Looking to learn about Florida Divorce Laws? You’ve come to the right place!
Click below for our Florida Divorce Law Crash Course. In less than an hour you’ll learn what you need to know about Florida’s divorce laws.
If you are more of a “I’d prefer to read” type, than below the video we have a summary of all of the content.
If you’re seeing this would rather learn from an attorney, you can click here to schedule a divorce strategy consultation.
Transcript of Video:
(Below is an edited transcript of our Florida Divorce Law Crash Course)
So what do you need to do if you’re thinking about divorce? Having the best divorce possible requires you to have an understanding of the laws that will apply to your divorce. And knowing the basics of the law that’s relevant is important, because the laws that govern your divorce will usually determine the boundaries of the type of financial settlement that is reasonable as well as a settlement related to the children if you have children. Thankfully, you’re just not going to have to bother with learning 99.99% of what your divorce lawyer knows or other divorce lawyers know. All you really need to do is understand the basics of the Florida Divorce laws that are likely to be relevant in your divorce. That’s it.
And those basics of the relevant Florida Divorce Laws are what we’re going to cover here in this lesson. The main areas that really apply to a divorce that we’ll be going over here relate to splitting property, spousal support, prenuptial or post-nuptial agreements, attorney’s fees and then there’s the issues that relate to children, including timesharing, parental responsibility, and child support.
So the basics of dividing property. In Florida Divorce Law lingo this is also called “equitable distribution.” Typically Florida, and really about 80% of the other states in the United States will call dividing property equitable distribution. With a few exceptions, the way it works with dividing property is each spouse is going to receive 50% of what is the marital net worth. Marital net worth it’s basically a term used to describe the assets and liabilities that each spouse accumulates during the marriage. Marital net worth is the amount of the assets minus the amount of the liabilities. Basically, net worth is the same thing as marital net worth with the exception being that certain property owned before the marriage or inherited during the marriage that was always kept separate is going to be excluded from the marital net worth. If you inherited property or entered into the marriage with a lot of assets, or important assets that you still have now, you’re definitely going to want to bring this up in the divorce process with your attorney before things get going.
So as an example of how it works with dividing property under Florida Divorce Law. I’ll lay it out here with two different sets of facts. Assume Jack and Jill get married. They have $200,000 in assets that are marital and liabilities of $1 million that are marital. In this case, the marital net worth is $1 million. That’s $2 million in assets minus $1 million in liabilities equals the $1 million marital net worth. For those of you who are listening but not viewing the presentation, the slides to this are going to be available in the mybestdivorce.info Free Member area, so you can look at these examples on the slides.
So if Jack and Jill have a marital net worth of $1 million, it’s $2 million in assets minus $1 million liabilities equals $1 million marital net worth. They each would leave the marriage with $500,000. That’s $1 million divided by two is $500,000 for each spouse.
Now, I’ll do an example with not marital property division under Florida Divorce Law. Assume Jack and Jill have that same marital assets totaling $2 million and liabilities totaling $1 million. But also a new fact is that during the marriage, Jill inherited $1 million that went into an account that she never mixed with marital property and always kept separate. In this case, the marital net worth is still the same million dollars because there’s $2 million in marital assets, $1 million in marital liabilities. So each spouse will leave the marriage with the same $500,000 in marital net worth and then the $1 million inheritance is accounted for separately.
So Jill inherited the million dollars so when the divorce is over, she’s going to be worth $1.5 million. She’s going to keep her million dollar inheritance that she always kept separate and she’s going to get her 50% share of the marital net worth which is $500,000. If you don’t like math, we have about come to the end of the math, so good news for you.
Now, a few other details with dividing property. Each item of property or each bank account is not always divided equally. The goal with dividing property is for each spouse to leave the marriage with the same marital net worth, not half of every single asset, bank account, or other account that exists. So it’s really basically an exercise in accounting to where the lawyer, sometimes with the help of an accountant, come up with the values of all of your assets and liabilities, put them on a spreadsheet and make sure that in the divorce settlement you and your spouse are leaving with about the same marital net worth. And in doing so, you’re going to keep certain assets, your spouse is likely going to keep other assets. Sometimes something needs to be sold and split or you take an equal amount of money from a bank account. But that doesn’t mean that you’re going to actually split half of every single asset or liability that exists.
Another important concept with dividing property under Florida Divorce Law is that if you were the one claiming an asset is non-marital in nature, meaning you keep it and don’t split it with your spouse, then it’s your burden of proof. You have to prove that you had the asset before the marriage or inherited the asset during the marriage and kept it separate. And when you’ve been married a really long time, this can be very tricky to do. It’s hard to get bank statements from 30 years ago. It’s something that is a hard burden. So keep that in mind.
Also with splitting property, there’s a concept called dissipation. Basically what this means is that if either spouse uses money for non-marital purposes, like an affair, then the other spouse gets a credit for 50% of the money that was wrongfully spent. This is a very technical area. It’s going to vary between jurisdictions. In Florida it’s a hard burden to prove. The money had to have been spent for non-marital purpose and the spouse couldn’t be aware of it.
The typical thing I see here in South Florida is one of my clients is upset about their spouse losing a bunch of money gambling. And if they were at the casino with their husband or wife when they were spending the money then you really can’t argue in the divorce that it’s dissipation. If the spouse went to the casino and never told their spouse and lost a bunch of money, it’s very different. So it’s a very technical area but bottom line is if your spouse was wasting money, especially if it was on an affair or just giving money to other people, there are some remedies for you most likely.
Another concept that’s out there is called unequal distribution. Most of the states in the United States are what’s called Equitable Distribution States. That boils down in plain English to meaning that the divorce court judge does not have to split the net marital assets equally. The judge can make a divorce order that gives one spouse a higher share of the net marital assets than the other spouse.
This doesn’t happen all that often now. In Florida, it’s very tricky for somebody to get more than 50% of the assets. One case that comes to mind is an example where the main asset in the marriage was a hotel, I believe, down in the Florida Keys. And during the last 10 years or so of the marriage, the wife did everything to manage and run the hotel. The husband was essentially worthless. The appellate decision said that he sat on a couch and drank large quantities of beer or alcohol. He basically was a drunk while the wife did all the work. In that case, I believe the trial judge had given the wife 60% of the hotel instead of 50%.
So it’s a tough burden but you should talk to your lawyer about this concept if you think it might be applicable to you.
Business in Divorce:
So what do Florida Divorce Laws say about the business? If you have a business, it needs to be valued in the divorce just like anything else. It’s probably advisable to have a forensic accountant involved. When it comes to valuing the business, what happens is the Balance Sheet, Profit & Loss Statement, General Ledger, all of the business records are reviewed. The value of the business is an asset that is part of the marital net worth.
In Florida and a lot of other states, there’s a difference in valuing the business when it comes to what’s called goodwill. Goodwill is something that can be a little complex but, really dumbed down, basically means the amount of extra money that a buyer would pay for a business based on the reputation of a business. If you were to say to go buy a McDonalds franchise or Harley Davidson dealership, those are established brands so you’re going to pay more for those businesses if you’re buying it than the actual business is worth. Meaning you’re going to pay more than the cost of the McDonalds building with the hamburger ovens in the kitchen when you buy a McDonalds franchise. You’re going to pay for the brand. And that extra money is called goodwill.
In divorce, you get two different types of goodwill typically. One is goodwill associated with a reputation of a person and the other is goodwill associated with the establishment or a brand. It’s not really attributable to a person. It’s attributable to an owner. That’s called enterprise goodwill.
To give an example of how Florida’s Divorce Laws apply, if one spouse is a lawyer and they have a law firm, the goodwill of the law firm, if it exists, is called personal goodwill. And if somebody owns a McDonalds franchise, the goodwill of that enterprise related to the established brand is called enterprise goodwill. And the reason this distinction is important is because in a divorce, personal goodwill is not a marital asset whereas enterprise goodwill is.
The bottom line with Florida’s Divorce Laws is most businesses that you’re typically going to see in a divorce are going to be dependent upon the reputation of the owner spouse. And when that’s the case, the company is valued based on its adjusted Net Book Value, which is basically the assets minus the liabilities after making certain adjustments in the company Balance Sheet.
If you have a business involved in your divorce, you should see a divorce lawyer who really knows what they’re doing and they’re probably going to recommend that you get a qualified forensic accountant to help because there’s just too many things that can get messed up. Not impossible, not usually overcomplicated. Many small businesses really boil down to a few bank accounts and maybe the value of a building, but this is something that is a little bit beyond the do-it-yourself divorce for most people.
So then we come to another topic that is talked about a lot and that’s spousal support or what a lot of people call alimony. What alimony is is the payment of support from one spouse to the other after the divorce. In some states, there are formulas now for the amount of alimony that is going to be paid and the amount of time that alimony is going to be paid. Those formulas make things a little bit easier.
With Florida’s Divorce Laws we do not have a formula. The legislature has twice approved having an alimony formula and the governor down here has rejected it both times for a few other reasons not really specific to the amount of the formula.
When it comes to alimony analysis, the real key issues are three things and that’s, (1) Will alimony be paid, to begin with, from one spouse to another? (2) How much will the alimony be? And (3) how long will the alimony be paid? And this is a very state-specific area. You’re going to need to talk to a lawyer who practices where you live. It also can vary from judge to judge within a certain range limit so it’s good to have a local attorney if you have alimony in your divorce.
So the first main issue is will alimony be paid. There are a few core concepts here and I’ll take you through these. Core concept #1 is there has to be both a need for alimony and the ability to pay alimony in order for a judge to order one spouse to pay alimony. If a husband or wife does not need financial support from their spouse, if they’re self-supporting, they’re not getting alimony. If they don’t have any ability to pay alimony then there’s not going to be any alimony. It’s just that simple. It all starts with need for support and ability to pay support. We all might need a little bit of support but if we can’t pay it to the other person or our spouse can’t pay us, we’re out of luck.
The second core concept is that the need for financial support and the ability to pay financial support or alimony can be determined based on what a spouse is capable of earning if the actual earnings are lower than they should be.
So you have with a lot of marriages a spouse who might have college degrees. They may be very accomplished on paper with their education or qualifications to work but they’re either not working or they’re working in a job far below what they could be doing if they wanted to maximize their income. And it can be a detail argument but, in many cases, what the divorce court judges do is say, “Okay, well, if you’re not working as hard as you can or you are not maximizing your employment credentials, when it comes to determining whether you need alimony or how much alimony you can afford to pay, we’re just going to assume you are working in the job that you should be working in if you were going to maximize your income.” So if somebody wants to not work then the judge will just determine what they’re capable of earning when analyzing whether they get alimony from their spouse or whether they have to pay alimony to their spouse.
It’s a little bit involved with proving all of that but the concept’s out there. You can’t increase the alimony you pay by not working or increase the alimony you receive by just refusing to get a job. And you see this a lot in longer-term marriages when somebody has stayed home to raise children and the children have moved on and the person is still not working. Usually they’re going to be considered capable of earning a certain amount of money. The exact amount is usually a hot topic of debate in these cases.
Another core concept of alimony under Florida’s Divorce Laws is that it is paid only from income with very few exceptions. That means that somebody’s ability to pay support is based on what they’re earning not on what their assets are. There are a few narrow exceptions but they very rarely apply.
You don’t pay alimony from your assets. It’s really supposed to be from your income. And usually, alimony is not supposed to be more than 50% of your income in the worst case scenarios. Usually in longer-term marriages in Florida, it’s somewhere between 30-40% of somebody’s income is alimony at the highest possible amount awarded. It’s not a written rule but it’s just what we see a lot of the judges doing in worst case scenarios. If somebody needs all of that money and the other person has the ability to pay it.
Another core concept of alimony is that once spouses are leaving the marriage with several million dollars, the divorce court judges are less inclined to order alimony. It’s not a hard written rule, but down in Florida we have a few appellate decisions that suggest once you have over $2 million, you might not need alimony. That’s something that comes up in cases from time to time.
Also with alimony, Florida’s Divorce Laws base your income on all available sources of income. So if you have assets, you’re going to be imputed a reasonable Rate of Return on those assets. As an example, if you have a million dollars sitting in a bank account or in retirement assets that you receive in the divorce, the courts are going to usually assume you’re capable of making a few percent a year off of that money. And that interest income that’s imputed is taken off of your need for support in most circumstances.
So that about covers the core concepts of will alimony be paid and some of the rules that apply to it. That takes us to the issue of how much is alimony going to be?
And there’s a general formula here for determining what you might pay or receive in alimony. That formula is alimony is going to equal the amount of your expenses minus your after-tax income. So if your expenses are $4,000 a month and your after-tax income is only $3,000 a month then the alimony you’d be receiving is approximately $1,000 a month. There are a few assumptions here. I’m just trying to keep the example simple.
Understand that the amount of alimony is based on your expenses but those expenses are supposed to be your expenses as established during the marriage. And what I tell some of the clients and people that come see me for consultations is that if you lived a Honda Civic lifestyle, meaning you lived very frugally during the marriage, then alimony is going to be based on that Honda Civic-type lifestyle. You’re not going to drive around in a Honda Civic during the marriage and have your alimony based on you driving around in a Ferrari. It’s just not going to happen. The starting point of determining what your expenses are, which is necessary to determine your need for alimony, is the standard of living during the marriage.
Sometimes when this might not be the case, like when the standard of living during the marriage was putting the spouses living beyond their means but, for all intents and purposes, the starting point is the type of standard of living you had during the marriage when it comes to determining how much alimony it will be. It can be tricky sometimes to put an exact dollar value on what your expenses were during the marriage. And when there’s not an agreement on this in divorce cases, oftentimes you’ll see one or both spouses hire a forensic accountant and the accountant will do a need study.
They basically look at usually a year, sometimes a longer period worth of bank statements and credit cards. They go through each and every expense, cancelled check, line items in the statements to allocate the different expenditures, the different categories. And then from there they determine which category is related to this spouse and which of those are going to be part of their need for support after the divorce.
It’s a little bit of work that goes into it. The accountant takes care of it. And if your divorce is not settled quickly and you’re going to need to go to court for an issue related to alimony, you’re probably going to want an accountant involved in most cases, if you can afford to have one.
So how long is alimony going to be paid or received? In some states this is done by a formula. In Florida, however, the duration of the payment is going to depend in part on the length of the marriage. If there’s a marriage of longer than 17 years, right now in Florida, the state of the law is that there’s going to be a presumption that alimony is permanent, meaning that it is paid until death, remarriage, or retirement with a few other exceptions. It’s possible that permanent alimony is not awarded in a marriage longer than 17 years. You’re going to need to talk to your lawyer about your exact circumstances to see where you might fall.
In Florida, judges have some discretion to determine the duration, meaning the length of the alimony payments if the alimony is not permanent. This means if your marriage is less than 17 years, usually the judge is going to have a wide latitude of discretion when determining how long the alimony goes.
A rule of thumb that I tell people, it’s not written in any statute anywhere or law, but if you’ve been married less than 17 years, usually the alimony is going to be close to half of the length of the marriage give or take a little in either direction. It’s not always the case but that’s usually where a lot of these judges are thinking about starting from. It can be different if the circumstances of the spouses make it so that after a few years, one spouse might have been able to go back to school or earn a certification to make more money. In those cases, alimony can end a little bit sooner.
But if you’ve been married less than 17 years, usually it’s about half the length of the marriage is where the negotiations are going to start and a lot of judges are going to start. Talk to your lawyer about the specifics here. Each state has different categories of alimony with different time durations, and it really depends upon your exact circumstances as to how long the alimony might go if it’s going to be paid.
So can alimony be changed after the divorce? Well, yes, it can. And this is a state-specific jurisdiction-specific issue. But down here in Florida, alimony can be modified after the divorce if one spouse’s needs change or the other’s ability to pay changes. And this is a very technical area. It’s not usually easy to modify support. There’s going to need to be a change in circumstances that’s substantial, unforeseen, permanent and involuntary. You just can’t work less or decide to retire early on to get out of paying alimony. At the same token, alimony is not meant to allow one spouse to save money either down here in Florida
So if somebody decides they’re going to quit their job to get out of paying alimony or if somebody is saving money from the alimony they’re receiving, it’s not a simple issue. I find that these alimony modification cases are litigated and have a much higher probability of proceeding to a trial than a standard divorce case. But it’s a tricky issue.
Also, alimony can change when somebody reaches retirement age under Florida’s Divorce Laws. That’s usually 65 or 67 down here in Florida. If the age of retirement is reasonable for their profession, sometimes it’s going to be a little bit sooner. It all depends upon the specifics. When somebody gets to retirement age, it doesn’t mean that alimony is automatically over. It just means that it can be changed, reflect the fact that somebody is no longer receiving what they were making when they were working full time.
Marital Agreements (Including Prenups):
This brings us to premarital agreements and marital agreements. If you sign an agreement before/during your marriage, a lot of these are referred to as prenuptial agreements or post-nuptial agreements. But if you sign one of those then it can have a huge effect on what happens during the divorce. If you think you signed one of these documents, you need to find the specifics about it. Ideally, get the document and bring it to the attorney that you meet with or the attorneys that you interview.
One thing you need to understand, though, is that just because there’s an agreement doesn’t mean it has to be followed. Courts can, in limited circumstances, set aside or ignore prenuptial or post-nuptial agreements. It’s just a very technical analysis that depends on the facts and circumstances of when the agreement was entered and exactly what happened before the agreement was entered.
Some of the main reasons courts ignore premarital agreements or post-nuptial agreements is that one spouse have the incapacity to contract, meaning they were literally drunk, high, or very sick or not at the right set of mind to enter into one of these documents.
The documents can also be invalidated if there was duress or coercion. The more common example is signing a prenup the day of the wedding, right before the marriage ceremony when nobody ever talked about it before. But if you literally had a gun to your head or were threatened with harm by signing the agreement or in connection with signing the agreement, meaning somebody is going to hurt you if you didn’t, then it could be considered duress or coercion.
Usually, the fact that one spouse requires a post-nuptial agreement or prenuptial agreement to get married or stay married, it’s not going to be considered duress. It just depends on where you’re living and the exact facts. If one spouse did not have a lawyer during the agreement, that can be a big problem. Also, if there is not an adequate financial disclosure given by each spouse to the other, that can be a problem depending on the exact specifics of the circumstances.
With premarital agreements after 2007 down here in Florida, we have laws that allow you to waive the ability to get financial records from your spouse or soon-to-be spouse when you’re entering into a prenuptial agreement, but those laws don’t apply to post-nuptial agreements. And there are a few different tests as to whether you received or did not receive the appropriate amount of information about finances before signing one of the documents.
Bottom line here is talk to your lawyer. If there’s a marital agreement, you need to discuss it with your attorney because it’s a very technical area that varies from jurisdiction to jurisdiction and, quite frankly, from judge to judge.
So another big area with divorce cases when it comes to issues is attorneys’ fees and costs. In most states, divorce laws are set up so that in theory, each spouse has equal access to lawyers. And what this means is that if one spouse controls all the money, they can be required to pay the reasonable fees and costs of the other spouse’s lawyer if they have the ability.
Typically though, if the assets and income of each person are similar after the divorce, then everybody is going to pay for their own lawyer under Florida’s Divorce Laws. In some cases, there’s a financial imbalance early on in the divorce case and there needs to be a hearing to where one spouse will be able to request the other spouse to pay their lawyer what’s needed to do the thorough investigation needed to resolve or litigate a complicated divorce case.
So a few examples, just so you can see how this works. Jack and Jill get divorced and they each receive the same amount of marital assets. And Jack makes $150,000 a year and Jill is unemployed, Jack is not going to pay attorney’s fees to Jill if, by the time he pays her alimony and child support, their incomes are about equal. Although Jack has a higher income, by the time he pays support, they have about equal incomes, they’re leaving the marriage with equal assets. Jack’s probably not paying for Jill’s lawyer.
And another example that’s basically the same facts, but Jack leaves the marriage with $2 million in non-marital assets. So each person has the same amount of marital assets. Jack has slightly higher income but, since he has that $2 million in non-marital assets that he’s leaving the marriage with, he’s probably going to pay for his wife’s lawyer since he has far greater wealth than she does.
In another example here, the assumption is that everybody has equal assets, but Jack is making a very high income. He has $50,000 a month left over after he pays financial support, meaning he has the ability to pay for his wife’s lawyer out of his income. And these types of circumstances where somebody can pay for their lawyer out of their income, they’re generally going to have to pay for the other spouse’s lawyer.
There are some exceptions to all of this stuff, but that’s the general concept. And again, if you’re listening to this and not viewing the presentation, you should probably look at the slides for the examples and it might be a little bit more helpful to you.
The concept when it comes to attorney fee sharing laws is that the attorneys’ fees requested have to be reasonable. One spouse’s responsibility to pay their other spouse’s lawyer is not without some limits. If somebody is engaging in unnecessary litigation, meaning they’re turning down reasonable settlement offers and still continuing with the divorce case, then the amount of attorney’s fees that have to paid for that person’s lawyer by the wealthier spouse can be cut off or limited. A lot of how this works is common sense but it depends on the exact facts of your case and exactly where you’re living, and sometimes on the judge. I find that a lot of the judges don’t like to enable people to litigate by paying lawyers for cases that shouldn’t have been pursued after a certain point in time.
So now we’re going to move on to the basics of child custody under Florida’s Divorce Laws.
The bottom line here is after the divorce, each spouse is going to have the right to spend time usually with their children and make decisions about their child, but is also going to have a responsibility to contribute to the support of their children. Some of the states are a little different with this, but a lot of jurisdiction states in countries have similar parenting rules and laws.
In Florida and a lot of other places, the concept is that one parent doesn’t have custody anymore. It used to be that one parent would have called the legal custody of the kids. That’s pretty much out the window in a lot of places including Florida.
Now, the issues in the divorce typically are how will the parent share what’s called timesharing with the children? How will the parent share what’s called parental responsibility over the children? And how will each spouse contribute to the financial support of the children? Those are the three main areas we’re going to cover in this remainder of the lesson.
So timesharing. Florida and a lot of other places now use the term “timesharing” to describe how each parent spends time with the children. You don’t hear in the Family Court anymore anyone talking about the concepts of custody or visitation. They’re largely extinct. A lot of places it’s now called timesharing. It’s all basically the same but it’s just different words that are used.
If you’re reading about this stuff on the internet, it can get a little confusing. If you don’t understand timesharing, it basically means each parent’s visitation. A lot of judges start from the viewpoint here when determining timesharing that two capable parents who want equal time with their children after the divorce, if they’re similarly situated, should have equal time. If parents are both safe, if they’re both educated, if they’re both historically have been involved with their children and have schedules that allow them to continue to be then a lot of judges are going to start from the position now that there needs to be a good explanation why there shouldn’t be a schedule after the divorce that gives each parent equal time with kids.
Usually, the worst case scenario if there are no major problems with either parent, meaning substance abuse and things of that nature, the worst case scenario we usually see down in South Florida is parents having a schedule that leaves them with about 38% of the time usually they will have on one week from Thursday night after the kids get out of school through the kids going back to school on Monday after the weekend. And then on the week, the next week that follows they’ll have one night during the school week. It effectively works out to the parent who gets a little bit less time still having every other weekend with the kids in a few of the school nights, basically 5 out of every 14 days during the school year and then they get a little bit more time in the summer and holidays to balance things out.
For a lot of families to where there’s a traditional breadwinner, meaning a parent who works a little bit more with another parent who spends time with the kids, the amount of time that the breadwinner or parent gets in this worst-case scenario usually is more time than they were with the kids during the divorce. So a lot of people who have busy schedules, the business owners, doctors, lawyers and other professionals I represent find that the worst case scenario, so to speak, is usually quite fine for them, and allows them to plan for quality time with the kids.
For this reason, in most cases when people live in the same geographic area after the divorce, or at least that’s the plan, you don’t see a lot of people fighting over kids in the courtroom. Sometimes they’re legitimate reasons that people go to court to fight for more time, but you usually don’t see it when parents live locally and plan to after the divorce.
A few other concepts as it relates to timesharing under Florida’s Divorce Laws. Courts no longer presume that a child should be with their mother in their early years of childhood. There used to be a doctrine called The Tender Years Doctrine in Florida that basically translated to young children should be with their mother most of the time while they’re young. You don’t have that anymore in Florida. Our supreme court down here has called The Tender Years Doctrine “dead’.
And that can lead to some extreme examples with very young children with mothers who are breastfeeding. This stuff doesn’t come up a lot in divorce because rarely do people try to divorce each other when they have an infant child. But when that does happen, it can create a tricky situation especially with a breastfeeding mother. Thankfully, that doesn’t happen much. If you are in a family that has an infant child, my suggestion would be probably put the divorce off at least a few months to keep there from being problems if you anticipate them coming up.
Another concept is children are not going to be kept from the other parent just because a parent criticizes the other’s parenting skills. It’s not a contest of who’s the better parent if people do things differently as long as they’re safe with the kids. Most of the time, the judges aren’t going to care about minor parenting criticisms. Now, if one parent is subjecting the kids to a dangerous situation it’s a completely different ballgame and it does play a big factor in how the court looks at everything. But usually, minor parenting criticisms are not going to make a difference in what a judge does down here in Florida and a lot of other places.
If there are drug problems, domestic violence problems, or proven instances of one parent trying to alienate the kids against the other parent then there can be serious adjustments to some of the things I’ve been explaining. One parent can be kept, in some examples, completely away from the kids. If you have a situation like that, you’re going to need to go to a lawyer as soon as possible and may very well recommend working with what’s called a forensic psychologist who will interview both parents, interview a lot of other people, do some psychological testing, even talk to the kids. And I sometimes recommend one parent’s time being limited.
If you’re in one of those situations, you need to go talk to somebody right away. I wouldn’t follow the general philosophy in The Best Divorce book of waiting until you do more preparations. If there are problems with children, you need to address it immediately.
Going to a little bit brighter note, parental responsibility, if you remember beginning of this, there’s a concept of how much time you have with the kids and there’s a separate concept or decision area of who is responsible for what when it comes to the children. Used to be one parent would have custody and you get to make most of the major decisions, and that’s gone away.
Nowadays in Florida and a lot of other places, unless one parent’s judgment is seriously an issue and detriment is proven, parents will have typically what’s called a shared parental responsibility. That means they’re supposed to share in the major decisions for children. And if there’s a major disagreement, the judge is supposed to break the tie. If it’s proven that the shared responsibility would be detrimental then a judge can order one parent to have all of the decision-making abilities or likely order that one parent makes the main decisions in areas like education or health or similar type topics.
Child support. You can spend time with the kids but you have to pay for them. In Florida and most other states, child support is determined basically a mathematical formula that has the following main inputs. One is the income of the parent, the second input is the number of nights they have with the child in a year. And another series of inputs are how much each parent is paying for certain expenses of the children, like health insurance or daycare, things of that nature.
In a lot of states including down here in Florida, child support is considered a right of a child under Florida’s Divorce Laws. You can’t contract out child support. Judges don’t allow you to do that. It’s really a formula. You can’t get out of it. It is what it is.
As it relates to the income used for determining child support, that is based on what somebody is capable of earning. So if you’re unemployed but could be earning more money than if you actually worked, a judge can determine that a higher income should be used in the child support formula.
There’s a few exceptions to this that you’ll need to talk to your lawyer about if you have several kids and you’ve always stayed home with the children. You might not have a higher income assigned to you for the formula. It’s a very fact-specific thing. But for now, just understand the basics of this are child support in many places is just a formula. It usually will result in child support being paid until the youngest child reaches 18 or graduates high school. And it terminates if either parent dies or the child becomes married before 18, and a few other circumstances.