Family Law

Divorce – Introduction and General Information

Even though couples get married with the belief that their marriage will last forever, circumstances arise later on and some of those couples want a divorce. While there are many reasons for filing for a divorce, Florida is a No Fault state. This means that divorces are granted because there are irreconcilable differences. This term also has implications on how assets and liabilities are distributed but we will talk about that in a minute.

William S. Orth is an aggressive trial attorney who will fight for your rights whether it involves assets, liabilities or time-sharing and child support involving your children.

Divorces can either be uncontested or contested. What category your situation fits has more to do with what agreements you and your spouse have before the filing of a Petition than anything else. For couples who are in complete agreement on how assets and liabilities are to be distributed as well as issues regarding minor children (if applicable) they can pursue an uncontested divorce and it may be finalized within 30-60 days. Others fall into the contested category meaning there is disagreement on asset and liability distribution or issues with minor children. Those cases may come to an agreement later on but not after I advocate on your behalf through court pleadings and possible hearings.

Once the initial Petition is filed, there are certain statutory prescribed timeframes for Answers and Counter-Petitions. Cases then enter the discovery phase that encompasses Mandatory Disclosure. This is the document gathering stage where you need to collect documents you have in your possession or readily accessible to you. Examples include old tax returns, pay stubs and bank statements. Once this is complete, mediation is set up. If your case is uncontested, you may waive this document gathering stage. All the law requires is that you file and exchange financial affidavits and complete a Parenting Class if minor children are involved.

As I stated earlier, No Fault also deals with how assets and liabilities are distributed. In the State of Florida, all assets and liabilities are split evenly, or 50-50, unless a Judge finds reason for an inequitable distribution. Prior to the law change in October of 2008, Special Equity existed to allow a person to claim more than 50% of an asset or to claim less than 50% responsibility for a liability. The concept is the same except we may ask for an inequitable distribution rather than pleading Special Equity. You can ask for an inequitable distribution for many reasons, some of which may be tied to why the marriage is ending in the first place. Maybe your spouse had an affair and spent marital money on this affair. That may be reason enough for you to ask for an inequitable distribution.

Throughout the pre-trial stage of Divorce, Paternity or other Family Law litigation you may be able to request that the Court order the other party to pay all or a portion of your legal fees. Contact me at the Law Offices of William S. Orth, P.A. to discuss this topic.

Alimony

Alimony is different than asset distribution. There are rules about whether or not alimony is applicable to your case. The amount can be in the form of lump sum using marital assets but it also may be periodic payments separate from asset distribution. Alimony or spousal support only applies to divorce cases and only in the original action, not subsequent actions. There is no magic formula to whether or not one spouse has to pay alimony to the other but instead the court will look at a number of factors including the length of marriage, disparity in income between the spouses, standard of living of the spouses prior to separation, assets of the marriage and to some extent the actions of each spouse. Often times we hear a spouse saying “my wife/husband left me and I can’t afford to live on my own – what can I do?” Alimony or temporary spousal support may be appropriate in your case. Contact me at the Law Office of William S. Orth, P.A. we can help you to determine if you have a right to alimony or if you should be paying alimony

Mediation

All divorces in the State of Florida are required to go through mediation unless a Judge says otherwise. This gives you the opportunity to avoid having a Judge impose his or her decision on you and gives you some control in how the final paperwork will look. Not only do we have extensive experience in handling mediations for family law matters, William S. Orth is a litigator and can take your case to trial if mediation does not result in an agreement. Contact me to discuss this further.

Trial

If mediation does not settle your case, you then must begin to finalize trial preparation. Trial preparation begins with discovery but does not kick into final gear until after mediation has failed. Decisions must be made such as whether or not to depose certain individuals and figuring out who your witnesses are. There may also be further discovery you want to conduct using a Subpoena Duces Tecum or other methods of recovery for documents the other party will not supply you with. Remember, throughout this entire process, you can utilize Motions for such things as asking the court to find the other party in contempt for actions or inaction or to compel them to abide by certain rules.

Paternity

In the State of Florida, there is no legal presumption of paternity unless two people are married when the child is conceived. If two people are not married, it doesn’t matter who signs the birth certificate. The father must be adjudicated the father in order to preserve his parental rights. Marriage is the only thing that gives rise to the presumption of Paternity. Paternity simply means establishing who the father of a child is. If two people are not married when the child is conceived, paternity must be established before the father can have time-sharing or visitation rights and child support, if appropriate, can be ordered. Paternity actions must first answer the question of who the father is. If both parties agree that the man is the father, then the questions of time sharing and child support are addressed. If one or both of the parties disagree as to who the father is, a DNA test is done to determine paternity.

The questions we get most often are; My child’s Mother/Father won’t let me see my child – what can I do?   My child’s Mother/Father doesn’t pay child support – what can I do?   I am paying child support for my child but don’t get to see my child – what can I do? My child is not safe with the Mother/Father and I want the child(ren) to live with me – what can I do? Paternity is the first question any lawyer will ask when you call about these questions if you are not calling about a spouse or ex-spouse

At the Law Office of William S. Orth P.A., we have handled thousands of Paternity actions regardless of whether of which parent files the action. These parents are also seeking answers to the questions like the ones above. Contact me and we can answer those questions and help you to assert the rights you are entitled to.

Custody is something that both mothers and fathers are interested in determining in some cases. Custody as a legal word does not exist in the Florida Statutes anymore but the concept remains the same. Where should my child live most of the time? Much of what we do at the Law Offices of William S. Orth, P.A centers of the most important question; what is in the best interest of the child(ren)? Contact me for more information on this.

Child Support

When you have a child with another, child support becomes a major issue when the parents are no longer together. Often, the incomes of the parents are quite different. Children are expensive to raise, including housing, food, clothing, extracurricular expenses and school expenses. The list goes on and on. Child support in Florida takes into account things such as income, time spent with the child, insurance and daycare (to name a few) so that children are raised properly according to the income of the parties and their needs.   Child Support is primarily based upon combined income percentages minus certain deductions for things such as taxes, mandatory retirement and health insurance for the payor. However, there are credits given to the payor for payments to the benefit of the child(ren) such as childcare and health insurance. To calculate this, Florida uses a Guidelines Worksheet to calculate child support. At the Law Offices of William S. Orth, P.A., contact us and we can help you to determine how much child support you are entitled to receive or have to pay if we have the financial information used in the Guidelines Worksheet.

Modification

Many times, we get phone calls from individuals who have fallen on bad times financially. They want to know if they are entitled to receive child support or obligated to pay child support. At the Law Office of William S. Orth, contact me and we can help answer that question. If child support is already a part of your life, we can also help you to determine if the court would modify your child support, whether you are receiving child support or paying child support. Many people call and begin the conversation by saying “My child’s Mother/Father is making more money – what can I do? I am obligated to pay child support but my income has decreased and I can’t afford what I was order to pay – what can I do? What you can do is file a Supplemental Petition to Modify Final Judgment. This pleading seeks to modify the terms that were reached in either a divorce action or paternity action. These terms can include time sharing, child support and alimony.

You must have had a substantial change in circumstances to file this pleading. This means more than a minor increase or decrease in income or an isolated incident that exposed the child to harm. At the Law Offices of William S. Orth, P.A. contact me and we can help you to determine if you should file for a modification.

Modification doesn’t just apply to child support. Sometimes, visitation or custody (now called time sharing) needs to be reworked. If things have changed since you last received a court order or final judgment, the court order or final judgment can be modified to take into account the things that have changed in a substantial way.

Motion for Contempt or Enforcement

If your ex-spouse or the Mother/Father of your child was instructed by the court and they are not doing it, you will want to consider filing either a Motion for Contemt or a Motion for Enforcement. This applies not only to issues relating to children but also includes issues such as assets, liabilities, sale or refinancing of property and filing tax deductions to name a few. At the Law Offices of William S. Orth, P.A. contact me and we can help you to determine if you should file one of these motions.

Relocation

If you have your child a majority of the time and want to move out of the area, you must file a Notice of Intent to Relocate before you can move. This is governed by Florida Statute 61.13001 which states that if you move want to move the child(ren) more than 50 miles away from their current residence you must file a Notice of Intent to Relocate . Once you file this, the other parent has a certain amount of time to object. If they do, the court may have to ultimately decide if you can move with the child(ren) according to what is in the best interests of the child. If no objection is raised, the court will allow you to move with your child(ren) without any hearing contesting the move. If the move is contested, the court will look into the reasons for the move and whether the move will benefit the children before determining if the move will be allowed. Alternative time sharing arrangements will have to be made for the other parent. Contact me if you wish to file a Notice of Intent to Relocate or if you have been served with one by the other parent.

Pre-nuptial and Ante-nuptial agreements

Often times we want to enter into agreements either before marriage or after marriage that deals with assets or liabilities and how those are to be distributed if the marriage ends in divorce. Many times the purpose of these agreements is to protect other family members and their rights to certain property. Contact me at the Law Office of William S. Orth and I can draft these agreements for you, explain to you the importance of these agreements and make sure that the agreements are drafted and carried out according to the law. The last thing you want to do is go to the time and expense of one of these agreements only to have the Court deem the agreement invalid.

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