Frequently Asked Questions

  1. No Fault Divorce/Child Custody (Primary Residential Care)
  2. My Husband recently threatened to take our children away from me because he found some emails I had sent to a former boyfriend. I am not romantically involved with this other person, but admit that I have been seeing him. Can my Husband get custody because of my emails or for having a male friend? Will the Court take into consideration my relationship with this other person?

    Florida is a "no fault" state. In order to obtain a dissolution of marriage (divorce), one must allege that the marriage is "irretrievably broken" (the other basis being "mental incapacity"). A spouse does not have to plead and prove a factual basis, such as adultery, cruelty or abandonment, to obtain a divorce. Even if you were romantically involved with a paramour, this is not relevant inquiry for purposes of obtaining a divorce. In regards to the issue of primary residential care (also known as "custody"), the Court will consider a variety of factors in determining which parent should be designated the primary residential parent (custodian). One of these factors includes the "moral fitness of the parents". A mere relationship with a third person, in of itself, and to which the children have not been exposed, may be an insufficient basis for denying you primary residential care.

  3. Equitable Distribution/Unequal Distribution
  4. During our marriage, my Wife and I purchased a home together. The title is in both our names as Husband and Wife. The down payment came from the sale proceeds of a home I owned and sold prior to our marriage. We are now getting divorced and my Wife wants one-half (1/2) the net equity in the Home. Can I get my down payment back first then split the remainder of the equity with my Wife?

    If your Home is jointly titled as tenants by the entireties (Husband and Wife), then this asset is presumed to be a "marital" asset. The starting point for dividing marital assets is that the division is to be equal (50- 50). Your Wife will argue that the down payment was a "gift" and, therefore, she is entitled to one half the equity of the Home. You may argue that you are entitled to what is called a "special equity" interest in the marital home and that you did not intend to make a gift of your non-marital funds. The burden of proof would be on you to overcome your Wife's argument that you made a "gift". In light of current case law, this is virtually impossible to do especially considering the facts of your case. However, you may be entitled to an unequal distribution upon proof of a significant contribution to the purchase and acquisition of the Home with non-marital funds.

  5. Equitable Distribution/The Marital Home and Minor Child(ren)
  6. Will the Court require me to sell the Home if I have primary residential care (custody) of the minor children?

    The Court may award you an unequal distribution of the marital home if you prove that maintaining the Home is "economically feasible". At a minimum, you would need to prove that the mortgage(s) is comparable to local rental rates for similar properties of like size and that the fixed household expenses (including the mortgage) is affordable. In this regard, the Court will also inquire of the parties' respective economic circumstances. For instance, your Husband may argue that he is in great need of his share of the equity out of the Home in order to establish himself in another residence. Assuming the Home is the most significant asset of the parties and further assuming you are not able to re-finance to buy your Husband out of his share, then the Court may order the sale of the Home. Notwithstanding, the Court will consider the best interests of the child(ren) in rendering this decision such as a consideration of whether this is the Home in which the children have lived for some time; the particular school district; etc.

  7. Alimony/Spousal Support
  8. My Husband and I have been married for over 15 years. After a year of marriage, I gave up my educational pursuits to assist my Husband in starting his own business. For an approximate 8 years, I worked my Husband's business without a pay check. For the past five years, I have been working as a secretary and am currently earning $18,000 gross per year. My Husband, on the other hand, is taking home upwards to $75,000 per year for the past two years. Do I have a claim for alimony?

    The Court will consider a variety of factors to determine your entitlement to and the amount of alimony. Certain of these factors may include the length of the parties' marriage; the parties' sources of income; and the "contribution of each party to the marriage, including . . . career building of the other party." Section 61.08, F.S. In some districts, 15 years is considered a "long term" marriage. Further, your Husband has an apparent superior earning capacity. These facts along with the fact that you contributed to the establishment of his business and level of income, you may have a viable claim for permanent periodic alimony. The amount of any award of alimony will depend on the particulars of your case including your Husband's ability to pay and your actual need.

    You may have a further claim to one-half the value of your Husband's business as and for equitable distribution. However, if your Husband's business is for personal services (the goodwill of the business is closely attributable to your Husband), then his business may have minimal value. Further, your Husband may argue that he should be awarded an unequal distribution of the business if same is his sole source of income and he desires to maintain the business without interference.

  9. Child Support/Enforcement and Modification/Correlation to Visitation
  10. I recently lost my job because my employer of six years is downsizing. I have not paid any child support for the past two months. My Former Wife is no longer letting me visit with our children as a result. Further, she filed a Motion For Contempt against me and is asking that I be incarcerated. What can I do?

    If you involuntarily lost your job and have been making a diligent search to find comparable employment, then the Court may not find you in contempt. This decision will depend on, among other things, whether you have had at least one job application/ interview per day for at least thirty days for a job (regardless of whether you are interested in the position) earning comparable to what you were previously earning. I would recommend that you keep a journal of all job applications/ interviews including the date of the said application/ interview; the nature of the position sought including rate of pay; and the name/ address and telephone number of the prospective employer.

    At the hearing on the motion for contempt, the Court will not excuse you from paying the back support even if you are not in contempt. The Court may enter a Judgment for the amount of support owing. If you are unable to find a job with comparable pay upon making a diligent search, then you may consider seeking a modification of your support obligation. You will need to prove a "substantial change in circumstance" in order for your support to be modified.

    Florida law is very clear that your Former Wife may not refuse you visitation with the children if you fail to pay support. The opposite also holds true (you must pay the support even if your Former Wife withholds access to the children). You may request make up visitation if your Former Wife has wrongfully refused you visitation.

  11. Re-location of Children's Primary Residence
  12. May I move to another part of the State or out of state even though my Final Judgment of Divorce does not restrict me from moving? I admit that my Former Husband has frequent visitation with our children but I have a wonderful opportunity elsewhere and my parents would be closer.

    Florida Law was recently amended on the issue of permanently re-locating the residence of minor children. The new statute creates specific instructions for the parties, including a procedure for obtaining the permission of the Court. This process must be followed even if your Final Judgment is silent on the issue (meaning, does not restrict you from so re-locating). You will need to provide a detailed written notification to your Former Husband, who will then have the right to object. If he objects, then an evidentiary hearing will take place on this issue. The burden of proof will be on the parent seeking to re-locate as to, among other things, why this move would be in the children's best interests.

  13. Jurisdictional Issues (UCCJEA)
  14. My ex and I moved to Florida from New York about three months ago with our children. When I recently told my ex that I wanted us to move back to New York, she immediately filed for protection against domestic violence (in the Florida county which we were last residing together). I am back in New York. The hearing on my ex's Petition for Protection Against Domestic Violence is coming up. Do I have to fight custody in Florida? Can I fight for my parental rights in New York?

    The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was created to avoid "jurisdictional competition" between states in regards to which state will make a ruling regarding the custody of children. In your situation, both New York and Florida may have some jurisdictional claim to the children. On the one hand, Florida may exercise "temporary emergency jurisdiction" if the child(ren) is (are) present in Florida and the child(ren) or parent of the child(ren) is (are) subjected to or threatened with mistreatment or abuse. If necessary to protect the child and/ or parent and assuming no initial custody determination was made in your case by any state, then Florida may enter a temporary custody order until the State (whether Florida or another state) which has jurisdiction makes an order regarding custody.

    On the other hand, Florida is not the "home state" of the children as defined by the UCCJEA. In this regard, you may file an appropriate pleading in the State of New York setting forth your request for parental rights. In Florida, you would request a ruling that Florida is an inconvenient forum (that another state is a more convenient forum to make decisions regarding the children because, among other things, the material witnesses are located in New York). You will need to notify the New York Court that a proceeding is pending in Florida regarding the children. The two judges (Courts) will speak to each other about which forum is more appropriate; both parties have the right to be present for this communication and to present evidence on this issue.

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© 2017 Garth R. Goodman, P.A. A St. Petersburg, FL, divorce lawyer. All rights reserverd.
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