Tampa Divorce FAQs
1. What is a General Magistrate and can a General Magistrate be used in a divorce?
Many family law cases in Florida are referred to a general magistrate under Florida Family Law Rule of Procedure 12.490
A general magistrate is simply an attorney appointed by the Court with the power to (i) conduct a hearing and (ii) make a recommendation to the judge on how a particular pleading or issue should be ruled on. General magistrates keep the keep the family law system moving by taking some of the load off of the judges’ busy schedules. In
Hillsborough County, general magistrates are most commonly utilized in post-judgment cases (e.g., modification of a child support or alimony order). They form a rapidly growing specialized court for family law. Florida funds family general magistrates and hearing officers to provide faster court access for family disputes, relieve demands on judges’ case loads, and save judiciary expenses.
2. What are some of the most important factors in choosing a Tampa divorce attorney?
When determining your choice of an attorney it is best to go to the attorney’s or law firm’s website to obtain information on the attorney and the firm. It’s important that the attorney limits his or her practice to the area of law for which you need an attorney. Furthermore, the years of experience may be helpful; however, they are not determinate as to the capability of the lawyer.
One of the best factors to look at are the attorney or law firm’s reviews by clients and endorsements by peer attorneys. You will want to look for an attorney and law firm which are responsive to your questions. Furthermore, a factor to look at is how much the attorney charges, although it is better to pay more for an excellent lawyer and firm who will represent you zealously. Getting a divorce or any other family matter will affect the rest of your life. You need to make sure that you are well represented by lawyers who care and will give you the best representation possible.
3. My spouse is controlling the time I spend with my children. What can I do about it?
Both parties should be able to spend time with the children. If your spouse is controlling the time you spend with your children, then what you can do about it depends on your type of case. If you have filed for divorce or paternity then unfortunately, there is nothing that can be done about this until you both either come to a written signed agreement or attend mediation and attempt to come to an agreement on a timesharing schedule. Only after mediation has been completed, can the issue of timesharing be heard by the judge. It is best to come to an agreement between yourselves as otherwise you will have the visitation schedule determined by the judge and you will have to follow it.
If there is an order on visitation and the other parent is not following the order on a regular basis, then you can file a motion to enforce the agreement. The judge may agree with you and order that you receive make up visitation or additional visitation based on the circumstances.
4. What is alimony, how is it determined and can it be modified after the divorce?
Alimony is the monetary support paid from one spouse to the other following a dissolution of marriage. The purpose of alimony is to financially support the economically weaker spouse. Alimony is generally awarded on a “need and ability to pay.” This means that the spouse asking for alimony must show a need for the financial support; and show that the other spouse has the actual ability to pay that amount.
Alimony is determined on a case by case basis in Florida and varies with the particular judge that is hearing the case. This means there is no “standard” to calculate what alimony might be and that seemingly similar situations can have very different results regarding alimony. Florida Statute 61.08 helps the court to determine alimony by giving a list of factors to consider in calculating it.
There are 5 types of alimony; permanent periodic alimony, lump sum alimony, durational alimony, rehabilitative alimony and bridge the gap alimony. Permanent periodic alimony is generally awarded for long term marriages, which are marriages lasting longer than 15 years. This is not always the case, however, and should be taken on a case by case basis.
Lump sum alimony is exactly what it sounds like, one large payment. This is appropriate when smaller payments are not practical.
Durational alimony is awarded in a short to medium length marriage. It can last as little as a couple of years, but not exceeding the length of the marriage.
Rehabilitative alimony is intended for a specific purpose, over a definitive amount of time to allow a spouse the opportunity to obtain the necessary skills, education or training in the workforce in order to become self supporting. This type of alimony may be awarded in a short-term marriage where one spouse has stayed home to take care of the children and needs education or training to re-enter the work force.
Bridge the gap alimony is awarded in shorter length marriages and is designed to help adjust the transition of one spouse from being married to single. A spouse may need time to get a job or money to establish a new residence. This is more common in a short-term marriages where one spouse makes more than the other.
Alimony is modified or terminated due to a change in circumstances such as a supportive relationship, or if one party passes away, or remarries.
5. How is child support calculated and can I modify it after divorce?
Child support in Florida is determined by statute using the Florida Child Support Guidelines Worksheet, which must be completed before the divorce or paternity is final. Child support is calculated based upon the net income of both parties, the number of children, and the number of overnights each parent has with the children per year. Net income is after all taxes are deducted as well as alimony and child support paid to another person are deducted. If one or both of the parents are not currently working, then his or her net income is imputed by what he or she is capable of earning based upon, for example, prior earnings or profession and degree. If profession and degree, then the income would be determined by what others in the community with these qualifications are earning. In addition, day care and health insurance may be included in the calculation.
Child support can be modified either higher or lower after the divorce is final if there is a permanent, unanticipated and substantial change in circumstances. Section 61.30 (1)(b) of the Florida Statutes states as follows: “The guidelines may provide the basis for proving a substantial change in circumstances upon which a modification of an existing order may be granted. However, the difference between the existing monthly obligation and the amount provided for under the guidelines shall be at least 15 percent or $50, whichever amount is greater, before the court may find that the guidelines provide a substantial change in circumstances.” Furthermore, the change of income must be involuntary. In other words, one parent may not quit a job making X amount of money and taking another job earning less.
6. What can I do if the other party is not complying with the final judgment
If a party is not complying with the final judgment, then a Motion to Enforce the final judgment can be entered against the non-compliant party. This is like a warning from the court that the delinquent party needs to begin abiding by the judgment. If the party continues to not comply, then that party can be held in contempt. In Florida, there are several ways to enforce a contempt order including fines, suspension of driver’s licence, suspension of professional license, or even jail time.
7. How long does the divorce process take and what is the process?
The length of a divorce depends on the issues in the case as each case is different. If the parties to the dissolution of marriage can come to an agreement regarding all the issues present in their matter your case may be expedited. In an uncontested dissolution of marriage matter the parties will enter into a signed settlement agreement resolving all of the issues in their case and the agreement would be filed with the Petition for Dissolution of Marriage. Thereafter an Uncontested Final hearing will be scheduled on the first available date based on the Judge’s calendar.
The parties may also attempt to settle their case during the litigation and this should expedite the process as well. Typically parties are ordered to mediation by the Judge in dissolution of marriage matters. Mediation is an informal procedure in which the parties attempt to come to an agreement on all or some of the issues in their case.
Ultimately if the parties cannot come to an agreement on all of the issues in their case the matter will go to trial and the Judge will decide all of the contested issues. A fully litigated case could take anywhere from 6 months to a year or more depending on the issues. Each case is different and therefore the length of your case will depend on your specific issues and goals.
8. How can I relocate with the children before or after the divorce?
Parties to a divorce may not relocate with the minor children without either the other party’s consent or a Court order allowing such relocation. Florida Statute 61.13001 dictates the procedures for relocation with minor children. “Relocation” means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing, or at the time of filing the pending action to establish or modify time-sharing. The change of location must be at least 50 miles from that residence, and for at least 60 consecutive days not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child.
If you and your spouse or other person entitled to access to or timesharing with the child come to an agreement for relocation the following provisions must be in the written agreement according to Florida Statute:
- Consent to the relocation.
- A defined access or time-sharing schedule for the nonrelocating parent and any other persons who are entitled to access or time-sharing; and
- If necessary a description of any transportation arrangements related to access or time-sharing.
If you and your spouse or other person entitled to timesharing with the child do not agree to the relocation you must petition the Court for relocation and the petition must be signed under oath or affirmation under penalty or perjury. Florida statute also dictates what must be included in the Petition. In short, unless you and your spouse enter into a written agreement for the relocation or you get a court order granting such relocation you will be unable to relocate with the child.
9. What if you are a victim of or are in imminent fear of domestic violence?
If you are either a victim of domestic violence or you have a reasonable fear to believe that you are in imminent fear of becoming a victim of domestic violence pursuant to Florida Statute 741.30 you may file a Petition for Injunction for Protection. After the Petition is filed you should contact the clerk’s office to see if the temporary ex parte injunction was granted and if so, you should pick up a copy and keep it with you. A copy of the temporary injunction will also need to be served on the Respondent. Once a temporary injunction is ordered the Judge will set a return hearing in which the parties will have the opportunity to present witnesses and evidence. After you file the Petition the Judge may also deny the petition or set a hearing without a temporary injunction being ordered.
At the hearing on the Petition for Injunction for Protection, the Petitioner has the burden of proof to show that he/she has been or is in fear of becoming a victim of domestic violence. If the Petitioner meets the burden of proof the Judge will enter a Final Judgment of Injunction for Protection Against Domestic Violence and such injunction will explain specifically the terms of the Injunction. The Judge may indicate in the Final Judgment the length of time that the Injunction will be in full force and effect, that there is no contact between the parties, restrict locations that the Respondent may go to, order that the Respondent must surrender firearms and ammunition, order evaluation and counseling for the Respondent, temporary exclusive use of a residence, a temporary parenting plan and temporary support.
It is important that you specify all allegations in your Petition. Furthermore you should assure that you request all relief that is applicable in your matter and file any necessary documents required for such relief.
10. What is mediation and will I have to go to it if I know we cannot settle at it?
Parties are typically required to attend mediation prior to temporary relief hearings and trial. Mediation is a beneficial tool in every case even in cases that you may consider highly contested. It gives the parties the opportunity to discuss the issues and attempt to resolve all or some of the issues in the case. In Hillsborough County you have the option of either attending mediation at the Courthouse with Family Diversion services or you may opt to do a private mediation. Mediation with Family Diversion services in Hillsborough County is typically limited to 2 hours and the fee is a flat fee per party. In Pinellas County Court-provided mediation will be available in family cases when referred by the presiding judge or automatically referred by an Administrative Order and the parties combined gross income is less than $100,000. Parties in family cases whose combined gross income is $100,000 or more are not eligible for court-provided mediation, but may still be ordered to mediation.
Private mediation typically does not have a time limitation but it is more costly as private mediators typically charge by the hour. All Family Law Group, P.A. has a list of preferred private mediators that the attorneys use. These private certified mediators are also family law attorneys and therefore are knowledgeable of the law. The mediators should not give you legal advice; however, their legal background is a useful tool in assisting the parties to work towards settling issues in their case.
11. How is timesharing between the parents determined if they don’t agree?
If parties do not agree to a timesharing schedule and/or parenting plan then the issue will ultimately be determined by the Judge at a hearing and/or trial. Either party may Motion the Court for temporary relief including a request for a temporary timesharing schedule before trial. Keep in mind that in Hillsborough County the Judges typically require mediation prior to temporary relief hearings. When the Court is faced with the issues regarding minor children, the Court will evaluate best interest of the child standard as outlined in the Florida Statutes Section 61.13(2)(a).
12. How are assets and debts usually divided in a divorce?
Pursuant to Florida Family Law Rules of Civil Procedure, within forty five days of the Respondent being served with the Initial Petition for Dissolution of Marriage both parties must complete financial affidavits and Mandatory Disclosure. Mandatory Disclosure may be waived in writing by both parties, however, it would not be advisable if you are uncertain or do not have full and frank disclosure of the other parties’ income, assets and debts. The mandatory disclosure and financial affidavits are good discovery tools to begin an analysis on dividing assets and debts in a dissolution of marriage proceeding.
Our first step in analyzing a distribution of assets and debts is to determine if the asset and debt is marital or non marital. There are many factors to analyze when making such determination such as the date of filing the Petition for Dissolution of Marriage, agreements between the parties, agreed upon dates of separation and if Florida Statute defines a certain asset or debt to be non marital based on the circumstances. After such determination we analyze how to value the marital asset or debt and what date of valuation you want to argue for at the final hearing. The Judge may determine that different dates or the same date for valuation of assets and debts should be used based on if the date is just and equitable under the circumstances. The Court will begin with the premise that the distribution of marital assets and debts should be equal, however, there may be relevant factors in your case to justify an unequal distribution as defined in Florida Statutes Section 61.075.