the parties and their counsel to essentially avoid litigation. The parties agree to participate in the collaborative process and if they are unable to reach an agreement, the attorneys are discharged in the event the case needs to be litigated.

Divorce

In Florida, there is no such thing as legal separation. Parties can be separated and they can enter an agreement that has legal impact, however legal separation is not recognized in Florida. Florida does however recognize a judicial dissolution of the marriage and that is divorce.

There is very little basis for an affair to be used against a spouse in a divorce in the State of Florida. Florida is a no-fault state, so no basis for the breakdown of the marriage needs to be proven and none is permitted, generally. In Florida, the only relevance that an affair may have is if it’s had an impact on the financial situation of the parties or if a party has caused the other to be infected by a sexually transmitted disease. In other words, if your spouse has utilized marital funds to pay for the affair or to gift to the other party the court may consider those facts in addressing the division of assets or less frequently an award of alimony. Similarly, if your spouse has infected you with a sexually transmitted disease, in certain circumstances, that may be the basis for an increased monetary award.

There are several things you should consider bringing with you when you meet with your divorce attorney. If you have a prenuptial or postnuptial agreement, you will certainly want to ensure that you bring that to your meeting or provide it in advance. You should consider bringing some relevant and concise financial information if you have it so you can discuss your financial picture completely with your divorce attorney. Additionally, you may want to organize your thoughts as it relates to specific facts that you are concerned with relating to your children, if there are issues in that regard. And, you may want to bring an itemized list of questions so that you can remember what you would like your divorce attorney to answer for you.

The members of the collaborative divorce team can vary depending on the factual circumstances of the case, but at a minimum it’s the parties to the action as well as their attorneys, and it can include mental health professionals—either jointly or individually—as well as financial professionals hired either jointly or individually.

If you reconcile and you’d like to cancel the divorce, it’s really a simple procedure in which the case is dismissed by the parties because of that fact. You do not need to feel committed to going forward with the dissolution of marriage action. It can be dismissed at any time up to the time that a final judgment is entered.

In Florida, there are several alternatives to going to court. First, there is mediation. Mediation is basically a process in which you attempt to sit down with your spouse and/or their attorney and you try and resolve the case with the help of a neutral third-party facilitator. Another option is arbitration. Arbitration is available for certain issues, though not all issues, in a case. It is similar to having a judge decide your case, but it may prove more cost-effective. There is also negotiation, where the parties reach a settlement without the assistance of anyone other than possibly their attorneys. And finally, there is collaborative law. Collaborative law is a contractual alternative to the litigation process.

There is no right to a jury trial in a divorce case in Florida. In Florida, divorces are tried by judges in what’s called a bench trial, where the judge is the fact finder and not a jury.

It is possible to change attorneys in the middle of your Florida divorce case. You should feel comfortable with the attorney you have chosen to represent you in your dissolution of marriage action, and if you don’t feel comfortable with your choice of counsel you should feel free to choose another attorney. You should keep in mind, however, that changing attorneys multiple times adds expense to your case and it also may cause the opposing attorney as well as the judge to have the wrong impression about your case and/or you as a litigant.

Equitable Distribution

In Florida, any property owned by the parties or any debts owed by the parties are subject to equitable distribution by the court. In equitable distribution, the court sets aside each party’s nonmarital assets and or liabilities and then they take the parties’ marital assets or marital liabilities and distribute those—presumptively on an equal basis.

You can make your husband repay the money he cleaned out of the bank account if you are able to establish at the time the property was divided that your husband wasted marital assets or intentionally dissipated marital assets. If that money was used to simply cover reasonable and necessary living expenses, then you may not be able to get that money replaced.

You may have to share your pension after your Florida divorce. In Florida, pensions, if they are marital assets, are subject to division like any other asset that comes about as a result of your marriage. They may also be a source of spousal support, depending on the facts of the case.

In your Florida divorce case, you can absolutely decide how to divide your property. Agreement on issues, is helpful, and as it relates to personal property, which tends to be of little value, it makes sense to settle those disputes and avoid unnecessary costs in litigation.

Mediation

Mediation in your Florida divorce case can last anywhere from an hour to multiple days depending on the issues presented in your case. The complexity and the number of issues drives the amount of time that it may take to resolve your case through mediation.

Mediation and arbitration differ in that mediation is a process where the parties and their attorneys—if attorneys are involved—get together with a neutral third party mediator, a third party facilitator that is specially trained to try and help the parties reach a voluntary agreement in their matter. Arbitration on the other hand is like a court setting where evidence and testimony is presented to a third party, and much like a judge, that third party makes decisions that impact the parties in the case.

In Florida, there are several alternatives to going to court. First, there is mediation. Mediation is basically a process in which you attempt to sit down with your spouse and/or their attorney and you try and resolve the case with the help of a neutral third-party facilitator. Another option is arbitration. Arbitration is available for certain issues, though not all issues, in a case. It is similar to having a judge decide your case but it may prove more cost-effective. There is also negotiation, where the parties reach a settlement without the assistance of any parties other than possibly their attorneys or the parties themselves deciding a settlement that is appropriate for them. And finally, there is collaborative law. Collaborative law is an alternative to the litigation process.

In your Florida divorce case, the mediator is a neutral third party who’s there to basically facilitate a settlement between you and your spouse.

Divorcing couples should consider mediation in Florida because it gives the parties an opportunity to decide the outcome of their case without it being imposed on them by a third party who has limited knowledge of the facts of what they are facing. Mediation is a litigation alternative available in every case to the parties if they choose to avail themselves of that remedy.

Time-sharing

Joint custody, or what we now term in Florida parental responsibility and the time-sharing arrangement, can impact child support in Florida. Child support is generally calculated not only based on the number of children, the income of the parties, and certain other factors, but it is also based on the number of overnights each party has with the children. The number of overnights has an impact on child support because of the belief that the parent with a higher number of overnights incurs additional expense for benefit of the children than the parent with a lesser number of overnights. So, in that respect the number of overnights that you have with the child can impact your child support.

In Florida, the only time that a grandparent can win custody against the natural parent is when there has been the parent’s consent, or when that parent has been determined to be unfit, or when there is a circumstance that the child has been abandoned, abused or neglected and the court has found that.

Grandparents who temporarily care for the grandchildren generally do not have many rights. However, they can secure an order that will give them the opportunity to consent to medical treatment for the grandchildren that they are caring for, that will allow them to enroll them in school, and to do certain other items relative to the grandchildren they are caring for.

Historically, grandparents generally have not had rights of custody or visitation with their grandchildren in the absence of what the parents will voluntarily grant to them, or unless the parent has been determined to be unfit, or unless the state has stepped in and has found that there has been child abuse, abandonment or neglect. However, with the passage of Section 752.011, in 2015, the legislature provided for some additional very limited circumstances in which a request for visitation may be entertained.

Historically, grandparents generally have not had rights of custody or visitation with their grandchildren in the absence of what the parents will voluntarily grant to them, or unless the parent has been determined to be unfit, or unless the state has stepped in and has found that there has been child abuse, abandonment or neglect. However, with the passage of Section 752.011, in 2015, the legislature provided for some additional very limited circumstances in which a request for visitation may be entertained.

Visitation in Florida generally cannot be denied to the non-custodial parent. In Florida, we have now replaced the term non-custodial parent simply with the term parent and there is a time- sharing arrangement. In Florida, visitation restrictions are generally not favored and the party with the greater share of the time with the children does not have a right to deny visitation to the other parent.

Florida courts are not more likely to award custody to mothers than to fathers. In Florida, custody law—or shared parenting and time-sharing—is gender neutral, meaning that the court does not consider whether or not the parent is the mother or the father in making that determination.

In Florida, we don’t necessarily use the term joint custody but in a situation where you have equal time-sharing with the other parent it may be possible that your child support obligation is close to the same as your spouse. Child support is a complex calculation under the Florida statutes and it’s largely dependent on the number of children, the income of the parties, and certain other factors that we’re required to look at in calculating child support.

Annulment

You can annul your marriage rather than getting a divorce in Florida if you can satisfy the specific grounds for annulment. Grounds for annulment are very limited in the State of Florida, so it is much more difficult to obtain an annulment as opposed to a divorce in the State of Florida.

Challenge, Defense and Drafting of Agreements (prenuptial, postnuptial, cohabitation, separation, and settlement agreements)

In Florida, there is no such thing as legal separation. Parties can be separated and they can enter an agreement that has legal impact, however legal separation is not recognized in Florida. Florida does however recognize a judicial dissolution of the marriage and that is divorce.

There is no such thing as legal separation in the State of Florida. In Florida, parties can be separated, and they can also make agreements that impact their legal rights in the event of a divorce. However, Florida unlike other states does not recognize any actual legal separation.

One of the best ways to limit your exposure to alimony is by having a prenuptial agreement in the State of Florida. Under most circumstances, the court will recognize an alimony waiver; only very few circumstances will the court disregard that alimony waiver.

Enforcement

If you are in default of your child support order that means you have not paid your child support as required under the court order. You can be subject to penalties for nonpayment, including a finding that you are in contempt or that you’re in willful violation of the court order. If the court makes that finding, a number of things can be done including placing you in jail until you actually make that payment.

Modification

In Florida, you can increase your child support by filing a supplemental petition for modification of child support. You must be able to show a substantial change in circumstances, though, since entry of the child support award.

Parental Responsibility

Your ex-spouse may be able to make you pay for private school for your child in Florida if private school was something that was enjoyed by a child during the marriage and you currently have an ability to pay for private school.

Florida courts are not more likely to award custody to mothers than to fathers. In Florida, custody law—or shared parenting and time-sharing—is gender neutral, meaning that the court does not consider whether or not the parent is the mother or the father in making that determination.

Settlement and Negotiation Strategies

In Florida, there are several alternatives to going to court. First, there is mediation. Mediation is basically a process in which you attempt to sit down with your spouse and/or their attorney and you try and resolve the case with the help of a neutral third-party facilitator. Another option is arbitration. Arbitration is available for certain issues, though not all issues, in a case. It is similar to having a judge decide your case but it may prove more cost-effective. There is also negotiation, where the parties reach a settlement without the assistance of any parties other than possibly their attorneys or the parties themselves deciding a settlement that is appropriate for them. And finally, there is collaborative law. Collaborative law is an alternative to the litigation process.

Uncontested Divorce

An uncontested divorce is simply a divorce in which there are no issues left for the court to decide. In an uncontested divorce, the parties have basically agreed to the issues at hand, and that is presented to the court for ratification and approval.